TAX CONTROVERSY 360

Weekly IRS Roundup May 8 – May 14, 2022

By McDermott Will & Emery on May 16, 2022
Posted In IRS Guidance, Tax Reform

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of May 8, 2022 – May 14, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

May 10, 2022: The IRS issued a news release, announcing that free face-to-face tax assistance will be provided at Taxpayer Assistance Centers around the country on May 14, 2022.

May 13, 2022: The IRS issued Notice 2022-27, extending (through December 31, 2022) earlier relief that temporarily removed the requirement that certain elections and consents under pension and employee benefit plans be made in the physical presence of a plan representative or notary public.

May 13, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Le Chen in our Washington, DC, office for this week’s roundup.

Weekly IRS Roundup May 1 – May 7, 2022

By McDermott Will & Emery on May 9, 2022
Posted In IRS Guidance, Tax Reform

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of May 1, 2022 – May 7, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

May 2, 2022: The IRS issued a news release as part of National Small Business Week, setting forth various resources to assist entrepreneurs with the tax aspects of starting and running a small business.

May 2, 2022: The IRS issued a news release, announcing the opening of the application period for 2023 grants under the Low Income Taxpayer Clinic (LITC) program, an IRS program created to assist organizations in providing pro bono representation to low-income and English as a second language (ESL) taxpayers in federal tax disputes.

May 3, 2022: The IRS issued Notice 2022-23, setting forth proposed changes to the procedures regarding qualified intermediary withholding agreements under Treas. Reg. §§ 1.1441-1(e)(5) and (e)(6). The Notice states that the proposed changes, subject to modifications based on comments received, will be finalized in a forthcoming Revenue Procedure and apply to qualified intermediary withholding agreements in effect on or after January 1, 2023.

May 3, 2022: The IRS issued a news release as part of National Small Business Week, urging small business owners to take advantage of the deductions for business-related food and beverage expenses (as expanded for 2022 pursuant to Section 274(n)(2)(D) of the Code), home office expenses and certain other deductions and benefits applicable to small businesses.

May 4, 2022: The IRS issued proposed regulations, providing updates to the rules regarding the use of actuarial tables in valuing annuities, interests for life or a term of years and remainder or reversionary interests under Section 7520 of the Code.

May 4, 2022: The IRS issued a news release as part of National Small Business Week, providing certain resources regarding estimated tax payments and encouraging taxpayers to make estimated tax payments electronically.

May 5, 2022: The IRS issued a news release as part of National Hurricane Preparedness Week and National Wildfire Awareness Month, reminding taxpayers of certain best practices to minimize the effect of natural disasters on tax compliance.

May 5, 2022: The IRS issued a news release as part of National Small Business Week, urging small businesses to take advantage of electronic options to file payroll tax returns and to pay and make deposits of payroll taxes.

May 6, 2022: The IRS issued Revenue Procedure 2022-22 and an accompanying news release, providing simplified procedures for certain residents of Puerto Rico to claim the Child Tax Credit under Section 24 of the Code, as expanded by the American Rescue Plan Act of 2021 (ARPA).

May 6, 2022: The IRS issued a news release as part of National Small Business Week, providing information to [...]

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Weekly IRS Roundup April 24 – April 30, 2022

By McDermott Will & Emery on May 2, 2022
Posted In IRS Guidance, Tax Reform

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 24, 2022 – April 30, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

April 25, 2022: The IRS issued a news release, soliciting applications for the IRS Advisory Council, a forum consisting of representatives of the public to advise the IRS on various tax administration issues.

April 26, 2022: The IRS issued proposed regulations under Section 2010(c)(3) of the Code, as amended by the Tax Cuts and Jobs Act (TCJA), relating to the increase in the estate and gift tax exclusion amount for taxable years 2018 through 2025. The proposed regulations generally provide that the special rule of Treas. Reg. § 20.2010-1(c), which states that certain coordinating rules for estate and gift tax with respect to decedents who made gifts during the period of the increased exclusion amount but died following such period, does not apply with respect to gifts that are includible in the decedent’s estate.

April 26, 2022: The IRS issued Notice 2022-21, soliciting recommendations from the public regarding items to be included in the IRS Priority Guidance Plan for 2022-2023.

April 27, 2022: The IRS issued proposed regulations, setting forth updated general mortality tables for use in applying rules under Section 430 of the Code regarding defined benefit pension plans.

April 27, 2022: The IRS issued Notice 2022-22, setting forth specific mortality tables applicable to 2023 for use in applying rules under Section 430 of the Code regarding defined benefit pension plans.

April 27, 2022: The IRS issued a news release announcing the appointment of Lia Colbert, formerly the deputy chief of the IRS Independent Office of Appeals, as commissioner of the IRS Small Business/Self-Employed Division.

April 27, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the Child Tax Credit under Section 24 of the Code, as expanded by the American Rescue Plan Act of 2021 (ARPA).

April 29, 2022: The IRS issued Revenue Procedure 2022-24, announcing various inflation-adjusted amounts relevant to health savings accounts (HSAs) for calendar year 2023.

April 29, 2022: The IRS issued Notice 2022-17, announcing that the reference price under Section 45K(d)(2)(C) of the Code, which is relevant for certain Code sections regarding oil and gas production, is $65.90 for calendar year 2021.

