EMPLOYER PROTECTED FROM LIABILITY FOR IRS LEVY ON EMPLOYEE WAGES

The IRS issued a levy to US Airways in regard to the tax liability of an employee. US Airways garnished the wages of the employee and paid them over to the IRS.

The employee was not pleased, and sued US Airways, claiming it should not have complied with the levy. Two reasons were provided. The first was that US Airways failed to ensure the levy was valid. The second was that the employee had indicated on his W-4 that his wages were exempt, and thus should not have been subject to garnishment.

The District Court threw out the lawsuit. Code §6332(e) provides protection to persons satisfying an IRS levy. It reads:

Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1) ) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.

Valid or not, the employer had no responsibility for challenging the levy, and indeed had no standing to do so even if it wanted to. The fact that the employee’s wages were characterized on the W-4 as “exempt” did not change the employer’s obligation to comply with the IRS’ levy.

All this makes perfect sense from a policy standpoint. If property holders can contest levies they receive relating to property they hold of a taxpayer, collection by the IRS would be impaired by persons without a direct interest in the subject property. That being said, a grant of immunity to the party receiving the levy for complying with a levy that they have no ability to contest is both necessary and proper.

Gust v. US Airways, 108 AFTR 2d ¶2011-5603 (DC NC 12/16/2011)

PENALTIES ON UNREPORTED FOREIGN TRUSTS MUST BE PAID IN FULL TO OBTAIN DISTRICT COURT OR CLAIMS COURT JURISDICTION

Taxpayers that desire to contest an IRS assertion of tax liability in Federal district court or the Court of Federal Claims must first FULLY pay the asserted tax liability, and then sue for a refund. If the liability is high enough, a taxpayer may be unable to afford to do this.

However, under the “divisible tax” analysis, some tax penalties may be divisible from others – when that analysis applies, the taxpayer can only pay some and not all of them, and still get to court by suing for a refund. In a recent Chief Counsel Advice, the issue was raised whether Code §6048 penalties failures to report contributions to, ownership of, and distributions from foreign trusts are “divisible taxes” that would allow for less than all asserted penalties to be paid and still allow a refund suit.

At first, such penalties would appear to be divisible, since different penalties arise under Code §6048 for different types of failures to report, and because multiple tax years may be involved. Nonetheless, the IRS concluded that Code §6048 penalties are NOT divisible. Thus, taxpayers seeking to get to district court or the Claims Court will need to first prepay all asserted penalties in full.

The theory of the CCA was that if payment of only one portion of the penalty was sufficient for jurisdiction, the court nonetheless would have full jurisdiction of all the asserted penalties. Further, different reasonable cause defenses against different portions of the penalty could be argued by the taxpayer. The CCA concluded that this was inconsistent with the theory of a “divisible tax,” and thus partial payment would not give rise the sought after jurisdiction.

There are two important provisos to this determination. First, this is only the IRS’ position, and thus a taxpayer could contest that determination in court. Second, the CCA notes that if the taxpayer is willing to drop its opposition to the unpaid tax portion, it could proceed to obtain court jurisdiction over a portion of the penalties asserted by paying just those penalties first.

Chief Counsel Advice 201150029

SOUTH FLORIDA PRESENTATION – FORM 8939 FOREIGN FINANCIAL ASSET DISCLOSURES – THE WHO, WHAT & HOW, INCLUDING COMPLIANCE TRAPS AND TIPS

For those readers who are situated in South Florida, I am giving you first crack at seats to a complementary small group presentation I will be giving at our firm office on several Fridays in January on the above topic. As you may be aware, substantial new reporting requirements relating to foreign financial assets apply to income tax returns due for the 2011 tax year.

Click the link to download the full invite which will go out to a broader audience in the next few days. The invite has the dates and times and RSVP information. Since space is limited, please call or email (the instructions are on the invite) as soon as practicable to reserve a space if you are interested.

For any larger organizations within decent driving range (Palm Beach to Ft. Lauderdale) that have 5 or more interested persons, I would be happy to schedule a visit to your office to make the presentation (if my schedule permits) – feel free to contact me at crubin@floridatax.com in that regard.

Invitation

RETURN PREPARERS FACE STRICTER DUE DILIGENCE ON EARNED INCOME CREDIT RETURNS

The earned income credit (EIC) can provide tax refunds to qualified low income taxpayers. Due to faulty submissions (intentional or unintentional), efforts have escalated over the years to pressure preparers to limit filings to eligible cases only – that is, to get preparers to police this area. For example, in 1997 a penalty of $100 was added for preparers who fail to comply with due diligence requirements in determining eligibility for the EIC.

