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Posts Tagged ‘Internal Revenue Service’

Statutory glitch reduces portable estate tax exclusion for some surviving spouses

Thursday, March 31st, 2011 by Moore McLaughlin

Effective for estates of decedents dying after 2010 and before 2013, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (2010 Tax Relief Act) allows a deceased spouse’s unused estate tax exclusion to be shifted to the surviving spouse. The Joint Committee on Taxation (JCT) has released an errata sheet pointing out an error in the statutory language defining “deceased spousal unused exclusion amount.” As explained below, the current statutory language may result in a lower-than-intended exclusion for the surviving spouse of an individual who was previously married and received a portable estate tax exclusion from his or her former spouse. The JCT says a technical correction may be needed to fix the defect.

Background. A credit (the “unified credit”) is allowed against the estate tax imposed on U.S. citizens and residents. The credit is equal to the tentative tax on the “applicable exclusion amount,” determined under the estate tax rate schedule.

Pre-2010 Tax Relief Act law did not allow for any unused portion of a decedent’s applicable exclusion amount to be used by the estate of the decedent’s surviving spouse.

Portable exclusion. Under the 2010 Tax Relief Act, for estates of decedents dying after 2010 and before 2013, the applicable exclusion amount is the sum of (1) the “basic exclusion amount” and (2) in the case of a surviving spouse, the “deceased spousal unused exclusion amount.”

The basic exclusion amount is $5 million with an adjustment for inflation after 2011.

The “deceased spousal unused exclusion amount” is the lesser of:

(1) the basic exclusion amount, or

(2) the excess of the basic exclusion amount of the last deceased spouse dying after December 31, 2010, of the surviving spouse, over the amount on which the tentative tax on the estate of the deceased spouse is determined.

A deceased spousal unused exclusion amount may not be taken into account by a surviving spouse unless the executor of the estate of the deceased spouse files an estate tax return on which the amount is computed, and makes an election on the return that the amount may be taken into account by the surviving spouse. The election, once made, is irrevocable. No election may be made if the estate tax return of the deceased spouse is filed after the due date (including extensions) for filing the return.

A surviving spouse may use the deceased spousal unused exclusion amount in addition to his or her own $5 million exclusion for taxable transfers made during life or at death.

Illustration 1: Husband 1 dies in 2011, having made taxable transfers of $3 million and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. As of his death, Wife has made no taxable gifts. Thereafter, Wife’s applicable exclusion amount is $7 million (her $5 million basic exclusion amount plus $2 million deceased spousal unused exclusion amount from Husband 1), which she may use for lifetime gifts or for transfers at death. (Committee Report)

If a surviving spouse is predeceased by more than one spouse, the amount of unused exclusion that is available for use by the surviving spouse is limited to the lesser of $5 million or the unused exclusion of the last deceased spouse. This so-called “last deceased spouse” limitation applies whether or not the last deceased spouse has any unused exclusion, and whether or the estate of the last deceased spouse makes a timely election to allow the surviving spouse to use the deceased spousal unused exclusion amount.

Illustration 2: Assume the same facts as in illustration (1), except that Wife subsequently marries Husband 2. He predeceases Wife, having made $4 million in taxable transfers and having no taxable estate. An election is made on his estate tax return to permit Wife to use his deceased spousal unused exclusion amount. Although the combined amount of unused exclusion of Husband 1 and Husband 2 is $3 million ($2 million for Husband 1 and $1 million for Husband 2), only Husband 2′s $1 million unused exclusion is available for use by Wife because the deceased spousal unused exclusion amount is limited to the lesser of the basic exclusion amount ($5 million) or the unused exclusion of the last deceased spouse of the surviving spouse. Thereafter, Wife’s applicable exclusion amount is $6 million (her $5 million basic exclusion amount plus $1 million deceased spousal unused exclusion amount from Husband 2), which she may use for lifetime gifts or for transfers at death. (Committee Report)

Remarried surviving spouses who predecease new spouse. The following illustration, based on an example in the Committee Report, says that if a surviving spouse remarries, and then dies survived by a new spouse, the deceased spousal unused exclusion amount included for the surviving spouse’s estate is determined by taking into account the deceased spouse’s applicable exclusion amount and not just the basic exclusion amount.

Illustration 3: Assume the same facts as in Illustrations 1 and 2, except that Wife predeceases Husband 2. Following Husband 1′s death, Wife’s applicable exclusion amount is $7 million (her $5 million basic exclusion amount plus $2 million deceased spousal unused exclusion amount from Husband 1). Wife made no taxable transfers and has a taxable estate of $3 million. An election is made on Wife’s estate tax return to permit Husband 2 to use Wife’s deceased spousal unused exclusion amount, which is $4 million (Wife’s $7 million applicable exclusion amount less her $3 million taxable estate). Under the provision, Husband 2′s applicable exclusion amount is increased by $4 million, i.e., the amount of Wife’s deceased spousal unused exclusion amount. (Committee Report)

This view does not seem to reflect Code Sec. 2010(c)(4), which states that the deceased spousal unused exclusion amount equals the lesser of the basic exclusion amount (i.e., $5 million), or the excess of the basic exclusion amount of the last deceased spouse of such surviving spouse over the amount on which the tentative estate tax is determined under Code Sec. 2001(b)(1) on the estate of such deceased spouse. Rather, under the current statutory language, Husband 2′s applicable exclusion amount would seem to be increased by only $2 million.

