No Deduction for Legal Fees Paid in Attempt to Recover Overpaid Alimony

Taxpayers often come to advisers seeking a way to claim a deduction for legal fees.  As we are aware, the IRC doesn’t provide a provision that broadly allows a deduction for legal fees.  Rather, taxpayers must find a provision in the IRC that allows a deduction for expenses of a type in which the current legal fees can be categorized.

The search for a provision under which to claim a deduction for legal fees was undertaken recently by the taxpayer in the case of Barry v. Commissioner, TC Memo 2017-237.  In this case the taxpayer had incurred over $25,000 of legal fees in an unsuccessful attempt to recover what he claimed was alimony which he had paid to his wife in excess of what was allowed under their agreement.

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English Law Used to Determine if Payments Would Cease on Death of Payee

The basic question the Court had to decide in the case of Wolens v. Commissioner, TC Memo 2017-236 seemed to be one often encountered in alimony court cases.  Did the payment stream in question stop upon the death of the recipient spouse?  Answering that question in the affirmative would satisfy one of four initial requirements for a payment stream to be treated as alimony for tax purposes.

As has often been true in previous cases, the divorce document did not specifically address whether these payments would continue after the death of the recipient.  And, as happens in those cases, the Court next looks to the relevant governing law (referred to in the cases as “state’ law) to determine if the underlying law would cause the payment stream to stop.

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Moline Requirement to Recognize Existence of Entity Applies to S Corporations per IRS Memo

The IRS issued a memorandum (CCA 201747006) that takes the position that the Court of Claim’s 2011 opinion in the case of Morton v. United States, 98 Fed. Cl. 596 (2011), is in error when it takes the position that, for an S corporation, an entity doesn’t have to be strictly recognized as unique form its owners. Rather, the memorandum argues that the opinion should not have distinguished the treatment of S corporations from that given by the U.S. Supreme Court in the case of Moline Properties v. Commissioner, 319 U.S. 436 (1943).

Moline generally holds that a taxpayer is not able to ignore the existence of separate entities that he/she has set up when analyzing a tax issue.  Rather, each entity is treated as a unique entity from the taxpayer’s perspective and the taxpayer must live with the consequences of that fact.  Unlike the IRS, the taxpayer was involved in creating the structure in question.

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IRS Provides Safe Harbor for Claiming Casualty Loss Arising from Deterioration of Residence Foundation Due to Pyrrhotite

In Revenue Procedure 2017-60 the IRS has provided a safe harbor for use by individuals who have suffered damage to their personal residences due to deteriorating concrete foundations caused by the presence of pyrrhotite. Under the safe harbor, amounts paid to repair such damage will count as a casualty loss in the year of payment.

The issue affects residents of the Northeastern United States due to the presence of pyrrhotite in the concrete mixture used to pour the affected foundations.  The IRS notes that this is a mineral that naturally occurs in stone aggregate which is used to produce concrete.  The mineral oxidizes in the presence of water and oxygen, leading to the formation of expansive mineral products and causing the concrete to deteriorate prematurely.

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Taxpayer's Loss Generated Using a Family Limited Partnership Formed With Assets Contributed to S Corporation Lacked Economic Substance

An attempt to combine the concepts of valuation discounts for family limited partnership often used in estate planning with a short-lived S corporation to create an income tax benefit was not looked upon positively by the Tax Court in the case of Smith v. Commissioner, TC Memo 2017-218.

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IRS Issues QSEHRA Guidance in FAQ Format

Late in 2016, as part of the 21st Century Cures Act, Congress had created a program under which certain qualifying small employers could pay directly for medical costs of certain employees (generally private health care insurance) without running afoul of the provisions of the Affordable Care Act that could subject the employer to a $100 per employee per day penalty for offering a health plan that did not comply with the standards imposed under that law.

These programs are referred to as “Qualified Small Employer Health Reimbursement Arrangements” (QSEHRAs) authorized by IRC §9831(d).  In Notice 2017-67 the IRS issued a 59-page set of frequently asked questions (FAQs) regarding the operation of such plans to maintain compliance with the requirements of the law.

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Waiver of Repayment of Excess Pension Payment Not Taxable as Cancellation of Indebtedness

In Private Letter Ruling 201743011 a taxpayer sought clarification that he would not end up having to effectively report the same income twice despite receiving information returns in different years that reported what was the same income.

