Using a Refund Suit to Remedy Identity Theft of Return Preparer Fraud

Today, we welcome guest blogger, Robert G. Nassau.  Professor Nassau teaches at Syracuse University College of Law and directs the low income taxpayer clinic (LITC) there.  Today, he discusses twin problems that have plagued my taxpayers, identity theft and preparer fraud.  He has employed refund suits before to resolve cases in which the IRS has frozen a taxpayer’s earned income tax credit and in the post today he explains how he used a refund suit to solve a seemingly intractable identity theft/preparer fraud issue.  His pioneering and innovative use of refund suits to craft favorable results for his clients is probably what caused him to become the author of the chapter on refunds in the book “Effectively Representing Your Client before the IRS.”  The book is gearing up for its seventh edition in 2017 and Professor Nassau has signed on for another update of the refund chapter.  Keith

As all tax professionals know, tax-related identity theft and return preparer fraud are widespread, and trying to assist a victim of these crimes – despite significant procedural improvements made by the Internal Revenue Service – can make one envy Sisyphus and his Boulder Problem.  Recently, the Syracuse University College of Law Low Income Taxpayer Clinic successfully resolved one such taxpayer’s ordeal – and did it by filing a refund suit in Federal District Court.  This is his story.

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The Taxpayer.

Prior to 2011, John Doe (not his real name) had traditionally prepared and filed his own tax returns, and had never had any problems.  When he was working on his 2011 return, his calculations were not leading to his accustomed refund.  When he mentioned his dilemma to a friend, she suggested that he contact Bonnie Parker (not her real name), who, according to the friend, was very knowledgeable in all things tax.  John went to Bonnie, showed her his W-2, and gave her some additional personal information.  Bonnie said she would look into it and get back to him, but she never did.  John never saw her again.  John himself did not timely file his 2011 return, because he was considering filing for bankruptcy, and thought he had three years to file the return.

The Crime Perpetrated.

Unbeknownst, at the time, to John, Bonnie submitted a fraudulent return using John’s identity and some of his legitimate information, and received a refund of about $5,000.

The Crime Discovered.

In early 2013, John realized that something was amiss, as he started to get collection notices regarding “his” 2011 tax return.  The Service had audited John’s “return” on the basis of both automated underreporting and child-based benefits.  Because the audit was ignored, John now found himself assessed close to $6,000.

The Failure of Traditional Remedies.

Having “put two and two together,” John filed his real 2011 return in the summer of 2013, claiming a refund of about $2,000.  This return was not processed.  In early 2014, John went to his local Taxpayer Assistance Center, where he was encouraged to submit an Identity Theft Affidavit (IRS Form 14039), which he did.  This did not solve the problem.  Later in 2014 he was told to submit a Tax Return Preparer Fraud or Misconduct Affidavit (IRS Form 14157-A), and a Complaint: Tax Return Preparer (IRS Form 14157).  John submitted both of these Forms.  He also filed a police report with the Syracuse Police Department.  None of this solved his problem.  In fact, while he was trying to solve his 2011 problem, his refunds for 2012 and 2013 (and, later 2014) were all offset and applied to his 2011 “debt,” reducing it to around $2,000.  In early 2015, John sought help from the Taxpayer Advocate Service, which, despite diligent efforts by his Case Advocate, was unable to fix the problem.  Apparently, the Service was confused by whether this was an Identity Theft case or a Return Preparer Fraud case.  In addition, the Service was suspicious of John and his “relationship” with Bonnie.  Ultimately, his Case Advocate suggested that he contact the Syracuse LITC.

Commencement of the Refund Suit.

Concluding that it would be fruitless to try to solve John’s problem administratively (that train had left the station and was not coming back), the Syracuse LITC decided to file a refund suit on John’s behalf in Federal District Court, which it did in November 2015.  The Complaint sought a recovery of John’s claimed refunds on his actual 2011, 2012, 2013 and 2014 returns. In our view, because each of those returns had claimed a refund; six months had passed since each return had been filed; and it was not more than two years from John’s receipt of a notice of disallowance with respect to any of his claims (there had been no such notices), the District Court had jurisdiction to hear his case.  (Section 6532(a)(1) of the Code.)

The Department of Justice Answers.

In his Answer, the attorney for the Department of Justice raised two interesting points (while denying most of the factual assertions for lack of knowledge): (1) the refunds for 2012, 2013 and 2014 had actually been granted – they had just been offset to 2011, therefore, there was no issue for those years; and (2) there might be a jurisdictional issue regarding 2011, because there was currently a balance due for 2011, and, pursuant to United States v. Flora, one cannot bring a refund suit if one still owes any part of the taxes assessed for that year.  While this first point is not without a good deal of merit, the second point creates a fascinating potential Catch-22 (fascinating from a tax law perspective, not from a solve-the-problem perspective).  If the DOJ attorney were correct, the Court would implicitly have to conclude that the fraudulent return was the real return, when the case is premised on the fact that the fraudulent return is fraudulent and the real return shows a refund (hence no Flora issue).  Effectively, if the DOJ attorney were correct, one might never get his “day in court” to prove that he was the victim of identity theft or return prepare fraud.

How It Played Out.

While reserving his Flora argument, the DOJ attorney flew to Syracuse to depose John.  Having listened to John’s story in person, and having done some independent sleuthing of his own, the DOJ attorney concluded that John was telling the truth.  He arranged to have the fraudulent 2011 return (and its liability) purged from the system, and John’s actual 2011 return respected and processed.  Interestingly, that actual 2011 return wound up showing a small liability, but it was more than offset by John’s 2012, 2013, 2014 and 2015 refunds, so he received a significant check.  It took thirteen months from the time John filed his refund suit until the time his account was rectified and he received his proper refund.

Lessons and Observations.

Given John’s – and even TAS’s – inability to solve his tax problem administratively, a refund suit seemed his best, if not only, resort.  While it took over a year to reach the correct result, the refund suit brought with it an intelligent, diligent and dedicated DOJ attorney who, to his credit, seemed more concerned with reaching the correct result than with trying to set a new jurisdictional precedent.  It also brought a Judge who seemed to believe John from the “get-go,” and who prodded the parties toward settlement.  While we would certainly recommend fully exhausting one’s administrative avenues of relief first, where those have proven unsuccessful, we would encourage taxpayers to file refund suits to get the result they deserve.

