Federal Tax Bulletin - Issue 44 - August 28, 2013

Proposed Regs Provide Guidance on Insurance Exchange Requirement for Small Employers Taking Health Insurance Credit

Last week, the IRS issued proposed regulations on the tax credit under Code Sec. 45R for small employers providing health insurance to their employees. The credit, which is effective for tax years beginning in 2010, was part of the Patient Protection and Affordable Care Act (PPACA) . The regulations provide details on the requirement to purchase insurance through an exchange, and explain the uniform contribution rules.

For 2010-2013, the maximum credit is 35 percent of a taxable eligible small employer's premium payments taken into account for purposes of the credit. For a tax-exempt eligible small employer, the maximum credit is 25 percent of the employer's premium payments taken into account for purposes of the credit. For tax years beginning in 2014, these percentages change to 50 percent instead of 35 percent for taxable eligible small employers, and 35 instead of 25 percent for tax-exempt eligible small employers. In addition, beginning in 2014, the credit is available only to a qualified small employer that purchases health insurance coverage for its employees through a state exchange, and is available only for a maximum coverage period of two consecutive tax years beginning with the first year in which the employer or any predecessor first offers one or more qualified plans to its employees through an exchange.

In 2010, the IRS issued Notice 2010-44 and Notice 2010-82, both of which provided guidance on the employee health insurance tax credit. The new proposed regulations (REG-113792-13 (8/26/13)) generally incorporate the provisions of Notice 2010-44 and Notice 2010-82, as modified to reflect the differences in the rules applicable to years before 2014 and those applicable to years after 2013. Additionally, however, the regulations provide details on the requirement relating to the purchase of insurance coverage through an exchange, explain the requirement that an employer must generally pay a uniform percentage (not less than 50 percent) of the premium for each employee, and provide examples of how the uniform percentage rules work.

Practice Tip: An eligible small employer may use the credit to reduce estimated tax payments. An eligible small employer may also use the credit to offset the employer's alternative minimum tax (AMT) liability for the year, if any, subject to certain limitations. However, an eligible small employer may not reduce its deposits and payments of employment tax during the year in anticipation of the credit.

Eligibility for the Credit

As noted above, the health insurance credit is a percentage of an eligible small employer's premium payments. An eligible small employer is defined as an employer that has no more than 25 full-time employees (FTEs) for the tax year, whose employees have average annual wages of less than $50,000 per FTE (as adjusted for inflation for years after December 31, 2013), and that has a qualifying arrangement in effect that requires the employer to pay a uniform percentage (not less than 50 percent) of the premium cost of a qualified health plan (QHP) offered by the employer to its employees through a Small Business Health Options Program (SHOP) Exchange. A tax-exempt eligible small employer is an eligible small employer that is described in Code Sec. 501(c) and that is exempt from tax.

Observation: There is no requirement that, for an employer to be an eligible small employer, the employees perform services in a trade or business. Thus, an employer that otherwise meets the requirements for the credit does not fail to be an eligible small employer merely because the employees of the employer are not performing services in a trade or business. For example, a household employer that otherwise satisfies the requirements is an eligible small employer for purposes of the credit.

Under Code Sec. 45R(d), to be an eligible small employer with respect to any tax year, the employer must have in effect a contribution arrangement that qualifies under Code Sec. 45R(d)(4). A contribution arrangement qualifies if it requires an eligible small employer to make a nonelective contribution on behalf of each employee who enrolls in a qualified health plan (QHP) offered to employees by the employer through an Exchange in an amount equal to a uniform percentage (not less than 50 percent) of the premium cost of the QHP (referred to as the uniform percentage requirement). The proposed regulations provide that, for purposes of Code Sec. 45R, an Exchange refers to a Small Business Health Options Program (SHOP) Exchange, established pursuant to PPACA, Section 1311. A contribution arrangement that meets these requirements is referred to as a "qualifying arrangement."

An employer located outside the United States (including a U.S. Territory) may be an eligible small employer if the employer has income effectively connected with the conduct of a trade or business in the United States, otherwise meets the requirements of the regulations, and is able to offer a QHP to its employees through a SHOP Exchange. Read more...

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New S Corp Procedure Expands Time for Applying Corrective Procedures to Late Elections

Late S corporation elections, such as the election to become an S corporation, or the election by certain trusts to become an eligible S corporation shareholder, can result in additional taxes if not properly corrected. In what is good news for practitioners, the IRS issued Rev. Proc. 2013-30, which will greatly simplify obtaining relief for these various late S corporation elections. The procedure is more liberal in that it expands the time period taxpayers have in which to request relief from late S corporation elections. The new procedure provides corrective actions for various late S corporation elections and eliminates compliance with a number of prior procedures that taxpayers had to navigate to obtain such relief. The guidance is in lieu of requesting an IRS ruling and, thus, there is no user fee for requests filed under Rev. Proc. 2013-30. While there may still be some taxpayers that do not fall within the new procedure and will have to request an IRS ruling and pay a user fee, the number of such taxpayers is minimized under the new procedure.

Observation: Under the prior corrective procedures, taxpayers had to apply for relief within 24 months of the due date of the election. Under Rev. Proc. 2013-30, a taxpayer has three years and 75 days from the date the election was to be effective to apply for relief.

