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Newsroom October 22, 2010
2010 IRPAC Report Made Available
IR-2010-105, Oct. 20, 2010 — The Information Reporting Program Advisory Committee (IRPAC) released its 2010 Report.
IRS Issues Final Regulations on New Basis Reporting Requirement; For Investors, Reporting Gains and Losses Gets Easier Starting in 2011
IR-2010-104, Oct. 12, 2010 — The IRS issued final regulations under a law change that will require reporting of basis and other information by stock brokers and mutual fund companies for most stock purchased in 2011 and all stock purchased in 2012 and later years.
IRS Releases Draft W-2 Form for 2011; Announces Relief for Employers
IR-2010-103, Oct. 12, 2010 — The draft Form W-2 for 2011 has been released. Additionally, the new requirement for employers to report the cost of coverage under an employer-sponsored group health plan has been made optional for 2011.
Under the Law No Social Security COLA for 2011
Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 58 million Americans will not automatically increase in 2011, the Social Security Administration announced. Since there is no COLA, the statute also prohibits a change in the maximum amount of earnings subject to the Social Security tax as well as the retirement earnings test exempt amounts. These amounts will remain unchanged in 2011.
IRS Headliners & Technical Guidance
Headliner Volume 303, October 15, 2010 - IRS Begins Accepting Taxpayer Records in Electronic Format
Announcement 2010-81 delays until further notice the renewal period for enrolled agents whose tax identification numbers end in 4, 5, or 6.
Schedule M-3 updated for 2010 – 1120, 1120-L, 1120-PC, and 1120-S.
Events
- Making a Noticeable Difference - Webinar (November 17, 2010)
IRS Exempt Organizations is offering one-day workshops
· Workshop for Small and Mid-sized 501(c)(3)s – Phoenix, Arizona - December 7, 8 & 9, 2010
In The News: If article interest you scroll down to read no links.
1. Information Reporting: IRPAC Tackles New Information Reporting Requirements for Justification by Usefulness *
2. Larger Withdrawals from IRAs This Year May Help U.S. Savers with Taxes * Bloomberg
3. Tax Practice: IRS Demonstrates Tax Preparer Registration Process under New Quality Control System *
4. Wait for Guidance on Roth Conversions, Treasury Official Says * Tax Notes Today
5. Tax Legislation: Quick Carried Interest Guidance Due If Extenders Bill Passes, Official Says *
6. Retirement Plans: Official Says IRS to Follow Up With Plans That Failed to Answer 401(k) Questionnaire *
7. IRS: TIGTA Says IRS Slow to Respond To Investigators' Efforts to Audit *
8. FEDERAL DIARY: At OPM, an Overhaul of Retirement Processing *
BNA Daily Tax Report October 21, 2010
Business system changes required by expanded information reporting requirements will be expensive and have long lead times, the chairman of the Information Reporting Program Advisory Committee told the Internal Revenue Service Oct. 20, and heavy burdens are only justifiable when the data required is expected to be useful to the IRS.
IRPAC Chair Lisa Chavez said IRPAC supports using information reporting to promote tax compliance and help IRS effectively use its audit resources, but said the burden placed on information return filers should be "reasonable." Chavez is senior attorney in the legal department with Northern Trust Company. She added that "distorted or confusing data will only lead to tax return errors and unnecessary audits."
In the last few years, four major tax withholding and information reporting initiatives have become law with effective dates in the very near future, Chavez said. Cost-basis reporting, expanded reporting of payments made to settle payment card and third-party network transactions, expanded information reporting under Form 1099-MISC, and expansive new withholding and tax information reporting rules impacting payments of
IRS Commissioner Douglas Shulman, who attended the IRPAC meeting, said IRS has indeed been given a new toolset to do its job, but he stressed that the service wants to be "savvy" about how the new information from third parties and taxpayers is used.
He gave as an example recommendations by IRPAC on delaying implementation of the requirement that employers report the cost of health care coverage under group health plans.
IRPAC recommended that IRS provide relief for 2011 so that employers will have time to implement the necessary systems, and IRS agreed. "Just last week we said W-2 reporting of the cost of health insurance--the cost to the employer-- will be optional for next year," Shulman said.
