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IRS Guidance

Recent Tax Developments Concerning Administrative Law Issues

by Kevin Spencer and McDermott Will & Emery | Oct 20, 2022 | Appellate Courts, IRS Guidance, Tax Reform, Trial Courts

We have written extensively on the intersection of tax law and administrative law, specifically on how the Administrative Procedure Act (APA) and the Anti-Injunction Act (AIA) factor into tax cases. In a recent article for the ABA Tax Times, Kristin E. Hickman, a leading authority in the fields of tax administration, administrative law and statutory interpretation, discusses several tax opinions from 2022 concerning APA issues. We think this article is a must-read for taxpayers and practitioners.

For some of our prior posts on tax law and administrative law, see below:

IRS Releases Memorandum Regarding Advance Payments of Section 367(d) Inclusions

by Elizabeth C. Lu, Caroline H. Ngo, Michael J. Wilder and Lowell D. Yoder | Oct 19, 2022 | IRS Guidance

On September 23, 2022, the Internal Revenue Service (IRS) released a memorandum (AM 2022-003) concluding that taxpayers cannot make advance payments of section 367(d) inclusions except in the limited situation in which the US transferor receives boot in connection with the initial transfer of intangible property (IP) to a foreign corporation. The memorandum is relevant to any taxpayers who made, or are considering making, advance payments of section 367(d) amounts. In our view, the memorandum (which does not have precedential value) is not persuasive, and both its reasoning and its conclusion are inconsistent with prior IRS guidance and analogous long-standing case law.

OVERVIEW OF SECTION 367(d) AND NOTICE 2012-39

Section 367(d) generally provides that when a US person (USP) transfers IP to a foreign corporation in an otherwise tax-free exchange under sections 351 or 361, the US transferor is treated as having sold the IP in exchange for contingent payments and receiving amounts which would have been received annually in the form of such payments. The amounts included in the US transferor’s income (i.e., the section 367(d) inclusions) are treated as ordinary income and royalties for purposes of determining the source and foreign tax credit limitation category. See sections 865(d)(1)(B) (source); 367(d)(2)(C) (foreign tax credit limitation category). See also section 904(d)(3)(A); Reg. §1.904-5(b) (look-through rules).

In Notice 2012-39, the IRS treated boot received in an outbound section 367(d) transaction as an advance payment of the section 367(d) inclusion. In the Notice, the IRS described a situation in which a US Parent (USP) owns a US company (UST) with a basis and value of $100, and UST owns IP with a basis of $0 and a value of $100. Pursuant to an “all-cash D” reorganization, UST transferred IP with a value equal to $100 to a controlled foreign corporation (CFC) owned by USP in exchange for $100 and then UST distributed the cash to its USP in liquidation. As described in the Notice, UST would report the $100 received from CFC as tax free under section 361, and USP would report no dividend income or gain from receiving the $100 cash under the “gain within boot” rule in section 356(a)(1) (because there was no built-in gain in the stock of UST). According to the Notice, taxpayers would take the position that “the transactions have resulted in a repatriation in excess of $100x ($100x at the time of the reorganization and then through repayment of the receivable in the amount of USP’s income inclusions over time) while only recognizing income in the amount of the inclusions over time.” Thus, USP could receive, for example, $200 of cash ($100 from the initial transfer and $100 over time related to the section 367(d) inclusions) but only include $100 in income (over time on the section 367(d) inclusions).

To address what the IRS and the US Department of the Treasury perceived to be an inappropriate repatriation of cash, the Notice provided that in such a situation, the $100 received by UST in the initial outbound [...]

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New IRS Funding Will Be Used to Focus on Tax Compliance of Non-US Citizens and Residents

by Kevin Spencer and McDermott Will & Emery | Oct 18, 2022 | IRS Audits, IRS Guidance, Tax Reform

US Congress will be giving the Internal Revenue Service (IRS) $79.6 billion over the next 10 years in an effort to put the agency back on the path to effective and efficient tax administration. The money will find lots of uses, including for the hiring of new personnel and updating the IRS’s antiquated technology.

