The IRS expects to issue guidance on the Code Sec. 199A passthrough deduction in July, Acting IRS Commissioner David Kautter has said. Kautter outlined the timeline of various guidance proposals at the American Bar Association (ABA) Section of Taxation May Meeting in Washington, D.C.

The IRS expects to issue guidance on the Code Sec. 199A passthrough deduction in July, Acting IRS Commissioner David Kautter has said. Kautter outlined the timeline of various guidance proposals at the American Bar Association (ABA) Section of Taxation May Meeting in Washington, D.C.

Proposed Guidance
More specifically, the proposed guidance on the passthrough deduction is expected to be released by the end of July, an IRS spokesperson told Wolters Kluwer on May 15. "The goal of the guidance is to get things out that are complete," the IRS spokesperson said, reiterating Kautter. "But, it will not cover every question that taxpayers have," the spokesperson added.

Passthrough Deduction
The new passthrough deduction was enacted under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) last December. The new law provides a 20-percent deduction for income from passthrough entities. The deduction is limited by certain controversial factors including business activities, wages paid by the business, and property values.

Questions Expected
Generally, Kautter anticipates initial follow-up questions from taxpayers and practitioners after the proposed guidance is released, the IRS spokesperson told Wolters Kluwer. Kautter has said that it would be better to get the guidance out in "fairly good shape," to allow for public comment and input, rather than taking more time to draft the guidance internally, according to several reports. Kautter has reportedly said that not everyone may agree with that approach, but that a "better product" will likely be created because of it.

Congressional lawmakers on Capitol Hill continue to focus on tax reform. Republicans and Democrats alike have been discussing the effects of tax reform, albeit reaching different conclusions.

Congressional lawmakers on Capitol Hill continue to focus on tax reform. Republicans and Democrats alike have been discussing the effects of tax reform, albeit reaching different conclusions.

Tax Reform Hearings
The Ways and Means Committee held a hearing during the week of May 14, marking the first in a series of upcoming committee hearings on tax reform. The Ways and Means hearings are each expected to examine the effects of the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

Small Businesses. Ways and Means Tax Policy Subcommittee Chairman Vern Buchanan, R-Fla., has announced the second tax reform hearing in the series is scheduled for May 23. The subcommittee hearing is expected to focus on the TCJA’s impact on small businesses.

Senate. The Senate Finance Committee (SFC) examined early impressions of the TCJA in a hearing last month. SFC Chairman Hatch, R-Utah has indicated to Wolters Kluwer that he is also currently examining House proposals to reform the IRS.

TCJA Criticism
Meanwhile, Ways and Means Democrats remain united in their opposition against the new tax law. Ranking member Richard Neal, D-Mass., released a Democratic Progress Report which details areas in which Democrats believe the TCJA has fallen short.

The Republican tax law has not put the middle class first or provided relief for small businesses, the progress report notes. Rather, it has provided large " tax cuts to big corporations and wealthy executives," the report added.

Additionally, Democrats have criticized the TCJA for significantly adding to the federal deficit. Neal called the new law "fiscally irresponsible,"during a Ways and Means hearing held during the week of May 14.

However, House Speaker Paul Ryan, R-Wis., called Democratic tax policy ideas and criticisms of the TCJA "bizarre," during a May 17 press briefing. Democrats are in "denial" about the "thriving economy," according to Ryan.

"If you saw yesterday’s Ways and Means hearing, Democrats are still using the same old doom-and-gloom talk that they were using six months ago," Ryan said. "It was bizarre before, and it is even more bizarre now, when Democrats are openly calling for tax increases, which will do nothing but harm our economy," he added.

To that end, several House Democrats have called for raising the corporate tax rate, including certain Ways and Means members during the full committee hearing. Under the TCJA, the corporate tax rate was lowered from 35 to 21 percent.

Senate
Likewise, Senate Democrats across the Capitol have proposed raising the corporate tax rate to 25 percent. Additionally, in a proposal released by Senate Democrats in March, the top individual tax rate would be reinstated to 39.6 percent. Under the TCJA, the top individual tax rate was lowered to 37 percent. These tax rate increases would pay for a $1 trillion infrastructure plan, according to the Democratic proposal.

