COVID-19 Archives | TAX CONTROVERSY 360

COVID-19

The Employee Retention Credit: A court challenge to IRS guidance

by Shawn O’Brien, Samuel F. Hamer and Michael J. Scarduzio | Jul 8, 2025 | Court Procedure Matters, IRS Guidance, Trial Courts

Case: Stenson Tamaddon LLC v. IRS, No. CV-24-01123-PHX-SPL, 2025 WL 1725942 (D. Ariz. June 20, 2025)

On June 20, 2025, the US District Court for the District of Arizona denied a motion for summary judgment that was filed by Stenson Tamaddon LLC (StenTam). The tax advisory firm argued that IRS Notice 2021-20, which provided informal guidance on claiming the Employee Retention Credit (ERC), was invalid because it was a “legislative rule” that was not promulgated through notice and comment rulemaking as required by the Administrative Procedure Act (APA). The court ruled that while StenTam had standing to challenge the validity of the notice, the notice was an “interpretive rule” and its issuance as such did not violate the APA. The court also addressed StenTam’s arguments that the Internal Revenue Service (IRS) exceeded its statutory authority in issuing the notice and that it acted in an arbitrary or capricious manner.

Background on the Employee Retention Credit

The ERC was enacted in 2020 as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide financial relief to businesses affected by the COVID-19 pandemic. Congress’s goal was to incentivize businesses experiencing significant disruptions because of COVID-19-related government orders or a substantial decline in gross receipts to retain employees on payroll and rehire displaced workers. The ERC is calculated as a percentage of qualified wages paid to employees during periods in 2020 and 2021.

Millions of employers have filed refund claims seeking ERC. Since the enactment of the CARES Act, the IRS has issued roughly $269 billion in ERC. However, more than 200,000 claims have been disallowed, reversed, or recaptured, and another 592,000 remain pending as of late April 2025. To the frustration of many, taxpayers whose claims have been processed in 2025 waited an average of more than 18 months before the IRS took action. According to a recent report from the Taxpayer Advocate Service, the IRS will need until at least the end of 2025 to process all remaining ERC claims. However, the IRS may still seek to recapture refunds relating to ERC claims well into the future.

IRS Notice 2021-20

A 102-page document presented in “question-and-answer” format, the IRS published Notice 2021-20 in March 2021 with the intention to “provide[ ] guidance on the [ERC] . . . .” In its suit, StenTam alleged that the notice “defined various terms in Section 3134 [providing for the ERC], identified factors or elements necessary to claim the credit, set minimum thresholds for recovery of ERC, and imposed new, related record-keeping requirements—all of which resulted in the ERC being restricted to a lesser number of businesses than originally contemplated by Congress.” The parties disputed whether the notice created substantive duties and restrictions that carry the force of law. Under the APA, agencies are generally required to follow notice and comment rulemaking procedures before issuing guidance that creates such duties or restrictions.

StenTam’s challenge to Notice 2021-20

StenTam is a tax services firm that advises clients claiming ERC. The firm contended that its business [...]

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Potential Refund Opportunity for Interest and Penalty Amounts Accrued During COVID-19 Federally Declared Disaster

by Shawn O’Brien and Samuel F. Hamer | Jun 12, 2025 | IRS Appeals, IRS Audits, Settlements, Tax Refunds, Trial Courts

Taxpayers who made payments to the Internal Revenue Service (IRS) that included underpayment interest and/or failure-to-file/pay penalties that accrued during all or part of the period between January 20, 2020, through July 10, 2023, should consider filing a refund claim with the IRS to potentially recover accrued interest and penalty amounts.

Internal Revenue Code (IRC) § 7508A (as in effect during the COVID-19 pandemic), legislative history, regulations, and the US Tax Court’s opinion in Abdo v. Commissioner, 168 T.C. 148 (2024), provide the basis for potential refund claims. IRC § 7508A(d) provides for a mandatory postponement period of certain tax-related obligations, including the suspension of the accrual of underpayment interest for the duration of the COVID-19 incident period plus 60 days (January 20, 2020 – July 10, 2023). IRC § 7508A also appears to have paused the increase of failure-to-file/pay penalties, which are based on the time during which the taxpayer is not in compliance.

Taxpayers considering this refund opportunity should be aware that the statute of limitations to file a refund claim expires three years from the filing deadline of the original tax return or two years from the date on which payment was made – whichever is later (unless the statute of limitations period was otherwise extended). This refund opportunity may apply to underpayment interest and/or penalties paid with respect to federal income, estate, gift, employment, or excise taxes.

