Weekly IRS Roundup March 18 – March 22, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 18, 2024 – March 22, 2024.

March 18, 2024: The IRS released Internal Revenue Bulletin 2024-12, which includes the following:

  • Notice 2024-26, which announces that withholding agents (both US and foreign persons) are administratively exempt from having to electronically file Forms 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, which are required to be filed in calendar year 2024. Withholding agents who are foreign persons are administratively exempt in calendar year 2025 as well.
  • Announcement 2024-14, which revokes the § 501(c)(3) determination for Uplifting Her Inc. and stipulates that contributions made to the organization by individual donors are no longer deductible under § 170(b)(1)(A) of the Internal Revenue Code (Code).
  • Notice 2024-25, which provides population figures to use in calculating the 2024 calendar year population-based component of the state housing credit ceiling under § 42(h)(3)(C)(ii), the 2024 calendar year volume cap under § 146, and the 2024 volume limit under § 142(k)(5) of the Code.
  • Notice 2024-27, which requests additional comments on any situation in which an election under § 6417(a) of the Code could be made for a credit that was purchased in a transfer for which an election under § 6418(a) is made.
  • Revenue Procedure 2024-15, which modifies Revenue Procedure 2005-62 by expanding the definition of “public utility” to include all public utilities, not just investor-owned utilities, and changes the definition of a “qualifying securitization” to allow payments to be provided at least annually. The revenue procedure also sets forth the manner in which a public utility may treat certain legislatively authorized securitization transactions involving the issuance of debt instruments by a qualifying state financing entity, which is entered into by the public utility to recover specified costs through a non-bypassable surcharge to customers within the utility’s historic service area.

March 18, 2024: The IRS reminded taxpayers of the various ways to prevent typical errors on their federal tax returns to help speed up potential refunds, including using electronic filing, keeping copies of tax returns and ensuring the filing status is correct.

March 19, 2024: The IRS released Revenue Procedure 2024-17, which provides that war, civil unrest or similar adverse conditions precluded the normal conduct of business in Ukraine, Belarus, Sudan, Haiti, Niger and Iraq on or after various 2023 dates and, therefore, individuals with established residency or physical presence on or before the relevant dates are eligible for income exclusion under § 911(d)(1) of the Code.

March 19, 2024: The IRS released Notice 2024-29, which provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under § 417(e)(3), the 24-month average segment rates used under § 430(h)(2), the interest rate on 30-year Treasury securities under § 417I(3)(A)(ii)(II) as in [...]

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Can the IRS Assert IRC Section 6676’s Erroneous Refund Penalty on Protective Refund Claims?

We once again want to bring to your attention the Internal Revenue Service’s (IRS) new favorite penalty provision: Internal Revenue Code (IRC) Section 6676. We have reported on this provision several times before (See here, here and here), but this time we’re analyzing it in the context of protective refund claims.

As background, IRC Section 6676 was enacted in 2007 in response to the high number of presumed meritless refund claims being filed at the time. It imposes a 20% penalty to the extent that a claim for refund or credit with respect to income tax is made for an “excessive amount.” An “excessive amount” is defined as the difference between the amount of the claim for credit or refund sought and the amount that is actually allowable. For example, if a taxpayer claims a $2 million refund and the IRS allows only $1 million, the taxpayer can still be penalized $200,000 (e.g., 20% of the amount of the refund that was disallowed). Significantly, IRC Section 6676 does not require the IRS to show any fault or culpability on the part of the taxpayer (e.g., negligence or a disregard of rules or regulations). Neither the IRC nor the regulations provide for any defense to the Section 6676 penalty other than “reasonable cause.” Moreover, the penalty is immediately assessable, and generally taxpayers cannot fight the IRS on the penalty in a prepayment forum like it can the US Tax Court. Instead, the taxpayer must first pay the penalty and seek redress in a refund forum in either the relevant US federal district court or the US Court of Federal Claims.