More recent changes to the law and regulations have ramped up the compliance burden. For example, earlier this year, the preparer penalty was increased to $500 (Code §6695(g)). Now, the IRS has issued proposed and final Regulations that affect this area.

Previously to avoid the penalty, a preparer had to prepare an Eligibility Checklist (Form 8867) and a Computation Worksheet, and retain them for three years. Under proposed Regulations that were issued on December 19, the Form 8867 would now be required to be submitted with the filed tax return. The three year retention period may also be extended in some circumstances under the proposed Regulations, and other changes have been made under both the proposed and final regulations.

Preparers that prepare EIC claims should review the new Regulations to minimize their exposure to the increased preparer penalty.

T.D. 9570, 12/19/2011, Reg. § 1.6695-2

APPLICABLE FEDERAL RATES–JANUARY 2012

TIME TO RENEW PTIN’S

In an effort to stake out its own piece of the regulatory State, the IRS now requires return preparers to register with them and obtain a Preparer Tax Identification Number (PTIN), for returns filed after 12/31/10. For preparers with PTINs, the first renewal date is now coming up.

PTIN holders will need to go online to http://www.irs.gov/ptin to renew before December 31, 2011. PTIN holders will have to pay $63 for the privilege of being regulated.

For more information on the PTIN requirements and how to renew, consult IRS News Release 2011-119.

IR 2011-119.

DRAFTING ATTORNEY WHO IS ALSO BENEFICIARY MAY CONTEST WILL [FLORIDA]

[This article was prepared by Sean Lebowitz of our office]

The Agee v. Brown* decision has been a highly talked about recent 4^th DCA opinion among Florida estate planners and probate litigators. In Agee, an attorney prepared a Will (“2007 Will”) for the Decedent naming himself and his wife as beneficiaries of real property. Two years later, the Decedent went to a different attorney and prepared a subsequent Will (“2009 Will”) that removed the attorney and his wife as beneficiaries.

When the Decedent passed away, the Personal Representative sought to have the 2009 Will admitted into probate. The drafting attorney of the 2007 Will filed a Petition to Revoke Probate which alleged the 2007 Will is the last valid Will of the Decedent.

In response, the Personal Representative filed a Motion to Dismiss which alleged that the drafting attorney lacked standing to contest the 2009 Will. The Motion to Dismiss asserted that the drafting attorney’s bequest in the 2007 Will is void since it is in violation of the Rules Regulating the Florida Bar. In particular, Rule 4-1.8(c) does not permit an attorney to prepare an instrument for a client which gives the attorney or a person related to the attorney a substantial gift unless the recipient of the gift is related to the client. In the instant case, the drafting attorney and his wife were not related to the Decedent. The Probate Court granted the Personal Representative’s Motion to Dismiss and determined that the drafting attorney lacked standing to contest the 2009 Will because his bequest in the 2007 Will was void due to public policy.

The Fourth District Court of Appeal reversed the Probate Court and found that notwithstanding his ethical violation, the drafting attorney did have standing to contest the 2009 Will. The Appellate Court determined that the Probate Code does not provide any exception to prohibit a drafting attorney who is also a substantial beneficiary from contesting a will. Instead, the Probate Code simply permits an “interested person” to file an action contesting a Will. “Interested person” is defined very broadly in the Probate Code, allowing any person reasonably affected by the proceeding to file an action. The Appellate Court conservatively analyzed the Probate Code and found that the Probate Court imputed ethical rules not found in the Probate Code.

*Disclaimer: Our firm represents the Appellee/Respondent, Mr. Brown, in his capacity as Personal Representative and Trustee in the probate and trust litigation.

CONSERVATION EASEMENTS–USING THE IRS AUDIT MANUAL TO AVOID ISSUES

An owner of real property that donates a conservation easement to a qualified organization may be able to deduct the value of the easement for income tax purposes. Such a deductible contribution requires the contribution of a qualified real property interest to a qualified organization exclusively for conservation purposes. A qualified real property interest is a restriction granted in perpetuity on the use, modification, and development of property such as parks, wetlands, farmland, forest land, scenic areas, historic land or historic structures.

The IRS has revised it Conservation Easement Audit Techniques Guide as of September 30, 2011. This lengthy guide should be reviewed by those structuring such contributions to assure compliance with all statutory and regulatory requirements.

Exhibit 12-1 is especially beneficial since it provides an all-inclusion list of potential issues. It includes general problems that may arise with charitable contributions, deficiencies in the appraisal process, deficiencies as to the perpetuity requirements, deficiencies as to the recipient organization, and deficiencies as to the requisite conservation purpose. The list is a gift for planners and return preparers – it should be used as a checklist for planning and compliance.