Shulman said he felt comfortable delaying implementation of the requirement "because there is no revenue impact to it," and the provision would not be used for tax compliance purposes. Otherwise, he said he is "reticent" to delay implementation of laws Congress has written.
Cost-Basis Reporting.
The IRS's final cost-basis reporting rules came out too late for recommendations on them to be included in IRPAC's 2010 report, released at the meeting, but the group has been working with the service on those rules.
IRS Oct. 12 issued final rules (T.D. 9504) and a notice (Notice 2010-67)(196 DTR GG-1, 10/13/10) that will require reporting of basis and other information by stock brokers and mutual fund companies for most stock purchased in 2011 and all stock purchased in 2012 and later years. This information will be reported to investors and the IRS.
Chavez said it is critical that IRS issue a revised Form W-9, Request for Taxpayer Identification Number and Certification, quickly; and if not, IRPAC asked that penalty relief be provided to payers who are unable to obtain revised W-9s in time to meet the new deadlines.
Tax code Section 6045 currently permits a broker to treat a customer as a corporation if the broker has actual knowledge that the customer is a corporation, as long as the customer files a Form W-9, claiming an exemption as a corporation.
IRS took into account concerns expressed by IRPAC in comment letters, Chavez said. The final rules include a one-year extension for the provision of transfer statements, she said. Transfer statements are no longer required for exempt payments, and the "eyeball test" for per se foreign corporations and insurance companies was preserved, she said. The final rules also limit the types of basis adjustments that are required to be made by reporting parties. "The final regulations clarify that adjustments are not required to be made for straddles, conditional sales, and the more esoteric short sale adjustments," she said.
Section 6050W Reporting.
On another recent law change, Chavez said IRPAC was disappointed with IRS final rules for payments made in settlement of payment card and third-party network transactions because they require reporting on a transaction basis rather than a payment basis.
IRPAC recommended that the gross amount subject to reporting be defined based on payments made, but the final rules kept the proposed definition of gross amount, which takes a transaction approach, Chavez said.
Michael Danilack, IRS deputy commissioner for international in the new Large Business & International Division, had high praise for the advisory committee's work, saying the current level of discussion far exceeds what was done in the past.
Danilack said the formation of an IRPAC international subgroup will be important in bringing a focus to those issues, just as IRS is trying to do with a targeted focus on international issues.
On the Foreign Account Tax Compliance Act provisions of the HIRE Act, known as FATCA, he said there is "a keen need not to lose ourselves on FATCA focus, but to also focus on the Chapter 3 withholding challenges ahead of us." While there is some coming together of those two things, he noted that there are also "two separate realms."
IRPAC discussed with IRS officials coordination of the documentation and reporting rules with other rules that apply under Chapters 3 and 61 of the tax code. This includes the desirability of integrating FATCA compliance with the existing qualified intermediary program when it is appropriate, and the need to avoid duplicative reporting obligations.
The report included discussion of many other topics, such as fair-market-value reporting for deceased beneficiaries and successor beneficiaries, nonresident alien taxation, the tax gap, the need for written guidance on the users and providers of transportation services, and identification of taxpayers that are beneficial owners of tax-exempt private activity bond issues.
BLOOMBERG October 21, 2010
Larger Withdrawals from IRAs This Year May Help
By Danielle Kucera
For
Required minimum distributions from the accounts, which are taxed as ordinary income, generally apply to people with a tax- deferred traditional IRA who are age 70 1/2 and older or inherited one from a parent or spouse.
Savers who may be in a higher tax bracket next year should consider withdrawing more than the minimum in 2010, said Mark Nash, a partner in the Dallas office of New York-based accounting and advisory firm PwC Private Company Services. Required withdrawals are based on a formula of the account balance and the individual’s age.
“Pulling out a large sum in 2010 would lessen the 2011 amount, and make that year’s distribution lower,” said Nash, who advises high net-worth investors.
Account holders took out an estimated $162 billion in taxable distributions from IRAs in 2008, the Internal Revenue Service said, based on data from its website. Sixty-four percent of people who took money out of their IRAs in 2008 did so because of the required distribution, according to a 2010 study by the Investment Company Institute, a Washington-based mutual- fund trade group. IRAs held $4.2 trillion at the end of the second quarter of 2010, up about 11 percent from the second quarter of 2009, according to ICI.