The JCT Errata sheet confirms that the current statutory language does not support the conclusion in Illustration 3. It does so by adding a footnote to the example in the Committee Report on the 2010 Tax Relief Act. The footnote states that a technical correction may be necessary to replace the reference to the basic exclusion amount of the last deceased spouse of the surviving spouse with a reference to the applicable exclusion amount of such last deceased spouse, so that the statute reflects Congressional intent.

Under the technical correction, Husband 2′s applicable exclusion amount would be increased by $4 million.

Under the technical correction, it would be possible for the new spouse’s applicable exclusion amount to exceed $10 million, the combined amount of the basic exclusion amount of the surviving spouse and the new spouse. For example, if, in Illustration 3, the Wife’s taxable estate were only $1 million, then Husband 2′s applicable exclusion amount would be increased by $6 million (Wife’s applicable exclusion amount of $7 million less $1 million of taxable transfers). Thus, Husband 2′s applicable exclusion amount would be $11 million (Wife’s spousal unused exclusion amount of $6 million, plus Husband 2′s basic exclusion amount of $5 million).

Allowing a surviving spouse to wind up with a more than $10 million applicable exclusion amount is somewhat inconsistent with the last spouse limitation. That’s because the last spouse limitation prevents a spouse who survived two or more deceased spouses from getting an applicable exclusion amount that exceeds the combined basic exclusion amounts of a husband and wife. This combined figure presently is $10 million, but could exceed $10 million with inflation adjustments after 2011.

There is no word on when this or any other technical corrections may be forthcoming. Hopefully, IRS will address the matter when it provides guidance on the new portable exclusion.

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Tags: applicable exclusion amount, asset protection, Asset Protection Planning, basic exclusion amount, deceased spousal unused exclusion amount, elder law, elderlaw, Elderlaw/Law For Life, Estate Planning, Estate tax, estate tax exclusion, Internal Revenue Service, IRS, Jill E. Sugarman, Jill Sugarman, Joint Committee on Taxation, mclaughlin & quinn, Moore McLaughlin, portable estate tax exclusion, Providence, Rhode Island, seniors, surviving spouse, tax, Tax planning, unified credit
Posted in Asset Protection Planning, Elderlaw/Law For Life, Estate Planning, Tax Current Events and News, Tax planning

Failure to use qualified escrow account in attempted 1031 exchange resulted in taxable gain

Tuesday, March 1st, 2011 by Moore McLaughlin

The Tax Court has recently determined that taxpayers’ failure to use a qualified escrow account in an attempted like-kind exchange rendered them ineligible for nonrecognition of gain under Code Sec. 1031. As a result, they wound up with taxable gain on the surrendered property. Ralph E. Crandall, Jr. and Dene E. Dulin, TC Summary Opinion 2011-14.

Background. A taxpayer generally recognizes gain or loss upon the sale or exchange of property. However, neither gain nor loss is recognized under Code Sec. 1031 on an exchange of property if:

… the taxpayer exchanges property held for productive use in a trade or business or for investment for other property to be held for productive use in a trade or business or for investment;

… the relinquished property and the replacement property are of “like kind”; and

… the replacement property is identified and the exchange is completed within statutory time limits.

If a two-party like-kind exchange is impractical or undesirable, a taxpayer may still be able to get the benefits of Code Sec. 1031 by arranging a multi-party deferred exchange. In a deferred exchange, the replacement property must be (i) identified within 45 days after the taxpayer transfers the relinquished property, and (ii) received by the earlier date of 180 days after the taxpayer transfers the old property or the due date of the taxpayer’s return for the year (including extensions).

To qualify as a deferred exchange, the transaction must be an exchange of property, not a transfer of property for money. The reinvestment of the proceeds from a cash sale of one property into a second property of like-kind will not qualify as a Code Sec. 1031 exchange.

The taxpayer isn’t treated as actually or constructively receiving money or other property before he receives like-kind replacement property solely because the obligation of the transferee to transfer replacement property to the taxpayer is secured by cash or its equivalent, provided the security is held in a qualified escrow account or qualified trust. An escrow account is “qualified” if the escrow holder is not the taxpayer (or a disqualified person) and the escrow agreement expressly limits the taxpayer’s rights to receive, pledge, borrow or otherwise obtain the cash or its equivalent held in the account.

Facts. Ralph E. Crandall, Jr. and Dene D. Dulin owned an undeveloped parcel of property in Arizona. The property was held for investment purposes and had a basis of $8,500. They wanted to own investment property closer to their California residence, so they decided to sell the Arizona property and purchase new property with the intention of executing a tax-free exchange.