Rev. Proc. 2013-30 supersedes Rev. Procs. 2003-43, 2004-48, and 2007-62 and applies to taxpayers making late S corporation elections, late electing small business trust (ESBT) elections, late qualified subchapter S trust (QSST) elections, late qualified subchapter subsidiary (QSub) elections, and late corporate classification elections which the taxpayer intended to take effect on the same date that the taxpayer intended than an S corporation election for the entity to take effect. Additionally, Rev. Proc. 2013-30 obsoletes portions of Rev. Proc. 97-48 and Rev. Proc. 2004-49.

Practice Tip: Practitioners can request a refund of user fees paid for any letter ruling request seeking relief for a late election covered by Rev. Proc. 2013-30 that is still pending at the IRS National Office on September 3. However, the National Office will process such letter ruling requests unless, before the earlier of October 18, 2013, or the issuance of the letter ruling, the practitioner notifies the IRS that the entity will rely on Rev. Proc. 2013-30 and withdraw its letter ruling request.

General Requirements for All Late Elections

Rev. Proc. 2013-30 lays out specific requirements for relief for each of the various late elections. However, taxpayers must also meet the following general requirements for relief for each late election: Read more...

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Proposed Regs Remove Two-Year Deadline for Filing for Innocent Spouse Relief

A recent tug-of-war among the IRS, the Tax Court, and several appellate courts over the appropriate deadline for filing for innocent spouse relief under Code Sec. 6015(f) (i.e., the equitable relief provision) ended when the IRS gave in and published Notice 2011-70, which loosened the deadline. The IRS has now issued proposed regulations (REG-132251-11 (8/13/13)) that formally provide that the two-year deadline applicable to requests for relief under Code Sec. 6015(b) and Code Sec. 6015(c) does not apply to equitable relief requests under Code Sec. 6015(f). The IRS also extended the new rules to certain married taxpayers in community property states. Additionally, the proposed regulations are retroactive to the date Notice 2011-70 was issued. Read more...

Physician Who Retained Beneficial Ownership of S Corp Stock Is Taxed on Income Never Received

A physician was required to report the business and interest income from his S corporation shares because he retained the beneficial ownership of the shares and his rights were not given away following a dispute with another shareholder. Kumar v. Comm'r, T.C. Memo. 2013-184 (8/13/13).

Dr. Ramesh Kumar, a physician, and Dr. Woody, another physician, agreed to provide radiation oncology services to patients through three business entities: Okeechobee Business Ventures, Inc. (OBV), Mid-Florida Radiation Oncology, P.A. (MFRO), and Port St. Lucie Ventures, Inc., (PSLV). PSLV was an S corporation. Dr. Kumar owned 40 percent of the shares of PSLV and Dr. Woody owned 60 percent of the remaining shares. Dr. Kumar, Dr. Woody, and a third physician each owned one-third of the outstanding shares of stock in OBV.

A dispute arose between Dr. Kumar and Dr. Woody resulting in Dr. Kumar being shut out of PSLV's operations and management. In 2004, Dr. Kumar filed a complaint against Dr. Woody and PSLV, seeking court-ordered inspection of corporate records, dissolution of PSLV, and reinstatement of his medical privileges at PSLV. The lawsuit was settled in 2012, and the parties agreed that Dr. Woody would sell his OBV stock to Dr. Kumar and Dr. Kumar would transfer his PSLV stock to PSLV in total redemption of his interest. The settlement agreement also provided that the transactions close on December 31, 2011, and as of that date, Dr. Woody would no longer be a shareholder of OBV and Dr. Kumar would no longer be a shareholder of PSLV.

PSLV made no distributions to shareholders in 2005. Dr. Kumar did not receive any wages or take part in the operation or management of PSLV in 2005 or any year thereafter. PSLV issued a Schedule K-1, Shareholder's Share of Income, Deductions, Credits, etc., to Dr. Kumar for the 2005 tax year and reported his share of PSLV's ordinary business income as $215,920 and interest income as $2,344. Dr. Kumar, and his wife, Pushparani, filed their 2005 Form 1040, Individual Income Tax Return, and listed on their attached Schedule E, Supplemental Income and Loss, PSLV as an S corporation in which they held an interest. They did not report any income from Dr. Kumar's Schedule K-1 on their Schedule E. The IRS determined a $78,760 deficiency in the couple's federal income tax for the unreported business and interest income from Dr. Kumar's shareholder interest in PSLV.

Under Code Sec. 1366(a), an S corporation's items of income, gain, loss, deduction, and credit - whether or not distributed - flow through to the shareholders, who must report their pro rata shares of such items on their individual income tax returns.

For purposes of determining a shareholder's pro rata share of income loss, deduction, or credit for a tax year, the beneficial owners of an S corporation are treated as the shareholders of the corporation.

Observation: To determine if beneficial ownership has passed from one person to another, it is important to determine whether the transferee has more attributes of ownership than the transferor.

Dr. Kumar argued that he was not liable for tax on PSLV's income because he was not the beneficial owner of his shares in 2005. When the record owner of S corporation stock holds the stock for the benefit of another, as a nominee, agent or passthrough entity, then the income, losses, deductions, and credits of the corporation are passed through to the beneficial owner of the stock and not to the record owner under Reg. Sec. 1.1361-1(e). Thus, he argued, a taxpayer is the beneficial owner of the property if the taxpayer controls the property or has the economic benefit of ownership of the property.

The Tax Court held that Dr. Kumar retained beneficial ownership of his PSLV stock and was required to report his share of the PSLV business and interest income on his individual tax return. The court noted that a previous case, Hightower v. Comm'r, T.C. Memo. 2005-274, applied the beneficial ownership test when the parties had some agreement or understanding regarding their relationship with each other. In that case, the court found that when one shareholder merely interferes with another shareholder's participation in the corporation as a result of a poor relationship between the shareholders, the interference does not amount to deprivation of the economic benefit of the shares.

