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TAX CONTROVERSY 360
McDermott’s Real-Time Tax Disputes Insights
TAX CONTROVERSY 360
McDermott’s Real-Time Tax Disputes Insights
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Weekly IRS Roundup April 3 – April 7, 2023

by | Apr 10, 2023 | , ,

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of April 3, 2023 – April 7, 2023.

April 3, 2023: The IRS released Internal Revenue Bulletin 2023-14, which highlights the following:

  • Notice 2023-25: This notice provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates and the 24-month average segment rates. It also provides guidance as to the interest rate on 30-year Treasury securities as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate.
  • Revenue Ruling 23-6: This revenue ruling provides the applicable federal rates for federal income tax purposes for April 2023. The annual short-term rate is 3.67%, the mid-term rate is 3.14% and the long-term rate is 3.04%.

April 3, 2023: The IRS released Notice 2023-31, announcing an Extension of the Transition Period for the Single-Country Exception Under Section 903.

April 3, 2023: The IRS announced special Saturday hours at Taxpayer Assistance Centers. The final Saturday opening will be May 13, 2023, from 9:00 am to 4:00 pm.

April 3, 2023: The IRS released the last entry in its Dirty Dozen campaign, cautioning taxpayers to beware of promoters peddling bogus tax schemes aimed at reducing or avoiding taxes.

April 3, 2023: The IRS announced that Arkansas storm victims now have until July 31, 2023, to file various federal individual and business tax returns and make tax payments as a result of storms that occurred on March 31, 2023. Relief is available to anyone in an area designated by the Federal Emergency Management Agency as qualifying for individual or public assistance. The current list of eligible localities is available here.

April 3, 2023: The IRS reminded taxpayers that tax credits are available for a portion of the qualifying expenses related to energy improvements to their homes. Taxpayers can claim either the Energy Efficient Home Improvement Credit or the Residential Energy Clean Property Credit for the year when qualifying improvements are made.

April 3, 2023: The IRS released Tax Tip 2023-43, reminding taxpayers that IRS.gov has tax information in seven languages: Spanish, Chinese Traditional, Chinese Simplified, Korean, Russian, Vietnamese and Haitian Creole.

April 4, 2023: The IRS released Revenue Procedure 2023-12, which updates the procedures for exempt organizations determination letters with respect to the electronically submitted Form 8940, Request for Miscellaneous Determination. This modification to Revenue Procedure 2023-5 provides that the electronic submission process is the exclusive means of submitting a completed Form 8940, except for submissions eligible for the 90-day transition relief.

April 4, 2023: The IRS announced guidance related to the eligibility requirement for energy communities for the bonus credit program under the Inflation Reduction Act of 2022 (IRA). Notice 2023-29 describes certain [...]

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Tax Court Rules That the IRS Cannot Assess or Collect Certain Tax Penalties

by , and | Apr 5, 2023 | , , ,

On April 3, 2023, the US Tax Court issued its opinion in Farhy v. Commissioner, ruling that the Internal Revenue Service (IRS) could neither assess tax penalties under Internal Revenue Code (Code) Section 6038(b) against Alon Farhy nor collect those penalties via a levy.

This is a significant development because the IRS automatically assesses these penalties on any late-filed Form 5471, Information Return of US Persons with Respect to Certain Foreign Corporations. This practice will presumably be immediately ceased. Moreover, any taxpayer who was assessed and paid a penalty on a late-filed Form 5471 may be able to obtain a refund on the penalty paid.

Farhy had failed to file Form 5471 with his US federal income tax return. Failure to timely file Form 5471 comes with a civil tax penalty of $10,000 for each year. (See IRC Section 6038(b)(1).) If the IRS sends the taxpayer notice of its failure to file Form 5471, the taxpayer has 90 days after the notice is mailed to comply with the filing requirement. Failure to comply within the 90-day period subjects the taxpayer to an additional penalty of $10,000 for each 30-day period, with a $50,000 maximum. (See IRC Section 6038(b)(2).)

Code Section 6201(a) permits the IRS to “assess” taxes and assessable penalties. Assessment is the act of formally recording a tax liability on the IRS’s records for a taxpayer. After assessment and failure to pay, the IRS can enforce the collection of tax, penalties and interest by asserting a lien on property or by levying (taking) property.

The Code provides statutes that permit the IRS to assess taxes (including interest, additional amounts and additions to tax) and certain types of penalties (assessable penalties). In Farhy, the Tax Court held that the Code does not contain any statute that permits the IRS to assess the penalty provided in Code Section 6038(b). As such, although the IRS correctly determined that Farhy should be penalized for failing to file Form 5471 with his return, the IRS lacked the statutory ability under the Code to assess and collect the penalty under traditional assessment and collection procedures that they use for other penalties (essentially treated similar to deemed taxes).