“Big, Beautiful Bill”: Federal Tax Bill Would Restrict the Employee Retention Credit

by Shawn O’Brien, Samuel F. Hamer and Michael J. Scarduzio | May 20, 2025 | Tax Reform

A sweeping federal tax bill that is currently under consideration in the US House of Representatives contains provisions that would significantly change the administration and enforcement of the Employee Retention Credit (ERC).

The ERC was enacted in 2020 as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to provide financial relief to businesses affected by the COVID-19 pandemic by incentivizing employers to retain employees on payroll and rehire displaced workers. The ERC allowed employers that experienced significant disruptions due to government orders or a substantial decline in gross receipts to claim a tax credit equal to a percentage of qualified wages paid to employees. Millions of employers have filed refund claims seeking ERC for periods in 2020 and 2021. Since the enactment of the CARES Act, the Internal Revenue Service (IRS) has issued roughly $250 billion in ERC. More than 500,000 claims remained pending as of April 2025.

The federal tax bill, dubbed the “Big, Beautiful Bill” by US President Donald Trump, would prevent the IRS from allowing ERC that was claimed by a taxpayer on or before January 31, 2024. The deadline to claim ERC for taxable quarters in 2020 was April 15, 2024, and the deadline to claim ERC for taxable quarters in 2021 was April 15, 2025. The tax bill would thus appear to render ineligible all pending claims that were made after January 31, 2024, which are likely to be considerable in number. The bill is ambiguous as to whether taxpayers who have already been allowed ERC would need to repay those amounts to the extent their claims were made after January 31, 2024.

The tax bill would also extend the statute of limitations on the IRS’s ability to assess amounts attributable to ERC. Presently, the IRS has three years to assess amounts associated with ERC for all periods in 2020 and for Q1 and Q2 of 2021. The IRS has five years to assess amounts associated with ERC for Q3 and Q4 of 2021. The proposed legislation would extend both of these limitations periods to six years. This change would be significant, especially because the IRS is authorized to assess and collect erroneously allowed ERC by notice and demand.

Practice Point: Taxpayers with pending ERC claims should be alert to ongoing legislative developments – as this area continues to be a prominent focus of federal tax policy – and prepare now to defend ERC claims (even those filed after the potentially new deadline of January 31, 2024). Enactment of the changes proposed in the tax bill could dramatically restrict the amount of ERC currently eligible to be paid or credited and may empower the IRS to recapture a greater amount of claims already allowed. But considerable uncertainties remain as to the scope of the changes proposed in the bill. In the face of this uncertainty, taxpayers should consult experienced counsel who can assist them in preparing to defend ERC claims to which they are entitled.

The Employee Retention Credit: How to Litigate and Resolve Claims

by Shawn O’Brien, Michael J. Scarduzio and Samuel F. Hamer | Apr 10, 2025 | IRS Appeals

The Employee Retention Credit (ERC) was designed to help employers keep their employees on payroll during the COVID-19 pandemic by offering a refundable tax credit against certain employment taxes. Despite the Internal Revenue Service (IRS) issuing more than $242 billion in ERC as of early 2025, the processing and payment of these claims have faced significant delays and scrutiny.

In a recent Bloomberg Tax article, McDermott’s tax controversy and litigation team shared a broad overview of the stages of ERC claims and potential ways in which taxpayers can resolve them. Key takeaways include:

ERC claims can be in one of four stages: no IRS action, IRS examination, formal disallowance, or IRS recapture. Understanding the implications of each stage can be crucial for maximizing taxpayers’ chances of receiving and keeping ERC.
Thousands of ERC claims remain stagnated in the IRS’s administrative review process. Litigation can be a powerful tool to expedite the payment of ERC claims.
Taxpayers must be highly vigilant about the applicable statutes of limitations concerning ERC refund claims. Not understanding these deadlines can undermine the potential for a successful ERC claim.
The IRS is capable of recapturing ERC that it believes was erroneously allowed. However, the mechanisms for recapture may be susceptible to legal challenge, and taxpayers should be aware of their litigation options.

Read the full article.

Weekly IRS Roundup August 21 – September 1, 2023

by Evan Walters | Sep 5, 2023 | IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for August 21, 2023 – September 1, 2023.[1]

August 21, 2023: The IRS released Tax Tip 2023-102, warning tax professionals to be prepared for a variety of schemes aimed at stealing sensitive information, including phishing and attacks on cloud-based applications.

