When Does Underpayment Interest Begin When IRS Retroactively Revokes Corporation’s Tax Exempt Status

A recent case in Tax Court, CreditGuard of America v Commissioner, considers how interest on underpayments applies when there is a retroactive revocation of a corporation’s tax exempt status. In so doing it walks us though the provisions that impose interest on underpayments.

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I will simplify the facts to get to the issue. IRS began examining CreditGuard of America’s Form 990 for 2002 back in late December 2003. Fast forward (or slow forward) 9 years or so to February of 2012, and IRS retroactively revoked its tax exempt status for years starting January 1, 2002.

In revoking its status, IRS informed CreditGuard of America (CreditGuard) that it was obligated to file corporate income tax returns for years starting in 2002. When CreditGuard did not file its corporate income tax return for 2002, IRS helpfully filed a substitute for return and a statutory notice of deficiency. CreditGuard eventually petitioned the Tax Court and agreed to a stipulated decision for a deficiency of about $216,000. The stipulaion stated that “interest will be assessed as provided by law on the deficiency in income tax due from petitioner.”

IRS assessed the tax and interest of about $142,000 on the deficiency. In calculating the interest, the IRS used the start date of the underpayment interest as March 17, 2003, the due date of the 2002 corporate income tax return.

When CreditGuard did not pay the tax or interest, IRS commenced administrative collection and filed a notice of federal tax lien. In response, CreditGuard filed a CDP request seeking an offer in compromise, but also challenging the interest computation. According to CreditGuard, interest should have only run from 2012– the date of the IRS’s revocation of its tax exempt status.

The CDP case allowed the court to get to the merits of the interest issue. As a threshold issue, the court held that there was no prior opportunity to consider the interest calculation; while the Tax Court had limited jurisdiction to order a refund if the party in a case believes it has overpaid interest that does not give the court the power to determine the correct amount of interest in the first instance.

Once clearing that hurdle, the court turned to the interest issue, one of first impression in the Tax Court, leading to this being a division opinion. The taxpayer’s essential argument was straightforward: it had no obligation to file a corporate tax return in 2003; in fact that obligation only arose 9 years later when IRS revoked its status.

While there is a superficial appeal to CreditGuard’s argument, the Tax Court held that the statute mandates that interest ran from 2003:

Under section 6601(a), interest runs from the “last date prescribed for payment.” Under section 6151(a), the “last date prescribed for payment” is the date “fixed for filing the return.” Because the date fixed for filing petitioner’s 2002 Form 1120 was March 17, 2003, these provisions indicate that petitioner must pay interest on the unpaid tax “for the period from such last date to the date paid.” See sec. 6601(a).

To deflect that statutory reading, CreditGuard argued that the interest provisions that apply to “taxes not otherwise prescribed” under Section 6601(b)(5) applied to revocations. That section applies to taxes “payable by stamp and in all other cases in which the last date for payment is not otherwise prescribed.” For those taxes, the “last date for payment” is the date the liability for tax arises, a date that CreditGuard argued pushed the interest start date to 2012.

The Tax Court disagreed, holding that the corporate income tax was otherwise prescribed with a deadline (as per Section 6072(b)), and in any event, even if it were not, the liability for the tax arose during 2002, not when the IRS revoked its status or when it agreed to the stipulated decision in the Tax Court.

The part of the opinion addressing when the tax arose is a little like a dog chasing its tail, but as our good friend Professor Bryan Camp discusses in a thoughtful blogpost on Taxprof  it highlights the difference between a liability and an assessment. The liability arose back in the year the corporate income tax return should have been filed; the assessment that followed the Tax Court’s decision did not alter the essential time when the liability arose.

The opinion’s statement that retroactivity has real consequences is important. Its citation to Bergerco Can. v. U.S. Treasury Dep’t, Office of Foreign Assets Control, 129 F.3d 189, 192 (D.C. Cir. 1997) and its discussion of those consequences situate the nature of the court’s view of the issue and why the IRS position was right as policy matter:

To be sure, “until we devise time machines, a change can have its effects only in the future.” …. But the purpose of making a change retroactive is to suspend reality and invoke a counterfactual premise. Here, the premise is that petitioner was not in fact tax exempt during 2002 but rather was a corporation subject to the regular corporate income tax. Because petitioner did not actually pay that tax on the date prescribed for payment, it is liable for interest beginning on that date.