The court rejected Dr. Kumar's claim that he was not the beneficial owner of the PSLV stock in 2005 because he was improperly excluded from the benefits of ownership of the stock. He cited no precedent where a shareholder took beneficial ownership of stock away from another shareholder absent an agreement between the two shareholders. There was no agreement to give Dr. Woody any rights to Dr. Kumar's PSLV stock and Dr. Woody's interference with Dr. Kumar's participation in PSLV did not deprive him of the economic benefit of his shares. Thus, the court concluded that the beneficial ownership test did not relieve Dr. Kumar from his obligation to report his share of PSLV's profits and interest income.

Practice Tip: This is a potential trap for the unwary. It may seem logical that if a shareholder is shut out of the operation and management of an S corporation and is precluded from receiving any distributions from the S corporation by the other shareholders, the shareholder would not be taxable on the income allocated to him or her. However, this is not the case and like the situation in Kumar, the shareholder may find him or herself with taxable income and no way to pay the tax on that income. If, in Kumar, the S corporation's governing articles provided that such situations (i.e., where a shareholder is shut out of the operations and management of the S corporation and not entitled to distributions) would result in a beneficial transfer of stock from the excluded shareholder to the other S shareholders, Dr. Kumar may have been successful in arguing that there was a transfer of beneficial ownership.

For a discussion of rules for determining an S shareholder's pro rata share of S corporation income, see Parker Tax ¶31,935.

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A Former Employee's FCA Award Was Business Income; Legal Fees Were Deductible as Ordinary and Necessary Business Expenses

An accountant who brought a False Claims Act (FCA) suit against his former employer was allowed to report the qui tam award he received as business income on his Schedule C and deduct his legal fees as ordinary and necessary business expenses. Bagley v. U.S. 2013 PTC 233 (C.D. Calif. 8/5/13).

Richard Bagley, an accountant, worked for TRW, Inc. in a variety of positions. From 1987 through 1992, Richard was Chief Financial Officer for TRW's Space and Technology group and was responsible for contract proposal pricing, indirect budgeting and control, and accounting. From 1989 through 1991, Richard became aware of false claims made by TRW to the government.

In 1990 and 1991, Richard signed government certifications, under the penalty of perjury, that TRW's indirect expense claims for the Space and Technology group were reimbursable costs even though he did not believe that was correct. In 1993, Richard was laid off from TRW and took documents pertaining to the false claims issue with him when he left. In 1994, Richard met with private attorneys and filed two lawsuits, as a relator, on behalf of the United States. The suits were filed against TRW under the False Claims Act (FCA). The False Claims Act establishes liability for any person who knowingly presents or causes to be presented to an officer or employee of the U.S. government a false or fraudulent claim for payment or approval. Both the Attorney General and private citizens are authorized to bring civil actions to enforce the FCA.

Richard claimed in the FCA lawsuits that TRW allocated certain costs to the government as indirect expenses when those costs were not properly pooled as indirect costs and not allowable as charges to the government. From 1994 through the settlement of the FCA claims in 2003, Richard worked exclusively on his FCA prosecution activity and was not otherwise employed. Richard maintained a contemporaneous log of the hours he worked in relation to the litigation. Richard attended meetings with his and the government's counsel, provided written summaries of information regarding TRW's false claims, commented on draft documents prepared by his attorneys, and identified key documents of TRW.

Richard considered himself to be in a trade or business, with his occupation as a private attorney general. He issued Forms 1099-MISC to his private attorneys for legal fees he paid to them. Richard did not (1) file any business tax returns for his FCA relator activity, (2) file any business registrations with any city or state, (3) do any advertising of his business, or (4) keep accounting books or records for his qui tam relator activity.

In 2003, Northrup Grumman Corp., the successor of TRW, agreed to pay the United States to settle the FCA suit. The United States awarded Richard $27,244,000 and issued Richard a Form 1099-MISC, reporting the FCA award as Other Income. Richard paid his private attorneys approximately $8,990,500 as a contingency fee. In September 2003, Northrup paid Richard's private attorneys approximately $9,400,000 as payment of the statutory attorneys' fee award and issued Richard a Form 1099-MISC, reporting the statutory fee as gross proceeds paid to an attorney.

Richard filed his Form 1040, Individual Income Tax Return, and reported over $36,650,000 as gross income, comprised of the FCA award and statutory fee. On his Schedule C, Profit or Loss From Business, Richard deducted legal fees paid to his private attorneys in the amount of approximately $18,478,000. Richard paid federal income taxes and interest of $10,363,000 and filed a claim for refund. The IRS denied Richard's refund claim on the basis that the $36,650,000 was other income under Code Sec. 212, and the amount paid to his private attorneys was an itemized deduction reportable on Schedule A.

Code Sec. 162 provides a deduction for all ordinary and necessary expenses paid or incurred during the tax year in carrying on any trade or business.

Observation: An activity is a trade or business only if the taxpayer's primary purpose for engaging in the activity is for profit, and the taxpayer is involved in the activity with continuity and regularity.

Richard argued that the court should apply the standard set forth in case law for determining whether his activities as a qui tam relator were a trade or business and whether the litigation fees were ordinary and necessary expenses under Code Sec. 162.

The government contended that Richard disclosed the fraudulent claims only after he did not find any further employment, removed TRW documents in violation of his employment contract, and sought immunity from criminal prosecution before litigating the FCA lawsuit. The government also argued that the court should apply the origin-of-the-claim test to determine whether the origin and character of the claim to which the litigation expense was incurred was a business or personal expense.

