If a partnership owns an LLC it treats as a disregarded entity under the check the box rules, may partners of the partnership be treated as employees of the disregarded entity, receiving a W-2 and obtaining certain tax beneficial fringe benefits open to employee but not partners?  The IRS says the answer has always been no, but since some read the existing regulations otherwise the agency has issued Temporary Regulation §301.7701-2T(e)(8)(i) (TD 9766) and an identical proposed regulation (REG-114307-15).

The “check the box” provisions found in Reg. §301.7701-2 were created to deal with state law entities that had no direct equivalent under federal law (with the prime example being limited liability companies (LLCs)).  Under those rules, the taxpayer elects to treat the entity “as if” it was an entity the IRC has a treatment for, picking from a list that depends on the number of owners.  

The IRS had denied §6015(f) innocent spouse relief to Joseph Boyle in the case of Boyle v. Commissioner, TC Memo 2016-87 since the interest and penalties from which he sought relief were directly related to income from his sole proprietorship.  But the Tax Court did not agree given the facts of the case.

The trust in the case of Alterman Trust v. Commissioner, 146 TC No. 14 had prevailed in its case against the IRS in its previous case (TC Memo 2015-231) and now sought an award of attorney’s fees under Section 7430.

The issue to be decided was when the trust’s net worth was to be measure to determine if the trust was simply “too large” to be awarded the fees under IRC Section 7430.  While Section 7430 allows for an award of costs if the taxpayer is the prevailing party, has exhausted administrative remedies, has not unreasonably protracted the proceedings and has claimed reasonable costs, Section 7430(c)(4)(A)(ii) imposes an interesting quirk in the definition of “prevailing party.”

Although we don’t for sure how the issue managed to slip through the cracks, many advisers will have sympathy for the situation that gave rise to the need to request late QSST election relief and treatment of termination of S status as inadvertent in PLR 201618003

In the situation in question an existing S corporation had among its shareholders two trusts, each of which had timely an election to be a qualifying Subchapter S trust (QSST)under IRC §1361(d)(2).  

In Revenue Procedure 2016-28 the IRS provided updated numbers for 2017 for health savings accounts and the related high deductible health plans.

Details make a difference when attempting to qualify for a tax benefit, and a taxpayer who thought his conservation easement language complied with that found in the regulations discovered that the Tax Court noted a difference.  In the case of Carroll v. Commissioner, 146 TC No. 13 the issue involved what happens if the easement is extinguished due to circumstances outside the taxpayer’s control.

The IRS has granted educational institutions a one-year reprieve from penalties if they fail to provide information on the amounts actually paid to the institution for the year in question on Form 1098-T and rather provide information solely on the amounts billed to the student.  Announcement 2016-17 provides this short term relief from the law change enacted as part of the Protecting Americans from Tax Hikes Act of 2015.

As part of a package of provisions meant to reign in unauthorized claims for the American Opportunity Tax Credit and Lifetime Learning Credit, the Congress removed the option for educational institutions to report the amounts billed for tuition to a student on Form 1098-T in lieu of reporting the amounts actually paid by the student during the year.  The credits in question are only available for amounts actually paid during the year in question, though not surprisingly many taxpayers simply used the amount on that form to claim the credit, even if the actual payment was made in a different year.

California’s law requiring providing the California Attorney General with an unredacted list of donors was held constitutional by the Ninth Circuit, but less than a year later a District Court in the same Circuit found that the ruling only found the law not “facially unconstitutional” but that using an “as-applied” test the law was unconstitutional, granting again an injunction against its enforcement.

But, as we’ll describe below, the rulings are not as contradictory as they might appear when reading just the headlines.

