In response to Hurricane Matthew the IRS in Announcement 2016-39 granted the option to qualified plans to give access to retirement funds to individuals impacted by the disaster without requiring certain the plans to go through certain verification procedures required of such plans when making loans or hardship distributions.

Employer retirement plans of various sorts (§§401(k), 403(b) and 457) must follow certain procedures in order to make distributions or loans to account holders.  Distributions can only be made upon the occurrence of certain events that the IRC allows, and then only if the plan itself allows for such a distribution. As well, distributions will generally be subject to tax except to the extent the distribution consists of already taxed amounts.

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In the case of United States v. McGrew, et. al, CA9, 118 AFTR 2d ¶2016-5319, the Ninth Circuit looked at whether the IRS could foreclose liens on property that the taxpayer had previously owned as community property with her former husband.  The liens were being forceclosed against the taxpayer’s former husband. 

Ms. McGrew had received the residence in question as part of the division of community property at the termination of her marriage to Kenneth McGrew.  Ms. McGrew argued that because the liens were against her former husband that the IRS did not have the right to foreclose the liens against the property that was now solely.

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The IRS has issued a revised 202 page Audit Technique Guide for Capitalization of Tangible Property that is meant to outline what agents should do in an examination when looking at the applying the regulations that took effect for tax years beginning on or after January 1, 2014 under IRC §263(a).

In the case of Harvey C. Hubbell Trust et al. v. Commissioner; T.C. Summary Opinion 2016-67 the IRS was disallowing all of the charitable contributions claimed by the trust for 2009.  The IRS did not deny that the contributions were made.  The agency also did not claim the recipients were not qualified charitable organizations. Rather, the IRS claimed the contributions were not made according to the terms of the will that established the trust.

The trust in question had been making charitable contributions for many years (going back to 1985) and in quite substantial amounts.  For instance, in 1985 the trust made (and deducted) charitable contributions of $384,976, and had made contributions, often in excess of $100,000, for many years between 1985 and 2008.  Apparently the IRS had never raised any issue with regard to these contributions—likely because the IRS had never examined the trust.

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IRC §165(i) provides for a taxpayer to electively claim a loss on a federally declared disaster on the return for the year prior to when the disaster occurred.  The IRS has issued Revenue Procedure 2016-53 and proposed regulations (REG-150992-13) for taxpayers who wish to take advantage of this election.

The proposed regulations would set the deadline for both making the election (six months after the due date of the tax return for the year of the disaster excluding any extensions) and for revoking a previous election (90 days after the due date for making the election).

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The IRS has expanded its view of what doesn’t work for treating an LLC member’s income as not subject to self-employment tax in Chief Counsel Advice 201640014.

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The IRS in Notice 2016-58 provided updated special per diem effective for the period from October 1, 2016 to September 30, 2017.  These special rates include the rate for the special transportation industry meals and incidental expenses (M&IE) rate, the rate for the incidentals-only deduction and the rates and list of high-cost localities for purposes of the high-low substantiation method.

The special transportation industry rates for 2016-2017 are $63 for any locality of travel in the continental United States and $68 for any locality of travel outside the continental United States.  The general rules for qualifying to use these rates and how to use them are found in Section 4.04 of Revenue Procedure 2011-47.

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The IRS, as promised in the regulations issued to implement the portability election under IRC §2010, has now issued a revised Revenue Procedure (Revenue Procedure 2016-49) which modifies the conditions under which a QTIP election will be deemed invalid that were contained in Revenue Procedure 2001-38.

The qualified terminable interest property (QTIP) election under IRC §2056(b)(7) is designed to allow a trust to be created to hold property passing to a surviving spouse with an interest that terminates at his/her death, with ultimate disposition controlled by the trust document itself.  When the election is made, the surviving spouse agrees to treat the property as part of his/her estate despite having an interest that normally would be considered solely a life estate.  With that election in place, the property qualifies for the unlimited marital exclusion at the first death.

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An estate that owned a 99% interest in an LLC whose only asset was an account with Madoff Securities looked to claim a theft loss deduction on its estate tax return in the case of Estate of Heller v. Commissioner, 147 TC No. 11.

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The IRS in News Release IR-2016-125 provided information regarding the use of private debt collectors to pursue unpaid taxes mandated by Congress in the Protecting Americans from Tax Hikes Act of 2015.

The IRS had been mandated to begin using the private agencies earlier this year, but the IRS has delayed the beginning of the program and will, per the announcement, begin using the agencies in the spring of 2017, though an exact date for the start was not announced.

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Sometimes taxpayers may adopt a plan on paper that would create tax savings, but then turn a blind eye with regard to actual compliance with the plan.  That was the issue in the email advice discussed below

Despite the fact that a SUB Trust plan summary description indicated that benefits it would pay would be limited to those who qualified for state unemployment benefits, the failure of the employers submitting lists of employees to be paid under the plan to confirm the employees had received stated unemployment meant the payments were not treated as FICA-exempt supplementation unemployment benefits (Chief Counsel Email 201639015).

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In a letter to Representative Patrick Murphy dated September 23, 2016 the IRS Commissioner stated to payments made to victims of the Orlando mass shootings at the Pulse nightclub in June by charities do not represent taxable income to those victims.

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An unusual arrangement that provided disability benefits was at issue in the case of Estate of Barnhorst v. Commissioner, TC Memo 2016-177.  The key issue was whether the benefit paid by the program in 2010 represented payments under an accident or health plan under IRC §105(a) and, if so, did the benefits received represent payments not related to the absence from work under IRC §105(c).  The IRS claimed that, in reality, this was simply a deferred compensation plan and should be taxed as such.

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The taxpayer in the case of Exelon Corp. et al. v. Commissioner, 147 T.C. No. 9 had a major gain that it did not want to pay current tax on—almost $1.6 billion.  The gain would occur when an acquired entity disposed of its fossil fuel power plants. 

The taxpayer was approached with a potential solution—engage in a purported §1031 exchange.  The taxpayer acquired power plants from tax exempt public utility companies as the claimed replacement property, plants which they then leased back to those entities.  Referred to as a “sale in, lease out” (SILO) transaction, it was a packaged transaction sold to the taxpayer.

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