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Weekly IRS Roundup February 20 – February 26, 2022

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

February 22, 2022: The IRS issued a correction to final regulations published on January 25, 2022, relating to the treatment of domestic partnerships that hold stock in foreign corporations.

February 22, 2022: The IRS issued a news release announcing the release of an updated list containing information about Low Income Taxpayer Clinics available around the country.

February 23, 2022: The IRS issued Revenue Ruling 2022-05 and an accompanying news release, setting forth the overpayment and underpayment interest rates under Section 6621 of the Code for Q2 2022.

February 24, 2022: The IRS issued final regulations relating to required minimum distributions under Section 401 of the Code with respect to certain employee pension and retirement plans.

February 24, 2022: The IRS issued a further correction to final regulations published on January 25, 2022, relating to the treatment of domestic partnerships that hold stock in foreign corporations.

February 24, 2022: The IRS issued a news release promoting its “Where’s My Refund?” online and mobile tools as ways for taxpayers to check on the status of their tax refunds.

February 24, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the Premium Tax Credit under Section 36B of the Code, as expanded by the American Rescue Plan Act of 2021 (ARPA).

February 25, 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 February 13 – February 19, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 13, 2022 – February 19, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

February 14, 2022: The IRS issued a news release announcing the launch of a resource page that provides taxpayers with 2022 filing season updates, including updates concerning the resolution of unprocessed returns from the 2021 filing season.

February 15, 2022: The IRS issued Revenue Ruling 2022-4, providing various prescribed interest rates for federal income tax purposes for March 2022.

February 15, 2022: The IRS issued a news release announcing the release of an updated Form 14457, which relates to the IRS Voluntary Disclosure Practice for criminal prosecution. The updates include an expanded section on the reporting of virtual currency.

February 15, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the tax treatment of emergency grants for higher education, which were introduced pursuant to pandemic-related legislation.

February 16, 2022: The IRS issued a news release recommending that taxpayers use the online resources on its homepage as their first resource for tax inquiries and provided links to certain commonly used resources.

February 16, 2022: The IRS issued a news release, warning tax professionals to be alert for a new phishing scam designed to steal tax preparation software account credentials.

February 16, 2022: The IRS issued a news release, soliciting applications for Taxpayer Advocacy Panel membership, an advisory body that receives taxpayer feedback and makes suggestions for improving IRS customer service.

February 16, 2022: The IRS issued a news release, setting forth additional transition relief (in the form of an additional exception for certain taxpayers for tax year 2021) from the requirement to file the new Schedules K-2 and K-3 relating to partnerships and flow-through entities.

February 17, 2022: The IRS issued Notice 2022-09, providing the monthly update to certain interest rates used for pension plan funding and distribution purposes.

February 17, 2022: The IRS issued a news release, reminding taxpayers with income from a farming or fishing business to file returns and pay taxes that are due by March 1, 2022, unless they have made estimated tax payments.

February 17, 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).

February 18, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

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Weekly IRS Roundup February 6 – February 12, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 6, 2022 – February 12, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

February 7, 2022: The IRS issued a news release, announcing a transition away from using facial recognition technology to authenticate individuals seeking to create online IRS accounts.

February 8, 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).

February 8, 2022: The IRS issued a news release and an associated Fact Sheet, urging taxpayers to file individual income tax returns for 2021—even if they are not required to do so—in order to take advantage of various tax benefits enacted by ARPA and other pandemic-related legislation.

February 9, 2022: The IRS issued a news release, announcing the release of the 2021 Annual Report for its Low Income Taxpayer Clinic (LITC) program.

February 9, 2022: The IRS issued a news release, announcing the suspension of several types of automated IRS correspondence, such as balance due notices and unfiled tax return notices, to alleviate administrative burdens during the 2021 filing season.

February 11, 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 January 30 – February 5, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of January 30, 2022 – February 5, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

January 31, 2022: The IRS issued Revenue Procedure 2022-14, providing updates to the list of accounting method changes to which the automatic change procedures of Revenue Procedure 2015-33, as modified, apply.

January 31, 2022: The IRS issued a news release in advance of the 2021 filing season, providing a Fact Sheet that contains answers to frequently asked questions (FAQs) regarding the Child Tax Credit as expanded by the American Rescue Plan Act of 2021 (ARPA).

February 1, 2022: The IRS issued a news release, providing an update to the Fact Sheet released the previous day regarding the Child Tax Credit as expanded by ARPA.