On March 4, 2005, the taxpayers sold the Arizona property for $76,000. The buyers of the property paid petitioners $10,000, and the remaining $66,000 was placed in an escrow account with Capital Title Agency, Inc. (Capital Title). At the taxpayers’ direction, $61,743.25 was held in the escrow account, and $4,256.75 was released to the taxpayers.

The taxpayers made a series of payments to an escrow account with Chicago Title Co. (Chicago Title) from January–March of 2005. Neither the Capital Title nor the Chicago Title escrow agreements mentioned a like-kind exchange under Code Sec. 1031 or expressly limited the taxpayers’ right to receive, pledge, borrow, or otherwise obtain the benefits of the funds.

Parties’ arguments. IRS contended that, since the Capital Title escrow agreement didn’t restrict the taxpayers’ access to and use of the funds held in the escrow account, it wasn’t a “qualified escrow account.” Thus, the taxpayers were in constructive receipt of the proceeds from the sale of the Arizona property. The disposition of the Arizona property was a taxable sale, and recognized gain should have been reported on the taxpayers’ 2005 return.

The taxpayers claimed that the funds in the Capital Title escrow account were held solely for the purchase of the California property and that they received no proceeds from the sale of the Arizona property.

Conclusion. The Tax Court agreed with IRS that the disposition of the Arizona property was a sale, the proceeds of which were constructively received by the taxpayers upon deposit into the Capital Title escrow account. Although the taxpayers in fact used the funds in the Capital Title escrow account to purchase the California property, they failed to comply with the Code Sec. 1031 requirements for nonrecognition. The Capital Title escrow account wasn’t a “qualified escrow account” within the meaning of the Regulations due to the lack of express limitations on the taxpayers’ use of the funds. As a result, the taxpayers had taxable gain in 2005 from the sale of the Arizona property.

For more information about this case or 1031 exchanges in general, contact Partner F. Moore McLaughlin, IV, Esq., CPA at 401-421-5115 ext. 212 or by e-mail at mmclaughlin@mclaughlinquinn.com.

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Tags: 1031 exchange, 1031 exchange real estate investment, All States 1031, All States 1031 Exchange Facilitator LLC, Capital gains tax, Dene E. Dulin, income tax, internal revenue code, Internal Revenue Service, IRS and state tax collections, Jr., like-kind exchange, mclaughlin & quinn, Moore McLaughlin, Providence, qualified escrow, qualified escrow account, Ralph E. Crandall, Rhode Island, tax, Tax Court, Tax planning, TC Summary Opinion 2011-14, US Tax Court
Posted in 1031 Exchanges, Tax Current Events and News, Tax planning

IRS announces major changes to lien process to help taxpayers get a fresh start

Tuesday, March 1st, 2011 by Moore McLaughlin

The IRS announced on February 23, 2011 new policies and programs to help taxpayers pay back taxes and avoid tax liens. The IRS’s goal is to help individuals and small businesses meet their tax obligations, without adding an unnecessary burden to taxpayers.

Background on liens. When a taxpayer fails to pay a tax liability after notice and demand, a lien arises that attaches to all the taxpayer’s property and rights to property. The IRS is authorized to seize and sell the taxpayer’s property and rights to property subject to a federal tax lien. Thus, IRS may seize any property or property right (unless it’s exempt) of a delinquent taxpayer (whether held by him or someone else), sell it, and apply the proceeds to pay the unpaid taxes. Seized property may be real, personal, tangible, or intangible, including receivables, bank accounts, evidences of debt, securities, and salaries, wages, commissions or compensation.

Background on installment agreements. The IRS may enter into written agreements with any taxpayer. IRS must enter into an installment agreement requested by an individual whose aggregate tax liability (without interest, penalties, additions to tax, and additional amounts) is not more than $10,000, and who has not failed to file or to pay income tax, or entered into another installment agreement, during any of the preceding five tax years, if IRS determines that the taxpayer is financially unable to pay the liability in full when due (and the taxpayer submits information that IRS may require to make this determination). The agreement must require full payment within three years, and the taxpayer must agree to comply with all Code provisions while it’s in effect.

Background on OICs. The IRS will consider an offer in compromise (OIC)—i.e., an agreement between a taxpayer and the IRS that settles the taxpayer’s tax liabilities for less than the full amount owed—where: (1) the taxpayer is unable to pay the tax; (2) there is doubt as to the taxpayer’s liability for the tax; or (3) a compromise would promote effective tax administration because collection of the full amount of tax would cause economic hardship for the taxpayer, or compelling public policy or equity considerations provide a sufficient basis for compromising the liability. The IRS looks at the taxpayer’s income and assets to make a determination regarding the taxpayer’s ability to pay.

