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Federal Tax Research Updates

April 2018


Taxpayers May Continue to Rely on Rev. Proc. 2004-34 for Advance Payments: As a result of the enactment by the Tax Cuts and Jobs Act of 2017 (TCJA) of a new provision dealing with the tax treatment of advance payments, the IRS is providing transitional guidance until more formal guidance can be issued. Noting that the TCJA provision largely tracks the approach in Rev. Proc. 2004-34, the IRS stated that a taxpayer receiving advance payments (regardless of whether the taxpayer has an applicable financial statement) may continue to rely on the 2004 revenue procedure until further guidance is issued. Notice 2018-35. Read More...

Appropriations Act Makes Major Modifications to the Partnership Audit Rules: The Consolidated Appropriations Act of 2018 (CAA), which was signed into law on March 23, 2018, contains numerous modifications, corrections, and clarifications relating to the centralized partnership audit regime rules that were enacted in the Bipartisan Budget Act of 2015 (2015 BBA) and which apply generally to partnership tax years beginning after 2017. Among the many changes, CAA revises ... Read More...

President Signs $1.3 Trillion Spending Bill Featuring Extensive Technical Tax Corrections: On March 23, 2018, President Trump signed into law the Consolidated Appropriations Act of 2018 (CAA). In addition to funding the federal government through September 30, 2018, the $1.3 trillion spending bill also makes technical corrections to numerous tax bills enacted over the past fifteen years. Most notably, CAA fixes the Code Sec. 199A "grain glitch" that created a disparity between farmers marketing products to cooperatives versus farmers marketing products to non-cooperatives, enacts major changes to the centralized partnership audit regime rules, and makes extensive corrections to the PATH Act of 2015. Pub. L. 115-141. Read More...

April 2018 AFRs Issued: In Rev. Rul. 2018-9, the IRS issued the applicable federal rates for April 2018. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate.


Attorney's Affidavit Insufficient to Rebut IRS's Proof of Claim in Bankruptcy: The Bankruptcy Appellate Panel for the Eighth Circuit Court of Appeals reversed a bankruptcy court's decision that a worker's compensation attorney's affidavit stating his opinion on the value of the debtor's pending claim for worker's compensation on the petition date was substantial evidence to rebut the IRS's proof of claim. The Eighth Circuit found that the affidavit was not substantial evidence of value because it did not contain the financial or factual information necessary to support the attorney's opinion and the IRS never had the opportunity to cross examine the attorney. In re Austin, 2018 PTC 100 (B.A.P. 8th Cir. 2018). Read More...


Losses from Hunting Consulting Business Aren't Deductible: In Vallejo, T.C. Memo. 2018-39, the Tax Court held that a taxpayer could not deduct on his Schedule C losses relating to a hunting consulting business because he failed to carry his burden of establishing that he was entitled to the losses. Further, because the taxpayer failed to carry his burden of establishing that there was reasonable cause for, and that he acted in good faith with respect to, the underpayment of tax for the year at issue, he was liable for the accuracy-related penalty under Code Sec. 6662(a).

No Charitable Deduction Allowed Where Taxpayer Expects Substantial Benefit: In Wendell Falls Development, LLC, T.C. Memo. 2018-45, the Tax Court held that, because a taxpayer donated an easement with the expectation of receiving a substantial benefit from his donation, he was not entitled to a charitable-contribution deduction because of that expectation. Alternatively, the court also noted that an easement must have value in order for it to generate a charitable-contribution deduction and, because there was no evidence in the record of sales of easements comparable to the easement contributed by the taxpayer, the value of the easement was equal to the value of the land before the easement minus the value of the land after the easement and that value was zero.

Travel Expenses Relating to House Remodeling Project Are Capital Expenditures: In Costa v. Comm'r, T. C. Summary 2018-17, the Tax Court held that a couple could not deduct mileage and travel expenses relating to the husband's house remodeling activity. The court found that the remodeling project added to the property's value and extended its life and, thus, all expenses relating to the project were capital expenditures that were added to the basis of the property.

Auto Company Manager Can Deduct Vehicle Expenses for Travel To Auto Auctions: In Rademacher v. Comm'r, T.C. Memo. 2018-43, the Tax Court held that a manager at a car dealership, who was required to regularly attend auto auctions, could deduct as an employee business expense his mileage costs. The court also held that the taxpayer was not liable for penalties assessed by the IRS because after allowing the mileage deductions, it was possible that the taxpayer no longer had a substantial understatement of income tax, and because the IRS failed to include in the record evidence of supervisory approval of the assessed penalties in compliance with Code Sec. 6751(b)(1).

Litigation Consultant Can't Deduct Alleged Research Expenses: In Bradley v. Comm'r, T.C. Summary 2018-13, the Tax Court held that a taxpayer was not entitled to a deduction for research expenses related to his litigation consulting business because the activities he engaged in did not meet the requirements of Code Sec. 174 and, even if the activities did meet the threshold requirements for taking the deduction, it did not appear to the court that the value of the taxpayer's time qualified as a deductible expense under Code Sec. 174.

Employee Benefits

Comments Requested on Pension Plan Determination Letter Program: In Notice 2018-24, the IRS announced that it is looking for comments on the potential expansion of the scope of the determination letter program for individually designed plans during the 2019 calendar year. In reviewing such comments, the Department of the Treasury and the IRS will consider the factors regarding the scope of the determination letter program set forth in Section 4.03(3) of Rev. Proc. 2016-37 and will issue guidance if they identify any additional types of plans for which plan sponsors may request determination letters during the 2019 calendar year.

Employment Taxes

Court Won't Reconsider Allowing Payroll Company to Sue for Refund of Overpaid Taxes: In Paychex v. U.S., 2018 PTC 91 (M.D. Fla. 2018), a district court rejected an IRS motion to reconsider its prior opinion where it held that a payroll company had standing to sue for a refund after it overpaid the social security taxes of a client. The court found that the IRS did not meet any of the three major grounds justifying reconsideration.

Estates, Trusts, and Gifts

IRS Provides Guidance on Trust Income Payable to Former Spouses in Light of Tax Reform Changes: In Notice 2018-37, the IRS advised that it will be issuing regulations that will provide that Code Sec. 682, as in effect prior to December 22, 2017 (the date of enactment of the Tax Cuts and Jobs Act of 2017 (TCJA)), will continue to apply with regard to trust income payable to a former spouse who was divorced or legally separated under a divorce or separation instrument executed on or before December 31, 2018, unless such instrument is modified after that date and the modification provides that the changes made by TCJA apply to the modification. The IRS is also requesting comments on whether guidance is needed with respect to the application of Code Secs. 672(e)(1)(A), 674(d), and 677 to trusts for the benefit of a spouse following a divorce or separation.


Rev. Proc. Addresses Eligibility Rules for Certain Individuals in Foreign Countries: In Rev. Proc. 2018-23, the IRS provides a waiver for the time requirements for individuals electing to exclude their foreign earned income from their U.S. taxable income. The procedure applies to individuals who must leave a foreign country because of war, civil unrest, or similar adverse conditions in that country and adds Turkey to the list of waiver countries for tax year 2016 for which the minimum time requirements are waived but does not add, for 2017, any country to the list of waiver countries.

IRS Issues Guidance on Recently Revised Code Sec. 965: In Notice 2018-26, the IRS issued guidance on the implementation of Code Sec. 965, as amended by the Tax Cuts and Jobs Act of 2017 (TCJA). Among other things, the guidance provides relief from estimated tax penalties in connection with the amendment of Code Sec. 965 and the repeal of Code Sec. 958(b)(4) by TCJA.

IRS Provides Interim Guidance under Code Sec. 1446(f): In Notice 2018-29, the IRS announced that it intends to issue regulations under recently enacted Sec. 1446(f) regarding withholding on a disposition by a foreign person of a partnership interest that is not publicly traded. In the announcement, the IRS provides interim guidance that taxpayers may rely on pending the issuance of regulations.

Gross Income

Corporation Can't Defer to Later Year Client Fees Received for Tax Services: In RJ Channels, Inc. v. Comm'r, T.C. Memo. 2018-27, the Tax Court held that a C corporation that provided tax-related services had to include certain client fees, which involved potential future services, in gross income in the year the payments were received because there was no restriction or limitation on the disposition of the fees. The court also concluded that the corporation could not deduct certain expenses paid on behalf of some of its clients and could not deduct a contingent liability relating to a lawsuit against its sole owner and a related corporation because the company failed to show that it had any liability with respect to the lawsuit.

Grants Received to Restore Building Are Income to Partnership: In Uniquest Delaware LLC v. U.S., 2018 PTC 87 (W.D. N.Y. 2018), a district court held that grants valued at $11 million provided to a partnership by the New York State Empire State Development Corporation for the restoration of a building in Buffalo, New York, constituted income to the partnership for federal income tax purposes. The court also concluded that the TEFRA audit provisions applied to the partnership and that the partnership could not, as the partnership had argued, be categorized as a "small partnership" exempt from TEFRA because it was owned by S corporations which, as pass-through entities, prevented the partnership from being eligible for the small partnership TEFRA exemption.

Inflation Adjusted Amounts

IRS Corrects Previously Announced for 2018 AMT Amounts: In Rev. Proc. 2018-22, the IRS modified Rev. Proc. 2018-18 to correct the previously published alternative minimum tax phaseout threshold amounts for estates and trusts. Rev. Proc. 2018-22 also reflects increases to the state housing credit ceiling limit in Code Sec. 42, which were made by the Consolidated Appropriations Act of 2018.

IRS Modifies Previously Announced COLA as a Result of Tax Reform: In Rev. Proc. 2018-18, the IRS modified certain 2018 cost-of-living adjustments previously set forth in Rev. Proc. 2017-58 and Rev. Proc. 2017-37 to reflect changes made by the Tax Cuts and Jobs Act of 2017 (TCJA). The changes and modifications are effective for taxable years beginning in 2018.

Original Issue Discount

Code Section 1274A Inflation Adjusted Amounts Announced: In Rev. Rul. 2018-11, the IRS issued the dollar amounts, increased by the 2018 inflation adjustment, for Code Sec. 1274A. Inflation-adjusted amounts for Code Sec. 1274A for 2018 are $5,831,500 for qualified debt instruments and $4,165,300 for cash method debt instruments.


LLC liable for partnership late filing penalty: In Argosy Technologies, LLC, T.C. Memo. 2018-35, the Tax Court held that a limited liability company, which was owned by a husband and wife and which represented itself to be a partnership, was liable for the penalty under Code Sec. 6698 for the late filing of its partnership tax return. The court said that the entity could not represent itself as a partnership on its tax returns and then argue it was really a single member LLC that could not be subject to a partnership late filing penalty.

Failure by IRS to Timely Issue FPAA Precludes Adjustments to Partnership Return: In DTDV, LLC v. Comm'r, T.C. Memo. 2018-32, The Tax Court held that, because any omission from a partnership's gross income for the year at issue was less than 25 percent of its reported gross income for that year, the statute of limitations period was not extended. Instead, the statute of limitations period expired three years after the partnership filed its return and, because the IRS did not issue its final partnership administrative adjustment (FPAA) until several years later, the court said it would be unable to assess any tax resulting from an acceptance of the FPAA adjustments or penalty determinations.


Supreme Court: Conviction for Felony Tax Obstruction Requires Awareness of Pending Tax Proceeding: The Supreme Court reversed the Second Circuit and held that, in order to secure a conviction under Code Sec. 7212(a) for interference with the administration of the Internal Revenue Code, the government must show a nexus between the taxpayer's obstructive conduct and a particular administrative proceeding, such as an investigation, audit, or other targeted administrative action. The Court found that broadly applying the statute to the routine administration of the Code, including the processing and review of tax returns, would conflict with the language, history, and context of the statute and fail to give taxpayers fair warning of what conduct is subject to criminal prosecution. Marinello v. U.S., 2018 PTC 77 (U.S. 2018). Read More...

IRS Issues Transitional Guidance on Code Section 162(f) and Code Section 6050X: In Notice 2018-23, the IRS announced that it intends to issue proposed regulations on Code Sec. 162(f), as amended by the Tax Cuts and Jobs Act of 2017 (TCJA), and Code Sec. 6050X, a new provision added by TCJA. Until then, the IRS is providing transitional guidance for complying with the new provisions.

Private Activity Bonds

IRS Provides Guidance on Certain Remedial Actions for Issuers of Tax-Exempt Bonds: In Rev. Proc. 2018-26, the IRS issued guidance which provides certain remedial actions that issuers of state and local tax-exempt bonds and other tax-advantaged bonds may take to preserve the tax-advantaged status of the bonds when nonqualified uses of the bond proceeds occur. The guidance applies to a nonqualified use that occurs on or after April 11, 2018, and may be applied to a nonqualified use that occurs before April 11, 2018.


Prop. Regs. Would Prevent Certain Attorneys from Participating in Exams as Contractors: In REG-132434-17, the IRS issued proposed regulations which would, with a limited exception, exclude non-government attorneys from (1) receiving summoned books, papers, records, or other data or (2) from participating in the interview of a witness summoned by the IRS to provide testimony under oath. Current regulations permit any person authorized to receive returns and return information under Code Sec. 6103(n) and the regulations thereunder to receive and review summoned books, papers, and other data, and, in the presence and under the guidance of an IRS officer or employee, participate fully in the interview of a witness in a summons interview.

Whistleblower's Claim Rejected Where IRS Did Not Act on Information Presented: In Whistleblower 23711-15W, T.C. Memo. 2018-34, the Tax Court held that the IRS was entitled to summary judgment with respect to a whistleblower's action because the IRS did not initiate any administrative or judicial action on the basis of the whistleblower's information and the IRS did not collect any proceeds as a result of the information. The court noted that, if the taxpayer believes that the IRS may have proceeded with an administrative or judicial action against the target and collected proceeds from the target subsequent to a cut-off date relating to the instant litigation, the whistleblower can file a new Form 211 with the Whistleblower Office.

