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It’s Official: President Biden Signs the Inflation Reduction Act into Law, IRS to Receive Increased Funding

by Kevin Spencer and McDermott Will & Emery | Aug 17, 2022 | IRS Audits, IRS Guidance, Tax Reform

On August 16, 2022, US President Joe Biden signed into law the Inflation Reduction Act of 2022 (Act). A press release from the White House touts the Act as one that will “lower the costs for families, combat the climate crisis, reduce the deficit, and finally ask for the largest corporations to pay their fair share.” The press release provides a numerical summary of the Act’s impact on the healthcare, clean energy and tax sectors.

As we previously discussed, the Act provides for a significant increase in funding for the Internal Revenue Service (IRS). IRS Commissioner Chuck Rettig shared the following written statement regarding the Act:

The signing of the historic reconciliation package marks a transformational moment for our agency—and an opportunity for the future of tax administration. The IRS has struggled for many years with insufficient resources to fulfill our important mission. During the next 10 years, these funds will help us in many areas, including adding critical resources to not just close the tax gap but meaningfully improve taxpayer service and technology. This will allow the IRS to provide services to taxpayers in the manner they expect and deserve. The act also includes a wide range of tax law changes that we will have to implement very quickly.

Given the scope of the bill, keep in mind these changes will not be immediate. It’s a 10-year plan, and it will take time to put these provisions into place. More details will be available in coming months.

We have a lot of hard work in front of us to deliver on the high expectations this historic funding will provide. But I have great confidence IRS employees are up to the task—and will deliver for Americans as they have countless times before in the history of our agency.

The Act also contains several new provisions relating to the corporate alternative minimum, a tax on stock buybacks, and tax credits for clean energy use and production. These provisions will require immediate guidance given that they are effective for taxable years beginning after December 31, 2022.

Practice Point: The IRS has its work cut out for it. It is critical that timely guidance be provided to taxpayers impacted by the Act’s new provisions to allow for proper planning and modeling. Additionally, the IRS needs to create and execute a plan to improve its technology and customer service.

Update as of August 18, 2022: US Secretary of the Treasury Janet Yellen has issued a memorandum to Commissioner Rettig, directing the IRS to produce, within six months, an operational plan detailing how the additional funding would be deployed over the next decade. Secretary Yellen specifically stated that she would like the IRS to work closely with Deputy Secretary of the Treasury Wally Adeyemo “to identify specific operational initiatives and associated timelines that will improve taxpayer service, modernize technology, and increase equity in our system of tax administration [...]

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Weekly IRS Roundup July 26 – July 30, 2021

by McDermott Will & Emery | Aug 2, 2021 | IRS Guidance, Tax Reform, Tax Refunds

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of July 26, 2021 – July 30, 2021. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

July 26, 2021: The IRS issued Notice 2021-46 as a supplement to Notice 2021-31 issued in May, providing additional guidance on the temporary premium assistance for Consolidated Omnibus Budget Reconciliation Act (COBRA) health insurance benefits and the associated COBRA premium assistance credit—enacted by the American Rescue Plan Act of 2021 (ARPA).

July 27, 2021: The IRS issued a news release urging tax professionals to raise awareness amongst clients about the availability of Identity Protection PINs, a tax return security feature designed to protect against tax-related identity theft.

July 28, 2021: The IRS issued a news release announcing the imminent issuance of another round of tax refunds to those who paid taxes on unemployment compensation in 2020, pursuant to the retroactive exclusion of such compensation from 2020 taxable income under ARPA. The refunds will be issued to approximately 1.5 million taxpayers, averaging more than $1,600.

July 29, 2021: The IRS issued a news release announcing an update to previously-released FAQs regarding paid sick and family leave tax credits under ARPA.

July 30, 2021: The IRS issued Notice 2021-45, providing a list of counties and parishes that constitute as qualified disaster zones for purposes of determining low-income housing tax credits under section 42 of the Code, as expanded by the Taxpayer Certainty and Disaster Tax Relief Act of 2020.

July 30, 2021: The IRS issued Notice 2021-48, providing guidance on changes made under ARPA to the funding rules for single-employer defined benefit pension plans.

July 30, 2021: The IRS issued Announcement 2021-12, revealing recent disciplinary sanctions imposed on certain tax practitioners pursuant to the Circular 230 rules for practice before the IRS.

July 30, 2021: The IRS issued a news release announcing the awarding of a $100,000 Low Income Taxpayer Clinic grant to West Virginia University College of Law to assist the university in providing tax controversy litigation services to low-income and English as a second language (ESL) taxpayers.