The
Rising Rates
President Barack Obama has proposed allowing the top two marginal income tax rates to rise to 39.6 percent and 36 percent from 35 percent and 33 percent for individuals earning more than $200,000 and couples making more than $250,000. Congress is scheduled to take up taxes when it returns from recess in November.
“This uncertainty doesn’t mean that people shouldn’t be sitting down and doing their planning now,” said Greg Rosica, a tax partner at consulting firm Ernst & Young LLP in
Someone who may be in a lower tax bracket in 2010 because of large deductions or less income should also consider taking a bigger distribution this year to take advantage of lower rates, said Rebecca Pavese, an accountant at Palisades Hudson Financial Group’s national tax practice in Atlanta.
Combine Withdrawals
Taxpayers who aren’t already taxed at top rates should make sure taking a bigger distribution won’t tip them into a higher bracket, said Bill Fleming, a managing director in the
Holders of multiple IRAs can take the required withdrawals in aggregate from one account, said PwC’s Nash. That means they can take the distribution from an IRA with the worst-performing investments, leaving more money in accounts that are doing well, Nash said.
Those who pay estimated taxes during the year can request the account administrator to withhold money from their RMDs and pay income tax just once at the year’s end, said Rosica of Ernst & Young. That way they can hold onto their money longer and invest it without paying a penalty for underpayment, Pavese said.
The law assumes that payments are made equally throughout the year unless the taxpayer states otherwise, according to the IRS.
Charity Deduction
Taxpayers can withhold funds from required distributions to cover tax that’s expected on the distribution or, if they have other sources of income, withhold more to cover quarterly estimated payments, Nash said.
“The IRS doesn’t care as long as you get your tax liability to them either through quarterly estimated payments or through withholding,” he said.
Any IRA account holder can give all or part of a distribution to charity and take a deduction for the donation, said Debbie Cox, a Dallas, Texas-based wealth adviser for J.P. Morgan Private Bank, which is based in
IRA holders should also try to take their required withdrawals at roughly the same time every year to avoid mistakes or forgetting about it, Fleming, of PwC, said.
BNA Daily Tax Report October 21, 2010
Tax Practice: IRS Demonstrates Tax Preparer Registration Process under New Quality Control System
The Internal Revenue Service Oct. 19 offered an online demonstration on how to apply for a preparer tax identification number under the service's new plan to regulate preparers.
The registration process consists of creating an account, completing the application to get a PTIN, paying the $64.25 fee, and finally getting the PTIN,
The PTIN is the first step in improving the quality of tax preparation, Williams said. However, unlicensed tax preparers--who have never before had to register with IRS and be tested--complained bitterly about the new requirements, saying their experience should exempt them.
Williams stressed that, even practitioners who already have a PTIN must reapply for a new one or they will not be allowed to prepare returns after Jan. 1, 2011. Although they must reapply, practitioners who already have a PTIN will most likely be able to keep their old one, he said.
Almost everyone will be affected by the new rules, William said, noting IRS's definition of tax preparer includes anyone who prepares "all or substantially all" of a tax return for a fee.
Some preparers must pass a basic competency test and some will have to undergo continuing education under the new program, he said.
Certified public accountants, attorneys, and enrolled agents are expected to be exempted from the competency testing and continuing education requirements, because they already meet requirements at the state level or with the IRS. Guidance will be forthcoming to address that, he said.
Information about the online registration process can be found on the web at http://www.irs.gov/taxpros/article/0,,id=210909,00.html.
Tax Notes Today October 21, 2010
WAIT FOR GUIDANCE ON ROTH CONVERSIONS, TREASURY OFFICIAL SAYS
Retirement plan sponsors should not act on the in-service Roth conversions authorized by the Small Business Jobs Act of 2010 (P.L. 111-240) until guidance is released, a Treasury official said October 20.
William Bortz, Treasury's associate benefits tax counsel, acknowledged that officials "need to act quickly on this" to permit rollovers for 2010 in remarks made at the annual conference of the American Society of Pension Professionals and Actuaries at National Harbor in suburban Maryland.
