Given limited guidance by US tax authorities regarding taxation of virtual currency activities, taxpayers with such holdings may find themselves in uncharted territory as to whether to take positions that are contrary to IRS pronouncements. This article explores relevant notices, rulings and FAQs, and reviews the types of deference that courts tend to put on different types of IRS interpretations and guidance.
IRS Releases Second Quarter Update to 2017-2018 Priority Guidance Plan
On February 7, 2018, the Department of the Treasury (Treasury) released its second quarter update to the 2017-2018 Priority Guidance Plan to identify tax issues it believes should be addressed through regulations, revenue rulings, revenue procedures, notices and other published administrative guidance. The Priority Guidance Plan contains projects the Treasury hopes to complete during the 12-month period from July 2, 2017 through June 30, 2018. We previously posted on the first quarter 2017-2018 Priority Guidance plan here.
Most of the projects do not involve the issuance of new regulations, instead focus on guidance to taxpayers on a variety of tax issues important to individuals and businesses in the form of: (1) revocations of final, temporary, or proposed regulations (for our prior coverage, see here); (2) notices, revenue rulings and revenue procedures; (3) simplifying and burden reducing amendments to existing regulations; (4) proposed regulations; or (5) final regulations adopting proposed regulations. The initial 2017-2108 Priority Guidance Plan consisted of 198 guidance projects, 30 of which have already been completed. The second quarter update reflects 29 additional projects, including priority items as a result of the Tax Cuts and Jobs Act (TCJA) legislation enacted on December 22, 2017, and guidance published or released from October 13, 2017 through December 31, 2017.
IRS Releases 2017-2018 Priority Guidance Plan
The US Department of Treasury (Treasury) and Internal Revenue Service (IRS) issue Priority Guidance Plans each year to identify the tax issues they believe should be addressed through regulations, revenue rulings, revenue procedures, notice and other published administrative guidance. On October 20, 2017, the IRS and Treasury released the 2017-2018 Priority Guidance Plan.
- Part 1 focuses on the eight regulations from 2016 that were identified pursuant to Executive Order 13789 (see here for prior coverage on Treasury’s report in response to this Order) and the intended actions related to those regulations.
- Part 2 describes certain projects that Treasury and the IRS have identified as burden reducing and that they believe can be completed in the eight and a half months remaining in the plan year.
- Part 3 describes the various projects related to the implementation of the new statutory partnership audit regime. See here for prior coverage.
- Part 4 describe specific projects by subject area that will the focus of the balance of Treasury’s and the IRS’s efforts for the plan year.
Practice Point: The Priority Guidance Plan is a useful tool for taxpayers in that it highlights areas in which Treasury and the IRS are focused, both in the short-term and the long-term. Although items in the Priority Guidance Plan are subject to modification, they provide a blueprint for issues that the government views as important. For example, the plan reports guidance projects relating to Internal Revenue Code Section 199, focused on the treatment of computer software and films. These issues have created substantial controversy for the IRS and taxpayers, as we have previously reported. See https://www.taxcontroversy360.com/2017/04/the-irss-assault-on-section-199-computer-software-doesnt-compute/ and https://www.taxcontroversy360.com/2017/03/irs-campaign-focuses-on-definition-of-qualified-film-under-section-199/. Additional guidance would be welcomed.
Tax Court Rejects IRS Reliance on “Cursory” Analysis in Revenue Ruling
We have previously discussed, in March and October of 2016, the various levels of deference given to Internal Revenue Service (IRS) guidance, whether it is in published or private form. For revenue rulings, courts traditionally apply Skidmore deference, which essentially looks at the persuasiveness of the ruling. Under this standard, and the IRS’s position in its procedural regulations, if a ruling contains the same material facts and its analysis is persuasive, courts will generally defer to it.
The Tax Court’s recent opinion in Grecian Magnesite Mining, Industrial & Shipping Co., SA, v. Commissioner, 149 TC No. 3 (July 13, 2017), is a friendly reminder that just because a revenue ruling addresses the same material facts present in a taxpayer’s case does not automatically mean that courts will side with the IRS. In Grecian, a revenue ruling contained three fact patterns which were essentially the same as the taxpayer’s facts. The ruling held that gain realized by a foreign partner upon disposing of its interest in a United States partnership should be analyzed on an asset-by-asset basis, and that to the extent the partnership’s assets would give rise to effectively connected income (ECI) if sold by the partnership, the departing partner’s pro rata share of such gain should be treated as ECI. Despite this conclusion, the Tax Court rejected the IRS’s argument that the ruling was entitled to deference and required upholding the IRS’s deficiency determination. Rather, the court noted that the ruling’s discussions of the relevant partnership provisions was “cursory in the extreme” and it criticized the ruling’s treatment of the United States taxation of international transactions. As a result, the court declined to accord any deference to the ruling and ultimately found that the taxpayer’s position was correct as to the issue addressed in the ruling.
Practice Point: Although many revenue rulings contained detailed discussions and analysis of the tax laws, some are based on blanket statements of law that are not supported by relevant authorities. In these situations, taxpayers and their advisors should carefully consider whether a court would afford any deference to such a blanket statement.
IRS and Treasury Release Update to 2016-2017 Priority Guidance Plan
The US Department of the Treasury and Internal Revenue Service (IRS) issue Priority Guidance Plans each year to identify and prioritize the tax issues they believe should be addressed through regulations, revenue rulings, revenue procedures, notices and other published administrative guidance. On October 31, 2016, the IRS and Treasury released the first quarter update to the 2016-2017 Priority Guidance Plan originally released on August 15, 2016.
The original plan identified 281 guidance projects as priorities, and the first quarter update includes an additional six guidance projects. The additional projects include:
- Guidance regarding the removal of the no-rule positions for certain legal issues concerning device and business purpose under section 355 (PUBLISHED 09/12/16 in IRB 2016-37 as REV. PROC. 2016-45 (RELEASED 08/26/16)).
- Revenue procedure providing a self-certification procedure for waivers of the 60-day rollover requirement under §§402(c)(3) and 408(d)(3) (PUBLISHED 09/12/16 in IRB 2016-37 as REV. PROC. 2016-47 (RELEASED 08/24/16)).
- Announcement on hardship distributions and loans from retirement plans as a result of Louisiana storms (PUBLISHED 09/12/16 in IRB 2016-37 as ANN. 2016-30 (RELEASED 08/30/16)).
- Announcement concerning the tax treatment of payments made on behalf of or reimbursements received by residents affected by the Southern California Gas Company natural gas leak (PUBLISHED 08/01/16 in IRB 2016-31 as ANN. 2016-25 (RELEASED 07/19/16)).
- Guidance for income and employment tax purposes on the treatment of cash payments made by employers under leave-based donation programs for the relief of victims of the Louisiana storms (PUBLISHED 10/03/16 in IRB 2016-40 as NOT. 2016-55 (RELEASED 09/16/16); and
- Guidance under §909 related to foreign-initiated adjustments and the separation of foreign taxes and related income (PUBLISHED 10/03/16 in IRB 2016-40 as NOT. 2016-52 (RELEASED 09/15/16)).