Dear Client:

The third quarter of 2009 has seen a flood of new federal tax developments. We'd like to highlight some of the more important federal tax developments for you. As always, please give our office a call or send us an email if you have any questions about these developments.

 

Health care reform
Congress returned to work after its August recess with health care reform at the top of its agenda. The tax provisions in the pending bills are very different from each other and it is unclear at this time which will be enacted. The House has proposed a surtax on higher-income individuals to pay for heath care reform. This approach has little support in the Senate. A final Senate bill is likely to include new taxes on high-dollar health insurance plans. President Barack Obama wants Congress to get a health care reform bill to the White House before 2010. Our office will keep you posted of developments.

 

Audits
The IRS is gearing-up to launch a new employment tax compliance project. The project is expected to focus on four areas: worker classification, fringe benefits, non-filers, and officers' compensation. Taxpayers will be randomly selected for the NPR study of employment tax noncompliance.

 

Penalties
The IRS announced a temporary freeze on the collection of Code Sec. 6707A penalties in July and extended the moratorium in September. Many small businesses have complained that the penalties are out of proportion to any tax benefits received. In some cases, small business owners purchased benefit plans that turned out to be tax shelters. The IRS will suspend collection through December 31, 2009 in cases where the annual tax benefit from the transaction is less than the penalty imposed under Code Sec. 6707A(b)(2): $100,000 for individuals or $200,000 for other taxpayers, per year. The suspension is intended to give Congress time to pass corrective legislation.

 

Levies
In July, IRS Chief Counsel determined that the agency can levy on a taxpayer's health savings account (HSA). The taxpayer would also be liable for an additional tax because an IRS levy on an HSA is not a distribution to pay qualified medical expenses.

 

First-time homebuyer credit
The first-time homebuyer credit, which reaches 10 percent or $8,000 of the purchase price of a qualified residence, was set to end after November 30, 2009 has now been extended.  Additionally, certain homeowners will be eligible for a $6,500 credit even if they are not a first-time homebuyer.   

 

Motor vehicle sales tax deduction
In July, the IRS reminded taxpayers that the motor vehicle sales tax deduction may be claimed for more than one vehicle but the deduction per vehicle is limited to the tax on up to $49,500 of the purchase price of each qualifying vehicle. The deduction phases out for higher-income individuals. If you are considering a new car or truck purchase before year-end, please contact our office for more information about this valuable tax incentive.

 

Compensation
In July, the IRS determined that discounted stock options do not qualify as performance-based compensation. Compensation paid on the exercise of discounted stock options will be subject to the $1 million deduction limit in Code Sec. 162(m) for public companies and will not qualify for the exception for performance-based compensation.

 

Filing status
The Tax Court signaled in July that it does not plan to extend married filing joint status to same-sex couples anytime soon (Merrill v. Commr.). Married filing joint status is based on a marriage, the court found. The Defense of Marriage Act of 1996 declared for federal purposes that marriage is between a man and a woman and a spouse is defined as a person of the opposite sex.

Voluntary disclosure
Earlier this year, the IRS announced a temporary initiative to encourage taxpayers with undisclosed foreign bank accounts to come forward. The offshore disclosure program was originally scheduled to end on September 23, 2009. The IRS extended the deadline to October 15, 2009. Taxpayers must pay back taxes plus interest and penalties for six years and the IRS will waive the 75 percent fraud penalty. The IRS has indicated it will not seek criminal prosecution.

 

FBAR
The IRS also extended temporary relief for certain filers of Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR), to October 15, 2009. Eligible taxpayers are taxpayers who recently learned that they had FBAR filing obligations for years prior to 2009 and taxpayers who recently learned that they have a current FBAR filing requirement for 2009 but did not have sufficient time to properly file by the June 30 due date. Taxpayers with signature authority over foreign accounts and taxpayers with foreign hedge funds or private equity accounts have an extended due date of June 30, 2010.

 

Foreign bank accounts
In August, the U.S. and Switzerland resolved their dispute over disclosing the names of Americans with accounts at Swiss banking giant UBS AG. Information from as many as 4,500 UBS accounts may ultimately be disclosed to the IRS.

 

Roth IRAs
Effective for 2010, individuals will be able to roll over funds to a Roth IRA regardless of current income and other restrictions, the IRS reminded taxpayers in September. The IRS also issued interim guidance on rollovers from employer plans to Roth IRAs. It's not too early to start planning for Roth IRA conversions. Please contact our office if you have any questions.

 

Retirement savings
President Obama and the IRS announced new initiatives in September to encourage Americans to save for retirement. The IRS issued seven rulings and notices to streamline automatic enrollment in retirement plans and more..

 

Refunds
Starting in 2010, taxpayers can check a box on their return to use all or part of their refund to purchase Series I U.S. savings bonds. The bonds will be mailed directly to the taxpayer.

 

Privilege
The IRS won an important victory when the First Circuit Court of Appeals ruled in August that tax accrual workpapers were not protected from disclosure under the work product doctrine (Textron v. U.S.). The court agreed with the IRS that the taxpayer had waived any applicable privilege by disclosing the workpapers to an independent auditor.
Listed transactions
The IRS updated its roster of listed transactions in July. These are transactions the IRS has identified as abusive and which are subject to special disclosure and registration rules. The IRS also updated its list of transactions of interest. These are transactions the IRS is monitoring for abuses.

 

S corporations
S corporations are a popular choice of business entity. The IRS reminded S corporation shareholders that when corporate officers perform a service for the corporation and receive or are entitled to payments, these payments are considered wages..

 

LLCs and LLPs
In July, the Tax Court rejected the IRS's claim that members of limited liability companies (LLCs) and limited liability partnerships (LLPs) should be automatically presumed not to materially participate in the entities' activities under the Tax Code or temporary regulations.

 

 

These are just highlights of some of the important federal tax developments during the third quarter of 2009. Please contact our office for more details.

Sincerely yours,

Aaron Blau, E.A. and the staff of Alan Blau and Associates, Ltd.