For those with an interest, I have reproduced the Exhibit 12-1 issue list below:

Conservation Easement Audit Techniques Guide

NO 15% RATE ON CONTROLLED FOREIGN CORPORATION INCOME INCLUSION

Under the Controlled Foreign Corporation (CFC) rules, U.S. shareholders of foreign corporations will have to include in their income their pro rata share of the CFC’s income on a pass-through basis under certain circumstances. Such inclusion can be required in the year the income is earned, or in a later year if and to the extent the CFC invests its untaxed earnings in U.S. property. Such income is included in the shareholder’s income at ordinary income rates, like a dividend.

Hmm, like a dividend. Does that mean the U.S. shareholder can pay tax on this income at the preferential 15% rates presently allowed for qualified dividend income under Code §1(h)(11) if the CFC is otherwise a qualified foreign corporation?

I think most international tax planners would tell you the answer is no. While the Code taxes these inclusions as ordinary dividend like a dividend, it does not actually characterize them as dividends. There are plenty of other situations in the Code when it will specifically characterize a deemed distribution or other amount as a deemed dividend, but that language is not present in the CFC rules.

This analysis didn’t stop at least one taxpayer from reporting this income relating to the reinvestment of CFC earnings in U.S. real property as a dividend to be taxed under the reduced rates, to the tune of about $3 million in income. The IRS challenged the treatment, and the taxpayer took the issue to the Tax Court. The Tax Court took the side of the IRS, and disallowed the application of the 15% maximum tax rate.

The Tax Court noted the items above, such as the lack of an explicit dividend label to the CFC income inclusion, and that Congress has given that label in other areas when it intends such treatment. The taxpayer did note that the 2004 instructions to Form 5471, Information Return of U.S. Persons With Respect To Certain Foreign Corporations, indicated that individual CFC shareholders should report section 951 inclusions as “ordinary dividend income.” Nonetheless, the Court noted that there were other instructions to the contrary that accompanied that Form, and further that “taxpayers cannot rely on Internal Revenue Service instructions to justify a reporting position otherwise inconsistent with controlling statutory provisions.”

Osvaldo Rodriguez, et ux. v. Commissioner, 137 T.C. No. 14,

ADD ANOTHER EXCEPTION TO DISREGARDED ENTITY TREATMENT

The Treasury Department greatly simplified tax planning and compliance with the check-the-box regulations. One aspect of those regulations is that certain single-owner entities (either by default or via the check-the-box election) are entirely disregarded for all federal tax purposes.

Or that is how it started. As time has progressed, so have the number of exceptions to disregarded status that have been promulgated. Making the job of tax professionals more difficult, there is no centralized list of the exceptions to disregarded entity treatment. Instead, they are scattered in various regulations, creating traps for unwary taxpayers and planners. Planners would be well-served by maintaining their own cheat sheet of exceptions to these rules to make sure that a particular transaction is not covered by an exception.

A new exception now has been added to the list. Under final regulations issued under Section 881, the IRS can treat a disregarded entity in a financing structure as a person separate from its owner (that is, as a non-disregarded entity), in determining whether a financing arrangement exists that should be recharacterized under the multiple-party financing rules of Code §7701(l) and Treas. Regs. §1.881-3. These rules allow the IRS to disregard the participation of one or more intermediate entities in a financing arrangement and recharacterize the financing arrangement as a transaction directly between other parties. It will often be applied where intermediate entities are employed by taxpayers to obtain treaty or other tax benefits that would not be available if a financing transaction was directly conducted between the ultimate lender and borrower.

T.D. 9562, 12/08/2011; Reg. § 1.881-3

GRANTOR’S ABILITY TO SUBSTITUTE ASSETS IN A LIFE INSURANCE TRUST NOT A PROBLEM

Planners often grant Code §675(4) power of substitution rights to a grantor of a trust to create a grantor trust (i.e., a trust whose income is taxable to the grantor). That provision creates a grantor trust if the grantor has the power in a nonfiduciary capacity, without the approval or consent of any person in a fiduciary capacity, to reacquire trust corpus by substituting other property of an equivalent value.

Such planning was given a boost in Rev.Rul. 2008-22 which provided that such a power, when properly structured, will not result in estate tax inclusion of the trust assets in the gross estate of the grantor. Thus, the advantages of grantor trust status can be obtained without the cost of estate tax inclusion.

