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The Senate Finance Committee (SFC) advanced President Donald Trump’s nomination of Charles Rettig for IRS Commissioner. The SFC approved the nomination on July 19 by a 14-to-13 party line vote.

Qualified Nominee

Several SFC Democrats and Republicans praised Rettig’s qualifications to serve as the next IRS Commissioner. SFC ranking member Ron Wyden, D-Ore., said that he is a "qualified nominee."

However, Democrats voted against his nomination in protest of new IRS guidance ( Rev. Proc. 2018-38, discussed later in this Issue) that limits donor reporting for certain tax-exempt organizations.

"The Trump administration has taken a qualified nominee and dumped him right into the middle of a dark money political firestorm of their own creation," Wyden said. Wyden announced the day before the vote that he would not support Rettig’s nomination unless Rettig committed to reversing the IRS’s new rules on certain Schedule B donor disclosures.

However, SFC Chairman Orrin G. Hatch, R-Utah, noted during the markup that the IRS reporting rules are unrelated to Rettig’s nomination. "I know that some of my colleagues have expressed dissatisfaction with new IRS reporting rules released recently and want to oppose the important appointment of an IRS commissioner because of these new rules, over which he had no control,"Hatch said. Hatch, praising Rettig’s qualifications, expressed confidence that Rettig, if confirmed, would "lead the IRS with integrity."

Next Steps

Rettig’s nomination now heads to the full Senate. If confirmed, Rettig will oversee the implementation of tax reform enacted last December under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

Rettig previously told the committee that restoring taxpayer trust in the IRS would be a top goal as IRS Commissioner. "If I am privileged to serve as Commissioner, my overriding goal will be to strengthen and rebuild trust between the IRS, the American people, and their representatives in Congress," Rettig said. "That trust is critical to all that the IRS does."

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President Donald Trump and House GOP tax writers discussed "Tax Cuts 2.0" in a July 17 meeting at the White House. The next round of tax cuts will focus primarily on the individual side of the tax code, both Trump and House Ways and Means Chair Kevin Brady, R-Tex., reiterated to reporters at the White House before the meeting.

Individual Tax Cuts

The discussion between Trump and several top House GOP tax writers was set to focus, in particular, on how to further strengthen the economy post-tax reform, Brady said. "We think the best place to start is with America’s middle class families and our small businesses," he added. Brady has said that making permanent the individual tax cuts that are set to expire in 2026 under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) is a top priority for Republicans.

Corporate Tax Rate

Trump is also calling for lowering the corporate tax rate to 20 percent. The corporate tax rate was lowered last December from 35 percent to 21 percent by the TCJA.

Brady told reporters earlier in the week of July 16 that discussions between House GOP tax writers and the White House were continuing on the possible proposal. While Brady did not openly commit to the notion of further lowering the corporate tax rate, he did tell reporters that he thinks the president is right that global competitors will likely respond in kind to last year’s tax reform.

Tax Cuts 2.0 Timeline

The House is expected to vote on the Tax Cuts 2.0 package in September, Brady told reporters at the White House on July 17. Additionally, Brady stated that he anticipates the "Senate setting a timetable, as well."

Brady’s estimated timeline for votes on the tax cuts package is in line with his statements in June that House GOP members will receive a legislative outline of the proposal this month. Further, a draft of the tax package is expected to be released publicly in August.

Senate

At this time, the Tax Cuts 2.0 package is not expected on Capitol Hill to fare well in the Senate. The package would need at least nine Democratic votes to clear the chamber.

"The GOP tax scam was a huge tax break for big corporations," Sen. Tammy Baldwin, D-Wis., said in a July 17 tweet. "We should reward work, not just wealth," she added. While Democrats remain outspoken against the TCJA for primarily benefiting corporations, Republicans are hopeful for Democratic support, just prior to midterm elections, on a measure that focuses on individual tax cuts.

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House Republicans and the Trump Administration are working together to craft a tax cut "2.0"outline, the House’s top tax writer has said. House Ways and Means Committee Chairman Kevin Brady, R-Tex., told reporters during the week that House tax writers and the White House are currently working to finalize the "framework."

Tax Cuts 2.0

Additionally, Brady reiterated to reporters that he plans to hold listening sessions with other House Republicans to gather ideas for the tax package. The legislative outline is expected to be circulated among House lawmakers this month and released generally in August. A House floor vote on the package is anticipated this fall.

Individual Tax Cuts

The tax reform "phase two" package will focus on making permanent the individual tax cuts enacted temporarily through 2025 under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97). Extending the individual tax cuts will be the " centerpiece" of the next package, Brady has said.

Impact. "Making the TCJA’s expiring individual tax code changes permanent would result in a larger economy in the long run," the Tax Foundation said in a report released on July 10. According to the report, a "small, positive" economic impact is expected during 2019 through 2028. "In the long run, making all individual tax provisions permanent will lead to 2.2 percent higher long-run GDP, 0.9 percent higher wages, and 1.5 million more full-time equivalent jobs," the report said.

However, the economic boost would not arrive without being accompanied by an increased federal deficit, according to the report. "Making these provisions permanent will also increase the deficit, reducing federal revenues by $638 billion ($575 billion on a dynamic basis) over the 10-year budget window and in the long run, reduce federal revenue on an annual basis by $165 billion ($112 billion on a dynamic basis)."

Corporate Tax Cuts

Additionally, Republicans are "thinking about bringing the 21 percent [corporate tax rate] down to 20," President Trump said in a recent interview. The corporate tax rate was permanently lowered from 35 to 21 percent under the TCJA.

Senate

At this time, the prospect of the House’s tax cut 2.0 package clearing the Senate remains unlikely. Currently, the phase two measure would need at least nine Democratic votes to clear the chamber. Democrats have remained critical of the TCJA and are not expected on Capitol Hill to support legislative efforts to extend the new law’s provisions.

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The Senate Finance Committee’s (SFC) leading Democrat has released a report critiquing Republicans’ 2017 overhaul of the tax code. The report, focusing primarily on international tax reform, was released by SFC ranking member Ron Wyden, D-Ore., on July 18.

