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IRS Proposes New Process for Post-Filing Disclosures to Replace Revenue Procedure 94-69

For many years, the Internal Revenue Service (IRS) has provided large corporate taxpayers who are under continuous audit to make affirmative disclosures at the start of an audit so they have an opportunity to disclose tax positions and avoid certain civil tax penalties. The procedure, outlined in Revenue Procedure 94-69, has been very popular with both taxpayers and IRS agents because it provides a mechanism that allows taxpayers to informally “amend” a return without filling out all of the paperwork. IRS agents also like the procedure because it allows them to focus the examination on the disclosed issues and incorporate the adjustments in the final computation from the audit. Indeed, the procedure has grown in practice to include the disclosure of affirmative and negative adjustments at the start of the examination and not just in the audits of taxpayers under the jurisdiction of the IRS’s Large Business & International division. However, as the continuous audit paradigm has ended, in 2020 the IRS questioned the continuing viability of this procedure and sought comments from taxpayers on if, and how, it should continue.

Numerous commentators (including the American Bar Association Section of Taxation and Tax Executives Institute, Inc.) recommended that the IRS keep this post-filing disclosure procedure in place, citing the following points in support:

  • The procedure avoids the need to file a formal amended return, a burdensome process on large taxpayers.
  • Requiring formal amended returns can be a significant strain on taxpayer resources, including the potential need to deal with state and local tax filings.
  • All mistakes can be fixed at one time (i.e., avoiding multiple amended returns).
  • The procedure eases reporting issues with Schedules K-1 that are issued after the original tax return is filed.
  • The procedure allows incorporating carryover adjustments from prior examinations.
  • There’s potential to avoid strict liability for penalties relating to transfer pricing adjustments.

On February 25, 2022, the IRS announced that it will standardize the process for making post-filing disclosures so that eligible taxpayers and IRS agents have consistent guidelines for determining what constitutes an adequate disclosure. To that end, the IRS has published a new draft form, Form 15307, Post-Filing Disclosure for Specified Large Business Taxpayers, to be used by eligible taxpayers seeking to make a post-filing disclosure. Taxpayer comments on the new draft form can be submitted here.

The draft Form 15307, which must be signed under penalties or perjury, requires that the taxpayer identify the number of disclosures and provide specific information about each disclosure, including:

  • Adjustment type
  • Timing
  • Effect of carryover
  • Description
  • Increase/decrease to taxable income or tax credits
  • Explanation of the item being disclosed

Examples of acceptable and unacceptable descriptions and disclosures are provided in the instructions to the draft form. Generally, netting of adjustments is not permitted, however, where the facts and circumstances of an item are identical and represent a high volume of low dollar amounts, the disclosures can be netted. The [...]

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Weekly IRS Roundup February 20 – February 26, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 20, 2022 – February 26, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

February 22, 2022: The IRS issued a correction to final regulations published on January 25, 2022, relating to the treatment of domestic partnerships that hold stock in foreign corporations.

February 22, 2022: The IRS issued a news release announcing the release of an updated list containing information about Low Income Taxpayer Clinics available around the country.

February 23, 2022: The IRS issued Revenue Ruling 2022-05 and an accompanying news release, setting forth the overpayment and underpayment interest rates under Section 6621 of the Code for Q2 2022.

February 24, 2022: The IRS issued final regulations relating to required minimum distributions under Section 401 of the Code with respect to certain employee pension and retirement plans.

February 24, 2022: The IRS issued a further correction to final regulations published on January 25, 2022, relating to the treatment of domestic partnerships that hold stock in foreign corporations.

February 24, 2022: The IRS issued a news release promoting its “Where’s My Refund?” online and mobile tools as ways for taxpayers to check on the status of their tax refunds.

February 24, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the Premium Tax Credit under Section 36B of the Code, as expanded by the American Rescue Plan Act of 2021 (ARPA).

February 25, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Le Chen in our Washington, DC, office for this week’s roundup.




Weekly IRS Roundup February 13 – February 19, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 13, 2022 – February 19, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

February 14, 2022: The IRS issued a news release announcing the launch of a resource page that provides taxpayers with 2022 filing season updates, including updates concerning the resolution of unprocessed returns from the 2021 filing season.

February 15, 2022: The IRS issued Revenue Ruling 2022-4, providing various prescribed interest rates for federal income tax purposes for March 2022.

