On November 8, 2017, Facebook, Inc. and Subsidiaries (Facebook) filed a complaint in the District Court for the Northern District of California asserting that the Internal Revenue Service (IRS) had improperly denied Facebook access to Internal Revenue Service (IRS) Appeals. Facebook’s complaint seeks a declaratory judgment that the IRS unlawfully issued Revenue Procedure 2016-22, 2016-15 I.R.B. 1, and unlawfully denied Facebook its statutory right to access an independent administrative forum. Facebook also requests injunctive relief from the IRS’s unlawful position, or action in the nature of mandamus to compel the IRS to provide Facebook access to an independent administrative forum. Continue Reading Facebook Goes to District Court to Enforce Access to IRS Appeals
K. Christy Vouri-Misso focuses her practice on US and international taxation. Read K. Christy Vouri-Misso's full bio.
On March 10, 2017, the Tax Court of Canada held that agreements reached under the Mutual Agreement Procedure (MAP) precluded the Canada Revenue Agency (CRA) from redetermining the transfer prices of rock salt sold by Sifto Canada Corp. (Sifto Canada) to a related party in the United States.
In 2006, Sifto Canada reevaluated the transfer pricing of its rock salt sales to its US affiliate for 2002 through 2006. Siftco Canada discovered that the sales prices had been for less than an arm’s length price and in 2007 made an application to the CRA’s voluntary disclosure program reporting additional income from the sale of rock salt for 2002-2006 of over C$13 million. In 2008, the CRA accepted the application and assessed additional tax on that income.
After the assessment, Sifto Canada applied to the Canadian Competent Authority (CCA) and its US affiliate applied to the United States Competent Authority (USCA) for relief from double taxation under Articles IX and XXVI of the Convention between Canada and the United States of America with Respect to Taxes on Income and on Capital, as amended (the Treaty). The CRA did not audit Sifto Canada during this time and based its position paper on Sifto Canada’s voluntary disclosure application. Under the MAP process, the USCA and CCA then agreed to the transfer prices.
During the negotiation process for the MAP, the CRA began auditing the transfer prices of the rock salt for those years and then, subsequent to the signing of the MAP agreements, the CRA determined that the transfer prices should have been even higher than the amounts reported by Sifto Canada in the voluntary disclosure and issued further reassessments of its tax.
The CRA argued that: (1) the MAP agreements only provided relief from double taxation and did not set transfer prices; (2) the CCA only entered into agreements with the USCA and did not enter into a binding agreement with Sifto Canada regarding the transfer prices; and (3) that the government had a duty to reassess the tax once it determined that the transfer prices were not at arm’s length.
The Tax Court of Canada did not agree with the CRA and held the government to its MAP agreements. The Court found that by reaching an agreement under the MAP process, the CCA necessarily had to find that the transfer prices were at arm’s length under the Treaty. Further, the Court found that under the factual matrix of this case, the CCA’s letters exchanged with Siftco Canada clearly described the terms of the MAP agreements, asked Siftco Canada to accept those terms, and Sifto Canada then accepted the terms establishing a binding agreement. Finally, the Court found the agreements were not “indefensible on the facts and the law” and thus were binding on the Canadian government.
Practice Point: This case is helpful to taxpayers with cross-border transactions between the US and Canada and demonstrates that MAP agreements are binding on the CRA.
On April 5, 2017, in an unanimous court reviewed opinion, the United States Tax Court determined that disclosure of a worker’s tax return information to absolve the employer from liabilities arising out of the employer’s withholding requirement is not subject to the general prohibition against disclosing taxpayer return information pursuant to Internal Revenue Code (IRC) Section 6103, and does not shift the burden of proof to the Internal Revenue Service (IRS).