Ways and Means Open Seat
In related news, Rep. Brad Wenstrup, R-Ohio, may be eyeing a seat in the House’s tax writing committee. The House Steering Committee has recommended Wenstrup to serve as a member of the Ways and Means Committee. Wenstrup is a doctor, war veteran, and small business owner. He would replace Rep. Patrick Meehan, R-Pa., who resigned last month.

The IRS’s "Achilles’ heel" is using outdated software originating from the 1960s, Acting IRS Commissioner David Kautter told Senate lawmakers. Kautter and Treasury Secretary Steven Mnuchin testified in a May 22 Senate Appropriations Financial Services and General Government Subcommittee hearing.

The IRS’s "Achilles’ heel" is using outdated software originating from the 1960s, Acting IRS Commissioner David Kautter told Senate lawmakers. Kautter and Treasury Secretary Steven Mnuchin testified in a May 22 Senate Appropriations Financial Services and General Government Subcommittee hearing.

System Shut Down
2.3 million cyber attacks are launched against the IRS each day, one million of which are sophisticated, Kautter told Senate appropriators. Kautter and Mnuchin testified before the Subcommittee on the Trump Administration’s fiscal year (FY) 2019 Treasury and IRS budget request.

Underscoring the numerous cyber threats against the IRS is its antiquated technology systems currently in use, Kautter said. "59 percent of IRS hardware and 32 percent of IRS software is obsolete," Kautter told Senate appropriators.

Tax Day Glitch. However, the outdated technology at the IRS was not the cause of the partial system shut down that occurred this year on Tax Day, April 17. For eleven hours, certain taxpayers were unable to electronically submit payments through the IRS’s Direct Pay feature. The particular hardware that failed on Tax Day, however, is only a year-and-a-half old, Kautter said.

Five-Year Plan
The IRS and Treasury are currently crafting a new five-year plan to update the IRS’s information technology (IT) systems, both Kautter and Mnuchin testified. A preliminary draft of the plan is expected within 90 days, Mnuchin said.

"The IRS has not done a good job in the past with regard to its technology dollars," Kautter said. However, the leadership team at the IRS is new, energetic, and knowledgeable, and will thus render a different result, he added.

Tax Reform
Technology is the most time consuming and expensive aspect of tax reform implementation, according to Kautter. Additionally, Kautter expects that guidance on all major aspects of tax reform under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) will be out by fall. Recently, Kautter said that proposed guidance on the Code Sec. 199A pass-through deduction will be released in July.

Tax Gap
"In 2016, IRS estimated that the average annual gross tax gap—the difference between taxes owed and taxes paid on time—was $458 billion for tax years 2008-2010," Subcommittee Chairman James Lankford, R-Okla. said during his opening statement. However, the tax gap is most attributable to the "cash" economy, Kautter told lawmakers.

"An individual taxpayer making more than $1 million a year is seven times more likely to be audited than a taxpayer making under $200,000 a year," Kautter said. "The problems with the tax gap tend to be in the cash economy."

Budget
The Trump Administration’s FY 2019 budget request proposes a total of $12.3 billion for Treasury’s operations and bureaus. The budget request proposes $11.135 billion in IRS funding. This figure for the IRS includes "savings and reductions" of $24.5 million compared to the FY 2018 enacted levels, according to Kautter.

The FY 2019 budget request allocates IRS funding for the following:

• taxpayer services: $2.24 billion;
• operations support: $4.16 billion;
• enforcement: $4.63 billion; and
• business systems modernization: $110 million.

The Treasury Department and the IRS, along with the Department of Labor and the Department of Health and Human Services, issued a notice of clarification to more thoroughly explain their decision not to adopt recommendations made by the American College of Emergency Physicians (ACEP) and certain other commenters regarding T.D. 9744. The challenged regulations govern the coverage of emergency services by group health plans and health insurance issuers under the ACA’s copayment and coinsurance limitations.