 

Tax Court Won’t Certify Battat for Interlocutory Appeal

We welcome back frequent guest blogger Carl Smith who writes today in continuation of coverage concerning the status of the Tax Court within the constitutional framework.  We especially thank Carl for his timely guest post as Les presents on taxpayer rights in Vienna, Steve shovels out in Philadelphia, and I visit warmer climes for spring break.  Keith

In Battat v. Commissioner, 148 T.C. No. 2 (Feb. 2, 2017), on which we blogged here and here, the Tax Court (Judge Colvin) held that there is no constitutional separation of powers problem in the President’s holding a removal power under section 7443(f) with respect to its judges.  Battat holds that the Tax Court is not a part of the Executive Branch — unlike the D.C. Circuit in Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), which held that the Tax Court was still an Executive Branch entity.

Joe DiRuzzo is the lawyer for the Battats and several additional clients in whose cases he raised the same constitutional argument.  He has cases that could be appealed to several different Circuits.  His cases are before Judges Colvin, Jacobs, and Wherry, and Chief Judge Marvel.  After the Battat opinion, Joe moved for permission to file an interlocutory appeal on this separation of powers issue in the cases that are before Judges Colvin, Jacobs, and Wherry.  Interlocutory appeal orders are not granted automatically, and must be issued under section 7482(a)(2)(A).  The court should grant an interlocutory appeal motion if (1) a controlling question of law is involved, (2) substantial grounds for a difference of opinion are present, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.

In First Western Government Securities v. Commissioner, 94 T.C. 549 (1990), affd. sub nom. Samuels, Kramer & Co. v. Commissioner, 930 F.2d 975 (2d Cir. 1991), the Tax Court had held, unanimously and en banc, that it is a Court of Law for purposes of the Appointments Clause, so there is no problem with the Chief Judge’s appointment of its Special Trial Judges.  Despite the absence of any contrary holding at the time, the Tax Court in First Western certified an interlocutory appeal of its holding because of the importance of the issue — eventually leading to the Supreme Court’s opinion in Freytag v. Commissioner, 501 U.S. 868 (1991). See 94 T.C. at 569 (Appendix E) for the interlocutory certification.

On March 14, Judges Colvin, Jacobs, and Wherry each denied Joe DiRuzzo’s motions to certify the Kuretski/Battat issues in his cases for immediate interlocutory appeal.  Here’s a link to the order in Battat, though the orders are identical in each case.  The orders admit that there is a divergence in the reasoning between the Tax Court and D.C. Circuit as to how both courts get to the conclusion that there is no constitutional problem in the removal power.  But, the Tax Court judges do not think that divergence enough to warrant interlocutory appeals.  The orders simply state:

The Court of Appeals in Kuretski applied a different analysis, but it rejected, as did this Court, the contention that Presidential removal authority is unconstitutional. Petitioners cite, and we are aware, of no legal authority supporting petitioners’ contention regarding the controlling issue of law in this case. Thus, we conclude that the second requirement of section 7482(a)(2), the presence of “substantial grounds for a difference of opinion”, is not met.

I beg to differ, and so, doubtless, would the late Justice Scalia.  He wrote in his concurrence in Freytag:

When the Tax Court was statutorily denominated an “Article I Court” in 1969, its judges did not magically acquire the judicial power. They still lack life tenure; their salaries may still be diminished; they are still removable by the President for “inefficiency, neglect of duty, or malfeasance in office.” 26 U.S.C. § 7443(f).   (In Bowsher v. Synar, supra, [478 U.S. 714] at 729 [(1986)], we held that these latter terms are “very broad” and “could sustain removal . . . for any number of actual or perceived transgressions.”) How anyone with these characteristics can exercise judicial power “independent . . . [of] the Executive Branch” is a complete mystery. It seems to me entirely obvious that the Tax Court, like the Internal Revenue Service, the FCC, and the NLRB, exercises executive power.

501 U.S. at 912 (emphasis in original; some citations omitted).

I am surprised that the orders make no mention of the interlocutory appeal certification granted in First Western.  I think that this, at the very least, is inconsistent behavior by the Tax Court as to allowing interlocutory appeals.

 

The Sixth Circuit’s Summa Bomb-shell

We welcome back guest blogger Stu Bassin. Stu is a solo practitioner in Washington, D.C. who specializes in tax controversy work. Today he talks about Summa Holdings v Commissioner, where the Sixth Circuit disagreed with the IRS and Tax Court’s applying a substance over form analysis. The role of anti-abuse provisions in the tax law is controversial, and Stu discusses how taxpayers, the Service and courts are likely going to wrestle with these concepts when IRS challenges transactions that may technically satisfy statutory requirements but seem to be inconsistent with broader tax principles. Les

 The Sixth Circuit issued a remarkable opinion last week, giving the taxpayer a full victory in what the Service tried to characterize as a tax shelter. The decision in Summa Holdings v. Commissioner, No. 16-1712 (6th Cir. February 16, 2017), reversed a Tax Court ruling in favor of the Service and represents the most decisive and significant appellate victory for a taxpayer in the area of judicial doctrines in over a decade.

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The Summa case arose out of a clever strategy in which a closely-held corporation employed a Domestic International Sales Corporation (“DISC”) and a Roth IRA to transfer corporate profits into its shareholders’ hands with a minimal tax bite. To briefly summarize, the statutory regime governing DISCs allows companies to defer income on the portion of the DISC’s which is distributed to the DISC’s shareholders as a dividend. The DISC’s shareholders receive the dividend without paying a corporate level tax. The novel twist in Summa was that the DISC’s shareholder was a Roth IRA—an entity which does not pay taxes on its earnings. Thus, neither the DISC nor the taxpayer would pay tax on the remainder of the dividend or on future earnings within the Roth IRA, although the taxpayer would pay an unrelated business income tax on a portion of the dividend received.

Upon audit, the Service recognized that the taxpayer’s strategy satisfied all of the statutory requirements for the treatment it sought under the DISC and Roth IRA statutory provisions. Nonetheless, the Service determined that the “substance over form” doctrine applied and that the payments would not be treated as DISC dividends, but would instead be treated as dividends from the parent company to the shareholders—a recharacterization which substantially increased the shareholders’ tax liability. To add insult to injury, the Service also added a substantial understatement penalty. The Tax Court upheld the Service’s determinations and the taxpayer appealed. In the Summa decision, the Sixth Circuit reversed, ruling that the Service could not apply the substance over form doctrine to the disputed transaction.