Now that the IRS is asserting the IRC Section 6676 penalty more frequently, taxpayers are asking whether the penalty can apply to a protective refund claim. A protective refund claim is a judicial creation under which a taxpayer files a “protective” refund claim that is expressly contingent on a specified future event, like a taxpayer-friendly holding in a relevant court case. The Supreme Court of the United States has endorsed protective refund claims to toll the statute of limitations on the refund claim and thereby protect the taxpayer’s right to claim the refund if the favorable event should occur. (See, e.g., United States v. Kales, 314 US. 186 (1941), and CCA 201136021 (describing protective claims in detail).)

So, does the IRC Section 6676 penalty apply to a protective refund claim? Based on IRS internal guidance from 2022, the IRS believes that the IRC Section 6676 penalty applies to any filing that constitutes a “claim for credit or refund” of income tax, including a protective refund claim. To apply the penalty, the IRS would have to process the protective refund claim, deny the claim and then assert the IRC Section 6676 penalty.

Processing and denying a protective refund claim go against most tax practitioners’ experience and understanding of how the IRS treats protective refund claims. Typically, the refund claim is [...]

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Weekly IRS Roundup March 11 – March 15, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 11, 2024 – March 15, 2024.

March 11, 2024: In Internal Revenue Bulletin 2024-11, the IRS released Announcement 2024-10, which provides that replacement of lead service lines by government entities does not result in income for taxpayers.

March 11, 2024: The IRS highlighted seven suspicious signs that an Employee Retention Credit (ERC) claim is incorrect and urged businesses to seek a trusted tax professional to resolve an incorrect claim while they still can without penalties or interest. Fraudulent ERC claims have been added to the IRS’s “Dirty Dozen” list.

March 12, 2024: The IRS announced the full-scale launch of the Direct File pilot and encouraged eligible taxpayers in  Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Wyoming, Arizona, California, Massachusetts, New York and Washington to file their tax returns online for free directly with the IRS using the new service.

March 13, 2024: The IRS announced that, effective April 1, Guy Ficco will become the new IRS Criminal Investigation Chief.

March 13, 2024: The IRS announced that the Joint Board for the Enrollment of Actuaries is retroactively extending the temporary waiver of its physical presence requirement for continuing professional education programs and is proposing regulations to eliminate the in-person requirement altogether.

March 13, 2024: The IRS reminded auto dealers and sellers that to submit time-of-sale reports and receive advance payments of the clean vehicle tax credit they must register their business with IRS Energy Credits Online.

March 14, 2024: The IRS reminded taxpayers who struggle to gather the necessary documents they need to file or pay the taxes they owe to consider several options offered on IRS.gov to avoid late filing and interest penalties. These include, among other things, requesting an extension to file tax returns and requesting a payment plan online.

March 14, 2024: The IRS reminded businesses that file 10 or more information returns that they must e-file Form 8300, Report of Cash Payments Over $10,000, instead of filing a paper return.

March 15, 2024: The IRS reminded businesses to review the ERC guidelines and consider the ERC Voluntary Disclosure Program or the claim withdrawal process to avoid penalties and interest. The deadline to apply for the ERC Voluntary Disclosure Program is March 2022.

March 15, 2024: The IRS reminded individuals and businesses that it is increasing the amount of information available in multiple languages. Much of the information on the IRS website has now been translated into seven different languages other than English. The IRS website’s Languages page includes an overview of key topics related to information about federal taxes in 21 languages.

March 15, 2024: The IRS released
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IRS (Belatedly) Strikes Back Against FedEx in Ongoing Foreign Tax Credit Case

FedEx Corporation, previously the victor in a closely watched dispute regarding the government’s regulatory attempt to prevent taxpayers from claiming foreign tax credits on offset earnings (131 AFTR 2d 2023-1284 (W.D. Tenn. 2023)), recently filed a motion for judgment in the US District Court for the Western District of Tennessee to confirm its resulting refund amount. FedEx says it filed the motion because the government ended negotiations for a joint proposal of judgment, told FedEx to file a motion and said it would oppose the motion based on a new argument that would reduce FedEx’s refund amount. The government did not provide a written description of its new argument, so FedEx forged ahead with what it could gather based on conversations with the government and filed its motion on March 8, 2024.

