TAX CONTROVERSY 360

IRS Roundup January 13 – 17, 2025

by Evan Walters, Samuel F. Hamer, Edward L. Froelich and Michael J. Scarduzio | Feb 4, 2025 | Alternative Dispute Resolution, IRS Appeals, IRS Guidance, Tax Reform

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of January 13, 2025 – January 17, 2025.

TAX CONTROVERSY-RELATED DEVELOPMENTS

January 15, 2025: The US Department of the Treasury (Treasury) and the IRS published final regulations, providing guidance on the resolution of federal tax controversies by the IRS Independent Office of Appeals (IRS Appeals). These final regulations are applicable to requests for IRS Appeals consideration made on or after February 14, 2025.

The Taxpayer First Act of 2019 (TFA) codified IRS Appeals and prescribed that its consideration should be “generally available to all taxpayers” who wished to resolve their federal tax controversies. Proposed regulations published on September 13, 2022, identified 24 exceptions to the term “federal tax controversy.” These exceptions preclude IRS Appeals from considering taxpayer challenges to the constitutionality of statutes and the validity of regulations, as well as the procedural validity of notices and revenue procedures. During the comment period for the proposed regulations, the exceptions regarding statutory/regulatory challenges were the focus of most public comments by far. However, the exceptions were left almost entirely unchanged in the final version of the regulations.

Practice Point: Because the TFA prescribes that IRS Appeals consideration should be “generally available to all taxpayers,” we expect judicial challenges to the validity of the final regulations on Administrative Procedure Act and substantive grounds. In the interim taxpayers should continue asserting their arguments challenging the validity of deficient guidance on constitutional or other grounds.

Relatedly, the IRS issued Announcement 2025-6, which describes three pilot initiatives that will test changes to existing Alternative Dispute Resolution programs. These programs are designed to help taxpayers resolve tax disputes earlier and more efficiently. The pilots focus on Fast Track Settlement, a program that allows IRS Appeals to mediate disputes between a taxpayer and the IRS while the case is still within the jurisdiction of the examination function, and Post-Appeals Mediation, a program in which a mediator helps foster a settlement between IRS Appeals and the taxpayer.

CLEAN ENERGY-RELATED DEVELOPMENTS

January 14, 2025: The Treasury and the IRS published final regulations regarding the clean electricity production credit under Internal Revenue Code (Code) Section 45Y and the clean electricity investment credit under Code Section 48E, established by the Inflation Reduction Act of 2022 (IRA). These final regulations provide rules for determining greenhouse gas emissions rates resulting from the production of electricity, petitioning for provisional emissions rates, and determining eligibility for these credits in various circumstances. The final regulations affect all taxpayers who claim the clean electricity production credit with respect to a qualified facility or the clean electricity investment credit with respect to a qualified facility or energy storage technology, as applicable, that is placed in service after 2024.

January 15, 2025: The IRS issued Notice 2025-9, which provides a safe harbor for the incremental cost of certain qualified commercial clean vehicles placed in service in calendar year [...]

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DOJ Announces Largest Employee Retention Credit Fraud Indictment

by Michael J. Scarduzio, Samuel F. Hamer and Edward L. Froelich | Jan 28, 2025 | Uncategorized

On January 22, 2025, the US Department of Justice (DOJ) announced the indictment of seven individuals in the largest Employee Retention Credit (ERC) fraud scheme to date. According to the indictment, the defendants filed more than 8,000 refund claims for ERCs and Sick and Family Leave Credits (SFLCs), totaling more than $600 million.

The ERC and SFLC programs were designed to help businesses retain employees on the payroll during the COVID-19 pandemic. Prosecutors allege that the defendants exploited these programs by submitting fraudulent claims on behalf of ineligible businesses, inflating employee numbers, and misrepresenting wages. DOJ asserted that the defendants concealed their involvement by not identifying themselves as preparers on the returns, using virtual private networks and through other means.

Practice Point: DOJ’s announcement makes clear that ERC fraud remains an enforcement priority for 2025. Taxpayers and tax professionals should prepare now to defend their ERC claims, including by compiling and maintaining substantiation to support each claim, and be ready to take immediate steps should they receive an IRS audit notice, a request for documentation or information, or are otherwise contacted by the government.