The issue, in the court’s view, was whether the Service had crossed the elusive “line between disregarding a too-clever-by-half accounting trick and nullifying a Code-supported tax-minimizing transaction”—the same broad issue which arises in many so-called “tax shelter” cases.  Both sides agreed that, in form, the transactions complied with the text of the Code, but disagreed whether the substance-over-form doctrine could nonetheless be invoked. Rejecting the Service’s position, the court observed that tax law is governed by a highly nuanced set of rules articulated with nearly mathematic precision, particularly in the DISC arena and that “all areas of law that should resist judicial innovation based on misty calls to higher purposes, this would seem to be it.” While endorsing application of judicial doctrines in some cases involving factual shams and transactions which have no legitimate non-tax business purpose, the court concluded that the doctrine “does not give the Commissioner a warrant to search through the  . . . Code and correct whatever oversights Congress happens to make or redo any policy missteps the legislature happens to make.” If Congress found the result improper, it could amend the statutes, but it was not the role of courts to legislate.

Read broadly, the Summa decision is a bomb-shell; it breaks a decade-long string of Service victories in appellate cases which rest upon application of judicial doctrines like the substance-over-form rule to undo transactions which the taxpayer designed to comply with the literal language of the Code (the most recent taxpayer victories were in 2001 in the 5th Circuit Compaq Computer v Commissioner and 8th Circuit in IES Industries v US). In almost all of the cases where the government prevailed, the taxpayer argued that it had complied with the Code and that it was inappropriate to invoke judicial doctrines or to judicially legislate based upon a judge’s gut reactions to particular transactions. While most of the appellate courts have sided with the Service, the opinion of the Sixth Circuit emphatically rejected the Service’s position—complete with an allusion to Caligula.

Where the case goes from here is a great topic for speculation.   The recurring question of the parameters of the judicial doctrines is not going to go away and Summa potentially represents a very important conflict between the circuits. However, presentation of that fundamental issue is probably something the Government will likely try to avoid; a large body of Service-favorable law has developed since the Supreme Court’s last “judicial doctrine” ruling–the 1978 Frank Lyon decision. The vitality of all that law would be in play if Summa were to reach the Supreme Court.

Recognizing the stakes which would be at risk in a Supreme Court ruling on Summa, the Service and the Solicitor General are more likely to dodge the issue by offering a narrow reading of Summa, attempting to confine its reach to cases involving statutory grants of narrow tax benefits to a particular favored category of taxpayers such as DISCs. Indeed, the argument for application of generalized judicial doctrines to avoid tax avoidance is much weaker where Congress has so explicitly granted specific benefits which allow tax avoidance—benefits like those granted to DISCs and applied in Summa. Of course, the Government prevailed in a comparable context in the Third Circuit’s Historic Boardwalk ruling (which involved statutory rehabilitation tax credits), and it would be difficult to reconcile the two cases, but the conflict would be far less significant and is likely a matter which the Government would let stand before it ran the risk of a new Supreme Court decision on the judicial doctrines.

Disclosing President Trump’s Tax Returns – An Unconventional Idea

This post originally appeared on the Forbes PT site on February 21, 2017.

We welcome guest bloggers Bryan Camp and Victor Thuronyi. Professor Camp has been our guest before and posted, inter alia, a very popular three part series on Eight Tax Myths – Lessons for Tax Week. Post 1 can be found here, Post II can be found here and Post III can be found here. Professor Camp is the George H. Mahon Professor of Law at Texas Tech. Mr. Thuronyi writes for PT for the first time. Mr. Thuronyi practiced tax law, served in the U.S. Treasury Department, and taught tax law before joining the International Monetary Fund in 1991 where he worked until retirement in 2014 as lead counsel (taxation). He has worked on tax reform in many countries and is the author of Comparative Tax Law (2003) and other writings on tax law.

 Whether you want to see President Trump’s returns or not, the controversy points out to me a couple of things we have gotten right that we ought to celebrate. After abuses of information at the IRS by President Nixon in an attempt by him to make life difficult for his enemies, Congress significantly tightened the disclosure laws in 1976. That legislation has worked. The legislation has worked in part because of the laws enacted but also in part because of the culture it has created at the IRS regarding taxpayer information. Despite a lot of curiosity about President Trump’s returns starting months before his election, the returns have not surfaced. He had no legal duty to disclose them even though precedent of many recent presidential candidates created a cultural expectation of disclosure. I celebrate the success of Congress and the IRS in protecting the returns.

 Recently, Democrats on the Ways and Means Committee tried to use the power of their committee to make public President Trump’s personal income tax returns. This effort failed because they had insufficient votes. Professors Camp and Thuronyi suggest an alternative path to the disclosure of the returns to the Ways and Means Committee or one of the other tax writing committees of Congress. Their approach looks at a little used subsection of the laws governing tax disclosure. Although President Trump did not have a legal duty to disclose his returns and the disclosure laws protect them from disclosure in most circumstances, there may be a way to make them public and one such possibility is the subject of this post. Keith

Lots of folks want to see Donald Trump’s tax returns. Conventional wisdom is that the returns cannot be disclosed unless he consents. That conventional wisdom is based on the general rule contained in 26 U.S.C. §6103(a). The general rule forbids IRS employees (and some folks who receive information from IRS employees) from disclosing “return information.” That is a term of art that means more than just tax returns but basically means anything in the IRS files.

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Section 6103 is a really complex statute, mostly because of the exceptions to the general rule. The exceptions are found in subsections (c) through (o). These exceptions balance a taxpayer’s privacy with the needs of government officers and employees to do their jobs. So the exceptions to the general rule can get quite gnarly.

Several commentators have begun to explore some of the lesser known exceptions to the general rule of nondisclosure. George Yin has a nice op-ed piece that explains one exception to the general rule in §6103: Congress can ask for Trump’s returns. Andy Grewal also explores this idea in a well done post over at the Yale regulation blog. Both posts are worth reading.

Both George and Andy focus on the power of certain Congressional committees and staff to ask for tax returns as part of their oversight function. That power is found in §6103(f)(1) through (f)(4). Democrats have acted on the ideas in George and Andy’s blogs. Stephen Ohlemacher from the AP reports that Democrats on the House Ways and Means Committee tried to get the Committee to ask for Trump’s returns, but were outvoted by Committee Republicans.

The Unconventional Idea

But what if the returns were dumped on the Committee’s lap by an IRS employee without the Committee having made a request? That could happen under the very last paragraph in subsection (f).