The Treasury Department and the IRS, along with the Department of Labor and the Department of Health and Human Services, issued a notice of clarification to more thoroughly explain their decision not to adopt recommendations made by the American College of Emergency Physicians (ACEP) and certain other commenters regarding T.D. 9744. The challenged regulations govern the coverage of emergency services by group health plans and health insurance issuers under the ACA’s copayment and coinsurance limitations.

The ACEP had sued the federal government over the final regulations, which were issued in 2015 under the Patient Protection and Affordable Care Act (ACA) ( P.L. 111-148). Among other things, ACEP argued that the federal government did not adequately respond to their public comments regarding the regulations. On August 31, 2017, the court sent the matter back to the Departments of Health and Human Services, Labor, and Treasury to respond to the public comments from ACEP.

Greatest of Three Regulations
Under T.D. 9744, a plan or issuer satisfies the copayment and coinsurance limitations in the statute if it provides benefits for out-of-network emergency services in an amount equal to the greatest of three possible amounts:

• the amount negotiated with in-network providers for the emergency service furnished;
• the amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services (such as the usual, customary, and reasonable charges), but substituting the in-network cost-sharing provisions for the out-of-network cost sharing provisions; or
• the amount that would be paid under Medicare for the emergency service.

Each of these amounts is calculated excluding any in-network copayment or coinsurance imposed with respect to the participant, beneficiary, or enrollee. This is sometimes referred to as the "Greatest of Three" or the "GOT" regulation because it sets a floor on the amount that nongrandfathered group health plans, and health insurance issuers offering nongrandfathered group or individual health insurance coverage, are required to pay for out-of-network emergency services under this provision at the greatest of the three listed amounts.

Clarification of Regulations
In their clarification, the departments state that the regulations provide a reasonable and transparent methodology to determine appropriate payments by nongrandfathered group health plans and health insurance issuers offering nongrandfathered group or individual health insurance coverage for out-of-network emergency services. In addition, the departments maintain that ACEP and other commenters did not provide adequate information to support their assertion that the methods used for determining the minimum payment for out-of-network emergency services under the GOT regulation are not sufficiently transparent or reasonable.

The IRS has issued a new five-year strategic plan to guide its programs and operations and to help meet the changing needs of taxpayers and members of the tax community. "Providing service to taxpayers is a vital part of the IRS mission and the new Strategic Plan lays out a vision of ways to help improve our tax system," remarked IRS Acting Commissioner David Kautter.

The IRS has issued a new five-year strategic plan to guide its programs and operations and to help meet the changing needs of taxpayers and members of the tax community. "Providing service to taxpayers is a vital part of the IRS mission and the new Strategic Plan lays out a vision of ways to help improve our tax system," remarked IRS Acting Commissioner David Kautter.

The Fiscal Year 2018-2022 IRS Strategic Plan focuses on six goals aimed at improving customer service:

• empowering and enabling all taxpayers to meet their tax obligations;
• protecting the integrity of the tax system by encouraging compliance through administering and enforcing the tax code;
• proactively collaborating with external partners to improve tax administration;
• cultivating a well-equipped, diverse, flexible and engaged workforce;
• advancing data access, usability and analytics to inform decision-making and improve operational outcomes; and
• driving increased agility, efficiency, effectiveness and security in IRS operations.

The Service further urged taxpayers to be aware of their fundamental rights under the Taxpayer Bill of Rights when dealing with the IRS.

The IRS Large Business and International (LB&I) Division has identified and selected six additional compliance campaigns. The IRS previously announced 13 campaigns on January 31, 2017, followed by an additional 11 on November 3, 2017, and five more on March 13, 2018. These campaigns help LB&I move in the direction of issue-based examinations. In addition, a compliance campaign process helps the organization decide which compliance issues present risks and the best way to respond to such risks.

The IRS Large Business and International (LB&I) Division has identified and selected six additional compliance campaigns. The IRS previously announced 13 campaigns on January 31, 2017, followed by an additional 11 on November 3, 2017, and five more on March 13, 2018. These campaigns help LB&I move in the direction of issue-based examinations. In addition, a compliance campaign process helps the organization decide which compliance issues present risks and the best way to respond to such risks.

The additional campaigns were identified through LB&I data analysis, and suggestions from IRS employees. LB&I’s goal is to improve return selection, identify issues representing a risk of noncompliance, and make the greatest use of limited resources.