After the language cited above, the opinion does drop a footnote to Section 6501(g)(2), which provides that for sol purposes a corporation’s good faith filing of a Form 990 “shall be deemed the return of the organization” for purposes of starting the period of limitations on assessment.” That is an important point, as IRS cannot revoke status for stale tax years (absent the sol remaining open for other reasons). Yet, as the opinion notes, the interest provisions are designed to compensate the government for the use of money. By agreeing with the IRS that it should not have been tax exempt back in 2002, CreditGuard essentially agreed that it did not pay what it was required to pay had it properly reported its status in the first place. As a result, the court’s approach to make the government whole is consistent with the underlying purpose of the interest provisions.

Appeals Backtracks on Removing Face to Face Conferences

We discussed last year around this time that Appeals was putting in place procedures that severely limited the opportunity for face to face meetings. Practitioners strongly opposed Appeals’ decision. While this past summer Appeals announced that it was piloting a web based virtual conference option, in the last few weeks leadership in Appeals has told practitioners that it is going to offer face to face in person conferences again for cases in field offices. To reflect the change, we understand that Appeals will soon publish interim guidance. While Appeals has decided not to offer virtual face to face meetings for the issues it handles in Service Centers it did not rule it out in the future if it could work out logistical barriers to doing so.

The decision to review and allow taxpayers the demonstrates that Appeals’ meetings with practitioner groups (such as the ABA Tax Section) was not for show and that despite losing 1/3rd of its staff since 2010 Appeals is committed to trying to work out cases in the most effective manner.

 

As If: Tax Court Holds that Restitution Assessment Does Not Attract Late Payment Penalties or Interest

This week in Klein v Commissioner the Tax Court in a division opinion held that assessments of restitution do not generate underpayment interest or late payment penalties. This is an important holding and a case of first impression.

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Section 6201(a)(4) gives the Service to power to assess restitution “in the same manner as if such amount were such tax.” Following a restitution assessment, Internal Revenue Manual provisions and Service policy has been to impose underpayment interest and late payment penalties on amounts that are unpaid similar to other unpaid tax.

To the facts at hand. In Klein, after some delay, the taxpayer fully paid the restitution, as well as interest that accrued pursuant to the statute in Title 18 that allowed for restitution. The taxpayer did not pay the separate Title 26 interest and late payment penalties that the Service imposed and assessed.

The IRS commenced administrative collection with respect to the unpaid interest and penalties. In a CDP proceeding the taxpayer challenged the Service’s right to impose underpayment interest and civil penalties, having claimed that it fully paid what was due.

The taxpayer had to clear the hurdle that she could challenge the Service’s imposition of penalties and interest in the CDP proceeding. The Court found that it was possible, noting that in a CDP proceeding, “underlying tax liability refers to the assessed liabilities that the IRS is seeking to collect via the challenged lien or levy.”

The opinion then considered the Service’s interest and penalty procedures in place for restitution assessments under the Internal Revenue Manual. The Tax Court held that the statutory language that gives IRS the power to assess restitution “as if” it were a tax does not transform the assessed restitution into a tax for purposes of the penalty and interest provisions. In doing so, the opinion discusses how the statute is drafted in the subjunctive mood.

For those who may have forgotten their Latin, the opinion explains what that means:

This clause is drafted in the subjunctive mood. Clauses of this type are commonly used to express a counterfactual hypothesis. See, e.g., Andrea A. Lunsford, The St. Martin’s Handbook 633 (5th ed. 2003) (describing the subjunctive mood as expressing “a wish, suggestion, requirement, or a condi- tion contrary to fact”). For example, assume a statute providing that certain per- sons (green card holders, perhaps) shall be treated “in the same manner as if they were citizens.” In such a statute, Congress would necessarily presume that such persons were not in fact citizens, providing merely that they should be accorded the treatment which citizens receive.

So as Alicia Silverstone in Clueless can attest, “as if” is an important phrase. As the opinion explains, the “as if” in the statute provides “the counterfactual hypothesis that restitution is a tax for the limited purpose of enabling the IRS to assess that amount, thus creating an account receivable on the taxpayer’s transcript against which the restitution payment can be credited.” It is treated like a tax but is not a tax.

In addition to parsing the statute, the opinion notes that the criminal concepts of tax loss and restitution do not neatly equate with the concepts of civil tax liability. In 2010 when Congress gave the IRS the power to assess (and collect) restitution it did not alter the fundamental distinction between the separate criminal and civil concepts.

