Welcome to TaxBlawg, a blog resource from Chamberlain Hrdlicka for news and analysis of current legal issues facing tax practitioners. Although blawg.com identifies nearly 1,400 active “blawgs,” including 20+ blawgs related to taxation and estate planning, the needs of tax professionals have received surprisingly little attention.
Tax practitioners have previously lacked a dedicated resource to call their own. For those intrepid souls, we offer TaxBlawg, a forum of tax talk for tax pros.
Chamberlain Hrdlicka Blawgs
Wish you had planned your transaction differently for tax purposes? In limited circumstances, the courts may allow a taxpayer to claim tax consequences consistent with a transaction’s economic substance even if inconsistent with its form.
In tax litigation involving structured transactions, when the form of a transaction produces favorable tax results for the taxpayer, the IRS often trots out various economic substance / form over substance-type theories to ignore or recast the form a transaction. Conversely, when an alternative form of a transaction would produce more ...
The Tax Court recently issued a Summary Opinion, Malonzo v. Commissioner of Internal Revenue, T.C. Summ. Op. 2013-47, involving an individual who was underwater on her mortgage, and who abandoned the property, subsequent to which the mortgage loan was foreclosed. She took no formal steps to transfer title or provide the lender with notice of her intention to abandon the residence, but just stopped making payments. The residence was later resold by the lender who sent her a Form 1099-A, Acquisition or Abandonment of Secured Property, reflecting as income the outstanding balance of ...
Life grants few chances at true redemption. The Internal Revenue Code, likewise, is not known for facilitating taxpayer salvation. Sure, under certain circumstances, taxpayers have an opportunity to file late tax-related elections to rectify an oversight, and other forms of clemency exist. However, the general rule is that taxpayers are stuck with a position once they take it on a tax return filed the IRS. One obscure exception to this rule is the qualified amended return (“QAR”), which can be a powerful self-help remedy for taxpayers who experience the “oh-shoot” moment ...
Back in the era of beepers, being "on call" evoked imagery of importance. Indeed, those people required by their job to carry a beeper, along with those who did so voluntary, displayed the devices with a noticeable degree of smugness. The positive aspects of this status symbol aside, anyone who has been obligated to carry a beeper or its modern equivalent (e.g., BlackBerry, iPhone, PalmPilot, etc.) understands that being constantly reachable is often more of a curse than a blessing.
Many jobs mandate that a person respond to messages within a certain period of time, minimize travel so ...
Nearly all taxpayers will face penalties by the IRS at some point, regardless of their sophistication level and size. Accordingly, tax practitioners, even those who claim not to get involved in traditional "collection" activities, must understand key aspects of abatement and collection procedures in order to effectively advise their clients. This is particularly true given that the IRS persists in taking extreme positions in the Tax Court, such as the always-say-never approach, that are contrary to the majority of existing legal authorities. A recent example is Custom Stairs & ...
As Tax Blawg readers know, after the Supreme Court’s Mayo decision adopted the deferential Chevron standard for determining the validity of Treasury regulations (instead of the less deferential National Muffler standard that taxpayers preferred), taxpayers and practitioners have speculated that seeking to invalidate a regulation may be a fool’s errand. Since Mayo, many of the U.S. Circuit Court of Appeals (but not all) have shown a proclivity towards deference. Extrapolating from these precedents, on the heels of the Mayo decision, it appears that the pendulum has swung ...
For better or worse, many a tax dispute has been won or lost on procedure, often on the question of whether a document - be it a tax return, refund claim, or petition - was timely filed. The centrality of this issue helps explain the renown of the otherwise unremarkable "mailbox rule" (a.k.a. the "timely-mailing-is-timely-filing rule").
The attached article, published in the International Tax Review, examines a recent case, Dietsche v. Commissioner, in which the Tax Court ruled that a petition mailed from New Zealand and postmarked the day after its due date was not timely filed ...
Many practitioners were taken aback by the recent Tax Court decision in Canal Corp. v. Commissioner, where Judge Kroupa issued a stinging opinion that not only recast a leveraged partnership distribution as a disguised sale, but also upheld penalties against the taxpayer for what the judge characterized as the taxpayer’s unreasonable reliance on the opinion of its tax advisor. Judge Kroupa’s analysis, which should be on the forefront of every tax advisor’s mind, raises a number of interesting, if thorny, questions, including:
- Should a fixed and/or contingent fee arrangement necessarily render tax advice unreliable for purposes of avoiding a substantial understatement penalty under the “reasonable cause and good faith” exception?
- Has the enactment of section 6694 undercut the rationale for prohibiting taxpayers from relying on advisors that have a conflict of interest?
- When (if at all) should courts defer to the opinion of a reputable tax advisor in deciding whether to uphold an assessment of penalties against a taxpayer?
Today, we tackle the first of these three questions.
Last summer, the Ninth Circuit Court of Appeals handed the IRS a defeat that the IRS did not take lightly. The Ninth Circuit ruled that an overstated basis, no matter how large, is simply not omitted income. See Bakersfield Energy Partners, LP v. Commissioner , 568 F.3d 767 (2009). The key to the decision is the definition of a four letter word, omit, which means “left out,” whereas an overstated basis by definition is stated on the return, i.e., not left out. Without an omission of income, the three year statute of limitations applies, not the extended six year period. The Ninth Circuit relied heavily upon a Supreme Court decision that came to the same conclusion. Colony, Inc. v. Commissioner, 357 U.S. 28 (1958).
After Bakersfield, the IRS suffered a series of losses. Not one to stand idly by, the IRS took matters into its own hands and seized upon a small opening left in the Ninth Circuit's decision: "The IRS may have the authority to promulgate a reasonable reinterpretation of an ambiguous provision of the tax code, even if its interpretation runs contrary to the Supreme Court's 'opinion as to the best reading' of the provision. . . . We do not." Bakersfield, 568 F.3d at 778 (citations omitted). With that, the Treasury Department issued Temp. Reg. §§ 301.6229(c)(2)-1T and 301.6501(e)-1T, which provided "an understated amount of gross income resulting from an overstatement of unrecovered cost or other basis constitutes an omission from gross income." With the new regulation in hand, the IRS went about attempting to overturn a series of unfavorable decisions.
In her column last Monday, Lee Sheppard criticized Judge Holmes of the Tax Court for, as she put it, “strain[ing] to find a reason to hold for the taxpayer” in the recent case of Container Corp. v. Comm’r, 134. T.C. No. 5. According to Ms. Sheppard, Judge Holmes "appears to have assumed equitable powers in deciding" the case, and "the tax law is the worse for it."
The basic issue in Container Corp. was whether guarantee fees paid by a U.S. corporation to its Mexican parent in respect of a debt guarantee provided by the parent should be treated as U.S.-source income (and therefore subject to withholding tax on payment to the Mexican parent). Because the rules for sourcing income don't address how guarantees are to be treated, the court framed its analysis as whether the guarantee fees were more like interest (which is sourced to the location of the borrower) or more like services (which are sourced to the location of the provider).
Ms. Sheppard excoriated Judge Holmes for even contemplating that a debt guarantee could be treated as a service. To her, it "[s]ounds pretty obvious" that the parent corporation was simply protecting its investment in the subsidiary, not providing a service to the subsidiary.