The six campaigns selected for the rollout are:

• Interest Capitalization for Self-Constructed Assets;
• F3520/3520-A Non-Compliance and Campus Assessed Penalties;
• Forms 1042/1042-S Compliance;
• Nonresident Alien Tax Treaty Exemptions;
• Nonresident Alien Schedule A and Other Deductions; and
• NRA Tax Credits.

The campaigns themselves fall within the Withholding & International Individual Compliance practice area.

The IRS intends to provide guidance on the new information reporting obligations for certain life insurance contract transactions under Code Sec. 6050Y. The proposed regulations will provide guidance on the modifications to the transfer for valuable consideration rules for life insurance contracts under Code Sec. 101(a). In addition, the IRS has delayed the reporting requirements under Code Sec. 6050Y until the final regulations are issued.

The IRS intends to provide guidance on the new information reporting obligations for certain life insurance contract transactions under Code Sec. 6050Y. The proposed regulations will provide guidance on the modifications to the transfer for valuable consideration rules for life insurance contracts under Code Sec. 101(a). In addition, the IRS has delayed the reporting requirements under Code Sec. 6050Y until the final regulations are issued.

Transfers for Value Rules
For transfers after December 31, 2017, the exceptions to the transfer for value rules do not apply to the transfer of a life insurance contract, or any interest in such a contract, that is a reportable policy sale. Thus, some portion of the death benefit ultimately payable under the contract may be includable in income. A "reportable policy sale" means the acquisition of an interest in a life insurance contract, directly or indirectly, if the acquirer has no substantial family, business, or financial relationship with the insured apart from the acquirer’s interest in the life insurance contract. A "reportable death benefit" is an amount paid at the death of the insured under a life insurance contract that was transferred in a reportable policy sale.

Reporting Requirements Delayed
The new reporting requirements of Code Sec. 6050Y apply to reportable death benefits paid and reportable policy sales made after December 31, 2017. However, the transition guidance delays any reporting under Code Sec. 6050Y until final regulations are issued.

Under Code Sec. 6050Y, information returns must be filed in the following situations:

• By anyone who acquires a life insurance contract, or any interest in a life insurance contract, in a reportable policy sale;
• By an issuer of a life insurance contract upon notice of a transaction required to be reported above, or upon any notice of a transfer of a life insurance contract, or any interest in a life insurance contract, to a foreign person; and
• By any payor of reportable death benefits.

Proposed Regulations
The proposed regulations will describe the manner by which and time at which the reporting requirements of Code Sec. 6050Y must be satisfied. They will also clarify which parties are subject to the reporting requirements and other definitional issues. For example, Treasury and the IRS intend to define the term "reportable policy sale" in the proposed regulations to include a viatical settlement. In addition, the proposed regulations will clarify the extent to which Code Sec. 6050Y applies to sales or acquisitions effected by transferors and transferees outside the United States, and to sellers and issuers that are foreign persons for purposes of these reporting rules.

The IRS is requesting public comment on the intended proposed regulations implementing these reporting requirements.

In recent years, Congress has used the Tax Code to encourage individuals to make energy-efficient improvements to their homes.  The credit is very popular. The Treasury Department estimates that more than 6.8 million individuals claimed over $5.8 billion in residential energy tax credits in 2009.

The nonrefundable Code Sec. 25C tax credit was originally enacted on a temporary basis. Most recently, Congress renewed and modified the residential energy property tax credit in the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (2010 Tax Relief Act) through 2011.  

2011 rules

Under current law, the Code Sec. 25 tax credit provides a 10 percent credit for the purchase of qualified energy efficiency improvements to existing homes. A qualified energy efficiency improvement is any energy efficiency building envelope component:

• Meeting or exceeding criteria for the component established by the 2009 International Energy Conservation Code or, in the case of certain windows, skylights and doors, and metal roofs, meeting Energy Star requirements;

• Installed in or on a dwelling located in the United States and owned and used by the taxpayer as the taxpayer's principal residence;

• Original use of which commences with the taxpayer; and

• The qualified energy-efficient improvement reasonably can be expected to remain in use for at least five years.