Taxpayer Didn't Need Specialized Legal Skills to Prevail on Passive Activity Issue: In Tolin, T.C. Memo. 2018-29, the Tax Court held that a taxpayer who substantially prevailed in a case brought by the IRS regarding the deductibility of the taxpayer's expenses with respect to a thoroughbred horse activity, and which the IRS had labeled as a passive activity, could not recover attorney's fees above the $180 per hour statutory rate. The court, in rejecting the taxpayer's argument that he needed a lawyer with specialized skill during the litigation, found that to prevail on the passive activity loss issue, the taxpayer had to prove the extent of his participation in the thoroughbred activity and this only required generalized tax and litigation expertise.

IRS Decreases User Fee for Form 5310 Applications: In Rev. Proc. 2018-19, the IRS issued a revenue procedure which changes one of the user fees set forth in Appendix A of Rev. Proc. 2018-4, Schedule of User Fees, relating to applications on Form 5310, Application for Determination for Terminating Plan. That user fee is reduced from $3,000 to $2,300, effective January 2, 2018, and applicants who paid the $3,000 user fee listed in Rev. Proc. 2018-4 will receive a refund of $700.


First Circuit Reverses Tax Court; Roth IRA Arrangement Did Not Lack Economic Substance: The First Circuit held that approximately $1.4 million in dividend distributions from a domestic international sales corporation to two Roth IRAs was not an excess contribution subject to excise tax. The First Circuit reversed the Tax Court's holding that the distributions were in essence dividends to the owners of the Roth IRAs under the substance over form doctrine because it found that the transactions were a permitted tax avoidance arrangement under the Code and were consistent with Congress's intent in permitting DISC distributions to Roth IRAs. Benenson v. Comm'r, 2018 PTC 98 (1st Cir. 2018). Read More...



March 2018 AFRs Issued: In Rev. Rul. 2018-6, the IRS issued the applicable federal rates for March 2018. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate.


Money Lost on Scuba Diving Venture Can't Be Deducted as a Bad Debt: In Burke v. Comm'r, T.C. Memo. 2018-18, the Tax Court held that a taxpayer, who lost money after entering into a scuba diving business with a friend, had an equity investment in the scuba diving business and thus could not deduct the money lost on the venture as a bad debt. The court did not, however, sustain the Code Sec. 6662(a) accuracy-related penalties imposed by the IRS because the IRS failed to present any evidence that the penalties were personally approved (in writing) by the immediate supervisor of the individual making such determination.

No Deductions Allowed Where Taxpayer Comingled Expenses in One Bank Account: In Bass v. Comm'r, T.C. Memo. 2018-19, the Tax Court held that, because a taxpayer had not established for 2013 that the car, truck, and other expenses he deducted on his tax return were paid or incurred or that they were ordinary and necessary, the taxpayer was not entitled to Schedule C deductions for those expenses. Further, because the taxpayer comingled in one bank account his personal expenses, his business expenses, and expenses relating to a nonprofit he started, the court could not estimate potential deductible expenses.

Employee Benefits

IRS Issues Monthly Corporate Yield Curve and Segment Rates: In Notice 2018-16, the IRS issued guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under Code Sec. 417(e)(3), and the 24-month average segment rates under Code Sec. 430(h)(2). In addition, the IRS provided guidance as to the interest rate on 30-year Treasury securities under Code Sec. 417(e)(3)(A)(ii)(II) as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate under Code Sec. 431(c)(6)(E)(ii)(I).

Employment Taxes

Court Denies Injunction; IRS Has to Stand in Line with Other Creditors: In U.S. v. Askins & Miller Orthopaedics, P.A., 2018 PTC 34 (M.D. Fla. 2018), a district court denied a renewed motion by the government, which relied on Code Sec. 7422, for a preliminary injunction requiring the taxpayers to comply with their employment tax obligations. The court concluded that the government would not suffer irreparable harm in the absence of an injunction requiring the taxpayers to comply with the internal revenue laws and, while the taxpayers did not contest their employment tax obligations and the record demonstrated that they have failed to comply with those obligations and are likely to continue ignoring them, the court said that the government, like any other creditor, must resort to the remedies provided by law.

CPA/CFO of Newspaper Publishing Companies Is Liable for Payroll Tax Penalty: In Myers v. U.S., 2018-33 (N.D. Ga. 2018), a district court held that a CPA, who was the chief financial officer of several newspaper publishing companies, was a responsible person liable for a trust fund penalty for unpaid payroll taxes. While the court said it understood the taxpayer's position that there were no easy answers for the situation he found himself in and that he was caught between a rock and a hard place, he was still a responsible person under the law.


IRS Modifies Procedure for Foreign Corporations to Change Accounting Periods: In Rev. Proc. 2018-17, the IRS modified the circumstances under which the IRS grants approval of certain requests by certain foreign corporations for changes in annual accounting periods filed under Rev. Proc. 2002-39 and Rev. Proc. 2006-45. The IRS issued the revenue procedure pursuant to Code Sec. 965(o) to prevent the avoidance of the purposes of Code Sec. 965 through changes in the taxable years of certain specified foreign corporations (within the meaning of Code Sec. 965(e)).

Gains and Losses

IRS Was Wrong to Recharacterize Partnership's Property Sales as Ordinary Income: In Sugar Land Ranch Development, LLC v. Comm'r, T.C. Memo. 2018-21, the Tax Court held that the IRS was incorrect in recharacterizing net gains from a partnership's sale of two parcels of real property from capital gains to ordinary income. The court found that the partnership was not engaged in a development business after 2008 and held the parcels of real property as investments and thus had properly characterized the gains and losses from the sale of the properties as income from capital assets.


Refund Claim for ACA Shared Responsibility Payment Was Properly Filed on Form 843: The Third Circuit vacated a district court's decision that it lacked jurisdiction over a taxpayer's refund claim for a shared responsibility payment (SRP) under the Affordable Care Act because it was filed on Form 843, Claim for Refund and Request for Abatement, instead of on a Form 1040X. The court found that although a claim for a refund of income taxes must be made by filing an amended return, the SRP is a penalty, not a tax, so the taxpayer correctly filed a Form 843. Cash v. U.S., 2018 PTC 32 (3d Cir. 2018). Read More...

Prop. Regs. Would Redefine Short-Term, Limited-Duration Insurance: In REG-133491-17 (2/21/18), the IRS issued proposed regulations amending the definition of short-term, limited-duration insurance for purposes of its exclusion from the definition of individual health insurance coverage. The purpose of the proposed regulations is to lengthen the maximum period of short-term, limited-duration insurance to provide more affordable consumer choices for health care coverage.


Proposed Regs Address Adjustment of Tax Attributes Under Centralized Partnership Audit Rules: The IRS issued proposed regulations which give further guidance on the centralized partnership audit regime rules that are effective for partnership with tax years beginning after 2017. These proposed regulations provide rules that were reserved in earlier proposed regulations and specifically address how and when partnerships and their partners adjust tax attributes to take into account partnership adjustments under both Code Sec. 6225 and Code Sec. 6226. REG-118067-17. Read More...


Deficiencies Resulting from Improper Inventory Reporting and Unreasonable Compensation Upheld: The First Circuit affirmed a Tax Court decision to uphold deficiencies resulting from a company's improper inventory reporting and unreasonable compensation payments made to employee-shareholders. According to the First Circuit, the Tax Court properly found that the taxpayer's use of the gross profit method massively understated its inventory and that the salaries in question were unreasonable given the employees' lack of special experience or education. Transupport, Inc. v. Comm'r, 2018 PTC 43 (1st Cir. 2018). Read More...

Court Rejects IRS Motion to Stop Couple from Obtaining Info on Who Turned Them In: In Montgomery v. IRS, 2018 PTC 45 (D. D.C. 2018), a district court denied an IRS motion aimed at preventing a couple from obtaining certain FOIA records in an ongoing attempt by the couple to deduce who had tipped off the IRS with respect to sham partnerships in which they had been involved with in the early aughts. The court rejected the IRS's arguments that the couple's FOIA suit was barred by (1) an earlier settlement agreement, (2) collateral estoppel, or (3) res judicata, concluding that none of the IRS's threshold claims held water.

Property Deductions

IRS Gives More Time for Deducting Home Repair Damage Due to Presence of Pyrrhotite: The IRS is extending the time that individuals have to pay to repair damage to their personal residences resulting from deteriorating concrete foundations caused by the presence of the mineral pyrrhotite. The additional time is available to any taxpayer whose personal residence was either in Connecticut or outside of Connecticut, provided the taxpayer obtains a written evaluation from a licensed engineer indicating that the foundation was made with defective concrete containing the mineral pyrrhotite. Rev. Proc. 2018-14. Read More...

Tax Returns

IRS Ready to Process Returns Including Those with Recently Extended Tax Benefits: In IR-2018-33, the IRS said that it has reprogramed its processing systems and is ready to process tax year 2017 returns claiming three popular tax benefits recently renewed retroactively into law. The Bipartisan Budget Act renewed the following provisions: (1) the exclusion from gross income of discharge of qualified principal residence indebtedness (often, foreclosure-related debt forgiveness), claimed on Form 982; (2) mortgage insurance premiums treated as qualified residence interest, generally claimed by low- and middle-income filers on Schedule A; and (3) the deduction for qualified tuition and related expenses claimed on Form 8917.

February 2018

Charitable Contributions

Lower Court Reversed; Deduction for Trust's Property Donation Is Limited to Basis: The Tenth Circuit Court reversed a district court and held that a trust's deduction for its charitable donation of real property was the trust's basis in the property and not the fair market value. The Tenth Circuit rejected the district court's interpretation of Code Sec. 642(c)(1) and concluded that the deduction thereunder was limited the trust's adjusted basis in donated properties and that the unrealized appreciation in the donated property was not part of the trust's gross income as required under Code Sec. 642(c)(1), which permits a trust to deduct a charitable contribution only if it comes from the trust's gross income. Green v. U.S., 2018 PTC 6 (10th Cir. 2018). Read More...


Tax Court Limits Real Estate Developer's Losses; Rejects Penalty Assessment: The Tax Court held that a individual who owned undeveloped land, sold custom built homes, and owned rental properties (1) had a capital, not ordinary, loss on the sale of property held for investment, (2) was entitled to deduct expenses as investment expenses under Code Sec. 212, and (3) was barred by the passive activity rules from deducting rental expenses because he did not materially participate in the business. However, the Tax Court determined that accuracy-related penalties did not apply because the taxpayer reasonably relied on his accountant to prepare his returns. Conner v. Comm'r, T.C. Memo. 2018-6. Read More...

January 2018


NEW - In-Depth Analysis of Section 199A Deduction for Qualified Business Income: Become a Section 199A Expert with Parker's in-depth explanation and analysis of the new tax break, featuring dozens of original examples, planning tips, and insightful observations. Read More...

Three New TCJA Quick Reference PDFs Available: Parker's Quick Reference database now includes three detail-packed, downloadable guides for the Tax Cuts and Jobs Act of 2017 (TCJA). Arranged in an easily accessible table format, the guides provide the key rules, rates, amounts, and thresholds for more than 100 TCJA provisions.
1. TCJA Provisions Affecting Individuals
2. TCJA Provisions Affecting Businesses
3. TCJA - Deduction for Qualified Business Income
View Downloads


Bankruptcy Court Holds S Corporation Status Is Not Property for Bankruptcy Purposes: A bankruptcy court, in a case of first impression in the Fourth Circuit, held that a Chapter 11 debtor's S corporation status was not property for bankruptcy purposes and that the shareholders' prepetition revocation of the S election could therefore not be avoided as a fraudulent transfer. The court found that the debtor's S corporation status lacked all of the attributes of a property right except for the right to use it to pass through tax liabilities to shareholders and that feature alone was not sufficient for the S election to be treated as a property interest. Health Diagnostic Laboratory, Inc. vs. U.S., 2017 PTC 543 (Bankr. E.D. Va. 2017). Read More...

Bankruptcy Court Upholds IRS Position on Tax Lien: In In re Hutchinson, 2018 PTC 1 (Bankr. E.D. Calif. 2018), a bankruptcy court granted the government's motion to dismiss after holding that Bankruptcy Code Section 551 controls when a bankruptcy trustee avoids a lien and, if the trustee avoids an IRS lien, Code Section 551 authorizes the trustee to preserve the lien for the benefit of the estate's creditors. The court noted that the Bankruptcy Code precludes debtors from avoiding an IRS tax lien for penalties and, because the debtors in the instant case cannot avoid this lien, they cannot preserve it for their own benefit.


District Court Holds That Settlement Proceeds Were Nontaxable, but Disallows Deduction of Legal Fees: A district court held that a taxpayer who settled a lawsuit against an accounting firm for failing to properly form an S corporation and an employee stock ownership plan, did not have to include $800,000 in settlement proceeds in income because the proceeds constituted a nontaxable return of capital. However, the taxpayer could not deduct the legal fees he incurred as business expenses because they were personal to him. The court also disallowed a deduction for the difference between the taxes paid as a result of the accounting firm's error and the settlement proceeds. McKenny v. U.S., 2018 PTC 2, (M.D. Fla. 2018). Read More...


IRS Revises Covered Compensation Tables for 2018: In Rev. Rul. 2018-4, the IRS issued revised covered compensation tables that are effective January 1, 2018. These tables supersede the tables previously released in Rev. Rul. 2017-22. Rev. Rul. 2018-4.

Employee Benefits

IRS Issues Annual Procedure on Employee Plans and Tax-exempt and Government Entities: In Rev. Proc. 2018-4, the IRS issued an annual revenue procedure that provides advice to taxpayers on issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, Employee Plans Rulings and Agreements Office (Employee Plans Rulings and Agreements). It also details the types of advice that is available to taxpayers, and the manner in which such advice is requested and provided.