Criticism of GOP Tax Reform

The Democratic SFC report, "Trump’s Tax Law and International Tax: More Complexity, Loopholes and Incentives to Ship Jobs Overseas," criticizes a number of provisions enacted in last year’s tax reform. The Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) was signed into law by President Donald Trump last December.

"Donald Trump and Congressional Republicans continue to peddle the false promises outlined in this tax scam report," Wyden said in a July 18 press release. "Their new international tax regime instead rewards companies for investing overseas while hardworking Americans watch their wages fall."

The report focuses on five areas of international tax reform. According to the report, the new tax law makes the tax code more complicated and incentivizes corporations to move jobs overseas.

Tax Cuts 2.0

Meanwhile, Republicans on the other side of the Capitol continue to tout the positive economic effects of tax reform as they prepare to unveil their next tax cuts package. "Tax Cuts 2.0" will focus on making permanent tax cuts for individuals and passthrough entities, which were enacted temporarily through 2025 under the TCJA.

"It wasn’t that long ago that our economy was sluggish, paychecks were going nowhere, jobs were going overseas -- all that has changed," House Ways and Means Committee Chair Kevin Brady, R-Tex., said in a July 18 televised interview in which he praised the TCJA. According to Brady, Congress and the White House are starting Tax Cuts 2.0 "right now."

"The President is all in," Brady said. Brady, along with several other House tax writers, met with Trump on the next round of tax reform in a July 17 meeting at the White House.

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Homeowners will be hurt financially by last year’s tax reform, according to a new House Democratic staff report. The report alleges that real estate developers will primarily benefit from the new tax law at the expense of homeowners.

The Democratic staff report was released by House Oversight and Government Reform Committee ranking member Elijah E. Cummings, D-Md., on July 5. The report highlights the effects of specific provisions of the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) on homeowners across the United States.

Home Equity Interest Deduction

Prior to the TCJA, homeowners could deduct interest on home equity loans up to $100,000, as noted in the report. However, the TCJA, enacted last December, retroactively prohibits homeowners from deducting interest on loans of any amount if used for any purpose other than home improvement. According to Cummings’ staff, many homeowners use home equity loans for a variety of reasons, such as medical emergencies or college education.

Real Estate Tax Breaks

The staff report highlights several TCJA provisions that could benefit real estate developers. Among these tax breaks includes the 20-percent deduction for passthrough business income for certain qualifying real estate companies. Additionally, the report notes that under the TCJA, real estate developers are exempt from the new 30-percent limitation on interest deducted by large businesses. Further, the report notes that TCJA exempts real estate from the repeal of favorable tax treatment of like-kind exchanges of business assets and provides a 20-percent deduction for dividends from qualified real estate investment trusts.

"For the first time, this new report shows how big the payoffs were to wealthy real estate developers – more than $66 billion over the next ten years, according to the Joint Committee on Taxation," Cummings said in a statement. "They [Republicans] chose to take away a longstanding tax deduction that American families have relied on for decades while at the same time creating $66 billion in new tax breaks for real estate developers," he added.

In response to an inquiry about the report, a House Ways and Means Committee majority spokesperson told Wolters Kluwer on July 6 that the Democratic staff report is a "partisan exercise." "Multiple reports from nonpartisan organizations show strong housing numbers for this year...tax reform allows families to keep more of their hard-earned money to spend on what is important to them. This all is good news for homeowners and those seeking to buy a home," the spokesperson told Wolters Kluwer.

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The IRS has issued final regulations that target tax-motivated inversion transactions and certain post-inversion tax avoidance transactions. The final regulations retain the thresholds and substantiation requirements of the 2016 final, temporary and proposed regulations (the 2016 regulations), but make limited changes to the 2016 regulations to improve clarity and reduce unnecessary complexity and burdens on taxpayers. These changes also ensure that the final regulations do not impact cross-border transactions that are economically beneficial and not tax-motivated.

Background

Generally, in an inversion transaction, a U.S.-based multinational expatriates by changing its tax residence from the United States to another country in an effort to avoid or reduce U.S. taxes.

Comment. Subject to certain limitations, the transaction allows the inverted company to reduce future taxes on U.S.-source earnings, such as by deducting interest paid on loans from the new foreign parent. In addition to U.S. tax base erosion, inversions may have other effects on the U.S. economy, such as reduced employment when the headquarters are moved overseas.

Code Sec. 7874 limits inversions that are tax-motivated, by generally targeting transactions in which the following occur:

a foreign corporation acquires substantially all of the properties of a domestic corporation (domestic entity acquisition);
immediately after the transaction, the former shareholders of the domestic corporation make up a significant portion of the shareholders of the acquiring foreign corporation; and
after the domestic entity acquisition, the expanded affiliated group (EAG) that includes the foreign acquiring corporation does not have substantial business activities in the foreign country in which, or under the law of which, the foreign acquiring corporation is created or organized when compared to the total business activities of the EAG.

Under (2) above, if the former shareholders of the domestic corporation hold 80 percent or more of the stock of the foreign corporation after the transaction, the foreign corporation is treated as a domestic corporation for U.S. tax purposes. If the former shareholders hold at least 60 percent but less than 80 percent of the stock of the foreign acquiring corporation after the transaction, then the transaction is respected but use of tax attributes is limited. Transactions where the former shareholders of the domestic corporation hold less than 60 percent of the stock of the foreign acquiring corporation are generally not limited. The percentage of stock is referred to as the ownership percentage, and the fraction used to calculate the ownership percentage is referred to as the ownership fraction.

The Tax Cuts and Jobs Act of 2017 (TCJA) ( P.L. 115-97) reduced, but did not completely eliminate, the incentives for tax-motivated inversions.

Changes Made by the Final Regulations in General

Similar to the 2016 regulations, the final regulations under Code Sec. 7874 provide rules for:

identifying domestic entity acquisitions and foreign acquiring corporations in certain multiple-step transactions;
calculating the ownership percentage and, more specifically, disregarding certain stock of the foreign acquiring corporation for purposes of computing the denominator of the ownership fraction and, in addition, taking into account certain non-ordinary course distributions (NOCDs) made by a domestic entity for purposes of computing the numerator of the ownership fraction;
determining when certain stock of a foreign acquiring corporation is treated as held by a member of the EAG; and
determining when an EAG has substantial business activities in a relevant foreign country.