Section §6103(f)(5) is a whistleblower exception to the general rule of non-disclosure. It permits disclosure of tax returns to one of the tax-writing committees by “any person who otherwise has or had access to any return or return information under this section” when that person believes that “such return or return information may relate to possible misconduct, maladministration, or taxpayer abuse.”

The plain language of this provision suggests that an IRS employee who otherwise has authorized access to Trump’s tax returns could blow the whistle on Trump if that employee believes Trump’s tax returns related to “possible misconduct” or “possible maladministration.”

The statute does not say whose misconduct or whose maladministration the returns must relate to. An employee’s concern could be that Trump’s extensive business holdings and his well-documented refusal to divest himself of business relationships will create (or has already created) misconduct and maladministration on his part. For example, all of the profits from Trump’s businesses still accrue to his benefit. That means when the federal government leases an entire floor of Trump Tower for $1.5 million, Trump is directly benefitting from that decision.   Or, for example, Trump might sign an executive order barring immigration from certain countries but he might exclude from that order immigration from countries where he or his businesses own property and businesses.

The Problems with the Idea

However, while §6103(f)(5) is a possible avenue for an IRS employee to blow the whistle on Trump, two obstacles make it a tricky one. First, despite the statute’s broad language, the history of its enactment suggests that the language may refer only to the misconduct or maladministration by the IRS or its employees. Second, only an IRS employee who has proper access to return information is permitted to disclose.

  1. Legislative History

Congress enacted §6103(f)(5) in 1998 as part of the IRS Restructuring and Reform Act of 1998 (“RRA”). RRA originated in the House as H.R. 2676 but the provision now codified in §6103(f)(5) was not in the House version. It came from the Senate Finance Committee’s version. You can find all the documents and history of the bill here.

The Senate Finance Committee proposed creating a whistle-blower exception to the general rule of §6103(a). The proposal would have made the exception part of §6103(f)(1) and the proposed statutory language read as follows:

‘‘(B) WHISTLEBLOWER INFORMATION.—Any person who otherwise has or had access to any return or return information under this section may disclose such return or return information to a chairman of a committee referred to in subparagraph (A) or the chief of staff of the Joint Committee of Taxation only if—

(i) the disclosure is for the purpose of alleging an incident of employee misconduct or taxpayer abuse, and

(ii) the chairman of the committee to11 which the disclosure is made (or either chairman in the case of disclosure to the chief of staff) gives prior written approval for the disclosure.’’

The Senate Finance Committee Report explains that “it is appropriate to have the opportunity to receive tax return information directly from whistleblowers.” (p. 105).

Notice, however, how the language chosen by the Senate tax writers limited the authority to blow the whistle. Disclosure was authorized only “for the purpose of alleging an incident of employee misconduct or taxpayer abuse.” The Senate Finance Committee report refers specifically to “IRS employee or taxpayer abuse.”

The Conference Committee expanded the limiting language to the language that became the law. Under the expanded language, disclosure is authorized if the IRS employee making the disclosure believes that the return is related to “possible misconduct, maladministration, or taxpayer abuse.” The expansion, however, seems to stop short of expanding the idea of whose improper conduct is at issue. Under the Senate version, the improper conduct was explicitly linked to IRS employee misconduct or taxpayer abuse. The revised language expanded the kind of improper conduct to include “maladministration.” But whether the revised language expanded the idea to misconduct or maladministration by a government employee other than an IRS employee is unclear. Arguably, however, if the misconduct is relevant to misconduct of the sort that a Congressional committee might investigate, then the broad language of the statute could cover it.

2. Whistleblower Must Have Access

Even if one reads §6103(f)(5) as authorizing an IRS employee to blow the whistle on a non-IRS government employee, one large obstacle remains. Section 6103(f)(5) only applies when the IRS employee making the disclosure has authorized “access” to the return. This would mean that only the relatively narrow group of IRS employees who are authorized to view the returns for audit or other purposes would be eligible whistleblowers. That brings us back to Trump’s claim that he is under audit.  If he is telling the truth about that, then there are certainly some IRS employees who have legitimate access to at least the returns being audited.

In addition, any other person, such as an employee of a state taxing agency, who has properly received the returns from the IRS pursuant to the exceptions listed in §6103(a)(3) would also have proper access. We do not explore the legal position for this group, however, since it would involve delving into potential state law prohibitions on their action.

Congress has enacted a number of statutes that make willful violation of the disclosure rules a crime. First up is §7213 which imposes a fine up to $5,000, and up to five years imprisonment for any willful violation of §6103. See e.g. United States v. Richey, 924 F.2d 857 (9th Cir. 1991).   In the criminal context, however, the Supreme Court has instructed that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable. Cheek v. U.S. 498 U.S. 192 (1991).

Second, 18 U.S.C. § 1030(a)(2) makes the unauthorized access of government computers a felony. This provision includes the unauthorized access of returns or return information in government computer files.

Third, in the RRA, Congress created 26 U.S.C. §7213A to specifically make the unauthorized inspection of returns or return information, whether in paper or computer files, a misdemeanor. See Pub. L. No. 105-206, 112 Stat. 711 (1998).

Conclusion

We have never before had a President so vulnerable to conflicts of interest and, at the same time, so callous about his governing duties and so careless of the law. This potent combination requires checks, it requires balances. Checks and balances are what have enabled this country to thrive for over 200 years. A review of Trump’s tax returns is but a small part of what is necessary to check on his behavior. If the Congress does not have the political will to use its powers, there remains a possibility that a whistleblower from the IRS or a State agency could force the issue.

 

TaxJazz: The Tax Literacy Project

We welcome first time guest blogger Marjorie Kornhauser.  Professor Kornhauser is the John E Koerner Professor of Law at Tulane Law School.  She has created a tax literacy program.  Like almost all tax practitioners, we occasionally get asked to speak at various functions where we play the role of tax expert to an audience that consists of individuals whose lives do not revolve around tax, but we are not the sole targeted users of project.  The material that she has created can assist anyone called to present in such a setting.  If we can teach more people about the tax system, maybe they will engage in a way that makes the system work better.