August 23, 2023: The IRS published Revenue Procedure 2023-29, providing the applicable percentage table used to calculate the premium tax credit under Section 36B.

August 24, 2023: The IRS reminded employers and employees that employers who have educational assistance programs can use those programs to help pay student loan obligations for their employees.

August 24, 2023: The IRS released Tax Tip 2023-103, outlining the Heavy Highway Vehicle Use Tax and reminding truckers that the tax payment due date is the last day of the month following the month the vehicle was first used on public highways. Truckers must also file Form 2290, Heavy Highway Vehicle Use Tax Return, by such date.

August 25, 2023: The IRS published Revenue Ruling 2023-17, which provides guidance on the overpayment and underpayment rate of tax under Section 6621. The ruling includes a table of interest rates spanning from 1975 through the present.

August 25, 2023: The IRS published Notice 2023-62, which provides guidance on particular issues involving catch-up contributions to retirement plans that are eligible to be designated as Roth contributions.

August 25, 2023: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

August 28, 2023: The IRS released Tax Tip 2023-104, explaining that eligible teachers and administrators can claim a tax deduction for part of the cost of technology, supplies and training to the extent those expenses are not reimbursed.

August 29, 2023: The IRS issued proposed regulations that would require brokers to report sales and exchanges of digital assets by customers. The proposed regulations contemplate the creation of new Form 1099-DA.

August 29, 2023: The IRS released Tax Tip 2023-105, listing miscellaneous resources for military spouses who run businesses or do gig work.

August 30, 2023: The IRS issued proposed regulations, frequently asked questions and Publication 5855, which all relate to the increased tax credit or deduction amounts for clean energy facilities and projects if taxpayers satisfy certain prevailing wage and registered apprenticeship requirements.

August 30, 2023: The IRS announced that starting January 1, 2024, Form 8300, Report of Cash Payments Over $10,000, must be filed electronically. (See also FS-2023-19 (August 19, 2023).)

August 30, 2023: The IRS announced tax relief for individuals and businesses in parts of Florida affected by Hurricane Idalia. Currently, [...]

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Weekly IRS Roundup July 24 – July 28, 2023

by Evan Walters | Aug 1, 2023 | IRS Appeals, IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of July 24, 2023 – July 28, 2023.

July 24, 2023: The IRS released Internal Revenue Bulletin 2023-30, which includes proposed regulations that specify the methodology for constructing the corporate bond yield curve used to calculate present value under a defined benefit plan. The Internal Revenue Bulletin also highlights the following:

Announcement 2023-18 relieves taxpayers from reporting the new stock repurchase excise tax under § 4501.
Announcements 2023-19 and 2023-20 revoke the tax-exempt status of certain organizations.
Notice 2023-37 modifies prior guidance regarding benefits related to testing and treating COVID-19.
Notice 2023-50 announces that the applicable percentage for purposes of determining percentage depletion on marginal properties for 2023 is 15%.
Notice 2023-51 publishes the inflation adjustment factor and the reference price for 2023 for the renewable electricity production credit under § 45.
T.D. 9976 provides final regulations that facilitate the transition from the London Interbank Offered Rate (LIBOR) to other interbank offered rates (IBORs).

July 24, 2023: The IRS released Tax Tip 2023-93, warning businesses and tax-exempt organizations about misleading employee retention credit claims. Scammers and unscrupulous promoters have been running aggressive broadcast advertising, direct mail solicitations and online promotions for the credit, many of which misrepresent and exaggerate who can qualify for the credit.

July 24, 2023: The IRS announced that revenue officers will no longer make unannounced visits to taxpayers’ residences in all but a few narrow circumstances. Instead, they will schedule visits via mailed letters.

July 25, 2023: The IRS released Tax Tip 2023-94, advising that applicable entities, including tax-exempt and governmental entities that would otherwise be unable to claim certain credits because they do not owe federal income tax, can benefit from some clean energy tax credits. If an entity opts to receive an elective payment, the amount of such credits is treated as a payment of tax, and overpayments will result in a refund.

July 25, 2023: The IRS released Notice 2023-53, which provides guidance on the corporate bond monthly yield curve, spot segment rates used under § 417(e)(3) and the 12-month average segment rates under § 430(h)(2).

July 25, 2023: The IRS published a special summer series discussing the Identity Protection PIN Opt-In Program, which can provide an extra layer of security for taxpayers filing their tax returns.