At a recent American Bar Association Tax Section conference, Audrey Morris from the IRS Office of Chief Counsel (Small Business/Self-Employed Division) publicly stated that tax compliance among foreign nationals living and working in the United States also will be a priority and focus of the IRS’s new funding.

We have reported extensively about the re-funding of the IRS. (See here and here for example.) There are special considerations for non-US citizens who are not in compliance with US tax laws. For example, failing to properly report taxable income could be a bar or impediment to obtaining immigration status in the United States.

Practice Point: If you are a foreign national living in the United States and you may not be in compliance with US tax rules, it is time to consider doing so. The IRS has programs to help, including a voluntary disclosure program by which taxpayers who knowingly have reported their income erroneously or have failed to report income at all can disclose their transgressions and clean up their non-compliance. (See, e.g., here.)

Care should be taken, however, when dealing with the convergence of tax and immigration issues. If you are dealing with these sorts of issues, we strongly suggest speaking frankly with your tax and immigration advisors before doing anything.

Weekly IRS Roundup October 10 – October 14, 2022

by McDermott Will & Emery | Oct 17, 2022 | 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 October 10, 2022 – October 14, 2022.

October 11, 2022: The IRS released Internal Revenue Bulletin 2022-41, which highlights the following:

Notice 2022-42: This notice announces that the IRS and the US Department of the Treasury (Treasury) intend to amend the regulations under Section 901 with respect to the application of the noncompulsory payment regulations to certain amended Puerto Rico tax decrees.

Notice 2022-44: This notice provides annual awareness of the 2022-2023 special per diem rates for taxpayers to use when substantiating the amount of business expenses incurred while traveling away from home. The guidance addresses (1) the special transportation industry meal and incidental expenses rates, (2) the rate for the incidental expenses only deduction and (3) the rates and list of high-cost localities for purposes of the high-low substantiation method.

Revenue Procedure 2022-19: This revenue procedure provides guidance to allow S corporations and their shareholders to resolve frequently encountered issues with certainty and without requesting a private letter ruling issued by the IRS.

October 11, 2022: The IRS issued Notice 2022-41, which expands the application of permitted change-in-status rules for health coverage under a Section 125 cafeteria plan. This guidance addresses when a plan participant may want to revoke the employee’s election under the cafeteria plan for family coverage under a group health plan (other than a flexible spending arrangement) in order to allow one or more family members to enroll in a Qualified Health Plan through a Health Insurance Exchange in the individual market.

October 11, 2022: The IRS announced that seminars from the 2022 IRS Nationwide Tax Forum are now available online. The platform offers 18 self-study seminars, including ones on the following topics:

IRS Commissioner Chuck Rettig’s Keynote Address
Tax Law Changes for Tax Year 2022 – in English and Spanish
Professional Responsibility Obligations (Ethics) – in English and Spanish
Tax Treatment of Digital Assets
Tax-Exempt Organizations Update
Emerging Cyber Crimes – in English and Spanish

October 11, 2022: The IRS announced that it is expanding dyed diesel penalty relief in response to Hurricane Ian. The IRS will not impose a penalty when dyed diesel fuel with a sulfur content that does not exceed 15 parts-per-million is sold for use or used on highways in the state of Florida. The relief began on September 28, 2022, and lasts through October 19, 2022. The penalty relief previously only applied to emergency vehicles.

October 11, 2022: The IRS issued a statement related to uncertain tax positions (UTP) reporting. Draft changes to the Schedule UTP and the UTP instructions are available at Draft Task Forms. The draft changes are intended to improve the form’s usefulness by incorporating additional relevant examples and [...]

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IRS to Update Schedule UTP to Require Additional Transparency

by Kevin Spencer and McDermott Will & Emery | Oct 14, 2022 | IRS Guidance, Tax Refunds

On October 11, 2022, the Internal Revenue Service (IRS) announced draft changes to Schedule UTP, Uncertain Tax Position Return Statement, and Form 1120, Instructions for Schedule UTP, for the 2022 tax year (processing year 2023). Since the 2010 tax year, Schedule UTP has been used by certain corporations to report uncertain tax positions. Corporations filing Forms 1120, 1120-F, 1120-L or 1120-PC are required to file Schedule UTP if their total assets equal or exceed the applicable asset threshold for the tax year and if the corporation records a liability for unrecognized tax benefits for a US federal income tax position in audited financial statements.

