Code section 883(c)(1) Archives - TAX CONTROVERSY 360

Recent Developments in US Federal Income Tax Litigation

Summer is winding down and fall is approaching. Here are a few of the significant tax cases from the last few weeks.

Tax Court

YA Global Investments, LP v. Commissioner, 151 TC No. 2 (Aug. 8, 2018): The Tax Court held that withholding tax liability on effectively connected income of foreign partners is a partnership liability that constitutes a partnership item. The Tax Court has jurisdiction over the issue in a partnership-level proceeding.
Illinois Tool Works Inc. & Subsidiaries v. Commissioner, TC Memo 2018-121 (Aug. 6, 2018): The Tax Court held that intercompany loans constituted bona fide debt for US federal income tax purposes.
Becnel v. Commissioner, TC Memo. 2018-120 (Aug. 2, 2018): The Tax Court holds that a property developer’s yacht related expenses are non-deductible entertainment facility expenses under Code section 274.
Kane v. Commissioner, TC Memo. 2018-122 (Aug. 6, 2018): Code section 6672 trust fund recovery penalties were imposed on a third-party vendor that performed bookkeeping services and held signature authority over certain accounts for a taxpayer delinquent on employment taxes. The Tax Court found that a collection officer did not abuse their discretion in denying a collection alternative during the collection due process proceeding, particularly when the taxpayer failed to submit an offer in compromise and already disputed the merits of the penalty during the appeals process.

DC Circuit Reverses Tax Court and Holds Section 883 Regulations Invalid under Chevron Test

On March 28, 2017, the US Tax Court (Tax Court) issued its opinion in Good Fortune Shipping SA v. Commissioner, 148 T.C. No. 10, upholding the validity of Treas. Reg. § 1.883-4. The taxpayer had challenged the validity of the regulation’s provision that stock in the form of “bearer shares” cannot be counted for purposes of determining the more-than-50-percent ownership test under Internal Revenue Code (Code) section 883(c)(1), but the Tax Court held that the regulation was valid under the two-step analysis of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), and applied it in ruling for the Internal Revenue Service (IRS). We previously discussed the Tax Court’s opinion here. The taxpayer appealed the Tax Court’s decision to the US Court of Appeals for the District of Columbia Circuit (DC Circuit).

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