A district court held that Richard was engaged in the trade or business of prosecuting an FCA lawsuit and, thus, could report the FCA award on his Schedule C and deduct the legal fees paid to his private attorneys as ordinary and necessary business expenses. The court noted that, under the FCA, a relator who properly brings a claim is entitled to a share of the recovery and that share is dependent upon the importance of the relator's participation in the suit. Since Richard received 24.5 percent of TRW's FCA settlement award, the highest percentage award possible, the court determined that Richard made a substantial contribution to the prosecution of the claim and the information he provided to the government was meaningful.

The court stated that Richard devoted significant time investigating and prosecuting the FCA claim and actively participated in the prosecution of the suit by reviewing documents, attending meetings, and providing his attorneys with his expertise regarding the regulations governing federal contracts and pricing, which indicated a good-faith effort to make a profit in a trade or business under Reg. Sec. 1.183-2(b). In rejecting the government's claim that the legal fees were personal in nature because the origin of the claim was the government's fraud claim, the court stated that Richard's services were provided to protect the government's interest and he was not pursuing a personal claim.

For a discussion of the rules relating to qui tam payments under the FCA and associated expenses, see Parker Tax ¶74,140.

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CPA Properly Convicted of Failing to File FBARs and Filing False Tax Returns; Ineligible for Administrative Relief

A CPA, who was the managing director of three foreign corporations and who had signature authority over several foreign bank accounts, was properly convicted of failing to file reports of foreign bank accounts and filing false income tax returns. U.S. v. Simon, 2013 PTC 242 (7th Cir. 8/15/13).

James Simon was a CPA, accounting professor, and business entrepreneur. Along with his wife, Denise, and a family trust, James owned a Colorado limited partnership, JAS Partners. James was also managing director with signature authority for three foreign companies that were owned by his two sisters and brother. From 2003 through 2006, the Simon family received approximately $1.8 million from the three foreign companies and another corporation, most of which was recorded as loans in James's personal financial records. During the same time period, the Simon family spent $1.7 million. James paid $328 in income taxes in 2005 and claimed refunds for the other three years. James also pleaded poverty to financial aid programs to gain need-based scholarships for his children at private schools.

The government charged James with filing false income tax returns, failing to file reports relating to foreign bank accounts, mail fraud, and financial aid fraud.

A district court ruled that evidence relating to the funding of James's business entities with third-party loans would be excluded from the trial except to the extent James personally provided that funding. A jury found James guilty of the charges, and James appealed.

The Bank Secrecy Act, 31 U.S.C. Section 5314, requires that certain individuals disclose their interests in foreign bank accounts by filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR). The due date for filing FBARs is June 30 for each foreign account exceeding $10,000 maintained during the previous calendar year.

Observation: Although the FBAR is received and processed by the IRS, it is not part of the income tax return or filed in the same IRS office as that return. As a result, for purposes of the Internal Revenue Code, the FBAR is not considered return information and its distribution to other law enforcement agencies is not limited by the nondisclosure rules of Code Sec. 6103.

James argued that the money he received from the various entities were loans and thus not taxable. In the alternative, he characterized the money as partnership distributions that were not taxable because they did not exceed his basis in the partnership. Although he conceded that he failed to timely file the FBARs, James claimed that, since he filed the required forms by the extended due dates provided in Notice 2009-62 and Notice 2010-23, he could not be convicted of failing to file the required forms. He also contested the district court's decision to limit the evidence he could present in his defense of the false income tax return counts.

The government argued that James was not entitled to administrative relief under the two notices because the notices were not intended to relieve from criminal liability taxpayers who willfully failed to file their FBARs. Further, the notices did not apply to taxpayers who did not report all their taxable income and pay all taxes due.

The Seventh Circuit affirmed James' conviction for failing to file reports of foreign bank accounts and filing false income tax returns. The court noted that IRS Notices 2009-62 and 2010-23 provide relief for two groups of taxpayers: (1) taxpayers who failed to report all their taxable income could belatedly report their income and resolve their tax liabilities through the Voluntary Disclosure Program; and (2) persons who properly reported their income and paid all taxes due but merely failed to timely file their FBARs could file the delinquent FBARs along with a statement explaining why the FBARs were late.

James conceded that he was not eligible for the Voluntary Disclosure Program and that he never filed a statement explaining why his FBARs were late. The court said that James did not properly report all of his taxable income or pay all of his taxes and, thus, he was not entitled to the relief from criminal or civil penalties provided in the notices. When the IRS extended the FBAR due dates in the notices for otherwise compliant taxpayers, the court observed, James was already under investigation by the IRS.

The court also concluded that the district court properly excluded evidence relating to the funding of James's business entities except for his personal contributions to the partnership. The court rejected James's position that loans by third parties to JAS Partners were loans to him as a general partner that increased his basis in the partnership. The court noted that James failed to provide any legal support that a loan to the partnership is a loan to the general partner.

For the years in issue, James conceded that he failed to indicate on Form 1040, Schedule B, Interest and Ordinary Dividends, that he had access to foreign bank accounts even though he had signature authority over several foreign accounts during those years. Because James was not entitled to relief under the IRS notices and he presented no evidence to rebut the claim that his tax returns were false, in part due his failure to check the proper box on his Schedule B, the court affirmed James convictions for failing to file FBARs and filing false returns.