As we celebrate President’s Day and think back to George Washington who spoke of taxes in his famous farewell address and Abraham Lincoln who created the first income tax, today is the perfect day to contemplate tax education and what we should all know as citizens. The Washington Post just reported on her project.  The article in the Post provides greater detail than this post about the information available through the project for those who find this of interest or want to use the materials in an upcoming presentation.  Professor Kornhauser has put a lot of work into engaging with those who do not normally get information about how the tax system works.  Congratulations to her on pulling this project together.  Keith

In 2009 an H & R Block survey concluded that most American know so little about tax that they would flunk “Tax 101.” They didn’t know the difference between a deduction and a credit. Many didn’t even know the amount of taxes they owed. This tax ignorance—which still exists today—is not only widespread but dangerous. Not only does it create feelings of frustration, but it also engenders feelings of unfairness among taxpayers that can undermine the legitimacy of tax laws (and voluntary compliance). Tax illiteracy also constricts congressional ability to craft coherent tax policies to help solve critical problems in numerous areas such as education, energy, health and housing.

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Despite the fact that taxation is a critical component of both personal and national finances, financial literacy programs pay little or no attention to taxation. Moreover, most web sites and written materials about tax are geared to either sophisticated readers and/or to filling out tax returns. There are few, if any, resources available for ordinary people to learn about tax and tax policy. They need this knowledge in order to participate in an informed way in a rational debate about the future of American tax policy. Such a debate would facilitate tax laws that facilitate solutions to national problems rather than obstruct them.

Four years ago I started TaxJazz: The Tax Literacy Project to fill the huge tax knowledge gap. I began by offering real-time activities to schools and community groups. These activities have been led either by me, teachers, or Tulane Law Students trained by me. This February, I extended the reach of TaxJazz by launching its webpage TaxJazz.

The materials I have created to date address fundamental tax issues. Collectively titled Taxes, Society, and Fairness, these materials form a curricular unit that provides essential information (including vocabulary) about three main topics:

  1. Why we have taxes;
  2. Basic limitations on the taxing power;
  3. Distributive justice in the context of taxation.

Distributive justice is the heart of this material. In the course of analyzing the parameters of tax the materials examine the components of tax burdens (tax bases and tax rates) and familiarize the reader with essential concepts and vocabulary, such as the difference between marginal and effective tax rates.

Each topic contains an exercise that allows readers/users to grapple with the issues. The final exercise, for example, involves a city council which is considering several taxes in order to raise money for pressing infrastructure repairs. The readers (or for example, students in a classroom) role-play. First they act as associates in a consulting firm. Their assignment is to advise the city council as to which tax to choose. After they have given their advice, they then assume the roles of councilors who debate and vote on the tax proposals.

The materials do not guide the user to one “right” answer as to distributive justice (since there isn’t one). Rather, they help a user reach a personalized opinion based on information.

In the four years of its existence, TaxJazz and its Taxes, Society, and Fairness curricular unit has already been used by over 350 people between the ages of 12 and 80 in a variety of different settings including high schools, a city recreation department’s after-school program, and a community senior center.

I have just launched the TaxJazz website. Now any individual with a computer can easily access its non-partisan, non-technical tax information to help people participate in discussions about tax policy and problems facing the nation. So far, TaxJazz deals only with the basic foundational issues in Taxes, Society, and Fairness. It will add materials on particular tax issues and provisions that affect large numbers of people, such as education, housing, and health. Additionally, it plans to offer training for teachers, community leaders, and others who would like to lead discussions about taxation. Eventually, the site will provide all this information in a variety of formats ranging from traditional text-based information to videos and games.

Lao Tzu said, “A journey of a thousand miles begins with the first step.” The first step to moving the United States towards a better tax system is tax literacy. In a democracy, active voters influence their elected officials, but officials also influence the voters. Tax literacy gives the voting public the ability to ask officials and candidates informed questions and to demand substantive answers. Such an informed public can force a rational substantive debate about taxes rather than a rhetorical one.

 

 

New Trends in Evidence at the Tax Court

We welcome back guest blogger Joni Larson. Professor Larson has graciously provided her insight again into the interpretation of rules at the Tax Court. I reached out to her after reading the opinion by Judge Carluzzo which she addresses at the end of this post. As with her previous posts found here, here, here and here, she takes us into the practical world of interpreting the rules and preparing to present evidence.  She authors the book on evidentiary issues in Tax Court with a new edition coming out shortly.  Professor Larson teaches at Indiana Tech Law School. Keith

Before the PATH Act, the Tax Court conducted trials in accordance with the rules of evidence applicable in trials without a jury in the District Court for the District of Columbia.  IRC § 7453.  The reference in Section 7453 to the District of Columbia was troubling.  Did it mean the Tax Court would apply the rules of evidence as adopted by the District of Columbia?  As interpreted by the District of Columbia?  As interpreted by the Circuit Court of Appeals for the District of Columbia?

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The issue of how to interpret the statute seemed to be squarely before the court in Ad Investment 2000 Fund LLC v. Commissioner, 142 T.C. 248 (2014).  In a Son-of-BOSS tax shelter case, Judge Halpern considered the Commissioner’s motion to compel the production of opinion letters a law firm issued to the taxpayer.  The taxpayer argued the opinions were protected by the attorney-client privilege.  The Commissioner argued the privilege was waived when the taxpayer put the privileged matter in controversy when the taxpayer argued against application of the accuracy-related penalty.  The taxpayer argued it was not using the opinion letters as part of its affirmative defense but was, instead, making a generalized good faith defense.  Accordingly, it believed the opinion letters were not relevant, at issue, or discoverable.

Under Rule 501 of the Federal Rules of Evidence, the common law governs a claim of privilege.  In turn, the disagreement between the parties turned on the interpretation of the attorney-client privilege.  Thus, the disagreement was an evidentiary issue.

The attorney-client privilege exists to protect full and frank communications between attorneys and their clients.  Upjohn v. United States,  449 U.S. 383 (1981).  However, when a party puts into issue his subjective intent in deciding how to comply with the law, he may forfeit the privilege.

In determining if the party has waived, or forfeited, the privilege, the Tax Court uses a three-pronged test.  The privilege is waived if (1) assertion of the privilege was the result of an affirmative act, such as filing suit; (2) through the affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.  Johnston v. Commissioner,119 T.C. 27 (2002).

The Tax Court’s three-pronged test was endorsed by the D.C. Circuit Court of Appeals in Sanderlin v. United States, 794 F.2d 727 (D.C. Cir. 1986), but explicitly rejected by the Second Circuit in Pritchard v. County of Erie,  546 F.3d 222 (2d Cir. 2008).  Under Pritchard, to show the privilege was waived, the party had to rely on the privileged advice in claiming the defense (which the taxpayers in Ad Investment 2000 Fund LLC argued they were not doing).