February 15, 2022: The IRS issued a news release announcing the release of an updated Form 14457, which relates to the IRS Voluntary Disclosure Practice for criminal prosecution. The updates include an expanded section on the reporting of virtual currency.

February 15, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the tax treatment of emergency grants for higher education, which were introduced pursuant to pandemic-related legislation.

February 16, 2022: The IRS issued a news release recommending that taxpayers use the online resources on its homepage as their first resource for tax inquiries and provided links to certain commonly used resources.

February 16, 2022: The IRS issued a news release, warning tax professionals to be alert for a new phishing scam designed to steal tax preparation software account credentials.

February 16, 2022: The IRS issued a news release, soliciting applications for Taxpayer Advocacy Panel membership, an advisory body that receives taxpayer feedback and makes suggestions for improving IRS customer service.

February 16, 2022: The IRS issued a news release, setting forth additional transition relief (in the form of an additional exception for certain taxpayers for tax year 2021) from the requirement to file the new Schedules K-2 and K-3 relating to partnerships and flow-through entities.

February 17, 2022: The IRS issued Notice 2022-09, providing the monthly update to certain interest rates used for pension plan funding and distribution purposes.

February 17, 2022: The IRS issued a news release, reminding taxpayers with income from a farming or fishing business to file returns and pay taxes that are due by March 1, 2022, unless they have made estimated tax payments.

February 17, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the 2021 Recovery Rebate Credit, enacted as part of the American Rescue Plan Act of 2021 (ARPA).

February 18, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special [...]

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Weekly IRS Roundup February 6 – February 12, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 6, 2022 – February 12, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

February 7, 2022: The IRS issued a news release, announcing a transition away from using facial recognition technology to authenticate individuals seeking to create online IRS accounts.

February 8, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to frequently asked questions regarding the 2021 Recovery Rebate Credit, enacted as part of the American Rescue Plan Act of 2021 (ARPA).

February 8, 2022: The IRS issued a news release and an associated Fact Sheet, urging taxpayers to file individual income tax returns for 2021—even if they are not required to do so—in order to take advantage of various tax benefits enacted by ARPA and other pandemic-related legislation.

February 9, 2022: The IRS issued a news release, announcing the release of the 2021 Annual Report for its Low Income Taxpayer Clinic (LITC) program.

February 9, 2022: The IRS issued a news release, announcing the suspension of several types of automated IRS correspondence, such as balance due notices and unfiled tax return notices, to alleviate administrative burdens during the 2021 filing season.

February 11, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Le Chen in our Washington, DC, office for this week’s roundup.




Weekly IRS Roundup January 30 – February 5, 2022

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of January 30, 2022 – February 5, 2022. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

January 31, 2022: The IRS issued Revenue Procedure 2022-14, providing updates to the list of accounting method changes to which the automatic change procedures of Revenue Procedure 2015-33, as modified, apply.

January 31, 2022: The IRS issued a news release in advance of the 2021 filing season, providing a Fact Sheet that contains answers to frequently asked questions (FAQs) regarding the Child Tax Credit as expanded by the American Rescue Plan Act of 2021 (ARPA).

February 1, 2022: The IRS issued a news release, providing an update to the Fact Sheet released the previous day regarding the Child Tax Credit as expanded by ARPA.

February 1, 2022: The IRS issued a news release, setting forth certain administrative and logistical issues for taxpayers to consider in the process of filing an individual income tax return for 2021.

February 2, 2022: The IRS issued a news release, providing an update to a Fact Sheet containing answers to FAQs regarding the 2020 Recovery Rebate Credit, enacted as part of the Coronavirus Aid, Relief and Economic Security (CARES) Act.

February 3, 2022: The IRS issued a news release warning taxpayers to watch out for certain common tax scams and providing resources for victims of tax-related identity theft.

February 4, 2022: The IRS issued a news release announcing special Saturday hours at certain IRS Taxpayer Assistance Centers around the country to provide in-person assistance to taxpayers during the 2021 filing season.

February 4, 2022: The IRS issued an Action on Decision announcing its nonacquiescence to the holding in Quezada v. IRS, 982 F.3d 931 (5th Cir. 2020). The ruling held that the period of limitations on assessing backup withholding liability begins to run when the taxpayer files Forms 1040 and 1099-MISC that omit payee taxpayer identification numbers.

February 4, 2022: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

Special thanks to Le Chen in our Washington, DC, office for this week’s roundup.