Exempt Organizations

Nonprofit Teaching Hospitals Subject to Income Tax on Fees from Third-Party Vendors: The Tax Court held that fees received by a nonprofit membership organization, whose members consist primarily of teaching hospitals operating in New Jersey, under contracts with third parties were not excluded from unrelated business taxable income as either (1) royalties under Code Sec. 512(b)(2), or (2) amounts received in a trade or business carried on primarily for the convenience of the organization's members under Code Sec. 513(a)(2). New Jersey Council of Teaching Hospitals v. Comm'r, 149 T.C. No. 22. Read More...

Founder of Association for Honest Attorneys Engaged in Excess Benefit Transactions: In Farr v. Comm'r, T.C. Memo. 2018-2, the Tax Court held that an attorney who formed a Code Sec. 501(c)(3) tax-exempt organization called Association for Honest Attorneys (AHA), and who made payments from AHA's bank account for her son's tuition to military school, vet bills, and to pay for the exhumation and DNA testing of her father's remains, was a disqualified person who engaged in excess benefit transactions with AHA. As a result, the court concluded that the taxpayer was liable for excise taxes under Code Sec. 4958 of approximately $79,000.


Extended Limitations Period Did Not Apply to Omissions in Years Before Foreign Asset Reporting Applied: The Tax Court held that the IRS was barred by the three-year statute of limitations period from assessing deficiencies and accuracy-related penalties on a taxpayer's omission of income earned on foreign assets in years before the enactment of the foreign account reporting requirement in Code Sec. 6038D. The Tax Court found that the six year statute of limitations under Code Sec. 6051 for such omissions applies only to years for which there was a Code Sec. 6038D foreign asset reporting requirement. Rafizadeh v. Comm'r, 150 T.C. No. 1 (2018). Read More...

IRS Announces Intention to Issue Subpart F Regulations: In Notice 2018-7, the IRS announced that it intends to issue regulations for determining amounts included in gross income by a U.S. shareholder under the Subpart F rules of Code Sec. 951(a)(1). The notice describes the regulations the IRS intends to issue as well as the proposed effective dates of those regulations.

IRS Suspends Application of New Code Section 1446(f) for Certain Dispositions: In Notice 20128-8, the IRS announced the suspension of the application of new Code Sec. 1446(f) in the case of a disposition of certain publicly traded partnership interests. The notice provides background on new Code Sec. 864(c)(8) and Code Sec. 1446(f) and describes the revised timeline for the application of new Code Sec. 1446(f) to a disposition of certain interests in publicly traded partnerships.

Innocent Spouse

Taxpayer Qualifies for Innocent Spouse Relief: In Bishop v. Comm'r, T.C. Summary 2018-1, the Tax Court held that a taxpayer was entitled to innocent spouse relief with respect to the tax liability arising from the failure to report on a joint return a distribution from his former spouse's separately owned retirement account. The court concluded that, while the history of the withdrawals from the retirement account used by the taxpayer and his ex-spouse supported a conclusion that the taxpayer should have known about the distribution, there was no evidence that the taxpayer saw the bank records before the joint return was filed and his denials were not incredible, implausible or contradicted by direct evidence.

Court Denies Innocent Spouse Relief Where No Evidence Existed of Abuse or Financial Control: In Lessard v. Comm'r, T.C. Summary 2017-95, the Tax Court held that a taxpayer was not entitled to innocent spouse relief from her 2013 joint tax return liability after the court reviewed the relevant factors in Rev. Proc. 2013-34 and concluded that such factors did not favor relief for the taxpayer. The court noted that there was no evidence of abuse or exercise of financial control by the taxpayer's ex-husband and concluded that the taxpayer should have known of the understatement reflected on the joint return.


IRS Finalizes Rules on Opting Out of Centralized Partnership Audit Rules: The IRS issued a final regulation on who can elect out of the centralized partnership audit regime and the manner in which such election must be made. In the final rule, the IRS declined to expand the types of taxpayers eligible to make the opt-out election even though Congress authorized it to do so, saying that such an expansion would increase the IRS's burden with respect to auditing such taxpayers. T.D. 9829. Read More...


Court Upholds 40 Percent Penalty after Charitable Deduction Is Denied: In Roth v. Comm'r, the Tax Court held that, with respect to a 40 percent penalty assessed on a couple with respect to a conservation easement charitable deduction that was subsequently denied, the IRS complied with the requirements of Sec. 6751(b) in assessing the penalty and the court found the couple liable for the penalty. The court also denied a deduction for the repayment of proceeds relating to a state tax credit that had been sold and had to subsequently be repaid as a result of the denial of the charitable deduction.

Tax Preparers

Tax Return Preparer Hit with 75 Percent Fraud Penalty: In Ankerberg v. Comm'r, T.C. Memo. 2018-1, the Tax Court held that a CPA, who prepared tax returns and underreported gross receipts and claimed excessive deductions on Schedules C, Profit or Loss from Business, was liable for the 75 percent fraud penalty under Code Sec. 6663. The court rejected the taxpayer's claim that various serious medical problems during the years at issue constituted reasonable cause for the deficiencies, instead finding that the taxpayer had not overcome the clear and convincing evidence of fraud.

Property Tax

Prepaid 2018 Real Property Taxes Are Deductible in 2017 If Assessed and Paid in 2017: The IRS is advising taxpayers that 2018 state and local real property taxes prepaid in 2017 may be deductible if the 2018 taxes are assessed in 2017. However, a prepayment of anticipated real property taxes that have not been assessed prior to 2018 are not deductible in 2017. IR-2017-210. Read More...

December 2017


IRS Issues January 2018 AFRs: In Rev. Rul. 2018-1, the IRS issued the applicable federal rates for January 2018. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate.


Couple's Actions Precluded Tax Debt from Being Discharged in Bankruptcy: In Faulk v. Comm'r, T.C. Summary 2017-92, the Tax Court upheld an IRS determination to proceed with a collection action against a couple who had argued that their 2006 tax debt had been discharged in bankruptcy. In reaching its conclusion, the court found that the couple had filed their tax return for 2006 more than four years after it was due and more than two months after the date the couple filed their bankruptcy petition and thus, consistent with Section 523(a)(1)(B) of the Bankruptcy Code, it followed that their 2006 tax liability was not discharged in bankruptcy.


Guidance Under Section 409A Issued for Pre-2009 Section 457A Deferrals: In Notice 2017-75, the IRS provides guidance on the application of Code Sec. 409A and Code Sec. 457A by addressing the transition provisions enacted as part of Code Sec. 457A, that generally provide that amounts deferred and attributable to services before January 1, 2009, that would otherwise have been subject to inclusion in income under Code Sec. 457A, are includible in gross income in the later of the last tax year beginning before 2018 or the date of vesting. The notice provides that service recipients may accelerate distributions to pay federal and state taxes on amounts includible in 2017 and later years without violating Code Sec. 409A.


Mixture of Butane and Gasoline Is Not an Alternative Fuel Mixture Qualifying for Credit: In Rev. Rul. 2018-2, the IRS ruled that a mixture of butane (or other gasoline blendstock as defined in Reg. Sec. 48.4081-1(c)(3)(i)) and gasoline is a mixture of two taxable fuels. As a result, the IRS concluded that it is not an alternative fuel mixture and does not qualify for the alternative fuel mixture credit under Code Sec. 6426(e).


Package of Films Licensed to Customers May Be an "Item" under Section 199: In Rev. Rul. 2018-3, the IRS ruled that a package of films licensed to customers in the normal course of business may be an item under Reg. Sec. 1.199-3(d)(1)(i) for purposes of determining the domestic production activities deduction under Code Sec. 199. According to the IRS, this holding does not affect the characterization of the property for any other purpose of the Code.

Court Denies Education Expense Deduction But Allows Education Credit: In Pemberton v. Comm'r, T.C. Summary 2017-91, the Tax Court held that a taxpayer could not take a deduction on his 2013 tax return for education expenses incurred in obtaining a jurisprudence degree because he had not met his burden of proving that the degree maintained or improved skills required by his employment as a tutor and test proctor. However, the court concluded that the taxpayer was entitled to a Lifetime Learning Credit equal to 20 percent of the first $10,000 in eligible tuition and related expenses that the taxpayer paid in 2013.

Speech Pathologist Can't Deduct Expenses Incurred for Master's Degree and Other Certificate: In Colliver v. Comm'r, T.C. Summary 2017-93, the Tax Court held that a medical speech pathologist did not qualify for an education expense deduction on her 2013 return because the tasks and activities that she was qualified to perform after earning a master's degree and a certificate of clinical competency (CCC) were significantly different from those she could perform before pursuing this education. The court noted that, before receiving her master's degree and CCC, the taxpayer could not work at a hospital and perform "barium swallow studies," tasks that she was eligible to perform after receiving her master's and CCC.

Taxpayer Can't Deduct as Alimony Employment-Related Bonus Payments to Ex-wife: In Koester v. Comm'r, T.C. Summary 2017-88, the Tax Court held that payments by a taxpayer to his ex-wife of an amount equal to a portion of an employment-related bonus that the taxpayer received in 2012 was not deductible as alimony. According to the court, there was no evidence that the obligation to make the payments, which were required under a divorce agreement, would have stopped if the taxpayer's ex-wife had died.

Taxpayer Can't Take Capital Loss on the Sale of Property to Ex-wife: In Stapleton v. Comm'r, T.C. Summary 2017-87, the Tax Court held that Code Sec. 1041(a) barred a taxpayer from recognizing a capital loss that he realized on a sale of property to his ex-wife. The court rejected the taxpayer's argument that a transfer of property between former spouses relates to the cessation of the marriage only where the transfer is made as consideration for an outstanding marital obligation, after concluding that neither Code Sec. 1041(a), the temporary regulation under that provision, nor the legislative history imposed such a restriction on applying Code Sec. 1041(c).

Father Can't Rely on Divorce Judge's Statement "Awarding" Him Benefits for Child: In Shvetsov v. Comm'r, T.C. Summary 2017-89, the Tax Court held that a divorced father was not entitled to head of household filing status and an earned income credit with respect to one of his children because he did not meet the applicable requirements. The court dismissed the taxpayer's argument that, in his divorce proceedings, a Washington State court judge assured him that he would be entitled to all of the federal tax benefits for one of his children and on that basis he had agreed to pay a certain amount of child support.

No Deduction Available for Disgorgement Payments Made for Violating Securities Law: In CCM 201748008, the Office of Chief Counsel advised that Code Sec. 162(f) prohibits a deduction under Code Sec. 162(a) for disgorgement payments made for violating a federal securities law. In reaching its conclusion, the Chief Counsel's Office cited the Supreme Court's decision in Kokesh v. SEC, 137 S. Ct. 1635 (2017), in which the Court held that because disgorgement payments are penalties and are not compensatory, no deduction is allowed.

Employment Taxes

Former Partners of Defunct Law Firm Liable for $700,000 in Trust Fund Taxes: In Spizz v. U.S., 2017 PTC 541 (S.D. N.Y. 2017), a district court concluded that two partners of a now defunct law firm were jointly liable for almost $700,000 of trust fund taxes after finding that the law firm had unencumbered assets available to pay down its outstanding employment tax liability and the failure of the partners to apply those assets toward the trust fund tax liabilities constituted willfulness. The court noted that while the Second Circuit, to which the case would be appealable to, had not settled on a definition of "unencumbered assets," the circuits that have addressed the issue have established a narrow rule that only a legal prohibition on the expenditures of funds renders assets encumbered.

Exclusions from Gross Income

Court Rejects Request for Partial Refund of Taxes of Non-Minister Housing Allowance: In Gaylor v. Mnuchin, 2017 PTC 564 (W.D. Wisc. 2017), a district court issued a supplemental ruling following its earlier holding that Code Sec. 107(2), which excludes a minister's housing allowance from the minister's gross income, violated the First Amendment. In the supplemental ruling, the court rejected the taxpayers' request for a partial refund of taxes they paid but which would have been reduced if they had been permitted to claim a housing allowance as an exclusion of income under Code Sec. 107(2).

Exempt Organizations

IRS Requests Comments on Excise Taxes on Certain Donor Advised Funds: In Notice 2017-73, the IRS issued guidance describing approaches that it is considering to address certain issues regarding donor advised funds (DAFs) of sponsoring organizations and requesting comments on those approaches. The IRS is considering developing proposed regulations under Code Sec. 4967 that would, if finalized, provide that: (1) certain distributions from a DAF that pay for the purchase of tickets that enable a donor, donor advisor, or related person under Code Sec. 4958(f)(7) to attend or participate in a charity-sponsored event result in a more than incidental benefit to such person under Code Sec. 4967; and (2) certain distributions from a DAF that the distributee charity treats as fulfilling a pledge made by a donor, donor advisor, or related person, do not result in a more than incidental benefit under Code Sec. 4967 if certain requirements are met.


IRS Extending Qualified Securities Lender Regime for 2018 and 2019 Payments: In Notice 2018-05, the IRS said it is permitting withholding agents to apply in 2018 and 2019 the transition rules from Notice 2010-46, which addresses potential overwithholding in the context of securities lending and sale repurchase agreements and which provides a two-art solution to the problem of overwithholding on a chain of dividends and dividend equivalents. The IRS said it has decided to extend the qualified securities lender regime described in Notice 2010-46, Part III, but only for payments made in calendar years 2018 and 2019 and, during this period, it intends to consider whether additional guidance is appropriate to address the particular circumstances of foreign lenders of U.S. dividend-paying stocks.

Gross Income

Russian Student Must Include University Payments in Income: In Dovzhenok v. Comm'r, T.C. Summary 2017-86, the Tax Court held that payments made by Indiana University-Purdue University Indianapolis to a Russian citizen who held an F-1 student visa, and which totaled $18,917 during 2009 and $19,708 during 2010, were not exempt from federal income tax under the Russia - U.S. tax treaty. According to the court, the taxpayer failed to prove that he was the recipient of a grant, allowance, or other similar tax exempt-type of payment.

