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IRS Chief Counsel Signals Increased Tax Enforcement

The Internal Revenue Service (IRS) Chief Counsel is the chief legal advisor to the Commissioner of Internal Revenue on all matters pertaining to the interpretation, administration and enforcement of the Internal Revenue Laws. In this regard, the IRS Office of Chief Counsel is responsible for litigating cases in the US Tax Court. Such cases can arise from examinations conducted by different divisions within the IRS, such as the Large Business & International (LB&I), Small Business/Self Employed (SB/SE), Tax Exempt & Government Entities (TE/GE) and Wage & Investment (W&I) Divisions.

On January 21, 2022, the IRS Office of Chief Counsel announced plans to hire up to 200 additional attorneys to assist with litigation efforts. The announcement specifically notes that new hires are necessary “to help the agency combat syndicated conservation easements, abusive micro-captive insurance arrangements and other tax schemes.” They will also help the IRS manage its increasing caseload as part of its multiyear effort to combat what it believes are abusive schemes and to ensure that the appropriate taxes and penalties are paid. The new hires will be located around the country and focus on audits of complex corporate and partnership issues.

Additionally, there are a significant number of cases before the Tax Court that involve conservation easements and micro-captive insurance arrangements. The IRS’s attack on the donation of conservation easements is well known in the tax world. To date, the IRS has largely been successful in these cases based on non-valuation arguments that easement deeds do not comply with the applicable regulations. However, in the recent Hewitt v. Commissioner case, the US Court of Appeals for the Eleventh Circuit dealt a significant blow when it held that the IRS’s interpretation of Treas. Reg. § 1.170A-14(g)(6)(ii) was arbitrary and capricious and violated the Administrative Procedure Act because the US Department of the Treasury failed to respond to significant comments submitted during the notice-and-comment process. Many conservation easements are within the Eleventh Circuit’s jurisdiction and other appellate courts are expected to weigh in soon, which could result in the IRS and taxpayers proceeding to trial on valuation issues. Valuation issues are inherently fact intensive and will require the IRS to utilize substantial resources to litigate.

Practice Point: Much has been written about the trend of decreased enforcement by the IRS over the past several years, owing in part to decreased or stagnant funding from US Congress. Tax litigation, particularly in fact intensive cases involving valuation issues and transactions the IRS (but not necessarily the courts) deemed abusive, requires the expenditure of substantial resources by the IRS. The IRS has signaled that it is ready to reverse the trend. All IRS tax controversies start with the examination of the taxpayer’s positions on the return. We have seen an increase in IRS audit activity in the last year or so, especially with medium-sized businesses and high-net-worth individuals. The Chief Counsel is assembling his “army” to litigate positions developed during the examination. It’s a good time for taxpayers [...]

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Weekly IRS Roundup November 16 – November 20, 2020

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of November 16, 2020 – November 20, 2020. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

November 16, 2020: The IRS released Notice 2020-82 related to the due date for certain contributions to defined benefit plans.

November 16, 2020: The IRS released Revenue Ruling 2020-26 updating the applicable federal rate and various other prescribed rates for December 2020.

November 16, 2020: The IRS released Notice 2020-81 updating weighted average interest rates, yield curves, and segment rates.

November 18, 2020: The IRS released Revenue Ruling 2020-27 related to deductions for expenses paid with Paycheck Protection Program (PPP) loans.

November 18, 2020: The IRS released Revenue Procedure 2020-51 providing a safe harbor for deductions for expenses paid with PPP loans when loan forgiveness is denied or the taxpayer forgoes forgiveness.

November 19, 2020: The IRS released TD 9933 containing final regulations to provide guidance regarding unrelated business taxable income of exempt organization.

November 20, 2020: The IRS released Notice 2020-83 announcing the Required Amendments List for qualified retirement plans and section 403(b) retirement plans.

November 20, 2020: The IRS released TD 9934 containing final regulations to coordinate the extraordinary disposition rule under section 245A with the disqualified basis and disqualified payment rules under section 951A.

November 20, 2020: The IRS released Internal Revenue Bulletin 2020-47, dated November 23, 2020, containing the following highlights: Rev. Proc. 2020-49 (Administrative); REG-122462-20 (Employee Plans); Rev. Proc. 2020-47 (Employee Tax); Rev. Rule. 2020-25 (Income Tax); Rev. Proc. 2020-50 (Income Tax); T.D. 9919 (Income Tax); and T.D. 9931 (Temporary Regulation).

November 20, 2020: The IRS released an audit technique guide for conservation easements.

November 20, 2020: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Brian Moore in our Washington, D.C. office for this week’s roundup.

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