memorandum Archives - TAX CONTROVERSY 360

IRS Releases Memorandum on Deducting Cryptocurrency Donations

by John T. Lutz, William R. Pomierski and Andrew Granek | Jan 20, 2023 | IRS Guidance

On January 13, 2023, the Internal Revenue Service (IRS) released a memorandum (CCA 202302012) concluding that a qualified appraisal is required when a taxpayer claims a charitable contribution deduction exceeding $5,000 for donated cryptocurrency. Valuations reported by cryptocurrency exchanges do not qualify as “qualified appraisals.” The memorandum is relevant to any taxpayer who has donated (or plans to donate) cryptocurrency if they also intend to claim a charitable deduction.

SUBSTANTIATION REQUIREMENTS FOR CHARITABLE CONTRIBUTION DEDUCTIONS

Internal Revenue Code Section 170 generally allows deductions for charitable contributions in the taxable year that the contributions are made. However, these deductions are allowed only if they are verified under US Department of the Treasury (Treasury) regulations. Deductions may be denied if the taxpayer does not meet certain substantiation requirements outlined in Section 170(f)(11).

The substantiation requirements for charitable contribution deductions generally require that, for contributions of property for which a deduction of more than $5,000 is claimed, the taxpayer must obtain a “qualified appraisal” of the property.

MEETING THE QUALIFIED APPRAISAL REQUIREMENT

An appraisal can only be qualified if it is conducted by a qualified appraiser in accordance with generally accepted appraisal standards. To be qualified, an appraiser must (1) be an individual, (2) have earned an appraisal designation from a recognized professional appraiser organization or meet minimum education and experience requirements set by the Treasury or the IRS, and (3) regularly perform appraisals for which he or she receives compensation.

Furthermore, the appraisal must not be made and signed by the appraiser sooner than 60 days before the donation or later than the due date (with extensions) of the tax return on which the deduction is claimed. The qualified appraiser must sign and date the appraisal report and include a declaration that such person (1) understands the appraisal will be used in connection with a return or claim for refund, (2) understands that such person may be subject to a penalty if the appraisal contains a substantial or gross valuation misstatement of the value of the property and the taxpayer claims a deduction based on the appraisal, and (3) has not, within the past three years, been barred from presenting evidence or testimony before the Treasury or the IRS. The appraiser may not receive a fee that is based to any extent on the appraised value of the property.

EXCEPTIONS TO THE QUALIFIED APPRAISAL REQUIREMENT

While the qualified appraisal requirement may seem to impose an onerous burden on taxpayers, given the philanthropic purpose of charitable donations, this is mitigated by rules excepting certain readily valued property from the qualified appraisal requirement. For example, a taxpayer is not required to obtain a qualified appraisal for cash donations, stock in trade, inventory, inventory property, publicly traded securities and certain vehicles.

Notably, “publicly traded securities” for this purpose is limited to mean corporate stock; a right to subscribe for or to receive a share of corporate stock; or a bond, debenture, note, certificate, or other evidence of indebtedness issued by a corporation, a government or [...]

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IRS Releases Memorandum Regarding Advance Payments of Section 367(d) Inclusions

by Elizabeth C. Lu, Caroline H. Ngo, Michael J. Wilder and Lowell D. Yoder | Oct 19, 2022 | IRS Guidance

On September 23, 2022, the Internal Revenue Service (IRS) released a memorandum (AM 2022-003) concluding that taxpayers cannot make advance payments of section 367(d) inclusions except in the limited situation in which the US transferor receives boot in connection with the initial transfer of intangible property (IP) to a foreign corporation. The memorandum is relevant to any taxpayers who made, or are considering making, advance payments of section 367(d) amounts. In our view, the memorandum (which does not have precedential value) is not persuasive, and both its reasoning and its conclusion are inconsistent with prior IRS guidance and analogous long-standing case law.

OVERVIEW OF SECTION 367(d) AND NOTICE 2012-39

Section 367(d) generally provides that when a US person (USP) transfers IP to a foreign corporation in an otherwise tax-free exchange under sections 351 or 361, the US transferor is treated as having sold the IP in exchange for contingent payments and receiving amounts which would have been received annually in the form of such payments. The amounts included in the US transferor’s income (i.e., the section 367(d) inclusions) are treated as ordinary income and royalties for purposes of determining the source and foreign tax credit limitation category. See sections 865(d)(1)(B) (source); 367(d)(2)(C) (foreign tax credit limitation category). See also section 904(d)(3)(A); Reg. §1.904-5(b) (look-through rules).

In Notice 2012-39, the IRS treated boot received in an outbound section 367(d) transaction as an advance payment of the section 367(d) inclusion. In the Notice, the IRS described a situation in which a US Parent (USP) owns a US company (UST) with a basis and value of $100, and UST owns IP with a basis of $0 and a value of $100. Pursuant to an “all-cash D” reorganization, UST transferred IP with a value equal to $100 to a controlled foreign corporation (CFC) owned by USP in exchange for $100 and then UST distributed the cash to its USP in liquidation. As described in the Notice, UST would report the $100 received from CFC as tax free under section 361, and USP would report no dividend income or gain from receiving the $100 cash under the “gain within boot” rule in section 356(a)(1) (because there was no built-in gain in the stock of UST). According to the Notice, taxpayers would take the position that “the transactions have resulted in a repatriation in excess of $100x ($100x at the time of the reorganization and then through repayment of the receivable in the amount of USP’s income inclusions over time) while only recognizing income in the amount of the inclusions over time.” Thus, USP could receive, for example, $200 of cash ($100 from the initial transfer and $100 over time related to the section 367(d) inclusions) but only include $100 in income (over time on the section 367(d) inclusions).

To address what the IRS and the US Department of the Treasury perceived to be an inappropriate repatriation of cash, the Notice provided that in such a situation, the $100 received by UST in the initial outbound [...]

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M&A Tax Aspects of Republican Tax Reform Framework

by McDermott Will & Emery, Alejandro Ruiz and Timothy S. Shuman | Oct 11, 2017 | Tax Reform, Uncategorized

The outline of pending tax reform provisions remain vague, but a significant impact on M&A activity is expected by way of corporate tax cuts, interest deductibility, changes to the expensing of capital investments, a reduction of the pass-through tax rate and changes to our international (territorial) tax system.