Newsroom March 27, 2009
First $2,400 of Unemployment Benefits Tax Free for 2009
IR-2009-29, March 26, 2009 — All or part of unemployment benefits received in 2009 will be tax free for many unemployed workers, according to the IRS.
IRS Seeks Volunteers for Taxpayer Advocacy Panel
IR-2009-28, March 24, 2009 — Volunteers sought to serve on the Taxpayer Advocacy Panel, which collects input from taxpayers and reports on how to improve IRS service.
First-Time Homebuyers Have Several Options to Maximize New Tax Credit
IR-2009-27, March 18, 2009 — Taxpayers are reminded that they can claim homebuyer credit for 2009 purchases this year or by amending their 2008 tax return.
IRS Eliminates Inserts Related to Business Mailing
IR-2009-24, March 13, 2009 — In an effort to improve its communications with taxpayers, the IRS will eliminate the nearly dozen inserts that go into a notice informing businesses that they owe additional tax.
If you suspect a client is providing fraudulent information, you should report it to the IRS. See Publication 3857 to find out what may indicate fraudulent activity and where to report it.
Issue Management Resolution System (IMRS) and Hot Topics
Catch up with the latest IMRS monthly overviews and hot issues.
The spring issue of the SSA/IRS Reporter is now available on IRS.gov.
This edition contains the following articles and more:
- Final Regulations Issued for Automatic Contribution Arrangements
- Critical Priorities…With Monika Templeman - Today’s Discussion: Update on the Enrolled Retirement Plan Agent Program
- Attention All 2009 Form 1099-R Issuers
- Highlights of the Retirement News for Employers
This publication provides important information for Tax Professionals and Authorized IRS e-file Providers regarding applying and participating in IRS e-file. All participants should read this publication to become familiar with the requirements for continued participation
The latest additions to the series of new forms for correcting errors on employment tax returns are now available.
- Form 943X, Adjusted Employer's Annual Federal Tax Return for Agricultural Employees or Claim for Refund
- Form 944X. Adjusted Employer's Annual Federal Tax Return or Claim for Refund
- Form 945X, Adjusted Annual Return of Withheld Federal Income Tax or Claim for Refund
Revenue Ruling 2009-7 announces the new rates of interest. It will be published in IRB 2009-13 dated March 30, 2009.
· Specialty Taxes: Estate and Gift and Employment Taxes - Tuesday, May 12, 2009
IRS will no longer sponsor Tax Talk Today - The May 12, 2009 program will be the last live Tax Talk Today show. Archived programs will be available online through Sept. 30, 2009.
IN THE NEWS (TITLES AND ARTICLES ARE BELOW)
IN THE NEWS (TITLES AND ARTICLES ARE BELOW)
1. IRS Cuts Penalties to Lure Tax Evaders * Wall Street Journal
2. IRS: Offshore Account? Tell Us Now *
3. The I.R.S. Will Lower Penalties for Some Offshore Tax Evaders * New York Times
4. UBS Offshore Customers Offered Eased Tax Penalties * Bloomberg
5. US Increases Pressure on Swiss Bank Clients * Associated Press
6. IRS Offers Reduced Penalties for Offshore Accounts * Dow Jones
7. GETTING PERSONAL: IRS Offshore Rules Should Coax Disclosure * Dow Jones
8. IRS Launches Crackdown on Offshore tax Evasion * Reuters
9. Tax Reporting: New IRS Penalty Structure for Offshore Accounts Encourages Voluntary Disclosure * BNA Daily Tax Report
10. Tax Havens: Treasury to Launch Strategy to Address Tax Havens, Geithner Tells House Panel * BNA Daily Tax Report
11. First $2,400 of Unemployment Benefits Tax Free for 2009, IRS Says * Tax Notes Today
12. Tax Relief Set for Unemployment Benefits *
13. Exempt Organizations: Grassley Says Subpoena of Church Data Possible if Televangelists Do Not Cooperate * BNA Daily Tax Report
14. First Circuit Grants Government’s Request for En Banc Review in Textron * Tax Notes Today
15. Prosecutors: Barry Owes $277,000 in Back Taxes *
16. FEDERAL DIARY: Where Were All the Senators? *
A key part of the program, IRS officials said, is "developing intelligence" on bankers, lawyers, accountants and others who help the rich hide assets from tax authorities. This raises the likelihood that the IRS and the Justice Department could take aim at major financial firms, as they have against UBS AG, the Swiss bank that admitted in a settlement last month that some of its bankers had helped U.S. clients evade taxes.
