The Tax Court, having been reversed on appeal by the Seventh Circuit Court of Appeals in a case with virtually identical facts, officially changed its position on how to determine if a document mailed with a Stamps.com mailing label meets the timely filing rules of IRC §7502.  In Pearson v. Commissioner, 149 TC No. 20, the Court rejected its prior position that entries in the U.S. Postal Service database amounted to the equivalent of U.S Postal Service applied postmark which took precedence over the Stamps.com mailing date.  Instead, a document mailed with a Stamps.com label (or any other sort of postage meter equivalent label) is tested under the regulations for a document with a postmark applied by other than the U.S. Postal Service.

While, as noted, this position had been adopted on appeal, reversing the prior Tax Court decision, the reversal only would have had effect for taxpayers in the Seventh Circuit had the Tax Court not reversed its prior position.

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The IRS has released additional proposed regulations (REG-119337-17) on the Centralized Partnership Audit Regime (CPAR) that was created by the Bipartisan Budget Act of 2015.  These regulations, which add to the proposed regulations issued in June, address the impact of various international tax provisions on CPAR exams.

Specifically, these regulations look at the relationship of CPAR to the existing withholding obligations for certain foreign partners.  The proposed regulations make it clear that, generally, such withholding obligations are not covered by CPAR, but remind the reader that the IRS has taken the position in the June proposed regulations that he agency retains the right to separately examine the partnership and/or partners for any tax not covered by CPAR.

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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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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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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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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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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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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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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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