TAX CONTROVERSY 360

IRS roundup: March 23 – March 31, 2026

by Kai M. Fenty | Apr 3, 2026 | Court Procedure Matters, IRS Audits, Significant Court Decision, Transfer Pricing Resource, Trial Courts

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for March 23, 2026 – March 31, 2026.

March 23, 2026: A US Treasury Inspector General for Tax Administration (TIGTA) report found that the IRS’s approach to auditing large partnerships has been ineffective due to resource constraints and inefficient selection processes, resulting in missed audit opportunities before the statute of limitations expired. The report highlighted delays caused by duplicative review steps, prompting TIGTA to recommend improvements to streamline procedures and better target high-risk partnerships.

March 30, 2026: The IRS released its annual Advance Pricing Agreement (APA) report for 2025, summarizing the operations of the Advance Pricing and Mutual Agreement Program and transfer pricing agreement trends. The report shows that 178 APA applications were filed and 110 APAs were executed in 2025, with 622 cases pending at year-end, reflecting continued demand for advance certainty in transfer pricing. Bilateral APAs remained the dominant category, and a significant portion of cases involved jurisdictions such as India (26%) and Japan (24%) for filings, with similar trends reflected in executed agreements.

The report further indicates that most APAs covered intercompany service transactions, and the comparable profits method/transactional net margin method was used in approximately 86% of cases involving tangible and intangible property, with the operating margin as the most common profit level indicator. The average time to complete an APA was approximately 44 months overall (about 50 months for new bilateral APAs), and the typical APA term averaged six years, often including rollback years to prior tax periods.

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

Recent court decisions

March 26, 2026: The Tax Court held that taxpayers involved in a micro-captive insurance arrangement were liable for a 40% accuracy-related penalty under Internal Revenue Code (Code) § 6662(i) because the transaction lacked economic substance and was not adequately disclosed. The Court analyzed economic substance within the meaning of Code § 7701(o). The Court found that the arrangement did not meaningfully change the taxpayers’ economic position, involved a circular flow of funds among related entities, and was undertaken primarily to obtain tax benefits.

The Court noted that a “circular flow of funds among related entities” may be a strong indication that a transaction lacks economic substance. The Court further emphasized that the taxpayers failed to satisfy the adequate disclosure requirements under Code § 6662(i)(2), judging that merely reporting an “insurance” deduction without providing details of the micro-captive structure was insufficient for alerting the IRS to the potential issue.

March 26, 2026: The Tax Court rejected a $180 million conservation easement deduction, finding that the partnership’s valuation exceeded the property’s actual value and imposing a 40% gross valuation misstatement penalty. The Court rejected the taxpayer’s income-based valuation, which it considered “inherently speculative and unreliable,” and instead relied on comparable sales to determine a substantially lower value.

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The Employee Retention Credit: Ninth Circuit affirms denial of injunction, but leaves door open on merits

by Akiva B. Ungar and Edward L. Froelich | Mar 27, 2026 | Appellate Courts, Court Procedure Matters, IRS Appeals, Significant Court Decision, Trial Courts

Case: ERC Today, LLC v. McInelly, Case No. 25-2642 (9th Cir. Mar. 17, 2026)

We previously discussed the US District Court for the District of Arizona’s April 2025 order denying a motion for a preliminary injunction filed by two tax preparation firms challenging the Internal Revenue Services’ (IRS) automated “risking” model for processing Employee Retention Credit (ERC) claims. The firms appealed, and on March 17, 2026, the US Court of Appeals for the Ninth Circuit affirmed the district court’s denial – but the way in which it did so warrants attention.

Standing, but not substance

The Ninth Circuit affirmed on the narrow ground that the tax preparation firms failed to demonstrate Article III standing. The Court found that the firms offered no evidence that they were making less money or spending more on representations because of the IRS’s processing approach. The Court also rejected claims of procedural and reputational injury, holding that IRS administrative procedures are designed to protect taxpayers, not the economic interests of third-party contingency fee firms.

Given the standing ruling, the Court did not address whether the IRS’s Disallowance During Processing program, which uses automated risk models to categorically disallow thousands of claims without individualized review, violates the Administrative Procedure Act or is otherwise unlawful. Those questions remain open. A challenge brought by a party with proper standing could reach those merits and might reveal the program to be infirm.

The future of taxpayer challenges

This decision comes as the IRS closes the book on ERC processing. In February 2026, the IRS announced it had closed all non-examined ERC claims as of December 31, 2025, meaning businesses whose claims were closed without payment must now pursue litigation to secure their refunds.