For a discussion of information reporting for foreign bank accounts, see Parker Tax ¶203,170.

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Motor Home Loan Interest Was Qualified Residence Interest; Unsubstantiated Business Deductions Result in Penalties

A couple who operated a consulting business was entitled to deduct the interest they paid on a loan secured by their motor home because the interest was qualified residence interest; however, their deduction for a laptop computer was disallowed for failure to establish its business use, and unsubstantiated deductions were also disallowed. Dunford v. Comm'r, T.C. Memo. 2013-189 (8/20/13).

Keith and Ena Dunford operated a consulting business, Exam Group, LLC. The couple maintained a home in Illinois and did much of their consulting work at various locations around the United States while living in their motor home. For 2005 and 2006, the Dunfords filed joint tax returns and, on their Schedules C, Profit or Loss From Business, they reported income and expenses from Exam Group, LLC. In 2002, the Dunfords purchased a motor home, which they used for both business and personal travel during the years in issue. As security for the loan on the motor home, the bank had a lien on the motor home.

For 2005 and 2006, the Dunfords conducted most of their consulting work away from Illinois, and traveled and stayed in their motor home during this time. The dominant motive for their travel was personal, and the couple kept no contemporaneous logs that showed the business character of their travel. The Dunfords did not maintain books or records for Exam Group; however, they kept numerous receipts of their business and personal expenses for 2005 and 2006. The couple also billed their clients for most of the business expenses they incurred and deducted all their reimbursed expenses as travel and meal expenses on their tax returns.

After auditing the couple's returns, the IRS allowed deductions for the business expenses that the Dunfords' billed to clients but disallowed most of the non-billed expenses. The IRS also disallowed interest deductions on the motor home loan, disallowed the deduction for a laptop computer, and disallowed deductions relating to the business use of the motor home, as well as many other miscellaneous deductions. The IRS determined that the couple had tax deficiencies of approximately $32,600 for 2005 and $40,400 for 2006, and that they were liable for accuracy-related penalties for each year. The Dunfords took their case to the Tax Court.

Code Sec. 6001 requires taxpayers to keep sufficient records to substantiate their gross income, deductions, credits, and other tax attributes. Reg. Sec. 1.6001-1(e) provides that taxpayers must retain their books and records as long as they may become material in the administration of any internal revenue law. Certain expenses are subject to the strict substantiation rules of Code Sec. 274(d). Those rules apply to expenses for travel, meal and entertainment, and certain listed property, such as passenger automobiles and computers. Taxpayers must substantiate with adequate records the: (1) amount of the expense, (2) time and place the expense was incurred, (3) business purpose of the expense, and (4) business relationship of the taxpayer to other persons who benefited from the expense.

Code Sec. 163(h)(3) allows a deduction for interest paid on acquisition indebtedness incurred to acquire a qualified residence. The total amount a taxpayer can treat as acquisition debt at any time on the taxpayer's principal residence and a second home cannot be more than $1 million ($500,000 if married filing separately).

The Tax Court held that the Dunfords were entitled to deduct the loan interest on their motor home as qualified residence interest. The interest was qualified residence interest because the Dunfords incurred the loan to acquire the motor home and the loan was secured by the motor home. The court determined that the Dunfords used their motor home as a residence, did not rent it out, and lived in the motor home for more than 14 days for each of the two years in issue.

Compliance Tip: Code Sec. 163(h)(4)(A)(i)(II) requires that a qualified residence be "selected" by the taxpayer for purposes of Code Sec. 163(h) mortgage interest deduction. The Dunfords did not "select" the motor home as their second residence on their returns; but Code Sec. 163(h) does not require selection on the return. Reg. Sec. 1.163-10T(p)(3)(iv) permits a taxpayer to "elect" a second residence; but there is no provision in the Code or the regulations that fixes the time or the manner by which a taxpayer makes the selection. The Tax Court concluded that making that selection in litigation is acceptable.

The court disallowed the Dunford's deduction for the purchase of a laptop computer. The computer was a capital expenditure that could only be deducted if the Dunfords made an election under Code Sec. 179, which they neglected to do. Because the computer was not used exclusively at a regular business establishment and because the Dunfords did not provide any logs or other evidence to show the percentage of the laptop's business use, no deduction was allowed.

Finally, the court concluded that the Dunfords were liable for accuracy-related penalties for substantially understating their tax because they did not have reasonable cause for the understatements and did not act in good faith in relying on the advice of their return preparer. Although the couple did not have specific training in tax or accounting, they were reasonably sophisticated business people who could tell the difference between a personal expense and a business expense.

For a discussion of the deductibility for mortgage interest on a second home, see Parker Tax ¶83,515.

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Frivolous Return Penalty Doesn't Apply to Quaker Expressing Conscientious Objection to Tax

The frivolous return penalty should not apply to a Quaker who conscientiously objects to war and only submitted part of her federal tax liability with her otherwise completed tax return. CCM 20133303F.

A taxpayer timely filed an income tax return listing all items of income and applicable deductions and credits. The taxpayer correctly calculated the tax due, but did not make a payment with the return. Instead, the taxpayer enclosed a letter describing a conscientious objection to the full payment of federal income tax. As a member of the Religious Society of Friends (Quakers), the taxpayer opposes war and the support of war. The taxpayer enclosed a letter with her return explaining this position. In the letter, the taxpayer recited statistics to claim that a certain percentage of federal income tax dollars supports the military. The taxpayer then used this percentage to calculate the amount of tax she is willing to pay; she "withheld" payment of the rest of the tax due.