IRS Procedure

D.C. District Court Again Denies IRS the Right to Charge Fees for PTINs: In Steele v. U.S., 2017 PTC 568 (D. D.C. 2017), the U.S. District Court for the District of Columbia denied a motion by the IRS for a stay of the court's prior order enjoining the IRS from charging fees to issue a preparer tax identification number (PTIN). The court said the IRS had not presented any new information that would change the court's previous decision.

Court Rejects Argument That IRS Lacked Probable Cause in Levying Bank Account: In Certified Enters, Inc. v. U.S., 2017 PTC 547 (D. Mo. 2017), a district court rejected a corporation's motion for summary judgment with respect to a lawsuit in which it argued that the IRS lacked probable cause to levy on its bank accounts for a tax debt owed by a delinquent taxpayer that the IRS said was the alter ego of the corporation. The court noted that the Eighth Circuit, the circuit to which the case is appealable, has found that probable cause existed (without holding that it was necessary) where the IRS levied property on the basis of a single piece of evidence supporting a nexus between that property and the delinquent taxpayer.

IRS Extends Due Date for Furnishing Statements Relating to Health Insurance Coverage: In Notice 2018-6, the IRS announced that it is extending the due date for certain 2017 information-reporting requirements for insurers, self-insuring employers, and certain other providers of minimum essential coverage under Code Sec. 6055 and for applicable large employers under Code Sec. 6056. Specifically, the IRS is (1) extending the due date for furnishing to individuals the 2017 Form 1095-B, Health Coverage, and the 2017 Form 1095-C, Employer-Provided Health Insurance Offer and Coverage, from January 31, 2018, to March 2, 2018, and (2) extending good-faith transition relief from Code Sec. 6721 and Code Sec. 6722 penalties to the 2017 information-reporting requirements under Code Sec. 6055 and Code Sec. 6056.

Taxpayer Can't Collect Damages Relating to Refund and Delinquent Student Loan Debt Mixup: In Ivy v. Comm'r, 2017 PTC 567 (D.C. Cir. 2017), the D.C. Circuit dismissed a taxpayer's lawsuit after concluding that the taxpayer could not use Code Sec. 7433(a) to recover damages he claimed to have suffered as a result of a mix-up relating to a delinquent student loan debt and a tax refund due him on his 2011 income tax return. According to the court, Code Sec. 7433(a) waives the government's sovereign immunity only for damages suffered in connection with the collection of federal taxes, and the taxpayer's injury (if any) related to the collection of a student loan debt.

Court Refuses to Sustain Levy after Finding IRS Appeals Officer Abused His Discretion: In Credex, Inc. v. Comm'r, T.C. Memo. 2017-241, the Tax Court refused to sustain an IRS levy notice after finding that an IRS Appeals officer abused his discretion in a case involving a taxpayer's Federal Insurance Contributions Act (FICA) tax liabilities relating to periods in the mid- to late-1990s. The court found that the officer had not applied all of certain stipulated credits to the taxpayer's accounts and, because the officer's determination lacked a sound basis in law and fact, he had abused his discretion.

IRS Issues Quarterly Interest Rates for Tax Overpayments and Underpayments: In Rev. Rul. 2017-25, the IRS issued the rates for interest on tax overpayments and underpayments for the first calendar quarter of 2018, beginning January 1, 2018. The interest rates will be 4 percent for overpayments (3 percent in the case of a corporation), 4 percent for underpayments, 1 and one-half percent for the portion of a corporate overpayment exceeding $10,000, and 6 percent for large corporate underpayments.

Retirement Plans

IRS Updates Mortality Tables for Defined Benefit Pension Plans: In Notice 2018-2, the IRS issued updated mortality improvement rates and static mortality tables to be used for defined benefit pension plans under Code Sec. 430(h)(3)(A) and Section 303(h)(3)(A) of the Employee Retirement Income Security Act of 1974, as amended. These updated mortality improvement rates and static tables, which are being issued pursuant to the regulations under Code Sec. 430(h)(3)(A), apply for purposes of calculating the funding target and other items for valuation dates occurring during calendar year 2019.

IRS Lists Plan Qualification Requirements That Took Effect in 2017: In Notice 2017-72, the IRS issued the 2017 Required Amendments List for individually designed qualified retirement plans. The list identifies certain changes in qualification requirements that became effective in 2017 that may require a retirement plan to be amended in order to remain qualified, and establishes the date by which any necessary amendment must be made.

Tax Return Preparers

Court Grants Injunction Forbidding Individuals from Preparing Tax Returns: In U.S. v. CDP Accounting Services, P.C., 2017 PTC 539 (E.D. Mich. 2017), a district court granted a permanent injunction forbidding certain individuals that operated a tax return preparation business from ever engaging in the business of preparing income tax returns after finding that the individuals had filed numerous fraudulent returns that claimed false deductions and understated the amount of tax due. Several individuals for whom returns had been prepared testified that their tax returns contained deductions for made up expenses, such as a deduction for non-cash donations of more than $30,000 in one case.

November 2017


IRS Issues December 2017 Applicable Federal Rates: In Rev. Rul. 2017-24, the IRS issued the applicable federal rates for December 2017. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, and the adjusted federal long-term tax-exempt rate.

32 Key Differences Between the House and Senate Tax Reform Bills: As the House votes to approve its tax reform bill (House Bill) and the Senate Finance Committee debates and amends its own bill (Senate Bill), there remain dozens of differences between the two proposals. Read More...

Parker's Explanation of the House Tax Reform Bill (TCJA 2017): On Thursday, November 2, 2017, the House released its long-awaited tax reform package in H.R. 1, Tax Cuts and Jobs Act (TCJA; "the Bill"). Most of the changes in the Bill would go into effect for tax years beginning after 2017. An in-depth explanation of the Bill's key provisions follows. Read More...

In-Depth: 2017 Year-End Tax Planning for INDIVIDUALS: The first installment of Parker's annual two-part series on year-end tax planning recaps 2017's major changes affecting individual taxpayers, and strategies clients can use to minimize their 2017 tax bill. The online version of the article includes links to sample year-end client letters for individuals and businesses. Read More...

CPA Client Letters: Year-End Tax Planning For 2017:
2017 Year-End Tax Planning for INDIVIDUALS.
2017 Year-End Tax Planning for BUSINESSES.

IRS Issues November 2017 AFRs: In Rev. Rul. 2017-21, the IRS issued the applicable federal rates for November 2017. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate, and are determined as prescribed by Code Sec. 1274.


No Discharge of Tax Debts in Bankruptcy for Couple with High Income, Extravagant Lifestyle: A bankruptcy court held that a married couple's tax debts were not dischargeable because the couple had intentionally failed to pay their tax debt while realizing millions in income and sustaining high levels of spending on personal items. The bankruptcy court was not persuaded that the couple's spending was necessary to earn income and found that they had intentionally made offers in compromise to delay collection on the debt. Feshbach v. U.S., 2017 PTC 482 (Bankr. M.D. Fla. 2017). Read More...

Compensation and Benefits,/

IRS Provides 15-Year Sec. 481 Adjustment Period for Elections under Sec. 404A: In Rev. Proc. 2017-59, the IRS modified Rev. Proc. 2015-13 to specify that the Code Sec. 481 adjustment period with respect to an election under Code Sec. 404A, relating to a deduction for certain foreign deferred compensation plans, is 15 tax years for a positive Code Sec. 481(a) adjustment and 15 tax years for a negative Code Sec. 481(a) adjustment. This revenue procedure is effective for Forms 3115 filed under Rev. Proc. 2015-13 on or after November 13, 2017.


Alimony Deduction Disallowed for Lack of Unambiguous Termination Provision: In Logue v. Comm'r, T.C. Memo. 2017-234, the Tax Court held that a taxpayer was not entitled to an alimony deduction for payments made to his ex-wife in 2010 because (1) a marital settlement agreement signed by the taxpayer and his ex-wife did not contain an unambiguous provision terminating the taxpayer's obligation to pay his ex-wife in the event of her death, and (2) the obligation would not have terminated in the event of his ex-wife's death by operation of Texas law. The court also held that the taxpayer failed to carry his burden of establishing that there was reasonable cause for, and that he acted in good faith with respect to, the underpayment of tax relating to the alimony deduction and was thus liable for an accuracy-related penalty.

Obtaining Life Insurance to Ensure Alimony Payments Doesn't Indicate Payments Would Terminate at Death: In Wolens v. Comm'r, T.C. Memo. 2017-236, the Tax Court concluded that a taxpayer was not entitled to an alimony deduction after finding nothing in the couple's divorce order indicating that the payments being made by the taxpayer would terminate on the death of his ex-wife. In reaching its conclusion, the court (1) did not view the taxpayer's agreement to cooperate with his ex-wife's obtaining life insurance on his life to secure payments to her as indicating that payments would terminate on her death, and (2) found that the section in the divorce order requiring lump-sum payments was a division of the couple's assets rather than support payments to the ex-wife.

Couple Can't Deduct Short-Term Capital Loss Upon Transfer of Personal Assets to S Corp: In Smith v. Comm'r, T.C. Memo. 2017-218, the Tax Court held that a couple was not entitled to a short-term capital loss relating to the dissolution of an S corporation into which they had transferred their personal assets of cash and marketable securities and which had, in turn, transferred such assets to a family limited partnership. The court found that the couple's receipt of the partnership interest in the dissolution of the S corporation and the couple's use of a substantially discounted value for the assets held by the partnership to be transactions lacking in economic substance and upheld penalties assessed by the IRS.

Employee Benefits

IRS Provides Guidance on Qualified Small Employer Health Reimbursement Arrangements: In Notice 2017-67, the IRS provides the requirements for providing a qualified small employer health reimbursement arrangement (QSEHRA) under Code Sec. 9831(d), the tax consequences of the arrangement, and the requirements for providing written notice of the arrangement to eligible employees. To be an eligible employer that may provide a QSEHRA, the employer must not be an applicable large employer, as defined in Code Sec. 4980H(c)(2) and the regulations thereunder (and, thus, may not be an employer that, generally, employed at least 50 full-time employees, including full-time equivalent employees, in the prior calendar year), and must not offer a group health plan (as defined in Code Sec. 5000(b)) to any of its employees.

Estates, Gifts, and Trusts

Chief Counsel's Office Rejects Appeal by Trust for Refund Relating to a Charitable Deduction: In CCM 201747005, the Office of Chief Counsel responded to a trust's appeal regarding a refund request involving a charitable distribution deduction that had been denied and concluded that Code Sec. 642(c)(1) requires that a charitable distribution must be made pursuant to the terms of a trust's governing instrument, and a court order modifying a will in the absence of a controversy involving the interpretation of the instrument is not "pursuant to the terms of the governing instrument." The Chief Counsel's Office thus rejected the trust's refund request, as well as its argument that the decisions in Crown Income Charitable Fund v. Comm'r, 8 F.3d 571 (7th Cir. 1993), and Brownstone v. U.S., 465 F.3d 525 (2d Cir. 2006), did not support a narrow interpretation of Code Sec. 642(c)(1).

Exclusions from Gross Income

Chinese Professor Not Exempt from U.S. Tax under U.S. - China Treaty: In Ye v. Comm'r, T.C. Memo. 2017-216, the Tax Court held that wages earned by an assistant professor, who was a Chinese citizen and a U.S. resident, were not exempt from U.S. tax under article 19 of the U.S. - China treaty since that provision only applies to persons who are temporarily present in the United States. The court rejected her argument that, at the time she filed the applicable tax returns, she was only "temporarily present" in the United States because a variety of contingencies could have resulted in her returning to China.

Gross Income

Employer's Purchase of Life Insurance Policy on Taxpayer Results in Imputed Income to Taxpayer: In Ramsay v. Comm'r, T.C. Memo. 2017-223, the Tax Court held that a taxpayer's taxable income included imputed income of $891 as a result of a former employer's purchase of a life insurance policy on the taxpayer. The court also held that it had jurisdiction to determine the taxpayer's liability for interest on the deficiency that resulted from not including the $891 in taxable income.

IRS Provides Guidance on Employer-Leave Based Donation Program for Wildfire Victims: In Notice 2017-70, the IRS advised that it will not assert that cash payments an employer makes to Code Sec. 170(c) organizations in exchange for vacation, sick, or personal leave that its employees elect to forgo constitute gross income or wages of the employees if the payments are: (1) made to the Code Sec. 170(c) organizations for the relief of victims of the 2017 California Wildfires; and (2) paid to the Code Sec. 170(c) organizations before January 1, 2019. Similarly, the IRS said that it will not assert that the opportunity to make such an election results in constructive receipt of gross income or wages for employees, but noted that electing employees may not claim a charitable contribution deduction under Code Sec. 170 with respect to the value of forgone leave excluded from compensation and wages.


IRS Issues Hurricane Guidance Relating to Certain CFC Obligations Held by U.S. Persons: In Notice 2017-68, the IRS announced that, for purposes of Code Sec. 956, if a controlled foreign corporation (CFC) holds an obligation of a U.S. person, such obligation will be considered to satisfy the requirements of Code Sec. 956(c)(2)(C) and Reg. Sec. 1.956-2(b)(1)(v) to be excluded from U.S. property, if (1) the obligation was received in exchange for property that, if transported to the United States for temporary storage for safekeeping in anticipation of, or as a result of, Hurricane Irma or Hurricane Maria, would not cause a CFC to be treated as holding U.S. property pursuant to Notice 2017-55, and (2) the obligation ceases to be outstanding on or before March 31, 2018. An obligation of a U.S. person that does not meet the conditions in the preceding sentence may nevertheless be excludable from U.S. property under Code Sec. 956(c)(2)(C) and Reg. Sec. 1.956-2(b)(1)(v) depending on all of the facts and circumstances.

