On January 2, 2019, the outgoing Chair of the House Ways and Means Committee, Kevin Brady (R-TX), released the Tax Technical and Clerical Corrections Act (the Bill), addressing several technical issues associated with the Tax Cuts and Jobs Act (P.L. 115-97) (TCJA). The Bill includes certain provisions that, if enacted, would affirm Congress’ intent that taxpayers with an overpayment with respect to an installment payment of the transition tax under Internal Revenue Code (Code) Section 965 should be able to claim a credit or refund with respect to such amount. The provisions in the Bill with respect to Code Section 965 overpayments are largely consistent with similar draft legislation introduced on November 26, 2018 (the Retirement, Savings and Other Tax Relief Act of 2018 and the Taxpayer First Act of 2018, or H.R. 88; see prior discussion here). In particular, the Bill provides that where a taxpayer that made an election under Code Section 965(h)(1) to pay the net tax liability under Section 965 in installments has filed a request for a credit or refund with respect to an overpayment, the Internal Revenue Service cannot take any installment into account as a liability for purposes of determining whether an overpayment exists. If enacted, the Bill would permit taxpayers to claim a refund or credit with respect to an installment payment of the taxpayer’s transition tax under Code Section 965. Continue Reading Section 965 Transition Tax Overpayment Addressed in Technical Corrections

In order to continue to keep our readers informed on tax matters, we will be rolling out weekly posts on significant Internal Revenue Service (IRS) guidance and relevant tax cases. This post marks our first round-up of IRS guidance for the week June 4 – 8, 2018.

June 4, 2018: The IRS issued 3 new FAQs (supplementing the original 14 tax reform FAQs) which announce that it will waive certain late-payment penalties relating to the section 965 transition tax.

June 4, 2018: The IRS issued Internal Revenue Bulletin No. 2018-23 including: Rev. Proc. 2018-32 (combining guidance for grantors and contributors to tax-exempt organizations); Rev. Proc. 2018-34 (providing indexing adjustments for certain provisions under section 36B); Rev. Rul. 2018-14 (obsoleting Rev. Rul. 68-59, 1968-1 C.B. 273); Rev. Rul 2018-15 (obsoleting Rev. Rul. 74-487, 1974-2 C.B. 82; Rev. Rul. 75-211, 1975-1 C.B. 86; Rev. Rul. 77-115, 1977-1 C.B. 154; Rev. Rul. 77-407, 1977-2 C.B. 77; and, Rev. Rul. 80-11, 1980-1 C.B. 58); and Rev. Rul. 2018-16 (providing the prescribed federal interest rates for June 2018).

June 7, 2018: The IRS issued an early release draft of Form W-4, Employee’s Withholding Allowance Certificate seeking comments from industry.

June 7, 2018: With hurricane season underway, the IRS warns taxpayers that scammers often try to take advantage of the generosity of taxpayers who want to help victims of major disasters.

June 8, 2018: The IRS issued final regulations under sections 337 and 732 that: (1) prevent a corporate partner from avoiding corporate-level gain through transactions with a partnership involving equity interests of the partner or certain related entities, (2) allow consolidated group members that are partners in the same partnership to aggregate their bases in stock for certain purposes and (3) that may require certain corporations that engage in gain elimination transactions to reduce the basis of corporate assets or to recognize gain.

June 8, 2018: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandum and Chief Counsel Advice).

Special thanks to Christy Vouri-Misso in our DC office for this week’s round-up.

Andrew Roberson and Elizabeth Chao recently wrote an article for Law360 entitled, “A Recent Tax Court View Of Statute Of Limitations Provisions.” The article discusses the Tax Court’s recent opinion in Rafizadeh v. Commissioner on statute of limitations for amounts reportable under Internal Revenue Code Section 6038D.

Read the full coverage on Law360 here.

The Internal Revenue Code (Code) contains various provisions regarding the imposition of penalties and additions to tax. The accuracy-related penalty under section 6662(a), which imposes a penalty equal to 20 percent of the amount of any understatement of tax, is commonly asserted on the grounds that the taxpayer was negligent, disregarded rules or regulations, or had a substantial understatement of tax. Over the years, the Internal Revenue Service (IRS) has become increasingly aggressive in asserting penalties and generally requires that taxpayers affirmatively demonstrate why penalties should not apply, as opposed to the IRS first developing the necessary facts to support the imposition of penalties.

There are many different defenses available to taxpayers depending on the type and grounds upon which the penalty is asserted. These defenses include the reasonable basis and adequate disclosure defense, the substantial authority defense, and the reasonable cause defense.

Another defense available to taxpayers is what we will refer to as the “issue of first impression” defense. The Tax Court’s recent opinion in Peterson v. Commissioner, 148 T.C. No. 22, reconfirms the availability of this defense. In that case, the substantive issue was the application of section 267(a) to employers and employee stock ownership plan (ESOP) participants. The court, in a published T.C. opinion (see here for our prior discussion of the types of Tax Court opinions) held in the IRS’s favor on the substantive issue but rejected the IRS’s assertion of an accuracy-related penalty for a substantial understatement of tax on the ground that it had previously declined to impose a penalty in situations where the issue was one not previously considered by the Tax Court and the statutory language was not entirely clear.

The Tax Court’s opinion in Peterson is consistent with prior opinions by the court in situations involving the assertion of penalties in cases of first impression. In Williams v. Commissioner, 123 T.C. 144 (2004), for instance, the substantive issue was whether filing bankruptcy alters the normal Subchapter S rules for allocating and deducting certain losses. The Tax Court agreed with the IRS’s position, but it declined to impose the accuracy-related penalty because the case was an issue of first impression with no clear authority to guide the taxpayer. The court found that the taxpayer made a reasonable attempt to comply with the code and that the position was reasonably debatable.

Similarly, in Hitchens v. Commissioner, 103 T.C. 711 (1994), the court addressed, for the first time, an issue related to the computation of a taxpayer’s basis in an entity. Despite holding for the IRS, the court rejected the accuracy-related penalty. It stated “[w]e have specifically refused to impose additions to tax for negligence, etc., where it appeared that the issue was one not previously considered by the Court and the statutory language was not entirely clear.” Other cases are in accord. See Braddock v. Commissioner, 95 T.C. 639, 645 (1990) (“as we have previously noted, this issue has never before, as far as we can ascertain, been considered by any court, and the answer is not entirely clear from the statutory language”); Wofford v. Commissioner, 5 T.C. 1152, 1166-67 (1945) (“If the petitioner was mistaken, as he evidently was, as to the controversial question of what the legal effect of the assignment for income tax purposes was, that is not a sufficient reason for holding that he was negligent.”).

Practice Point: As noted above, the IRS is more frequently asserting penalties against taxpayers. To the extent the substantive issue is one for which there is no clear guidance from the courts or the IRS, taxpayers may want to consider using the “issue of first impression” defense. This defense may avoid the potential pitfalls associated with the waiver of privilege when other penalty defenses are raised.