Bortz said the guidance will likely be released in tranches and that the first tranche will probably address administrative issues. Because the IRS's systems are "less nimble" than the private sector's, they need to be a priority, he said. (For prior coverage, see Doc 2010-22630 or 2010 TNT 201-5.)
Earlier at the conference, S. Derrin Watson of SunGard Relius also encouraged plan sponsors not to act too quickly. "The IRS is aware of the need for guidance on the five-year recapture tax and the remedial plan amendment period," he said.
But Bortz said that waiting to act assumes that guidance will be prompt and acknowledged that the clearance process has been slower than anticipated over the past year. He did not elaborate on what actions to take if the guidance is slow to come.
BNA Daily Tax Report October 21, 2010
Tax Legislation: Quick Carried Interest Guidance Due If
Speaking at a Practising Law Institute tax strategies seminar, Robert Crnkovich, senior counsel in the Treasury Office of Tax Policy, said that the government would devote the necessary resources to address the issues raised by the bill as quickly as possible in the event of passage.
"It's premature to say what we would do, but we are geared up to respond quickly if legislation is passed in the lame-duck session," he said, adding that officials are ready to work with tax bar groups and would welcome their input.
In the PLI session, Crnkovich fielded a series of questions from practitioners Kathleen Ferrell of Davis Polk &Wardwell and Robert Rizzi of O'Melveny & Myers based on examples they said showed the proposed legislation's potential for overinclusiveness.
In general, Crnkovich said, although it remains to be seen what form any final bill would take, Congress "wanted to make sure that nothing fell through the cracks" and to guard against "end-runs."
The latest version of congressional extenders legislation (S. 3793), which includes the carried interest treatment, was introduced by Senate Finance Committee Chairman Max Baucus (D-Mont.)in September (179 DTR G-7, 9/17/10). It would generally tax carried interest as ordinary income.
Broad Authority Anticipated.
The proposed new code Section 710 to address the treatment of investment services partnership interests (ISPIs) would grant "fairly broad authority to us to write rules," Crnkovich said.
He urged comments from practitioners on "what to put in or leave out" with regard to the coverage examples.
The legislation, for example, could sweep all multitiered structures into the carried interest rules as ISPIs, Rizzi cautioned.
Tiered structures with partnerships and joint venture arrangements could be covered, added Ferrell, who warned that "there may be a lot of scurrying" to take them apart if the legislation passes.
"The guidance will be the main event," Rizzi said, adding that it would be hard to avoid falling under ISPI coverage. The emphasis, he said, would be which part of an investment satisfies the qualified capital interest (QCI) exception. Practical steps will be needed to meet the conditions for a QCI carve-out, he suggested.
On the QCI exception, Crnkovich said that guidance would seek to "strike the right balance between what ought to be qualified capital and what ought to be not."
Although the carried interest legislation is usually discussed in the context of hedge fund profits, people in mergers and acquisitions need to be aware of the potential need to structure their transactions to meet the QCI exception, Ferrell said.
Partnerships and LLCs.
The proposed law could be applied broadly in many contexts, the two practitioners said. The use of partnerships and limited liability companies for joint ventures, for instance, would have to be reviewed if the bill passes, Rizzi said.
"They'd be disfavored," Ferrell said.
Lobbying is under way in
"The carried interest legislation is not limited to carried interest," Rizzi said. "It could extend into transactions that have nothing to do with carried interest."
In their presentation, Ferrell and Rizzi warned that the bill would apply beyond the investment management industry to any industry, including joint ventures in manufacturing. It also would apply to more than "profits" interests, they said, citing the "narrow" QCI exception and warning that not every interest acquired for cash would qualify.
The bill also would do more than just change the character of a partner's distributive share from capital to ordinary income, but could require loss deferral and could override nonrecognition rules, they continued.
It could apply to structures that do not even include partnerships, they said.
Disqualified Income Penalty.
Finally, the practitioners warned of the 40 percent penalty provision of the bill for disqualified income. That provision sends the message of "don't mess with the commissioner," Rizzi said.