Wendell Wilson lived in Mexico and was an engineer on ocean going container ships during the years in question.  In the case of Wilson v. Commissioner, TC Summary Opinion 2016-19 the issue was whether and to what extent Mr. Wilson was eligible for the foreign earned income exclusion under IRC §911(a)(1)

Should a surviving spouse be able to make use of an unused credit carryforward of her former spouse?  That question was posed in the case of Vichich v. Commissioner, 146 TC No. 12—and, as the Court noted, this wasn’t a question the Court had considered before.

The credit in this was the minimum tax credit under §53.  The minimum tax credit generally relates to a minimum tax paid in a prior year that is related to differences between the regular tax and the alternative minimum tax (AMT) that will reverse in later.  In this case William Vichich has exercised incentive stock options (ISOs) granted to him by his employer in 1998.

Clarifying examples meant to provide guidance to private foundations with regard to program-related investments have been issued by the IRS in TD 9762, adding the examples at the end of Reg. §53.4933-3(b).  The examples generally are the same as those found in the proposed regulations with one example clarified based on comments received.

At first glance Sletta Arobo appeared to be a perfect “innocent spouse” candidate.  But, as we’ll discover in her case (Arobo v. Commissioner, TC Memo 2016-66) even the “perfect” candidate has certain minimum duties with regard to the tax return and when she ignored these duties she lost the possibility of gaining innocent spouse relief.

The tax in this case arose from her husband’s business, as well as a failure to file returns for a number of years.  

The Seventh Circuit Court of Appeals, reversing the Tax Court, held in the case of Roberts v. Commissioner, CA7, Case No. 15-3396, found that Merrill Roberts had operated his race horse operation with a profit motive for all years and not just beginning in a specific later year.  But in doing so Judge Posner could not resist in pointing out his view on the unworkable nature of the regulations that are provided to guide making the decision.

Mr. Roberts, a successful businessman, had acquired race horses in 1999 but not until 2005 did he decide to build a larger training facility and “ramp up” the business, a business that generated losses.  In the original case the Tax Court found that there was not a business until 2007, so that his losses in 2005 and 2006 were subject to the hobby loss rule.

Politics is in the air in the election year of 2016, and the IRS was asked to rule on an attempt by an employer to “incentivize” employees to contribute to a political action committee established by the employer and funded by employees of the organization and its subsidiaries.  In LTR 201616002 the IRS ruled that this structure did not give rise to a deductible payment by the employer.

The IRS, deciding that discretion is the better part of valor, has backed off a position staked out related to “Bad Boy” provisions in non-recourse loan documents in a Chief Counsel Advice, effectively reversing its position in Generic Legal Advice AM 2016-001.  Now the IRS believes that, generally, such provisions will not convert the debt from nonrecourse to recourse debt, a result that would torpedo the expected tax effects of many real estate partnerships.

While philosophers may still debate the question of whether a noise is made if a tree falls in the forest and no one hears it, the Tax Court has no doubt that if a person does not receive a K-1 from a partnership that had income, nor receive a cash distribution that indicates there was income allocable to him, the taxpayer nevertheless must recognize the income.  The reality of this was discovered by a blogger in the case of Lamas-Richie v. Commissioner, TC Memo 2016-63.

Nik Lamas-Richie had founded a gossip blog about Scottsdale, Arizona.  As the Court described, “[t]his Web site initially posted gossip about local topics, including ‘the cool kids in Scottsdale who thought they were celebrities.’”  Discovering success, he decided good gossip wasn’t limited to the west’s most western town, expanding the site to cover regional and then national gossip.

After letting the list stand unchanged for 11 years, for the second year in a row the IRS has updated the list of authorized private delivery services in Notice 2016-30.  Although various all services from DHL Express were dropped in Notice 15-38 (the first update in 11 years to the list), the new notice adds various services offered by DHL Express.

Under IRC §7502(f) the IRS is authorized to designate certain private delivery services (referred to as “PDSs”) to count for the timely filing/timely paying rule of IRC §7502.  Generally this puts such services on a par with sending the document and/or payment via certified mail so long as the taxpayer retains the required proof of timely presentation of the package to the service.