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Weekly IRS Roundup May 16 – May 20, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of May 16, 2022 – May 20, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

May 16, 2022: The IRS issued an internal memorandum related to a revised definition of “Appeals Coordinated Issues” to streamline the issue coordination process and reduce confusion over terminology.

May 20, 2022: The IRS has requested comments relating to quarterly federal excise tax return reporting.

May 20, 2022: The IRS announced an increase in interest rates for the calendar quarter beginning July 1, 2022, and subsequently released Revenue Ruling 2022-11.

May 20, 2022: The IRS issued a revised set of Frequently Asked Questions (FAQs) contained in Fact Sheet 2022-29 that relate to the Child Tax Credit, as expanded by the American Rescue Plan Act of 2021 (ARPA). The IRS also provided a link, reminding taxpayers when they can rely on FAQs.

May 20, 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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New Post-Validus Revenue Ruling Applies to Foreign Reinsurance Transactions

In mid-2015, the United States Court of Appeals for the District of Columbia Circuit affirmed (although on narrower grounds) the decision of the United States District Court for the District of Columbia in Validus Reinsurance, Ltd. v. United States.  In Validus, 786 F.3d 1039, the D.C. Circuit ruled that there was no statutory authority for the imposition of a so-called “cascading” federal excise tax (FET) to foreign retrocession transactions – a transaction involving a policy of reinsurance issued by a foreign reinsurer to another foreign reinsurer.

The D.C. Circuit relied on two principles in rejecting the application of a “cascading” FET to foreign retrocession transactions:  (1) the presumption against extraterritoriality and (2) FET should not be imposed more than once on the same transaction (that is, on the same premium amounts).  The D.C. Circuit declined, however, to specifically speak on the issue of foreign reinsurance transactions – a transaction involving a policy of reinsurance issued by a foreign reinsurer to another foreign insurer (rather than reinsurer) – despite the fact that both principles might equally apply to these transactions as well.

However, the recently released Revenue Ruling 2016-03 specifically notes that “the IRS will no longer apply the one-percent excise tax imposed by section 4371(3) to premiums paid on a policy of reinsurance issued by one foreign reinsurer to another foreign insurer or reinsurer ….”  (emphasis added).  Thus, under Revenue Ruling 2016-03, there is no distinction between foreign retrocession and foreign reinsurance transactions.  For those taxpayers with foreign reinsurance transactions, who have been stuck in limbo after the Validus decision, Revenue Ruling 2016-03 may provide relief from an IRS examiner’s inappropriate imposition of a “cascading” FET.

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