The case before Judge Halpern was appealable to the Second Circuit Court of Appeals.  Under the Golsen rule which resulted from the holding in Golsen v. Commissioner, 54 T.C. 742 (1970), when there is a disagreement among appellate courts, the Tax Court will follow the opinion of the Circuit Court of Appeals to which the case could be appealed.  Or if the appellate court has not yet ruled on the issue, the Tax Court can decide on its own how to interpret the rule.  Thus, the issue seemed to be squarely before the Tax Court:  should it follow the holding of the D.C. Circuit Court of Appeals (as Section 7453 suggested) or follow the holding of the Circuit Court to which the case would be appealed, the Second Circuit (as the Golsen rule states).

Unfortunately, even though the question seemed ripe for resolution, Judge Halpern determined that, because the facts were distinguishable from those in Pritchard, the Second Circuit’s holding was neither controlling nor dispositive.

Not long after Ad Investment 2000 Fund LLC was decided, the PATH Act changed the language of Section 7453 [Pub. L. 114–113, div. Q, title IV, § 425(a), Dec. 18, 2015, 129 Stat. 3125].  During a panel discussion at the ABA Section of Taxation and the Trust and Estate Law Division Joint Fall 2016 CLE Meeting (in Boston), Judge Halpern disclosed he was the primary reason the change was made, and his participation in the change makes sense, given the issue potentially before him in Ad Investment 2000 Fund LLC.  The statute no longer contains a reference to the U.S. District Court for the District of Columbia.  However, even so, there seems to still be disagreement over what the new statutory language means.

I have read a lot of Tax Court cases addressing the rules of evidence (perhaps all of them, to one degree or another) and can offer some thoughts about them.  I am not aware of any case in which the Tax Court turned to the U.S. District Court for the District of Columbia or its Circuit Court of Appeals for guidance on evidentiary issues.  There are a small number of cases where the Tax Court looked to the Circuit Court to which the case would be appealed for guidance.  Most often, the Tax Court decided the evidentiary issue without citing any appellate court authority.  Moreover, there are very few cases in which the appellate court reversed an evidentiary decision made by the Tax Court.

I believe the court will use Golsen, just as it has in the past, to resolve issues where the appellate courts disagree, with no deference to the D.C. Circuit Court of Appeals on evidentiary issues.  It did not show any deference when the statutory language suggested it should, so there is no reason to think it would do so now.

A look at the most recent Tax Court cases bears this out and suggests a new trend.  Unlike past cases, the Tax Court now is citing to district court opinions, often from the jurisdiction to which the case would be appealed, and to relevant appellate court opinions.  Citation to district court opinions makes sense, as it is the trial court that is making the evidentiary decision.  And, to the extent the district court has not been overruled by the appellate court, this law would be the controlling law in the jurisdiction.

For example, in CNT Investors, LLC v. Commissioner, 144 T.C. 161 (2015) the venue for appeal was either the Ninth Circuit or the D.C. Circuit Court of Appeals (the court declined to resolve the issue as the holding would be the same regardless of appellate venue).  The court noted that it may take judicial notice of appropriate adjudicative facts at any stage in a proceeding, citing to Rule 201 of the Federal Rules of Evidence.  It then stated that a court may take judicial notice of public records not subject to reasonable dispute, such as county real property title records.  In support of this position, it cited two California district court opinions.  It further noted that it could rely on electronic versions of public records, citing two district court opinions and an Eighth and Sixth Circuit Court of Appeals opinion.  The cited authority allowed the court to consider the online grantor/grantee records of the county in California that showed the LLC held legal title to four parcels of real property in the county.

In determining where certain LLCs were formed, it looked at the online records in each state and found one LLC was formed in Delaware and one in California.  It noted who was listed on the records as the agent for service of process, the entity’s address, and that there was no indication the LLC had been dissolved.  As the basis for taking judicial notice, it cited to three district court opinions in which such judicial notice-taking was permitted.

In Bunch v. Commissioner, T.C. Memo. 2014-177, in explaining the extent to which the court could take judicial notice of pleadings and court orders in related proceedings, the Tax Court cited to appellate and district court opinions, none of which were in D. C.

In S cases, the judges also seem to be willing to turn to holdings in the local jurisdiction for guidance on admissibility of evidence.  This is a curious development, since the Rules of Evidence generally do not apply to small, or “S” cases.  [IRC § 7463; Tax Court Rule 174(c)]  In Lopez v. Commissioner, the taxpayer possessed notarized written statements from her customers and had presented them to the Commissioner during the audit of her returns.  The taxpayer offered the documents at trial, and the Commissioner objected.  The Tax Court admitted the documents, noting that under New York law, if “a document on its face is properly subscribed and bears acknowledgment of a notary public, there is a ‘presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary,’” citing New York state court opinions.  Because the Commissioner had not offered any evidence to rebut the presumption, the notarized statements were admissible.

It seems most likely that the trend of citing to local authority, or at a minimum district court opinions, will continue, and holdings and differences among federal district courts or appellate courts will become even more important when determining evidentiary issues in the Tax Court.

Faulty Information Returns: A New Frontier

We welcome back my colleague, Caleb Smith, in the Harvard Tax Clinic at the Legal Services Center.  Caleb has the misfortune to sit next to me and have me come over and regularly pose to him guest blog posts he might write.  In today’s post he linked up with Toby Merrill and our amazing colleagues at the Legal Services Center in the Predatory Lending Clinic who have a nationwide project going to assist individuals who fell prey to unscrupulous for profit colleges.  We hope that the Revenue Procedure issued by the IRS that Caleb discusses here might become a model for future rulings in similar circumstances.  Kudos to the IRS and Treasury for identifying and implementing a solution to a problem that could have created a lot of headaches for individuals who were already suffering from their student loan problems.  Keith

A lot has recently been said about the problems that arise when 1099s and other information returns are issued when they shouldn’t be. These earlier posts seemingly run the gamut of 1099 issues: from how to strategically defend against “phantom income” here to insight on how difficult it is to bring action against potentially malicious 1099 issuers (bottom of the post, here). The prior posts focus mostly on what to do when a 1099 was issued that shouldn’t have been. This post focuses on preventing the issuance of the 1099 in the first place.