Lawyers representing clients who are trying to make amends with the IRS said their clients are being prodded to name those who helped them set up offshore accounts, or risk losing the leniency they would receive by coming forward.
"The IRS is clearly interested in information about bankers, financial advisers, lawyers and intermediaries," said Scott D. Michel, a lawyer at Caplin & Drysdale who helps clients navigate the IRS's voluntary process to pay back taxes. "Lawyers who go in for voluntary disclosures are being asked to identify any such people with whom their clients interacted."
As the federal government struggles with rising deficits and public anger over financial bailouts, the White House and Congress have begun to focus on reducing tax evasion as a way to ease the financial strain. Recently, under pressure from the
For those holding accounts hidden from the IRS, "this is a chance to come clean on their own," IRS Commissioner
Under the new program, account holders must voluntarily disclose unreported offshore income and pay any back taxes, interest and penalties. That typically includes paying all back taxes and interest going back a maximum of six years, filing or amending returns, and paying a penalty equivalent to 20% of the value of an account during the tax year in which the account had its highest value.
Previously, IRS penalties could be so severe that a taxpayer might wind up paying more in back taxes, interest and penalties than the value of the foreign account.
In addition, if taxpayers come forward voluntarily before the IRS has launched an audit, they likely would escape criminal proceedings.
The IRS devised the program as the federal government neared a victory in its battle with UBS over its role in encouraging tax evasion by
As a result of the UBS case and other ongoing efforts, the IRS said, the number of people who have come forward to declare offshore accounts has more than doubled this year over the same period in 2008.
Jack Blum, a
It is unclear exactly how many Americans are hiding taxable income in secret bank accounts abroad, or how much in taxes they are evading.
A report issued by the U.S. Senate Permanent Subcommittee on Investigations last July said the
*A penalty equal to 20% of the highest aggregate value at any point during the last six years for all previously secret foreign accounts.
Until now, the IRS could impose penalties of at least 50% for all years in which an account wasn't disclosed. In some cases, that could exceed the value of the offshore holdings.
The IRS said those already under criminal investigation for tax evasion are too late to qualify. But the agency said UBS account holders not part of such a probe would be eligible.
Robert McKenzie, a lawyer for more than a dozen American clients with UBS accounts, predicted the program would prompt more disclosures because it would enable evaders to compute their liability "almost to the penny" -- which wasn't possible before. The IRS said the number of Americans who have disclosed foreign accounts has more than doubled this federal fiscal year over 2007-08.
The announcement comes amid a
New York Times March 27, 2009 Section: B The I.R.S. Will Lower Penalties for Some Offshore Tax Evaders By LYNNLEY BROWNING
The current penalty is up to 50 percent of the highest annual balance of each account for each of the last three years -- an amount that can quickly wipe out an investor and still leave him owing taxes and interest. While the number of Americans coming forward this year to disclose hidden assets has doubled, the I.R.S. said, it is still not enough.
Now, the I.R.S. will reduce that penalty to 5 to 20 percent, depending in part on whether the wealth was inherited. It will also levy the penalty just once, on the highest balance in the accounts over the last six years.
Still, with many accounts holding securities that have plunged in value because of faltering stock markets, the new lowered penalty will still have some sting.
Under the plan, the I.R.S. will also require taxpayers to pay any taxes and interest owed over the last six years. It will also assess either the standard, accuracy-related penalty of 20 percent, or a 25 percent penalty for filing returns late. Taxpayers in the program must also file amended returns for the last six years.
