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Weekly IRS Roundup July 30 – August 3, 2018

by McDermott Will & Emery | Aug 7, 2018 | IRS Guidance, Uncategorized

Presented below is our weekly roundup for July 30 – August 3, 2018 on significant IRS guidance and relevant tax matters.

July 31, 2018: In Notice 2018-58, the IRS stated that it intends to issue regulations clarifying new rules governing section 529 contributions.

July 31, 2018: The IRS published three new frequently asked questions (Certifications and Period Reviews FAQs 14-16) regarding Foreign Account Tax Compliance Act (FATCA) compliance for qualified intermediaries and qualified derivatives dealers related to account documentation review.

August 1, 2018: The IRS issued proposed regulations addressing the one-time section 965 “transition tax” imposed on US shareholders of certain foreign corporations.

August 1, 2018: Final regulations granted taxpayers a single non-automatic 30-day extension to file Form W-2.

August 2, 2018: A report published by the Treasury Inspector General for Tax Administration (TIGTA) made eight recommendations to the IRS for improving security over taxpayer data.

August 3, 2018: The IRS released proposed regulations under section 168(k), providing guidance regarding the additional first-year depreciation deduction for certain property placed in service between September 28, 2017 and December 31, 2022. The proposed regulations address the interaction of section 168(k) and certain partnership tax rules as well as other topics.

Special thanks to Kevin Hall in our DC office for this week’s roundup.

TIGTA Report: FOIA Procedures Need Improvement

by McDermott Will & Emery and Jeffrey M. Glassman | Oct 3, 2017 | IRS Audits, IRS Guidance, Uncategorized

On September 7, 2017, the Treasury Inspector General for Tax Administration (TIGTA) issued a report about the Internal Revenue Service’s (IRS) Freedom of Information Act (FOIA) procedures. After reviewing a statistically valid sample of FOIA requests, TIGTA concluded that the IRS improperly withheld information 14.3 percent of the time—or approximately 1 in 7 FOIA requests.

TIGTA also found that at the end of Fiscal Year 2016, there were 334 backlogged information requests. Below is a chart from the report showing the IRS’s recent history of backlogged FOIA requests.

TIGTA’s findings are consistent with our experiences with FOIA requests. It is not unusual for the IRS to make repeated requests for extensions to respond. We note further that, during an examination, the IRS is statutorily authorized to provide taxpayers access to their administrative file. Indeed, the Internal Revenue Manual confirms this at section 4.2.5.7 (June 15, 2017). Yet the IRS examination team often requires a FOIA request.

Practice Point 1: As a result of the IRS’s FOIA backlog, some taxpayers have resorted to filing lawsuits in federal district court to enforce their FOIA rights. Because the IRS must respond to court deadlines, taxpayers are sometimes able to force a more expedient response and move to the front of the response line.

Practice Point 2: Taxpayers should attempt to tailor their FOIA requests, only requesting the information in which they are interested. In theory, this could make the IRS’s job easier and, in turn, responses more timely.

Practice Point 3: If taxpayers intend to seek information from the government through the FOIA process, they should do so as soon as possible (e.g., at the beginning of the examination process) so that they may get the information in time to be useful.

IRS Is Underutilizing Exchange of Information Capabilities

by McDermott Will & Emery | Sep 21, 2017 | IRS Guidance, Uncategorized

According to the Treasury Inspector General for Tax Administration (TIGTA), the Internal Revenue Service (IRS) is underutilizing exchange of information (EOI) capabilities with foreign countries. On September 11, 2017, TIGTA issued a report summarizing its evaluation of the IRS’s current efforts to improve tax compliance by using information obtained from foreign countries through the Exchange of Information Program agreements.

TIGTA’s three main conclusions were: (1) the automatic exchange of information (AEOI) recordkeeping is inadequate and the usefulness of the information is unknown; (2) the Mutual Collection Assistance Request Program (MCAR) may not be used to its full potential; and (3) the spontaneous exchange of information program requires a multitude of enhancements.