IRS Roundup January 6 – 10, 2025

by Evan Walters, Samuel F. Hamer, Edward L. Froelich and Michael J. Scarduzio | Jan 22, 2025 | IRS Audits, IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of January 6, 2025 – January 10, 2025.

January 6, 2025: The IRS released Internal Revenue Bulletin 2025-2, which includes Announcement 2025-2. The announcement states that, if finalized, certain portions of proposed regulations on required minimum distributions under Section 401(a)(9) of the Internal Revenue Code (Code) will not apply before the 2026 distribution calendar year.

January 7, 2025: The IRS reminded taxpayers that final 2024 quarterly estimated tax payments are due January 15, 2025.

January 7, 2025: The IRS announced that the IRS Free File Guided Tax Software is now available through eight private-sector partners for taxpayers with adjusted gross income of $84,000 or less in 2024. One partner will offer a product in Spanish.

January 7, 2025: The IRS reminded taxpayers that IRS-certified volunteers are available to help qualified individuals file federal tax returns. Taxpayers can also sign up to volunteer with the Volunteer Income Tax Assistance or Tax Counseling for the Elderly programs.

January 8, 2025: National Taxpayer Advocate (NTA) Erin M. Collins released her 2024 Annual Report to Congress. The report identifies the 10 most serious problems involving taxpayers’ interactions with the IRS and makes administrative and legislative recommendations to address said problems. NTA Collins found overall improvement in the IRS’ service to taxpayers but also acknowledged persistent challenges, including delays in processing Employee Retention Credit claims and resolving Identity Theft Victim Assistance cases.

January 8, 2025: The IRS issued Revenue Ruling 2025-3, which addresses whether Section 530 of the Revenue Act of 1978, Pub. L. No. 95-600, as amended (Section 530) (addressing controversies involving whether individuals are employees for purposes of employment taxes), or the reduced rates of Code Section 3509 apply in five factual situations articulated in the ruling. The ruling also addresses whether the IRS will issue a notice of employment tax determination under Code Section 7436 in these same five situations.

The IRS also issued Revenue Procedure 2025-10 to provide updated guidance regarding the implementation of Section 530.

January 8, 2025: The IRS issued Revenue Procedure 2025-11, which provides the process under Code Section 48E(h) to apply for an allocation of capacity limitation as part of the Clean Electricity Low-Income Communities Bonus Credit Amount Program for 2025 and subsequent years. Receipt of an allocation increases the amount of the clean electricity investment credit determined under Section 48E(a) for the taxable year in which the applicable facility, with which the allocation of capacity limitation is associated, is placed in service. The revenue procedure provides guidance regarding the application process, including application review, documentation requirements, and placed in service reporting requirements. It also provides information on requirements specific to the Additional Selection Criteria application options, including documentation submission requirements, and describes how the capacity limitation will be divided across the facility categories.

January 10, 2025: The [...]

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Weekly IRS Roundup December 30, 2024 – January 3, 2025

by Kevin Spencer, Evan Walters and Samuel F. Hamer | Jan 13, 2025 | IRS Guidance, Tax Reform, Tax Refunds

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of December 30, 2024 – January 3, 2025.

December 30, 2024: The IRS released Internal Revenue Bulletin 2025-1, which includes the following:

Revenue Procedure 2025-1, which contains the revised procedures for letter rulings and information letters issued by the different associate chief counsel offices. This revenue procedure also contains the revised procedures for determination letters issued by the Large Business and International Division, the Small Business/Self-Employed Division, the Wage and Investment Division, and the Tax Exempt and Government Entities (TE/GE) Division.
Revenue Procedure 2025-2, which explains when and how associate chief counsel offices should provide advice in technical advice memoranda (TAM) as well as taxpayers’ rights when a field office requests a TAM.
Revenue Procedure 2025-3, which provides a revised list of Internal Revenue Code (Code) areas under the jurisdiction of the following associate chief counsel offices: Corporate; Financial Institutions and Products; Income Tax and Accounting; Passthroughs and Special Industries; Procedure and Administration; and Employee Benefits, Exempt Organizations, and Employment Taxes. These relate to matters in which the IRS will not issue letter rulings or determination letters.
Revenue Procedure 2025-4, which provides guidance on the types of advice the IRS offers to taxpayers on issues under the jurisdiction of the IRS Commissioner, TE/GE Division, and Employee Plans Rulings and Agreements. It also details the procedures that apply to requests for determination letters and private letter rulings.
Revenue Procedure 2025-5, which provides the procedures for issuing determination letters on issues under the jurisdiction of the Exempt Organizations Rulings and Agreements. It also explains the procedures for issuing determination letters on tax-exempt statuses for organizations applying under Code Section 501 or 521, private foundation status, and other determinations related to tax-exempt organizations. Additionally, the revenue procedure applies to revocation or modification of determination letters and provides guidance on the exhaustion of administrative remedies for purposes of declaratory judgment under Code Section 7428.
Revenue Procedure 2025-7, which provides the areas under the jurisdiction of the associate chief counsel (international) in which letter rulings and determination letters will not be issued.