Americans have six months to take the deal. Those under criminal investigation for tax evasion are not eligible. While some Americans who enter the program are likely to provide information about the bankers, lawyers and accountants who assisted them, such cooperation is not a requirement to participate.
BLOOMBERG March 26, 2009 UBS Offshore Customers Offered Eased Tax Penalties (Update3) (Adds details on IRS policy and lawyer’s comment, beginning in 19th paragraph.) By Ryan J. Donmoyer
"There have been some clients who have been fearful of the penalties and this may be the final piece of information they need," said Matthews, who was also once a deputy assistant attorney general in the Justice Department’s tax division. He is now a partner at the Morgan Lewis law firm in
Those tools include interviews with the taxpayers and third parties, and issuing summonses, Fink and Shott said, as well as seeking information from foreign governments through tax-treaty networks. The IRS released the memos today.
IRS Policy Under long-standing IRS policy, taxpayers who voluntarily disclose potential tax problems before the agency pursues them can generally avoid harsh penalties, including criminal prosecution. IRS spokesman
Associated Press March 26, 2009 US Increases Pressure on Swiss Bank Clients By DEVLIN BARRETT
The federal tax collection agency is ratcheting up the pressure on Americans who kept secret Swiss bank accounts, giving them six months to come clean and cough up any evidence against their advisers or bankers.
Tax lawyers told The Associated Press Thursday that demands for information and evidence have increased sharply since the government sued UBS (nyse: UBS - news - people ) AG to try to get the names of tens of thousands of U.S. citizens who may have dodged taxes through Swiss accounts.
The Obama administration wants UBS to turn over information on as many as 52,000
Swiss authorities have vowed to fight to protect their tradition of bank secrecy.
Robert McKenzie, a Chicago-based lawyer who has more than a dozen Swiss bank clients seeking to voluntarily disclose their account information to the government, said more recent clients who have come forward are now being asked a slew of new detailed questions about how the accounts were handled, and by whom.
"My view is the IRS is now looking to find those who promote these financial devices, and give advice on these financial devices, and expand the investigation," said McKenzie.
McKenzie said new clients coming forward are now confronting a list of nearly 30 detailed questions, asking not just about financial documents, but any travel to conduct banking business, documents and correspondence related to the accounts, and which bank employees helped them manage the accounts.
Those with such Swiss accounts include doctors, immigrants, and even a retired American bank executive, McKenzie said.
"The procedure used to be, 'You show me a little, I'll show you a little,'" said Horn. "Now they want information up front. They're asking specific questions about when an account was opened, who helped you open it, and if a law firm was used to open it."
Shulman, the IRS commissioner, told reporters on a conference call Thursday that the agency was offering a six-month window for offshore bank clients to come forward under terms he called fair but firm.
Those who come forward on their own can expect to pay back taxes and interest for a six-year period, as well as a penalty of 20 percent of the amount held in the accounts in whatever year their balance was highest, Shulman said.
DOW JONES March 26, 2009 IRS Offers Reduced Penalties for Offshore Accounts By
Those account holders will owe taxes and interest on untaxed amounts going back six years, plus penalties as outlined in new IRS guidance, said IRS Commissioner
"For offshore account holders who continue to hide their head in the sand, the situation will only become more dire," Shulman said.
Under long-standing IRS guidelines, those who voluntarily turn themselves in will not face criminal prosecution. But the IRS on Thursday set penalties that will apply, in order to provide predictability and entice more tax evaders to come in from the cold.
The new penalty framework applies to voluntary disclosure cases that are pending, and to individuals who disclose within the next six months.
Those individuals will be assessed either a delinquency penalty for failure to pay in a timely manner, up to 25% of the tax owed, or an accuracy penalty for understating taxes due, up to 20% of the tax owed.
In addition, they will be charged a penalty of 20% of the aggregate amount in all foreign bank accounts in the year with the highest account value.
That 20% penalty is in lieu of all other penalties. For instance, participants will be able to avoid a penalty for failure to disclose the foreign bank account of up to 50% of the value of the account each year the account wasn't disclosed.
