Area 51 is that mysterious area in the Nevada desert under the control of the United States Air Force. But it turns out that Area 51 is not the only mysterious 51 related to the United States federal government. Tax advisers have been exploring their own “area 51,” this time found at IRC Section 51(i)(1) that is cross-referenced for limiting the application of the employee retention credit.

Some parts of this 51 item are relatively clear. We know the employee retention credit (ERC) isn’t allowed for the various relatives of a control owner under CARES Act Section 2301(e) and its later updated versions. But what has become as obscure to some as Area 51 is whether this provision will work to also eliminate the ability of most shareholders owning more than 50% of the stock of a corporation to obtain the employee retention credit on their own wages.

The IRS released guidance on the version of the Employee Retention Credit (ERC) contained in the Taxpayer Certainty and Disaster Relief Act (TCDRA) of 2020 that is in effect for the first two quarters of 2021 in Notice 2021-23.[1]

As with Notice 2021-20, which was issued to cover the revised 2020 Employee Retention Credit, this Notice only updates the original Notice for issues related to the January-June 2021 version of the credit, and later guidance will be released governing new IRC §3134 that was added by the American Rescue Plan Act of 2021 and will apply from July-December 2021.

In News Release IR-2021-71[1] the IRS announced that it plans to begin issuing automatic refunds to taxpayers who filed returns that included 2020 unemployment compensation as taxable if the changes made by the American Rescue Plan Act (ARPA) of 2021 make the unemployment not taxable in 2020.

Twelve days after announcing the agency planned to push back the April 15 filing deadline for calendar year 2020 Forms 1040 to May 17, the IRS made it official in IRS News Release IR-2021-67[1] and Notice 2021-21.[2]

In Announcement 2021-7,[1] the IRS has broadened the definition of amounts paid for medical care to include amounts paid for personal protective equipment (PPE).

Examples of PPE given in the Announcement are:

• Masks;

• Hand sanitizers and

• Sanitizing wipes.[2]

If the items were acquired for the primary purpose of preventing the spread of COVID-19, they are referred to in the Announcement as COVID-19 PPE and treated as an amount paid for medical care under IRC §213(d).

The U.S. Senate, by a vote of 92-7, passed the PPP Extension Act of 2021[1] in identical form to the bill passed earlier by the House, sending the bill on to the President for his signature.

The very short bill has the following provisions:

• Applications for both first draw and second draw PPP loans will be accepted through May 31, 2021, resulting in a two-month extension beyond the original deadline enacted in December 2020 of March 31, 2021;[2]

• The SBA will be allowed to approve and fund loans for applications submitted by the May 31 deadline through the end of June.[3]

The IRS in News Release IR-2021-59[1] announced that the due date for individual tax returns originally due on April 15 has been pushed back to Monday, May 17.

The AICPA has sent a letter of comment to the Internal Revenue Service regarding various issues related to basis and entity level accounts for partnerships and S corporations that have or will be receiving forgiveness on Paycheck Protection Program loans.[1]

On March 12, 2021, the IRS provided updated instructions on their website for preparing returns that have excludable unemployment compensation.[1] The IRS notice and modified Form 1040 instructions read as follows:

If your modified adjusted gross income (AGI) is less than $150,000, the American Rescue Plan enacted on March 11, 2021, excludes from income up to $10,200 of unemployment compensation paid in 2020, which means you don’t have to pay tax on unemployment compensation of up to $10,200. If you are married, each spouse receiving unemployment compensation doesn’t have to pay tax on unemployment compensation of up to $10,200. Amounts over $10,200 for each individual are still taxable. If your modified AGI is $150,000 or more, you can’t exclude any unemployment compensation.

In a press release, Chairman of the House Ways and Means Committee Richard Neal (D-MA) has joined in the call for the IRS to extend the 2021 filing season past the scheduled April 15 deadline.[1] The call came in a joint press release with Oversight Subcommittee Chair Bill Pascrell, Jr. (D-NJ). Rep. Pascrell had previously been part of a letter from a number of Committee Democratic Party members calling for such relief, but which had not included the Committee Chairman.

The IRS has continued with their system of guidance by FAQ, this time effectively overriding the plain language of a question on page one of Form 1040 by adding a new question to the frequently asked questions (FAQ) page on the IRS website dealing with virtual currencies.[1]

The IRS added a question to the front page of Form 1040 that asked “At any time during 2020, did you receive, sell, send, exchange, or otherwise acquire any financial interest in any virtual currency?” The initial draft of the instructions for Form 1040 indicated that a purchase of a virtual currency during the year would require a yes answer—which seems like the correct answer given that trading cash for a virtual currency would seem to be the textbook case for obtaining a financial interest in the virtual currency.

The IRS issued updated guidance for the 2020 version of the employee retention credit in Notice 2021-20,[1] taking into account modifications made to the program by the Taxpayer Certainty and Disaster Tax Relief Act of 2020 signed into law on December 27, 2020.

This guidance is limited to the 2020 version of the ERC, and does not take into account changes that took effect on January 1, 2021. The Notice provides:

The guidance provided in this notice addresses the employee retention credit as it applies to qualified wages paid after March 12, 2020, and before January 1, 2021. This notice does not address the changes made by section 207 of the Relief Act that apply to the employee retention credit for qualified wages paid after December 31, 2020. The Department of the Treasury (Treasury) and the Internal Revenue Service (IRS) will address the modifications made by section 207 of the Relief Act applicable to calendar quarters in 2021 in future guidance.[2]

The bill must still clear the Senate and be signed into law, but the House has now passed the American Rescue Plan of 2021.[1] The bill has 592 pages of material which, while far shorter than the year end Comprehensive Appropriations Act, 2021, is still a very substantial bill with a number of tax and non-tax provisions.

The Journal of Accountancy published two articles on the bill as passed by the House, one discussing tax-related provisions in the bill[2] and the other discussing other business related provisions.[3]

A taxpayer found a way to maximize benefits in an extreme way in an American Express credit card rewards program, so much so that the IRS looked to impose a tax on the gains in the case of Anikeev v. Commissioner, TC Memo 2021-23.[1] But the Tax Court found that the IRS’s years of informal guidance created a situation where most of the benefits were not taxable—at least not in the way the IRS was attempting to tax the benefits in the case.

The IRS has provided relief to taxpayers impacted by winter storms in Texas, pushing back the general return due date from April 15, 2021 to June 15, 2021.[1] As well, the relief will be extended to other states that receive similar disaster declarations by the Federal Emergency Management Agency (FEMA).

Debra Jean Blum filed a lawsuit that clearly dealt with physical injuries she sustained, but which she claimed her attorneys had bungled—so she then filed suit against the law firm. This dispute was settled out of court, and Debra sought to claim that this settlement was excludable from income as damages received on account of personal physical injuries under IRC §104(a)(2).[1]

In the case of San Jose Wellness v. Commissioner, 156 TC No. 4[1] the Tax Court again looked at the question of whether the bar on deductions other than cost of sales for marijuana dispensaries goes beyond just those allowed by IRC §162, and extends to deductions allowed under IRC §171 (charitable contributions) and §167 (depreciation). But the opinion looks at some interesting interpretations of language that may find application outside of cannabis industry cases.

Eight Democratic members of the House Ways & Means Committee penned a letter to IRS Commissioner Charles Rettig on February 18, asking that the due date again be extended beyond April 15 this year.[1]