TIGTA made several recommendations to the IRS to maximize the use of information received and collection assistance available from foreign countries. The recommendations included:

(1) Conduct an outreach to examination and collection field functions to alert them on the availability and potential usefulness of automatic data provided by treaty partners that can be gained by requesting and obtaining access to an easy search tool;

(2) Expand upon the AEOI Program section of the Internal Revenue Manual (§ 4.60.1) to add recordkeeping requirements to track the incoming and outgoing records;

(3) Create procedures for AEOI personnel that: a) allow AEOI personnel to accurately track the data and/or record counts received by country; b) track the data by country that contractors upload to the AEOI database; and c) monitor the difference in received and posted record counts by country to identify and resolve upload issues in a timely fashion;

(4) Reinforce the IRS’s 2016 international collection strategy related to the MCAR Program to address the importance of issuing MCARs when warranted as an additional collection tool, and prioritize the timely processing of outgoing MCAR requests;

(5) Enhance revenue officers’ awareness of tools to explore international asset identification;

(6) Coordinate with Treasury Department’s Office of Tax Policy to identify additional countries with whom the United States could benefit by adopting MCAR provisions in a treaty; and

(7) Establish criteria for withdrawing issued outbound MCARs when the taxpayer has not fully paid.

The IRS agreed with TIGTA’s recommendations and plans to address those issues by implementing several corrective actions by the summer of 2018.

The final report entitled “Exchange of Information Capabilities Are Underutilized by the Internal Revenue Service” and the IRS’s response to an earlier draft is available here.

Practice Point: The information exchanged among tax administrations has increased significantly since the implementation of the Foreign Account Tax Compliance Act (FATCA). The TIGTA report identified several areas in which the exchange of information is currently being underutilized by the IRS. The IRS is clued into these flaws and is focused on updates to maximize the value of the information. As we previously discussed, the IRS recently announced two new enforcement initiatives in the Criminal Investigation Division (CID) to use FATCA [...]

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A 360-Degree View: August and September 2017

by McDermott Will & Emery | Sep 5, 2017 | Uncategorized

Upcoming Tax Controversy Activities in September:

September 13, 2017: Tom Jones is presenting an update on Captive Tax in Charleston, South Carolina, at the South Carolina Captive Insurance Association Annual Conference.

September 14, 2017: Robin Greenhouse and Kristen Hazel will be speaking at McDermott Will & Emery’s Tax in the City®: A Women’s Tax Roundtable meeting in New York City about tax ethics.

September 18, 2017: Justin Jesse is speaking at the PLI Basics of International Taxation session in San Francisco about “Tax Concerns for US Persons Investing or Operating Outside of the US (Outbound Investments) – Active Business Operations.”

Wrapping up August:.

Our August 2017 blog posts are available on taxcontroversy360.com, or read each article by clicking on the titles below. To receive the latest on tax controversy news and commentary directly in your inbox as they are posted, click here to subscribe to our email list.

August 3, 2017: Tax Court Addresses “Issue of First Impression” Defense to Penalties

August 7, 2017: President Trump Nominates Copeland and Urda to US Tax Court

August 8, 2017: Record Numbers Are Giving Up US Citizenship

August 9, 2017: TIGTA Pounces on IRS Federal Records Retention Policies; Recommends Changes

August 11, 2017: The IRS Is Struck Down Again in Privilege Dispute

August 14, 2017: McDermott Named “Law Firm of the Year” at 2017 US Captive Services Awards

August 16, 2017: Grecian Magnesite Mining v. Commissioner: Foreign Investor Not Subject to US Tax on Sale of Partnership Interest

August 17, 2017: Sovereign Immunity Principles Bar Taxpayers from Challenging John Doe Summonses

August 23, 2017: Court Rejects Taxpayer’s Claim for US-Swiss Treaty Coverage

August 24, 2017: Internal Revenue Service Updates Golden Parachute Payments Audit Technique Guide, Signaling Key Items IRS May Review on Audit

August 25, 2017: IRS Criminal Investigation Division Announces Two New Initiatives

TIGTA Pounces on IRS Federal Records Retention Policies; Recommends Changes

by McDermott Will & Emery and McDermott Will & Emery | Aug 9, 2017 | Court Procedure Matters, IRS Guidance, Uncategorized

The Treasury Inspector General for Tax Administration (TIGTA) recently summarized several critical deficiencies in how the IRS handles electronically stored federal records in a recent report, available here. The lapses identified by TIGTA may affect the availability of those electronic records for future Freedom of Information Act (FOIA) requests, litigation and Congressional review. The report does not address the IRS’s retention policy for physical documents.