IRS officials said that individuals who aren't currently under criminal investigation and who haven't been notified of a civil examination will qualify. That is likely to include thousands of
The agency on Thursday announced penalty limits for individuals who step forward voluntarily to report assets they have hidden in offshore accounts.
The limits apply to voluntary disclosure cases already under way and to people who step forward within the next six months. In these cases, individuals will either be assessed a delinquency penalty for failing to pay on time, up to 25% of the tax owed, or an accuracy penalty for understating taxes due, up to 20% of the tax owed.
In lieu of all others that may apply, the IRS may assess a penalty equal to 20% of the amount in the account (or aggregate accounts), based on the year with the highest account value.
The IRS also said account holders will owe taxes and interest on untaxed amounts going back six years.
The guidelines come as the IRS continues a crackdown on offshore accounts through a high-profile government investigation involving thousands of people with Swiss bank accounts managed by UBS AG.
At issue is whether people evaded taxes on
The guidance will help clear up uncertainty over how harshly the government may treat taxpayers who want to come forward in the UBS and other cases. Until now, the wide range of possible penalties had people scared, according to Bryan Skarlatos, a partner at Kostelanetz & Fink LLP, a
"There was always the potential that the IRS could take very punitive action," says Skarlatos.
Scott D. Michel, an attorney at Caplin & Drysdale, noted that the penalty for willful failure to comply with a key filing requirement could have been as high as 50% of the value of the account. "That was a big fear and disincentive for people who otherwise wanted to clean these accounts up," says Michel.
Another big positive for account holders is the six-year look-back period defined by the IRS. That time-frame eases a worry that the IRS could collect taxes and interest on decades of account holdings.
Still, the new guidelines won't change the general approach many tax attorneys take to voluntary disclosures.
As the UBS case has unfolded, tax attorneys have been urging people with undisclosed accounts to enter into the voluntary disclosure practice at the IRS. While the program doesn't guarantee specific outcomes, it often results in more lenient civil penalties. It also protects against criminal prosecution.
WASHINGTON (Reuters) - The U.S. Internal Revenue Service announced new steps on Thursday aimed at getting taxpayers hiding money in offshore accounts to pay up, promising not to file criminal charges for those who voluntarily fess up to hiding money overseas.
"This is a chance for people to come clean on their own," IRS Commissioner
While promising not to prosecute criminal charges, the IRS would impose penalties and interest on past due taxes, he said.
IRS memos sent to agency examination staff said offshore tax cases should "receive priority treatment."
"Offshore cases sent to the field are work of the highest priority," said one document, which was made public by the IRS. "Examiners should utilize the full range of information gathering tools in properly developing offshore issues with special emphasis on detecting unreported income. This includes interviewing taxpayers, making third-party contacts and timely issuing summonses to taxpayers and third parties."
Daily Tax Report The Bureau of National Affairs, Inc. Federal Tax & Accounting March 27, 2009
The Internal Revenue Service March 26 announced it has put a new penalty structure in place designed to encourage taxpayers with offshore assets to come into its voluntary disclosure program, offering those who comply the chance to avoid criminal prosecution and a battery of additional penalties.
The agency unveiled a set of memorandums it sent to the highest officials in the Large and Mid-Size Business Division, the Small Business and Self-Employed Division, and Criminal Investigations, stressing a heightened focus on audits of offshore issues as well as the new structure.
Under the voluntary disclosure guidelines, IRS will look back six years and taxpayers must pay taxes, interest, and an accuracy or delinquency penalty for all years.
Central Feature 20 Percent Penalty.
In a conference call with reporters, Commissioner of Internal Revenue Douglas Shulman stressed this will be available only to those who disclose voluntarily and called the new structure "a firm but fair resolution to these cases." He cautioned that "this guidance will be for the next six months only. For taxpayers who continue to hide their head in the sand, the situation will only become more dire."
Both Shulman and two senior IRS officials who spoke to reporters on background stressed that taxpayers who do not disclose continue to face fully developed exams, the possibility of combinations of steep penalties, and potential criminal prosecution.