No Foreign Tax Credit Allowed Where Investment Is Treated as Debt, Not Equity: In Hewlett-Packard Company and Subs v. Comm'r, 2017 PTC 509 (9th Cir. 2017), the Ninth Circuit affirmed the Tax Court's holding that an investment by the taxpayer could not be treated as equity for which the taxpayer could claim foreign tax credits. While acknowledging a circuit split on the issue of whether the debt versus equity question is one of law, fact, or a mix of the two, the Ninth Circuit explained that the best way to read circuit precedent was that the test is "primarily directed" at determining whether the parties subjectively intended to craft an instrument that is more debt-like or equity-like, taking into account eleven factors set forth in A.R. Lantz Co. v. U.S., 424 F.2d 1330 (9th Cir. 1970).


Ninth Circuit Upholds Sanctions on Attorney for Advancing Frivolous Positions: In MacPherson v. Comm'r, 2017 PTC 513 (9th Cir. 2017), the Ninth Circuit held that the Tax Court did not abuse its discretion in ordering an attorney to pay excess costs pursuant to Code Sec. 6673(a)(2) because he had counseled his taxpayer clients to maintain frivolous positions. The court found that, on behalf of his clients, the attorney had advanced a position contrary to established law and unsupported by fact and that he knew his position would be unsuccessful.

Late Filing Penalties Apply Even Where Return Shows a Refund: In Parekh v. Comm'r, T.C. Memo. 2017-227, the Tax Court held that a couple, who was owed a tax refund, was liable for late filing penalties because they did not establish a reasonable cause for filing their tax return 15 months late. The court noted that the couple had a history of filing their income tax returns late and seemed to believe that the filing deadlines were not important when they were expecting a refund.


Letter from SSA Demonstrated Legitimate Question as to Whether Tax Liability Had Been Satisfied: In Gage v. U.S., 2017 PTC 523 (9th Cir. 2017), the Ninth Circuit reversed a district court's judgment that the IRS could, under Code Sec. 6334(e)(1), levy on a couple's principal residence for nonpayment of taxes. The court concluded that the receipt by a couple of a notice from the Social Security Administration informing the wife that the IRS would no longer take money out of her monthly social security payment because she no longer owed the IRS any money raised a genuine issue of material fact as to whether the underlying tax liability had been satisfied.

Corporation Can't Get Refund of Excise Tax Paid by Customers: In Worldwide Equipment of TN, Inc. v. U.S., 2017 PTC 521 (6th Cir. 2017), the Sixth Circuit affirmed a district court's dismissal of a corporation's refund claim because the requirement under Code Sec. 6416(a) that the corporation show that it made arrangements to avoid double payments by submitting written customer consent forms had not been met. The corporation had remitted a 12 percent federal excise tax collected from purchasers of its heavy duty trucks, and sought a refund from the IRS because, it claimed, the trucks qualified as exempted, "off-highway" vehicles under Code Sec. 7701(a)(48).

Sign Language Interpreters Aren't Required to Sign Non-disclosure Agreement: In CCA 201746025, the Office of Chief Counsel advised that a contract under which sign language interpreters operate, which holds them to all the criminal and civil penalties that apply to the unauthorized disclosure of tax data, was sufficient assurance to taxpayers that their confidential tax data is being adequately protected. According to the Chief Counsel's Office, there is no basis for an interpreter to be required to sign a non-disclosure agreement furnished by a taxpayer.

Court Affirms Conviction of Brothers Who Owned Strip Club Business That Kept Two Sets of Books: In U.S. v. Kiraz, 2017 PTC 499 (9th Cir. 2017), the Ninth Circuit affirmed the conviction of two brothers who engaged in a scheme to underreport a family-run strip-club business' income by failing to report door fees, which were charged for customer entry, and house fees, which were charged for working as a dancer. The court noted that the jury heard evidence that one of the brothers participated in a scheme to maintain two sets of books and that the other brother knowingly aided in that scheme.

Retirement Plans

No Deduction Allowed for UBTI Losses Sustained by Partnerships Held in Individual's IRAs: In Fish v. Comm'r, 2017 PTC 478 (2017), the Ninth Circuit affirmed the Tax Court and held that a taxpayer could not deduct on his personal return unrelated business taxable income (UBTI) losses sustained by two partnerships held in an individual retirement account (IRA). The court noted that, while IRAs are generally tax-exempt, they are subject to the taxes imposed by Code Sec. 511 on the UBTI of organizations in which they invest and there is no provision for the pass-through of UBTI losses to an IRA beneficiary's personal tax return.

IRS Provides Relief for Victims of Hurricane Maria and California Wildfires: In Announcement 2017-15, the IRS is providing relief to victims of Hurricane Maria and the recent California wildfires, which caused damage to Puerto Rico, the U.S. Virgin Islands, and parts of California. It permits easier access to funds held in workplace retirement plans and in individual retirement accounts, for the period beginning September or October 2017 and ending March 15, 2018.

IRS Provides Covered Compensation Tables for 2018 Plan Year: In Rev. Rul. 2017-22, the IRS provides tables of covered compensation under Code Sec. 401(l)(5)(E) for the 2018 plan year. For purposes of determining covered compensation for the 2018 year, the taxable wage base is $128,700.

Tax Accounting

Company Can Reduce Income Where It Did Not Meet All-Events Test for Accruing Income: In VHC, Inc. and Subsidiaries v. Comm'r, T.C. Memo. 2017-220, the Tax Court held that a corporation did not meet the all-events test for accruing income with respect to a particular client and thus could reduce its income by the amount previously accrued. The court found that the all-events test was not satisfied because the client had initiated a lawsuit contesting the amount it owed.

Tax Return Preparers

CPA Liable for Penalties for Understating Clients' Tax Liabilities: In John Q. Rodgers v. U.S., 2017 PTC 507 (C.D. Calif. 2017), a district court held that a CPA, who operated a tax preparation business, was liable for penalties under Code Sec. 6694 for willful or reckless understatements of liability on nine tax returns he prepared. The court agreed with the IRS that because the CPA did not make reasonable inquiries in situations in which the situations required him to do so, his conduct satisfied the requirements for the assessment of penalties.


October 2017


Section 2704 Regs Withdrawn; IRS Priority Guidance Lists More Regs on the Chopping Block: The IRS has withdrawn controversial regulations issued under Code Sec. 2704 which would have imposed major restrictions on valuation discount planning with respect to intra-family transfers of family owned businesses. The IRS also issued its annual list of projects that it hopes to complete during the 12-month period from July 1, 2017, through June 30, 2018. Unlike in prior years, the list includes regulations which the IRS says it may remove or update because they impose excessive burdens on taxpayers or fail to provide clarity and useful guidance. 82 FR 48013 (10/16/17); IRS 2017-2018 Priority Guidance Plan. Read More...

Disaster Tax Relief Becomes Law; Provides Enhanced Casualty Loss Deductions and Other Tax Breaks to Hurricane Victims: Last week, the President signed into law the Disaster Tax Relief and Airport and Airway Extension Act of 2017 (the Act), providing multiple tax relief measures to victims of Hurricanes Harvey, Irma, and Maria. In addition to increasing the amount of deductions for personal casualty losses and making the deduction available to taxpayers who take the standard deduction, the Act also provides for employment-related tax credits, relaxes retirement plan rules, suspends limitations on charitable contributions, and makes it easier for taxpayers to meet income requirements for the earned income tax credit and the child tax credit. H.R. 3823. Read More...

Updated Hurricane Tax Relief Letters:
CPA Client Letter: Maria Disaster Tax Relief. Updated 10/2017
CPA Client Letter: Harvey Disaster Tax Relief. Updated 10/2017
CPA Client Letter: Irma Disaster Tax Relief. Updated 10/2017

In-Depth Article: GOP Releases Tax Reform Blueprint On September 27, the Trump Administration, the House Committee on Ways and Means, and the Senate Committee on Finance released a nine-page framework for overhauling the tax code ("the framework"). The framework calls for: (1) modest cuts in individual tax rates, to be offset by the elimination of most itemized deductions, (2) repeal of the estate and generation skipping transfer taxes, (3) a maximum 25 percent tax rate on pass-through business income, and (4) a sharp cut in the top corporate tax rate to 20 percent, to be partially offset by elimination of corporate tax preferences. GOP Tax Framework. Read More...

IRS Issues October 2017 AFRs: In Rev. Rul. 2017-20, the IRS issued the applicable federal rates for October 2017. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate, and are determined as prescribed by Code Sec. 1274.


IRS Too Late to Contest Bankruptcy Plan That Reduced Debtor's Tax Debt: In U.S. v. Brothers Materials Ltd, 2017 PTC 491 (S. D. Tex. 2017), a district court affirmed the judgment of a bankruptcy court which confirmed a debtor's Chapter 11 Bankruptcy Plan, which limited the amount the IRS could receive on a tax debt which it said the taxpayer owed. The court noted that the IRS did not object to the debtor's bankruptcy plan or directly appeal the confirmation order and that the time to make such a challenge had long since passed.

Debtor's Tax Liability as a Result of Fraudulent Transfers Isn't a Priority Claim: In In re Kardash, 2017 PTC 434 (M.D. Fla. 2017), a bankruptcy court granted summary judgment to a former minority shareholder and employee of a now-defunct company that owed more than $120 million in taxes and whose two controlling shareholders had siphoned substantially all of the cash out of the company and caused it to go bankrupt. The district court agreed with the debtor that his tax liability from a Tax Court judgment, as the result of his having received about $4.3 million of fraudulent transfers from the company, was not entitled to priority status because the liability arose under state fraudulent transfer law.

Capital Gains

Eleventh Circuit Affirms Tax Court: Sale of Media Company Lacked Valid Business Purpose: The Eleventh Circuit affirmed a Tax Court decision that former shareholders of a media company were liable as transferees for unpaid taxes on gains from the sale of the company's assets through a complex multistep transaction involving an intermediary and several other entities. The Eleventh Circuit concluded that the Tax Court correctly applied federal tax principles of substance over form in determining that the taxpayers were liable under state law for a fraudulent transfer. Shockley v. Comm'r, 2017 PTC 446 (11th Cir. 2017). Read More...


Volume Cap Available for Issuance of New Clean Renewable Energy Bonds: In Notice 2017-66, the IRS identified $379,549,691 of volume cap to be available for reallocation to public power providers (as defined in Code Sec. 54C(d)(2)) for authority to issue new clean renewable energy bonds under Code Sec. 54C for projects to be owned by public power providers. Interested public power providers must submit an application pursuant to the application requirements set forth in Notice 2017-66, including the deadline for submitting the application.

LB&I Directive Allows Credit for Increasing Research Activities If Certain Conditions Met: In LB&I Directive 04-0917-005, the IRS issued guidance on the credit for increasing research activities under Code Sec. 41 for taxpayers that expense research and development costs on their financial statements pursuant to Accounting Standards Codification (ASC) 730. The directive only applies to Large Business & International (LB&I) taxpayers (i.e. assets equal to or greater than $10 million) who follow U.S. GAAP to prepare their Certified Audited Financial Statements.

Couple's Tax Refund Decreased for Premium Assistance Payments Made on Dependent's Behalf: In Gibson v. Comm'r, T.C. Memo. 2017-187, the Tax Court held that advance payments of premium assistance tax credits were made on behalf of a couple's dependent son despite the son's assertions to the contrary. As a result, because the couple's income level made them ineligible for the premium assistance tax credit, their tax for the year at issue was increased and their tax refund correspondingly decreased.


Failure to Subordinate Mortgages Precludes Conservation Easement Deduction: The Tax Court held that the grant of a facade easement by the owner of a building was not a qualified conservation contribution because the mortgages on the building were not properly subordinated to the donee's right to enforce the conservation purposes of the easement. In finding for the IRS, the Tax Court declined to follow the First Circuit's decision in Kaufman v. Shulman, 2012 PTC 204 (1st Cir. 2012), which held that a mortgagee's priority claim to extinguishment proceeds did not cause a conservation contribution to fail to qualify as such under Code Sec. 170(h). Palmolive Building Investors, LLC v. Comm'r, 149 T.C. No. 18 (2017). Read More...

Taxpayer's Travel Expenses Were Incurred While Away from Home: In Barrett v. Comm'r, T.C. Memo. 2017-19, the Tax Court held that Las Vegas was the tax home of a video producer, who lived in Las Vegas but traveled to Washington, D.C. to perform services for a client, and thus the producer was entitled to deduct travel expenses incurred while away from his tax home. However, because the taxpayer did not properly substantiate many of his expenses, he was limited to deducting those expenses the IRS had already allowed and was also subject to penalties for failing to substantiate many of the deductions taken on his return.

Uncle Gets Dependent Deduction and Child-Related Credits; Education Credit Reduced: In Ochoa v. Comm'r, T.C. Summary 2017-78, the Tax Court held that a taxpayer could take a dependency exemption deduction and a child and earned income tax credit with respect to his nephew, and could also file as head of household. However, the court also stated that, while the taxpayer was entitled to an education credit for the year at issue, he could not include expenses for tools used in a weekly workshop in calculating the credit because such expenses did not constitute fees paid to an eligible education institution.

Taxpayer Can't Deduct Costs to Commute to Construction Site: In Tiller v. Comm'r, T.C. Summary 2017-76, the Tax Court held that a taxpayer could not deduct vehicle expenses attributable to the daily round trip mileage between his employer's office and his normal construction job worksite because such expenses were nondeductible commuting expenses. However, after considering the taxpayer's lack of sophistication regarding tax matters, the complexity of the tax laws governing commuting expenses, and the fact that the taxpayer had lost his original mileage logs, the court found that the taxpayer had shown reasonable cause and that he acted in good faith with respect to the portions of the underpayments attributable to the disallowed commuting expenses and thus was not liable for the related penalties.

