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Weekly IRS Roundup May 8 – May 14, 2022

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

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

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

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.




Weekly IRS Roundup April 17 – April 23, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 17, 2022 – April 23, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

April 18, 2022: The IRS issued Revenue Ruling 2022-9, providing various prescribed interest rates for federal income tax purposes for May 2022.

April 18, 2022: The IRS issued a news release, reminding taxpayers of the option to request an automatic extension of time to file individual income tax returns and noting certain categories of taxpayers who automatically qualify for extensions.

April 18, 2022: The IRS issued a news release, setting forth certain penalty relief options that may be available to taxpayers who are unable to pay increased tax liabilities resulting from retroactive claims for employee retention tax credits.

April 19, 2022: The IRS issued Revenue Procedure 2022-23, providing procedures for taxpayers to make late elections under Sections 168(j)(8), 168(l)(3)(D) and 181(a)(1) of the Code, relating to certain depreciation deductions, for taxable years 2018 and 2019.

April 19, 2022: The IRS issued Notice 2022-16, providing the monthly update to certain interest rates used for pension plan funding and distribution purposes.

April 19, 2022: The IRS issued a news release, announcing that the 2022 IRS Nationwide Tax Forum, an annual series of continuing education seminars for tax professionals, will be held virtually from July 19, 2022, through August 18, 2022.

April 19, 2022: The IRS issued a news release urging taxpayers who missed the April 18, 2022, filing deadline to file their individual tax returns as soon as possible in order to obtain tax refunds and limit penalties and interest.

April 20, 2022: The IRS issued a news release, announcing the awarding of more than $12.1 million in grants to 131 organizations across the country as part of its Low Income Taxpayer Clinic program, a program to assist organizations in providing pro bono representation to low-income and English as a second language (ESL) taxpayers in federal tax disputes.

April 21, 2022: The IRS issued a news release, reminding tax-exempt organizations of the May 16, 2022, filing deadline with respect to certain information and tax returns.

April 22, 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 April 10 – April 16, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 10, 2022 – April 16, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

April 11, 2022: The IRS issued a news release, reminding taxpayers of the option to obtain an Identity Protection PIN to guard against tax-related identity theft.

April 12, 2022: The IRS issued a news release announcing the mailing of letters to certain taxpayers, notifying them of additional actions that must be taken to comply with the administrative requirements applicable to Qualified Opportunity Funds (QOFs).

April 12, 2022: The IRS issued a news release addressing certain common misconceptions regarding income tax refunds.

April 13, 2022: The IRS issued a news release, urging taxpayers who have filed their 2021 individual income tax returns to use the IRS Tax Withholding Estimator to ensure they are subject to an appropriate level of salary withholding for 2022.

April 13, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the 2020 Recovery Rebate Credit, enacted as part of the Coronavirus Aid, Relief and Economic Security (CARES) Act.

April 13, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the 2021 Recovery Rebate Credit, enacted as part of the American Rescue Plan Act of 2021 (ARPA).

April 14, 2022: The IRS issued a news release urging low- and moderate-income taxpayers to use IRS Free File to prepare and electronically file their tax returns.

April 14, 2022: The IRS issued a news release, reminding taxpayers of the resources available on irs.gov that can answer their tax questions.

April 15, 2022: The IRS issued Notice 2022-15, providing relief (for Q3 2022 through Q1 2023) with respect to penalties under Section 6656 of the Code for failure to make deposits of “Superfund” chemical taxes under Sections 4661 and 4671 of the Code, as reinstated by the Infrastructure Investment and Jobs Act (IIJA). The Notice also provides that, for Q1 2023 through Q3 2023, and subject to certain conditions, the IRS will not prohibit a taxpayer from using the Treas. Reg. § 40.6302(c)-1(b)(2)(v) “deposit safe harbor” if the taxpayer fails to make deposits of Superfund chemical taxes.