However, "my goal has always been clear and that is to get taxpayers who are hiding assets offshore back into the system," Shulman told reporters. With the structure that IRS has developed, "taxpayers will pay back taxes, interest, and a significant penalty, but can avoid criminal prosecution."
IRS Addresses Issue of Names in Possession.
The initiative appears to leave open the voluntary disclosure option for taxpayers whose names are on lists obtained by IRS from outside sources, such as foreign banks, if those taxpayers are not facing criminal charges.
The agency noted in the statement that "voluntary disclosure depends on the facts and circumstances involved in each case. Taxpayers with unreported offshore income should immediately discuss with their tax professional their options to get right with the government, including taking advantage of coming in voluntarily."
Penalty Framework Outlined.
The three memorandums IRS made available March 26, all dated March 23, addressed different facets of the voluntary disclosure issue. The agency also released the section of its Internal Revenue Manual addressing voluntary disclosure.
The guidance will remain in effect for six months starting March 23, IRS said, stressing that "all voluntary disclosure requests are mandatory work."
IRS Provides Details of Process.
Agents who specialize in offshore audits will work the cases, and the resulting closing agreements will be reviewed and executed as prescribed by existing delegation orders.
First, agents will assess all taxes and interest due going back six years, or the earliest year within that six-year period in which an account was opened or acquired or an entity was formed. They also will require taxpayers to file or amend all returns, including information returns and Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts, commonly known as an FBAR.
Second, agents will assess either a 20 percent accuracy penalty or a 25 percent delinquency penalty on all years, with no reasonable cause exception allowed.
Third, in lieu of all other penalties that may apply, including FBAR and information return penalties, IRS will look at the amounts in the foreign bank accounts or entities in each of the six years and impose a penalty equal to 20 percent of the amount in the accounts or entities in the year with the highest aggregate account/asset value.
Smaller Penalty Available in Some Cases.
IRS said it will reduce that latter 20 percent penalty to 5 percent in cases where (1) the taxpayer did not open or cause any accounts to be opened or entities formed, (2) there has been no activity during the period when the account or entity was controlled by the taxpayer, and (3) all U.S. taxes have been paid on the funds in the account or entity.
"The terms outlined herein are only applicable to taxpayers that make voluntary disclosure requests, and who fully cooperate with IRS, both civilly and criminally," the memo said.
In a second memo unveiled by IRS March 26, the agency emphasized to SB/SE examination area directors and SB/SE industry directors that "offshore cases sent to the field are of the highest priority. Examiners should use the full range of information gathering tools in properly developing offshore issues, with special emphasis on detecting unreported income."
IRS said techniques should include interviewing taxpayers, making third-party contacts, and timely issuing summonses to taxpayers and third parties.
Increased Stress on Offshore Exams.
"In particular, examiners should request foreign-based information through exchange of information under applicable treaties and tax information exchange agreements (TIEAs) in any cases where the taxpayers have accounts or transactions in countries with such agreements,"IRS said.
The memo urged examiners to be "alert to the badges of fraud"and said managers should ensure that income and penalty considerations are sufficiently developed and documented.
In addition, the memo said IRS will no longer allow taxpayers the chance to minimize their exposure to penalties through the terms of the agency's Last Chance Compliance Initiative (LCCI). All notices and letters with respect to the LCCI, as well as relevant sections of the Internal Revenue Manual, are in the process of being obsoleted.
For currently open exams where taxpayers already have been offered terms under LCCI, they will be allowed to resolve their cases using that initiative if they respond to their examiner within 15 days, IRS said.
Practitioners React to Guidelines.
The new voluntary disclosure guidelines generally drew praise from practitioners, although some expressed caution about how they would be applied.
"We've been looking for something like this for quite some time,"
He said in his view, the certainty offered in the new guidance is likely to bring more people into the voluntary disclosure program, and "we would encourage clients to take them up on this offer."
Previously, Matthews said, many clients were hesitant because so many different penalties could potentially apply, and IRS has now put together "a more one size fits all approach. I think it's a simple, fairly understandable system," he told BNA.