Disaster Relief

IRS Explains Income and Employment Tax Treatment of Disaster-Related Leave Based Donations: In Notice 2017-62, the IRS provides income and employment tax guidance on the treatment of cash payments made by employers under leave-based donation programs for the relief of victims of Hurricane and Tropical Storm Maria. According to the IRS, it will not assert that cash payments an employer makes to Code Sec. 170(c) organizations in exchange for vacation, sick, or personal leave that its employees elect to forgo constitute gross income or wages of the employees if the payments are: (1) made to the Code Sec. 170(c) organizations for the relief of victims of Hurricane and Tropical Storm Maria; and (2) paid to the Code Sec. 170(c) organizations before January 1, 2019.

Low-Income Housing Units May Be Offered to Hurricane Victims: In IR-2017-165, the IRS announced that it is providing temporary relief from certain requirements of the Internal Revenue Code to allow owners and operators of low-income housing projects located anywhere in the United States and its possessions to provide temporary emergency housing to individuals who are displaced by a major disaster from their principal residences, regardless of income. This special relief, which is detailed in Rev. Proc. 2014-49 and Rev. Proc. 2014-50 authorizes owners and operators, in conjunction with agencies and issuers, to disregard the income limits, transience rules and certain other restrictions that normally apply to low-income housing units when providing temporary emergency housing to displaced individuals.

IRS Provides Limited Waiver of Fuel Penalty Due to Hurricane Irma: In IR-2017-157, the IRS announced that it will not impose a penalty on certain uses of certain adulterated fuels that do not comply with applicable Environmental Protection Agency regulations, in response to shortages of ultra-low sulfur diesel fuel caused by Hurricane Irma. This relief is effective from September 13, through September 22, 2017, or until such dyed diesel reserves are exhausted, whichever is earlier.

Fuel Penalty Waiver Extended for Fuel Sold or Used on Florida Highways: In IR-2017-159, in response to continued shortages of undyed diesel fuel caused by Hurricane Irma, the IRS extended its waiver of penalties for dyed diesel fuel when such fuel is sold for use or used on the highway in the state of Florida. The extension is effective from September 6, through October 6, 2017.

Employee Benefits

Monthly Guidance on Corporate Bond Yield Issued: In Notice 2017-63, the IRS provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under Code Sec. 417(e)(3), and the 24-month average segment rates under Code Sec. 430(h)(2).

Static Mortality Tables for Defined Benefit Pension Plans Issued: In Notice 2017-60, the IRS issued the mortality table to be used for purposes of determining minimum present value under Code Sec. 417(e)(3) and Section 205(g)(3) of the Employee Retirement Income Security Act of 1974 for distributions with annuity starting dates that occur during stability periods beginning in the 2018 calendar year. The mortality table is a modified unisex version of the mortality tables specified under Sec. 430(h)(3)(A), which have been revised pursuant to Sec. 430(h)(3)(B) for plan years beginning in 2018.

IRS Issues Procedure for Requesting Approval to Use Plan-Specific Mortality Tables: In Rev. Proc. 2017-55, the IRS issued procedures by which the sponsor of a defined benefit plan that is subject to the funding requirements of Sec. 430 may request approval from the IRS for the use of plan-specific substitute mortality tables in accordance with Code Sec. 430(h)(3)(C) and Reg. Sec. 1.430(h)(3)-2. The procedure is an update of Rev. Proc. 2008-62, which was issued in conjunction with final regulations under Code Sec. 430(h)(3)(C) that were published on October 6, 2008.

IRS Provides Automatic Approval for Certain Funding Method Changes: In Rev. Proc. 2017-56, the IRS updates Rev. Proc. 2000-40 to take into account the provisions of Code Sec. 430, which was enacted as part of the Pension Protection Act of 2006. The revenue procedure provides automatic approval for certain changes in funding method used for single-employer defined benefit plans for calculations described under Code Sec. 430.

IRS Issues Procedures for Requesting Approval for a Change in Funding Method: In Rev. Proc. 2017-57, the IRS updates Rev. Proc. 2000-41 to take into account the enactment of subsequent legislation. The revenue procedure sets forth the procedure for obtaining IRS approval for a change in the funding method used for a defined benefit plan and also sets forth the procedure for obtaining approval of the IRS to revoke an election relating to interest rates pursuant to Code Sec. 430(h)(2)(D)(ii) or Code Sec. 430(h)(2)(E) and the corresponding sections of ERISA.

Employment Taxes

Social Security Administration Announces 2018 Social Security Wage Base: The Social Security Administration has announced that the maximum wage base for the OASDI (social security) portion of FICA and the Self-Employment Tax for 2018 is $128,700, an increase of $1,500 over last year's amount.

University's Medical Residents Are Subject to FICA: In University of Utah v. U.S., 2017 PTC 433 (D. Utah 2017), a district court granted summary judgment to the government and denied a university's request for a refund of Federal Income Contributions Act (FICA) taxes with respect to certain medical residents. In siding with the government, the court rejected the university's claims that the medical residents are exempt from FICA tax because they are "students" under an agreement between the State of Utah and the Commissioner of Social Security.

Excise Taxes

IRS Grants Temporary Relief Regarding Tax on Undyed Diesel Fuel Removed From Milwaukee Terminals: In Notice 2017-59, the IRS provides rules that claimants seeking a refund for certain fuel excise taxes must follow to submit a refund claim pursuant to temporary relief provided in Notice 2017-30. A claimant may submit a refund claim for the Code Sec. 4081(a)(1) tax imposed on undyed diesel fuel and kerosene for fuel that is (1) removed from a Milwaukee terminal; (2) entered into a Green Bay terminal within 24 hours of removal from that Milwaukee terminal; and (3) subsequently dyed and removed from that Green Bay terminal.

Exclusions from Gross Income

Provision Excluding Clergy Housing Allowance from Income Is Unconstitutional: In Gaylor v. Mnuchin, 2017 PTC 470 (W.D. Wisc. 2017), a district court held that Code Sec. 107(2), which provides that a minister of the gospel can exclude a housing allowance from gross income, is unconstitutional because its purpose and effect is to provide financial assistance to one group of religious employees without any consideration for secular employees who are similarly situated to ministers. Thus, the court concluded that Code Sec. 107(2) violates the establishment clause of the First Amendment.


FinCEN Provides FBAR Relief to California Wildfire Victims: In a Notice issued October 19, 2017, FinCEN announced that California wildfire victims in affected areas of California have until January 31, 018, to file their Report of Foreign Bank and Financial Accounts (FBAR) report for the 2016 calendar year. The FBAR for calendar year 2016 would otherwise have been due October 15, 2017.

CEO Did Not Willfully Fail to File Accurate FBAR by Reporting Only One of Two Swiss Bank Accounts: A district court held that an individual who had two Swiss bank accounts and failed to file a Report of Foreign Bank and Financial Accounts (FBAR) with respect to one of them was not liable for the penalty for willful failure to file an FBAR under 31 U.S.C. Section 5321. The court defined willfulness for purposes of the FBAR penalty as a knowing or reckless violation of the statute and concluded that the taxpayer's conduct did not rise to the level of egregiousness that was found in other cases where the FBAR violation was found to be willful. Bedrosian v. U.S., 2017 PTC 431 (E.D. Pa. 2017). Read More...

Canadian Citizen's Unemployment Compensation Not Exempt under Tax Treaty: The Tax Court held that a Canadian citizen who worked in the United States and later collected U.S. unemployment compensation was not exempt from U.S. income tax on the unemployment compensation under the tax treaty between the Canada and the United States. The Tax Court found that the compensation did not fall under the treaty exemption for salary, wages or other remuneration derived from employment and was taxable in the United States because it arose there. Guo v. Comm'r, 149 T.C. No. 14 (2017). Read More...

IRS Intends to Amend Sec. 987 Regulations: In Notice 2017-57, the IRS announced its intention to amend the regulations under Code Sec. 987 to defer the applicability date of the final regulations under Code Sec. 987. The final regulations under Code Sec. 987 were identified in Notice 2017-38 as significant tax regulations requiring additional review pursuant to Executive Order 13789.

IRS Gives Hurricane Relief to Certain Controlled Foreign Corporation Moving Property to U.S.: In Notice 2017-55, the IRS advised that, in response to the damage caused by Hurricane Irma and Hurricane Maria, including in the Commonwealth of Puerto Rico and the U.S. Virgin Islands, certain controlled foreign corporations (CFCs) may need to transport Code Sec. 1221(a)(1) property located in affected areas to the United States for safekeeping. As a result, the notice provides relief for such property that would otherwise constitute United States property and be subject to unfavorable tax rules in Code Sec. 956.

Corporation Can't Deduct Foreign Taxes Paid in Connection with STARS Transaction: In Wells Fargo & Co. v. U.S., 2017 PTC 429 (D. Minn. 2017), a district court held that, under the sham-transaction doctrine, a corporation could not deduct foreign taxes that it paid in connection with a Structured Trust Advantaged Repackaged Securities (STARS) transaction. The court had previously denied the corporation a foreign tax credit for such taxes.

IRS Delays Start Date for U.S. Financial Institutions to Collect Foreign TINs: In Notice 2017-46, the IRS provides guidance for financial institutions required to collect taxpayer identification numbers (TINs) and dates of birth under temporary regulations or a Model 1 Intergovernmental Agreement (IGA). With respect to U.S. financial institutions, the notice delays the start date of the requirement to collect foreign TINs for account holders to January 1, 2018, provides a phase-in period for obtaining foreign TINs from account holders documented before January 1, 2018, and narrows the circumstances in which a foreign TIN is required.


IRS Will Reject Tax Returns Which Don't Address Healthcare Coverage: In the ACA Information Center for Tax Professionals on, the IRS announced that for the upcoming 2018 filing season, it will not accept electronically filed tax returns, and may delay the processing of paper returns, where the taxpayer does not address the health coverage requirements of the Affordable Care Act (ACA).In accordance with the requirements of the ACA, and to avoid refund and processing delays when filing 2017 tax returns in 2018, taxpayers should indicate whether they and everyone on their return had coverage, qualified for an exemption from the coverage requirement or are making an individual shared responsibility payment.

IRS Expands Exemptions from Mandate to Provide Contraceptive Coverage: In T.D. 9828 and T.D. 9827, the IRS issued final regulations, effective on October 6, 2017, which expand exemptions for certain entities and individuals, whose health plans are subject to a mandate of contraceptive coverage through the Patient Protection and Affordable Care Act, to deny such coverage where they have a religious or moral objection to providing such coverage. According to the preamble, the regulations (1) do not alter the discretion of the Health Resources and Services Administration, a component of the United States Department of Health and Human Services, to maintain the guidelines requiring contraceptive coverage where no regulatory recognized objection exists; (2) provide certain morally objecting entities access to the voluntary "accommodation" process regarding such coverage; and do not alter multiple other federal programs that provide free or subsidized contraceptives for women at risk of unintended pregnancy.

IRS Issues Adjusted Applicable Dollar Amounts for Purposes of Fee Imposed by Secs. 4375 and 4376: In Notice 2017-61, the IRS provides the adjusted applicable dollar amount to be multiplied by the average number of covered lives for purposes of the fee imposed by Code Sec. 4375 and Code Sec. 4376 for policy years and plan years that end on or after October 1, 2017, and before October 1, 2018. Code Sec. 4375 imposes a fee on the issuer of a specified health insurance policy for each policy year ending after September 30, 2012, and before October 1, 2019, while Code Sec. 4376 imposes a fee on the plan sponsor of an applicable self-insured health plan for each plan year ending after September 30, 2012, and before October 1, 2019.

Senate Shelves Graham-Cassidy Healthcare Bill: After Senator Susan Collins (R-Maine) said she would vote "no" on the Graham-Cassidy healthcare bill, which would repeal Obamacare, Senate leaders admitted that they did not have the votes to pass the legislation and have put it aside for the time being. However, Senator Mitch McConnell (R-Ky) also announced that Republicans have not given up on repealing Obamacare, but for now, will move on to overhauling the tax code.


Relationship with Boyfriend Doesn't Entitle Taxpayer to Tax Benefits for His Grandchildren: In Sharp v. Comm'r, T.C. Memo. 2017-208, the Tax Court held that the two biological grandchildren of a taxpayer's live-in boyfriend were not qualifying children with respect to the taxpayer for purposes of (1) taking a dependency deduction; (2) taking the earned income credit; (3) taking a child tax credit; and (4) using the head-of-household filing status. The court rejected the taxpayer's argument that her boyfriend was her common law husband and, thus, his son was her stepson and each of his two children satisfied the necessary relationship requirement entitling the taxpayer to the tax benefits relating to those children.

Involuntary Conversions

Drought-Stricken Farmers and Ranchers Have More Time to Replace Livestock: In Notice 2017-53, the IRS has extended the replacement period under Code Sec. 1033(e) for livestock sold on account of drought in specified U.S. counties. The IRS lists the counties for which exceptional, extreme, or severe drought was reported during the 12-month period ending August 31, 2017.


Only General Partner or Member-Manager Can Be a Tax Matters Partner: In CCA 201742025, the Office of Chief Counsel cited Reg. Sec. 301.6231(a)(7)-1(b)(1) in advising that, to be a tax matters partner (TMP), a person has to be a general partner at some time during the tax year for which the designation is made or a general partner at the time the designation is made. According to the Chief Counsel's Office, for purposes of a limited liability company, a general partner is a member-manager and, thus, the member would need to be a manager either at some point during the tax year at issue or at the time the designation is made.

IRS Prop. Reg. Removes Signature Requirement for Sec. 754 Elections: In REG-116256-17 (10/12/17), the IRS issued Prop. Reg. Sec. 1.754-1(b)(1), which taxpayers may rely on immediately, which removes the signature requirement in Reg. Sec. 1.754-1(b)(1) for making a Code Sec. 754 election. The change is the result of the IRS receiving numerous requests for 9100 relief with respect to unsigned Code Sec. 754 election statements, especially where returns have been filed electronically.