The Tax Court did note that the government had other tools at its disposal to collect the penalties, for example, 28 U.S.C. § 2461(a): “Whenever a civil fine, penalty or pecuniary forfeiture is prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof, it may be recovered in a civil action.”

Practice Point: Farhy is a major taxpayer victory and demonstrates that a technical deficiency in the Code can have substantial ramifications for the administration of our tax laws and the potential collection of penalties relating to violations thereof. Clearly, Congress intended to permit the IRS the ability to collect the penalties determined under the Code but failing to connect Code Section 6038(b) with the statutory provisions to assess tax and penalties makes the IRS unable to practically and efficiently collect said penalties. We expect (and are [...]

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Weekly IRS Roundup March 20 – March 24, 2023

by | Mar 27, 2023 | , ,

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 20, 2023 – March 24, 2023.

March 20, 2023: The IRS released Internal Revenue Bulletin 2023-12, which highlights the following:

  • Notice 2023-22: This notice advises state and local housing credit agencies that allocate low-income housing tax credits under Section 42, as well as states and other issuers of tax-exempt private activity bonds under Section 141, of the population figures to use in calculating the (1) state housing credit ceiling under Section 42(h), (2) private activity bond volume cap under Section 146 and (3) private activity bond volume limit under Section 142(k).

March 20, 2023: The IRS announced tips to avoid processing delays and refund adjustments as the April 18, filing deadline approaches. The tips include gathering all tax documents, filing electronically, using the correct filing status, double-checking names and social security numbers, answering the digital assets question and reporting all taxable income.

March 20, 2023: The IRS announced a new entry into the annual Dirty Dozen list of tax scams: promoter claims involving the Employee Retention Credit (ERC). Some third parties continue to widely advertise services that target taxpayers who may not be eligible for the ERC. The advertisements, along with the increased prevalence of websites touting how easy it is to qualify for the ERC, suggest that the abusive claims may be legitimate. The annual list of schemes is aimed at raising awareness of aggressive promoters and con artists. These schemes put people at financial risk and increase the chances of identity theft.

March 20, 2023: The IRS released Tax Tip 2023-35, providing options for taxpayers who cannot pay their tax bill by April 18. The IRS also reminded taxpayers to still file their tax returns even if they cannot pay to avoid a failure-to-file penalty.

March 21, 2023: The IRS announced that it is requesting feedback regarding the tax treatment of a non-fungible token (NFT) as a collectible under the tax law in Notice 2023-27. An NFT is a unique digital identifier that is recorded using distributed ledger technology and may be used to certify the authenticity and ownership of an associated right or asset. The guidance also requests comments on the treatment of NFTs as collectibles and describes how the IRS intends to determine whether an NFT is a collectible until further guidance is issued.

March 21, 2023: The IRS issued proposed regulations that provide guidance on the implementation of the Advanced Manufacturing Investment Credit, established by the Creating Helpful Incentives to Produce Semiconductors Act of 2022 (CHIPS Act). The credit incentivizes the manufacture of semiconductors and semiconductor manufacturing equipment within the United States.

March 21, 2023: The IRS cautioned taxpayers to watch out for scammers using email and text messages to [...]

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Weekly IRS Roundup March 13 – March 17, 2023

by | Mar 20, 2023 | , ,

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of March 13, 2023 – March 17, 2023.

March 13, 2023: The IRS released Internal Revenue Bulletin 2023-11, which highlights the following:

  • Notice 2023-21: This notice postpones the beginning of the lookback periods under Section 6511 for certain taxpayers to file a claim for refund. Affected taxpayers include those who had tax returns due from April 15, 2020 to July 15, 2020, or from April 15, 2021 to May 17, 2021, and due to the COVID-19 pandemic, those due dates were postponed by Notice 2020-23 or Notice 2021-21 to July 15, 2020 or May 17, 2021, respectively.
  • Treasury Decision 9972: These final regulations amend the rules for filing certain returns and statements electronically to reflect changes made by the Taxpayer First Act of 2019 and to promote electronic filing.
  • Notice 2023-19: This notice provides guidance on the corporate bond monthly yield curve, corresponding spot segment rates and the 24-month average segment rates for February 2023. The notice also provides guidance as to interest rates on 30-year Treasury securities and 30-year Treasury weighted average rates.
  • REG 122286-18: These proposed regulations provide rules relating to the use of forfeitures in qualified retirement plans, including a deadline for the use of forfeitures in defined contribution plans, and clarify that forfeitures arising in any defined contribution plan may be used for one or more of the following purposes, as specified in the plan, to (1) pay plan administrative expenses, (2) reduce employer contributions under the plan or (3) increase benefits in other participants’ accounts in accordance with plan terms.
  • Action on Decision 2023-2: The IRS announced nonacquiescence to the US Tax Court’s decision in Complex Media, Inc. v. Commissioner, T.C. Memo. 2021-14, that the parties’ failure to report transactions fully or consistently should not be a major factor in a decision of whether to allow a taxpayer to disavow the form of its transactions and to the standard the Court applied to allow a petitioner to disavow its form. The IRS also announced nonacquiescence to the court’s determination that the fair market value of a “Deferred Payment Right” for purposes of Section 351(b)(1) is not equal to its issue price.
  • Treasury Decision 9973: This document contains final regulations that treat members of a consolidated group as a single US shareholder in certain cases for purposes of Section 951(a)(2)(B). The final regulations affect consolidated groups that own stock of foreign corporations.

March 13, 2023: The IRS announced that Danny Werfel began work as the 50th Commissioner of the IRS. Werfel was confirmed by the US Senate on March 9, 2023, and his term will run through November 12, 2027. You can read more about his confirmation
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Weekly IRS Roundup February 20 – February 24, 2023

by | Feb 27, 2023 | , ,

Check out our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 20, 2023 – February 24, 2023.

February 21, 2023: The IRS released Internal Revenue Bulletin 2023-8, which highlights the following:

  • Notice 2023-16: This notice modifies the definition of certain vehicle classifications by changing the standard by which vans, sport utility vehicles, pickup trucks and other vehicles are defined for purposes of the clean vehicle credit under Section 30D.

February 21, 2023: The IRS and the US Department of the Treasury (Treasury) announced final regulations on e-file for businesses. Treasury Decision 9972 affects filers of partnership returns, corporate income tax returns, unrelated business income tax returns, withholding tax returns, certain information returns, registration statements, disclosure statements, notifications, actuarial reports and certain excise tax returns. Specifically, the final regulations:

  • Reduce the 250-return threshold enacted in prior regulations to generally require electronic filing by filers of 10 or more returns in a calendar year
  • Require filers to aggregate almost all information return types covered by the regulation to determine whether a filer meets the 10-return threshold and is required to e-file their information returns
  • Eliminate the e-filing exception for income tax returns of corporations that report total assets under $10 million at the end of their taxable year
  • Require partnerships with more than 100 partners to e-file information returns. They must also file at least 10 returns of any type during the calendar year to e-file their partnership return.

February 21, 2023: The IRS released Tax Tip 2023-22, providing additional information on the Credit for Other Dependents, which is available to taxpayers who do not qualify for the Child Tax Credit. Taxpayers can claim this credit in addition to the Child and Dependent Care Credit and the Earned Income Credit.

February 22, 2023: The IRS released Notice 2023-19, which provides guidance on the corporate bond monthly yield curve and corresponding spot segment rates and the 24-month average segment rates for February 2023. The notice also provides guidance as to interest rates on 30-year Treasury securities and 30-year Treasury weighted average rates.

February 22, 2023: The IRS reminded taxpayers to gather the necessary information and visit IRS.gov for updated resources that will help with filing their 2022 tax return. The announcement is part of a series called the Tax Time Guide, a resource to help taxpayers file an accurate return.

February 22, 2023: The IRS released Notice 2023-18, which provides initial guidance on establishing a qualifying advanced energy project credit allocation program under Section 48C(e). The goal of the program is to expand US manufacturing capacity and quality jobs for clean energy technologies (including production and recycling), reduce greenhouse gas emissions in the US industrial sector, and secure domestic supply chains for critical materials (including specified critical minerals) that serve as inputs for [...]

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Weekly IRS Roundup February 13 – February 17, 2023

by | Feb 21, 2023 | , ,

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 13, 2023 – February 17, 2023.

February 13, 2023: The IRS released Internal Revenue Bulletin 2023-7, which highlights the following:

  • Revenue Procedure 2023-9: This procedure provides new rules and conditions for implementing the optional safe harbor method of accounting for real estate developers to determine when common improvement costs may be included in the basis of individual units of real property in a real property development project held for sale to determine the gain or loss from sales of those units (the Alternative Cost Method).