July 30, 2021: The IRS issued a news release reminding taxpayers who hold Employer Identification Numbers (EINs) of their responsibility to file Form 8822-B, updating their information with the IRS upon a change of responsible party or contact information.

July 30, 2021: 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 June 7 – June 11, 2021

by McDermott Will & Emery | Jun 14, 2021 | Appellate Courts, Court Procedure Matters, IRS Guidance, Tax Reform, Tax Refunds, Trial Courts

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of June 7, 2021 – June 11, 2021. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

June 7, 2021: The IRS issued a news release announcing it has begun sending letters to inform more than 36 million American families of their potential eligibility to receive monthly Child Tax Credit payments beginning in July, pursuant to the expansion of the Child Tax Credit under the American Rescue Plan Act of 2021 (ARPA).

June 8, 2021: The IRS issued a news release, soliciting applications for 80 vacancies within its Procurement office, including vacancies for contract specialists who assist the IRS in the procurement and administration of third-party contracts.

June 8, 2021: The IRS issued a news release reminding taxpayers who make estimated tax payments that the second installment of estimated taxes for 2021 is due June 15, 2021.

June 9, 2021: The IRS issued a news release announcing the disbursement of more than 2.3 million Economic Impact Payments worth more than $4.2 billion, bringing the total amount of disbursements under ARPA to more than 169 million payments worth approximately $395 billion.

June 10, 2021: The IRS issued Notice 2021-36, announcing that the applicability date for certain regulations under sections 59A and 6038A of the Code, which set forth various reporting requirements with respect to qualified derivative payments (QDPs) for purposes of the base erosion and anti-abuse tax (BEAT), is delayed to the 2023 taxable year.

June 11, 2021: The IRS issued final regulations regarding the new mandatory 60-day postponement of certain tax deadlines due to a federally-declared disaster, enacted as section 7805A(d) of the Code by the Further Consolidated Appropriations Act, 2020.

June 11, 2021: The IRS issued Revenue Ruling 2021-11, providing the semi-annual Standard Industry Fare Level (SIFL) rates and terminal charges used in computing the value of noncommercial flights on employer-provided aircrafts for purposes of the taxation of fringe benefits under section 61 of the Code. The Revenue Ruling provides both unadjusted SIFL rates and SIFL rates adjusted for relief provided to the airline industry by COVID-related legislation.

June 11, 2021: The IRS issued an Action on Decision, announcing it would not acquiesce to TriNet Group, Inc. v. United States, 979 F.3d 1311 (11th Cir. 2020), which held that a professional employer organization (PEO) had “control of the payment of wages” to its clients’ employees and therefore the PEO—not its clients—was the “employer” (under section 3401(d) of the Code) eligible to claim Federal Insurance Contributions Act (FICA) tip tax credits with respect to such wages.

June 11, 2021: The IRS issued a news release and two sets of FAQs, providing assistance to families and small businesses claiming [...]

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Weekly IRS Roundup November 23 – November 27, 2020

by McDermott Will & Emery | Dec 1, 2020 | IRS Guidance, Tax Reform

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of November 23, 2020 – November 27, 2020. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here.

November 23, 2020: The IRS released TD 9935, providing final regulations implementing statutory changes to the treatment of like-kind exchanges.

November 23, 2020: The IRS issued a News Release announcing a research partnership to improve IRS procurement operations.

November 24, 2020: The IRS released Notice 2020-84 announcing the adjusted applicable dollar amount for calculating the fee imposed by sections 4375 and 4376 for certain health plans.

November 25, 2020: The IRS updated FAQs providing guidance on What Is an Eligible Employer for COVID-19-related tax credit purposes and How to Claim the Credits.

November 27, 2020: The IRS released Internal Revenue Bulletin 2020-49, dated November 30, 2020, containing the following highlights: Notice 2020-81 (Employee Plans); Notice 2020-82 (Employee Plans); TD 9929 (Employee Plans); TD 9930 (Employee Plans); REG-101657-20 (Income Tax); Rev. Proc. 2020-48 (Income Tax); TD 9922 (Income Tax); and Notice 2020-75 (Income Tax).

November 27, 2020: The IRS released its weekly list of written determinations (e.g., Private Letter Rulings, Technical Advice Memorandums and Chief Counsel Advice).