February 1, 2022: The IRS issued a news release, setting forth certain administrative and logistical issues for taxpayers to consider in the process of filing an individual income tax return for 2021.

February 2, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to FAQs regarding the 2020 Recovery Rebate Credit, enacted as part of the Coronavirus Aid, Relief and Economic Security (CARES) Act.

February 3, 2022: The IRS issued a news release warning taxpayers to watch out for certain common tax scams and providing resources for victims of tax-related identity theft.

February 4, 2022: The IRS issued a news release announcing special Saturday hours at certain IRS Taxpayer Assistance Centers around the country to provide in-person assistance to taxpayers during the 2021 filing season.

February 4, 2022: The IRS issued an Action on Decision announcing its nonacquiescence to the holding in Quezada v. IRS, 982 F.3d 931 (5th Cir. 2020). The ruling held that the period of limitations on assessing backup withholding liability begins to run when the taxpayer files Forms 1040 and 1099-MISC that omit payee taxpayer identification numbers.

February 4, 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.




Supreme Court Justice Breyer Announces Upcoming Retirement—A Look Back at His Tax Opinion in Home Concrete

On January 27, 2022, Supreme Court of the United States Justice Stephen Breyer formally announced his retirement, effective when the Supreme Court breaks for summer recess in June or July later this year—after his successor has been nominated and confirmed. Justice Breyer has served on the Supreme Court since 1994 and is the second-most senior justice after Justice Clarence Thomas.

Although Justice Breyer did not author a substantial number of tax opinions, the ones he did author are extremely important and include:

This post focuses on the Home Concrete case.

Home Concrete involved a challenge to the validity of US Department of the Treasury (Treasury) regulations issued during litigation that purported to overrule existing case law. In a 5-4 opinion authored by Justice Breyer, the Supreme Court rejected both the government’s statutory interpretation of the “substantial omission from gross income” exception to the normal three-year statute of limitations and the interpretation advanced in retroactive regulations issued during pending litigation. In doing so, the Court first applied principles of stare decisis and adhered to its prior opinion in Colony, Inc. v. Commissioner, which interpreted almost identical statutory language from the predecessor statute. It then held that, because it already interpreted the statute, there is no longer any different interpretation that is consistent with that precedent and available for adoption by the agency.

The history and procedural background are fascinating, and some of the issues highlighted in the case, but not directly decided, have been—and continue to be—developed. Further background on the case can be found in our 2012 Tax Executive article, “Home Concrete: The Story Behind the IRS’s Attempt to Overrule the Judiciary and Lessons for the Future.

Practice Point: Home Concrete remains important today as there are several cases in the administrative and judicial pipeline involving challenges to tax reform and transfer pricing regulations. It is a must-read for any taxpayers who are currently, or are considering in the future, challenging the validity of Treasury regulations.

Andrew Roberson was one of the lawyers representing Home Concrete before the Supreme Court.




What You Need to Know About the Taxation of NFTs

Non-fungible tokens (NFTs) are today’s hottest digital assets. They are also completely ignored by the Internal Revenue Service—to date, at least—even in the agency’s pronouncement on the taxation of cryptocurrencies.

In this series of articles, we’ll start cracking the NFT code: what they are, how they are created, bought and sold, how they might be taxed by the IRS, and the use of NFTs for charitable contributions and fundraising purposes.

1. Introduction to NFTs – As today’s hottest digital assets, non-fungible tokens (NFTs) have taken the arts and investment worlds by storm. But what are they, exactly, and how are they to be treated for tax purposes? This article provides an overview of need-to-know information regarding these exciting—and potentially risky—assets. Read more.

2. Taxation of NFT Creators – NFTs offer artists, musicians, celebrities, influencers and other creators an opportunity to develop, market and control the future of many types of digital content that they produce. Less understood is how these assets will be categorized and taxed by the Internal Revenue Service. This article reviews how creators of NFTs will likely be treated by the IRS and what that means for them. Read more.

3. Taxation of the Purchase and Sale of NFTs – Given a lack of guidance on the tax treatment of non-fungible tokens (NFTs), taxpayers can be forgiven for experiencing a certain level of uncertainty with respect to how the Internal Revenue Service (IRS) will apply its tax rules to purchases and sales of these assets. IRS reasoning on other asset classes, however, sheds some light on this otherwise uncharted territory. This article reviews the various factors that are likely to play a role in determining the classification and treatment of NFT transactions for tax purposes. Read more.