The taxpayer had received payments from a pension plan to which the taxpayer had made after-tax contributions for several years.  The taxpayer reported his payments using the simplified safe harbor method of reporting his income pursuant to Notice 88-118, determining the taxable portion of each payment and the amount that represented a nontaxable return of capital.

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Senate Finance Committee Chairman's Revisions to Tax Cuts and Jobs Act

Changes to the Tax Cuts and Jobs Act were released late on November 14 by Senator Orrin Hatch.  These changes are being made to the original Senate Finance Committee Chairman's mark of the bill.

Some of the changes bring the Senate bill into conformity with similar provisions in the House Bill, while others (such as the removal of the shared responsibility payment beginning in 2019 that has gotten much press coverage) are brand new provisions not seen in the House bill.  The revisions also serve to bring the Senate Bill into compliance with the Byrd rule.

The Joint Committee on taxation has released an explanation of these changes..

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JCT Description of Initial Senate Versions of Tax Cuts and Jobs Act Released

The U.S. Senate Finance Committee is set to unveil the Chairman's Mark of the Tax Cuts and Jobs Act November 10.  The mark has some significant differences from the bill currently moving through the Senate Finance Committee.

Some highlights of key differences include:

  • Seven tax brackets (10%, 12%, 22.5%, 25%, 32.5%, 35%, 38.5%)
  • Expand child credit to $1,650
  • Double the estate tax exemption (no repeal)
  • Home mortgage deduction remains at $1,000,000
  • Back to original framework standard deduction numbers
  • No change to carried interest
  • Medical expenses remain deductible
  • No state and local tax deductions (including real estate taxes)
  • Lower corporate rate to 20% but with one year delay
  • Changes passthrough income relief to a 17.4% deduction for such income

The Joint Committee on Taxation has released their summary of the Senate Finance Committee's Chairman's Mark.

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Ways and Means Chairman Offers More Amendments to Tax Cuts and Jobs Act

Chairman Brady added more proposed amendments to the Tax Cuts and Jobs Act that were released on Thursday.

Chairman’s Second Amendment Summary

  • Removed self-employment tax revisions (which includes S corporations)
  • Restores adoption credit
  • Require SSN for child in order to claim entire amount of the enhanced child credit
  • Can rollover from 529 to ABLE account
  • Floor plan financing interest fully deductible but no full expensing for such businesses
  • S corporation gets special 6 year rule if terminates status due to Act for
    • Accounting method changes
    • Also gets special rule for distributions to be pro-rata from E&P and AAA
  • Requirement to capitalize research and development are required to be capitalized and amortized over 5 years (15 years for foreign)
  • Immediate deduction for expenses of attorney in contingent fee litigation
  • Remove changes to deferred compensation
  • 83(b) election cannot be made on restricted stock units (RSU)
  • Raised rate on repatriated assets to
  • 7% on earnings held in illiquid investments
  • 14% on other earnings and profits

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Ways and Means Chairman Brady's Amendments to the Tax Cuts and Jobs Act

The process continues in D.C. as the Tax Cuts and Jobs Act faces hearings before the House Ways and Means Committee.

On Monday Chairman Brady released a set of amendments, adopted by the Committee, that made the following revisions to the bill.

  • Rules mandating proper net earnings from self-employment for earned income tax credit
  • Employers must give employees’ name and address on payroll tax returns
  • Three year holding period for carried interests to get long term capital gain treatment
  • 1.4% excise tax only applies to universities with endowments of more than $250,000 per student
  • Deferral up to five years for income from stock options or restricted stock units if corporation’s stock is not publicly traded
  • Restores ability to treat self-created musical works as capital assets
  • Continue employer exclusion of dependent care assistance of up to $5,000 through 2022

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HR1 Tax Cuts and Jobs Act as Introduced in the House

On November 2 the Tax Cuts and Jobs Act was introduced in the House with the language being made available.

We have prepared a summary of significant items in the bill that you can download below:

HR1 Tax Cuts and Jobs Act Major Items

A detailed look at the various provisions has been prepared by the Joint Committee on Taxation. This 307 page document is an excellent reference to the details of the bill.

JCX-50-17 Description Of H.R.1, The "Tax Cuts And Jobs Act"

A copy of the bill that was released can be downloaded from the House Ways and Means Committee site:

HR1 Tax Cuts and Jobs Act

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Loans from Related Corporations Did Not Shareholders Basis for Losses

The rules for obtaining basis for S corporation loans are often best viewed as emphasizing form over substance.  The fact that a shareholder might be economically “on the hook” for ultimate repayment of the debt will not generally impact whether that person will be able to claim the debt as basis.  The shareholders of an S corporation ran into this issue in the case Messina et ux. et al. v. Commissioner, TC Memo 2017-213.