To be sure, if the Service gets around to a civil examination, it can potentially generate an assessment that would be based on deficiency procedures. (for readers who would like more background on the interplay of the deficiency assessment procedures and the relatively new restitution assessment procedures see Keith’s post from this past spring discussing the issue here). If the Service were to conduct a civil examination and the amount assessed under deficiency procedures is both unpaid and exceeds what has previously been collected, it will be possible for Title 26 interest and civil penalties to start running.

 

District Court in Texas Strikes Down Treasury’s Anti-Inversion Regs

A district court in Texas has struck down Treasury’s anti-inversion regulations for violating the APA’s notice and comment requirements.  The opinion can be found here  and a brief Reuters story on the background and opinion can be found here

Given the subject, the opinion is major news. It is also a significant tax procedure case, addressing at least 6 issues, each which could take up a post or article.

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  • Standing-it concludes that the Chamber of Commerce and the Texas Association of Business had standing to bring the suit;
  • Anti-Injunction Act-it concludes that the APA claims (that the rules were arbitrary and capricious and issued without required notice and comment) were not barred by the AIA, finding that the suit was not for the purpose of restraining assessment and collection of tax;
  • Statutory Authority-it concludes that the issuance of rules on the subject was within Treasury’s statutory authority;
  • Arbitrary and Capricious- it concludes that the Treasury reg, as buttressed by the preamble’s explanation, demonstrated that the rule was not arbitrary and capricious;
  • Interpretive Rules-it concludes that the regulations are legislative and not interpretive, an important conclusion because interpretive rules are exempt from the APA notice and comment regime; and
  • No Notice and Comment Exception for Temporary Regulations-it concludes that Section 7805(e) does not authorize the issuance of binding temporary regulations without notice and comment in the absence of an explicit notice-and-comment exception found in the APA or the Code itself; given that the regs were issued in temporary form without notice and comment, the court concluded that the regs were invalid.

The last point is the main APA issue in the case. As a brief refresher, the APA generally provides that in the absence of an exception (like for good cause, not argued here, or if a rule is merely interpretive, argued here but a loser in this case and likely others involving Treasury regs), an agency must give the public notice and the right to comment as per 5 USC § 553.

Treasury has argued that Section 7805(e), which provides that temporary regulations must be accompanied by a notice of  proposed rule making and sunset after three years, is evidence of Congressional intent to exclude temporary regs from the main APA notice and comment regime. No controlling opinion had addressed that issue directly, though in Intermountain Insurance v Commissioner a concurring opinion by Tax Court Judges Holmes and Halpern makes the strong case that the 7805(e) was not sufficient to give Treasury a free pass on notice and comment.

Commentators, including persuasively Professor Kristin Hickman in her 2013 Vanderbilt law review article Unpacking the Force of Law, argue that Treasury’s practice of issuing temporary regulations without notice and comment likely violates the APA. (A 2012 National Tax Journal article by Professor Ellen Aprill also gives a careful look at APA and other procedural requirements accompanying Treasury rule making, including some great admin law context on Treasury temporary reg practice). Looking to other instances where Congress has exempted agencies from notice and comment, Professor Hickman notes that nontax legislation is more explicit in carving out the agency’s rule making from notice and comment, and that the Supreme Court has generally required there to be an explicit legislative pass on APA requirements. Moreover, Section 7805(e) is, in her (and my) view better seen as a provision that should be read in light of notice and comment requirements, rather than excepting the agency from it altogether.

I suspect that there will be an appeal here though this issue is a political hot potato. I believe the district court gave short shrift to the AIA issue (one that I have recently discussed in the updated IRS Practice and Procedure and an issue that Professor Daniel Hemel also discussed for us in a guest post on PT here) so there is a real possibility that an appellate court may not even reach the APA.  Yet this opinion should be a wake up call to the Treasury practice of issuing Temporary Regulations without a safer exemption from notice and comment. Where there is the demonstrated need to promulgate a rule without going through notice and comment, the APA provides a good cause exception. In this post-Mayo world, taxes, while vital, are not enough to justify an agency practice that seems out of sync with the rest of administrative law.

Tax Reform: Some Thoughts on Simplification and Passthrough Income

This past week saw the release of the outline of the next big push for tax reform. Titled a “Unified Framework For Fixing Our Broken Tax Code” the Trump Administration and the majority in the Senate Finance and House Ways and Means Committees discuss in 9 pages basic principles and  major changes, including corporate and individual rate reductions, a new top rate for some passthrough entities lower than the top individual rate, an expansion of the standard deduction, elimination of many personal deductions, and a shift to a territorial system of taxation.