The changes to the form include a new field for the incremental dollar amount of the uncertain tax positions taken. Also, for tax positions reported on Schedule UTP, rather than filing Form 8275, Disclosure Statement, or Form 8275-R, Regulation Disclosure Statement, new columns will identify the rulings or regulation sections that are contrary to positions taken on the tax return. (Proper disclosure on Schedule UTP may allow taxpayers to avoid certain penalties). Finally, the instructions incorporate more relevant examples and provide enhanced guidance on what constitutes an adequate disclosure for the concise description. Comments can be submitted to the IRS regarding the draft changes.

Practice Point: The IRS is continuing its effort of having corporations self-identify uncertain tax positions (although there remain questions on how the IRS actually uses the information disclosed on a Schedule UTP). Requiring the identification of specific IRS guidance that is contrary to the taxpayer’s position is noteworthy given the IRS’s recent position that challenges to regulations will not be resolved at the examination or IRS Appeals levels. Corporations subject to the Schedule UTP reporting requirement will need to review their past practices and ensure that future Schedule UTP filings comply with the draft changes once finalized.

Weekly IRS Roundup October 3 – October 7, 2022

by McDermott Will & Emery | Oct 10, 2022 | IRS Appeals, 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 October 3, 2022 – October 7, 2022.

October 3, 2022: The IRS released Internal Revenue Bulletin 2022-40, which highlights the following:

Notice 2022-40: This notice provides updates on the corporate bond monthly yield curve and corresponding spot segment rates and the 24-month average segment rates for September 2022. The notice also provides guidance as to interest rates on 30-year Treasury securities and 30-year Treasury weighted average rates.

Notice 2022-39: This notice provides rules related to the Inflation Reduction Act of 2022. Claimants must follow this guidance in order to make a one-time claim for the credit and payment allowable for alternative fuels sold or used during the first, second and third calendar quarters of 2022.

Revenue Procedure 2022-35: This guidance adds Turkey to the list of jurisdictions that the US Department of the Treasury (Treasury) and the IRS have a relevant information exchange agreement with. The agreement relates to information collected under Treas. Reg. §§ 1.6049-8 and 1.6049-4(b)(5), with respect to certain deposit interest paid to residents of the jurisdictions.

Revenue Procedure 2022-36: This ruling provides the domestic asset/liability percentages and domestic investment yields needed by foreign life insurance companies and foreign property and liability insurance companies to compute their minimum effectively connected net investment income under Section 842(b) for taxable years beginning in 2021.

Revenue Ruling 2022-18: This ruling provides the federal rates, adjusted federal rates, adjusted federal long-term rate and long-term tax-exempt rate for October 2022.

October 3, 2022: The IRS released Tax Tip 2022-151, providing information on the tax implications when someone is employed by a family member. The list includes married people in business together, children employed by their parents and parents employed by their child.

October 4, 2022: The IRS announced that the IRS Independent Office of Appeals (IRS Appeals) made two revisions to its initial contact letters in response to feedback from taxpayers and practitioners. The revised letters clarify that taxpayers and representatives can choose how they meet with IRS Appeals, whether it be by telephone, video or in-person. In addition, the initial contact letters now include the name and phone number of the IRS Appeals Officer’s manager. For more information, see our post here.

October 4, 2022: The IRS released Tax Tip 2022-152, reminding farmers and ranchers in drought stricken regions that they may have additional time to replace livestock and defer tax on any gains from the forced sales. Notice 2022-43 lists the applicable regions, counties and jurisdictions that are eligible for federal assistance. The relief extends to 44 states, two US territories and two independent nations and generally applies to capital gains realized on sales of livestock held [...]