April 29, 2022: The IRS issued Notice 2022-18, providing the applicable reference price and associated credit amount used in determining the marginal well production credit under Section 45I of the Code.

April 29, 2022: The IRS issued Notice 2022-19, announcing the inflation adjustment factor and associated phase-out amount for purposes of determining the enhanced oil recovery credit under [...]

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IRS Changes Position on Approval for Assertion of Codified Economic Substance Doctrine

By Mike Tenenboym and Andrew R. Roberson on Apr 29, 2022
Posted In IRS Audits, IRS Guidance

In March 2010, Congress codified the economic substance doctrine in Internal Revenue Code (Code) Section 7701(o). The codification clarified that a conjunctive analysis applies in determining if the doctrine applies. The codified economic substance doctrine applies when a transaction does not have economic substance or lacks a business purpose. When the doctrine applies, a taxpayer is subject to a 20% strict liability penalty (40% in the case of undisclosed transactions) on any underpayment attributable to the disallowed tax benefit claimed.

Congress acknowledged that the codified economic substance doctrine should be applied sparingly, and the Joint Committee on Taxation, in a report issued prior to the enactment of the doctrine, provided detailed guidance on when the doctrine should apply. The Internal Revenue Service (IRS) issued guidance shortly after the codification acknowledging these points. The IRS also put in place detailed procedures for examiners to follow in determining whether to assert the codified economic substance doctrine.

One of the procedures put in place was the approval by the Director, Field Operation before the codified economic substance doctrine could be formally asserted. An approval request was to be made after consultation with the revenue agent’s manager and local counsel. Additionally, taxpayers were to be provided “the opportunity to explain their position.”

On April 22, 2022, the IRS’s Large Business & International (LB&I) Division issued a memorandum—LB&I-04-0422-0014—to all LB&I and Small Business/Self Employed examination employees (Updated Guidance). The Updated Guidance removes the requirement to obtain executive approval before asserting the codified economic substance doctrine. The Updated Guidance states that this change aligns penalties for lack of economic substance with other assessable penalties which do not require executive approval. However, the changes do not remove the supervisory approval requirement under Code Section 6751.

In connection with the Updated Guidance, revisions are being made to the relevant provisions of the Internal Revenue Manual (IRM). The IRM revisions eliminate some of the considerations previously set forth in the four-step process that revenue agents were required to undertake in determining whether the doctrine should be applied.

Practice Points: Although the Updated Guidance has no impact on the substance of the codified economic substance doctrine itself, the change is disappointing news. As a result of the relaxed rules for the doctrine’s assertion, taxpayers can reasonably assume that the doctrine may more frequently be asserted on audit. Thus, it is now even more important to properly document transactions to demonstrate they have sufficient economic substance and a business purpose.

A Look at the Tax Court’s Congressional Budget Justification

By Andrew R. Roberson and Kevin Spencer on Apr 27, 2022
Posted In Court Procedure Matters, Trial Courts

We frequently write about developments at the US Tax Court, including noteworthy cases, administrative matters, and the status of presidentially appointed Judges and court-appointed Special Trial Judges. One item we have not discussed in the past is the Tax Court’s “Reports & Statistics,” which is available here.

The Reports & Statistics page currently contains two items: (1) Congressional Budget Justification Reports and (2) Appellate Reports. The former contains reports for FY 2021, FY 2022 and FY 2023, and the latter contains, by months, cases commenced in the US Courts of Appeals from July 2020 through March 2022.

The Congressional Budget Justification Reports are submitted to the Committee on Appropriations, Subcommittees on Financial Services and General Government in the US House of Representative and US Senate. The FY 2023 Congressional Budget Justification Report (FY23 Report), submitted February 28, 2022, includes detailed information regarding the operations of the Tax Court and breakdown of its expenses (both prior and anticipated future expenses).

The FY23 Report contains details on the Tax Court’s response to the COVID-19 pandemic and the substantial increase in petitions filed in FY 2021 (35,297 petitions, up from the historical average of between 23,000 and 26,000 petitions). The report also discusses the court’s use of in-person and remote proceedings over the past two years, noting that the success of remote proceedings and the move to institutionalize remote proceedings post-pandemic.

For FY 2023, the Tax Court requested a budget of $57,300,000. This constitutes a 1.6% decrease from the FY 2022 requested budget. The following charts reflect prior and current requests and staffing levels.

A few other points are worth mentioning. The FY23 Report indicates that the Tax Court does not plan on holding a Judicial Conference in 2023 due to ongoing uncertainties relating to the COVID-19 pandemic (the last Judicial Conference was held in FY 2018). The FY23 Report also discusses the status of the Limited Entry of Appearance procedures that started in September 2019 and mentions certain legislative proposals submitted to Congress for fee proposals (e.g., raising the fee for filing a petition from $60 to $100). Finally, the FY23 Report notes that there are two vacancies for judicially appointed Judges (we note that currently no individuals have been nominated for these vacancies).

Practice Point: The FY23 Report contains detailed information about the Tax Court. It is worth a quick read for those who practice in the Tax Court or are interested in learning more about the Court’s operations.