December 30, 2024: The IRS published Treasury Decision 10018, which contains final regulations regarding the filing of consolidated returns by affiliated corporations. They modify the consolidated return regulations to reflect statutory changes, update language to remove antiquated or regressive terminology, and enhance clarity. The IRS separately issued proposed regulations under which a transferee’s assumption of certain liabilities from a member of the same consolidated group will not reduce the transferor’s basis in the transferee’s stock received in the transfer.

December 30, 2024: The IRS published final regulations clarifying when tax-exempt bonds are considered retired for federal income tax purposes under Code Section 103. The regulations affect state and local governments issuing tax-exempt bonds [...]

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Weekly IRS Roundup December 23 – December 27, 2024

by Kevin Spencer, Evan Walters and Samuel F. Hamer | Jan 9, 2025 | IRS Guidance, Tax Reform

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of December 23, 2024 – December 27, 2024.

December 23, 2024: The IRS released Internal Revenue Bulletin 2024-52, which includes the following:

Treasury Decision 10015: These final regulations update the previous regulations under Section 48 of the Internal Revenue Code (Code), which provides for an investment tax credit for energy property (energy credit), and respond to changes made by the Inflation Reduction Act of 2022 (IRA).
- The final regulations update the types of energy property eligible for the energy credit, including additional types of energy property added by the IRA; clarify the application of new credit transfer rules to recapture because of failure to satisfy the prevailing wage requirements, including notification requirements for eligible taxpayers; and include qualified interconnection costs in the basis of certain lower-output energy properties.
- The final regulations also provide rules generally applicable to energy property, such as rules regarding functionally interdependent components, property that is an integral part of an energy property, application of the “80/20 rule” to retrofitted energy property, dual use property, ownership of components of an energy property, energy property that may be eligible for multiple federal income tax credits, and the election to treat qualified facilities eligible for the renewable electricity production credit under Code Section 45 as property eligible for the energy credit.
Notice 2024-82, which sets forth the 2024 Required Amendments List. The list applies to both individually designed plans under Code Section 401(a) and individually designed plans that satisfy the requirements of Code Section 403(b).
Notice 2024-86, which announces the extension of certain timeframes under the Employee Retirement Income Security Act of 1974 and the Code for group health plans; disability and other welfare plans; pension plans; and participants, beneficiaries, qualified beneficiaries, and claimants of these plans affected by Hurricane Helene, Tropical Storm Helene, or Hurricane Milton.
Revenue Procedure 2024-42, which updates the list of jurisdictions with which the United States has in effect a relevant information exchange agreement or an automatic exchange relationship under Treasury Regulation §§ 1.6049-4(b)(5) and 1.6049-8(a).
Announcement 2024-42, which provides a copy of the competent authority arrangement entered into by the competent authorities of the US and the Kingdom of Norway under paragraph 2 of Article 27 (Mutual Agreement Procedure) of the Convention between the US and Norway for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Property, signed on December 3, 1971.
The IRS issued a notice of proposed rulemaking, setting forth proposed regulations related to the definition of “qualified nonpersonal use vehicles.” Qualified nonpersonal use vehicles are excepted from the substantiation requirements that apply to certain listed property. The proposed regulations add unmarked vehicles used by firefighters or members of a rescue squad or ambulance crew as a new [...]

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