Examples of energy-efficient improvements include, but are not limited to, qualified electric heat pumps, certain furnaces, metal roofs meeting certain criteria, certain types of exterior windows and doors. In some cases, only the cost of the energy-efficient improvement is eligible for the Code Sec. 25C tax credit; installation costs are ineligible. For example, the costs associated with installing a qualified electric heat pump are eligible for the Code Sec. 25C tax credit but costs associated with installing a qualified metal roof are ineligible. 

Lifetime limits

The 2010 Tax Relief Act set the maximum Code Sec. 25C credit allowable is $500 over the lifetime of the taxpayer. The $500 amount must be reduced by the aggregate amount of previously allowed credits the taxpayer received in 2006, 2007, 2009, and 2010.  This provision can complicate planning for the Code Sec. 25C credit because Congress made changes to the credit before and after 2009, particularly regarding the lifetime limit.

Let’s look at an example.  Amanda qualified for a $400 Code Sec. 25C tax credit in 2006. The maximum credit allowable is $500 over her lifetime. This means that Amanda can get an additional Code Sec. 25C tax credit of up to $100 in 2011.

Under the 2010 Tax Relief Act, no more than $200 of the Code Sec. 25C credit may be attributable to expenditures on exterior windows and skylights. Taxpayers must reduce the $200 amount by the aggregate amount of previously allowed credits for windows and skylights that the taxpayer received in 2006, 2007, 2009, and 2010.

Dollar limits

Additionally, certain dollar limitations apply to various improvements. For property placed in service in 2011, the dollar limits are $300 for any item of qualified energy-efficient property; $50 for an advanced main air circulating fan; and $150 for any qualified natural gas, propane or oil furnace or hot water boiler.

Energy standards

Moreover, the qualified energy-efficient property must meet standards set by the by the 2009 International Energy Conservation Code (IECC). The 2010 Tax Relief Act treats exterior windows, skylights and exterior doors are qualified energy efficiency improvements if they meet the Energy Star Program requirements in 2011.

Certification statements

Many energy-efficient improvements come with a manufacturer’s certification statement.  The statement indicates if the improvement qualifies for the tax credit.  It is not necessary to submit a copy of the manufacturer’s certification statement with the individual’s tax return, but taxpayers should keep a copy of the certification statement for their records.

Another credit

The Code Sec. 25D tax credit also is intended to reward taxpayers for making certain energy-efficient improvements. The Code Sec. 25C tax credit covers items such as geothermal heat pumps, solar water heaters, solar panels, and small wind energy systems. Many of the rules for the Code Sec. 25D tax credit are similar to the Code Sec. 25C tax credit but there are some differences. For example, the Code Sec. 25D credit has no lifetime limit. If you are considering making one of these improvements, please contact our office for more details about this tax credit.

Form 5695

Taxpayers claim the Code Sec. 25C tax credit on Form 5695, Residential Energy Credits. The IRS has identified some abuses of the Code Sec. 25C tax credit and it intends to make revisions to Form 5695 to curb fraudulent claims and verify eligibility for the credit. These changes are expected to appear on the Form 5695 that taxpayers will file in 2012.

If you have any questions about the Code Sec. 25C tax credit, please contact our office.

The IRS has announced that it will discontinue the high-low method used by taxpayers in a trade or business to substantiate travel expenses incurred while away from home.  The method, developed by the IRS, applies to travel expenses for meals, lodging and incidental expenses. It not only has provided a short-cut method for employers to cover the paperwork required to substantiate business travel deductions but in the past it has also helped the IRS streamline certain audits.

Background

Under the high-low method, the IRS provides optional per diem allowances that employers and employees are deemed to have substantiated.  The method can be used in lieu of substantiating actual travel-related expenses. The per diem amounts also satisfy the requirement that employees provide the employer with an adequate accounting of meal and lodging expenses.

The IRS publishes a list of localities classified as high-cost areas under the high-low method.  All other localities in the continental United States (CONUS) are classified as low-cost areas. The maximum per diem rate for high-cost areas is $233 for travel on or after October 1, 2010.  This represents $168 for lodging and $65 for meals and incidental expenses (M&IE).  The per diem rate for low-cost areas on or after October 1, 2010, is $160, which represents $108 for lodging and $52 for M&IE.