New procedures. After a review of collection operations which IRS Commissioner Shulman launched last year, as well as input from the Internal Revenue Service Advisory Council and the National Taxpayer Advocate, IRS has determined that the following changes will lessen the negative impact on taxpayers:

Higher dollar threshold for issuing liens. IRS will significantly increase the dollar thresholds at which liens are generally filed to take account of inflationary changes since the number was last revised. Currently, liens are automatically filed at certain dollar levels for people with past-due balances. IRS expects to review the results and impact of the lien threshold change in about a year.
Easier lien withdrawals after payment. IRS will modify procedures so as to make it easier for taxpayers to obtain lien withdrawals. Liens will now be withdrawn once full payment of taxes is made if the taxpayer requests it. IRS will streamline its internal procedures to better allow collection personnel to withdraw the liens.
Withdrawing liens after DDIA. IRS will now allow lien withdrawals for taxpayers with unpaid assessments of $25,000 or less where: (1) a taxpayer enters into a Direct Debit Installment Agreement (DDIA); (2) a taxpayer on a regular Installment Agreement converts to a DDIA; and (3) a taxpayer on an existing DDIA requests the withdrawal. Liens will be withdrawn after a probationary period demonstrating that direct debit payments will be honored. IRS notes that this lowers user fees and saves the government money from mailing monthly payment notices. Taxpayers can use the Online Payment Agreement application on IRS.gov to set up a DDIA.
Easier access to Installment Agreements for small businesses. IRS will make streamlined Installment Agreements available to more small businesses by raising the dollar limit to allow small businesses with $25,000 or less in unpaid tax to participate. Currently, only small businesses with under $10,000 in liabilities can participate. Small businesses that file either as an individual or as a business will have 24 months to pay. Small businesses with an unpaid assessment balance greater than $25,000 can qualify for a streamlined Installment Agreement if they pay down their balance to $25,000 or less. Small businesses will need to enroll in a DDIA to participate.
Expanding streamlined OIC program. IRS will expand a new streamlined OIC program to cover a larger group of struggling taxpayers. The streamlined OIC will allow taxpayers with annual incomes up to $100,000 to participate. Participants must have tax liability of less than $50,000, doubling the current limit of $25,000 or less.

McLaughlin & Quinn, LLC partner Thomas P. Quinn, Esq. says “These changes are significant and will help many of our clients immediately. We welcome this practical improvement to the collection system. We represent clients on a daily basis who face these thresholds. Those clients will now be able to better manage their affairs and settle their outstanding tax obligations.”

For more information on these changes, and IRS collections matters generally, contact Tom Quinn, Esq. at 401-421-5115 ext. 218 or by e-mail at TQuinn@McLaughlinQuinn.com.

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Tags: asset protection, Asset Protection Planning, Capital gains tax, collection, corporate tax, Direct Debit Installment Agreement, income tax, installment agreement, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, joint account, levy, lien, lien withdrawals, mclaughlin & quinn, Moore McLaughlin, offer in compromise, OIC, Providence, Rhode Island, state taxes, tax, Tax planning, Thomas P. Quinn
Posted in Asset Protection Planning, Bankruptcy, Financial workout, IRS and state tax collections, Tax Current Events and News, Tax planning

IRS explains how DC’s Emancipation Day can affect filing and payment deadlines

Monday, February 21st, 2011 by Moore McLaughlin

The IRS had earlier announced that because of the Emancipation Day holiday in the District of Columbia (DC), the due date of Form 1040 for 2010 is April 18, 2011, instead of April 15, 2011. Now, in Notice 2011-17, the IRS has explained the mechanics of this deferral, and how it may apply in other years.

Background. Under Code Sec. 6072(a), income tax returns must be filed on April 15. When April 15 falls on a Saturday, Sunday, or legal holiday, a return is considered timely filed if filed on the next succeeding day that is not a Saturday, Sunday, or legal holiday, defined as legal holiday in DC.

Under DC law, Emancipation Day, April 16, is a legal holiday. The twists and turns in DC law regarding this holiday produce the following results for filing deadlines for all tax forms and payments that must be filed or completed on or before April 15, including the Form 1040 series tax returns:

When April 16 falls on Saturday, then Friday, April 15, is the observed date for Emancipation Day and the filing deadline for all tax forms and payments required to be filed or completed on or before April 15, is Monday, April 18.

That’s the situation this year, when April 16 falls on a Saturday, which means Emancipation Day will be observed on Friday, Apr. 15, 2011. Thus, the filing deadline for all tax forms and payments required to be filed or completed on or before April 15 will be Monday, April 18, 2011.

When April 16 falls on Sunday, then Monday, April 17, is the observed date for Emancipation Day, and the filing deadline for all tax forms and payments required to be filed or completed on or before April 15 is Tuesday, April 18.
When April 16 falls on Monday, then that day is the observed date for Emancipation Day, and the filing deadline for all forms and payments required to be filed or completed on or before April 15 is Tuesday, April 17.

The last time this happened was in 2007.

IRS said it will widely publicize the Emancipation Day rules in affected years to remind the public that the filing deadline is extended.

