Tax Impacts

On August 15, 2024, the IRS announced a second Employee Retention Credit (ERC) Voluntary Disclosure Program available to certain employers who wish to self-report that they erroneously received credits for the 2021 tax year. 

Welcome to the October 2023 edition of the Winston & Strawn Monthly Tax Controversy newsletter. In this installment, we highlight both tricks and treats from the spooky month of October concerning recent developments in the IRS’s priorities related to increased tax enforcement of corporations and the announcement of a withdrawal process for employee retention tax credit (ERC) claims.

The Inflation Reduction Act of 2022 (IRA), passed into law on August 16, 2022, represented a shift in the world of U.S. federal tax enforcement. This shift—or as most might suggest, a reversal of course—departed from the IRS that many have come to know in recent years, maligned by funding cuts, widespread attrition, and loss of institutional knowledge needed to administer the nation’s complex set of federal tax laws.

A Tax Court Memorandum Opinion expressing no confidence that a “slipshod-cut-and-paste” notice of deficiency was the version of the notice actually sent to the taxpayer is the latest in a string of rebukes from the Court and Congress questioning the IRS’s ability to retain credible and complete records.

On September 8, 2023, the IRS announced that it will start a “sweeping, historic effort to restore fairness in tax compliance” by focusing its attention on high-income taxpayers, partnerships, large corporations, and promoters.

On August 30, 2023, representatives of the governments of Bangladesh and the Hong Kong Special Administrative Region (SAR) signed a comprehensive avoidance of double taxation agreement (CDTA).

Recent revelations involving documents found to be backdated by the IRS in the case of Lakepoint Land II, LLC v. Commissioner resulted in the Tax Court imposing sanctions on the IRS. Further inquiries ensued as to whether the IRS also proffered backdated penalty documents in other similar cases, hinting at a troubling picture of potentially systemic issues within the IRS.

In a memorandum released on August 18, 2023 (CCM 202333001), the IRS Office of Chief Counsel clarified the eligibility of federal credit unions to claim Employee Retention Credits under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and the Internal Revenue Code.

In this installment, we highlight two recent notable court cases, cover recent developments in Washington related to enforcement efforts related to the Employee Retention Credit (ERC), and highlight recent IRS guidance as to the taxation of staking rewards within the cryptocurrency space.

On Thursday, July 20, the House Committee on Ways and Means Chairman Jason Smith (R-MO-08) and Oversight Subcommittee Chairman David Schweikert (R-AZ-01) announced the Subcommittee’s hearing on “The Employee Retention Tax Credit Experience: Confusion, Delays, and Fraud” to be held the following Thursday. The announcement served to kick-off an unusually busy seven days of Employee Retention Tax Credit (ERTC) related activity in Washington and beyond. This included the publication of new guidance, public outreach, and the hearing itself.

The IRS outlined seven initiatives it seeks to accomplish in furtherance of its goal outlined within Objective Three.

The Supreme Court has released its 5–4 decision in Bittner v. United States, No. 21-1195, holding that the Bank Secrecy Act’s penalty for non-willful failure to file a Report of Foreign Bank and Financial Accounts (FBAR) applies on a per-form basis—and not on a per-account basis, as argued by the government. 

On November 11, 2022, FTX filed for Chapter 11 bankruptcy protection along with over 102 other FTX-affiliated entities. The company operated as a digital asset exchange, with several subsidiaries and affiliates, which included Alameda Research, a related cryptocurrency hedge fund. The bankruptcy of the entire operational enterprise and digital asset hedge fund has been a seismic event in the digital asset community, affecting over one million customers and eliciting attention from numerous governmental and banking organizations, including the Board of Governors of the Federal Reserve System (Federal Reserve), the Federal Deposit Insurance Corporation (FDIC), and the Office of the Comptroller of the Currency (OCC), which recently issued a joint statement calling attention to certain potential risks associated with digital assets and digital asset sector participants. Notably, the SEC and CFTC are also investigating FTX and analyzing acceptable regulatory framework for the industry.

Today, President Biden signed into law the Inflation Reduction Act of 2022 (the “Act”). The Act ushers in, among other things, significant changes to the Internal Revenue Code and provides additional resources for the IRS.

The Senate has passed the Inflation Reduction Act of 2022 (“Act”), sending the bill to the House, where lawmakers are expected to take up the bill later this week.

The Act’s passage follows a busy weekend on the Hill, which included lawmakers forging ahead with the comprehensive reconciliation bill with formal debate and the Senate voting Sunday 51 to 50 to pass the reconciliation bill, with Vice President Kamala Harris casting the tie-breaking vote.

Yesterday afternoon, Senator Joe Manchin (D-WV) and Senate Majority Leader Charles E. Schumer (D-NY) announced a last-minute deal—the Inflation Reduction Act of 2022—containing significant changes to federal tax policy and IRS administration.

On July 27, 2022, Senator Joe Manchin (D-WV) and Senate Majority Leader Chuck Schumer (D-NY) announced that they have reached an agreement on a reconciliation package that stems from negotiations on the Build Back Better Act. H.R. 5376, or the Inflation Reduction Act of 2022, would, among other things: (1) establish a 15% corporate minimum tax; (2) provide for increased Internal Revenue Service (“IRS”) enforcement; and (3) modify the carried interest rules to apply short-term capital gains rates.

On April 21, 2022, the Supreme Court of the United States held in Boechler, P.C. v. Commissioner that the 30-day time limit under Internal Revenue Code (“I.R.C.” or “Code”) § 6330(d)(1) for a taxpayer to file a petition for a collection due process (“CDP”) hearing with the United States Tax Court is a non-jurisdictional deadline. The Supreme Court’s holding is significant because, as a non-jurisdictional deadline, I.R.C. § 6330(d)(1)’s 30-day time limit would not prohibit the Tax Court from considering an untimely filed petition when appropriate.