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We try to stay in our lane of tax procedure and tax administration on this blog. I will state the obvious and note that tax reform is a heavy lift, and there is likely to be some serious legislative give and take over the next few months.

Just this past week the National Taxpayer Advocate blogged on her vision of tax reform, in Tax Reform: Hope Springs Eternal This Fall. The NTA, while noting many policy goals around tax reform, picks one issue for emphasis: the need for simplification. Stating that if she had to sum up everything she has learned in her tenure as NTA, it is that the “root of all evil in the tax system is the complexity of the Internal Revenue Code.”  To that end, the NTA discusses sources and effects of complexity and offers a number of suggestions that she has discussed in past reports as a way to meaningfully simplify the Code. Those include streamlining the Code’s myriad savings and education incentives and consolidating civil penalties and family status provisions. As someone who has thought about tax reform for a long time, the NTA makes sensible substantive suggestions that I hope Congress considers as it moves forward.

There have been many articles discussing complexity in the tax system: they often define differing levels of complexity; some suggest that simplification in a meaningful sense is often diametrically opposed to other goals we also care deeply about, like equity (itself a loaded term) and the need for certainty. (For a good example see a 2013 article in the Wyoming Law Review by Jeffrey Partlow). It is easy to see how other goals soon run smack into and conflict with the shared stated goal of simplifying the tax code.

Consider one of the Framework’s proposals: a lowering of the top rate on small and family owned business income from passthroughs to 25%, a rate lower than the top individual rate. Now it does not take a law professor to consider the possibility for mischief from such a proposal: people with labor income will be incentivized to funnel their work into a small business passthrough format to try to game the rate differential. We already see that to an extent in existing law (for much less at stake), as individuals use S Corp structures to try to avoid paying employment taxes on what might otherwise be compensation income.

The proposal addresses that mischief by noting that the framework “contemplates that the committees will adopt measures to prevent the recharacterization of personal income into business income to prevent wealthy individuals from avoiding the top personal tax rate.”

I have not deeply thought through the ways that legislation could achieve that anti-abuse goal, but I suspect that any measure will require greater IRS attention to this structure (already we have discussed in PT the heavy resource lift of IRS  trying to determine on audit whether S Corps are paying shareholders a reasonable compensation). The Center on Budget and Policy Priorities in a report that predates the current proposal discusses some of these challenges, including discussing how some estimate that over 30% of the cost of this change would come from high earners trying to shift income into this structure to game the system and the challenges IRS would likely face in trying to stem the abuse[Ed: note that the CBPP discussion looks at an earlier proposal with an even lower passthrough rate].

Conclusion

It is far too early in the tax reform season to know where things will land. I note that the Trump Administration’s “first principle” of tax reform is to “make the tax code simple, fair and easy to understand.” The passthrough proposal suggests the potential for significant administrative complexity. As IRS struggles with resources (like we learned this week as IRS has confirmed that it has suspended its ASFR program, at least temporarily), Congress should explicitly consider whether it will give the IRS the resources it needs to police a program that at first blush is one that is susceptible to abuse.

 

 

Follow up to Yesterday’s Post on Suspension of ASFR Program

Longtime reader and frequent commenter Bob Kamman provides additional history and context for the ASFR suspension Carl Smith discussed yesterday. Les

This is not the first time the ASFR program has been halted, according to the September 11, 2017 report from TIGTA, “Trends In Compliance Activities Through FY 2016.” According to the report,

“IRS management halted ASFR issuances completely from September 2015 through May 2016 due to resource constraints and the assignment of resources to other collection activities that were deemed a higher priority. Although the ASFR is one of the IRS’s primary tools used to enforce filing compliance, the IRS reported in the FY 2016 Data Book that there were $542.8 million of additional assessments in FY 2016. This represents a substantial decline compared to the $6.7 billion of additional assessments that were reported for FY 2012.”

The program seems to be more effective at assessing, rather than collecting tax. The TIGTA report’s Figure 6 on Page 14 shows that more than 28% of unpaid assessments in FY 2016 are from ASFR/Section 6020(b) returns. That compares to about 29% of unpaid assessments from returns filed with a balance due.

