TAX CONTROVERSY 360

It’s Official: President Biden Signs the Inflation Reduction Act into Law, IRS to Receive Increased Funding

By Andrew R. Roberson and Kevin Spencer on Aug 17, 2022
Posted In IRS Audits, IRS Guidance, Tax Reform

On August 16, 2022, US President Joe Biden signed into law the Inflation Reduction Act of 2022 (Act). A press release from the White House touts the Act as one that will “lower the costs for families, combat the climate crisis, reduce the deficit, and finally ask for the largest corporations to pay their fair share.” The press release provides a numerical summary of the Act’s impact on the healthcare, clean energy and tax sectors.

As we previously discussed, the Act provides for a significant increase in funding for the Internal Revenue Service (IRS). IRS Commissioner Chuck Rettig shared the following written statement regarding the Act:

The signing of the historic reconciliation package marks a transformational moment for our agency—and an opportunity for the future of tax administration. The IRS has struggled for many years with insufficient resources to fulfill our important mission. During the next 10 years, these funds will help us in many areas, including adding critical resources to not just close the tax gap but meaningfully improve taxpayer service and technology. This will allow the IRS to provide services to taxpayers in the manner they expect and deserve. The act also includes a wide range of tax law changes that we will have to implement very quickly.

Given the scope of the bill, keep in mind these changes will not be immediate. It’s a 10-year plan, and it will take time to put these provisions into place. More details will be available in coming months.

We have a lot of hard work in front of us to deliver on the high expectations this historic funding will provide. But I have great confidence IRS employees are up to the task—and will deliver for Americans as they have countless times before in the history of our agency.

The Act also contains several new provisions relating to the corporate alternative minimum, a tax on stock buybacks, and tax credits for clean energy use and production. These provisions will require immediate guidance given that they are effective for taxable years beginning after December 31, 2022.

Practice Point: The IRS has its work cut out for it. It is critical that timely guidance be provided to taxpayers impacted by the Act’s new provisions to allow for proper planning and modeling. Additionally, the IRS needs to create and execute a plan to improve its technology and customer service.

Update as of August 18, 2022: US Secretary of the Treasury Janet Yellen has issued a memorandum to Commissioner Rettig, directing the IRS to produce, within six months, an operational plan detailing how the additional funding would be deployed over the next decade. Secretary Yellen specifically stated that she would like the IRS to work closely with Deputy Secretary of the Treasury Wally Adeyemo “to identify specific operational initiatives and associated timelines that will improve taxpayer service, modernize technology, and increase equity in our system of tax administration [...]

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Huge Win for Refined Coal: DC Appeals Court Permits Tax Credits

By Andrew R. Roberson and Kevin Spencer on Aug 16, 2022
Posted In Appellate Courts, Court Procedure Matters, Trial Courts

On August 5, 2022, the US Court of Appeals for the District of Columbia Circuit upheld the US Tax Court’s bench opinion in favor of partners and investors in a refined coal business. The Internal Revenue Service (IRS) has consistently fought taxpayers’ attempts to claim a tax credit for refining coal despite a clear congressional mandate in Internal Revenue Code section 45(c)(7)(A). The IRS has repeatedly taken the position that the partnerships formed to utilize the tax credits generated by the refined coal business are not bona fide because the partnerships could never make an economic profit without the tax credits.

In Cross Refined Coal LLC, the IRS examined the partnership’s 2011 and 2012 tax years and disallowed $25.8 million of refined coal production tax credits and $25.7 million of claimed operating losses. The IRS argued that:

The partnership did not exist as a matter of fact.
The partnership was not, in substance, a partnership for federal income tax purposes because it was not formed to carry on a business or for the sharing of profits and losses from the production or sale of refined coal by its purported members/partners, but rather was created to facilitate the prohibited transaction of monetizing refined coal tax credits.
The transaction was entered into solely to purchase refined coal tax credits and other tax benefits.
Claimed expenses were not ordinary and necessary or credible expenses in connection with a trade or business or other activity engaged in for profit.

After a two-week trial involving several witnesses and thousands of exhibits, the Tax Court held that the partnership was legitimate because its partners made substantial contributions to the partnership, participated in its management and shared in its profits and losses. The IRS appealed to the DC Circuit.