According to FedEx, the government’s new argument appears to rest on a different regulation (Treasury Regulation Section 1.965-5(c)(1)(i)), which limits foreign tax credits by withholding taxes paid to a foreign jurisdiction. This is known as the “Haircut Rule.” FedEx provides several reasons why the government’s argument based on the Haircut Rule should be rejected, including that the rule cannot apply where a taxpayer did not claim foreign tax credits based on withholding taxes, that the rule itself is procedurally deficient under the Administrative Procedure Act and that the government is simply too late in presenting the argument.

Practice Point: Given the late stage of the litigation, the government will likely face headwinds to get the court to consider its argument of whether the Haircut Rule applies. It is unclear from the motion how transparent the government was with the court while the parties attempted to reach a mutually agreeable refund computation. However, it appears fairly clear that the government could have argued the Haircut Rule as an alternative to its main position throughout the course of the 2023 briefing before the court. As with any argument newly conceived in the heat of litigation, parties should carefully consider the consequences of waiting to bring the argument to the court’s attention (with one of those consequences being that such new argument is rejected for dilatoriness).




Weekly IRS Roundup March 4 – March 8, 2024

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 4, 2024 – March 8, 2024.

March 4, 2024: The IRS released Internal Revenue Bulletin 2024-10, which includes the following:

  • Revenue Ruling 2024-6, which provides that the overpayment interest rate under § 6621 of the Internal Revenue Code (Code) for the calendar quarter beginning April 1, 2024, will be 8% (7% in the case of a corporation), the underpayment interest rate will be 8% and the interest rate for large corporate underpayments will be 10%. The rate of interest paid on the portion of a corporate overpayment exceeding $10,000 will be 5.5%.
  • Notice 2024-24, which provides updates on the corporate bond monthly yield curve and corresponding spot segment rates for January 2024 used under Code § 417(e)(3)(D), the 24-month average segment rates applicable for February 2024, and the 30-year Treasury rates, as reflected by the application of § 430(h)(2)(C)(iv).
  • Announcement 2024-13, which revokes § 501(c)(3) determinations for certain organization(s) and stipulates that contributions made to the organization(s) by individual donors are no longer deductible under § 170(b)(1)(A).
  • Revenue Ruling 2024-04, which provides the March 2024 applicable federal rates.

March 4, 2024: The IRS announced that registration for its 2024 Nationwide Tax Forum is now open, providing tax professionals the opportunity to attend special continuing education sessions in five cities across the nation.

March 4, 2024: The IRS reminded taxpayers that the legal deadline for claiming the Recovery Rebate Credit in 2020 is May 17, 2024. The deadline for claiming the Recovery Rebate Credit in 2021 will be April 15, 2025.

March 5, 2024: The IRS issued final regulations, providing that certain tax-exempt organizations and political entities that earn certain clean energy credits can choose to make an elective payment election. Such an election results in the credits being treated as payments against the electing entity’s federal income tax liabilities with the IRS refunding any excess value. Notice 2024-27, in turn, requests additional comments on situations in which an elective payment election should be permitted with respect to credits purchased in a transfer for which an election under § 6418(a) is made.

March 6, 2024: The IRS reminded taxpayers that they are generally required to report all earned income on their tax returns, including income earned from digital asset transactions, the gig economy and the service industry as well as income from foreign sources.

March 6, 2024: The IRS released a statement acknowledging concerns related to a proposed policy change from January 2 that would limit access to tax return information from the IRS to protect taxpayer confidentiality. In response to comments, the IRS has suspended any changes under the proposed policy.

March 6, 2024: The IRS announced that Margie Rollinson took the oath [...]

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