Unlike the tax preparation firms in ERC Today, taxpayers whose claims have been disallowed can engage the jurisdiction of a refund court under Internal Revenue Code Sections 6532 and 7422 and would have no standing issues. They would be better positioned to test the legality of the IRS’s automated processing procedures on the merits and should consider raising the argument in their complaint. As we have previously cautioned, however, taxpayers must remain vigilant about statutes of limitations: Administrative delay does not eliminate judicial deadlines, and a protest to the IRS Independent Office of Appeals does not suspend the two-year period under Section 6532(a) to file a refund suit.

IRS roundup: March 9 – March 25, 2026

by Kai M. Fenty, Matthew J. Blaney and Edward L. Froelich | Mar 26, 2026 | Court Procedure Matters, IRS Guidance, Significant Court Decision, Tax Reform, Trial Courts

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for March 9, 2026 – March 25, 2026.

AI controversy developments

March 20, 2026: The US Tax Court is considering developing a disciplinary framework for the misuse of artificial intelligence (AI) in litigation following concerns raised by Judge Mark V. Holmes regarding lawyers citing AI-generated, nonexistent cases. Judge Holmes indicated that the Court is proceeding cautiously given that a large share of its docket involves pro se taxpayers and emphasized the difficulty of crafting appropriate sanctions in that context. The discussion highlights broader concerns about hallucinated authorities, potential IRS misuse of AI, and the need to protect sensitive taxpayer information as the Court balances enforcement with legitimate AI uses.

IRS guidance

March 13, 2026: The IRS announced that the secretary of the US Department of the Treasury is no longer serving as acting IRS commissioner following the expiration of authority under the Federal Vacancies Reform Act of 1998. Chief Executive Officer Frank J. Bisignano is currently leading the IRS’s day-to-day operations.

March 16, 2026: The IRS issued Revenue Ruling 2026-11, updating the rules and technical specifications for substitute versions of Form 941, Form 8974, and related schedules, including Schedules B, D, and R. The guidance provides standards for paper and computer-generated substitutes used by software developers and payroll providers and supersedes prior guidance.

March 17, 2026: The IRS issued Notice 2026-19, providing updated interest rates for pension the corporate bond monthly yield curve, spot segment rates under Internal Revenue Code (Code) § 417(e)(3), and 24-month average segment rates under Code § 430(h)(2). The notice also includes the applicable 30-year Treasury rate for February 2026 (4.76%) and related weighted average rates.

March 18, 2026: The IRS issued Notice 2026-20, extending for one additional year the temporary relief provided by Notice 2025-7, which allows taxpayers to use alternative methods to identify which units of digital assets are sold, disposed of, or transferred when held with a broker. Under this relief, taxpayers may identify units on their own books and records, including through standing orders, rather than communicating with brokers. The notice clarifies that this does not prevent taxpayers from complying with § 1.1012-1(j)(3)(ii).

March 20, 2026: The IRS issued Revenue Procedure 2026-17, providing transition relief under Code § 163(j) that allows certain taxpayers to withdraw previously irrevocable elections to be treated as electing real property trades or businesses, electing farming businesses, or excepted regulated utility trades or businesses. The guidance also permits taxpayers withdrawing those elections to make a late election out of bonus depreciation, allows taxpayers to revoke or make controlled foreign corporation group elections without regard to the 60-month limitation, and permits eligible Bipartisan Budget Act of 2015 (BBA) partnerships to file amended Forms 1065 and issue amended Schedules K-1.

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

Recent court decisions

March 9, 2026: [...]

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AI platforms and privilege: Tax departments should be wary about what they share

by Susan E. Ryba and Matthew J. Blaney | Mar 23, 2026 | Court Procedure Matters, Privilege and Non-Disclosure, Significant Court Decision, Trial Courts
Today’s artificial intelligence (AI) platforms have shown impressive capabilities that keep evolving. As those capabilities improve, tax departments may be inclined to leverage AI’s analytical power. While this technology has led to incredible efficiencies, we’ve been warning in-house tax departments about which platforms they use and what information they share to avoid waiving privilege or creating documents that cannot be protected.

The US District Court for the Southern District of New York recently held that a criminal defendant’s communications with a publicly open AI platform were not protected by attorney-client privilege nor the work product doctrine. United States v. Heppner, No. 1:25-cr-00503-JSR (S.D.N.Y. Feb. 17, 2026).