In this situation, the controlling shareholders of an S corporation formed another S corporation that loaned funds to a qualified S corporation subsidiary (QSUB) of the first S corporation.  The shareholders then attempted to claim losses from the first S corporation by use those loans as additional basis in the corporation—a position the IRS and, ultimately, the Tax Court disagreed with.

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IRS Memo Addresses Prohibited Indirect Loans to Employer for 403(b) Plan

In Chief Counsel Advice 201742022 the IRS considered whether certain arrangements related to a church’s §403(b)(9) retirement plan amount to loans to the employer prohibited under Reg. §1.403(b)-9(a)(2)(i)(C).

Reg. §1.403(b)-9(a)(2)(i)(C)’s exclusive benefit rule provides the following requirement for a program to be considered a valid IRC §403(b)(9) retirement account:

(C) The assets held in the account cannot be used for, or diverted to, purposes other than for the exclusive benefit of plan participants or their beneficiaries (and for this purpose, assets are treated as diverted to the employer if there is a loan or other extension of credit from assets in the account to the employer).

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Expert's Testimony Cannot Substitute for Records Taxpayer Failed to Produce

In the case of Feinberg v. Commissioner, T.C. Memo 2017-211, a taxpayer attempted to use the expert opinion of a CPA whom was claimed to be an expert in cost accounting, with an emphasis in the marijuana industry.

The taxpayers were shareholders in an LLC that ran a marijuana dispensary in Colorado.  On the original tax return filed for their S corporation claimed several deductions as ordinary trade or business deductions that the IRS determined were costs of sales—and important issue, since under IRC §280E only costs of goods sold may be deducted by a business that traffics in controlled substances under federal law.  Despite being legalized in Colorado, marijuana remains a controlled substance under federal law.

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Taxpayer Penalized for Failing to Produce Adequate Evidence to Support Value Claimed for Theft Loss

The Tax Court found that, in the case of Partyka v. Commissioner, TC Summ. Op. 2017-79, that while the taxpayer had sustained a theft loss that was properly deductible in 2012, the taxpayer had not taken sufficient care to obtain proper values for the property stolen, assessing the accuracy related penalty of 20% under IRC §6662 in addition to the tax due.

This case involves a combination of the sale of household furnishing and the rental of a residence to a tenant who ended up giving the taxpayer a check that bounced to pay for the furnishings and initial rent.  The tenant did not make good on the amount due, so the taxpayers undertook proceedings to evict the tenant.

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Court Finds IRS Allowed to Enforce Summons to Obtain Information from State of Colorado to Show Business Sold Controlled Substances

A taxpayer seeking to quash a summons from the IRS to the Colorado Department of Revenue’s Marijuana Enforcement Division failed to obtain the requested relief in the case of Rifle Remedies, LLC v. United States, USDC Colorado, Case No. No. 1:17-mc-00062.

The taxpayer had claimed that this subpoena was “really” a front for conducting a criminal investigation into the taxpayer’s marijuana business and, if the court didn’t accept that objection, the taxpayer had a series of other objections. 

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Inflation Adjusted Numbers Issued by IRS for 2018 Including New Indexed Maximum Small Employer HRA Amounts

The IRS released inflation adjusted amounts for a number of tax related items for 2017 in Revenue Procedure 2017-58

Note that these numbers assume the tax law as it currently exists.  At the time this Revenue Procedure was released the Congress was developing a comprehensive tax reform program that, if passed, could eliminate the need for some of these numbers and could significantly change others.

A PDF summarizing the significant numbers for 2018 can be downloaded below:

Key 2018 Inflation Adjustment Figures

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IRS Will Require Taxpayers to Supply Health Care Coverage Information to Process 2017 Returns

With “repeal and replace” of the ACA unsuccessful to date, the IRS has announced that the agency will reject 2017 income tax returns that do not address the ACA health care requirements (The Affordable Care Act: What’s Trending, IRS Website).

The IRS had originally planned to reject 2016 returns that did not provide this information.  However, early in 2017 when it appeared that “repeal and replace” was imminent and that the individual shared responsibility payment would be retroactively repealed the IRS decided not to begin requiring that information before processing a return.  The IRS had not required that information in prior years, but the agency had gotten the systems ready to deal with this issue for 2016 returns.

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