The decline in ASFR assessments appears to be part of a five-year strategy:

“IRS officials attributed the significant decline in the CSCO TDAs [Compliance Services Collection Operations Taxpayer Delinquent Accounts] to the decline in Automated Substitute for Return assessments that are issued as part of the nonfiler program, which have decreased 86 percent since FY 2012.”

The TIGTA report (76 pages) is here

 

 

Tax Free Reorg and Statute of Limitations: When is a Document a Return?

The New Capital Fire v Commissioner case from earlier this month is another in the many cases involving statutes of limitation on assessment. The case involves an old issue;  whether a document constitutes a return for purposes of starting the clock ticking on the statute of limitations on assessment.

In this case, the twist was that one taxpayer (Old Capital Fire)  was merged out of existence in a transaction that was intended to qualify as a tax free reorg under 368(a)(1)(F) (an F reorg) Following the merger, the surviving corporation (New Capital Fire) filed a corporate tax return, and with that return it included a pro forma Form 1120 that it included with its corporate tax return. That pro forma 1120 included the information pertaining to Old Capital Fire’s operations in its last short year.

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Generally speaking, when there is an F reorg, as the opinion discusses, the regs under Section 381 require that “the part of the tax year before the reorganization and the part after constitute a single tax year, and the resulting corporation must file a single full-year return.”

The problem here was apparently IRS argued that there was no valid F reorg. IRS came in 9 years or so after New Capital Fire filed its return and sought to assess a tax relating to the return that it believed Old Capital was required to separately file. If no return was filed, under Section 6501(c)(3) IRS would have an unlimited time to assess additional tax.

The issue that the Tax Court considered was whether the pro forma 1120 that New Capital included with its return was a return for purposes of starting the SOL on assessment for the tax stemming from the supposedly blown reorg.

There is plenty of old law on whether a document filed with the Service counts as a return. In 1984 the Tax Court put together the story in the oft-cited Beard v Commissioner, where it identified the following test:

(1) the document must contain sufficient data to calculate tax liability;

(2) the document must purport to be a return;

(3) there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and

(4) the taxpayer must have executed the document under penalties of perjury.

Most of the New Capital Fire opinion centered on the third requirement, the need to have an “honest and reasonable attempt” satisfy the tax law. The IRS argued that the New Capital return was purposefully misleading. While it was not clear (to me anyway) what led the IRS to label it as such, the opinion noted that the New Capital return had a clear statement regarding the position that Old Capital was merged into New Capital and that the pro forma return reported “income, deductions, and credits that were included in the notice of deficiency at issue in this case.”

The opinion notes that many opinions have liberally applied the third Beard element, with a flunking only if the court found that the pro forma 1120 and the 1120 that disclosed the merger was “false or fraudulent with intent to evade tax as it pertains to Old Capital.” The Tax Court observed that the IRS came up short, as “New Capital’s 2002 return contained sufficient information to calculate Old Capital’s tax liability.”

As the opinion notes, citing cases like Zellerbach Paper v Helvering and Germantown Trust v Commissioner, perfect accuracy is not necessary. Even if New Capital whiffed and there was a separate obligation to file a different return relating to Old Capital’s short year, that mistake did not change the fact that IRS had what it needed to assess any additional tax within the normal time frame.

With that, the court concluded that IRS did in fact receive a return from Old Capital and IRS was out of luck (and time) to assess any additional tax that may have stemmed from Old Capital Fire’s merger.

ABA Tax Section Fall Meeting in Austin

Stephen and I are attending the fall ABA Tax Section meeting in Austin. There are panels about important procedural and administrative issues, including the new partnership audit regime (timely as my colleague Marilyn Ames and I are finishing up a chapter on that for the Saltzman/Book treatise), the many changes in Appeals Office procedures, how to navigate cases before the Office of Professional Responsibility, best practices in reading and drafting the various types of tax guidance, and the possible changes arising due to the tax aspects of healthcare reform.

This morning Stephen will be on a panel I am moderating  discussing Section 7434 and the private cause of action that it allows for fraudulently issued information returns. Joining him on the panel is Mandi Matlock, who splits her time between Mondrick & Associates and Texas Rio Grande Legal Aid (and who contributes to the Effectively Representing book and has also blogged for us). There are many interesting issues relating to Section 7434, including whether the statute supports a claim for improperly issued information returns arising in employee misclassification cases, whether a person who did not have a legal obligation to file the information return is potentially liable and how the courts have approached damages in the handful of cases that plaintiffs have won.