In Mescalero Apache Tribe v. Commissioner, 148 T.C. 11 (2017), the IRS determined that a number of the Mescalero Apache Tribe’s workers were not independent contractors, but employees. If the IRS prevailed in its worker reclassification determination then, as the employer, the Mescalero Apache Tribe would be jointly and severally liable for Federal income tax that should have been withheld on the workers’ earnings. To prevent double taxation, IRC Section 3402(d) provides that the IRS cannot collect from the employer the withholding tax liability if the employees have already paid income tax on their earnings. To prove its position that the workers were independent contractors and alternatively to reduce any potential withholding tax liability if the workers were classified as employees, the Mescalero Apache Tribe asked each worker to complete Form 4669, Statement of Payments Received. However, the Mescalero Apache Tribe had trouble locating each of its workers because many had moved or lived in hard-to-reach areas without phone service or basic utilities. Continue Reading IRS is Required to Search Tax Return Information Records to Help Determine Worker Classification
On December 2, 2016, the US District Court for the Central District of California found that taxpayers who failed to file a Report of Foreign Bank and Financial Accounts (FBARs) for three foreign accounts, one of which, in the court’s view, was intentionally kept secret from all persons except their children, for over a decade were “at least recklessly indifferent to a statutory duty.” Read more about the case here. The court found that the taxpayers were “sophisticated,” pointing to evidence that they ran a successful camera shop, and that they lacked credibility having made several misrepresentations on their failed attempt to apply to the Offshore Voluntary Disclosure Program (OVDP) and for making unbelievable assertions at trial. The court did not apply the heightened standard of willfulness applicable to criminal trials, a violation of a known legal duty, finding that civil trials apply the lesser standard of reckless disregard of a statutory duty. Additionally, the court rejected the defendants’ argument that the government had to show willfulness under the clear and convincing standard of proof and applied the typical civil preponderance of the evidence standard of proof. The taxpayers’ lawyer has stated that they will appeal the decision.
Practice note: Ensuring that OVDP applications are complete and truthful is crucial to their acceptance and, as demonstrated here, can and will be used against the taxpayer in any later proceedings. The taxpayers in this case had a number of factors working against them, and, as shown here, offshore reporting cases will often turn on their own specific facts. As more and more FBAR enforcement cases are being docketed around the country, it will be interesting to see whether reviewing courts will apply a uniform standard for willfulness under the FBAR statute.
On November 17, 2016, the US Department of the Treasury’s Community Development Financial Institutions Fund (CDFI Fund) announced the largest single round award of New Market Tax Credit (NMTC) allocations since the program’s creation in 2001. One hundred twenty organizations, headquartered in 36 states, the District of Columbia and Puerto Rico, were awarded a total of $7 billion of NMTC allocations.
On October 21, 2016, the Internal Revenue Service announced the most current data on the success of its Offshore Voluntary Disclosure Program (OVDP) and Streamlined Filing Compliance Procedures (SFCP) programs. For our prior coverage on the OVDP and SFCP programs please see Offshore Voluntary Disclosure Update and Release of “Panama Papers” May Encourage New Wave of OVDP Submissions.
OVDP program has existed in several iterations off and on since 2009, and the SFCP was made available to non-willful taxpayers in 2014. The programs encourage taxpayers with undisclosed income from foreign financial accounts and assets to become compliant and current with their tax returns and information reporting obligations. The program allows taxpayers to voluntarily disclose foreign financial accounts and assets and pay lower penalties now, rather than risk detection and face more severe penalties and possible criminal prosecution later.
The programs have been successful by all accounts. As of October 21, 2016, 55,800 taxpayers have made disclosures under the OVDP program and have paid more than $9.9 billion in taxes, interest and penalties since 2009. Another 48,000 taxpayers have made disclosures under the SFCP program correcting non-willful omissions and have paid $450 million in taxes, interest and penalties.
The US Department of the Treasury and Internal Revenue Service (IRS) issue Priority Guidance Plans each year to identify and prioritize the tax issues they believe should be addressed through regulations, revenue rulings, revenue procedures, notices and other published administrative guidance. On October 31, 2016, the IRS and Treasury released the first quarter update to the 2016-2017 Priority Guidance Plan originally released on August 15, 2016.