IRS Cannot Add Interest and Penalties to Criminal Restitution Award: The Tax Court, in a case of first impression, held that the IRS may not assess and collect interest and penalties on a restitution award in a criminal conviction for failure to pay tax. The Tax Court found that restitution is treated as if it were a tax, but only for the limited purpose of allowing the IRS to create an account receivable against which the restitution can be credited. Klein v. Comm'r, 149 T.C. No. 15 (2017). Read More...


Taxpayer Gets New Trial After Lower Court Judge Conveyed Guilt of Taxpayer to Jury: In U.S. v. El-Bey, 2017 PTC 485 (7th Cir. 2017), the Seventh Circuit granted a new trial to a taxpayer who had been convicted of mail fraud and making false claims to the IRS after seeking $1.8 million in tax refunds to which he was not entitled and receiving $600,000 from the IRS which he used to buy a house and numerous cars. The court found that statements by the lower court in the presence of the jury conveyed that the taxpayer was guilty or dishonest and impaired the taxpayer's credibility in the eyes of the jury.

Failure to Allow Notice and Comment Period Invalidates Reg on Inversion Transactions: A district court held that the issuance of Reg. Sec. 1.7874-8T violated the Administrative Procedures Act (APA) because the IRS and the Treasury Department did not follow the notice-and-comment procedure required by the APA when they issued the regulation. Because the regulation was unlawfully issued, the court set aside the regulation. Chamber of Commerce v. I.R.S., 2017 PTC 456, 2017 PTC 455 (W.D. Tex. 2017). Read More...

IRS Introduces Pilot Program for Certain Sec. 355 Ruling Requests: In Rev. Proc. 2017-52, the IRS (1) introduces an 18-month pilot program expanding the scope of letter rulings available from the IRS to include for a period of time rulings on the tax consequences of a distribution of stock, or stock and securities, of a controlled corporation under Code Sec. 355; (2) provides procedures for taxpayers requesting these rulings; and (3) clarifies procedures for taxpayers requesting rulings on significant issues relating to these transactions. The revenue procedure applies to all ruling requests postmarked or, if not mailed, received by the IRS after September 21, 2017.

Tax Reform

Budget Approved by House and Senate Clears Way for Possible Tax Reform: On October 25, the House voted 216 to 212 to approve a budget resolution that had passed the Senate the week before (51 to 49). The resolution paves the way for tax reform by making it possible for tax legislation to pass the Senate with a simple majority (as opposed to the normal 60 vote supermajority required to avoid a filibuster). Kevin Brady (R-TX), Chairman of the House Ways and Means Committee has said that he plans to release the text of his proposed tax bill on November 1.

Treasury Department Hints at Possible Repeal of More Than 200 Regulations: On October 4, 2017, the Treasury Department released a report on planned upcoming actions that it believes will reduce the burden imposed by eight tax regulations identified earlier this year (see PFTB 2017-07-11). The Treasury Department also announced that it is continuing to work to identify additional regulations for modification or repeal by evaluating significant regulations issued recently and initiating a comprehensive review of all regulations, regardless of when they were issued. According to the report, this comprehensive review has already identified over 200 regulations that the Treasury Department believes should be repealed, beginning in the fourth quarter of 2017.

Tax-Exempt Organizations

Interest Runs From Date Corporate Return Was Due, Not Date Exempt Status Was Revoked: In Creditguard of America, Inc. v. Comm'r, 149 T.C. No. 17 (2017), the Tax Court, in an issue of first impression, held that the revocation of an entity's tax-exempt status required restoring the IRS to the position it would have occupied if the entity had never enjoyed tax-exempt status during the year at issue. As a result, the entity was liable for interest beginning on the date its corporate tax return would have been due and not, as the entity had argued, the date on which the IRS issued the final determination revoking the entity's tax-exempt status.

Transferee Liability

Transferee Liability Case Can't be Dismissed Until Amount of Liability Is Agreed Upon: In Schussel v. Comm'r, 149 T.C. No. 16 (2017), the Tax Court held that, because a taxpayer's liability as a transferee was assessed, paid, and collected in the same manner and subject to the same provisions and limitations as a deficiency in tax, a dismissal of a petition for redetermination of transferee liability, just like a dismissal of a petition for redetermination of a deficiency, for any reason other than lack of jurisdiction, requires that the court enter a decision as to the amount of the liability. In so holding, the court cited its decision in Est. of Ming v. Comm'r, 62 T.C. 519 (1974), and ordered the taxpayer and the IRS to submit an agreed stipulated decision document.

Tax Return Preparers

IRS Reminds Preparers and Enrolled Agents to Apply for PTINs by December 31, 2017: In IR-2017-180, the IRS reminded the nation's more than 727,000 federal tax return preparers, as well as all enrolled agents regardless of whether they prepare returns, that they must renew their Preparer Tax Identification Numbers (PTINs) for 2018 before the end of the year because all current PTINs will expire December 31, 2017. There is no fee for obtaining or renewing a PTIN and individuals can either (1) register online at; or (2) file a paper Form W-12, IRS Paid Preparer Tax Identification Number Application and Renewal, which is available for paper applications and renewals, and takes four to six weeks to process.

Tenth Circuit Dismisses Challenge to IRS's AFSP Program: In Rivera v. IRS, 2017 PTC 426 (10th Cir. 2017), the Tenth Circuit affirmed a district court's dismissal of a tax preparation firm's class-action complaint against the IRS challenging its voluntary Annual Filing Season Program (AFSP) and the IRS's investigation of the firm and audits of tax returns prepared by the firm. According to the court, the firm did not have standing to pursue its challenge of the AFSP.


September 2017


CPA Sample Client Letter: Harvey Disaster Tax Relief: Dear Client, As our community works to recover from Hurricane Harvey, I’m writing to make you aware of several tax relief measures announced by the Internal Revenue Service (IRS) in response to the disaster. Read More...

CPA Sample Client Letter: Irma Disaster Tax Relief: Dear Client, As our community works to recover from Hurricane Irma, I’m writing to make you aware of several tax relief measures announced by the Internal Revenue Service (IRS) in response to the disaster. Read More...

IRS Provides Safe Harbor for Accounting Practice Used by Regulated Utilities: In Rev. Proc. 2017-47, the IRS provides a safe harbor concerning inadvertent or unintentional uses of a practice or procedure that is inconsistent with Code Sec. 50(d)(2) and Code Sec. 168(i)(9), which require regulated utilities to use the Normalization Rules. If the safe harbor applies, the IRS will not assert that a taxpayer's inadvertent or unintentional use of a practice or procedure that is inconsistent with Code Sec. 50(d)(2) and Code Sec. 168(i)(9) constitutes a violation of the Normalization Rules.

IRS Issues September 2017 AFRs: In Rev. Rul. 2017-17, the IRS issued the applicable federal rates for September 2017. This guidance provides various prescribed rates for federal income tax purposes including the applicable federal interest rates, the adjusted applicable federal interest rates, the adjusted federal long-term rate, the adjusted federal long-term tax-exempt rate and are determined as prescribed by Code Sec. 1274.


IRS Publishes Reference Price and Credit Amount for Determining Section 45I Credit: In Notice 2017-51, the IRS provides the applicable reference price for qualified natural gas production from qualified marginal wells during tax years beginning in calendar year 2016 for the purpose of determining the marginal well production credit (MWC) under Code Sec. 45I. The notice also provides the credit amount used for purposes of determining the MWC for tax years beginning in calendar year 2016.


Big Game Hunter Limited to Using Comparable Sales Valuation Method to Value Trophy Donations: In Gardner v. Comm'r, T.C. Memo. 2017-165, the Tax Court held that a big game hunter had to use the comparable sales method to calculate his charitable donation deduction for the contribution of his less desirable hunting trophy specimens to an ecological foundation. The court rejected the taxpayer's theory that replacement cost was more appropriate because the items he donated were pristine specimens of excellent provenance that would be ideal for museum study and research.

Court Finds Enough Evidence to Estimate Coin Collector's Cost of Goods Sold: In Mileham v. Comm'r, T.C. Memo. 2017-168, the Tax Court held that a taxpayer, who bought and sold coins and also participated in exchange transactions for which he prepared handwritten split invoices showing both purchases and sales, did not substantiate his costs of goods sold and did not maintain adequate books and records. However, while the IRS determined the taxpayer's costs of goods sold by effectively disregarding purchases made through the exchange transactions, the court found that there was sufficient evidence to estimate the taxpayer's costs of goods sold by using his markup over cost.

Retired Officer Can't Deduct Losses from Collecting and Selling Law Enforcement Badges: In Grago v. Comm'r, T.C. Summary 2017-67, the Tax Court held that a retired law enforcement officer, who engaged in the activity of collecting and selling law enforcement patches and badges, was not engaged in a trade or business activity during the year at issue because he did not conduct the activity in a businesslike manner and did not engage in the activity with the requisite profit objective. Thus, he was not entitled to deduct losses from the activity for tax purposes.

De Facto Contemporaneous Written Acknowledgment Satisfied Donation Substantiation Rules: In Big River Development, L.P., T.C. Memo. 2017-166, the Tax Court held that a partnership satisfied the substantiation requirements in Code Sec. 170(f)(8) with respect to its donation of a conservation easement and thus was entitled to a charitable deduction for the easement. While the partnership did not receive from the donee organization a timely letter of the sort that normally acts as a contemporaneous written acknowledgment (CWA), the court said that the partnership nevertheless satisfied the statutory substantiation requirements because the deed of easement constituted a de facto CWA.

Farm Owners Not Exempt from Deduction Limit for Conservation Easement Contribution: The Tax Court held that the owners of a farm were not "qualified farmers" under Code Sec. 170(b) because neither the sale of farm property nor the sale of development rights in the property were activities included in the trade or business of farming as defined by Code Sec. 2032A. The individual owners were therefore limited under Code Sec. 170(b) to a charitable contribution deduction of 50 percent of their respective contribution bases in the conveyed conservation easement. Rutkoske v. Comm'r, 149 T.C. No. 6 (2017). Read More...

C Corps

Owner of Fast Food Restaurants Can't Revise Merger Transaction After Deal Closes: In Tseytin v. Comm'r, 2017 PTC 387 (3d Cir. 2017), the Third Circuit affirmed the Tax Court and held that the owner of a number of fast food restaurants that entered into a merger deal could not restructure the transaction to obtain better tax results after the deal closed. The court cited the Danielson rule in holding that, absent proof of mistake, fraud, undue influence, duress, or the like, which would be recognizable under local law in a dispute between the parties to an agreement, a taxpayer generally will be held to the terms or form of an agreement entered into.


District Court Denies Deductions for Losses from Bad Real Estate Deal: A district court held that a couple who invested in a real estate development that later turned out to be fraudulent were not entitled to refunds for losses sustained directly and through a partnership. According to the court, the couple did not meet the deductibility requirements provided in Rev. Proc. 2009-20, failed to show that there was no reasonable expectation of recovery in the year the losses were discovered, and did not satisfy the procedural requirements to bring a refund action for the partnership losses. Hamilton v. U.S., 2017 PTC 415 (N.D. Ind. 2017). Read More...

Losses Relating to Child's Pageant Activity Aren't Deductible: In Lopez v. Comm'r, T.C. Memo. 2017-171, the Tax Court held that a couple could not deduct losses attributable to their child's pageant activity because the prize winnings earned by the child were includible in her gross income and only she could deduct expenses related to that income. However, because the couple hired an accountant to help with their returns, they had reasonable cause and acted in good faith with respect to their deductions and, thus, were not liable for the accuracy-related penalties.

No Educational Credit Allowed for Tuition to "Canine Clippers" Trade School: In Martin v. Comm'r, T.C. Summary 2017-73, the Tax Court held that a couple was not entitled to an education credit for amounts paid for their daughter's tuition where they produced no evidence showing that the daughter (1) was enrolled in college at least half time, or (2) was enrolled at a particular college for at least one academic period. The court also said the couple failed to show, with respect to their daughter's attendance at a trade school called "Canine Clippers," that Canine Clippers was an eligible educational institution.

Scientist Failed to Meet Requirements Necessary to Deduct $8.55 Million as Partially Worthless Bad Debt: In Rutter v. Comm'r, T.C. Memo. 2017-174, the Tax Court held that the IRS did not abuse its discretion in determining that a world-renowned scientist in the field of biotechnology was not entitled to a deduction of $8.55 million for a partially worthless debt for 2009. The court concluded that, even if the taxpayer established that his advances to a company behind which he was the driving force constituted debt, and that this debt was a business debt, he did not meet the requirements in Code Sec. 166(a)(2) and Reg. Sec. 1.166-3(a)(2)(iii) for deducting a partially worthless bad debt.

Employee Benefits

IRS Provides Hurricane Relief in Connection with Certain Employee Benefit Plans: In Notice 2017-49, the IRS, the Department of Labor's Employee Benefits Security Administration (EBSA), and the Pension Benefit Guaranty Corporation (PBGC) are providing relief in connection with certain employee benefit plans because of damage caused by Hurricane Harvey and Hurricane Irma. The relief includes a relaxation of the rules for the dates by which contributions to such plans must be made.

IRS Provides Model Amendments for Certain Defined Benefit Plan Documents: In Notice 2017-44, the IRS provides model amendments that a sponsor of a qualified defined benefit plan may use to amend its plan document to offer bifurcated benefit distribution options to participants in accordance with final regulations issued under Code Sec. 417(e). The model amendments are aimed at helping stakeholders in light of the changes to the determination letter program that are set forth in Rev. Proc. 2016-37.

Temporary Nondiscrimination Relief Extended for Closed Defined Benefit Plans: In Notice 2017-45, the IRS extended the temporary nondiscrimination relief for closed defined benefit plans that is provided in Notice 2014-5 by making that relief available for plan years beginning before 2019 if the conditions of Notice 2014-5 are satisfied. The IRS noted that, while proposed regulations relating to nondiscrimination requirements for closed plans were published in January of 2016, the regulations will most likely not be finalized in time for plan sponsors to make plan design decisions based on the final regulations before expiration of the relief provided under Notice 2014-5 (as last extended by Notice 2016-57) and thus it is appropriate to extend the relief provided under Notice 2014-5 for an additional year.

