Credit unions that meet the necessary criteria can claim the employee retention credit (ERC) for wages paid in 2021. However, they are ineligible for such claims for wages paid in 2020, as outlined in an IRS Chief Counsel Advice (CCA 202333001).[1]

Promoters of questionable tax schemes often distribute a “legal analysis” to potential victims. While these analyses might sound authoritative, they can sometimes resemble the output of ChatGPT in full hallucination mode. These analyses are typically designed to sound sufficiently authoritative to intimidate any tax professional who isn’t well-versed in the specific area of taxation being addressed.

In AM 2023-006,[1] the IRS targets a marketed trust tax structure. This structure aims to shelter nearly all income from assets transferred to the trust from federal income tax. The “legal analysis” supporting this program leans heavily on conflating the various forms of “income” associated with such trusts. It incorrectly treats distributable net income (DNI), taxable income, and accounting income as if they were synonymous concepts.

In Sinopoli v. Commissioner,[1] the taxpayers sought to leverage IRC 280A(g), a provision allowing individuals to rent out their personal residences for up to 14 days annually without declaring the income. The taxpayer's S corporation reported over $290,000 in rental expenses over a three-year span, purportedly for renting the shareholders' homes for monthly meetings. However, the Tax Court significantly curtailed the allowable deduction.

A taxpayer with property secured by a nonrecourse loan, who returns said property to the lender via foreclosure, deems the entire loan balance as the sales price for income tax purposes. This holds true even if the property’s fair market value is below the loan balance. But what happens when the lender consents to a payment less than the loan’s face value, facilitating a short sale by aligning with the buyer’s offer? Does this debt reduction equate to canceled debt income, or does it remain part of the sales price? Why does the distinction matter?

In the case of Parker v. Commissioner,[1] the Tax Court examined such a scenario. Their conclusion: the debt reduction should be recognized by the taxpayer as part of the sales price, not as canceled debt income.

Although the IRS has recently focused its cautionary statements on the employee retention tax credit, News Release IR-2023-144[1] saw the agency shift its focus to compliance concerns related to employee stock ownership plans (ESOPs).

When two provisions in the tax law produce conflicting outcomes, the Courts utilize specific rules of interpretation to ascertain which provision takes precedence. A fundamental principle is that a more specific provision will override the conclusion drawn from a broader one.

In the case of Hoops, LP v. Commissioner,[1] the court had to decide if the timing of a deduction for a deferred compensation transaction would be governed by a regulation under IRC §461 (allowing a deduction upon the sale of the partnership's business) or by IRC §404(a)(5) (which would postpone the deduction until the employees received and recognized their deferred compensation as income).

The IRS has proposed regulations (Prop. Reg. §1.6011-13[1]) that would add monetized installment sales as a listed transaction, subject to the reporting provisions found in the regulations under IRC §6011 and the penalty rules of IRC §6707A when such disclosure is not properly and timely made.

One of the credits introduced by the Inflation Reduction Act is a credit for obtaining a home energy audit on the taxpayer's principal residence. In Notice 2023-59,[1] the IRS announced its intention to issue regulations under this provision and provided interim guidance that taxpayers can rely on until such regulations are published.

At the same time, the IRS issued a news release, IR-2023-140,[2] explaining the guidance outlined in the notice.

In Revenue Ruling 2023-14[1], the IRS formalized its stance regarding an issue first raised by the taxpayers in the Jarrett[2] case. The agency clarified that cryptocurrency earned from staking constitutes taxable income under federal tax law.

Revenue Officers generally will longer make unannounced visits to taxpayers the IRS announced in News Release IR-2023-133.[1]

The release begins:

As part of a larger transformation effort, the Internal Revenue Service today announced a major policy change that will end most unannounced visits to taxpayers by agency revenue officers to reduce public confusion and enhance overall safety measures for taxpayers and employees.

The change reverses a decades-long practice by IRS revenue officers, the unarmed agency employees whose duties include visiting households and businesses to help taxpayers resolve their account balances by collecting unpaid taxes and unfiled tax returns. Effective immediately, unannounced visits will end except in a few unique circumstances and will be replaced with mailed letters to schedule meetings.[2]

In the case of Doggart v. Commissioner,[1] a taxpayer lodged a complaint, arguing that they couldn’t have taxable income for the year 2017 since they did not receive any cash during that period. However, the taxpayer will soon discover that this assumption does not necessarily hold true when dealing with a lapsed life insurance policy coupled with outstanding loans taken against the cash value of the policy.