In all likelihood, the new Notice was issued in response to a flood of questions about why the filing deadline was deferred to April 18, even though April 15 will fall on a Friday this year.

The deadline deferral to April 18, 2011, applies to a host of deadlines for filing and paying, including:

… Requests for an automatic six-month tax-filing extension on an individual return for calendar-year 2010.

… Tax-year 2010 balance-due payments.

… For calendar-year taxpayers, individual estimated tax payments for the first quarter of 2011.

… For calendar-year taxpayers, tax-year 2010 contributions to a Roth or traditional IRA.

… Corporation income tax returns, including S corporations, for a fiscal year ending on January 31, 2011, and any balance due.

… For calendar-year corporations, the estimated tax payment for the first quarter of 2011.

… Calendar-year estate and trust income tax returns (Form 1041) and any balance due.

… Calendar-year 2010 partnership returns (Form 1065).

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Tags: 1031 exchange real estate investment, 2011, April 15, April 18, April 18 2011, Capital gains tax, collection, corporate tax, District of Columbia, Emancipation Day, income tax, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, mclaughlin & quinn, Moore McLaughlin, Notice 2011-17, Providence, Rhode Island, state taxes, tax, Tax planning, Thomas P. Quinn
Posted in 1031 Exchanges, Current Events, IRS and state tax collections, Tax Current Events and News, Tax planning

Ways and Means OKs two competing bills to repeal new 1099 requirements

Monday, February 21st, 2011 by Moore McLaughlin

On February 17, the House Ways and Means Committee by a vote of 21-15 approved. H.R. 705, the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayment Act of 2011. Upon passage of H.R. 705, the text of a competing bill (H.R. 4, the Small Business Paperwork Mandate Elimination Act of 2011), which was approved by voice vote earlier in the day, was incorporated into H.R. 705. There were no other amendments adopted to H.R.705.

Both bills seek to modify or repeal the new requirements imposed by Sec. 9006 of the Patient Protection and Affordable Care Act (PPACA), which provides that payments for goods and payments made to corporations (that are not tax-exempt) will be subject to information reporting beginning in 2012. H.R. 705 also seeks to repeal Code Sec. 6041(h), which was added by the Small Business Jobs Act of 2010 and which treats recipients of rental income from real estate as engaged in the trade or business of renting property for information reporting purposes beginning in 2011. However, H.R. 705 provides an offset for the estimated $21.9 billion cost of repeal, whereas H.R. 4 does not.

Also on February 17, the Senate by a vote of 92-2 invoked cloture (i.e. voted to cut off debate) on S. 223, the FAA Air Transportation Modernization and Safety Improvement Act, which includes a provision to repeal the Sec. 9006 reporting requirements. Unless time is yielded back, there remains 30 hours of debate on the bill before a vote on final passage of the measure.

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Tags: 1099, business tax, Capital gains tax, Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayment Act of 2011, corporate tax, FAA Air Transportation Modernization and Safety Improvement Act, Form 1099, income tax, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, IRS Form 1099, mclaughlin & quinn, Moore McLaughlin, Patient Protection and Affordable Care Act, Providence, Rhode Island, Small Business Act, Small Business Jobs Act of 2010, tax, Tax planning, Thomas P. Quinn
Posted in Asset Protection Planning, Current Events, IRS and state tax collections, Tax Current Events and News, Tax planning

IRS Set To Launch New Offshore Voluntary Disclosure Program

Thursday, February 3rd, 2011 by Moore McLaughlin

The IRS is putting the finishing touches on a new offshore voluntary disclosure program, according to several agency officials quoted in news reports. The new program will have some similarity to the previous voluntary disclosure program that ended in October 2010, but is expected to offer different terms regarding possible penalties. Many observers foresee the new initiative offering terms less generous than those in the previous program. At an American Bar Association gathering on Janury 21, Steven Miller, IRS deputy commissioner for services and enforcement, put the tax professional community on notice that another initiative was in the works. Other agency officials have since indicated that the details of the program would soon be forthcoming.

Stay tuned to our Blog, or contact Partner Moore McLaughlin, Esq. for more information at mmclaughlin@mclaughlinquinn.com or by phone at 401-421-5115 ext 212.

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Tags: asset protection, Asset Protection Planning, Capital gains tax, corporate tax, FBAR, income tax, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, mclaughlin & quinn, Offshore Voluntary Disclosure Program, Providence, Rhode Island, tax, Tax planning, Thomas P. Quinn
Posted in Asset Protection Planning, Current Events, Estate Planning, IRS and state tax collections, Tax Current Events and News, Tax planning

IRS provides relief to tax return preparers having difficulty obtaining a PTIN

Wednesday, February 2nd, 2011 by Moore McLaughlin

In Notice 2011-11, the IRS has provided relief to tax return preparers who have made a good faith effort to obtain a preparer tax identification number (PTIN) by allowing them to prepare tax returns for compensation, even though they have not received a PTIN.