April 15, 2022: The IRS issued a news release, notifying taxpayers that CP2100 and CP2100A notices, which are sent semiannually to notify taxpayers who filed certain information returns that information on the returns does not match IRS records, will be sent out beginning in mid-April 2022.

April 15, 2022: The IRS issued a news release, reminding [...]

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Weekly IRS Roundup April 3 – April 9, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 3, 2022 – April 9, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

April 4, 2022: The IRS issued a news release, announcing that 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, will begin on or around May 2, 2022.

April 4, 2022: The IRS issued a news release, announcing that, in advance of the federal tax filing deadline, free face-to-face tax preparation assistance will be provided at Taxpayer Assistance Centers around the country on April 9, 2022.

April 5, 2022: The IRS issued proposed regulations amending the eligibility requirements for the premium tax credit under Section 36B of the Code. The proposed regulations generally provide that, for purposes of determining eligibility for the premium tax credit, the affordability of an employer-sponsored health plan with respect to an employee’s family members is determined based on the cost of covering the employee and their family members, rather than on the cost of covering the employee individually.

April 6, 2022: The IRS issued a news release, reminding taxpayers who make estimated tax payments that the due date for the first estimated tax installment is April 18, 2022.

April 8, 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 March 27 – April 2, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 27, 2022 to April 2, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

March 29, 2022: The IRS issued a news release reminding taxpayers that the limitation on the educator expenses deduction of section 62(a)(2)(D) of the Code has risen from $250 to $300 for the 2022 taxable year.

March 29, 2022: The IRS issued a news release reminding taxpayers about, and providing information with respect to, filing extension options for individual income tax returns.

March 30, 2022: The IRS issued Revenue Procedure 2022-21, providing updates to the nationwide average purchase price for US residences and average purchase prices for different regional areas, for use in applying section 143 of the Code (relating to qualified mortgage bonds) and section 25 of the Code (relating to qualified mortgage credit certificates).

March 30, 2022: The IRS released Announcement 2022-07, providing the annual report on the Advance Pricing and Mutual Agreement Program and the advance pricing agreements (APAs) executed thereunder during calendar year 2021.

March 30, 2022: The IRS issued a news release providing various resources regarding claiming the 2021 Recovery Rebate Credit, as enacted by the American Rescue Plan Act of 2021 (ARPA).

March 31, 2022: The IRS issued a news release reminding taxpayers of the April 15, 2022 deadline for filing the Report of Foreign Banks and Financial Accounts (FBAR).

April 1, 2022: The IRS issued a news release announcing the appointment for 2022 of 25 new members to the Taxpayer Advocacy Panel, an advisory body that receives taxpayer feedback and makes suggestions for improving IRS customer service.

April 1, 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 DC office for this week’s roundup.




Weekly IRS Roundup March 20 – March 26, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 20, 2022 – March 26, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

March 21, 2022: The IRS issued Revenue Ruling 2022-07, addressing the disclosure of tax information pursuant to certain exceptions to the general non-disclosure rule of Internal Revenue Code (Code) Section 6103(a). The Revenue Ruling, which modifies and supersedes Revenue Ruling 2004-53, generally holds that individuals who lawfully obtain tax information under the disclosure exception in Section 6103(c) of the Code are subject to restrictions on redisclosure. However, individuals who obtain tax information under the exceptions in Section 6103(e) or 6013(k)(6) of the Code are not subject to restrictions on redisclosure. The ruling further holds that these results are not affected by whether the individuals are government employees.

March 21, 2022: The IRS issued Notice 2022-14, providing guidance on various interest rates relevant to employee benefit plans under the Code.

March 22, 2022: The IRS issued a news release, providing tips to taxpayers on how to avoid common tax return filing mistakes.

March 22, 2022: The IRS issued a news release, reminding taxpayers of the various electronic payment and deferred payment options available to those who owe taxes with the filing of their individual income tax returns.