However, the final regulations clarify the prior rules, provide additional exceptions to their application, and reduce complexity and unnecessary burdens on taxpayers, including by providing guidance on how to apply particular mechanical rules. Specifically, the final regulations make clarifying changes to some of the stock exclusion rules: the passive assets rule, the serial acquisition rule, and the third country rule. Clarifying changes are also made to the substantial business activities test.

In addition, the final regulations add additional exceptions to the serial acquisition rule and the third country rule to narrow their scope. To reduce complexity and ambiguity, changes are made to the passive assets rule, the NOCD rule, and the rules coordinating the application of the stock exclusion rules with the EAG rules.

The final regulations further provide rules under Code Sec. 7874 and other provisions to reduce the tax benefits of certain post-inversion tax avoidance transactions. Such rules generally prevent the post-inversion dilution of U.S. shareholders’ interests in expatriated foreign subsidiaries.

Passive Assets Rule

The final regulations apply the passive assets rule only for purposes of determining the ownership percentage by value. The passive assets rule is also modified so that stock excluded under any of the stock exclusion rules is not taken into account. In addition, property that gives rise to stock excluded under any of the stock exclusion rules is not taken into account for purposes of this rule.

Serial Acquisitions of Domestic Entities

The final regulations retain the 36-month look-back period for the serial acquisition rule, but make three technical clarifications or modifications to this rule. Specifically, the final regulations:

clarify that the determination of the foreign acquiring corporation’s stock attributable to a prior domestic entity acquisition does not take into account stock of the foreign acquiring corporation deemed to have been received under the NOCD rule or Code Sec. 7874(c)(4) in the prior domestic entity acquisition;
provide an additional exception to the definition of the term "prior domestic entity acquisition" to exclude a domestic entity acquisition that occurs within a foreign-parented group and qualifies for the internal group restructuring exception; and
define a predecessor of a foreign acquiring corporation for purposes of the serial acquisition rule.

Other Matters

The final regulations also:

provide exceptions to the third-country rule in certain cases where transactions are not driven by tax planning;
include several clarifications or modifications to the NOCD rule;
modify one of the requirements of the de minimis exception applicable to the disqualified stock rule, the passive assets rule, and the NOCD rule;
broaden the coordination of the stock exclusion rules with the EAG rules; and
for purposes of the substantial business activities test, define a "tax resident" as a body corporate liable to tax under the laws of the country as a resident.

Applicability Dates

The applicability dates of the rules in the final regulations are generally the same as the applicability dates of the rules as set forth in the 2016 regulations. However, differences between the final regulations and the 2016 regulations generally apply on a prospective basis, with an option for taxpayers to apply the differences retroactively. Since taxpayers may have relied on the 2016 regulations, the modifications to the final regulations generally apply prospectively. However, domestic entity acquisitions completed before July 12, 2018, continue to be subject to those rules as set forth in the 2016 regulations, but generally with an option for taxpayers to apply the differences retroactively.

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The Fifth Circuit vacated a tax preparer’s conviction for obstructing tax administration. The conviction was no longer valid in light of C.J. Marinello, SCt., 2018-1 ustc ¶50,192.

Marinello

Under Code Sec. 7212, it is a crime to corruptly or by force or threats obstruct the due administration of the Internal Revenue Code. In Marinello, the U.S. Supreme Court determined that a conviction for this crime requires that:

a relationship ( "nexus") exists between the defendant’s conduct and a particular administrative proceeding; and
the proceeding was either pending when the defendant engaged in the conduct or reasonably foreseeable by the defendant.

A "particular administrative proceeding" includes an investigation, audit or other targeted administrative action. It does not include routine, day-to-day work carried out in the ordinary course by the IRS, such as the review of tax returns.

Obstruction Conviction

Here, a jury convicted the tax preparer on one count of obstructing the tax laws. One of the obstruction allegations was that the preparer had provided false testimony at a show cause hearing in federal court. This met the Marinello requirements, because the hearing was held to assess her compliance with an IRS tax records subpoena.

However, most of the other alleged obstruction did not satisfy Marinello, because it focused on the preparer paying her employees in cash and on failing to keep adequate records.

The court vacated the obstruction conviction, because the jury believed it could consider all of the preparer’s conduct as part of the obstruction count. The court did not know which of the allegations the jury had found to be proven by the government.

False Returns Conviction

The jury also convicted the preparer for preparing false returns. The preparer claimed the improper obstruction count tainted the false return counts. However, the court rejected this "spill-over prejudice" claim, and did not vacate the false returns conviction. The invalid obstruction count did not allow the jury to consider evidence that would not have been allowed at a trial focused on just the false return counts.

On remand from SCt. Unpublished opinion vacating and remanding, per curiam, an unpublished DC Tex. decision. Related decision at CA-5 2017-1 ustc ¶50,241.

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National Taxpayer Advocate Nina E. Olson has released her mid-year report to Congress. The report contains a review of the 2018 filing season, and identifies the priority issues the Taxpayer Advocate Service (TAS) will address during the upcoming fiscal year. It also includes the IRS’s responses to each of the 100 administrative recommendations made in the 2017 Annual Report to Congress.

The report identifies and discusses 12 priority issues the TAS plans to focus on during the upcoming fiscal year. The top five include implementation of the Tax Cuts and Jobs Act of 2017 (TCJA) ( P.L. 115-97), the effectiveness of IRS service channels in meeting taxpayer needs, the development of an integrated case management system, the impact of high false-positive rates on legitimate taxpayers and the protection of taxpayers facing financial hardship from IRS and private debt collection activities. The most significant challenge the IRS faces in the upcoming year is implementing the TCJA, which, among other things, requires programming an estimated 140 systems, writing or revising some 450 forms and publications and issuing guidance on dozens of TCJA provisions. The TAS has launched a new website that lists key tax return items under current law (2017), shows which ones have been impacted by the TCJA and illustrates how the changes will be reflected on tax year 2018 returns filed in 2019.

