The main attraction in the US Tax Court (Tax Court) is just a few weeks away. On March 5, 2018, The Coca-Cola Company (TCCC) and the Internal Revenue Service (IRS) square-off for a much anticipated six-week trial before Judge Lauber. The parties recently filed their Pretrial Memoranda in the case, although the IRS’s memorandum was filed under seal. TCCC’s Pretrial Memorandum gives us deep insight into the issues and how the trial will be conducted. The primary issue in the $3 billion transfer pricing case is the proper amount of the arm’s length royalties payable by six foreign licensees to TCCC for the licenses of TCCC’s trademarks and certain other intangible property for exploitation in international markets. In its Pretrial Memorandum, TCCC contends that the IRS’s application of an approximately 45 percent royalty rate using a bottler-based Comparable Profit Margin (CPM) that allocates to TCCC more than 100 percent of the aggregate operating (after accounting for the amounts paid pursuant to the Royalty Closing Agreement) profits of the six foreign licensees is arbitrary and capricious. Continue Reading Let’s Get Ready to Rumble – Coca Cola Concentrates on Trial Preparation
The IRS has never won a single litigated case arguing for foreign base company sales income (and has never litigated a foreign base company services income case). Courts have consistently rejected the government’s arguments to expansively apply the definition of Subpart F sales income in order to carry out asserted congressional intent. While the courts have acknowledged that the policies informed the rules, they have not permitted the policies to eclipse the plain language of the code, even where the taxpayer engaged in tax planning that took advantage of the rules and arguably frustrated the policies underlying the rules.
As we have recently discussed, Internal Revenue Service (IRS) Appeals has been making a number of changes to their administrative review process in the last few years. While many of these changes have been driven by lack of resources, others—like the standing invitation of Exam into the Appeals process—have the potential to undermine the independence of Appeals, which has historically been a vital component of the taxpayer’s right of redress with the Service.
In this week’s American Bar Association conference in Austin, Texas, IRS Appeals clarified that, for field cases worked by revenue agents, taxpayers may still receive in-person conferences, despite recent pronouncements that phone conferences are the preferred or default method. Conferences in campus cases (or correspondence audit cases) will still be generally handled by telephone, but there will eventually be a move to in-person conferences by request. Campus cases are being treated differently because they are often managed in locations remote from the taxpayer without adequate facilities for in-person meetings. Guidance will be issued to IRS employees regarding these changes.
As Taxpayer Advocate Nina E. Olson noted, these changes are helpful but not enough. In particular, Olson expressed dismay that campus cases were not being included in the change. Roughly 75 to 80 percent of IRS examinations are conducted by correspondence. In these cases, there is a great need for personal contact with the taxpayer, but no single person within the Service is assigned to a case.
Practice Point: The new announcement provides practitioners with additional support for their requests for in-person Appeals conferences. In our experience, an in-person conference is frequently much more productive than one by phone, and practitioners should request these whenever possible.
On May 1, 2017, the IRS issued FAQs concerning its recent practice of inviting IRS Examination Agents (Exam) into the Appeals discussion. The FAQs make clear that Exam will now be routinely invited to Appeals conferences. The release premises this procedural shift on perceived efficiencies of having Exam stay during the taxpayer’s rebuttal presentation. The FAQs explain, however, that settlement discussions with the taxpayer will be held without Exam present. This is an important clarification, and the FAQs explain that this new process is different from Rapid Appeals.
Practice Point: It is clear that diminishing resources have put substantial pressure on the Appeals process. In several recent Appeals sessions, Exam has been invited to stay for our clients’ rebuttal to Exam’s presentation. After the taxpayers’ presentation, Appeal tries to elicit a back-and-forth communication between the taxpayer and Exam, putatively to ensure that all of the relevant facts are developed and agreed upon. Exam typically has counsel at these Opening Conferences, which tends to make Exam more of an advocate as opposed to the traditional developer of the facts and of the IRS’s audit position. This two-way communication seems to be an attempt to morph the Appeals session into some type of mini-mediation akin to a FastTrack session. Taxpayers therefore must take care to plan their settlement strategy, as the line between development of the facts and discussion of the hazards can be blurry. While in some cases it might be useful to negotiate in the presence of the Exam team, we have found that more progress typically is made when Exam leaves the room.
