The IRS has now fired its first salvo in the SALT workaround controversy.  Notice 2018-54 announces the IRS’s intention to propose regulations to deal with some types of SALT workarounds.

In one sense this notice gives us little information about exactly what can and cannot pass muster when taxpayers make charitable contributions that reduce their state income taxes in an effort to shift from a nondeductible expense (state and local taxes in excess of $10,000) to fully deductible items (charitable contributions). But it does indicate that the IRS does not plan to sit by quietly and not issue guidance in this area.

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In a TEFRA case that may have continuing implications under the new Centralized Partnership Audit Regime (CPAR) taking effect for partnership tax years beginning in 2018, the DC Circuit, following suit with a similar opinion last year from the Ninth Circuit, found that having a disregarded entity as a partner meant a partnership could not avoid being examined under the TEFRA partnership examination provisions.

The case, Mellow Partners v. Commissioner, Case No. 16-1454, CA DC appealed the Tax Court’s holding that the TEFRA audit provisions applied to a partnership where each partner held his interest in a single member LLC.

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The question of whether a taxpayer had reasonably relied upon the advice of tax professionals when taking a tax position was the sole issue before the court in the case of RB-1 Investment Partners v. Commissioner, TC Memo 2018-64.

The taxpayers in the case had gotten into a Son-of-BOSS tax shelter in an attempt to shelter from tax the gain from the sale of their very successful concrete business.  While the taxpayers initially disputed the IRS’s disallowance of the benefits from the strategy, at this point the taxpayers had conceded that issue and now were only disputing the penalties in this case.

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John Voigt worked for Tulane University in 1991, at which time he was laid off as part of a staff reduction.  As part of his severance package, John was entitled to a tuition waiver for himself or his dependents in the future if certain conditions were met.

In 2013, John’s daughter enrolled at Tulane and received the benefit of the tuition waiver for the spring and fall semesters.  In the case of Voight v. Commissioner, TC Summary Opinion 2018-25, the Tax Court had to decide if the value of that tuition waiver represented taxable income to John.

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Looking at the coverage we have from the American Bar Association Section of Taxation’s meeting in Washington on May 11 nothing earthshattering about the upcoming guidance on the Tax Cuts and Jobs Act seems to have emerged from that meeting.  However, Tax Analyst’s coverage did highlight some items.

The proposed regulations on new §199A are scheduled to be released by June 30 per the IRS Priority Guidance plan, most recently updated on May 9.  But in a Real Estate session at the ABA’s Conference, Bryan Rimmke, attorney-adviser, Treasury Office of Tax Legislative Counsel did not commit to indicating that taxpayers will be able to rely on that initial guidance. In the Tax Analysts coverage, Mr. Rimmke noted “the agency is grappling with the same complex issues under section 199A as practitioners.”[1]  Advisers will need to pay attention when the proposed regulations are issued whether or not they are accompanied by “taxpayers can rely” language.

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The workarounds for the TCJA enacted limits on state and local taxes (SALT) have now expanded into another state, with Connecticut adding its workaround to those already passed by New York and New Jersey.  Connecticut Substitute Bill SB 11contains two different SALT workarounds.

The first workaround is a property tax credit based one, very similar to the one enacted by New Jersey earlier in May.  The bill authorizes municipalities to provide a property tax credit to those donating to a “designated community supporting organization.”  The credit could not exceed the lesser of:

• The amount of property tax owed or
  

• 85% of the donation to the designated community supporting organization.
  

The funds received by the organization will be made available to the municipality as a grant equal to the funds received under the program.

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In Revenue Procedure 2018-30 the IRS provided updated numbers for 2019 for health savings accounts and the related high deductible health plans.

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The same week as the IRS released the annual revised general purpose automatic method change list revenue procedure the agency decided to release the revenue procedure outlining how taxpayers may request a change of accounting method related to the GAAP changes taking place under ASC 606, Revenue from Contracts with Customers.  The change procedures are contained in Revenue Procedure 2018-29.

