The SBA has issued guidance on the Second Draw Payroll Protection Program dealing with:

• Calculation of the required revenue reduction and

• Maximum loan amounts for Second Draw Loans including what documentation to supply.[1]

The SBA describes the guidance as follows:

The Small Business Administration (SBA), in consultation with the Department of the Treasury, is providing this guidance to assist businesses in calculating their revenue reduction and payroll costs (and the relevant documentation that is required to support each set of calculations) for purposes of determining their eligibility for and amount of a Second Draw PPP Loan.

Borrowers and lenders may rely on the guidance provided in this document as SBA’s interpretation of the CARES Act, the Economic Aid Act, and the Paycheck Protection Program Interim Final Rules. The U.S. government will not challenge lender PPP actions that conform to this guidance and to the PPP Interim Final Rules and any subsequent rulemaking in effect at the time the action is taken.[2]

The SBA has updated its FAQ computing the maximum first draw PPP loan amounts[1] following the passage of the Economic Aid Act in December of 2020.

The revised guidance begins with a note that while the SBA’s calculations often refer to 2019 information to compute the maximum borrowing, in the IFRs issued on January 6, 2021 describing the revisions found in the Economic Aid Act, the SBA allows the use of calendar year 2020 as well:

The guidance describes payroll costs using calendar year 2019 as the reference period for payroll costs used to calculate loan amounts. However, borrowers are permitted to use payroll costs from either calendar year 2019 or calendar year 2020 for their First Draw PPP Loan amount calculation. Documentation, including IRS forms, must be supplied for the selected reference period.[2]

In a footnote the document indicates that the year chosen must be used for all calculations:

All components of payroll costs must be from the same calendar year. Payroll costs, including for covered benefits, can only be included for employees whose principal place of residence is in the United States.[3]

The partnership in the case of Michael Hohlet ux. et al. v. Commissioner, TC Memo 2021-5[1] attempted to claim that amounts it received from a partner it had treated in prior years as loans were actually capital contributions in the final year of the partnership. However, both the IRS and the Tax Court did not agree, finding that amount represented cancellation of indebtedness income in the final year of the partnership.

Three of the partners had contributed no funds to start the partnership, but were paid guaranteed payments each year. They each were treated as having a 30% interest. Eduardo Rodriguez put up $265,000 of cash for a 10% interest. In later years, Mr. Rodriguez advanced the partnership money that was treated as loans to the partnership, money used for partnership operations.

The IRS has outlined the details of its voluntary Identity Protection Personal Identification Number (IP-PIN) program where taxpayers will receive an IP-PIN, as well as opening up the process nationwide.[1] In the news release announcing the program, the IRS provides:

The Identity Protection PIN (IP PIN) is a six-digit code known only to the taxpayer and to the IRS. It helps prevent identity thieves from filing fraudulent tax returns using a taxpayers’ personally identifiable information.

“This is a way to, in essence, lock your tax account, and the IP PIN serves as the key to opening that account,” said IRS Commissioner Chuck Rettig. “Electronic returns that do not contain the correct IP PIN will be rejected, and paper returns will go through additional scrutiny for fraud.”[2]

The IRS has issued final regulations[1] that provide information on the extended time period for those plan participants receiving a noncash distribution from a retirement plan that is a qualified plan loan offset (QPLO) to rollover the amount to another retirement plan. This provision was added to the law by the Tax Cuts and Jobs Act (TCJA).

The regulations are finalized versions of the proposed regulations issued in August 2020.[2]

The proposed regulations provided that taxpayers may rely on these regulations beginning with respect to plan loan offset amounts, including qualified plan loan offset amounts, treated as distributed on or after the date the proposed regulations are published in the Federal Register[3] and before the date the regulations are published in the Federal Register in final form.[4]

In Notice 2021-7,[1] the IRS has granted relief to certain employers and employees using the automobile lease valuation rule to determine the value of an employee’s personal use of an employer-provided automobile. The relief has been granted due to the impact of the COVID-19 pandemic.

The relief is summarized in the Notice as follows:

Due solely to the COVID-19 pandemic, if certain requirements are satisfied, employers and employees that are using the automobile lease valuation rule may instead use the vehicle cents-per-mile valuation rule to determine the value of an employee’s personal use of an employer-provided automobile beginning as of March 13, 2020. For 2021, employers and employees may revert to the automobile lease valuation rule or continue using the vehicle cents-per-mile valuation rule provided certain requirements are met.[2]

The IRS has proposed regulations to begin charging a user fee of $67 for an estate tax closing letter.[1]

The IRS explains its justification for taking this action as follows:

In view of the resource constraints and purpose of issuing estate tax closing letters as a convenience to authorized persons, the IRS has identified the provision of estate tax closing letters as an appropriate service for which to establish a user fee to recover the costs that the government incurs in providing such letters. Accordingly, the Treasury Department and the IRS propose establishing a user fee for estate tax closing letter requests (see parts E and F for explanation of the authority to establish the user fee). As currently determined, the user fee is $67, as detailed in part H. [2]

The new closing letter fee is provided for in Proposed Reg. §300.13. The proposed fee, as noted, is set at $67.[3]

With the pushing back of many filing deadlines in 2020 to July 15, 2020, a question has arisen about how that relief will impact the statute of limitations to file a refund claim. For instance, for a calendar year form 1040 filed on July 15, 2020, will the time period to file a claim for refund on that return end three years from April 15, 2020 or three years from July 15, 2020?