Waning interest

The IRS requested comments in 2010 on whether to continue the method and received no comments. The IRS interpreted such lack of interest as the deciding reason to discontinue the method.  It also reportedly has found the collection of data, as well as the politics that went into designating an area as “high cost,” growing more difficult when compared to the value of continuing the method in an environment in which digitized travel receipts are now so easily available. Taxpayers currently using the high-low method, however, can anticipate continuing to use it through 2011.

More guidance to come

Later in 2011, the IRS promises to issue a new revenue procedure, without the high-low method, that will provide general rules and procedures for substantiating lodging, meals and incidental expenses incurred in business travel away from home.  It is unlikely that the IRS will issue high-low rates for 2012.

Government employers use the per diem method widely, practitioners report.  Private industry, however, generally prefers to reimburse employees based on actual receipts and, therefore, only a small percentage of private businesses will expected to miss using the high-low method to substantiate travel expenses.

Taxpayers that place new business assets other than real property in service through 2012 may claim a "bonus" depreciation deduction. Although the bonus depreciation deduction is generally equal to 50 percent of the cost of qualified property, the rate has been increased by recent legislation to 100 percent for new business assets acquired after September 8, 2010 and placed in service before January 1, 2012. Thus, the entire cost of such 100 percent rate property is deducted in a single tax year rather than over the three- to 20-year depreciation period that is normally assigned to the property based on its type or the business activity in which it is used.

Every business should consider taking advantage of 100 percent bonus depreciation while it is available this year. Ironically, the benefits of 100 percent bonus depreciation are so favorable that some of the regular tax rules standing guard under normal circumstances to prevent abuses are being unintentionally triggered. The IRS has now come to the rescue with a few clarifications, elections and workarounds, in the form of Rev. Proc. 2011-26.

The most important clarifications/elections provide:

--A taxpayer is deemed to acquire qualified property when it pays or incurs the cost of the property.

--Bonus depreciation may be claimed at the 100 percent rate even though a pre-September 9, 2010 binding acquisition contract was in effect provided the contract was not in effect before January 1, 2008.

--Qualified property that a taxpayer manufactures, constructs, or produces is considered acquired by the taxpayer when the taxpayer begins constructing, manufacturing, or producing that property.

--A taxpayer may elect to claim 100 percent bonus depreciation on a component of a larger property if the component is acquired after September 8, 2010 even though manufacture, construction, or production of the larger property began before September 9, 2010.

--A taxpayer may elect the 50 percent rate in place of the 100 percent rate but only in a tax year that includes September 9, 2010.

Election Procedures for 2009/2010 FY Taxpayers

Special procedures that mainly affect fiscal-year (FY) 2009-2010 taxpayers who filed returns prior to the reinstatement of bonus depreciation for the 2010 calendar year explain how to claim or not claim the bonus deduction on property placed in service in 2010.

"Safe Harbor" Enhances Bonus Depreciation for Cars

The guidance also provides an important benefit to taxpayers who purchase a new automobile in 2010 or 2011 that is eligible for the 100 percent bonus rate but which is subject to annual depreciation caps because the vehicle has a gross vehicle weight rating of 6000 pounds or less. The benefit comes in the form of a "safe harbor method of accounting," which allows a taxpayer to claim depreciation deductions in each year of the vehicle's depreciation period.

If this safe harbor method of accounting is not adopted, a taxpayer may only claim a depreciation deduction in the tax year that the vehicle is purchased and that deduction is limited to the amount of the first-year depreciation cap ($11,060 for cars and $11,160 for trucks and vans placed in service in 2010).

If the safe harbor method is adopted, a taxpayer may claim the amount of the first-year depreciation cap in the year the vehicle is purchased plus additional amounts in each of the next five tax years of the vehicle's regular depreciation period.

In most cases, the amount of depreciation allowed in each year of a vehicle's recovery period under the safe harbor method is the same amount that could have been claimed if the 50 percent bonus rate applied.