Background. In January 2010, the IRS released a study on the U.S. return preparer industry carrying detailed recommendations on new standards for preparers other than attorneys, certified public accountants (CPAs), and enrolled agents (EAs). Subsequently, the IRS rolled out a new set of rules subjecting tax return preparers who are not attorneys, CPAs or EAs to new registration requirements, including mandatory use of PTINs for tax returns or refund claims filed after December 31, 2010, competency testing, continuing education (CE) rules, and ethical standards (i.e., Circular 230). Under the rules, all individuals who are compensated for preparing, or assisting in the preparation of, all or substantially all of a tax return or claim for refund of tax must have a PTIN.

In early January 2011, the IRS issued Notice 2011-6, which dialed back some of the most controversial aspects of the new tax return preparer initiative. It provides guidance on the implementation of the new regulations requiring tax return preparers to obtain a PTIN for tax returns or refund claims filed after December 31, 2010. It also softened key aspects of earlier guidance. For example, it provides that properly supervised nonsigning preparers are not required to undergo a competency exam and are not subject to the CE requirements.

Notice 2011-6, states that, unless otherwise provided in it or other guidance, the IRS expects tax return preparers to comply with the new requirement to obtain a PTIN as soon as possible. Tax return preparers who used the new online application system available through IRS’s website at http://www.irs.gov/taxpros generally will receive their PTIN number when the application process has been completed. Preparers who apply for a PTIN using the paper Form W-12, IRS Paid Preparer Tax Identification Number (PTIN) Application, generally will receive their PTIN four to six weeks after the application and payment are received.

However, the IRS recognizes that some tax return preparers are experiencing or may experience difficulty in obtaining a PTIN. If preparers using the online system are unsuccessful in obtaining a PTIN, the IRS system will notify them that their application was not processed and provide appropriate instructions. Complying with these instructions before the preparation of a tax return or refund claim for compensation will establish that these individuals were making a good faith effort to comply with the new PTIN requirement.

Preparer relief. In Notice 2011-11, the IRS provides that any tax return preparer receiving: (1) notice from the IRS that it was unable to process their online PTIN application, or (2) an acknowledgment of receipt of the paper PTIN application, will be allowed to prepare and file tax returns or claims for refund for compensation after the tax return preparer complies with all instructions provided in the notification or acknowledgment letter. This relief only applies during the 2011 filing season (i.e., 2010 returns) and does not apply to individuals who engage in conduct that constitutes a willful violation of the applicable duties and restrictions set out in, or disreputable conduct under §10.51 of, Circular 230.

A tax return preparer may use a PTIN issued before September 28, 2010 (or his Social Security number if he does not have a previously issued PTIN) as his PTIN during the 2011 filing season or until they receive a new PTIN, whichever is earlier. Once a new PTIN is obtained, the new PTIN must be used.

Preparers who rely on the relief provision of Notice 2011-6 to prepare returns or refund claims for compensation must pay the $64.25 PTIN application fee for the 2011 filing season, even though the processing of their application may be delayed. Payment must be submitted as instructed by IRS. Preparers who rely on this relief must keep a copy of the notification or acknowledgment letter as documentation of their good faith effort in the event that the preparer is contacted by IRS during the 2011 filing season or in the future.

IRS notes that tax return preparers who applied for a PTIN using paper Form W-12 before Notice 2011-11 is published in the Internal Revenue Bulletin (February 14, 2011) and have not received a PTIN generally will receive a PTIN or an acknowledgment of receipt of the PTIN application within six weeks of IRS’s receipt of the PTIN application or within six weeks of Notice 2011-11 ‘s date of publication, whichever is later. Preparers who apply for a PTIN using paper Form W-12 after Notice 2011-11 ‘s date of publication generally will receive a PTIN or an acknowledgment of receipt of the PTIN application within six weeks from the date the application is submitted. For individuals who do not attempt to submit a PTIN application via the online system, the submission of a processible paper Form W-12 and payment generally constitutes a good faith attempt to comply with the requirement to obtain a PTIN.

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Tags: corporate tax, income tax, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, Moore McLaughlin, Notice 2011-11, Notice 2011-6, PTIN, PTIN registration process, state taxes, tax, Thomas P. Quinn
Posted in Current Events, IRS and state tax collections, Tax Current Events and News

Overview of Two-Year EGTRRA/JGTRRA/ARRA Sunset Relief

Sunday, December 19th, 2010 by Moore McLaughlin

Under pre-Act law, the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001, other than those made permanent or extended by subsequent legislation, were set to sunset and no longer apply to tax or limitation years beginning after 2010. Beginning in 2011, the EGTRRA sunset would have wiped out a host of favorable tax rules, such as: favorable income tax rate structure for individuals; marriage penalty relief; and liberal education-related deduction rules. Similarly, under Sec. 303 of the Jobs and Growth Tax Relief Reconciliation Act of 2003, the favorable tax treatment of long-term capital gain and qualified dividends would have ended after 2010.