In a Chief Counsel Email,[1] the IRS concludes that the answer is both—but, from a practical standpoint, the earlier date will quite often control. The logic of the email gets deep into the various subsections under IRC §6511.

The IRS is under obligation only to mail notices to the taxpayer’s last known address in order to start the clock running on the time period to take specific actions. In the case of Gregory v. Commissioner, 152 TC No. 7,[1] the Tax Court ruled that neither Form 2848, Power of Attorney and Declaration of Representative, nor Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, served to change a taxpayer’s last known address. But the Third Circuit disagreed with that holding, finding that the IRS clearly had notice of the taxpayer’s address in this case.[2]

The IRS has published the final version of the regulations under IRC §274 that eliminates an employer’s deduction for the cost of providing some employer provided transportation and commuting benefits.[1] Proposed regulations were issued on June 23, 2020 and these regulations mainly adopt those regulations, though with some changes.

One interesting change involves an expansion of the exception under IRC §274(e)(8) where the employer can demonstrate the qualified transportation fringe has zero value—that is, the general public would not pay to park a car in the location in question.

The IRS has decided to extend their program of accepting certain forms using electronic signatures that was scheduled to end on December 31, 2020 to June 30, 2021, per a new memorandum issued by Sunita Lough, IRS Deputy Commissioner for Services and Enforcement.[1]

The original program was discussed earlier in an online article I posted when the program was announced in August.[2] The new memorandum repeats what was found in the original memorandum, but now covers the period from January 1, 2021 to June 30, 2021.

The Small Business Administration has issued information on tax reporting for payments made under §1112 of the CARES Act.[1] That provision provided that the government, via the SBA, would pay principal and interest for loans covered by §7(a) of the Small Business Act for a period of six months.[2]

Although the Act did not provide any explicit guidance governing whether such payments were to be treated as income by the recipient, Congress did not specifically provide that the amounts were not to be treated as taxable income, unlike the explicit provision treating forgiveness of PPP debt as not being subject to tax.[3]

IRC §61 broadly defines gross income as “all income from whatever source derived, including (but not limited to)” a long list of items, including “[i]ncome from the discharge of indebtedness…”[4] Thus, from the very beginning, it appeared that these payments would represent taxable income to the businesses who had a portion of their debts paid.

The SBA has released an updated version of its Paycheck Protection Program Frequently Asked Questions,[1] adding new question 53 that addresses the Forms 3509 and 3510 being sent to certain borrowers.

The new form, initially reported about on October 30, 2020, is being sent to borrowers who face scrutiny regarding whether their certification that their loan request was necessary given the current economic uncertainty was made in good faith. For those who had a loan of less than $2 million, the SBA had previously stated that their certifications will be deemed to have been made in good faith,[2] so those with loans of $2 million or more are the ones facing scrutiny of their certification.

On November 18, 2020 we noted reports of the IRS Commissioner’s statement that more COVID-related penalty relief was “not going to happen” when speaking to the AICPA National Conference on Federal Taxes, as well as the reaction from the AICPA’s Chief Tax Officer Ed Karl, stating rather pointed disagreement with this decision.[1]

Now the AICPA, along with six other tax groups, has issued a new letter again requesting relief, this time addressed to both Commissioner Rettig and Treasury Assistant Secretary (Tax Policy) (and former interim Commissioner) David Kautter.[2] In addition to the AICPA, which had previously written a letter to which Commissioner Rettig was responding to at the conference, the following groups signed onto this letter:

• alliantgroup, LP

• National Association of Enrolled Agents (NAEA)

• National Association of Tax Professionals (NATP)

• National Conference of CPA Practitioners (NCCPAP)

• National Society of Tax Professionals (NSTP) and

• Padgett Business Services.

The IRS in a news release issued as part of IRS National Tax Security Awareness Week touted the benefits of multi-factor authentication (MFA) for use by taxpayers and tax professionals.[1] Multi-factor authentication (also often referred to as two-factor authentication) is being recommended for use in protecting online accounts, especially those containing sensitive information, due to some of the often-seen issues with traditional username/password log-ins to online systems.

The IRS describes the process as follows:

Designed to protect both taxpayers and tax professionals, multi-factor authentication means the returning user must enter two pieces of data to securely access an account or application. For example, taxpayers must enter their credentials (username and password) plus a numerical code sent as a text to their mobile phone.[2]

As part of the National Tax Security Awareness Week, the IRS announced that the Identity Protection PIN (IP PIN) opt-in program will be expanded to taxpayers nationwide in 2021.[1]

The IP PIN program is one that the IRS began offering a number of years ago to certain taxpayers who had encountered tax-related identity theft, later expanding it to taxpayers who elected to opt into the program in certain states that had more significant levels of tax related identity theft. The IRS had expanded the opt-in program to additional states since then, and in the Taxpayer First Act of 2019 Congress had directed the agency to expand the opt-in program nationwide.

The IRS has issued a frequently asked question page[1] to describe relief for vehicles used in a van pool that may fail to meet the 80% mileage test to be considered a “commuter highway vehicle” due to the COVID-19 pandemic.

The IRS seeks to answer the following question:

For the 2020 calendar year, under what conditions is a vehicle used in a van pool considered a “commuter highway vehicle” for purposes of the qualified transportation fringe benefit requirements under section 132(f) of the Internal Revenue Code (Code) if, during the COVID-19 public health emergency, 80 percent of the vehicle’s mileage for the year is not attributable to trips during which the number of employees transported from their residence to their place of employment is at least 50 percent of the adult seating capacity of the vehicle (not including the driver)?[2]