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Supreme Court Rules Against Taxpayers in IRC Section 965 Case

On June 20, 2024, the Supreme Court of the United States issued a 7-2 opinion in Moore v. United States, 602 U.S. __ (2024), ruling in favor of the Internal Revenue Service (IRS).

Moore concerned whether US Congress and the IRS could tax US shareholders of controlled foreign corporations (CFCs) on those corporations’ earnings even though the earnings were not distributed to the shareholders. The case specifically focused on the so-called “mandatory repatriation tax” under Internal Revenue Code (IRC) Section 965, a one-time tax on certain undistributed income of a CFC that is payable not by the CFC but by its US shareholders. Some viewed the case as hinging upon whether Congress has the power to tax economic gains that have not been “realized.” (i.e., In the case of a house whose value has appreciated from $500,000 to $600,000, the increased value is “realized” only when the house is sold and the additional $100,000 reaches the taxpayer’s coffers.)

However, Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, rejected that position on the ground that the mandatory repatriation tax “does tax realized income,” albeit income realized by a CFC. On this basis, they reasoned that the question at issue was whether Congress has the power to attribute realized income of a CFC to (and tax) US shareholders on their respective shares of the undistributed income. This group of justices ultimately decided Congress does have the power.

The majority went out of its way to avoid expressing any opinion as to whether Congress can tax unrealized appreciation, with Justice Amy Coney Barrett’s concurrence and Justice Clarence Thomas’s dissent asserting that it cannot. Perhaps the Court was signaling a distaste for the Billionaire Minimum Income Tax proposed by US President Joe Biden, which would impose a minimum 20% tax on the total income of the wealthiest American households, including both realized and unrealized amounts, among other Democratic proposals.

Practice Point: We previously noted that certain taxpayers should consider filing protective refund claims contingent on the possibility that Moore would be decided in favor of the taxpayers. In light of the case’s outcome, however, those protective claims are now moot.




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Weekly IRS Roundup December 25 – December 29, 2023

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of December 25, 2023 – December 29, 2023.

December 26, 2023: The IRS released Internal Revenue Bulletin 2023-52, which includes the following:

  • Revenue Procedure 2023-39, which provides specifications for the private printing of red ink and black-and-white substitutes for the August 2023 revisions of Forms W-2c and W-3c. This revenue procedure supersedes Revenue Procedure 2016-20.
  • Notice 2023-79, which sets forth the 2023 Required Amendments List. The list applies to both individually designed plans under § 401(a) of the Internal Revenue Code and individually designed plans that satisfy the requirements of § 403(b).
  • Announcement 2023-35, 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).
  • Notice 2023-80, which announces the intention to issue proposed regulations that address the application of the foreign tax credit (FTC) and dual consolidated losses in relation to the Global Anti-Base Erosion (GloBE) Model Rules. The notice also (i) extends the temporary relief period described in Notice 2023-55 for determining whether a foreign tax is eligible for an FTC pursuant to §§ 901 and 903 and (ii) addresses the application of the temporary relief with respect to partnerships and their partners.
  • Proposed regulations that would amend existing regulations related to the energy credit for the taxable year in which eligible energy property is placed in service pursuant to § 48. The proposed regulations also withdraw and repropose portions of previously proposed regulations regarding the increased energy credit amount available if prevailing wage and registered apprenticeship requirements are met. Comments must be received by January 22, 2024.
  • Revenue Procedure 2023-41, which sets forth the unpaid loss discount factors for the 2023 accident year pursuant to § 846 and prescribes the salvage discount factors for the 2023 accident year pursuant to § 832.

December 26, 2023: The IRS updated the Frequently Asked Questions (FAQs) in Fact Sheet 2023-29 to provide guidance on the critical mineral and battery component requirements with respect to the New, Previously Owned and Qualified Commercial Clean Vehicle Credits. The updates supersede the FAQs previously posted in Fact Sheet 2023-22.

December 28, 2023: The IRS issued Notice 2024-9, which provides how applicable entities can claim the statutory exception to the application of the phaseouts for elective payment projects that begin construction during calendar year 2024 and fail to satisfy the domestic content requirement.

December 28, 2023: The IRS issued proposed regulations that would provide guidance on whether a debt instrument is worthless for US federal income tax purposes pursuant to § 166. Comments must be received by February 26, 2024.

December 28, 2023: The IRS issued Notice 2024-11, [...]

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Weekly IRS Roundup December 11 – December 15, 2023

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of December 11, 2023 – December 15, 2023.

December 11, 2023: The IRS released Internal Revenue Bulletin 2023-50, which includes the following:

  • Proposed regulations that would update regulations under Internal Revenue Code (Code) §§ 267 and 707 to apply an entity approach to partnerships for purposes of applying loss limitation rules to related persons. The proposed regulations are intended to conform the existing regulations to current law. Comments and requests for a public hearing must be received by February 26, 2024.
  • Proposed regulations that relate to the calculation of foreign currency gains and losses under Code § 987. The proposed regulations include a current rate election, which would treat all balance sheet items as marked items and would require that income, gain, loss and deduction with respect to a qualified business unit be translated at a yearly average exchange rate. The proposed regulations also include an annual recognition election, which would trigger all items of income, gain, loss and deduction on an annual basis. Comments and requests for a public hearing must be received by February 12, 2024.

December 11, 2023: The IRS issued Notice 2023-80, which announces the intention to issue proposed regulations that address the application of the foreign tax credit (FTC) and dual consolidated losses in relation to the Global Anti-Base Erosion (GloBE) Model Rules. The notice also (i) extends the temporary relief period described in Notice 2023-55 for determining whether a foreign tax is eligible for an FTC pursuant to §§ 901 and 903 and (ii) addresses application of the temporary relief with respect to partnerships and their partners.

December 11, 2023: The IRS urged taxpayers to take certain important actions to help them file their 2023 federal income tax return for the upcoming filing season, including (i) making quarterly payments by January 16, 2024, if required, (ii) gathering 2023 tax documents, (iii) considering whether to file electronically and choosing direct deposit to expedite tax refunds, and (iv) reviewing energy-related credits. The IRS also reminded taxpayers that they can now view their IRS account transcripts online and should not rely on receiving refunds by a certain date.

December 13, 2023: The IRS announced plans for a new leadership structure at the agency that will feature a single deputy IRS Commissioner and four new IRS chief executive positions to cover taxpayer service, compliance, information technology and operations.

December 13, 2023: The IRS published Tax Tip 2023-126, which states that business taxpayers can electronically file any Form 1099 series information returns for free with the IRS Information Returns Intake System.

December 14, 2023: The US Department of the Treasury and the IRS issued proposed regulations on the § 45X advanced manufacturing production credit. The proposed [...]

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