Charles Rettig, Hochman, Salkin, Rettig, Toscher, & Perez, PC, was more measured, saying, "It is great for the IRS to finally get an initiative together on this issue. Practitioners have been pushing for guidance re offshore voluntary disclosures for quite some time."
However, he stressed, "Hopefully, the penalty administration in this guidance will not be harshly applied for taxpayers who came in early, before the initiative. Fairness in application of this initiative is important for the future of voluntary disclosures over the long term.
"Practitioners and future taxpayers need to know those who come in voluntarily will be treated fairly, and certainly better than others who were discovered before deciding to comply," Rettig said.
The havens plan was itself part of a four-part strategy for such reform described both in Geithner's written testimony and in a description outlining Treasury's proposals on the agency's Web site.
The larger four-part strategy includes addressing systemic risk, protecting consumers and investors, eliminating gaps in the existing regulatory structure, and fostering international coordination.
According to the Treasury description, the havens plan would be included under the piece that deals with international coordination.
"To keep pace with increasingly global markets, we must ensure that international rules for financial regulation are consistent with the high standards we will be implementing in the
The March 26 House Financial Services Committee hearing addressed the piece of the four-part strategy dealing with systemic risk.
Tax Notes Today March 27, 2009 FIRST $ 2,400 OF UNEMPLOYMENT BENEFITS TAX FREE FOR 2009, IRS SAYS
The IRS has announced (IR-2009-29) that all or part of unemployment benefits received in 2009 will be tax free for many unemployed workers. The relief provided under the American Recovery and Reinvestment Act of 2009 includes making the first $ 2,400 of unemployment insurance exempt from tax.
According to the IRS, a record 5.6 million individuals were receiving unemployment benefits in mid-March. The IRS urged all unemployed workers to consider the special tax break as they plan their tax withholding and quarterly estimated tax payments for the year.
The new law does not affect the returns that taxpayers are currently completing, just next year's. Unemployment benefits received in 2008 and prior years remain fully taxable. Individuals should use Form W-4V, "Voluntary Withholding Request," or the equivalent form provided by the payer to request that withholding begin or end. Form W-4V is also available on the IRS Web site at http://www.irs.gov or by calling the IRS toll free at 1-800-TAX-FORM (829-3676).
The Internal Revenue Service said Thursday all or part of unemployment benefits received in 2009 will be tax free.
“The changes in the new law will provide relief to Georgians receiving unemployment benefits by suspending taxes on the first $2,400 of those benefits,” said IRS Spokesman Mark Green in a news release.
Under the federal government’s stimulus plan, people who get unemployment benefits during 2009 can exclude the first $2,400 of those benefits when they file their tax return next year. For a married couple, the exclusion applies to each spouse separately, the IRS said.
The new law doesn’t affect the return taxpayers are filling out now. Unemployment benefits received in 2008 and prior years remain fully taxable.
“The changes in the law will largely impact individuals preparing 2009 tax returns filed next year, in 2010,” Green said.
Daily Tax Report The Bureau of National Affairs, Inc. Federal Tax & Accounting March 27, 2009
Sen. Charles Grassley (R-Iowa), in his weekly phone call with
Since 2007, Grassley, Senate Finance Committee ranking member, has been investigating six televangelists for possible abuse of their tax-exempt status after reports of their lavish lifestyles reached his office. Grassley wrote to the television ministers requesting information on expenses, executive compensation, and amenities given to executives at the various ministries (215 DTR G-1, 11/7/07).
Grassley said on the call with reporters that he has received almost complete answers from two of the six ministries, and he is making progress with the others. The two that have given complete answers have submitted themselves to what he called "an evangelical accounting board" to make sure that they are following IRS rules to remain tax exempt.
"It's kind of a Good Housekeeping Seal of Approval for churches that are members of it to pledge to do certain things to make sure that their money is handled in a secure way as a trustee for the donor's money," he said.
For the one or two ministries that are still holding out, Grassley said: "We haven't decided yet to take the step of a subpoena, but it looks like that's what we will have to do."