March 23, 2022: The IRS issued a news release, providing an update to a Fact Sheet that contains answers to frequently asked questions regarding the tax treatment of 2020 unemployment compensation, taking into account relief provided by the American Rescue Plan Act of 2021 (ARPA).

March 23, 2022: The IRS issued a news release, setting forth common reasons why certain tax refunds may take longer than 21 days to be issued.

March 25, 2022: The IRS issued proposed regulations, setting forth an exception to the “unified plan rule” for multiple employer plans (MEPs) under Section 413(c) of the Code.

March 25, 2022: The IRS issued Revenue Procedure 2022-15, providing an update to the rules taxpayers can use when generating substitutes for Form 941 (Employer’s Quarterly Federal Tax Return) and associated forms and schedules.

March 25, 2022: The IRS issued Revenue Procedure 2022-18, waiving the residence requirements needed to qualify for benefits under Section 911 of the Code for the 2021 taxable year, with respect to certain individual taxpayers who departed from Iraq, Burma, Chad, Afghanistan or Ethiopia in 2021.

March 25, 2022: The IRS issued a news release estimating that a total of nearly $1.5 billion worth of unclaimed tax refunds are available to approximately 1.5 million taxpayers who did not file individual income tax returns for the 2018 taxable year and urging those taxpayers to file such returns prior to the applicable deadlines in [...]

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An Update on Section 6751 Penalties

Tax penalties are always a hot topic here. The Internal Revenue Service (IRS) has a large arsenal when it comes to grounds for asserting penalties on income tax deficiencies, ranging from the common 20% penalty under Internal Revenue Code (Code) Section 6662(a) to higher penalties ranging from 40% (gross valuation or basis misstatements and economic substance) to 75% (fraud).

However, before the IRS can assert most penalties against taxpayers, it must comply with the procedural requirement in Code Section 6751(b): That the “initial determination” to assert the penalty be “personally approved (in writing) by the immediate supervisor of the individual making such determination.” As the US Court of Appeals for the Second Circuit explained in Chai v. Commissioner, US Congress imposed this requirement because it “believes that penalties should only be imposed where appropriate and not as a bargaining chip” and “[t]he statute was meant to prevent IRS agents from threatening unjustified penalties to encourage taxpayers to settle.”

Over the past several years, there has been substantial litigation over the proper interpretation and application of Code Section 6751(b). The US Tax Court’s recent opinion in Oxbow Bend, LLC v. Commissioner is the latest development. In Oxbow Bend, the Tax Court rejected the taxpayer’s position that the “initial determination” was made on the date that the examining agent prepared a penalty lead sheet reflecting her recommendation to assert penalties and stated in a telephone conference with the taxpayer’s representative on that same day that penalties were being considered. Approximately three months later, the examining agent’s supervisor approved the penalty lead sheet, and the IRS issued a Notice of Final Partnership Administrative Adjustment asserting the penalties. The Tax Court, relying on its prior precedent, held that the word “determination”:

  1. “has an established meaning in the tax context and denotes a communication with a high degree of concreteness and formality”
  2. “signifies a consequential moment of IRS action”
  3. is not a “mere suggestion, proposal, or initial informal mention of penalties”
  4. “will be embodied in a formal written communication that notifies the taxpayer of the decision to assert penalties.”

Thus, under the Tax Court’s analysis, an “initial determination” can only be made in a “written” document that is provided to the taxpayer.

Oxbow Bend is a memorandum opinion of the Tax Court and, therefore, is limited to its facts and technically not precedential, as we have discussed in the past. However, memorandum opinions are often cited by litigants, and the Tax Court does not disregard these types of opinions lightly. One has to wonder whether, under different facts where an examining agent makes an explicit oral statement to a taxpayer that penalties “will” be asserted, courts might reach a different result given Congress’s express intent that examining agents should not threaten penalties and use them as a bargaining chip for settlement purposes. Further, Code Section 6751(b) expressly requires that the supervisory approval be “in writing” but contains a written requirement for purposes of the [...]

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