In her preface to the report, Ms. Olson focuses on the IRS’s customer service challenges. The report says the IRS uses narrow performance measures that suggest the agency is performing well but do not reflect the taxpayer experience. Recommendations to improve customer service include: (1) adopting robust performance measures that more accurately reflect the taxpayer experience; (2) providing taxpayers with modernized "omnichannel"services so that taxpayers can obtain assistance online, by phone or in-person; (3) accelerating the development of an integrated case management system; and (4) using "big data" to help taxpayers as well as to bolster enforcement. Further, Ms. Olson reiterated her longstanding concern that IRS funding reductions have undermined the agency’s ability to provide high-quality taxpayer service and to modernize its aging information technology infrastructure.

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With the April 15th filing season deadline now behind us, it’s not too early to turn your attention to next year’s deadline for filing your 2014 return. That refocus requires among other things an awareness of the direct impact that many "ordinary," as well as one-time, transactions and events will have on the tax you will eventually be obligated to pay April 15, 2015. To gain this forward-looking perspective, however, taking a moment to look back … at the filing season that has just ended, is particularly worthwhile. This generally involves a two-step process: (1) a look-back at your 2013 tax return to pinpoint new opportunities as well as "lessons learned;" and (2) a look-back at what has happened in the tax world since January 1st that may indicate new challenges to be faced for the first time on your 2014 return.

Your 2013 Form 1040

Examining your 2013 Form 1040 individual tax return can help you identify certain changes that you might want to consider this year, as well encourage you to continue what you’re doing right. These "key ingredients" to your 2014 return may include, among many others considerations, a fresh look at:

Your refund or balance due. While it is nice to get a big refund check from the IRS, it often indicates unnecessary overpayments over the course of the year that has provided the federal government with an interest-free loan in the form of your money. Now’s the time to investigate the reasons behind a refund and whether you need to take steps to lower wage withholding and/or quarterly estimated tax payments.

If on the other hand you had to pay the IRS when filing your return (or requesting an extension), you should consider whether it was due to a sudden windfall of income that will not repeat itself; or because you no longer have the same itemized deductions, you had a change in marital status, or you claimed a one-time tax credit such as for energy savings or education. Likewise, examining anticipated changes between your 2013 and 2014 tax years—marriage, the birth of a child, becoming a homeowner, retiring, etc.—can help warn you whether your're headed for an underpayment or overpayment of your 2014 tax liability.

Investment income. One area that blindsided many taxpayers on their 2013 returns was the increased tax bill applicable to investment income. Because of the "great recession," many investors had carryforward losses that could offset gains realized for a number of years as markets gradually improved. For many, however, 2013 saw not only a significant rise in investment income but also a rise in realized taxable investment gains that were no longer covered by carryforward losses used up during the 2010–2012 period.

Furthermore, dividends and long-term capital gains for the first time in 2013 were taxed at a new, higher 20 percent rate for higher income taxpayers and an additional 3.8 percent net investment income tax surtax for those in the higher income brackets. Short-term capital gains saw the highest rate jump, from 35 percent to 43.4 percent rate, which reflected a new 39.6 percent regular rate and the new 3.8 percent net investment income tax rate. This tax structure remains in place for 2014.

Personal exemption/itemized deductions. Effective January 1, 2013, the American Taxpayer Relief Act (ATRA) revived the personal exemption phaseout (PEP). The applicable threshold levels are $250,000 for unmarried taxpayers; $275,000 for heads of households; $300,000 for married couples filing a joint return (and surviving spouses); and $150,000 for married couples filing separate returns (adjusted for inflation after 2013). Likewise, for it revived the limitation on itemized deductions (known as the "Pease" limitation after the member of Congress who sponsored the original legislation) for those same taxpayers.

Medical and dental expenses. Starting in 2013, the Affordable Care Act (ACA) increased the threshold to claim an itemized deduction for unreimbursed medical expenses from 7.5 percent of adjusted gross income (AGI) to 10 percent of AGI. However, there is a temporary exemption for individuals age 65 and older until December 31, 2016. Qualified individuals may continue to deduct total medical expenses that exceed 7.5 percent of adjusted gross income through 2016. If the qualified individual is married and only one spouse is age 65 or older, the taxpayer may still deduct total medical expenses that exceed 7.5 percent of adjusted gross income.

Recordkeeping. If you cannot find the paperwork necessary to prove your right to a deduction or credit, you cannot claim it. An organized tax recordkeeping system—whether on paper or computerized–therefore is an essential component to maximizing tax savings.

Filing Season Developments

So far this year, the IRS, other federal agencies and the courts have issued guidance on individual and business taxation, retirement savings, foreign accounts, the ACA, and much more. Congress has also been busy working up a "tax extenders" bill as well as tax reform proposals. All these developments can impact how you plan to maximize benefits on your 2014 income tax return.

Tax reform. President Obama, the chairs of the House and Senate tax writing committees, and individual lawmakers all made tax reform proposals in early 2014. The proposals range from comprehensive tax reform to more piece-meal approaches. Although only small, piecemeal proposals have the most promising chances for passage this year, taxpayers should not ignore the broader push toward tax reform that will be taking shape in 2015 and 2016.

Tax extenders. The Senate Finance Committee (SFC) approved legislation (EXPIRE Act) in April that would extend nearly all of the tax extenders that expired after 2013. Included in the EXPIRE Act are individual incentives such as the state and local sales tax deduction, the higher education tuition deduction, transit benefits parity, and the classroom teacher’s deduction; along with business incentives such as enhanced Code 179 small business expensing, bonus depreciation, the research tax credit, and more. Congress may now move quickly on an extenders bill or it may not come up with a compromise until after the November mid-term elections. Many of these tax benefits are significant and will directly impact the 2014 tax that taxpayers will pay.

Individual mandate. The Affordable Care Act’s individual mandate took effect January 1, 2014. Individuals failing to carry minimum essential coverage after January 1, 2014 and who are not exempt from the requirement will make an individual shared responsibility payment when they file their 2014 federal income tax returns in 2015. There are some exemptions, including a hardship exemption if the taxpayer experienced problems in signing up with a Health Insurance Marketplace before March 31, 2014. Further guidance is expected before 2014 tax year returns need to be filed, especially on how to calculate the payment and how to report to the IRS that an individual has minimum essential coverage.