Kenneth Copeland Ministries of
So far, Grassley said Joyce Meyer of Joyce Meyer Ministries of Fenton, Mo., and Benedictus Hinn of World Healing Center Church Inc. and Benny Hinn Ministries of Grapevine, Texas, have provided extensive answers to all questions in a series of submissions. Incomplete responses have been submitted by: Randy and Paula White of Without Walls International Church and Paula White Ministries of
Creflo and Taffi Dollar of World Changers Church International and Creflo Dollar Ministries of
Tax Notes Today March 27, 2009 FIRST CIRCUIT GRANTS GOVERNMENT'S REQUEST FOR EN BANC REVIEW IN TEXTRON
The U.S. Court of Appeals for the First Circuit has granted the government's motion for an en banc rehearing of a decision involving application of the work product doctrine to tax accrual workpapers.
On January 21 a First Circuit panel had held that tax accrual workpapers are protected by the work product privilege even if the documents are required by financial reporting rules and remanded the case to the district court for a determination of whether Textron Inc. might have waived the privilege by disclosing the documents to its outside auditor. (For analysis of the decision, see Doc 2009-1883 or 2009 TNT 20-7. For the First Circuit's opinion in United States v. Textron Inc. et al., No. 07-2631 (1st Cir. Jan 21, 2009), see Doc 2009-1304 or 2009 TNT 12-11.)
But on March 25, a majority of the circuit judges voted to rehear the case en banc, vacating the panel's earlier judgment. A day earlier, the court denied Textron's appeal for a rehearing on the remand of the issue of potential waived privilege. (For the court's order, see Doc 2009-6744.)
Dissenting in the appellate panel's 2-1 decision for Textron in January, Judge Michael Boudin offered a strong critique, saying the majority's analysis had not correctly interpreted circuit precedent and that Textron's position had been made "scholarly mince-meat" by academic articles on the subject.
Tom Callahan of Thompson Hine said the court's grant of en banc review was not particularly surprising. Boudin's dissent "laid out a succinct argument for why the full circuit should rehear the case," he said.
Gilbert S. Rothenberg, acting deputy assistant attorney general of the Justice Department's Tax Division, said "the government is pleased that the First Circuit has withdrawn the panel's opinion in this case and has determined to hear en banc the important question of whether attorney work-product privilege is available for tax accrual workpapers that are prepared by a public corporation to comply with financial reporting requirements."
Although some commentators have said any final ruling in the matter will have little precedential value given the change in regulatory standards governing tax accrual workpapers, Callahan said a taxpayer win would still be important. "A decision by the First Circuit that Textron's tax accrual workpapers are protected by privilege would set up a strong foundation for other privilege cases," he said. But he also agreed that workpapers would be "hard to keep under wraps" with the advent of FASB Interpretation No. 48, "Accounting for Uncertainty in Income Taxes," and other securities reporting standards.
Dennis J. Ventry Jr., a professor at University of California-Davis School of Law, said the circuit court's denial of Textron's appeal and grant of en banc review was important procedurally. "The issues respecting waiver, and in particular, the possibility that a court could find waiver of work product in the event a company's auditors incorporate work product into their own workpapers, will not be before the en banc court," he said. Instead, the sole issue to be determined is "whether workpapers are generated in the ordinary course of business, irrespective of litigation, and/or as required by the securities laws."
The First Circuit has six seats for active judges, but one is vacant, leaving five judges available for en banc review. Ventry noted that one of the judges who participated in the January decision was sitting by designation and is prohibited from participating in the rehearing. Thus, in effect, Textron has "lost one of the votes that provided it the panel majority."
"The government lives to fight another day -- to prove that workpapers are created for financial accounting purposes, not for litigation," Ventry said.
James G. Hartford, a tax professional in
"My hope is that the rehearing also undertakes a more thorough analysis of the relationship between Textron and [Ernst & Young], especially looking at how possible litigation between them could affect privilege claims,"
Lawrence Hill of Dewey & LeBoeuf LLP said the court's order was not unexpected. "The work product waiver analysis employed by the court was problematic," he said.
A review of data from the Administrative Office of the U.S. Courts shows that out of 7,759 cases decided on the merits by the First Circuit since October 1999, only 14 have been granted en banc review.