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IRS Appeals Revises Initial Contact Letter

by Kevin Spencer and McDermott Will & Emery | Oct 5, 2022 | IRS Appeals, IRS Guidance

The Internal Revenue Service Independent Office of Appeals (IRS Appeals) is the administrative forum for taxpayers to attempt to resolve tax disputes prior to litigation. Subject to certain exceptions, taxpayers can file a protest and have their dispute heard by IRS Appeals after adjustments are proposed at the examination level. Almost all disputes are resolved at the IRS Appeals level.

After a protest is submitted challenging the proposed adjustments, IRS Appeals will contact the taxpayer. This is accomplished through an initial contact letter, which provides general information on what to expect at IRS Appeals.

On October 4, 2022, IRS Appeals informed taxpayers that it is revising the initial contact letter in an effort to improve how taxpayers interact and communicate with it. The two revisions are:

Clarifying that taxpayers and their representatives can choose whether they meet with IRS Appeals (e., by telephone, video or in-person) and that taxpayers and IRS Appeals can work together via mail or secure electronic messaging to resolve disputes.

Providing the name and phone number of the IRS Appeals Officer’s manager to ensure that an appeal stays on track if additional help is needed.

IRS Appeals also indicated that it welcomes comments on the revisions, which can be submitted to ap.taxpayer.experience@irs.gov by December 2, 2022.

Practice Point: As we have discussed in the past, IRS Appeals plays a vital role in the resolution of tax controversy matters without the time, expense and uncertainty of litigation. The initial contact letter revisions should be helpful by allowing taxpayers to choose the manner in which they would like to interact with IRS Appeals and ensuring that cases progress through the process without unnecessary delays. In a typical case, we recommend an “in-person” conference with IRS Appeals, if practicable.

Weekly IRS Roundup September 26 – September 30, 2022

by McDermott Will & Emery | Oct 3, 2022 | IRS Appeals, 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 September 26, 2022 – September 30, 2022.

September 26, 2022: The IRS released Internal Revenue Bulletin 2022-39, which highlights the following:

REG-125693-19: These proposed regulations clarify issues that do not meet the definition of a federal tax controversy, exceptions to consideration by the IRS Office of Appeals (IRS Appeals), and procedural and timing requirements that must be met before IRS Appeals will consider an issue. The proposed regulations also provide the requirements a taxpayer must meet to receive the notice described in Internal Revenue Code (Code) Section 7803(e)(5) when the taxpayer requests consideration by IRS Appeals and the request is denied. More coverage of this issue can be found here.

Notice 2022-38: This notice publishes the inflation adjustment factor for the carbon oxide sequestration credit under § 45Q for calendar year 2022. This notice also informs taxpayers that 2022 will be the final calendar year for which they may claim a credit under Code Section 45Q(a)(1) and (2) for qualified carbon oxide that is captured by carbon capture equipment originally placed in service at a qualified facility before the date of enactment of the Bipartisan Budget Act of 2018.

September 26, 2022: The IRS issued Notice 2022-44, providing annual notice of the 2022 to 2023 special per diem rates for taxpayers to use when substantiating the amount of business expenses incurred while traveling away from home. Specifically, the notice addresses (1) the special transportation industry meal and incidental expenses rates, (2) the rate for the incidental expenses only deduction and (3) the rates and list of high-cost localities for purposes of the high-low substantiation method.

September 26, 2022: The IRS released Notice 2022-45, extending the deadline for amending an eligible retirement plan to reflect the Coronavirus Aid, Relief, and Economic Security Act and the Taxpayer Certainty and Disaster Tax Relief Act of 2020. Both allow for special tax treatment with respect to a coronavirus-related distribution or a qualified disaster distribution.

September 26, 2022: The IRS released Tax Tip 2022-147, highlighting five resources people can find on IRS.gov. These resources are:

September 27, 2022: The IRS released Tax Tip 2022-148, providing the steps for becoming an IRS-authorized e-file provider.

September 27, 2022: The IRS announced that victims of storms and flooding in Alaska, which started on September 15, now have until February 15, 2023, to file various federal individual and business tax returns and make tax payments. The relief is available to anyone in an area designated by the Federal Emergency Management Agency [...]