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As a tax practitioner, it can be easy to lose sight of the forest for the trees. Generally, you work with an individual client to solve their individual tax problem. Sometimes, however, you can’t help but take note that your client’s problem is identical to a pool of other individuals: think, for example, of the Bank of America underreporting of mortgage interest covered here, here and here. The recently issued IRS Rev. Proc. 2017-24 is perhaps an even better example of a systemic fix for a problem that will affect thousands of individual clients. Among other things, it demonstrates the potential of collaboration between tax and disparate fields of law to reach an optimal outcome. For your reading pleasure, it also provides an opportunity to learn a bit more about the sometimes-sordid world of for-profit colleges.

Background of Rev. Proc. 2017-24

In early 2013, a for-profit vocational school called the American Career Institute (ACI) closed suddenly, shutting out thousands of students in Massachusetts and Maryland. Shortly thereafter, the company went into receivership, and the Massachusetts Attorney General sued the company and its principals. After more than two years of contentious litigation, the Attorney General reached a consent judgment with the school in which the corporate defendants admitted significant wrongdoing and violations of state law.

At the same time that the Commonwealth was litigating the case, the U.S. Department of Education was dealing with an influx of applications for loan discharges from borrowers who were cheated by for-profit schools, especially the defunct Corinthian Colleges. Under federal law and the terms of all federal student loan master promissory notes, federal student loan borrowers are entitled to assert such “defenses to repayment” of their federal student loans when their schools violate their rights under state law.

The Department of Education eventually made a finding that certain subsets of former Corinthian Colleges students are presumptively entitled to have their loans discharged under this provision, and invited those borrowers to submit applications for discharge. Before the first discharges were granted or announced, advocates raised the issue with the Departments of Education and Treasury.

This advocacy helped result in the IRS issuing Rev. Proc. 2015-57, in which the IRS held that borrowers with federal loans taken out to attend ACI or Corinthian would not have income upon those loans cancellation. Rev. Proc. 2015-57 was a big win for taxpayers, but didn’t go quite as far as Rev. Proc. 2017-24…

What Rev. Proc. 2017-24 Does

Rev. Proc. 2017-24 essentially says three things: (1) “ACI/Corinthian students, completely disregard your cancelled student loans, (2) also, we want to avoid a bunch of other problems so don’t worry about things like potential ‘tax benefit rule’ issues on having taken education credits in the past, and most importantly (3) Creditor, you don’t have to report the cancelled debt under 6050P -so don’t bother issuing a 1099-C.”  The first two directives are pretty much already handled in Rev. Proc. 2015-57. It is the final point that addresses the most obvious problem that the IRS (and practitioners) could see looming on the horizon.

Without Rev. Proc. 2017-24 there is the serious risk that creditors would issue 1099-Cs to former students of Corinthian or ACI even though most of those students wouldn’t have discharge of indebtedness income under the disputed debt doctrine. The creditor would have impetus to avoid potential IRC § 6050P compliance problems by erring on the side of issuing 1099-Cs. This in turn would create an information reporting nightmare. To the IRS computers, it would look as if former students simply forgot to report the 1099-C on their returns. In fact, under the disputed debt doctrine there is no streamlined “form” for the former student to file “showing their work” as to why they did not include the 1099-C on their return (as they could on Form 982 for the insolvency exclusion). At best the taxpayer could attach a Form 8275 disclosure statement to their return explaining their disputed debt doctrine position. I have my doubts that this would ever be done. (As a side-note, low-income taxpayers seeking free tax assistance through VITA cannot file Form 982 for insolvency and very likely cannot file Form 8275, as it is “out-of-scope” of the VITA guidelines.)

But there is another issue that the IRS seems to acknowledge, albeit indirectly. After detailing the defense to repayment argument as a reason much of the debt wouldn’t be taxable, the IRS casually drops one more reason why much of the cancelled debt shouldn’t be included in income: the insolvency exclusion (see Section 2.03 of Rev. Proc. 2017-24). The IRS doesn’t say why it has reason to believe many of these individuals are insolvent (I don’t doubt that many are). It is just one more potential reason listed as to why we should treat ALL of the affected individuals as not having cancellation of debt income. Since the insolvency exclusion requires a reduction of tax attributes (and therefore properly requires a step beyond just “not reporting” the cancelled debt as income, see IRC § 108(b)), I think the IRS is actually mentioning insolvency for a different reason. Namely, that the IRS recognizes that many of these individuals would be very hard to collect from in the first place. And although it might seem unfair to administer assessment of tax based on collection criteria, to an extent this already happens all the time. Collectability is already cited as a factor in determining whether to pursue an examination of a taxpayer (see IRM 4.20.1.2). Treating collectability as a factor in the exam stage (which can be thought of, in a sense, as the assessment phase) is even cited with approval by TIGTA, as covered by Procedurally Taxing here.

The New Normal: Why Collectability and Efficiency Matters

The quote “an ounce of prevention is worth a pound of cure” is attributed to the great American statesman Ben Franklin. Given current budget issues, it could serve just as well as the IRS guiding principle.  Think of the downstream costs without Rev. Proc. 2017-24. Thousands of taxpayers, generally low-income and with the least access to competent tax advisors, would receive 1099s. My bet is that many would ignore them when they filed their returns. This, in turn, would lead to a flurry of activity from the Automated Under-Reporter function of the IRS, leading to the usual split of taxpayers that respond to the notices and those that do nothing until their paychecks are on the verge of getting levied. Those that wait to respond would, most likely, have an excellent argument on the merits that they shouldn’t have cancelled debt income… but good luck finding a venue to make that argument in the collection stage. Instead, out of expediency, many of these individuals would likely look to (and be eligible for) collection alternatives. The outcome? Skewed tax rolls, about an extra billion trees chopped down for IRS notices, and little to no more money taken in by the Treasury.

Of course, the IRS shouldn’t make decisions purely out of administrative efficiency concerns: the proper application of the tax law should govern. But where both equity and the law bend strongly towards broad strokes (that just so happen to carry significant efficiency gains as well), I for one find it hard to work up too much moral outrage. (A similar example can be found in the IRS administration of the PATH Act ITIN expiration statutes. The law plainly says all pre-2008 ITINs expire January 1, 2017 (See IRC 6109(i)(3)(c). The IRS plainly says (at page 5) all ITINs with 78 or 79 as the middle digit expire January 1, 2017… but that’s it. Don’t worry if your ITIN was actually issued before 2008, as it would be a nightmare to track those all down.)