Revoking Your Power of Attorney Status

To represent a taxpayer before the Internal Revenue Service (IRS), you need a valid power of attorney (POA). This is accomplished by preparing and submitting a properly completed Form 2848, Power of Attorney and Declaration of Representative pursuant to the Instructions for Form 2848. At some point, the representation will end (or it ends for certain matters and years but not for others). However, absent affirmative steps by the representative prevents the IRS from knowing that you no longer represent the taxpayer, and you may continue to receive IRS correspondence. This creates a potential issue because representatives should not be receiving taxpayer information if they no longer represent or provide legal advice to said taxpayer.

To avoid this, a representative can notify the IRS that they no longer represent the taxpayer and do not wish to receive any further correspondence, either for all matters and years or just certain ones. This is done by revoking your POA with the IRS. Revocation can be done in one of two ways. The first way is to mail or fax a copy of the POA to the IRS with the word “REVOKE” written across the top of the first page with a current signature and the date below this annotation. Alternatively, if the representative does not have a copy of Form 2848 or wishes to revoke several POAs at the same time, they can send the IRS a statement of revocation that indicates that the authority granted by the POA is revoked, lists the matters and years and lists the name and address of each recognized representative whose authority is revoked. If the representative is completing revoking authority, they can write “revoke all years/periods” instead of listing the specific matters and years.

For representatives who represent multiple taxpayers before the IRS, it may be difficult to recall all of the POAs they have filed with the IRS. However, a listing of all your POAs can be obtained by submitting a Freedom of Information Act request for a copy of the Centralized Authorization File (CAF)/Representative/Client listing. It’s a simple process, and the IRS provides the following Sample CAF Client Listing Request on its website:

Sample CAF Client Listing Request

 

Practitioner or company name Practitioner or company address Phone number (optional)

 

Date

 

Dear Disclosure Manager:

 

This is a request under the Freedom of Information Act. I request that a copy of the CAF Representative/Client Listing be provided to me. I do not wish to inspect the documents first.

 

In order to determine my status for the applicability of fees, you should know that I am an “Other” requester seeking information for non-commercial or personal use. I am a tax professional and my CAF number is XXXXXXX. (This is not your Enrolled Agent Number)

 

I am including a valid photo identification which includes my signature as proof of identity.

 

Send listing as a paper document. I am willing to pay [...]

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IRS Chief Counsel Signals Increased Tax Enforcement

The Internal Revenue Service (IRS) Chief Counsel is the chief legal advisor to the Commissioner of Internal Revenue on all matters pertaining to the interpretation, administration and enforcement of the Internal Revenue Laws. In this regard, the IRS Office of Chief Counsel is responsible for litigating cases in the US Tax Court. Such cases can arise from examinations conducted by different divisions within the IRS, such as the Large Business & International (LB&I), Small Business/Self Employed (SB/SE), Tax Exempt & Government Entities (TE/GE) and Wage & Investment (W&I) Divisions.

On January 21, 2022, the IRS Office of Chief Counsel announced plans to hire up to 200 additional attorneys to assist with litigation efforts. The announcement specifically notes that new hires are necessary “to help the agency combat syndicated conservation easements, abusive micro-captive insurance arrangements and other tax schemes.” They will also help the IRS manage its increasing caseload as part of its multiyear effort to combat what it believes are abusive schemes and to ensure that the appropriate taxes and penalties are paid. The new hires will be located around the country and focus on audits of complex corporate and partnership issues.

Additionally, there are a significant number of cases before the Tax Court that involve conservation easements and micro-captive insurance arrangements. The IRS’s attack on the donation of conservation easements is well known in the tax world. To date, the IRS has largely been successful in these cases based on non-valuation arguments that easement deeds do not comply with the applicable regulations. However, in the recent Hewitt v. Commissioner case, the US Court of Appeals for the Eleventh Circuit dealt a significant blow when it held that the IRS’s interpretation of Treas. Reg. § 1.170A-14(g)(6)(ii) was arbitrary and capricious and violated the Administrative Procedure Act because the US Department of the Treasury failed to respond to significant comments submitted during the notice-and-comment process. Many conservation easements are within the Eleventh Circuit’s jurisdiction and other appellate courts are expected to weigh in soon, which could result in the IRS and taxpayers proceeding to trial on valuation issues. Valuation issues are inherently fact intensive and will require the IRS to utilize substantial resources to litigate.