"There is a real effort here to make sure people don't try to game these rules," he added.
The PLI seminar covered corporate acquisitions, dispositions, spin-offs, joint ventures, financings, reorganizations, and restructuring.
BNA Daily Tax Report October 21, 2010
The Internal Revenue Service will be following up with tax code Section 401(k) plans that did not respond to the 401(k) Compliance Check Questionnaire, Monika Templeman, director of employee plans examinations at IRS, said Oct. 20 at the annual conference of the American Society of Pension Professionals and Actuaries.
Templeman said IRS was liberal about granting extensions for the questionnaire, which was due 90 days after receipt in May. However, for the few plans that did not return to the questionnaire, "we are preparing visits," Templeman said.
The questionnaire, which went out to 1,200 Section 401(k) plans, made a "wonderful internal audit tool," Templeman said. Plan sponsors that completed the questionnaire and found problems could use the self-correction and voluntary compliance components of the Employee Plans Compliance Resolution System to correct their plans, she said.
Templeman said IRS was not planning on sending out a second round of questionnaires to more plan sponsors, but it was not outside the realm of possibility. She said IRS will analyze the data in this fiscal year, look at what the issues are, and see where there are areas for outreach, and for soft and hard guidance.
IRS International Focus.
"There is a huge interest at the highest levels of government in the tax gap and compliance issues that deal with international issues, where we are seeing noncompliance and confusion," Templeman said. The issues range from those affecting high-wealth taxpayers, to expatriates with individual retirement accounts, to individuals sending money overseas, she said.
Templeman said IRS will be expanding its work in the
In addition,
IRS has also started some audit work in the
Templeman said IRS is also looking at governmental plans, which it considers underserved, and is talking with representatives of those plans to discover their needs. But at this time, "there is no audit initiative aimed at governmental plans," she said.
Abusive Transactions.
Regarding abusive transactions, Employee Plans is actively working with the Small Business/Self-Employed Division on promoter schemes and is trying to stop abuse at its source by going after the promoters and addressing the schemes, Templeman said. Some of the schemes include sham collectively bargained plans and using defined benefit plans as a means for highly compensated operating company officers to minimize their taxable income.
On other enforcement issues, the moderator Michael Coyne, project leader with Waldheger-Coyne in
Templeman responded that IRS looks at trends but not specific cases. IRS does not want to discourage people from using the voluntary correction program, she said.
EPTA Growing.
Templeman said the Employee Plans Team Audit (EPTA) program is growing. There is one EPTA group in every IRS area, with two in the
Templeman said some of the issues that EPTA sees apply to all plans, not just the large ones, including:
. using the wrong calculations for deferral percentage tests--often the fault of third parties that are not properly overseen by the employer;
. using multiple definitions of compensation under tax code Section 401(a)(17); and
. plan document failures, such as form defects, failure to timely amend, or having the document amended and not signed.
BNA Daily Tax Report October 21, 2010
IRS: TIGTA Says IRS Slow to Respond To Investigators' Efforts to Audit
The Internal Revenue Service is not directly resisting or objecting to oversight from the Treasury Inspector General for Tax Administration but it has been slow to respond to investigators'requests, keeping some audits from being completed on a timely basis, the inspector general said in a letter to Sens. Charles Grassley (R-Iowa) and Tom Coburn (R-Okla.).
The June 25 letter, released by the senators to the press Oct. 20 as part of their efforts to monitor the activities and problems faced by the administration's inspectors general, detailed four instances in which TIGTA's Office of Audit received information from IRS "only after a substantial delay."
Some of the delays were attributed to IRS internal rules that prohibit employees from speaking with TIGTA inspectors without a supervisor and/or liaison present and IRS practices that require documents be screened by senior IRS managers before they are provided to TIGTA.
"TIGTA should not be experiencing such lengthy delays in obtaining requested information .... It is unacceptable that TIGTA is not allowed unfettered access to documents and employees. Management pre-screening of documents is not consistent with the Inspector General Act," Grassley and Coburn wrote in their own Oct. 6 letter to IRS Commissioner Douglas Shulman.
Examples of Delays Cited.
