White House Moratorium on Issuing Regulations Affects Issuance of Proposed Partnership Audit Rules

(Parker Tax Publishing February 2017)

The White House has ordered a moratorium on regulations, with certain exceptions, and the removal of regulations which have been sent to the Office of the Federal Register but not yet published in the Federal Register. This edict affects proposed regulations on the new partnership audit regime which had been issued by the IRS but not yet published in the Federal Register. White House Memorandum Regarding Regulatory Freeze (1/20/17).

On January 20, the White House issued a memorandum to the heads of executive departments and agencies of the United States that instructs them not to send any regulations to the Office of the Federal Register (OFR). The moratorium on regulations excludes regulations that relate to emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters. Further, with respect to regulations that have been sent to the OFR but not published in the Federal Register, departments are required to withdraw such regulations. Several tax regulations are affected by this directive, including 277 pages of proposed regulations (REG-136118-15) on the new partnership audit regime which had been released by the IRS but not officially published in the Federal Register. The new partnership audit regime takes effect in 2018.

Regulations on which the moratorium is imposed can only be issued after they have been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2017.

In addition, the effective dates of regulations which have been published in the OFR but have not yet taken effect are postponed until 60 days from January 20, i.e., until March 21, 2017, subject to the exceptions noted above. The purpose of the postponement, according to the White House memorandum, is to review the questions of fact, law, and policy that the regulations address. The memorandum asks the heads of executive departments and agencies of the United States to consider proposing for notice and comment a rule to delay the effective date for regulations beyond the March 21 deadline, where appropriate and as permitted by law.

In addition to freezing the proposed regulations on the new partnership audit regime, other affected regulations include the following:

T.D. 9815, REG-135122-16 - provides final, temporary, and proposed regulations which affect nonresident alien individuals and foreign corporations that hold certain financial products providing for payments that are contingent upon, or determined by reference to, U.S. source dividend payments. These rules also provide guidance to withholding agents that are responsible for withholding U.S. tax with respect to a dividend equivalent, as well as certain other parties to Code Sec. 871(m) transactions and their agents.

T.D. 9817 - provides final regulations under Code Sec. 7704(d)(1)(E) relating to the qualifying income exception for publicly traded partnerships to not be treated as corporations for federal income tax purposes.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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