Employer mandate. The ACA’s shared responsibility provision for employers (also known as the “employer mandate”) will generally apply to large employers starting in 2015, rather than the original 2014 launch date. Transition relief provided in February final regulations provides additional time to mid-size employers with 50 or more but fewer than 100 employees, generally delaying implementation until 2016. Employers that employ fewer than 50 full-time or full time equivalent employees are permanently exempt from the employer mandate. The final regulations do not change this treatment under the statute.

Other recent tax developments to be aware of for 2014 planning purposes include:

IRA rollovers. The IRS announced that, starting in 2015, it intends to follow a one-rollover-per-year limitation on Individual Retirement Account (IRA) rollovers as an aggregate limit.
myRAs. In January, President Obama directed the Treasury Department to create a new retirement savings vehicle, “myRA,” to be rolled out before 2015.
Same-sex married couples. In April, the IRS released guidance on how the Supreme Court’s Windsor decision, which struck down Section 3 of the Defense of Marriage Act (DOMA), applies to qualified retirement plans, opting not to require recognition before June 26, 2013.
Passive activity losses. The Tax Court found in March that a trust owning rental real estate could qualify for the rental real estate exception to passive activity loss treatment.
FATCA deadline. The IRS has indicated that it is holding firm on the July 1, 2014, deadline for foreign financial institutions (FFIs) to comply with the FATCA information reporting requirements or withhold 30 percent from payments of U.S.-source income to their U.S. account holders.
Vehicle depreciation. The IRS announced that inflation-adjusted limitations on depreciation deductions for business use passenger autos, light trucks and vans first placed in service during calendar year 2014 are relatively unchanged from 2013 (except for first year $8,000 bonus depreciation that may be removed if Congress does not act in time.
Severance payments. In March, the U.S. Supreme Court held that supplemental unemployment benefits (SUB) payments made to terminated employees and not tied to the receipt of state unemployment benefits are wages for FICA tax purposes.
Virtual currency. The IRS announced that convertible virtual currencies, such as Bitcoin, would be treated as property and not as currency, thus creating immediate tax consequences for those using Bitcoins to pay for goods.

Please contact this office if you’d like further information on how an examination of your 2013 return, and examination of recent tax developments, may point to revised strategies for lowering your eventual tax bill for 2014.

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One of the most complex, if not the most complex, provisions of the Patient Protection and Affordable Care Act is the employer shared responsibility requirement (the so-called "employer mandate") and related reporting of health insurance coverage. Since passage of the Affordable Care Act in 2010, the Obama administration has twice delayed the employer mandate and reporting. The employer mandate and reporting will generally apply to applicable large employers (ALE) starting in 2015 and to mid-size employers starting in 2016. Employers with fewer than 50 employees, have never been required, and continue to be exempt, from the employer mandate and reporting.

Employer mandate

The employer mandate under Code Sec. 4980H and employer reporting under Code Sec. 6056 are very connected. Code Sec. 4980H generally provides that an ALE is required to pay a penalty if it fails to offer minimum essential coverage and any full-time employee receives cost-sharing or the Code Sec. 36B premium assistance tax credit. An ALE would also pay a penalty if it offers coverage and any full-time employee receives cost-sharing or the Code Sec. 36B credit.

To receive the Code Sec. 36B credit, an individual must have obtained coverage through an Affordable Care Act Marketplace. The Marketplaces will report the names of individuals who receive the credit to the IRS. ALEs must report the terms and conditions of health care coverage provided to employees (This is known as Code Sec. 6056 reporting). The IRS will use all of this information to determine if the ALE must pay a penalty.

ALEs

Only ALEs are subject to the employer mandate and must report health insurance coverage under Code Sec. 6056. Employers with fewer than 50 employees are never subject to the employer mandate and do not have to report coverage under Code Sec. 6056.

In February, the Obama administration announced important transition rules for the employer mandate that affects Code Sec. 6056 reporting. The Obama administration limited the employer mandate in 2015 to employers with 100 or more full-time employees. ALEs with fewer than 100 full-time employees will be subject to the employer mandate starting in 2016. At all times, employers with fewer than 50 full-time employees are exempt from the employer mandate and Code Sec. 6056 reporting.

Reporting

The IRS has issued regulations describing how ALEs will report health insurance coverage. The IRS has not yet issued any of the forms that ALEs will use but has advised that ALEs generally will report the requisite information to the agency electronically.

ALEs also must provide statements to employees. The statements will describe, among other things, the coverage provided to the employee.

30-Hour Threshold

A fundamental question for the employer mandate and Code Sec. 6056 reporting is who is a full-time employee. Since passage of the Affordable Care Act, the IRS and other federal agencies have issued much guidance to answer this question. The answer is extremely technical and there are many exceptions but generally a full-time employee means, with respect to any month, an employee who is employed on average at least 30 hours of service per week. The IRS has designed two methods for determining full-time employee status: the monthly measurement method and the look-back measurement method. However, special rules apply to seasonal workers, student employees, volunteers, individuals who work on-call, and many more. If you have any questions about who is a full-time employee, please contact our office.

Form W-2 reporting

The Affordable Care Act also requires employers to disclose the aggregate cost of employer-provided health coverage on an employee's Form W-2. This requirement is separate from the employer mandate and Code Sec. 6056 reporting. The reporting of health insurance costs on Form W-2 is for informational purposes only. It does not affect an employee's tax liability or an employer's liability for the employer mandate.

Shortly after the Affordable Care Act was passed, the IRS provided transition relief to small employers that remains in effect today. An employer is not subject the reporting requirement for any calendar year if the employer was required to file fewer than 250 Forms W-2 for the preceding calendar year. Special rules apply to multiemployer plans, health reimbursement arrangements, and many more.

Please contact our office if you have any questions about ALEs, the employer mandate or Code Sec. 6056 reporting.

