Value of CalPERS Pension Not Included in Calculation of Insolvency

The general rule is that income from the cancellation of debt is included in a taxpayer’s gross income. [IRC §61(a)(12)]  However, IRC §108 provides various exclusions from income for cancellation of debt if certain requirements are met.  One of those exclusions, found at IRC §108(a)(1)(B), provides for excluding from income cancellation of debt to the extent the taxpayer is insolvent at the time the debt is discharged.

The taxpayers in the case of Schieber v. Commissioner, TC Memo 2017-32 argued that they were insolvent at the time GMAC Mortgage had cancelled debt of $448,671.  The debt was secured by a piece of property (the Stockdale Highway property) that was not the taxpayer’s principal residence. 

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Husband Not Allowed to Sign Joint Return on Wife's Behalf Where He Claimed Her Mental Illness Rendered Her Decision to File Separately Void

What do you do about filing a joint return if your spouse refuses to sign the return and insists on filing married filing separate? Generally you are out of luck and must file married filing separate. But in the case of Moss v. Commissioner, TC Memo 2017-30 the taxpayer contended that his spouse wasn’t competent to file a return and that he should be allowed to sign the return on her behalf.

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Preparer Failed To Exercise Proper Due Diligence in Failing to Seek Additional Supporting Evidence of Business Income

In the case of Foxx v. United States, U.S. Court of Federal Claims, No. 1:15-cv-01266 the IRS had assessed a penalty against a tax preparer, claiming he had failed to exercise proper due diligence in reporting over $18,000 from an auto detailing business that caused a taxpayer to qualify for the earned income tax credit.  When the IRS examined the taxpayer’s return, the taxpayer admitted she had no such business and, thus, was not eligible to have received the credit.

The IRS had assessed a penalty against Dr. Foxx under IRC §6694(b) for “willful or reckless conduct” in preparing the tax return.  Dr. Foxx argued that he has simply relied upon the representations of the taxpayer about her income.  So the key question became whether Dr. Foxx’s actions were sufficient to show an exercise of proper due diligence.

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Calendar Year C Corporations to Be Granted Six Month, Rather Than Five Month, Extensions When Fling Form 7004

The IRS clarified on its website (6-Month Extension Period for Calendar Year C Corporations) that the agency has exercised its authority under IRC §6081(a) and will grant calendar year C corporations that timely file a Form 7004 a six-month extension of time to file their calendar year tax return.  Thus, the extended due date for such corporations will move to October 15 instead of the originally scheduled September 15 due date.  The revised due dates are reflected in revised instructions for Form 7004 that the IRS has posted.

The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 had modified the due dates and extended due dates for various entities, effective for tax years beginning in 2016.  For C corporations the original due of such returns were generally pushed back one month, which would also serve to push back the extended due date by one month.

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Court Holds Grandmother Did Not Have Right to Claim Grandchildren Despite Finding the Decision in No Way Could Be Called Just

In the case of Smyth v. Commissioner, TC Memo 2017-29 it seems everyone believed that the just result would have been to allow the taxpayer to keep the refund she had received that was now at risk due to actions of her less than responsible (or apparently wholly honest) son.

The IRS pointed out at trial that it did not defend the justice of the result it was seeking.  Ms. Smyth was assisted by counsel who volunteered to help generally at calendar call, was moved by her testimony and entered an appearance for her after trial.  The judge deciding the case also noted that it is impossible to accept the result the IRS sought in the case was just—that is, “to send money meant to help those who care for small children to someone who spent it on drugs instead.”

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Taxpayer Not Allowed to Exclude Amounts from Income Merely Because IRS Allowed the Position on Three Prior Amended Returns

The fact that the IRS had granted the taxpayer’s position on three prior returns that his military retirement was not subject to tax did not require the IRS to accept that same position on a later return.  The case of Taylor v. Commissioner, TC Summary Opinion 2017-4 dealt with this issue of how much reliance a taxpayer can place on the IRS’s acceptance of a return position in an earlier year.

The taxpayer in this case had retired from the Army after completing the length of time necessary to qualify for retirement in 2002.  Although he did not separate due to disability, he did file an application with the VA in 2002 for compensation for service related disabilities.  He was awarded such compensation which was not reported by the VA to the IRS, which he did not report as taxable on his return for the year in question (2010) and which the IRS was not arguing was taxable compensation to him.

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Last Minute Changes to Separation Agreement Required Entire Payment to Be Treated as Not Alimony

At first glance the payments made by the taxpayer in the case of Quintal v. Commissioner, TC Summary Opinion 2017-3 would appear to be deductible alimony—but last minute changes made to the divorce documents would end up changing the nature of the payments in the view of the Court.