In Heppner, the defendant transmitted confidential information to a public AI system and generated various documents that incorporated the information. The district court concluded that the documents created were not protected by attorney-client privilege nor the work product doctrine. The AI platform was a public and open system that did not provide confidentiality, the documents created by the AI platform were not prepared by or at the direction of counsel (in fact, counsel had no idea the client was using AI), and documents (regardless if created by AI or other means) can never be cloaked with privilege simply because they are later sent to a lawyer.

Practice point:

While the facts of Heppner are probably distinguishable from how tax departments typically use AI platforms, the case serves as a reminder for tax professionals to have good hygiene when using them. All in-house tax professionals should exercise caution when inputting confidential information into AI platforms and, where possible, rely on closed, internal AI systems that are only accessible by relevant persons within their corporation. Even then, Heppner makes clear that AI platforms are not lawyers, and disclosures of privileged information to such platforms risk waiving that privilege.

Given this risk, tax professionals should use great caution when using AI for sensitive legal issues. At a minimum:

Do not input any sensitive, confidential, or privileged information into publicly open AI systems.

Remember that AI is not a lawyer, so asking AI legal questions is not the same as asking a lawyer for legal advice.

For tax issues that are likely to result in a contentious audit or litigation, work with in-house or outside counsel to establish best practices on AI use to maximize attorney-client privilege and work product protection.

Is your ERC claim protected? Keep an eye on litigation deadlines

by Akiva B. Ungar, Samuel F. Hamer and Edward L. Froelich | Mar 13, 2026 | Court Procedure Matters, IRS Appeals, IRS Guidance, Tax Refunds, Trial Courts
In February 2026, the Internal Revenue Service (IRS) announced that, as of December 31, 2025, it had closed all non-examined Employee Retention Credit (ERC) claims. This development could compel businesses to pursue litigation to secure their ERC refunds. In its announcement, the IRS also noted that approximately 41,000 claims remain under IRS examination or appeal.

The IRS’s announcement brings renewed focus to a risk we have been highlighting for some time: Statutes of limitation can quietly extinguish otherwise valid refund claims. As discussed in our article in Bloomberg on how to litigate and resolve ERC claims, administrative delay does not eliminate judicial deadlines. For taxpayers whose claims have been formally disallowed, Internal Revenue Code Section 6532(a) provides only two years to file a refund suit. A protest to the IRS Independent Office of Appeals (IRS Appeals) does not suspend that deadline. Without filing suit or obtaining a written extension (Form 907), the right to a refund can be permanently lost.

For taxpayers with ERC claims that are pending without action (i.e., those described in the IRS’s announcement), the statute of limitations analysis is more complex. Some courts have dismissed taxpayer suits that were filed more than six and a half years from the time the claim arose.[1] Under the logic of these cases, there may be a six-and-a-half-year limit in effect from the date a refund claim is filed – the six months a taxpayer must wait before filing a refund suit plus six years during which the government is susceptible to suit under a general statute of limitations on civil claims against the government (31 U.S.C. § 3702(b)). For ERC claims submitted in 2020, the end of this possibly applicable six-and-a-half-year period is quickly approaching. To the extent a court will apply this limitation, a taxpayer with an ERC refund claim may be barred from suit even without a formal disallowance by the IRS.

The message for businesses is consistent with our earlier guidance: Protecting the right to an ERC refund requires a proactive strategy. Taxpayers must identify which limitations periods apply to their claims, manage calendar critical deadlines, and evaluate whether protective litigation is necessary to preserve their potential refunds. Businesses facing challenged, delayed, or disallowed ERC claims should evaluate their statute posture urgently. Our tax controversy & litigation team continues to advise clients on navigating ERC audits, IRS Appeals proceedings, and refund litigation to ensure procedural missteps do not foreclose recovery.

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[1] See Wagenet v. United States, No. CV 08-01234, 2009 WL 4895363, at *5 (C.D. Cal. Sept. 14, 2009) (dismissing tax refund action as filed outside the six-year statute). See also Bowman Transp., Inc. v. United States, 220 Ct. Cl. 36, 40–41 (1979) (interpreting 28 U.S.C. § 2501 and explaining that “[d]espite the fact that the carrier has only two years from the date on which the refund claim is expressly disallowed or apparently the regular six-year period of limitations contained in 28 U.S.C. § [...]

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RECENT POSTS

IRS roundup: March 23 – March 31, 2026

The Employee Retention Credit: Ninth Circuit affirms denial of injunction, but leaves door open on merits

IRS roundup: March 9 – March 25, 2026

AI platforms and privilege: Tax departments should be wary about what they share

Is your ERC claim protected? Keep an eye on litigation deadlines