In affirming the Tax Court, the DC Circuit held that the partners intended to form a partnership and had legitimate non-tax motives for the business. The Court diffused any concern that the partnership included tax benefits, explaining that “there was nothing untoward about seeking partners who could apply the refined-coal credits immediately, rather than carrying them forward to future tax years.” The Court also recognized that “Congress expressly provided for coal refiners to employ this investment strategy, for the tax code specifies how the credit must be divided when a refining facility has multiple owners.” The Court was not persuaded by the IRS’s concern that the partners did not enter the partnership to obtain a pre-tax profit: “[a]ccording to the Commissioner, Cross’s partners did not have the requisite intent to carry on a business together because Cross was not ‘undertaken for profit or for other legitimate nontax business purposes.’” The Court disagreed, explaining:

As a general matter, a partnership’s pursuit of after-tax profit can be legitimate business activity for partners to carry on together. This is especially true in the context of tax incentives, which exist precisely to encourage activity that would not otherwise be profitable.

The DC Circuit found [...]

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Weekly IRS Roundup August 8 – August 12, 2022

By McDermott Will & Emery on Aug 15, 2022
Posted In IRS Guidance, Tax Reform, Tax Refunds

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of August 8, 2022 – August 12, 2022.

August 8, 2022: The IRS released Internal Revenue Bulletin 2022-32, highlighting Notice 2022-32, which provides guidance on the corporate bond monthly yield curve and corresponding spot segment rates and the 24-month average segment rates. The notice also provides guidance as to interest rates on 30-year Treasury securities and the 30-year Treasury weighted average rates.

August 8, 2022: The IRS released IR-2022-146, reminding truckers to file Form 2290, Heavy Highway Vehicle Use Tax Return, on or before the August 31, 2022, deadline. Truck owners who drive a highway motor vehicle weighing 55,000 pounds or more must file the return and pay the tax. Vehicles that used 5,000 miles or less (7,500 miles for farm vehicles) must file the return but do not have to pay the tax.

August 8, 2022: The IRS released Tax Tip 2022-120, explaining how some money raised through crowdfunding may be a gift and excluded from gross income. Crowdfunding websites must file Form 1099-K, Payment Card and Third-Party Network Transactions.

August 9, 2022: The Security Summit partners unveiled a new sample security plan designed to help tax professionals protect their data, particularly those with smaller practices. Tax professionals, software and industry partners and representatives from state tax groups, along with the IRS, developed the plan, dubbed the Written Information Security Plan. Federal law requires that all professional tax preparers create and implement a data security plan.

August 9, 2022: The IRS released COVID Tax Tip 2022-121, reminding taxpayers of the resources available on IRS.gov to help them file their tax returns electronically, get tax account information and find the status of their refund.

August 10, 2022: The IRS released IR-2022-148, reminding teachers and educators that they can deduct up to $300 of out-of-pocket classroom expenses when they file their 2022 tax return. This is the first increase since the deduction was enacted in 2002. From 2002 through 2021, the limit was $250 per year.

August 10, 2022: The IRS announced that storm victims in parts of Missouri now have until November 15, 2022, to file individual and business tax returns and make tax payments if they had a valid extension to file their 2021 returns. The relief is available to anyone in an area designated by the Federal Emergency Management Agency as qualifying for individual or public assistance. The current list of eligible localities is available here.

August 10, 2022: The IRS released Tax Tip 2022-122, outlining the steps business owners need to take when closing a business.

August 11, 2022: The IRS announced Tax Tip 2022-123, highlighting two educational tax credits available to taxpayers who paid higher [...]

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Weekly IRS Roundup August 1 – August 5, 2022

By McDermott Will & Emery on Aug 8, 2022
Posted In IRS Guidance, Tax Reform, Tax Refunds

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of August 1, 2022 – August 5, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

August 1, 2022: The IRS released Internal Revenue Bulletin 2022-31, which highlights the following:

Administrative: Revenue Procedure 2022-30 provides specifications for the private printing of red ink substitutes for the 2022 Forms W-2 and W-3.

Income Tax: Revenue Ruling 2022-14 provides the applicable federal rates for federal income tax purposes for August 2022.

August 1, 2022: The IRS released Tax Tip 2022-116, explaining the basics of excise tax and what businesses should know.

August 1, 2022: The IRS announced Revenue Procedure 2022-29, which modifies and supersedes Revenue Procedure 2006-36, 2006-38 I.R.B 498. The Procedure updates how government agencies and members of the public should request the creation of special statistical studies and compilations involving return information. It also sets forth the criteria for determining reasonable fees for the costs associated with the creation of the special statistical studies and compilations.