Estate and Gift Taxes

Tax Court: Individual's Sale of Personal Residence to Parents was Part Sale, Part Gift: The Tax Court held that an individual's sale of a personal residence to his parents, in which he discharged two mortgages but received no cash or other property, was a sale in part and a gift in part. The individual's amount realized was the amount of the liabilities discharged, and his gain was determined by subtracting from that amount his basis and settlement costs and excluding $250,000 of the gain under Code Sec. 121. Fiscalini v. Comm'r, T.C. Memo. 2017-163. Read More...


Native American Treaties Exempt Gravel Sales from Income Tax: In a case of first impression, a district court held that a Seneca Nation member who sold gravel removed with permission from Seneca Nation land plausibly stated a claim that the income from the sale was exempt from tax under two Native American treaties. The court noted that although exemptions generally must be clearly expressed to be valid, an exemption could be found by liberally interpreting the treaties. Perkins v. U.S., 2017 PTC 363 (W.D.N.Y. 2017). Read More...

Foreign Transactions

Sixth Circuit Rejects FATCA and FBAR Challenges by Senator Rand Paul and Others: The Sixth Circuit upheld a district court ruling that several individuals, including Senator Rand Paul (R-KY), did not have standing to sue the U.S. government to enjoin it from enforcing the Foreign Account Tax Compliance Act (FATCA), the intergovernmental agreements (IGAs) entered into with foreign governments under FATCA, and the foreign bank account reporting (FBAR) requirement under the Bank Secrecy Act. According to the court, none of the individuals had alleged an actual or imminent injury traceable to the U.S. government and redressable by the court. Crawford v. U.S., 2017 PTC 388 (6th Cir. 2017). Read More...

Gross Income

South Korean Airline Pilot Not Eligible for Foreign Earned Income Exclusion: In Acone v. Comm'r, T.C. Memo. 2017-162, the Tax Court held that a pilot who worked for a South Korean airline company was not a "qualified individual" for purposes of the foreign earned income exclusion in Code Sec. 911(a) and thus could not exclude amounts from gross income as foreign earned income. The court concluded that the taxpayer was not a "qualified individual" because his "abode" was within the United States for purposes of Code Sec. 911(d)(3) and because he was not a "bona fide resident" of South Korea for purposes of Code Sec. 911(d)(1)(A).


Obamacare Repeal Is Back: Senate Gears up for Final 2017 Repeal Push: Over the past two weeks, momentum has been building among Senate Republicans to make a final attempt to repeal the Affordable Care Act ("Obamacare") before the federal government's fiscal year ends on September 30 (realistically, the last day in 2017 the Senate could pass a bill on a party-line vote). The bill under consideration, Graham-Cassidy, would retain many of Obamacare's taxes and regulations, but would radically restructure its premium subsidies. Graham-Cassidy is generally considered to be the only viable Senate healthcare proposal left standing after the chamber voted down three other bills in July. Read More...

Taxpayers Had to Repay ACA Advance Premium Tax Credit Due to Increase in Income: The Tax Court held that a married couple who received a Code Sec. 36B advance premium tax credit, which was paid directly to their health insurance provider to reduce their monthly premiums, had to repay the full amount of the credit because an increase in their income made them ineligible for it. However, the Tax Court determined that a penalty for the underpayment did not apply because the couple reported their increase in income to the state insurance exchange, never received a Form 1095-A, Health Insurance Marketplace Statement, and were not the actual recipients of the payments. McGuire v. Comm'r, 149 T.C. No. 9 (2017). Read More...

National Average Premium Rates Issued for Bronze Level Health Plans: In Rev. Proc. 2017-48, the IRS provides the monthly national average premium for qualified health plans that have a bronze level of coverage and are offered through Exchanges. The procedure, which is effective for tax years ending after December 31, 2016, are used by taxpayers to determine their maximum individual shared responsibility payment under Code Sec. 5000A(c)(1)(B) and Reg. Sec. 1.5000A-4.


IRS Offers Relief for Partnerships and REMICS That Missed New Return Due Dates: The IRS is providing penalty relief to partnerships and real estate mortgage investment conduits (REMICs) that filed certain untimely returns or untimely requests for extension of time to file those returns as a result of changes to tax return due dates that were made by the Surface Transportation Act of 2015. The relief is granted automatically for penalties for failure to timely file Forms 1065, 1065-B, 8804, 8805, 1066, and any other returns, such as Form 5471, for which the due date is tied to the due date of Form 1065 or Form 1065-B. Notice 2017-47. Read More...

IRS Grants Tax Relief to Hurricane Victims; Retirement Plan Rules Relaxed: The IRS announced that Hurricane Irma victims have until January 31, 2018, to file certain individual and business tax returns and make certain tax payments. The IRS also announced that 401(k)s and similar employer-sponsored retirement plans can make loans and hardship distributions to victims of Hurricane Irma and members of their families. IR-2017-150; Announcement 2017-13. Read More...

IRS Announces Tax Relief for Victims of Hurricane Harvey: The IRS announced that Hurricane Harvey victims in parts of Texas have until January 31, 2018, to file certain individual and business tax returns and make certain tax payments. The IRS also announced that 401(k)s and similar employer-sponsored retirement plans can make loans and hardship distributions to victims of Hurricane Harvey and members of their families. IR-2017-135 (8/28/17); IR-2017-138 (8/30/17); Announcement 2017-11. Read More...


IRS Barred by Statute of Limitations from Assessing Tax and Penalties Nine Years after Merger: The Tax Court held that the IRS was barred by the statute of limitations from assessing tax and penalties on a corporation that was merged into a new corporation almost nine years before the notice of deficiency was issued. The Tax Court found that under Beard v. Comm'r, 82 T.C. 766 (1984), the surviving corporation's return for the year at issue qualified as a return for the merged corporation's short tax year, thus triggering the three year period of limitations for assessments. New Capital Fire, Inc. v. Comm'r, T.C. Memo. 2017-177. Read More...

IRS Waives Diesel Fuel Penalty in Texas and Florida: In IR-2017-142 and IR-2017-149, the IRS announced that, in response to shortages of undyed diesel fuel caused by Hurricane Harvey and Hurricane Irma, respectively, it is waiving the penalty when dyed diesel fuel is sold for use or used on the highway in the state of Texas. The relief is effective as of August 25, 2017, for Hurricane Harvey and September 6, 2017, for Hurricane Irma.

Levy Against Tax Preparer Who Failed to Satisfy Due Diligence Rules Sustained: In Mohamed v. Comm'r, T.C. Summary 2017-69, the Tax Court sustained a proposed levy action against a CPA who operated a tax return preparation business. The levy related to penalties owed by the CPA as a result of his failure to satisfy earned income tax credit due diligence requirements.


Court Rejects Request to Close Down Dentist's Practice Over Unpaid Taxes: In U.S. v. Moore, DMD PA, 2017 PTC 401 (D. N.J. 2017), a district court denied a request by the government for injunctive relief aimed at closing down the practice of a dentist who owed income and employment taxes, saying the request was overly broad and premature, and would cut off the dentist's only real chance to repay his and the practice's liabilities. The court found that, even though the government had demonstrated the dentist's history of noncompliance, it had not demonstrated that his conduct warranted the proposed injunction.

Third Circuit Erred in Concluding Company Couldn't Establish Negligence Against CPA Firm: In DDRA Capital, Inc. v. KPMG, LLP, 2017 PTC 408 (3d Cir. 2017), the Third Circuit held that a district court erred in concluding that a corporation could not establish proximate cause for purposes of negligence claims against an accounting firm, which the corporation said had directed it into a transaction known as Short Option Strategy (SOS) that the accounting firm knew was illegal. The corporation argued that, but for misrepresentations by the firm and one of its partners that the SOS transaction was legal and would survive IRS scrutiny, they would have pursued other tax strategies for which they would have paid no penalties or interest, no fee to the accounting firm, and possibly less in taxes.

Ninth Circuit Affirms 30-Month Sentence of Former IRS Agent Who Solicited Bribes: In U.S. v. Hurley, 2017 PTC 409 (9th Cir. 2017), the Ninth Circuit affirmed the conviction and 30-month prison sentence of a former IRS agent, who was found guilty of soliciting and receiving bribes and illegal gratuities from an individual he was auditing. According to the court, a rational jury could find that the payments received by the former IRS agent from the individual he was auditing influenced the official act of the tax audit and induced the agent to violate his official duties.

Court Did Not Err in Accepting Schizophrenic's Guilty Plea: In U.S. v. Anderson, 2017 PTC 416 (11th Cir. 2017), the Eleventh Circuit held that a district court did not err by accepting a guilty plea from individual who suffers from schizophrenia, but controls it with medication. The individual had admitted in writing that he cashed thousands of fraudulently obtained tax refund checks in amounts totaling over $7 million dollars, had received approximately 20 percent of the face value of the checks, and had spent the money buying real property and multiple luxury cars.

Related Entities Must All Pay 15 Percent of Penalty In Order for Court to Hear Their Case: In DAC Management, LLC v. U.S., 2017 PTC 419 (N.D. Ill. 2017), a district court granted an IRS motion to dismiss two cases in which taxpayers were seeking a determination that they were not liable for civil penalties assessed against them under Code Sec. 6700. The court held that, while the law requiring an individual and the entities he owns to all pay the exact same penalty on the exact same income as a precondition to challenging the assessment of a Code Sec. 6700 penalty may well be unlawful, because all the entities involved in the case did not pay the required 15 percent of the penalties assessed against them, the court lacked jurisdiction to hear the case.

IRS Issues Quarterly Interest Rates for Tax Overpayments and Underpayments: In Rev. Rul. 2017-18, the IRS issued the rates for interest on tax overpayments and underpayments for the fourth calendar quarter of 2017, beginning October 1, 2017. The interest rates will be 4 percent for overpayments (3 percent in the case of a corporation), 4 percent for underpayments, 1 and one-half percent for the portion of a corporate overpayment exceeding $10,000, and 6 percent for large corporate underpayments.

Chief Counsel's Office Discusses Representations Covered by POAs: In CCM 201736012, the Office of Chief Counsel advised that a Form 2848, Power of Attorney and Declaration of Representative, which lists only a specific tax return, does not cover representation for penalties, payments, and interest relating to other returns, regardless of whether other returns are attached to the return specified in the Form 2848. Further, Forms 2848 that only list a specific return cover representation for penalties, payments, and interest related only to that specific tax return, and not to other returns that may be filed separately.

Late Filing of Tax Return Precludes Recovery of $32,000 Tax Overpayment: In a case of first impression, the Tax Court held that a taxpayer was not entitled to a refund shown on a late-filed tax return because the three-year lookback period specified in Code Sec. 6512(b)(3) did not apply. The court also held that, because the taxpayer did not file her income tax return before the IRS issued a notice of deficiency and did not pay her tax liability within two years of the mailing of the notice of deficiency, the two-year lookback period likewise did not apply. Borenstein v. Comm'r, 149 T.C. No. 10 (2017). Read More...

Tenth Circuit Vacates Judgment Allowing IRS to Sell Property Owned by Taxpayer's Corporation: In Geophysical v. U.S., 2017 PTC 384 (10th Cir. 2017), the Tenth Circuit vacated a district court judgment allowing the IRS to enforce a lien, as well as an order permitting the IRS to sell two properties owned by a taxpayer's company in order to satisfy the lien. The court concluded that the district court had granted the judgment without providing the taxpayer and the taxpayer's company an adequate opportunity to respond to the IRS's assertion that the company held title to the properties as the taxpayer's alter ego or nominee.

IRS Not Barred by Statute of Limitations from Enforcing 2002 Assessment Against an Estate: In U.S. v. Est. of Chicorel, 2017 PTC 389 (E.D. Mich. 2017), a district court held that the IRS was not barred by the statute of limitations from enforcing a 2002 assessment against an estate. The court concluded that the government initiated a timely proceeding in court within the meaning of Code Sec. 6502(a) by submitting its proof of claim to a Michigan probate court and the estate's personal representative, and that tolled the statute of limitations with respect to the instant proceeding and, by implication, any subsequent proceeding regardless of how many years later it may be filed.

Court Won't Overturn Jury Verdict Awarding Refund to Taxpayers Who Relied on Tax Advisors: In Ervin v. U.S., 2017 PTC 394 (W.D. Ky. 2017) a district court declined to overturn a jury verdict which found that the taxpayers were entitled to a refund of a valuation misstatement penalty and penalty interest payments paid to the IRS as a result of disallowed tax losses. The court found that the taxpayers had established to the jury's satisfaction a reasonable cause defense in which they claimed to have had relied in good faith upon the advice of competent tax advisors such as the accounting firm of BDO Seidman.

Trustee Was Foundation's Alter Ego and Is Personally Liable for Taxes: In U.S. v. Williams, 2017 PTC 398 (M.D. N.C. 2017), a district court entered a default judgment for the United States against a foundation that sought and received over $600,000 in fraudulent tax refunds, which were then used by the foundation's trustee for personal purposes, such as paying off a car loan and mortgage. The court agreed with the IRS that the trustee was the foundation's alter ego and was personally liable for its tax liabilities.

Tax-Exempt Organizations

IRS Issues Guidance for Tax Practitioners Preparing Written Advice Relating to Private Foundations: In Rev. Proc. 2017-53, the IRS provides guidelines that qualified tax practitioners may use for preparing written advice on which a private foundation or sponsoring organizations of donor advised funds ordinarily may rely in making a good faith determination that a grantee is a qualifying public charity in order that the grant will be considered a qualifying distribution that does not require expenditure responsibility in order to not be a taxable expenditure.. The procedure modifies and supersedes Rev. Proc. 92-94.



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