Practice Point: Much has been written about the trend of decreased enforcement by the IRS over the past several years, owing in part to decreased or stagnant funding from US Congress. Tax litigation, particularly in fact intensive cases involving valuation issues and transactions the IRS (but not necessarily the courts) deemed abusive, requires the expenditure of substantial resources by the IRS. The IRS has signaled that it is ready to reverse the trend. All IRS tax controversies start with the examination of the taxpayer’s positions on the return. We have seen an increase in IRS audit activity in the last year or so, especially with medium-sized businesses and high-net-worth individuals. The Chief Counsel is assembling his “army” to litigate positions developed during the examination. It’s a good time for taxpayers [...]

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National Taxpayer Advocate’s Report Highlights Tough Times for Tax Administration

On January 12, 2022, the National Taxpayer Advocate released a report to US Congress concerning the state of tax administration in 2021. The report highlights the struggles the Internal Revenue Service (IRS) has been having in the wake of the COVID-19 pandemic, including how the IRS is substantially behind in processing returns, the breakdown of the IRS call center, delays in processing responses to IRS notices sent to taxpayers and a myriad of other issues. (There is indeed a backlog for processing millions of tax returns!)

The Taxpayer Advocate Service (TAS) can be a helpful and powerful tool for taxpayers looking to resolve their tax issues with the IRS. We have provided information on this resource in earlier submissions. (See Taxpayer Advocate Service: Not Just for Low-Income Taxpayers.)

Practice Point: For those who are having difficulties interacting with the IRS and unable to achieve reasonable or satisfactory responses or explanations, seeking assistance from TAS can go a long way in resolving tax issues. The process is free to taxpayers and starts with the filing of Form 911 with the appropriate TAS office. If you seek assistance in the near future, be mindful that TAS is currently flooded with requests for help but will work your case—if it meets the relevant criteria—as soon as possible. A dose of patience will be needed to work through this resource to obtain a successful resolution of your tax issue.




Extending the Statute of Limitations for Assessing Federal Tax

We previously provided an overview of the time limits imposed on the Internal Revenue Service (IRS) for assessing federal tax. The general rule is that the IRS must assess tax within three years from the later of the due date of the original tax return or the date it was filed. If the IRS does not assess tax during this period, it is foreclosed from doing so in the future. Note that the filing of an amended return does not restart or extend the limitations period. There are numerous exceptions to this rule, including if there is a substantial omission of income, fraud, failure to file a return, extension by agreement and failure to provide certain information regarding foreign transactions. We discussed many of these exceptions in Seeking Closure on Tax Positions: A Look at Tax Statutes of Limitation and Omitted Subpart F and GILTI Income May Be a Statute of Limitations Trap for the Unwary. Below, we discuss the rules and considerations for consenting to extending the time to assess federal tax.

Internal Revenue Code (Code) Section 6501(c)(4) provides that, except in the case of estate taxes, taxpayers (or their duly authorized representative) and the IRS may consent in writing to an extension of the limitations period for assessment. Importantly, such an agreement must be executed before the limitations period expires. In other words, assuming no other exception applies to the general three-year rule, an agreement to extend the limitations must be executed within the later of three years from the date the tax return was due or filed. If executed after that date, the consent is invalid. Thus, a late-filed consent cannot revive an otherwise closed limitations period. Under Code Section 6511(c), extending the statute of limitations on assessment also extends the period for filing a claim for credit or refund to six months after the expiration of the extended assessment period.

Form 872, Consent to Extend the Time to Assess Tax, is generally used to effectuate an agreed extension to a certain date, however, other versions of the form may be used for different types of taxpayers or issues (e.g., Form 872-M, Consent to Extend the Time to Make Partnership Adjustments, is used for partners subject to the centralized partnership audit regime under the Bipartisan Budget Act of 2015). Form 872-A, Special Consent to Extend the Time to Assess Tax, may be used to extend the limitations period for an indefinite period (referred to as an Open-Ended Consent). An Open-Ended Consent ends 90 days after the mailing by the IRS of written notification of termination or receipt by the IRS of written notification of termination from the taxpayer (both actions are accomplished through the use of Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax), or the mailing of a notice of deficiency. The IRS’s views on Open-Ended Consents are summarized in
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A Sit-Down with Andrew VanSingel

Andrew Roberson interviewed Andrew VanSingel, who dedicated his career to providing pro bono and public services to low-income taxpayers, for an American Bar Association Pro Bono Matters column. They discussed VanSingel’s work in the disaster relief area and at TAS, shared advice for young lawyers who want to get more involved in pro bono work and more.

Access the article.




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