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

IRS Implementation of Tax Reform Continues to Move Forward

by McDermott Will & Emery | May 24, 2018 | IRS Guidance, Tax Reform, Uncategorized

The Internal Revenue Service (IRS) has been busy in recent months working on implementing the recent tax reform legislation. The latest announcement by the IRS focuses on the $10,000 cap on the amount of state and local taxes that can be deducted for federal income tax purposes. In a press release and release of guidance in the form of Notice 2018-54, the IRS announced that proposed regulations will be issued addressing this issue to help taxpayers understand the relationship between federal charitable contribution deductions in exchange for a tax credit against state and local taxes owed. The press release, Notice and forthcoming proposed regulations are in response to workarounds by various high property tax states allowing local governments to set up charitable organizations that can accept property tax statements. Based on these materials, it is anticipated that the IRS will disagree with the workarounds:

The Treasury Department and the IRS intend to propose regulations addressing the federal income tax treatment of transfers to funds controlled by state and local governments (or other state-specified transferees) that the transferor can treat in whole or in part as satisfying state and local tax obligations. The proposed regulations will make clear that the requirements of the Internal Revenue Code, informed by substance-over-form principles, govern the federal income tax treatment of such transfers. The proposed regulations will assist taxpayers in understanding the relationship between the federal charitable contribution deduction and the new statutory limitation on the deduction for state and local tax payments.

The IRS’s website provides information on the latest IRS news releases, fact sheets and statements. Additionally, we have a dedicated webpage with insights on significant developments related to tax reform.

Refined Coal Tax Credit Case Filed

by Kevin Spencer, Philip Tingle and Roger J. Jones | Oct 24, 2017 | Court Procedure Matters, IRS Guidance, Trial Courts, Uncategorized

On September 14, 2017, Cross Refined Coal LLC (Partnership) (and USA Refined Coal LLC as the Tax Matters Partner) filed a Petition in the US Tax Court seeking a redetermination of partnership adjustments determined by the Internal Revenue Service (IRS). According to the Petition, during audit of the 2011 and 2012 tax years, the IRS reduced the Partnership’s and certain partners’ Internal Revenue Code Section 45(e)(8) refined coal production tax credits by several million dollars and disallowed several million dollars more of claimed losses. The Notice of Deficiency, a copy of which is attached to the Petition, provides the following reasons for the adjustments:

Neither the Partnership nor the partners have established the existence of the partnership as a matter of fact;
The formation of the Partnership was not, in substance, a partnership for federal income tax purposes because it was not formed to carry on a business or for the sharing of profits and losses from the production or sale of refined coal by its purported members/partners, but rather was created to facilitate the prohibited transaction of monetizing refined coal tax credits;
The refined coal tax credits are disallowed because the transaction was entered into solely to purchase refined coal tax credits and other tax benefits; and
Ordinary losses were disallowed because it has not been established that they were ordinary and necessary or credible expenses in connection with a trade or business or other activity engaged in for profit.

As we have previously reported, the IRS has issued negative guidance concerning refined coal transactions and has denied the tax benefits associated with some of those transactions.

We will be watching this case closely and will report back on any developments.

IRS Determines Refined Coal Transaction Doesn’t Have Economic Substance

by Kevin Spencer, Madeline Chiampou Tully and Philip Tingle | Mar 24, 2016 | IRS Guidance, Uncategorized

On March 17, 2016, the Internal Revenue Service (IRS) issued a Field Attorney Advice Memorandum, 20161101F (Dec. 3, 2015) (the FAA). In the FAA, the IRS concluded that an investment in a partnership designed to deliver a tax credit allocation did not have a potential for profit or risk of loss, was not a meaningful interest in the venture and, as such, was not a bona fide partnership interest. In analyzing whether the arrangement was in substance a prohibited sale of tax benefits, the IRS determined that promotional materials and the partnership agreement indicated the investors were only interested in creating tax credits, not in operating a profitable refined coal business. The IRS relied heavily on Commissioner v. Culbertson, 337 U.S. 733 (1949), and Historic Boardwalk Hall LLC v. Commissioner, 694 F.3d 425 (3rd Cir. 2012), to determine that the investor did not have the requisite risk of loss or profit potential irrespective of creating tax credits, and that the partnership agreement indicated that the purported partner was to be indemnified for disallowed tax credits and deductions. An important fact for the IRS’analysis was that the payments to be made by the investor were nonrecourse, meaning the investor could walk away at any time. The IRS ruled that because “purported capital contributions are largely to be made in the future and only in relation to the amount of refined coal, and by extension tax credits generated, we believe that the payments are in exchange for tax benefits and do not constitute capital contributions in substance.”

Although a FAA is merely the opinion of one attorney at the IRS, it may be indicative of how the IRS evaluates these issues.