The alternative minimum tax (AMT) exemption amounts were “temporarily” increased for four years by EGTRRA, and then “temporarily” increased again by a succession of tax laws. The ability of individuals to use most nonrefundable personal credits to offset AMT also is “temporary,” and has been extended over the years by a series of new laws. Under pre-Act law, after 2010, the AMT exemption amounts were to have plummeted to their pre-EGTRRA level, and individuals would not have been able to use most nonrefundable personal credits to offset AMT.

Finally, the American Recovery and Reinvestment Act of 2009 temporarily boosted the credit incentives for higher education (i.e., created the American Opportunity Tax Credit, or AOTC), and liberalized the rules for the refundable child tax credit and the earned income tax credit (EITC). Under pre-Act law, these ARRA incentives would have ended on December 31, 2010.

New law. Under 2010 Tax Relief Act Secs. 101 through 103, the Sec. 901 EGTRRA sunset, the Sec. 303 JGTRRA sunset, and the ARRA sunsets relating to the AOTC, child tax credit, and EITC are extended for two years (one year in case of the adoption rules).

Caution: Unless Congress acts, all of the favorable rules will revert after 2012 to their pre-EGTRRA, pre-EGTRRA, and pre-ARRA rules. For example, the tax rates for individuals in 2013 will be 15%, 28%, 31%, 36%, and 39.6%.

Stay tuned for more posts about this new tax law.

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Tags: asset protection, Asset Protection Planning, business tax, Capital gains tax, corporate tax, income tax, internal revenue code, Internal Revenue Service, IRS and state tax collections, Moore McLaughlin, Providence, Rhode Island, Small Business Act, state taxes, tax, Tax planning, Thomas P. Quinn
Posted in 1031 Exchanges, Asset Protection Planning, Current Events, Estate Planning, IRS and state tax collections, Tax Current Events and News, Tax planning, Uncategorized

Year-end planning: How increased withholding may avoid estimated tax penalty for some taxpayers

Friday, November 5th, 2010 by Moore McLaughlin

Some individuals with substantial income in addition to salaries may find that the amount of tax withheld from their salaries is not enough to cover their required estimated tax payments. This may be the result of miscalculation, or forgotten surprises pleasant and unpleasant. A pleasant forgotten surprise might be a windfall on the sale of a capital asset earlier this year. An unpleasant one might be the realization by a taxpayer who claimed a first time homebuyer credit in 2008 that he must begin repaying the credit in 25 installments, beginning with the 2010 tax year. Increased withholding, as well as a couple of creative workarounds, can stave off an estimated tax penalty.

Background. An individual subject to the estimated tax must pay, on each of four installment dates (April 15, June 15, September 15 and January 15 of the following year for a calendar-year taxpayer), 25% of his “required annual payment” for the current year. The required annual payment generally is the lesser of 100% of the tax shown on the taxpayer’s return for the preceding year or 90% of his tax for the current year. However, in figuring 2010 estimated taxes, taxpayers whose 2009 AGI was over $150,000 have to pay the lesser of 110% of the tax shown on the 2009 return or 90% of their 2010 tax liability.

The applicable test is applied separately to each installment. Thus, a taxpayer may be penalized for the underpayment of estimated taxes for any installment for which his estimated tax payments plus taxes withheld from his salary don’t total at least 25% of his required annual payment.

An individual who has underpaid an estimated tax installment can’t avoid the penalty by increasing his estimated tax payment for a later period (although payment in a later period will reduce the period for which the penalty applies).

Increased withholding is one possible solution. Income tax withheld by an employer from an employee’s wages or salary is treated as paid in equal amounts on each of the four installment due dates unless the individual establishes the dates on which the amounts were actually withheld. Thus, if an employee asks his employer to withhold sufficient additional amounts for the rest of the year, the penalty can be retroactively eliminated. This is because the heavy year-end withholding will be treated as paid equally over the four installment due dates.

Illustration: Jennifer expects her 2010 tax liability to be $15,000. Her 2009 return showed a liability of $14,000. Her withholding for 2010 will total only $10,500 and she has made no estimated tax payments. If she makes an additional estimated tax payment of $3,000 on January 15, 2011, she will avoid any underpayment penalty for the last installment ($10,500 plus $3,000 equals $13,500, which is 90% of $15,000) but she may still be penalized for underpaying the first three installments. But if Jennifer instead has her employer withhold an additional $3,000 before the end of 2010, her total withholding ($13,500) will be treated as estimated tax payments of $3,375 on each of the installment due dates. Since $3,375 is 25% of $13,500 (90% of $15,000), the underpayment penalty would be completely avoided for all four installments.

Other amounts may also be treated as retroactive payments of estimated tax. The same rules described above in regard to amounts withheld from wages and salaries also apply to overpayments of Social Security taxes and to income taxes withheld from:

supplemental unemployment compensation benefits, sick pay, pensions, annuities and other deferred income (e.g., 20% withholding on certain “eligible rollover distributions” from qualified retirement plans and other deferred income arrangements).
interest and dividends subject to backup withholding.
gambling winnings.