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Mid-size employers may be eligible for recently announced transition relief from the Patient Protection and Affordable Care Act's employer shared responsibility requirements. Final regulations issued by the IRS in late January include transition relief for mid-size employers for 2015. Mid-size employers for this relief are defined generally as businesses employing at least 50 but fewer than 100 full-time employees. Exceptions and complicated measurement rules continue to apply. The final regulations also describe the treatment of seasonal employees, volunteer workers, student employees, the calculation of the employer shared responsibility payment, and much more.

Delayed implementation

As enacted in 2010, the Affordable Care Act required applicable large employers (ALEs) to make an assessable payment if any full-time employee is certified to receive a health insurance premium tax credit or cost-sharing reduction, and either:

The employer does not offer to its full-time employees and their dependents the opportunity to enroll in minimum essential coverage (MEC) under an eligible employer-sponsored plan; or
The employer offers its full-time employees and their dependents the opportunity to enroll in MEC under an employer-sponsored plan, but the coverage is either unaffordable or does not provide minimum value.

The employer shared responsibility requirement was scheduled to apply January 1, 2014, the same effective date for the individual mandate and the health insurance premium assistance tax credit. In July 2013, the Obama administration announced that employer shared responsibility requirements would not apply for 2014.

The final regulations make further changes. Under the final regulations, the employer mandate will generally apply to large employers (employers with 100 or more employees) starting in 2015 and to qualified mid-size employers (employers with 50 to 99 employees) starting in 2016. Employers that employ fewer than 50 full-time employees (including full-time equivalents (FTEs)) are not subject to the employer mandate.

Caution. Determining the number of employees for purposes of the employer shared responsibility requirement is a complex calculation for many employers that is beyond the scope of this article. The Affordable Care Act and the final regulations describe how to calculate full-time employees (including FTEs) and also which employees are excluded from that calculation. Please contact our office for details about the Affordable Care Act and your business.

Transition relief for mid-size employers

Qualified employers are not subject to the employer mandate until 2016 if they satisfy certain conditions. Among other requirements, the employer must employ on average at least 50 full-time employees (including FTEs) but fewer than 100 full-time employees (including FTEs) on business days during 2014. Additionally, the final regulations impose a broad maintenance of previously offered heath coverage requirement.

The final regulations do not allow an employer to reduce the size of its workforce or the overall hours of service of its employees in order to satisfy the workforce size condition and thus be eligible for the transition relief. A reduction in workforce size or overall hours of service for bona fide business reasons, however, will not be considered to have been made in order to satisfy the workforce size condition. This provision is certainly one that is expected to generate many questions. The IRS may provide additional guidance and/or clarification in 2014 and our office will keep you posted of developments.

Additionally, the final regulations also modify the extent of required coverage. Proposed regulations required that the employer provide coverage to 95 percent of its full-time employees. The final regulations delay the 95 percent requirement until 2016 for larger employers. For 2015, larger employers need only provide coverage to 70 percent of their full-time employees.

Special types of employees

Since passage of the Affordable Care Act, questions have arisen about the treatment of certain types of employees. These include seasonal employees, short-term employees, volunteer workers, and student employees. The final regulations clarify some of the issues surrounding these employees.

Many industries employ seasonal workers. The final regulations describe who may qualify as a seasonal worker. The retail industry, which employs many workers for the holiday season, asked the IRS to specify which events or periods of time that would be treated as holiday seasons. The final regulations, however, do not indicate specific holidays or the length of any holiday season as these will differ for different employers, the IRS explained.

For volunteer workers, such as volunteer fire fighters and first responders, the final regulations provide that an individual's hours of service do not include hours worked as a "bona fide volunteer." This definition, the IRS explained, encompasses any volunteer who is an employee of a government entity or a Code Sec. 501(c)(3) organization whose compensation is limited to reimbursement of certain expenses or other forms of compensation.

Many college, university and vocational students are engaged in federal and state work-study programs. The final regulations provide that hours of service for purposes of the employer mandate do not include hours of service performed by students in federal or other governmental work-study programs. The IRS noted the potential for abuse by labeling individuals who receive compensation as "interns" to avoid the employer mandate. Therefore, the IRS did not adopt a special rule for student employees working as interns for an outside employer, and the general rules apply.

The final regulations also describe how the employer mandate may or may not apply to adjunct faculty, members of religious orders, airline industry employees, employees who must work “on-call” hours, short-term employees and others. Special rules may apply to these employees in some cases.

Waiting period limitation

The Affordable Care Act generally requires that an employee (or dependent) cannot wait more than 90 days before employer-provided coverage becomes effective. The IRS issued final regulations in February on the 90-day waiting period limitation. The IRS also issued proposed regulations generally allowing employers to require new employees to complete a reasonable orientation period. The proposed regulations set forth one month as the maximum length of any orientation period.

If you have any questions about the final regulations for the employer mandate, the transition relief, the 90-day waiting period, or any aspects of the Affordable Care Act, please contact our office.

TD 9655, TD 9656, NPRM REG-122706-12

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If you use your car for business purposes, you may have learned that keeping track and properly logging the variety of expenses you incur for tax purposes is not always easy. Practically speaking, how often and how you choose to track expenses associated with the business use of your car depends on your personality; whether you are a meticulous note-taker or you simply abhor recordkeeping. However, by taking a few minutes each day in your car to log your expenses, you may be able to write-off a larger percentage of your business-related automobile costs.

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If you use your car for business purposes, you may have learned that keeping track and properly logging the variety of expenses you incur for tax purposes is not always easy. Practically speaking, how often and how you choose to track expenses associated with the business use of your car depends on your personality; whether you are a meticulous note-taker or you simply abhor recordkeeping. However, by taking a few minutes each day in your car to log your expenses, you may be able to write-off a larger percentage of your business-related automobile costs.

Regardless of the type of record keeper you consider yourself to be, there are numerous ways to simplify the burden of logging your automobile expenses for tax purposes. This article explains the types of expenses you need to track and the methods you can use to properly and accurately track your car expenses, thereby maximizing your deduction and saving taxes.

Expense methods

The two general methods allowed by the IRS to calculate expenses associated with the business use of a car include the standard mileage rate method or the actual expense method. The standard mileage rate for 2017 is 53.5 cents per mile. In addition, you can deduct parking expenses and tolls paid for business. Personal property taxes are also deductible, either as a personal or a business expense. While you are not required to substantiate expense amounts under the standard mileage rate method, you must still substantiate the amount, time, place and business purpose of the travel.