However, if the trust involved is an irrevocable trust holding a life insurance policy, the use of a power of substitution has raised the issue whether gross estate exclusion will apply as to the life insurance policy or proceeds. More particularly, the issue has been whether such a power of substitution constitutes an “incident of ownership” by the grantor in the insurance policy that results in gross estate inclusion at death under Code §2042.

The IRS has now ruled that such a power of substitution will NOT create an incident of ownership in the grantor. Thus, such grantor trust planning will not be problematic for trusts owning life insurance.

Note that Crummey withdrawal rights in a beneficiary, which are often used in life insurance trusts, will not defeat grantor trust status as to the grantor.

In relying on the ruling, planners should attempt to come as close as possible to the facts of the ruling as practicable, including:

1. The grantor is not the trustee.
2. The trust terms prohibit the grantor from serving as trustee.
3. The grantor has no power to revoke, alter, amend, or terminate the trust.
4. The substitution power is exercisable in a nonfiduciary capacity, without the approval or consent of any person acting in a fiduciary capacity.
5. The grantor must certify equivalent values when exercising the substitution power.
6. The trustee has a fiduciary obligation to confirm equivalent values on a substitution.
7. The trustee has a duty under local law to act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries, if there is more than one beneficiary.
8. The trustee has discretionary power to acquire, invest, reinvest, exchange, sell, convey, control, divide, partition, and manage the trust property in accordance with the standards provided by law.

Code §677(a)(3) provides that income of a trust that may be applied to premiums on a policy insuring the grantor’s life creates a grantor trust. That being the case, an argument can be made that another grantor trust power, such as a substitution power, is not needed to create a grantor trust. However, the benefit of this ruling is that there is some uncertainty regarding whether Code §677(a)(3) creates a fully grantor trust, or only a partial grantor trust equal to the amount of the insurance premiums.

Many life insurance trusts do not earn income, so grantor trust status may not be needed. However, at other times, grantor trust is desired. For example, the trust may be funded with other income earnings assets, to help pay premiums or to be used for other purposes. Also, grantor trust status may be desirable so as to allow the trust to be funded with noncash assets via a sale to a defective installment trust.

Rev. Rul. 2011-28, 2011-49 IRB 830, 12/01/2011

SPECIAL OFFSHORE COMPLIANCE RELIEF MAY BE COMING FOR CANADIAN ACCOUNTS

IRS compliance initiatives in 2010 and 2011 have focused attention on the U.S. requirements for disclosure of non-U.S. accounts, and the penalties that apply for nondisclosure. For the past 2 years, the IRS has provided special initiative mechanisms for late reporting that involve reduced penalties, or no penalties under some circumstances.

It looks as if there may be country-specific relief coming, with the first relief to come to U.S. persons with accounts in Canada, at least according to this article.

STATE TAX BURDENS

Bloomberg just published an article that does a state-by-state analysis of state tax burdens.

The 5 states with the highest state tax burdens are Connecticut, New Jersey, New York, Massachusetts, and Maryland (interestingly, all in the Northeast).

The 5 with the lowest burdens are Mississippi, South Carolina, Tennessee, Alabama, and Alaska. Many of these states nonetheless have both an income and sales tax.

Florida (my state) is considered a tax haven because it lacks an income tax and an inheritance tax. It apparently did not make the lowest 5 due to the significant real property taxes collected. The article noted the following about Florida:

Retirees have good financial reasons to flock to Florida. It has no state tax on Social Security, no tax on capital gains, and no inheritance tax. Revenue must come from somewhere, though, so property taxes per capita rank in the nation's top 10. Florida Governor Rick Scott pushed for major cuts to the corporate income tax rate and to state fees during the last fiscal year. The legislature passed more than $300 million of the cuts, including lower fees for a driver's license and car registration.

You can read the full report here.

THE FUTURE OF TRANSFER TAXES (WITH A DEMOCRAT CONTROLLED CONGRESS AND WHITE HOUSE)

For a view on what may happen to federal estate and gift taxes should President Obama be reelected and the Democrats win enough seats in Congress, tax a look at the recently introduced “Sensible Estate Tax Act of 2011.” A wish list of tax increases, the Act proposes:

• raising the maximum estate and gift tax rate, and the GST rate to 55%;
• lowering the applicable exclusion amount to $1 million. This would include indexing for inflation after 2012, but with adjustments going back to 2000;
• restricting valuation discounts on investment assets;
• restoring the state death tax credit;
• eliminating GST exemption benefits after 90 years;
• requiring a minimum 10 year term for GRAT’s.

Of course, the first of these items will occur automatically in 2013 under current law even without the passage of a new law.