The Oversight Subcommittee of the House Ways & Means Committee convened a hearing on July 27, 2023, to discuss “The Employee Retention Tax Credit Experience: Confusion, Delays, and Fraud.”[1] Although the agenda covered three topics, the focus and highlights of the hearing centered around the issue of fraud. Notably, Representative Beth Van Duyne (R-TX) played a key role during the session by sharing a voice mail she received that very morning from an individual claiming to be “Beth” and working for an Employee Retention Credit (ERC) mill. In the voice mail, the representative was informed that she was eligible to receive a payment of $26,000 for every W-2 employee she employs.

In the Generic Legal Advice Memorandum (AM 2023-05),[1] the IRS scrutinized some of the questionable supply chain-based justifications for claiming the employee retention credit. The memorandum emphasizes the necessity of documenting the specific government orders that the employer relied upon, demonstrating how these orders created challenges for the supplier. Moreover, it highlights the employer's inability to procure critical and necessary supplies due to these issues and how such circumstances resulted in a qualifying suspension of the employer's own business. By clarifying these requirements, the IRS aims to ensure more accurate and substantiated claims for the employee retention credit.

In November of 2022, the Tax Court rendered a decision in Hallmark Research Collective v. Commissioner, 159 TC No. 6, stating that the Supreme Court's ruling in Boechler PC v. Commissioner, 142 S. Ct. 1493 (2022), which established that the 90-day limit for filing a Tax Court petition for collection actions under IRC §6330 is not jurisdictional, did not alter the Tax Court's longstanding stance that the 90-day filing deadline specified in IRC §6213(a) for filing a deficiency petition remains jurisdictional. Consequently, no equitable relief for late filing of the petition is accessible in this context.

The Tax Court, at present, has declined to grant the plaintiff's motion for summary judgment regarding the IRS's suspense account method for handling S corporation basis claimed by a shareholder that exceeds his basis in the Kanwal v. Commissioner[1] case. However, the judge conveyed concerns about the method in the order, requiring the IRS to submit a supplemental memorandum further justifying its position.

In this specific case (Gomas v. United States)[1], the judge proposed that the IRS should have considered overlooking the tax issue at hand and granting leniency. Surprisingly, the judge himself refrained from exercising such discretion and instead ruled against the taxpayer, most likely due to the same constraints the IRS faced. This is because the applicable law mandated that the taxpayers were obligated to pay taxes in this particular scenario, despite the unfortunate circumstances wherein they were deceived into withdrawing substantial sums from their retirement account and delivering them to a fraudster. Notably, the fraudster happened to be the daughter of one taxpayer and the stepdaughter of the other.

It’s not often you see a private letter ruling asking for permission to make a late election to not deduct bonus depreciation under IRC §168(k), but even less often do we see eleven virtually identical requests for that ruling issued in the same week.  But, beginning with PLR 202328007[1] that’s what we saw this week.

The IRS has granted relief on specific tax deadlines to individuals in Vermont who have been impacted by the recent flooding. This relief was announced in IRS News Release IR-2023-125.[1]  Generally, the relief will provide individuals impacted by the recent flooding in Vermont with an extended deadline until November 15, 2023, to file any tax return that was originally due after July 9, 2023, and before November 15, 2023.

In Notice 2022-53, the IRS stipulated that the minimum distribution rules for defined contribution plan balances (including IRAs) inherited from a beneficiary who had passed away after their required beginning date— as outlined in the proposed regulations under the SECURE Act—would not take effect until 2023 at the earliest. However, with the release of Notice 2023-54,[1] the IRS has further delayed the implementation of these rules by at least one year, meaning they will not be applicable until 2024 at the earliest.

The Notice also provides relief to individuals born in 1951 who, under the law prior to the enactment of the SECURE 2.0 Act, were informed they would need to take required minimum distribution (RMD) payments by April 1, 2024, as they would turn 72 in 2023. Payments to cover these initial RMDs could have been initiated as early as January 2023, and some taxpayers may have scheduled such payments accordingly.

The tax treatment of legal settlements can be confusing for individuals who receive them, especially when they involve employment-related claims. One such issue was the subject of the Tax Court case Montes v. Commissioner,[1] which examined whether payments from an employment suit could be excluded from income.

Please note that this is a transcription of the oral findings, so there may be some grammatical errors or awkward expressions in the opinion. However, you should be able to understand the intended meaning without much difficulty.