The actual expense method requires the tracking of all your vehicle-related expenses. Actual car expenses that may be deducted under this method include: oil, gas, depreciation, principal lease payments (but not interest), tolls, parking fees, garage rent, registration fees, licenses, insurance, maintenance and repairs, supplies and equipment, and tires. These are the operating costs that the IRS permits you to write-off. For newly-purchased vehicles in years in which bonus depreciation is available, opting for the actual expense method may make particularly good sense since the standard mileage rate only builds in a modest amount of depreciation each year. For example, for 2017, when 50 percent bonus depreciation is allowed, maximum first year depreciation is capped at $11,160 (as compared to $3,160 for vehicles that do not qualify). In general, the actual expense method usually results in a greater deduction amount than the standard mileage rate. However, this must be balanced against the increased substantiation burden associated with tracking actual expenses. If you qualify for both methods, estimate your deductions under each to determine which method provides you with a larger deduction.

Substantiation requirements

Taxpayers who deduct automobile expenses associated with the business use of their car should keep an account book, diary, statement of expenses, or similar record. This is not only recommended by the IRS, but essential to accurate expense tracking. Moreover, if you use your car for both business and personal errands, allocations must be made between the personal and business use of the automobile. In general, adequate substantiation for deduction purposes requires that you record the following:

The amount of the expense;
The amount of use (i.e. the number of miles driven for business purposes);
The date of the expenditure or use; and
The business purpose of the expenditure or use.

Suggested recordkeeping: Actual expense method

An expense log is a necessity for taxpayers who choose to use the actual expense method for deducting their car expenses. First and foremost, always keep your receipts, copies of cancelled checks and bills paid. Maintaining receipts, bills paid and copies of cancelled checks is imperative (even receipts from toll booths). These receipts and documents show the date and amount of the purchase and can support your expenditures if the IRS comes knocking. Moreover, if you fail to log these expenses on the day you incurred them, you can look back at the receipt for all the essentials (i.e. time, date, and amount of the expense).

Types of Logs. Where you decide to record your expenses depends in large part on your personal preferences. While an expense log is a necessity, there are a variety of options available to track your car expenditures - from a simple notebook, expense log or diary for those less technologically inclined (and which can be easily stored in your glove compartment) - to the use of a smartphone or computer. Apps specifically designed to help track your car expenses can be easily downloaded onto your iPhone or Android device.

Timeliness. Although maintaining a daily log of your expenses is ideal - since it cuts down on the time you may later have to spend sorting through your receipts and organizing your expenses - this may not always be the case for many taxpayers. According to the IRS, however, you do not need to record your expenses on the very day they are incurred. If you maintain a log on a weekly basis and it accounts for your use of the automobile and expenses during the week, the log is considered a timely-kept record. Moreover, the IRS also allows taxpayers to maintain records of expenses for only a portion of the tax year, and then use those records to substantiate expenses for the entire year if he or she can show that the records are representative of the entire year. This is referred to as the sampling method of substantiation. For example, if you keep a record of your expenses over a 90-day period, this is considered an adequate representation of the entire year.

Suggested Recordkeeping: Standard mileage rate method

If you loathe recordkeeping and cannot see yourself adequately maintaining records and tracking your expenses (even on a weekly basis), strongly consider using the standard mileage rate method. However, taking the standard mileage rate does not mean that you are given a pass by the IRS to maintaining any sort of records. To claim the standard mileage rate, appropriate records would include a daily log showing miles traveled, destination and business purpose. If you incur mileage on one day that includes both personal and business, allocate the miles between the two uses. A mileage record log, whether recorded in a notebook, log or handheld device, is a necessity if you choose to use the standard mileage rate.

If you have any questions about how to properly track your automobile expenses for tax purposes, please call our office. We would be happy to explain your responsibilities and the tax consequences and benefits of adequately logging your car expenses.

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Businesses benefit from many tax breaks. If you are in business with the objective of making a profit, you can generally claim all your business deductions. If your deductions exceed your income for the year, you can claim a loss for the year, up to the amount of your income from other activities. Remaining losses can be carried over into other years.

These are very generous tax breaks and sometimes people establish a business to generate losses. They have no intention of ever earning a profit. Other times, they genuinely hope to earn a profit but never do.

The IRS calls these activities "hobbies." Expenses from these activities are never deductible in excess of any income that is declared earned from them. Recently, the IRS issued a new warning in the form of a Fact Sheet (FS-2007-18) to educate taxpayers about the differences between a for-profit business and a hobby.

No bright line

There's no bright line to distinguish a genuine business with a profit motive from a hobby. Over the years, the IRS and the courts have developed a list of factors to determine if an activity has a profit motive or is a hobby. No one factor is greater than the others and the list is not exhaustive. That means that the IRS and the courts have great leeway in their analyses.

Let's take a quick look at the factors:

How the business is run? Is the activity carried on in a businesslike manner? Do you keep complete and accurate business records and books? Have you changed business operations to increase profits?

Expertise. Do you have the necessary expertise to run the business? If you don't, do you seek help from experts?

Time and effort. Do you spend the time and effort necessary for the business to succeed?

Appreciation. Will business assets appreciate in value over time? A profit motive can exist if gain from the eventual sale of assets, plus any other income, will result in an overall profit even if there's no profit from current operations.

Success with other activities. Have you engaged in similar activities in the past?

History of income or loss. This factor looks to when the losses occurred. Were they in the start-up phase? Maybe they were due to unforeseen circumstances. Losses over a very long period of time could, but not always, indicate a hobby.

Amounts of occasional profits. Are your occasional profits significant when compared to the size of your investment and prior losses?

Financial status of owner. Is the activity your only source of income?

Personal pleasure or recreation. Is your business of a type that is not usually considered to have elements of personal pleasure or recreation?

Your financial status

If the activity is your only source of income, you would think that the IRS would automatically treat it as a for-profit business. That's not true. Every case is different and the IRS and the courts look at all the circumstances.