Code Sec. 6702(a) imposes a $5,000 penalty on a person if two requirements are met. First, the person files what purports to be a tax return that does not contain information on which the substantial correctness of the self-assessment may be judged or contains information that on its face indicates that the self-assessment is substantially incorrect. Second, the information the person includes on the return or the lack of information on the return is based on a position that the IRS has identified as frivolous or a position that reflects a desire to delay or impede the administration of federal tax laws.

The Office of Chief Counsel advised that while the assessment of the Code Sec. 6702 penalty against a taxpayer who presents a frivolous "conscientious objection" does not violate any constitutional provision or amendment, a Code Sec. 6702 penalty was not applicable in the instant situation.

The Chief Counsel's Office noted that courts have consistently held as frivolous arguments that a taxpayer does not need to pay the full amount of federal income tax due based on a "conscientious objection" argument. Accordingly, in Notice 2010-33, the IRS included in its notice of frivolous arguments the contentions that (1) the First Amendment permits a taxpayer to refuse to pay taxes based on religious or moral beliefs and (2) that the Ninth Amendment exempts those with religious or other objections to military spending from paying taxes to the extent the taxes will be used for military spending.

For a discussion of the frivolous return penalty, see Parker Tax ¶262,145.

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Married Taxpayer Does Not Qualify for HOH Filing Status Where Husband Lives Elsewhere Due to Work

Where a taxpayer is not a surviving spouse and meets the applicable requirements for head-of-household filing status, but the taxpayer's spouse is away because of business and plans to share a common household with the taxpayer in the future, the taxpayer cannot be considered a head of a household. CCA 201334041.

In CCA 201334041, an IRS auditor asked the Chief Counsel's Office whether a married taxpayer was eligible to file a tax return as a head of a household for years during which the taxpayer's spouse was living apart from the taxpayer due to the spouse's employment situation. The taxpayer and the taxpayer's spouse were never legally separated and did not intend to live apart permanently.

The Chief Counsel's Office noted that an individual is considered a head of a household only if such individual is unmarried at the close of tax year, is not a surviving spouse, and satisfies requirements under Code Sec. 2(b). In determining whether a person is unmarried, Code Sec. 7703(b) provides that individuals who are married are considered unmarried if all of the following conditions are met:

(1) An individual who is married (within the meaning of subsection (a)) and who files a separate return maintains as his home a household that constitutes for more than one half of the tax year the principal place of abode of a child (within the meaning of Code Sec. 152(f)(1)) with respect to whom the individual is entitled to a deduction for the tax year under Code Sec. 151 (or would be so entitled but for Code Sec. 152(e));

(2) The individual furnishes over one-half of the cost of maintaining that household during the tax year; and

(3) During the last six months of the tax year, the individual's spouse is not a member of that household.

With respect to the third condition, the Chief Counsel's Office noted, Reg. Sec. 1.7703-1(b)(5) provides that an individual's spouse is considered to be a member of the household during temporary absences from the household due to special circumstances. A nonpermanent failure to occupy the household as his abode by reason of illness, education, business, vacation, or military service is considered a mere temporary absence due to special circumstances.

Accordingly, the Chief Counsel's Office concluded that, even if the taxpayer is not a surviving spouse, meets the requirements under Code Sec. 2(b) and Code Sec. 7703(b)(1) and (2), if the taxpayer's spouse was away by reason of business and planned to share a common household with the taxpayer in the future, the taxpayer cannot be considered a head of a household. In such cases, the spouse's absence from the household is considered a mere temporary absence due to special circumstances, and the taxpayer is not eligible to file as head of household.

For a discussion of the requirements to file as head of household, see Parker Tax ¶10,550.

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Nonprofit Tests IRS Prohibition on Political Campaigning by 501(c)(3)s; Court Allows Challenge to Proceed

A suit alleging that the IRS has a policy of not enforcing the prohibition against political campaigning against churches and religious organizations was allowed to proceed; the organization had standing to file the suit. Freedom From Religion Foundation, Inc. v. Shulman, 2013 PTC 252 (W.D. Wisc. 8/19/13).

Entities that are organized and operated exclusively for religious, charitable, scientific, or other specified purposes are exempt under Code Sec. 501(c)(3) from having to pay federal income taxes. As a condition of obtaining a tax exemption under Code Sec. 501(c)(3), an entity must not participate in, or intervene in, any political campaign on behalf of, or in opposition to, any candidate for public office. The Freedom from Religion Foundation (i.e., the Foundation), brought suit in a district court alleging that the IRS has a policy of not enforcing this condition to tax-exempt status against churches and religious organizations. At the same time, the Foundation alleges, the IRS fully enforces the condition against other tax-exempt organizations. The Foundation, which is itself a Code Sec. 501(c)(3) organization, contends that the IRS's policy of disparate treatment violates the Foundation's rights under both the Establishment Clause and the equal-protection component of the Fifth Amendment. As a result, the Foundation asked the district court for declaratory and injunctive relief.

The IRS moved to dismiss the complaint for two reasons. According to the IRS, the Foundation lacks standing to sue, and the suit, which is really a suit against the United States, is barred by sovereign immunity.