February 13, 2023: The IRS announced that interest rates will remain the same for the second quarter of 2023. As of April 1, 2023, the rates will be as follows:

  • Overpayments: 7%
  • Overpayments for corporations: 6%
  • Corporate overpayments for portion exceeding $10,000: 4.5%
  • Underpayments: 7%
  • Large corporate underpayments: 9%

Revenue Ruling 2023-4 contains the complete explanation of the calculations.

February 13, 2023: The IRS announced a new pilot phase for the Compliance Assurance Process (CAP) program called “Bridge Plus.” CAP is a cooperative pre-filing program for large corporate taxpayers. Taxpayers will be required to provide book-to-tax reconciliations, credit utilization and other supporting documentation shortly after their audited financial statement is finalized. An IRS team will then risk-assess the documents to determine if the taxpayer is suitable for the “Bridge Plus” phase.

February 13, 2023: The US Department of the Treasury (Treasury) and the IRS announced guidance to establish a program that would provide solar and wind power to certain low-income areas under the Inflation Reduction Act of 2022. Notice 2023-17 establishes the Low-Income Communities Bonus Credit Program and provides initial guidance for potential applicants for allocations of calendar year 2023 capacity limitation.

February 13, 2023: The IRS and the Treasury announced guidance on the Qualifying Advanced Energy Product Credit. Notice 2023-18 establishes the Section 48C(e) program to allocate $10 billion in credits ($4 billion of which may only be allocated to projects located in certain energy communities census tracts). The notice also provides initial program guidance. The goal of the program is to expand US manufacturing capacity and quality jobs for clean energy technologies (including production and recycling), reduce greenhouse gas emissions in the US industrial sector and secure domestic supply chains for critical materials (including specified critical minerals) that serve as inputs for clean energy technology production.

February 13, 2023: The IRS released Tax Tip 2023-18, reminding people that the Earned Income Tax Credit is a major tax benefit for millions of low- and moderate-income workers. Taxpayers can check their eligibility and how much they qualify for here.

February 14, 2023: The IRS released Tax Tip 2023-19, providing resources and suggestions for choosing [...]

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Weekly IRS Roundup February 6 – February 10, 2023

by | Feb 13, 2023 | , ,

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 6, 2023 – February 10, 2023.

February 6, 2023: The IRS released Internal Revenue Bulletin 2023-6, which highlights the following:

  • Notice 2023-12: This notice provides updates on the corporate bond monthly yield curve and corresponding spot segment rates and the 24-month average segment rates for January 2023. The notice also provides guidance as to interest rates on 30-year Treasury securities and 30-year Treasury weighted average rates.
  • Notice 2023-13: This notice sets forth a proposed revenue procedure establishing the Service Industry Tip Compliance Agreement (SITCA) program. SITCA is a voluntary tip reporting program between the IRS and employers in the service industry that is designed to enhance tax compliance through the use of agreements instead of traditional audit techniques.
  • Revenue Procedure 2023-14: This guidance provides the tables of limitations on depreciation deductions for owners of passenger automobiles placed in during calendar year 2023 and the table dollar amounts that must be used to determine income inclusions by lessees of passenger automobiles with a lease term beginning in calendar year 2023.
  • Revenue Ruling 2023-3: This revenue ruling provides the applicable federal rates for federal income tax purposes for February 2023. The short-term federal interest rate is 4.47%, the mid-term is 3.82% and the long-term rate is 3.86%.

February 6, 2023: The IRS released Tax Tip 2023-14, highlighting the Taxpayer Bill of Rights, which include the Right to be Informed. Taxpayers have the right to know what they need to do to comply with the tax laws.

February 6, 2023: The IRS and the US Department of the Treasury (Treasury) announced a new program for service industry tip reporting. The proposed SITCA program is designed to take advantage of advancements in point-of-sale, time and attendance systems, and electronic payment settlement methods to improve tip reporting compliance. The proposed program would also decrease taxpayer and IRS administrative burdens and provide more transparency and certainty to taxpayers.

February 6, 2023: The IRS announced special Saturday hours for the next four months at Taxpayer Assistance Centers across the country. The Saturday hours will take place on February 11, March 11, April 8 and May 13 from 9:00 am to 4:00 pm.

February 7, 2023: The IRS released Tax Tip 2023-15, providing information to help business travelers properly claim travel business deductions.

February 8, 2023: The IRS released Announcement 2023-6, which notifies the public that it intends to issue opinion letters by February 28, 2023, for preapproved defined benefit plans that were updated for changes in plan qualification requirements and filed with the IRS during the third six-year remedial amendment cycle. This announcement also notifies the public of the date by which an adopting employer [...]

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