TIGTA Inspector General J. Russell George said his office, from Feb. 18 to Feb. 24, had requested all e-mails from 167 IRS employees over a six-month period as part of its efforts to evaluate whether employees are complying with secure e-mail policies and procedures. IRS struggled to respond to the request and TIGTA reduced the scope to a three-month period, but as of May 21 TIGTA received e-mail messages for only 65 percent of the e-mail accounts requested, George said.
In January, TIGTA requested the coordination of scanning activities on a sample of 20 databases within IRS's nonmainframe architecture, but it took 116 days for the scans to be completed.
"The scans required coordination among several parties; however, TIGTA believes the IRS did not place enough emphasis on this task to ensure its completion sooner," George wrote. He said TIGTA also asked that the scan results be shared with database administrators so the results could be discussed with managers. The sharing took an additional 42 days to complete, George said.
TIGTA said its requests for funding, approval, and management oversight documents for the modernized e-File program were delayed or initially denied, keeping it from reviewing the information for up to three months.
Finally, George said IRS's GovTrip Document Management and Records Control Plan states: "GovTrip shall provide a capability for IRS to limit access by TIGTA auditors to specific vouchers or authorizations."
Managerial Reviews Also Noted.
"In general, TIGTA has experienced several instances where documents requested were required to be reviewed and cleared by various levels of managers prior to releasing information to TIGTA representatives," George said.
Despite the delays, George said he had no instances to report in which IRS directly resisted or objected to information requests and he did not report any IRS efforts to threaten TIGTA workers or block their ability to communicate with Congress.
The senators' letter asked Shulman if he was aware of the examples of interference cited by TIGTA and, if so, when he became aware of the problems. The senators also asked Shulman what steps he intends to take to correct the problems and aid information sharing with TIGTA.
An IRS spokesman did not immediately respond to a request for comment.
Text of the letter from Grassley and Coburn to Shulman and the letter from TIGTA to Grassley and Coburn is in TaxCore.
FEDERAL DIARY: At OPM, an Overhaul of Retirement Processing
By
In the latest attempt to fix a dysfunctional federal retiree program, Office of Personnel Management Director John Berry announced Wednesday yet another overhaul of a system that leaves retirees waiting months for their checks.
"We want to do everything we can to put as much of their money - at the end of the day we have to remember this is their money - in their pockets as quickly as we can," he said.
Staffing cutbacks at OPM, similar to those other agencies experienced during the Bush administration, are among the reasons for the long waits. The 130 employees handled 98,000 claims in fiscal 2010, a load just slightly lower than 178 workers were responsible for in 2006, according to OPM.
"We are hiring those people as we speak, and we will be training them and getting them on the front lines as quickly as we can,"
While they wait for OPM to determine what they are due, the agency provides retirees with partial checks.
He added, "We need to get this down to a much more reasonable level."
The system is so slow because OPM needs complete records to process retirement claims, and that's not as simple as it sounds. Federal workers often work for various agencies during their careers. Some have military service, which must be counted. Divorce settlements can complicate matters.
The system is not automated, so all of this generates lots of paper. Details must be checked. If information is missing, it slows the process. It's labor intensive.
"It's time consuming," said David B. Snell, benefits director for the National Active and Retired Federal Employees Association.
Snell wants to see an automated system that captures employees' retirement related information from the time they begin working for the government, sends it to OPM for processing and quickly determines the correct payment amount at the time workers leave federal service.
That certainly is not what happens now, nor will that be the case any time soon.
There is "minimal IT hope on the horizon,"
"There is no question that we face a lot of problems and that there has been an ugly history in our retirement processing area," he told reporters.
That history includes $200 million in largely failed attempts, over more than 20 years, to computerize a federal retirement system that largely relies on pieces of paper, said Matthew Perry, OPM chief information officer.
OPM began an automated processing program in 1987. "Despite 8 years of work, the program was at high risk of failure," said a Government Accountability Office report.
The second effort, from 1997 to 2001, also failed, though like the other attempts, some elements of that program were useful, Perry said.
The latest debacle was a 10-year contract OPM canceled two years ago for a program it called RetireEZ. Uncle Sam paid out $21 million before he pulled the plug.
"I don't want to repeat the mistakes of the past," he said.
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