A Technical Advice Memorandum issued by the IRS after the audit ended was cited by the Tax Court to the IRS’s detriment in the case of Hardy v. Commissioner, TC Memo 2017-16. The issue involved was whether a surgeon materially participated in a surgical center in which he owned a minority interest—with the IRS at court pushing for finding that the surgeon had to combine that activity with his regular medical practice for purpose of determining material participation.

The surgeon this case is a plastic surgeon, specializing in pediatric reconstructive surgery, who operated on patients in his office and in some local hospitals.  The surgery must take place outside of his office if the surgery requires general anesthesia.  The doctor was finding that at times he was having difficulty obtaining space at the local hospitals for his procedures due to a limited number of available operating rooms.

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In AM 2017-011 the IRS National Office was asked whether the IRS should enter into closing agreements with certain entities that discovered they had not included nonqualified deferred compensation as wages subject to FICA/Medicare tax when there was no substantial risk of forfeiture of the rights to the amount.

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In response to a letter ruling request, the IRS ruled in PLR 201701002 that the income to be received by a private operating foundation were related to the organization’s exempt purpose.  Thus, the foundation would not be subject to either the unrelated business income tax nor the excess business holdings tax.

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In Notice 2017-3 the IRS has set the maximum values for 2017 for employer provided vehicles under which the cents per mile method (Reg. §1.61-21(e)) or fleet-average valuation rule (Reg. §1.61-21(d)) may apply.

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The IRS continues its apparent push to get out of the business of issuing closing letters for estates by issuing guidance in Notice 2017-12 that states that estates and their authorized representatives can request an account transcript in lieu of a closing to confirm that an IRS examination of the estate is completed and closed.

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The IRS has provided information on the de minimis error safe harbor information reporting provisions added by the PATH Act in 2015 in Notice 2017-9. 

The PATH Act added provisions (found in IRC §§6721 and 6722) that remove penalties for not providing revised returns to the IRS and taxpayers.

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Just in time for the program to get underway, the IRS provided details on the rules for maintaining Certified Professional Employer Organization (CPEO) status under IRC §7705 in Revenue Procedure 2017-14.

If a business uses a CPEO to handle its payroll for a qualifying worksite, the business will not be held liable for the unpaid payroll taxes (including trust fund taxes) should the CPEO fail to properly make the payments when due.  That is an exception to the general rule that continued to hold the employer liable for such taxes even if, unbeknownst to the employer, the payroll service had not paid the taxes—even if the payroll had been involved in a scheme to simply steal the funds from the employer.

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A tax that many CPAs in practice may not have run into recently was the subject of Chief Counsel Advice 201653017—the accumulated earnings tax imposed by IRC §531.  While the tax technically applies to any C corporation, in reality it is only asserted against small privately held C corporations.  Since small, privately held C corporations have been rarely seen in most practices since the passage of the Tax Reform Act of 1986 and the repeal of the General Utilities doctrine, the IRS has not had many chances to assert this tax and many CPAs have never seen the tax asserted.

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Nontax rules often require that those performing certain services (such as selling investment products) be licensed to do so.  Quite often that license is held in the name of an individual.  In the case of Fleischer v. Commissioner, TC Memo 2016-238 a person in just such a position wanted to form an S corporation in which to conduct his investment advisory business in order to reduce his exposure to self-employment taxes.

When he did so he did not attempt to have the corporation he formed become licensed to perform the services in question.  He already had entered into an agreement with Linsco/Private Ledger Financial Services (LPL) as a representative prior to forming the corporation.  He did not have his contract with LPL revised to recognize his S corporation, Fleischer Wealth Plan (FWP), although he began treating the income he received from LPL as corporate income.

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The IRS adopted final regulations (TD 9806) on determining the ownership of a passive foreign investment company (PFIC), reporting requirements for shareholders of PFICs to file Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund and on an exception to the requirement for certain shareholders to file Form 5471, Information Return of U.S. Persons with Respect to Certain Foreign Corporations.

These regulations adopt proposed regulations that were issued in December of 2013 with certain changes.  As well, the related temporary regulations are removed.  The changes are effective December 28, 2016.

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In PLR 201652029 the IRS was asked to grant an organization a tax exemption under §501(c)(3).  The organization was one formed to grant annual scholarships to graduating seniors of a particular high school who met certain criteria.

Initially this seems like a reasonable request since the organization’s purpose was to further education, and it was going to grant scholarships based on merit-based criteria.  But it turns out that criteria caught the IRS’s attention when the IRS looked at applying those criteria to what had actually taken place in the past.

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In Notice 2017-10 the IRS has identified certain syndicated conservation easement transactions as listed transactions for purposes of Reg. §1.6011-4(b)(2) and IRC §§6011 and 6112.

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Merely being a guarantor of a rather large outstanding partnership debt was not sufficient to allow a deduction for losses flowing through from a partnership in the case of Hargis v. Commissioner, TC Memo 2016-232.

The case involved a question of proving basis both in S corporations in which the husband was a shareholder and basis in LLCs taxed as partnerships in which the wife was a partner.  The S corporation issue was fairly simple—the debts did not flow directly from the husband to the S corporation, so there was no basis provided by the debt.

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The IRS has extended a special eligibility rule for taxpayers making an automatic change of accounting method by one year in Notice 2017-6. 

Taxpayers were required to make various changes in their accounting methods to comply with the revised tangible property regulations that took effect in 2014.  However, some of these taxpayers have discovered they need to make additional changes to comply with those regulations they had not noticed previously.

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The tax law may be “unfair and unjust” but that doesn’t allow a taxpayer to ignore the law to arrive at what he may believe is a more just result.  That’s the key lesson the case of Walter S. Mack Jr. et ux. v. Commissioner, T.C. Memo. 2016-229 provides.

Mr. Mack was a partner in a law firm.  He received K-1s from two law firm related partnerships for 2011 that showed total income of $479,473.  However, he only reported income of $75,000 from the partnerships on his Form 1040 for that year. 

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