The original plan identified 281 guidance projects as priorities, and the first quarter update includes an additional six guidance projects. The additional projects include:
- Guidance regarding the removal of the no-rule positions for certain legal issues concerning device and business purpose under section 355 (PUBLISHED 09/12/16 in IRB 2016-37 as REV. PROC. 2016-45 (RELEASED 08/26/16)).
- Revenue procedure providing a self-certification procedure for waivers of the 60-day rollover requirement under §§402(c)(3) and 408(d)(3) (PUBLISHED 09/12/16 in IRB 2016-37 as REV. PROC. 2016-47 (RELEASED 08/24/16)).
- Announcement on hardship distributions and loans from retirement plans as a result of Louisiana storms (PUBLISHED 09/12/16 in IRB 2016-37 as ANN. 2016-30 (RELEASED 08/30/16)).
- Announcement concerning the tax treatment of payments made on behalf of or reimbursements received by residents affected by the Southern California Gas Company natural gas leak (PUBLISHED 08/01/16 in IRB 2016-31 as ANN. 2016-25 (RELEASED 07/19/16)).
- Guidance for income and employment tax purposes on the treatment of cash payments made by employers under leave-based donation programs for the relief of victims of the Louisiana storms (PUBLISHED 10/03/16 in IRB 2016-40 as NOT. 2016-55 (RELEASED 09/16/16); and
- Guidance under §909 related to foreign-initiated adjustments and the separation of foreign taxes and related income (PUBLISHED 10/03/16 in IRB 2016-40 as NOT. 2016-52 (RELEASED 09/15/16)).
Understanding the timing of a US Federal tax controversy is helpful in creating a sound and efficient strategy. This timeline shows the typical timing of a US Federal tax controversy, from the IRS’s examination of the return, through administrative appeals, litigation in Tax Court, Circuit Court appeal, and to ultimate assessment of tax.
On April 4, 2016, the Internal Revenue Service and the US Department of the Treasury issued proposed regulations pursuant to Internal Revenue Code (IRC) section 385 addressing whether an interest in a related corporation is treated as stock or indebtedness for US federal income tax purposes (Proposed Regulations). On June 29, 2016, both the DC Bar Taxation Section and the New York State Bar Association Tax Section submitted comments on the Proposed Regulations. Both Tax Sections urged Treasury not to finalize the Proposed Regulations. The DC Bar Taxation Section letter can be found here and the New York State Bar Association Tax Section letter can be found here.
The Proposed Regulations have been met with substantial criticism by the tax bar and taxpayers alike. The Proposed Regulations would have a significant impact on intercompany debt of multinational groups and could, if finalized in their proposed form, force major changes in the way that taxpayers conduct routine business.
Senator Rand Paul (R-KY) and six other plaintiffs’ efforts to challenge parts of the Foreign Account Tax Compliance Act (FATCA) were thwarted when the US District Court for the Southern District of Ohio dismissed their claims for lack of standing. Crawford v. Dep’t of Treasury, S.D. Ohio, US District Court for the Southern District of Ohio No. 3:15-cv-00250, (April 26, 2016). A copy of the ruling can be accessed online.
Senator Paul based his legal standing on his role as a US Senator, arguing a loss of political power as his injury. The court held Senator Paul did not have standing to litigate his claim because he had not alleged an injury to himself and that the “institutional injury he alleges is wholly abstract and widely dispersed.” The court noted that “[a] legislator does not hold any legally protected interest in proper application of the law that is distinct from the interest held by every member of the public.”
The court also found that another plaintiff did not have standing because his ability to sue could not be based on an injury caused by third parties. This plaintiff argued that because of the FATCA requirements, his brokerage firm refused to work with American clients. He also argued that he was uncomfortable with the reporting requirements and feared the “unconstitutionally excessive fines” if he willfully failed to file a “Report of Foreign Bank and Financial Accounts” or FBAR.
The remaining plaintiffs made similar arguments that the court refused to sustain.