And this leads to the final point: that the “new normal” of an under-funded IRS may provide greater opportunity for systemic advocacy and innovative alternatives to the usual procedures. As a recently publicized example, one may consider the educational letters sent out by TAS to EITC recipients that likely over-claimed their credit but weren’t audited. The IRS may have a greater appetite for a Rev. Proc. 2017-24 type solution when the argument is advanced that, on the whole, tax administration is better served by painting with a broad brush. Cancelled debts stemming from lawsuits are not the only area where this approach is being taken. But seeing where these opportunities are, and effectively advocating for them, requires collaboration and an eye to the non-tax world.

If nothing else, the value of Rev. Proc. 2017-24 may be as a reminder to tax practitioners on the value of stepping outside of the tax bubble (or even just noticing that you may be in one).

IRS Campaign Season Begins

Today we welcome first-time guest poster Tom Greenaway. Tom is a principal in KPMG’s Tax Controversy Services practice. He is a former senior attorney in the IRS Office of Chief Counsel’s then-Large and Midsize Business Division. Tom has written on a variety of tax procedure issues and is in the process of updating the chapter on examinations in the 7th edition of Effectively Representing Your Client Before the IRS. We are fortunate to gain his insights as he describes the rollout of IRS changes in its enforcement strategies relating to our nation’s largest taxpayers. Les

For several years, the Large Business & International Division of the IRS (LB&I) has been shifting its approach to its enforcement priorities in light of prolonged budget constraints and reduced staffing. LB&I leadership is trying to better select returns for examination, and to swiftly address noncompliance issues when they find them, all in the name of efficiency and increased productivity.

Productivity in the context of IRS enforcement usually means generating and sustaining meaningful adjustments (though individual revenue agents and managers are not evaluated on this basis). For decades, however, the “no-change” rate for LB&I corporate examinations has been stuck above 20 percent, and the “no-change” rate is more than double that—almost 50%—for LB&I examinations of pass-thru entities and foreign corporations. In IRS jargon, a “no-change” means an audit did not generate any adjustments to the tax return as filed—thus no return on this significant investment of IRS resources. Corporate taxpayers and pass-thrus with more than $10 million in assets on their balance sheets are LB&I taxpayers.

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IRS enforcement serves as a vital backstop to our system of voluntary income tax compliance. But the current trend of fewer examinations owing to budget cuts and increased non-income tax enforcement responsibilities, combined with perennially high no-change rates, is a bad mix. This is a prime reason LB&I is fundamentally changing its process and structure.

One element of LB&I’s new process is to risk assess taxpayers centrally and develop nationwide compliance “campaigns.” According to IRS, a campaign will be developed when LB&I decides, centrally, that an issue requires a response across an identified population of taxpayers in the form of one or multiple “treatment streams.” This centralized risk assessment will include the use of data analytics to identify issues and taxpayers that pose the highest risk to sound tax administration and compliance. LB&I announced this shift in approach more than a year ago, and in response more than 600 campaign ideas were submitted for consideration, mostly from internal IRS sources. Andrew Velarde, Some Complex Issues Won’t Be Part of Initial LB&I Campaigns, Tax Notes Today, (Nov. 15, 2016) available at 2016 TNT 221-3.

On January 31, 2017 IRS released the initial rollout of 13 different LB&I’s campaigns. Each campaign is assigned to an LB&I practice area and executive who will serve as the lead.

Here’s the list of the initial 13 campaigns:

  • Section 48C Energy Credits
  • OVDP Declines-Withdrawals
  • Section 199 Domestic Production Activities Deduction – Multichannel Vide Program Distributors & TV Broadcasters
  • Micro-Captive Insurance
  • Related Party Transactions
  • Deferred Variable Annuity Reserves & Life Insurance Reserves Industry Issue Resolution (IIR)
  • Basket Transactions
  • Land Developers – Completed Contract Method (CCM)
  • TEFRA Linkage Plan Strategy
  • S Corporation Losses in Excess of Basis
  • Repatriation
  • Form 1120-F (Foreign Corporation) Non-Filer Campaign
  • Inbound Distributors

The initial campaigns cover a wide range of topics. They range from technical tax issues affecting multiple industries (e.g., transfer pricing by inbound distributors, cash repatriation strategies), to industry-focused issues (e.g., variable annuity reserves IIR for insurers and completed contract method for land developers), to procedural compliance issues (e.g., OVDI withdrawals, practical workarounds of TEFRA partnership linkage limitations, and foreign corporate non-filers). Some campaigns that have been promised, like Chapter 3 withholding, were not included in this initial rollout.

As promised, the recommended “treatments” for each campaign vary, although all of the campaigns (except the insurance IIR) will involve examinations to some degree or another.

Some of the campaigns already have well-established treatments in place. For instance, IRS has already identified basket transactions as listed transactions and transactions of interest, and recently issued a related Practice Unit. Practice Units on inbound distributors have been available to the public since December 2014. Treatments of other issues, on the other hand, like the Insurance Industry IIR and TEFRA linkages, have been stalled for years.

Large business taxpayers—and their LB&I examination teams—will need to learn how to adapt to IRS campaigns. IRS officials have said that if a return selected for a campaign examination does not fit the targeted facts or concerns, LB&I wants to release the taxpayer and potentially refine the campaign. Amy Elliott, First LB&I Campaign List to Include Inbound and Outbound Issues, Tax Notes Today, (Dec. 19, 2016) available at 2016 TNT 243-3. Practitioners will play an important role in helping examiners understand whether the targeted concern is actually an issue on the returns selected.

On properly selected campaign examinations, the transparency and commitment to collaboration that are hallmarks of the new LB&I generally and the campaign process specifically should lead to faster issue identification, development, and resolution on campaign cases—all of which should be shared goals of both taxpayers and the IRS. Planned ongoing feedback from this process should further help IRS refine or even end a treatment, or a campaign, if the treatments succeed, or do not work.

Another key for practitioners will be to maintain the team’s focus on pre-identified campaign issues. Traditionally, LB&I examination teams enjoyed wide latitude to identify and develop issues for examination. That is all changed now. A shift towards centrally-developed campaigns necessarily comes at the expense of the field teams’ discretion to raise issues. According to at least one official, examination teams working campaign cases may raise other, non-campaign issues “that they feel they cannot walk away from,” but that standard sets a high bar for overloaded examination teams to clear. Andrew Velarde, Some Complex Issues Won’t Be Part of Initial LB&I Campaigns, Tax Notes Today, (Nov. 15, 2016) available at 2016 TNT 221-3.

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The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser. This article represents the views of the author only, and does not necessarily represent the views or professional advice of KPMG LLP.

©2017 KPMG LLP, a Delaware limited liability partnership and the U.S. member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.