The Internal Revenue Service Office of Appeals (IRS Appeals) recently announced that it will offer a new virtual “face-to-face” option in the form of web-based communication to taxpayers and representatives to resolve tax disputes. IRS Office of Appeals Pilots Virtual Service, IRS (July 24, 2017. This announcement comes on the heels of other changes at IRS Appeals that curtail the ability of taxpayers to have face-to-face hearings with IRS Appeals. The IRS cites the need for the new service because of IRS Appeals’ large (and growing) case load—more than 100,000 cases each year! For some our prior coverage on recent changes at IRS Appeals, see here, here, here and here.
Practice Point: In the wake of an ever-shrinking budget, resources and staff, the IRS really has no choice but to try new and arguably more efficient methods to move cases along. The backlog of cases at IRS Appeals is staggering, and our clients are experiencing long wait times until a case is even assigned to an IRS Appeals officer. Then when the case is assigned, it typically sits for months until real progress can be made. This is not the fault of the IRS or the individual Appeals’ officers, but really the reality of a resource-starved governmental agency. The virtual appeals conference is seemingly a good method to conduct an Appeals conference for simple cases. If a case is complex, however, a virtual conference may be no different (or no more effective) than a telephonic conference. In cases that require extensive explanation, it is hard to see how the IRS Appeals conference will be effectively conducted virtually. But “hope springs eternal.”
The House Appropriations Committee (HAC) yesterday released the fiscal 2018 Financial Services and General Government Appropriations bill, which sets forth proposed annual funding for the Treasury Department, the Judiciary, the Small Business Administration, the Securities and Exchange Commission, and other related agencies. The proposal will be considered in the subcommittee today. For text of the bill, see here.
In its press release, the HAC described the bill as one that would “slash the IRS, fund US courts, invest in programs to boost economic opportunity, and scale back harmful regulations.” See here for the press release. The HAC was particularly hard on the Internal Revenue Service (IRS), proposing to cut its budget by $149 million. These cuts come after successive reductions in the IRS’s budget for the last several years. The draft legislation contains several provisions that the HAC believed necessary “to address underperformance and previous poor management and decision-making at the IRS,” including:
- A prohibition on a proposed regulation related to political activities and the tax-exempt status of IRC section 501(c)(4) organizations. The proposed regulation could jeopardize the tax-exempt status of many nonprofit organizations, and inhibit citizens from exercising their right to freedom of speech;
- A prohibition on funds for bonuses or to rehire former employees unless employee conduct and tax compliance is given consideration;
- A prohibition on funds for the IRS to target groups for regulatory scrutiny based on their ideological beliefs;
- A prohibition on funds for the IRS to target individuals for exercising their First Amendment rights;
- A prohibition on funds for the production of inappropriate videos and conferences;
- A new prohibition on funds to implement new IRS guidance on conservation easements;
- A new prohibition on funds to determine church exemptions, unless the IRS Commissioner has consented and Congress has been notified; and
- A requirement for extensive reporting on IRS spending and information technology.
Despite reducing the IRS’s overall budget, the draft legislation expressed a desire for funding to improve taxpayer services, including pre-filing assistance and education, filing and account services, and taxpayer advocacy services. For example, the IRS is directed to maintain an employee training program that includes “taxpayers’ rights, dealing courteously with taxpayers, cross-cultural relations, ethics, and the impartial application of tax law.” As we have previously discussed (see here and here), taxpayers’ right is a hot topic in both the US and around the world.
We will continue to monitor this matter and report back on the final budget in the future. Needless to say, reductions in the IRS’s budget will likely continue the trend of decreased enforcement activity and more uncertainty for taxpayers. Additionally, without additional resources and the imminent retirement of a large portion of IRS employees, the IRS will continue to be forced to operate in an environment of substantially decreased resources. On the front lines, we are seeing a substantial reduction in the numbers and breadth of audits of some of the nation’s largest taxpayers. Moreover, with the decrease in IRS personnel, IRS Examinations and Appeals are lasting longer than ever before, and previously beneficial alternative dispute resolution techniques may be losing some of their benefits.