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No Reasonable Cause Defense to Trust Fund Penalty Allowed in Ninth Circuit, CEO Liable for Responsible Person Penalty

In the case of United States v. Liddle, 119 AFTR 2d ¶2017-381 (USDC, ND CA) the CEO of two different companies that each had failed to remit trust fund taxes argued that while he was clearly a responsible person for purposes of the trust fund penalty, he should not be liable because he had acted with reasonable cause.

Some Circuit Courts of Appeal have taken the position that a responsible person may be relieved of liability for the trust fund recovery penalty under IRC §6672 based on a reasonable cause defense.

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Fixed Indemnity Medical Plan Payments Are Taxable as Wages When Received If Premiums Were Not Paid from After-Tax Funds

Normally employees who have employer paid health insurance (or who pay for such insurance via §125 cafeteria plans) do not include either the premiums nor the medical costs paid by the policy as income.  But in Chief Counsel Advice 201703013 we are reminded that this treatment will not apply for payments from fixed indemnity health plans.

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Contract, Whether a Construction or Manufacturing Contract, was Required to be Reported on Percentage of Completion Basis

While most practitioners likely think of the tax percentage of completion method of accounting as something only affecting construction contractors, in fact such provisions can impact other types of contracts under certain conditions. In the case of Basic Engineering, Inc. v. Commissioner, TC Memo 2017-26 the key issue was whether the contract the taxpayer had was really not a construction contract and, if not, whether it would still be required to be accounted for under the percentage of completion method of accounting for tax purposes.

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Taxpayer Did Not Have Reasonable Cause for Failure to File Forms 5471

Edward Flume was looking at penalties for failing to file Forms 5471 from 2001 through 2009, with the total penalties the IRS was looking to collect over that time amounting to $110,000.  In the case of Flume v. Commissioner, TC Memo 2017-21 the taxpayer argued as one defense that he should be excused from any penalties based on reasonable cause for reliance on a tax professional.

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IRS Releases, Then Pulls Back, Proposed Regulations Implementing BBA Partnership Audit Regime

The IRS had released proposed regulations (REG-136118-15) that explain how the IRS proposes to implement the centralized partnership audit regime adopted as part of the Bipartisan Budget Act of 2015.  The provisions contained in that bill created a new audit arrangement for partnerships which, by default, will have a tax imposed at the end of an audit on the partnership to take into account any adjustments that would have increased partners’ taxes had the items been reported on the original return as is being proposed in the audit.

The new centralized regime takes effect for tax years beginning on or after January 1, 2017, though partnerships under exam for years beginning after November 2, 2015 and before January 1, 2018 may elect to have these provision apply.

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Surgeon Found to Be Investor in Surgical Center LLC He Performed Surgeries In, Income Not Subject to Self-Employment Tax

A case that presented the reverse situation that the Tax Court decided in the 2011 case of Renkemeyer, Campbell & Weaver, LLP v. Commissioner on the issue of the self-employment tax liabilities of members of LLC was decided in the case of Hardy v. CommissionerTC Memo 2017-16.

The case involved a surgeon that had purchased a 12.5% interest in an LLC that operated a surgery center.  The surgeon did not actively participate in the management or operation of the center, but only performed a minority of his surgeries in the center, on similar terms as he worked in centers and hospitals in which he had no ownership interest.

(And, yes, this is the same case as covered in the other entry I wrote this day, but dealing with an additional issue.)

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Surgeon's Interest in Surgical Center Generated Passive Income and Taxpayer Did Not Need to Group With Medical Practice

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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No Option to Agree to Pay FICA/Medicare for Closed Years to Be Granted to Employers that Failed to Properly Included Nonqualified Deferred Compensation in Year of Vesting

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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IRS Grants Relief to Taxpayer When CPA Firm Inadvertently Failed to Have Taxpayer File Form 3115

Mistakes are made in preparing tax returns and, especially in the heat of tax season, items can be overlooked.  In PLR 201702021 the IRS granted relief in a situation where a CPA firm had accidentally neglected to attach a Form 3115 and have the taxpayer file a copy of the Form 3115 with the IRS for an automatic change of accounting methods.

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New More Sophisticated Phishing Attacks Aimed at Tax Professionals

Tax season in 2017 is opening with a warning from the IRS about a new email phishing scheme targeting tax professionals found in News Release IR-2017-03.  This phishing scheme is more complex than most, as it involves a two-step process with the initial email enticing the preparer to respond, at which point the email containing the payload is then sent to the professional.

In the New Release labeled “Security Summit Alert: New Two-Stage E-mail Scheme Targets Tax Professionals” the IRS warned about this new scheme in which the party seeking to obtain information from a professional poses as a potential new client.  The IRS notes “[t]he scheme's objective is to collect sensitive information that will allow fraudsters to prepare fraudulent tax returns.”

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Fees Charged for Exempt Purpose Related Services to Other Organizations Did Not Create an Unrelated Trade or Business

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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Transcripts Can Serve As Equivalent of Estate Closing Letters per IRS

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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