July 26, 2023: The IRS released Tax Tip 2023-95, reminding taxpayers that IRS Free File remains available until October 16 for those who still need to file a 2022 tax return.

July 26, 2023: The IRS released Revenue Procedure 2023-26, which provides a program for the fast-track processing of private letter ruling requests, replacing the pilot program described in
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Weekly IRS Roundup June 20 – June 23, 2023

by Sarah M. Raben | Jun 26, 2023 | IRS Guidance

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the shortened week of June 20, 2023 – June 23, 2023. (June 19 is a federal holiday.)

June 20, 2023: The IRS released Internal Revenue Bulletin 2023-25, which highlights:

Notice 2023-44: This notice provides more details for applicants seeking Section 48C credit allocations in the qualifying advanced energy project credit allocation program under the Inflation Reduction Act of 2022. See Appendix C of the notice.

June 20, 2023: The IRS released Tax Tip 2023-83, highlighting a series of special events at the IRS Nationwide Tax Forum. The events include sessions on practice management, the taxpayer experience, cybersecurity and a town hall meeting with the National Taxpayer Advocate. Find more information about registration at the end of this post.

June 21, 2023: The IRS announced that National Taxpayer Advocate Erin M. Collins released her midyear report to Congress. The report noted that this year’s tax-return filing season ran smoothly, and she urged the IRS to prioritize technology upgrades for the upcoming fiscal year.

June 22, 2023: The IRS released Tax Tip 2023-84, announcing that IRS Commissioner Danny Werfel will give the keynote address at the Atlanta session of the 2023 IRS Nationwide Tax Forum on July 25–27, providing tax professionals with multiple opportunities to learn more about changes to tax law and IRS transformation efforts. This will be Commissioner Werfel’s first appearance at the Nationwide Tax Forum.

June 23, 2023: The IRS released Notice 2023-37, which clarifies whether certain items and services are treated as preventive care under Section 223(c)(2)(C) of the Internal Revenue Code. The guidance is in response to the end of the COVID-19 public health emergency and national emergency.

June 23, 2023: The IRS issued proposed regulations on how to construct the corporate bond yield curve (to derive the interest rates used in calculating present value and making other calculations under a defined benefit plan, as well as for discounting unpaid losses and estimated salvage recoverable of insurance companies). Written comments must be received by August 22, 2023.

June 23, 2023: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Upcoming Events: Registration for the Nationwide Tax Forum is now open, and events are returning to an in-person format for the first time since 2019. The Nationwide Tax Forum is designed specifically for tax professionals (e.g., enrolled agents, certified public accountants, certified financial planners and Annual Filing Season Program participants), as well as uncredentialed tax professionals. The dates and locations are:

July 11–13: New Orleans, Louisiana
July 25–27: Atlanta, Georgia
August 8–10: National Harbor, Maryland (Washington, DC, area)
August 22–24: San Diego, California
August 29–31: Orlando, Florida

Weekly IRS Roundup April 17 – April 21, 2023

by Sarah M. Raben | Apr 24, 2023 | IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 17, 2023 – April 21, 2023.

April 17, 2023: The IRS released Internal Revenue Bulletin 2023-16, which highlights the following:

Announcement 2023-10: This announcement was issued pursuant to the Ticket to Work and Work Incentives Improvement Act of 1999, which requires the US Secretary of the Treasury to annually report advance pricing agreements and the Advance Pricing and Mutual Agreement Program (APMA Program). This year’s report describes the experience, structure and activities of the APMA Program during 2022.

REG-105954-22: This notice provides guidance related to Sections 4661, 4662, 4671 and 4672, collectively referred to as the Superfund chemical taxes. Section 4661(a) imposes an excise tax on the sale or use of “taxable chemicals” by manufacturers, producers or importers. Section 4671(a) imposes an excise tax on the sale or use of “taxable substances” by importers. The Superfund chemical taxes previously expired on December 31, 1995, but were reinstated with certain modifications, effective July 1, 2022, by Section 80201 of the Infrastructure Investment and Jobs Act.

Notice 2023-31: This notice announces that when proposed regulations under Section 903 (REG-112096-22) are finalized, the US Department of the Treasury and the IRS intend to extend the transition period for the single-country exception’s documentation requirement from May 17, 2023, to 180 days after the final regulations are filed. The single-country exception provides relief from the source-based attribution requirement under Section 903 for foreign withholding taxes on royalties paid for the use of intellectual property within the withholding jurisdiction.