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IRS Hints at Revenue Procedure 94-69 Update

by Kevin Spencer and McDermott Will & Emery | Sep 27, 2022 | Alternative Dispute Resolution, IRS Audits, IRS Guidance, Tax Refunds

At a recent Tax Executives Institute conference in New York, an Internal Revenue Service (IRS) spokesperson stated that guidance and a new final form will be issued when the IRS and the US Department of the Treasury replace the disclosure procedures laid out in Revenue Procedure 94-69 1994-2 C.B. 804. The updated guidance will define the scope of the required disclosures and detail how to create them.

As we previously discussed, the IRS published a new draft form (Form 15307, Post-Filing Disclosure for Specified Large Business Taxpayers) in February 2022 and requested comments on the new form. A significant amount of useful comments was received from taxpayers and tax professionals on Form 15307 and the IRS is in the process of finalizing the form based upon said comments, which will be released to aid in the implementation of the new guidance replacing Revenue Procedure 94-69. No timing was provided on when the new form and guidance will be issued.

Practice Point: We are happy to hear that the disclosure procedures in Revenue Procedure 94-69 is here to stay, albeit in some form or fashion. Numerous large business taxpayers rely on this mechanism to clean up errors made on the return without having to file a formal amended return.

Weekly IRS Roundup September 19 – September 23, 2022

by McDermott Will & Emery | Sep 26, 2022 | 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 September 19, 2022 – September 23, 2022.

September 19, 2022: The IRS updated information on the Work Opportunity Tax Credit (WOTC), including information on the pre-screening and certification process. The WOTC is available to employers who hire designated categories of workers facing significant barriers to employment. Form 8850, Pre-Screening Notice and Certification Request for the Work Opportunity Credit, must be completed by the job applicant and the employer on or before the day of the job offer to satisfy the pre-screen requirement.

September 19, 2022: The IRS released Tax Tip 2022-143, reminding people that every taxpayer has the right to retain representation when they work with the IRS, including the right to seek assistance from the Low Income Taxpayer Clinic.

September 20, 2022: The IRS announced that it has selected eight new members for the Electronic Tax Administration Advisory Committee. The committee’s main goal is to promote paperless filing of tax and information returns. The following individuals have been appointed for three-year terms on the committee, starting in September:

Austin Emeagwai, CPA, Ph.D.; Collierville, Tennessee
Jerry Gaddis, EA, MBA; Winter Haven, Florida
Nikia Gainey; Orlando, Florida
Robert Gettemy;Marion, Iowa
Argi O’Leary; Voorheesville, New York
Hallie Parchman; Austin, Texas
RaeAnn Pilarski; Tucson, Arizona
Keith Richardson; Philadelphia, Pennsylvania

September 20, 2022: The IRS announced that Hurricane Fiona victims in Puerto Rico now have until February 15, 2023, to file various federal individual and business tax returns and make tax payments. The relief is available in all 78 Puerto Rican municipalities, which are designated by the Federal Emergency Management Agency.

September 20, 2022: The IRS released Notice 2022-40, which provides updates on the corporate bond monthly yield curve and corresponding spot segment rates and the 24-month average segment rates for September 2022. The notice also provides guidance as to interest rates on 30-year Treasury securities and the 30-year Treasury weighted average rates.

September 20, 2022: The IRS released Tax Tip 2022-144, recommending that people use caution when choosing a tax preparer since tax preparers have different levels of skill, education and expertise.

September 21, 2022: The IRS released Tax Tip 2022-145, describing the different types of authorizations for third-party representatives. The options include:

Power of Attorney: This allows someone to represent a taxpayer in tax matters before the IRS. The representative must be an individual authorized to practice before the IRS.
Tax Information Authorization: This allows a taxpayer to appoint anyone to review or receive a taxpayer’s confidential tax information for a specified type of tax for a specified period.
Third-Party Designee: This designates a person on a taxpayer’s tax form to discuss that specific tax return and year with the IRS.
Oral Disclosure: This authorizes the [...]

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