4. NFTs and Charitable Fundraising: Navigating Tax Hurdles – As the creation of and transactions involving non-fungible tokens (NFTs) have increased dramatically, so has interest in using NFTs as donations to charitable organizations and for other charitable fundraising tools. Given the lack of guidance from the IRS on such gifts, donors and recipient charities face a number of tax uncertainties. This article examines the tax hurdles involved in using NFTs for charitable fundraising purposes and offers suggestions for compliance with recordkeeping and tax reporting requirements. Read more.

Andrea (Andie) Kramer is a recognized thought leader on tax related cryptocurrency matters. She was named the 2020 Go-To Thought Leader in Virtual Currency Tax by the National Law Review and a 2021 Readers’ Choice Top Author in cryptocurrency taxation by JD Supra for her article series on cryptocurrency tax.




National Taxpayer Advocate’s Report Highlights Tough Times for Tax Administration

On January 12, 2022, the National Taxpayer Advocate released a report to US Congress concerning the state of tax administration in 2021. The report highlights the struggles the Internal Revenue Service (IRS) has been having in the wake of the COVID-19 pandemic, including how the IRS is substantially behind in processing returns, the breakdown of the IRS call center, delays in processing responses to IRS notices sent to taxpayers and a myriad of other issues. (There is indeed a backlog for processing millions of tax returns!)

The Taxpayer Advocate Service (TAS) can be a helpful and powerful tool for taxpayers looking to resolve their tax issues with the IRS. We have provided information on this resource in earlier submissions. (See Taxpayer Advocate Service: Not Just for Low-Income Taxpayers.)

Practice Point: For those who are having difficulties interacting with the IRS and unable to achieve reasonable or satisfactory responses or explanations, seeking assistance from TAS can go a long way in resolving tax issues. The process is free to taxpayers and starts with the filing of Form 911 with the appropriate TAS office. If you seek assistance in the near future, be mindful that TAS is currently flooded with requests for help but will work your case—if it meets the relevant criteria—as soon as possible. A dose of patience will be needed to work through this resource to obtain a successful resolution of your tax issue.




Extending the Statute of Limitations for Assessing Federal Tax

We previously provided an overview of the time limits imposed on the Internal Revenue Service (IRS) for assessing federal tax. The general rule is that the IRS must assess tax within three years from the later of the due date of the original tax return or the date it was filed. If the IRS does not assess tax during this period, it is foreclosed from doing so in the future. Note that the filing of an amended return does not restart or extend the limitations period. There are numerous exceptions to this rule, including if there is a substantial omission of income, fraud, failure to file a return, extension by agreement and failure to provide certain information regarding foreign transactions. We discussed many of these exceptions in Seeking Closure on Tax Positions: A Look at Tax Statutes of Limitation and Omitted Subpart F and GILTI Income May Be a Statute of Limitations Trap for the Unwary. Below, we discuss the rules and considerations for consenting to extending the time to assess federal tax.

Internal Revenue Code (Code) Section 6501(c)(4) provides that, except in the case of estate taxes, taxpayers (or their duly authorized representative) and the IRS may consent in writing to an extension of the limitations period for assessment. Importantly, such an agreement must be executed before the limitations period expires. In other words, assuming no other exception applies to the general three-year rule, an agreement to extend the limitations must be executed within the later of three years from the date the tax return was due or filed. If executed after that date, the consent is invalid. Thus, a late-filed consent cannot revive an otherwise closed limitations period. Under Code Section 6511(c), extending the statute of limitations on assessment also extends the period for filing a claim for credit or refund to six months after the expiration of the extended assessment period.

Form 872, Consent to Extend the Time to Assess Tax, is generally used to effectuate an agreed extension to a certain date, however, other versions of the form may be used for different types of taxpayers or issues (e.g., Form 872-M, Consent to Extend the Time to Make Partnership Adjustments, is used for partners subject to the centralized partnership audit regime under the Bipartisan Budget Act of 2015). Form 872-A, Special Consent to Extend the Time to Assess Tax, may be used to extend the limitations period for an indefinite period (referred to as an Open-Ended Consent). An Open-Ended Consent ends 90 days after the mailing by the IRS of written notification of termination or receipt by the IRS of written notification of termination from the taxpayer (both actions are accomplished through the use of Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax), or the mailing of a notice of deficiency. The IRS’s views on Open-Ended Consents are summarized in
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