Recommendation: Another possible option for a taxpayer who has underpaid estimated tax is to take an eligible rollover distribution from a qualified plan before the end of 2010. Income tax will be withheld from the distribution and will be applied toward the taxes owed for 2010. The taxpayer can then timely roll over the gross amount of the distribution, as increased by the amount of withheld tax, to a traditional IRA. No part of the distribution will be includible in income for 2010, but the withheld tax will be applied pro rata over the full tax year to reduce previous underpayments of estimated tax.

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Tags: 2010 estimated taxes, asset protection, Asset Protection Planning, business tax, Capital gains tax, estimated tax payments, estimated taxes, first time homebuyer credit, income tax, internal revenue code, Internal Revenue Service, IRS, IRS and state tax collections, mclaughlin & quinn, Moore McLaughlin, Providence, Rhode Island, tax, Tax planning, Thomas P. Quinn, year-end planning, year-end tax planning
Posted in Asset Protection Planning, IRS and state tax collections, Tax Current Events and News, Tax planning

Year-end planning: How dividing an inherited IRA before year-end can improve tax results for each beneficiary

Monday, November 1st, 2010 by Moore McLaughlin

December 31, 2010 is an important deadline for individuals who inherited an IRA from an IRA owner who died in 2009. Where there are multiple beneficiaries for the IRA, splitting up the account into several accounts no later than December 31, 2010, can yield important tax and other benefits for each beneficiary.

Background. Designating several beneficiaries for an IRA may put the younger one (or ones) at a disadvantage if they want to keep required minimum distributions (RMDs) as small as possible and keep IRA deferrals going for as long as possible. Reason: As a general rule, where there is more than one IRA designated beneficiary, the one with the shortest life expectancy (that is, the oldest one) is treated as the designated beneficiary for determining distributions.

Observation: The oldest-beneficiary rule comes into play for determining RMDs after the IRA owner’s death. Regardless of whether the IRA owner died before or after his required beginning date, if the IRA owner was older than any of the beneficiaries, the remaining IRA balance at the owner’s death is paid out over the remaining life expectancy of the oldest designated beneficiary.

Illustration : Anne designated her son, Seth, and her daughter, Carol, as equal beneficiaries of his IRA. Anne died in 2009 at the age of 74. Seth, age 50 this year, wants to invest the inherited IRA in emerging markets mutual funds. Carol, age 44 this year, wants to invest the inherited IRA in a target-retirement-date mutual fund. If the IRA is left as-is, annual RMDs for both Seth and Carol, which must commence in 2010, are based on Seth’s life expectancy, which is shorter than Carol’s. And they may find it hard to reconcile their differing investment philosophies.

Post-mortem planning solution. The beneficiaries can split up the IRA into separate accounts no later than the end of the year following the year in which the decedent died. Where an IRA is divided into separate accounts (i.e., subaccounts), the RMD rules separately apply to each separate account, effective for years after the year in which the separate accounts were created, or the IRA owner’s date of death, if later.

Thus, in the illustration above, if Seth and Carol direct the IRA trustee to split Anne’s IRA into two separate and equal IRAs no later than December 31, 2010, with each the sole beneficiary of one of the equal IRAs, Seth’s RMD will be based on his table life expectancy, and Carol’s will be based on her life expectancy, which is longer than Seth’s. Seth can invest his half of the inherited IRA in emerging markets mutual funds, and Carol can invest her half in the mutual fund of her choice.

For purposes of the RMD rules, separate accounts in an IRA account are separate portions of the IRA owner’s benefit reflecting the separate interests of the IRA’s beneficiaries as of the date of the IRA owner’s death for which separate accounting is maintained.

For the separate or “subaccount” IRA to be treated as a separate account for RMD purposes, it must be established no later than the last day of the year following the year of the IRA owner’s death. Additionally, a separate accounting must allocate all post-death investment gains and losses for the period before the separate accounts were established on a pro rata basis in a reasonable and consistent manner among the separate accounts. However, once the separate accounts are actually established, separate accounting can provide for separate investments for each separate account under which gains and losses from the investment of the account are only allocated to that account. Alternatively, investment gain or losses can continue to be allocated among the separate accounts on a pro rata basis. A separate accounting must allocate any post-death distribution to the separate account of the beneficiary receiving that distribution.

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Tags: asset protection, Asset Protection Planning, Capital gains tax, elder law, elderlaw, Elderlaw/Law For Life, Estate Planning, income tax, individual retirement account, internal revenue code, Internal Revenue Service, IRA, IRS, IRS and state tax collections, Jill E. Sugarman, Jill Sugarman, Long-term care, long-term care insurance, Massachusetts, mclaughlin & quinn, Medicaid, Medicaid planning, Moore McLaughlin, nursing homes, Providence, required minimum distribution, Rhode Island, rmd, seniors, Tax planning
Posted in Asset Protection Planning, Elderlaw/Law For Life, Estate Planning, Self-directed IRAs, Tax Current Events and News, Tax planning

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