A few years ago, there was a case in the U.S. Tax Court involving a married couple. The husband owned a house framing business. His income was about $33,000 a year. The wife worked as a secretary in an accounting department of a big corporation. Her income was about $28,000 a year.

Together, they also operated a horse breeding and racing activity. They had no experience in breeding or racing horses. They didn't have the best of luck either. Several of their horses suffered injuries and they were involved in a legal dispute over the ownership of one. They did seek help from experts and also kept good financial records.

The Tax Court looked at all the nine factors. It recognized that the couple had a very modest income from their employment and this factor weighed in their favor. However, some of the other factors went against them, especially the fact that they never made a profit after 16 years and lost nearly $500,000. The court knew that the couple "hoped" to make a profit but hope wasn't enough and the court found their business was not engaged in for a profit.

Presumption

Generally, the IRS presumes that an activity is carried on for profit if it makes a profit during at least three of the last five years, including the current year. If it appears that the business will not be profitable for some years, you won't be able to come within the presumption of profit motive. You'll have to rely on qualifying under the nine factors.

The IRS has a form on which you can officially elect to have the agency wait until the first five years are up before examining the profitability of your business. While it's generally not necessary to file the form in order to take advantage of the presumption, it's usually a good idea.

Types of businesses

Although the IRS is not limited in the kind of businesses that it can challenge as being hobbies, businesses that look like traditional hobbies generally face a greater chance of IRS scrutiny than other types of businesses. These include horse breeding and racing, "gentlemen farming" and craft businesses operated from the home. There are many court cases about these activities and usually the taxpayers lose.

This is a very complicated area of the tax law and many people, like the secretary and her husband, honestly believe they are operating a for-profit business. But as we've seen, the IRS and the courts can, and often do, determine otherwise.

Don't hesitate to contact us if you have any questions about the differences between a business and a hobby ...and how you can set up your operations to have a better chance of falling on the right side of any argument with the IRS.

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Although the old adage warns against doing business with friends or relatives, many of us do, especially where personal or real property is involved. While the IRS generally takes a very discerning look at most financial transactions between family members, you can avoid some of the common tax traps if you play by a few simple rules.

Of course, because there are so many types of potential transactions, there are few hard and fast rules that apply across the board. If you're thinking of selling property to a family member, or buying from a family member, you must evaluate the potential negative tax consequences before agreeing to enter into a transaction. In a worst case scenario, the IRS could set aside the transaction as if it never took place and whatever gain, or loss, you have, would evaporate.

"Arms-length" transactions

The IRS is on alert for transactions between family members because often they are not "arms-length" transactions. Conducting a transaction at "arms-length" means that pricing is established as if the seller and buyer were independent parties. To be considered an "arm's length" transaction, the seller must genuinely wants to sell his or her property at a fair market price and the buyer must offer a fair price. The transaction cannot be motivated primarily by tax avoidance. Transactions between unrelated parties, for example when you buy your new car from an automobile dealer, are "arms length" transactions. The seller is in the business of selling and the buyer is an independent third party.

Transactions between family members - say, the transfer of real estate or other property -- frequently may look, at first glance, to be not quite at arms length. Did the buyer make a fair offer? Did the seller accept a fair price? Was the sale really a gift? The rules allow the IRS to set aside abusive transactions as shams and impose penalties.

Dealing with your children

Tax problems frequently arise in transactions between parents and children. Let's say that you agree to sell your vacation home to your daughter. If your daughter pays the first and only price you gave, some warning bells may sound. Did your selling price reflect the fair market value of the property? Did the buyer investigate, or seek an appraisal, of the value of the property. Did comparable properties sell at similar prices?

If you want to claim a loss from the sale, don't count on it. The tax rules specifically disallow in most situations a loss from the sale - or exchange - of property when the sale or exchange is between members of a family -whether or not you can prove that the price is fair. The IRS's definition of family is pretty broad for this purpose. It includes brothers and sisters (whether by the whole or half blood), spouses, ancestors, and lineal descendants. Ancestors include parents and grandparents, and lineal descendants includes children and grandchildren. Thus, nieces and nephews, aunts and uncles and in-laws are excluded. Stepparents, stepchildren and stepgrandchildren are excluded, but adopted children are treated the same as natural children in all respects

If you claim a gain on the sale, expect some questions from the IRS if your return is audited. The IRS can claim that you recognized too little gain, hoping to tax the rest as a taxable gift. In selling property to a family member, you should build a file of comparable prices in order to be ready for the IRS on an audit of your return.

Divorcing couples also under scrutiny

Divorce spawns many tax consequences. Often, a court will direct one spouse to transfer property to the other spouse. Generally, no gain or loss is recognized when property is transferred incident to the divorce. Problems develop over the last three words, "incident to the divorce." If the transaction is not "incident to the divorce" and one spouse claims large losses, the IRS will examine carefully whether the transaction was genuine.

Gain or loss also is not recognized when a transfer takes place between spouses who are still married, even if they don't file a joint return, and whether or not their relationship is amicable or hostile.

Be proactive to avoid future inquiries

Selling to, or buying from, a family member shouldn't be avoided just because the rules are complex. First, recognize that your transaction may be subject to special scrutiny by the IRS. If it is, you can't go on this road alone without professional backup but you can be proactive by anticipating potential challenges and by taking some simple, common sense steps:

Be prepared. Because documentation is very important to the IRS and plays a very big part in whether a claim will be allowed, it is important that you document your related party transaction every step of the way. All agreements should be in written format and corroborating evidence (such as comparable price lists) should be retained.

Invest in an independent appraisal. Unless you are a professional in selling your particular property, let an expert place a value on it. Having this sort of independent third party verify the reasonableness of the transaction price is exactly the type of documentation the IRS likes to see.

Weigh alternatives to relinquishing total control over the property. Consider "gifting" the property to a family member instead of selling it - the positive tax consequences of gifting are often overlooked.

As illustrated above, there is absolutely nothing wrong with engaging in financial transactions with related persons - as long as all parties involved are aware of the added scrutiny the transaction may bring and properly prepare for such an event. If you are contemplating such a transaction, please feel free to contact the office for additional guidance.

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