August 2, 2022: The IRS released IR-2022-144, urging tax professionals to learn the signs of data theft so that they can react quickly to protect clients. This topic is the third of a five-part series from the Security Summit, including the IRS, state tax agencies and others from the tax community. Tax professionals or firms that are the victim of data theft should immediately report it to the local IRS Stakeholder Liaison.

August 2, 2022: The IRS announced that Kentucky storm and flooding victims now have until November 15, 2022, to file individual and business tax returns and make tax payments if they had a valid extension to file their 2021 returns. The relief is available to anyone in an area designated by the Federal Emergency Management Agency as qualifying for individual or public assistance. The current list of eligible localities is available here.

August 2, 2022: The IRS released Tax Tip 2022-117, providing the legal distinctions between an employee and an independent contractor.

August 3, 2022: The IRS released Notice 2022-33, extending the deadlines for amending a retirement plan or individual retirement arrangement to reflect certain provisions of Division O of the Further Consolidated Appropriations Act, also known as the Setting Every Community Up for Retirement Enhancement Act of 2019, and section 104 of Division M of the Further Consolidated Appropriations Act, 2020, also known as the Bipartisan American Miners Act of 2019.

August 3, 2022: The IRS released COVID Tax Tip 2022-118, explaining the educator expense deduction, which allows eligible teachers and administrators to deduct part of their cost for technology, supplies and training from their personal taxes. This applies only to expenses [...]

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Amici Support Whirlpool’s Request for Supreme Court Review

By Andrew R. Roberson and Robert Levin on Aug 8, 2022
Posted In Appellate Courts, Court Procedure Matters, Trial Courts

As we previously discussed, toward the end of June Whirlpool Financial Corporation & Consolidated Subsidiaries and Whirlpool International Holdings S.a.r.l. & Consolidated Subsidiaries (collectively, Whirlpool) asked the Supreme Court of the United States to review the US Federal Circuit Court of Appeals for the Sixth Circuit’s decision that income earned by a Luxembourg controlled foreign corporation was foreign base company sales income (FBCSI) under the branch rule of Internal Revenue Code (IRC) section 954(d)(2) and taxable to the corporation as “subpart F income.” (For an excellent dissection of the Sixth Circuit’s decision, please see our colleagues’ article, “Implications of the Sixth Circuit’s Whirlpool Opinion.”)

Several amici recently filed briefs with the Supreme Court supporting Whirlpool. The docket sheet for the case, titled Whirlpool Financial Corp. et al., Petitioners, v. Commissioner of Internal Revenue, No. 22-9, is available here.

On August 3, 2022, the National Association of Manufacturers (NAM) submitted its brief, setting forth two arguments:

First, the Sixth Circuit applied an entirely novel interpretation—not found anywhere in the Code or Treasury regulations and not advanced by the agency nor adopted by the Tax Court—that conflicts with decades-old regulations promulgated contemporaneously with the underlying statute and at Congress’s express command in section 954(d)(2) itself.

Second, reliance on validly promulgated regulations—and therefore regulated parties’ ability to comply with the laws—is the bedrock of administrative law. If taxpayers must follow regulations or face the prospect of civil (and perhaps even criminal) penalties, then so too must the government be held to its binding, published actions.

On August 4, 2022, PricewaterhouseCoopers LLP, Deloitte Tax LLP and KPMG LLP (collectively, Accounting Firms) joined forces to bring the “exceptionally important” nature of the case to the Supreme Court’s attention. (The brief states that Ernst & Young LLP did not participate as amicus curiae because it is Whirlpool’s financial statement auditor.) In their brief, the Accounting Firms assert:

The Sixth Circuit’s disregard of the regulations in its attempt to interpret the requirements of the statute creates substantial uncertainty with respect to the efforts to comply with the Internal Revenue Code and the Amici who advise them. Review by this Court is necessary to reassure taxpayers that when Congress expressly conditions tax provisions on the issuance of Treasury Regulations, courts will take those regulations into account in interpreting the requirements of the Internal Revenue Code.

Also on August 4, a third brief was submitted by the Silicon Valley Tax Directors Group, the National Foreign Trade Council, the Information Technology Industry Council and TechNet. These amici assert:

This Court should alleviate [the] disparate treatment among taxpayers—or even the same taxpayer in different federal courts—by recognizing the importance of the clear statutory command that branch income “shall constitute” FBCSI only “under regulations prescribed by the Secretary [of the Treasury].” 26 U.S.C. § 954(d)(2). Restoring taxpayer reliance on those regulations is crucial for preserving Congress’s desired uniform scheme and [...]

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