Federal law mandates the retention of the government’s federal records. Unfortunately, prior to May 22, 2013, IRS electronic asset disposal policies included instructions to “wipe” and “reimage” computer hard drives that were no longer needed by IRS users. If those computers were the only repository for electronically stored federal records, that information would be lost. TIGTA noted that, even though the IRS revisited those policies several times, computers were still being wiped and reimaged as part of the IRS’s migration to Windows 7 through January 14, 2016. This also affects email retention since users are often required to manually identify and store or print their email records. An upgraded email solution that will permit the automatic retention and storage of email records is being implemented.

Further, TIGTA determined the IRS’ storage and retention policies for computers that were not wiped or reimaged were ineffective. For example, TIGTA found that the IRS has approximately 32,000 laptops and desktops in storage, but an inventory report identifying the number and location of computing devices currently in storage from specific employees could not be readily produced, rendering electronic federal records on those devices essentially unavailable.

These inadequate electronic record retention policies have resulted in the destruction of material subject to litigation holds, delays in the FOIA process, and the unavailability of responsive documents for FOIA requests. TIGTA made the following recommendations, which the IRS agreed to:

An enterprise email system should be implemented that enables the IRS to comply with federal records management requirements.
A methodology for developing one list of executives for the permanent and 15-year email retention groups should be documented.
The newly issued policy on the collection and preservation of federal records associated with separated employees should be disseminated broadly within the agency.
The director should ensure that the policy for documenting search efforts is followed by all employees involved in responding to FOIA requests.
The director should develop a consistent policy for the search of federal records associated with separated employees.

Practice Point: When drafting FOIA requests and discovery requests for electronic records, practitioners should be aware of record-retention challenges facing the IRS since they will impact the IRS’s ability to fully respond to FOIA requests and adequately implement litigation holds for years to come.

Taxpayer Advocate Questions IRS CID’s Narrow Reading of the Taxpayer Bill of Rights

by McDermott Will & Emery | Apr 6, 2017 | IRS Appeals, IRS Guidance, Uncategorized

On March 30, 2017, the US Treasury Inspector General for Tax Administration (TIGTA) published a report identifying numerous violations of taxpayer rights from 2012 to 2014 by the Internal Revenue Service Criminal Investigation Division (IRS CID) in structuring cases. TIGTA examined over 300 investigations for structuring in this time period and identified 21 cases in which taxpayer rights had been compromised.

The Bank Secrecy Act of 1970 (BSA) requires US financial institutions to file reports of currency transactions exceeding $10,000. A provision of the BSA, 31 U.S.C. § 5324(a), prohibits structuring, that is, setting up a transaction for the purpose of evading this reporting requirement. Violations of the law can result in fines, imprisonment and asset forfeiture. This law is administered by the US Department of the Treasury, and one of its major goals is to monitor traffic in illegal-source funds (i.e., funds used in drug transactions or to support terrorism). (more…)

More Changes to IRS Appeals Procedures

by Jean A. Pawlow | Nov 4, 2016 | Alternative Dispute Resolution, IRS Appeals, IRS Audits, Settlements, Uncategorized

In a letter dated November 4, 2016, IRS Chief of Appeals Kirsten Wielobob provided some clarification regarding the authority of the Appeals Team Case Leaders (ATCLs) to settle cases, revisions to IRM section 8.6.1.4.4 permitting other IRS employees to attend conferences, clarifications to conference practices, and revisions to how Appeals handles section 9100 relief determinations. After a month of speculation, of interest to most taxpayers and practitioners is the news that, although settlement authority will remain with the ATCLs, Appeals will revise its procedures to make it clear that an Appeals Manager must review a case prior to an ATCL finalizing a settlement. In an apparent attempt to thread the proverbial needle, the letter indicates that the Appeals Manager “will not be accepting or rejecting settlements,” but if the ATCL and Appeals manager “disagree about a settlement,” the next higher level manager supervising ATCL Operations will resolve any disagreement. Although this procedure is contemplated in IRM section 8.7.11.3.1 (03-16-2015), the letter suggests that there will in fact be a procedural shift. It remains to be seen whether, as some have feared, this will lead to increased delays in resolving cases.