The disclosure came in court papers filed by federal prosecutors who are asking a judge to revoke Barry's probation for tax offenses because he did not file his federal or D.C. returns for 2007 in a timely manner. U.S. Magistrate Judge Deborah A. Robinson has scheduled a hearing for April 2.
Barry, 72, who recently had a kidney transplant, is on three years probation for failing to file tax returns from 1999 through 2004 and for not paying the bulk of taxes owed on more than $500,000 he earned during that period.
In court papers, federal prosecutors have urged Robinson to revoke Barry's probation because he has not filed his taxes on time in eight of the past nine years. They say Robinson should send Barry to jail, put him in a halfway house or extend his probation another two years.
Barry has argued that serious illnesses distracted him from filing his taxes on time for 2007. He filed them on Feb. 17, a week after federal prosecutors moved to have his probation revoked.
Federal authorities have not previously disclosed how much Barry owes the U.S. Treasury. But in the court papers filed today, they disclosed that Barry still owes $277,688.05 in back taxes, according to an affidavit filed today by Don Sender, an IRS special agent.
The IRS is garnishing $1,350 every two weeks from Barry's paycheck, Sender wrote. The Council member makes about $92,530 a year in salary.
Seder added that Barry's 2007 return says the councilmember owes the federal government $6,512 in taxes for that year.
Federal prosecutors noted that Barry also owes back taxes to the District, but they did not disclose that figure.
Barry, a former mayor, has not made a payment on those back taxes since July, they wrote.
The councilmember's attorney, Frederick D. Cooke Jr., declined to comment.
Everyone knows that people are the most important asset in any organization.
Even politicians who bash the federal bureaucracy praise the hard-working stiffs who staff it. And it's the Office of Personnel Management that oversees many of the policies that can make working for Uncle Sam a pleasure or not.
So why did nearly all members of the Senate Homeland Security and Governmental Affairs Committee considering the qualifications of the man nominated to lead that office stay away from his confirmation hearing as if he had a communicable and terminal disease?
The audience section of the hearing room in the
The two senators who attended the hearing, Daniel K. Akaka (D-Hawaii) and George V. Voinovich (R-Ohio), did their duty well.
Those absent included members of the subcommittee that oversees federal employee issues: Democrats Carl M. Levin (Mich.), Mary Landrieu (La.), Roland W. Burris (Ill.), Michael Bennet (Colo.), and Republican Lindsey O. Graham (S.C.). They could have raised unasked questions about the Federal Employee Health Benefits program, telework and pay parity between civilian and military personnel, among a host of other issues.
The truth is, they didn't miss much. As is customary, M. John Berry introduced his family -- his sister, his brother and his partner of 12 years, Curtis Yee. Refreshingly, having an openly gay person in a high government position is no longer a big deal, which is not to say homophobia is dead.
Yet, it's also true that the hearing could have revealed more about his plans, more about his vision, more about where he will take the workforce had the absent senators been there to offer their questions and insights.
He delivered expected pleasantries about the civil service carrying on a "proud American tradition," saying "we are fortunate to have the best and the brightest" and "as the nation's largest employer, we should be its 'model employer.' "
What are those creative approaches, an absent senator might have asked.
Akaka and Voinovich played that role, but they should not have had to do so alone.
Akaka, for example, asked about "fixing the broken hiring process," with Voinovich later following up with a comment about that process being "in the Dark Ages."
Akaka asked about OPM's poor showing on the Partnership for Public Service list of best places to work. The agency was number 25 out of 30 in the latest rankings from 2007.
Voinovich pushed for a more detailed answer. When
"You're going to have to spend the next couple of years shaping that place up," the senator from
Voinovich also asked about the pay-for-performance systems that have come under attack by employees at the Defense Department and the Transportation Security Administration.
Max Stier, the Partnership's president, got it right when he said, "Mr. Berry is likely to be one of the most important appointments made by President Obama to the success of his agenda, although he is unlikely to receive anywhere close to the attention he deserves."
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