The district court rejected the IRS's move to dismiss and allowed the Foundation's suit to proceed. To prove that it has standing to seek injunctive relief, the court said the Foundation had to show that it is under threat of suffering "injury in fact" that is concrete and particularized; that the threat is actual and imminent, not conjectural or hypothetical; that the threat is fairly traceable to the challenged action of the IRS; and that it must be likely that a favorable judicial decision will prevent or redress the injury. According to the court, the Foundation showed all of these things in its suit. If it is true that the IRS has a policy of not enforcing the prohibition on campaigning against religious organizations, the court said, then the IRS is conferring a benefit on religious organizations (the ability to participate in political campaigns) that it denies to all other Code Sec. 501(c)(3) organizations, including the Foundation. The court found that, as a victim of the IRS's alleged discrimination, the Foundation has suffered an injury in fact. Moreover, the court observed, because the Foundation alleged that the IRS's policy is ongoing, the injury is more than actual and imminent - the court found that the Foundation is being deprived of equal treatment right now. This injury, the court noted, is fairly traceable to the actions of the IRS, since it is the IRS's own policy that is causing the alleged unequal treatment. Finally, an injunction prohibiting the IRS from continuing this policy of unequal treatment will prevent any further injury, the court said. Thus, the court concluded that the Foundation had standing to sue. The IRS made a number of arguments against the Foundation's having standing, all of which the court rejected as having no merit.

With respect to the IRS's second argument, that because the suit is against the United States, the Foundation must point to a waiver of sovereign immunity, the Foundation pointed to the second sentence of 5 U.S.C. Section 702, which is part of the Administrative Procedure Act (APA). That sentence says: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

The IRS did not dispute that the Foundation's suit met all the requirements specified in the above sentence. However, it contended that the suit did not fall within Section 702's waiver of sovereign immunity for three reasons: (1) the Foundation did not have standing to sue; (2) the Foundation had identified no "final agency action" that could be reviewed under the APA; and (3) the challenged agency action, to the extent it is final, is not reviewable under the APA because it is committed to agency discretion by law. The court noted that it had already rejected the IRS's first argument. With respect to the IRS's second and third arguments, the court said they failed because they depended on the false premise that the Foundation was challenging the IRS's policy pursuant to the APA. In fact, the court observed, the Foundation was challenging that policy pursuant to the Fifth Amendment's equal-protection component and the Establishment Clause. Thus, the limitations on claims brought pursuant to the APA-including the requirement that the claim involve a final agency action and the requirement that the claim not involve a matter committed to agency discretion by law-did not apply. However, the second sentence of Section 702, the court said, still waives the United States' sovereign immunity in this case because that sentence is not limited to claims brought under the APA itself but generally applies to any action for prospective relief, including an action involving a constitutional challenge.

For a discussion of the requirements to maintain tax-exempt status under Code Sec. 501(c)(3), see Parker Tax, ¶60,510.

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S Corporation Liable for Employment Taxes and Penalties for Not Paying Salary to Owner

The Tax Court held that an S corporation owed employment taxes on the salary that it should have paid to its president, and was liable for penalties for failing to timely file employment tax returns and failure to timely deposit employment taxes. Sean McAlardy Ltd, Inc. v. Comm'r, T.C. Summary Opinion 2013-62 (8/12/13).

Sean McAlary obtained a California real estate sales license in 2002 and began earning commissions selling residential real estate in Southern California. He got his real estate broker's license in 2004. Sean hired a tax return preparer to provide business advice and services in connection with his real estate activity. The return preparer organized Sean's business as an S corporation, Sean McAlardy Ltd, Inc., and the minutes of the business stated in part that:

"Annual Compensation for Sean McAlary, President of the Corporation, shall be based on the number of Revenue Generating Real Estate Agents and Associate Brokers (Affiliates) associated with the Corporation. The Annual Base Compensation shall be $24,000 when the number of Affiliates is not more than ten (10). Annual Additional Compensation in the amount of $10,000 shall be earned for each increment of ten (10) Additional Affiliates. No Additional Compensation shall be earned for any partial increment of ten (10) Affiliates."

In 2006, the S corporation's sales agents operated as independent contractors, and they earned between 60 to 85 percent of the sales commissions generated on real estate sales they initiated and closed, with the S corporation retaining the balance. During 2006, Sean supervised eight sales agents, four of whom generated sales commissions for the corporation that year.

Sean filed a Form 1120S for Sean McAlardy Ltd, Inc. on December 11, 2007, reporting gross receipts of $518,000, various deductions totaling $287,000, and net income of $231,000. The S corporation did not issue a Form W-2, Wage and Tax Statement, to Sean, nor did it claim a deduction for any amount paid to Sean as wages or compensation for services. Nor did the S corporation file Form 940 for 2006 or Form 941 for any quarterly period ending in 2006. Sean did not report any amount for wages or salaries on his form 1040, nor did he report or pay any self-employment tax during 2006. On Schedule E, Supplemental Income and Loss, Sean reported a loss of $15,000 on Part I, Income or Loss From Rental Real Estate and Royalties, income of $201,000 on Part II, Income or Loss From Partnerships and S Corporations, and total income of $186,000 on Part V, Summary. During 2006, Sean transferred a total of $240,000 from the S corporation's account to his personal account.

The IRS asserted that $100,755 of the $240,000 Sean received from the S corporation during 2006 should be treated as his wages. According to the IRS, Sean, acting in his capacities as the S corporation's sole officer and real estate broker, performed a variety of services that were essential to the corporation's operations and overall success and should have been paid a salary. The IRS assessesed deficiencies for underpayments of employment taxes and also assessed penalties for failing to timely file employment tax returns and failure to timely deposit employment taxes.