While this procedure is generally good news, it most clearly does not mean that the IRS is going allow the use of methods provided under ASC 606 without regard to whether the method is otherwise allowable under the IRC.  The taxpayer will have to make its own determination regarding whether or not conforming tax and book methods in their situation is actually allowed under the IRC.

In the second paragraph of the procedure the IRS notes that this procedure does not deal with the other major GAAP/tax accounting method issue for 2018 found in the new revenue conformity provision at IRC §451(b) and (c) added by the Tax Cuts and Jobs Act, noting the agency is working on additional guidance to deal with that issue.

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In the case of Pexa v. United States, Case No. 2:16-cv-00994, U.S. District Court, Eastern District of California the taxpayer was attempting to defend his treatment of termination payments for his termination payments received from Farmers Insurance as long term capital gain income.  The District Court had this matter before it on appeal from the Bankruptcy Court, which had ruled against the taxpayer.

Mr. Pexa had been involved first as an insurance agent and, eventually, a district manager for Farmers Insurance.  When he was promoted to district manager he was no longer allowed to sell insurance, rather now being in charge of recruiting, training, and supervising agents.  As such, he sold his agency to his sister in 1998, with a note payable over 20 years. 

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The IRS has updated the long (now 333 pages) document listing all of the automatic accounting method changes in Revenue Procedure 2018-31. This is the document that outlines the changes that can be made by attaching a Form 3115, Application for Change in Accounting Method, to the taxpayer’s tax return for the year of change (along with a copy to the IRS processing center in Covington, KY) rather than going through the process of applying for approval of the change and awaiting the IRS’s decision.

If you were hoping to see automatic change procedures outlined for changes added by the Tax Cuts and Jobs Act (TCJA), those are not in this document.  There were a few changes made to prior automatic changes (such as those impacting IRC §263A) to get ready for the new small business changes, but none of the small business changes, nor the revenue conformity change required for some businesses by IRC §451(b) as revised by TCJA are found in this document.

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In Notice 2018-30 the IRS has modified certain safe harbor calculations for recognized built in gain (RBIG) and recognized built in loss (RBIL) as it relates to limitations under IRC §382.  The IRS has revised guidance found in Notice 2003-65 to modify the safe harbor rules found in the IRC §§338 and 1374 approaches described in that ruling.

IRC §382 serves to limit the ability to “buy losses” in an existing corporation, limiting the corporation’s ability to claim pre-ownership change losses against post-change taxable income.  That ability is limited by the §382(b) limitation for each taxable year.

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The IRS, state taxing agencies and members of the nation’s tax industry in IRS News Release IR-2018-111 described a rising problem with identity theft aimed at small businesses and steps that are being taken to combat it.

The release begins by noting that the problem has been increasing recently:

In the past two years, the Internal Revenue Service has noted a sharp increase in the number of fraudulent filings of Forms 1120, 1120S and 1041 as well as Schedule K-1. The fraudulent filings apply to partnerships as well as estate and trust forms.

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In the case of Keenan v. Commissioner, TC Memo 2018-60, the taxpayers argued that they should not face penalties under IRC §6662.  They argued they had reasonably relied on the advice of their CPA and attorney/insurance agent in claiming a deduction of over $3,000,000 related to a Benistar 419 plan.

The taxpayers were back in court after the Ninth Circuit Court of Appeals had sent the case back down to the Tax Court to consider the taxpayer’s claims that their situation was different enough from that of the taxpayers in the Curcio case to justify a different result.  The taxpayers, who were one of many taxpayers facing proposed disallowance of deductions for Benistar 419 plans, had agreed to be bound by the result of a set of test cases involving similarly situated taxpayers that were all part of the Curcio decision.

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Oklahoma Governor Mary Fallin has vetoed the expansion of Oklahoma’s out of state tattletale provision to require reporting to the state and creating penalties that had been found in SB 337 discussed here previously.  Note that she had previously signed legislation imposing more stringent tattletale responsibilities on marketplace and certain other remote sellers (HB 1019 passed as part of the Second Special Session and signed into law on April 10, 2018).

The Oklahoma legislature remains in session and, at least in theory, could override this veto.  We will keep an eye on this legislation to see if there is any further activity in this area.

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