What You Need to Know About the Taxation of NFTs

Non-fungible tokens (NFTs) are today’s hottest digital assets. They are also completely ignored by the Internal Revenue Service—to date, at least—even in the agency’s pronouncement on the taxation of cryptocurrencies.

In this series of articles, we’ll start cracking the NFT code: what they are, how they are created, bought and sold, how they might be taxed by the IRS, and the use of NFTs for charitable contributions and fundraising purposes.

1. Introduction to NFTs – As today’s hottest digital assets, non-fungible tokens (NFTs) have taken the arts and investment worlds by storm. But what are they, exactly, and how are they to be treated for tax purposes? This article provides an overview of need-to-know information regarding these exciting—and potentially risky—assets. Read more.

2. Taxation of NFT Creators – NFTs offer artists, musicians, celebrities, influencers and other creators an opportunity to develop, market and control the future of many types of digital content that they produce. Less understood is how these assets will be categorized and taxed by the Internal Revenue Service. This article reviews how creators of NFTs will likely be treated by the IRS and what that means for them. Read more.

3. Taxation of the Purchase and Sale of NFTs – Given a lack of guidance on the tax treatment of non-fungible tokens (NFTs), taxpayers can be forgiven for experiencing a certain level of uncertainty with respect to how the Internal Revenue Service (IRS) will apply its tax rules to purchases and sales of these assets. IRS reasoning on other asset classes, however, sheds some light on this otherwise uncharted territory. This article reviews the various factors that are likely to play a role in determining the classification and treatment of NFT transactions for tax purposes. Read more.

4. NFTs and Charitable Fundraising: Navigating Tax Hurdles – As the creation of and transactions involving non-fungible tokens (NFTs) have increased dramatically, so has interest in using NFTs as donations to charitable organizations and for other charitable fundraising tools. Given the lack of guidance from the IRS on such gifts, donors and recipient charities face a number of tax uncertainties. This article examines the tax hurdles involved in using NFTs for charitable fundraising purposes and offers suggestions for compliance with recordkeeping and tax reporting requirements. Read more.

Andrea (Andie) Kramer is a recognized thought leader on tax related cryptocurrency matters. She was named the 2020 Go-To Thought Leader in Virtual Currency Tax by the National Law Review and a 2021 Readers’ Choice Top Author in cryptocurrency taxation by JD Supra for her article series on cryptocurrency tax.




National Taxpayer Advocate’s Report Highlights Tough Times for Tax Administration

On January 12, 2022, the National Taxpayer Advocate released a report to US Congress concerning the state of tax administration in 2021. The report highlights the struggles the Internal Revenue Service (IRS) has been having in the wake of the COVID-19 pandemic, including how the IRS is substantially behind in processing returns, the breakdown of the IRS call center, delays in processing responses to IRS notices sent to taxpayers and a myriad of other issues. (There is indeed a backlog for processing millions of tax returns!)

The Taxpayer Advocate Service (TAS) can be a helpful and powerful tool for taxpayers looking to resolve their tax issues with the IRS. We have provided information on this resource in earlier submissions. (See Taxpayer Advocate Service: Not Just for Low-Income Taxpayers.)

Practice Point: For those who are having difficulties interacting with the IRS and unable to achieve reasonable or satisfactory responses or explanations, seeking assistance from TAS can go a long way in resolving tax issues. The process is free to taxpayers and starts with the filing of Form 911 with the appropriate TAS office. If you seek assistance in the near future, be mindful that TAS is currently flooded with requests for help but will work your case—if it meets the relevant criteria—as soon as possible. A dose of patience will be needed to work through this resource to obtain a successful resolution of your tax issue.




Extending the Statute of Limitations for Assessing Federal Tax

We previously provided an overview of the time limits imposed on the Internal Revenue Service (IRS) for assessing federal tax. The general rule is that the IRS must assess tax within three years from the later of the due date of the original tax return or the date it was filed. If the IRS does not assess tax during this period, it is foreclosed from doing so in the future. Note that the filing of an amended return does not restart or extend the limitations period. There are numerous exceptions to this rule, including if there is a substantial omission of income, fraud, failure to file a return, extension by agreement and failure to provide certain information regarding foreign transactions. We discussed many of these exceptions in Seeking Closure on Tax Positions: A Look at Tax Statutes of Limitation and Omitted Subpart F and GILTI Income May Be a Statute of Limitations Trap for the Unwary. Below, we discuss the rules and considerations for consenting to extending the time to assess federal tax.

Internal Revenue Code (Code) Section 6501(c)(4) provides that, except in the case of estate taxes, taxpayers (or their duly authorized representative) and the IRS may consent in writing to an extension of the limitations period for assessment. Importantly, such an agreement must be executed before the limitations period expires. In other words, assuming no other exception applies to the general three-year rule, an agreement to extend the limitations must be executed within the later of three years from the date the tax return was due or filed. If executed after that date, the consent is invalid. Thus, a late-filed consent cannot revive an otherwise closed limitations period. Under Code Section 6511(c), extending the statute of limitations on assessment also extends the period for filing a claim for credit or refund to six months after the expiration of the extended assessment period.

Form 872, Consent to Extend the Time to Assess Tax, is generally used to effectuate an agreed extension to a certain date, however, other versions of the form may be used for different types of taxpayers or issues (e.g., Form 872-M, Consent to Extend the Time to Make Partnership Adjustments, is used for partners subject to the centralized partnership audit regime under the Bipartisan Budget Act of 2015). Form 872-A, Special Consent to Extend the Time to Assess Tax, may be used to extend the limitations period for an indefinite period (referred to as an Open-Ended Consent). An Open-Ended Consent ends 90 days after the mailing by the IRS of written notification of termination or receipt by the IRS of written notification of termination from the taxpayer (both actions are accomplished through the use of Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax), or the mailing of a notice of deficiency. The IRS’s views on Open-Ended Consents are summarized in
Continue Reading




A Sit-Down with Andrew VanSingel

Andrew Roberson interviewed Andrew VanSingel, who dedicated his career to providing pro bono and public services to low-income taxpayers, for an American Bar Association Pro Bono Matters column. They discussed VanSingel’s work in the disaster relief area and at TAS, shared advice for young lawyers who want to get more involved in pro bono work and more.

Access the article.




STAY CONNECTED

TOPICS

ARCHIVES