REG-120080-22: This document contains proposed regulations regarding the clean vehicles credit under Section 30D. These proposed regulations will affect persons seeking to claim the credit and qualified manufacturers of clean vehicles. The IRS also issued a reminder that the proposed regulations went into effect on April 18.

Revenue Ruling 2023-2: This revenue ruling confirms that the basis adjustment under Section 1014 generally does not apply to the assets of an irrevocable grantor trust not included in the deceased grantor’s gross estate for federal estate tax purposes.

April 17, 2023: The IRS released Revenue Ruling 2023-9, which provides the applicable federal rates for federal income tax purposes for May 2023. The short-term federal interest rate is 4.30%, the mid-term rate will drop to 3.57% and the long-term rate will fall to 3.72%.

April 17, 2023: The IRS reminded taxpayers who need additional time to file their taxes that they can get an extension via IRS Free File.

April 17, 2023: The IRS released Tax Tip 2023-51, providing information to taxpayers regarding how to file a final federal tax return for someone who has died.

April 17, 2023: The IRS reminded last-minute tax [...]

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Weekly IRS Roundup February 27 – March 3, 2023

by Sarah M. Raben | Mar 6, 2023 | IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 27, 2023 – March 3, 2023.

February 27, 2023: The IRS released Internal Revenue Bulletin 2023-9, which highlights the following:

Revenue Ruling 2023-4: This revenue ruling establishes the interest rates on tax overpayments and underpayments for the second quarter of 2023. As of April 1, 2023, the rates will be as follows:
- Overpayments: 7%
- Overpayments for corporations: 6%
- Corporate overpayments for portion exceeding $10,000: 4.5%
- Underpayments: 7%
- Large corporate underpayments: 9%

Announcement 2023-6: This announcement notifies the public that the IRS intends to issue opinion letters by February 28, 2023, for pre-approved defined benefit plans that were updated for changes in plan qualification requirements and filed with the IRS during the third six-year remedial amendment cycle. This announcement also notifies the public of the date by which an adopting employer intending to maintain a pre-approved defined benefit plan for the third six-year cycle must adopt a newly approved plan and announces the beginning and ending dates of the period during which, an adopting employer may file for an individual determination letter.

February 27, 2023: The IRS released Notice 2023-21, which provides relief under Section 7508A(a) for certain persons affected by COVID-19 by disregarding the period beginning on April 15, 2020, and ending on July 15, 2020, in determining the beginning of the lookback period. Under the relief, if a taxpayer files a claim for credit or refund on or before June 22, 2023, the lookback period extends three years back from the date of the claim, disregarding the period from April 15, 2020, to July 15, 2020. As a result, the limit to the amount of the credit or refund would include the taxpayer’s withheld income taxes deemed paid on April 15, 2020. Relief is automatic.

February 27, 2023: The IRS released Tax Tip 2023-24, highlighting Tax Pro Account, which lets tax professionals submit an authorization request to a taxpayer’s IRS Online Account, including both power of attorney and tax information authorization requests. Taxpayers can then review, approve and sign the request electronically.

February 28, 2023: The IRS reminded farmers and fishers who did not pay all their 2022 estimated taxes by January 17 that they must file their 2022 tax return and pay the entire tax due by March 1. Disaster-area taxpayers, including farmers and fishers, have more time to file and pay.

February 28, 2023: The IRS released Tax Tip 2023-25, providing guidance on what to do when a W-2 or Form 1099 is missing or incorrect.

March 1, 2023: The IRS reminded taxpayers of their reporting and potential tax obligations on income from the gig economy and service industry, transactions from digital assets and foreign sources or holding certain foreign assets. The gig [...]

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Tax Court to Host COVID-19 Webinar

by Kevin Spencer and McDermott Will & Emery | Oct 19, 2022 | Court Procedure Matters, Trial Courts

On November 16, 2022, the US Tax Court will host an informative webinar panel discussion moderated by Chief Judge Kathleen Kerrigan from 12:00 – 1:00 pm (EST). The program will highlight changes to Tax Court practice that were made in response to the COVID-19 pandemic and include lessons learned, best practices and practical implications for ongoing controversy matters and trial calendars. The webinar is free and open to everyone—register here.

Practice Point: The COVID-19 pandemic has impacted the tax world significantly. For those with an active practice in the Tax Court, this webinar should be very informative and helpful. Additional COVID-19 resources for the Tax Court can be found here.

For some of our prior coverage on the impact of COVID-19 on the Tax Court’s operations, see here and here.