In October 2016, the Internal Revenue Service (IRS) revised the Internal Revenue Manual (Manual) 18.104.22.168.4 to provide IRS Appeals Division (Appeals) with discretion to invite representatives from the IRS Examination Division (Exam) and IRS Office of Chief Counsel (Counsel) to the Appeals conference. Many tax practitioners opposed this change, believing that it undermines the independence of Appeals and may lead to a breakdown in the settlement process.
In May 2017, the American Bar Association (ABA) Section of Taxation submitted comments recommending the reinstatement of the long-standing Manual provision regarding the limited circumstances for attendance by representatives from Exam and Counsel at settlement conferences. Additionally, the Tax Section’s comments were critical of the practice whereby some Appeals Team Case Leaders (ATCLs) in traditional Appeals cases are “strongly encouraging” IRS Exam and the taxpayer to conduct settlement negotiations similar to Rapid Appeals or Fast Track Settlement, such that many taxpayers do not feel they can decline such overtures. The Tax Section comments suggested that the use of Rapid Appeals Process and Fast Track Settlement should be a voluntary decision of both the taxpayer and IRS Exam and the use of these processes should be the exception rather than the rule. Continue Reading Appeals Large Case Pilot Program Draws Criticism
The last few years have seen significant changes in audit procedures employed by the Internal Revenue Service (IRS). These changes range from the new Information Document Request (IDR) procedures to substantial changes at the IRS Appeals level. This post focuses on the IRS’s attempt to develop an agreed set of facts before a case is submitted to IRS Appeals.
As taxpayers and practitioners are aware, IDRs are the most-used tool by IRS revenue agents to obtain information and develop the factual record (other common tools include interviews and site visits). Revenue agents use IDRs in several ways, including to request documents, understand taxpayer positions and identify key personnel involved. The end result of this information gathering is a notice of proposed adjustment, which then forms the basis for the revenue agent’s report in an unagreed case. Continue Reading To Agree or Not to Agree, That Is the Question
We have covered on several occasions the changes in the past year to the IRS Appeals process. See here, here, here, here and here. The reactions from taxpayers and practitioners to the recent changes has, for the most part, been negative.
On May 9, 2017, the American Bar Association Section of Taxation provided comments to the Commissioner of the Internal Revenue Service regarding the recent changes at IRS Appeals (Comments). The comments, which can be found here, can be summarized as follows:
- First, we recommend that Appeals reinstate the long-standing Internal Revenue Manual (Manual) provision regarding limited circumstances for attendance by representatives of the Service’s Examination divisions (Compliance) and the IRS Office of Chief Counsel (Counsel) at settlement conferences.
- Second, we recommend that Appeals return the option for face-to-face settlement conferences to taxpayers.
- Third, we recommend that Appeals publicly reaffirm that independent Appeals Technical Employees may, in all cases, evaluate the hazards of litigation on positions taken by Counsel.
- Fourth, we offer some observations and suggestions regarding informal issue coordination in Appeals.
- Fifth, we support the recent reaffirmation of Appeals Team Case Leader (ATCL) unilateral settlement authority.
- Finally, we reiterate our recent comments with respect to docketed cases in Appeals’ jurisdiction.
Practice Point: We are observing many of the same changes in practices that are discussed in the Comments. Taxpayers and their advisors need to understand and be prepared for the different procedures and approaches being employed at IRS Appeals. These changes appear to be leading down a road where settlements may be more difficult to accomplish and, as a result, we may see an increase in tax litigation.
Internal Revenue Code Section 199 permits taxpayers to claim a 9 percent deduction related to the costs to develop software within the U.S. The relevant regulations and their interpretation, however, place substantial restrictions on claiming the benefit.
Moreover, the regulations and the government’s position haven’t kept up with the technological advances in computer software.
Before claiming the deduction on your return, consider that the Internal Revenue Service has this issue within its sights, and perhaps it will be the subject of one of their new “campaigns.”
In 2004, Congress enacted I.R.C. Section 199 to tip the scales of global competitiveness more in favor of American business. The main motivation of the statute was to create jobs by encouraging businesses to manufacture and produce their products in the U.S. The tax benefit, however, isn’t available for services, a theme that pervades many of the provisions in the statute and regulations.
Originally published in Bloomberg BNA Daily Tax Report – April 24, 2017 – Number 77