Tax Blog/Blawg

For better or worse, many a tax dispute has been won or lost on procedure, often on the question of whether a document - be it a tax return, refund claim, or petition - was timely filed.  The centrality of this issue helps explain the renown of the otherwise unremarkable "mailbox rule" (a.k.a. the "timely-mailing-is-timely-filing rule").

The attached article, published in the International Tax Review, examines a recent case, Dietsche v. Commissioner, in which the Tax Court ruled that a petition mailed from New Zealand and postmarked the day after its due date was not timely filed ...

Nowadays, newspapers and tax journals often contain articles about international tax issues, particularly the duty of U.S. persons to file an annual Form TD F 90-22.1 ("FBAR") to report their interests in foreign financial accounts.  As general knowledge of the FBAR increases, the chances of taxpayers avoiding penalties on grounds that they did not act "willfully" decrease. Nevertheless, one recent case fought before both the Tax Court and a federal district court, in United States v. Williams, 09-cv-437 (E.D. Va. 2010), offers support for the notion that where there's no will ...

Much confusion has existed over the past few years about filing Form TD F 90-22.1 ("FBAR") to report foreign accounts to the IRS.  To remedy this, the IRS issued pronouncements in 2009 and 2010 granting certain FBAR filing exemptions and penalty waivers.  Many of these benefits had retroactive effect.  A recent criminal case, United States v. Simon, calls into question the validity of the IRS pronouncements.  By holding that the U.S. Department of Justice may pursue criminal prosecutions in situations where the IRS publicly indicated that it would not even assert civil penalties, this ...

TaxBlawg’s Guest Commentator, David L. Bernard, is the former Vice President of Taxes for Kimberly-Clark Corporation, a past president of the Tax Executives Institute, and a periodic contributor to TaxBlawg.

Transfer pricing among affiliated companies is the classic “double-edged sword”. When carefully designed, transfer pricing practices can cut a company’s effective tax rate (“ETR”) with little risk of interference from tax authorities. When done poorly, transfer pricing can devolve into a mess of  ETR-killing practices.  As quickly as one edge can save a company money, the other edge can cut short a tax professional’s career.

Since codification of the economic substance doctrine in March 2010, taxpayers have expressed fears that IRS will assert the doctrine unpredictably, resulting in an in terrorem effect among taxpayers because of the lack of clear authorities interpreting the doctrine and the new 40% strict-liability penalty for falling on the wrong side of it.  To promote predictability in the exam processes, taxpayers have requested that Treasury or the IRS issue formal guidance instituting prescribed procedures to assert the penalty.  The government had declined these requests, but officials have promised queasy taxpayers that IRS will only assert the penalty after certain approvals.  For example, in September, LMSB Commissioner Heather Maloy issued a directive mandating that any assertion of the penalty during exam must be approved by the appropriate director of field operations.  Then, as reported by Tax Analysts, Associate Chief Counsel (Procedure and Administration) Deborah Butler said in October that Chief Counsel would review any notice of deficiency that applied the economic substance penalty before it was sent to the taxpayer.

At Chamberlain, we are very proud of our colleagues’ efforts on behalf of pro bono clients.  Two of our attorneys, Juan Vasquez, Jr. and Jaime Vasquez of the firm's Houston office, along with Peter Lowy of Shell Oil Company, recently argued a pro bono case in front of the Fifth Circuit Court of Appeals in Terrell v. Comm’r.

The Fifth Circuit reversed and remanded a U.S. Tax Court ruling which dismissed the taxpayer’s petition for lack of jurisdiction because she filed her petition more than 90 days after the IRS sent her a Notice of Final Determination.  Noting that the IRS was on ...

One of our readers recently emailed us with a question about the application of the new Schedule UTP to deferred tax assets.  The question is straightforward enough: must uncertain positions involving deferred tax assets be reported on Schedule UTP and, if so, when must they be reported?  The explanation, thanks to confusion created by several examples in the final Schedule UTP instructions, is anything but straightforward.  Let’s start with a little background.

Some of my clients would tell you that there never was such a thing as a “kinder, gentler” Internal Revenue Service, but over the years different attitudes have prevailed in that organization and yes, I can attest that there was an unquestionably kinder as well as gentler organization not long ago.  For a brief time in the late 1980s, when Lawrence Gibbs was Commissioner, he encouraged IRS employees to look upon taxpayers as their “clients.”  He left the position before he had been able to transform the attitude of the organization to something along those lines.  Following the passage of the IRS Restructuring and Reform Act of 1998, as well as a reorganization, the IRS once again went on a “charm offensive,” including regularly scheduled taxpayer service days to try to help taxpayers resolve problems that didn’t seem to be working out on their own.

The Internal Revenue Service on Friday released the final version of the much-anticipated Schedule UTP (and accompanying instructions) as well as additional guidance about changes that had been made the schedule.  At the same time, the IRS also announced an expansion of the Compliance Assurance Program (CAP) as well as some other minor matters.  In the face of much criticism of the draft Schedule UTP and instructions, the IRS made a numbers of significant adjustments; however, several issues remain unresolved.

Last week, the IRS issued a proposed regulation that would generally require corporations to attach Schedule UTP (Uncertain Tax Position Statement) to their returns.  The regulation effectively would give the IRS authority to require that the schedule be filed; but the issuance of the regulation raises an interesting question: is the IRS setting the stage to argue that the requirement to file Schedule UTP should be permitted on the basis of deference to the IRS’s regulatory authority?