An employee in the IRS's engineering and valuation program opined that $100,755 represented reasonable compensation. In computing Sean's reasonable compensation for 2006, the IRS employee first concluded that Sean's primary job function was that of a real estate broker supervising real estate agents. He then consulted the California Occupational Employment Statistics Survey for 2006, determined that the median wage for a real estate broker in southern California was $48.44 per hour, and multiplied that amount by 2,080 hours (40 hours per week x 52 weeks per year) to arrive at total annual compensation of $100,755. In support of his conclusion that $100,755 represented reasonable compensation for Sean's services during 2006, the IRS employee compared the S corporation's financial performance with that of its peers in the real estate industry. He consulted the Risk Management Association Annual Statement Studies and noted that the S corporation's 44.7 percent profit margin for 2006 far surpassed the 21.9 percent average profit margin for the industry. It was noted during the trial, however, that the 44.7 percent profit margin did not account for the S corporation's obligation to pay Sean's reasonable compensation. Assuming reasonable compensation of $100,755, the S corporation's profit margin only slightly exceeded the industry average.

The S corporation argued that the court should respect the salary agreement between it and Sean, which set his annual base pay at $24,000 and provided for increased compensation if Sean was able to recruit additional sales agents and associate brokers. Sean testified that he provided the S corporation's tax information to the tax return preparer, and that he counted on him to properly compute the corporation's tax liabilities. Reliance on the advice of a tax professional may establish reasonable cause and good faith.

The Tax Court held that Sean should have been paid a salary and that the S corporation owed employment taxes on the salary that should have been paid. The court was not persuaded that the salary agreement represented a sound measure of the value of the services that Sean provided to his S corporation during 2006. The court was skeptical of the agreement inasmuch as Sean sat on both sides of the table when the agreement was executed, occupying the positions of both employer and employee. The agreement, the court noted, clearly was not the product of an arm's-length negotiation. Instead, the court concluded that $40 an hour (or annual compensation of $83,200) represented reasonable compensation for the various services that Sean performed for the S corporation.

Considering all the facts and circumstances, the Tax Court was not persuaded that the S corporation exercised ordinary business care and prudence and was nonetheless unable to file Forms 940 and 941 by the date prescribed by law or unable to remit the proper amount of employment taxes to the IRS. Thus, the court upheld the IRS's additional tax and penalty assessments.

For a discussion of reasonable compensation for S corporation shareholders, see ¶31,927.

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IRS Denies Tax-Exempt Status to Medical Marijuana Cooperative

The IRS ruled that an organization's primary activity of facilitating and organizing transactions between members who cultivate and possess cannabis is illegal under federal law and, thus, the organization did not qualify for tax-exempt status. PLR 201333014.

Three individuals formed a state nonprofit cooperative association. Its Articles of Incorporation stated that it was formed for the pleasure, recreation, and other nonprofit purposes authorized under Code Sec. 501(c)(16); however, its website noted that the state had classified its corporate status as "suspended."

The stated purpose of the organization is to facilitate and organize transactions between members who collectively cultivate and possess marijuana for medical purposes. This includes promoting, advocating, and financing the safe and legal access of medical marijuana for therapeutic and medical purposes as well as research. The organization will limit access to any marijuana it owns or possesses to its members who, under state law, are qualified medical marijuana patients and/or primary caregivers. Any person or entity that is a qualified patient or caregiver, as defined by state law, may submit a membership application to become a member of the cooperative.

The cooperative may enter into marketing, crop purchase, or other agreements with any member or patron. The agreements may incorporate provisions relating to the harvesting, handling, packing, processing, selling, shipping, delivery, or title transfer of cannabis produced by the member or patron. After delivery, the organization may receive unqualified power to take title over and process, sell, dispose, or transfer the cannabis.

The incorporators are engaged in the production of cannabis and have associated themselves together to form a nonprofit cooperative association. The incorporators are not organizations exempt from federal income tax under Code Sec. 521, or members of such organizations.

The organization applied to the IRS for exemption from tax under Code Sec. 501(c)(16). Code Sec. 501(c)(16) describes corporations organized to finance the ordinary crop operations of its members or other producers. The corporation must be organized by a Code Sec. 521 farmers' cooperative, or the cooperative's members, and operated in conjunction with the Code Sec. 521 farmers' cooperative that organized it.

The IRS denied tax-exempt status to the organization. The IRS stated that, while the organization appeared to satisfy the applicable provisions relating to capital stock and a reserve, it did not satisfy the other organizational requirements of Code Sec. 501(c)(16) because (1) the state had suspended its corporate status and thus it did not meet the first organizational requirement of Code Sec. 501(c)(16); (2) it did not show that it was created by a Code Sec. 521 farmers' cooperative; or (3) that its incorporators were members of a Code Sec. 521 exempt farmers' cooperative. The IRS also noted that the organization's articles of incorporation stated that it was "formed for the pleasure, recreation and other non-profit purposes listed under Code Sec. 501(c)(16)." As "pleasure" and "recreation" are not exempt purposes listed under Code Sec. 501(c)(16) or the accompanying regulations, the IRS concluded that the organization did not completely satisfy the organizational requirements of Code Sec. 501(c)(16).

Finally, the IRS observed that the organization's activities violate the general principle that tax deductions and exemptions are not applicable to activities that are illegal. The cooperative's primary activity of facilitating and organizing transactions between members who cultivate and possess cannabis, the IRS stated, is illegal under federal law. Congress, the IRS said, has made a determination that marijuana has no medical benefits worthy of an exception to the general rule that the manufacture and distribution of cannabis is illegal.

For a discussion of the requirements that must be met to be a tax-exempt Code Sec. 501(c)(16) organization, see Parker Tax ¶60,510.