IRS ANNOUNCES LIEN RELIEF
In December, the Service said it would expedite processing of requests to subordinate a tax lien to another lien or discharge it in some cases where a home is being sold for less than the amount secured by a mortgage. See Announcement IR-2008-141. The IRS typically takes about 30 days from a taxpayer’s submission of a completed application to process a certificate of lien subordination, it said, but “will work to speed those requests in [the] wake of the economic downturn.” The IRS issues more than 600,000 notices of liens on real and personal property a year, adding to the more than 1 million federal tax liens outstanding.
FIDUCIARY FEE BUNDLING EXTENDED
The IRS extended to tax years beginning in 2008 a full deduction for “bundled” fees paid to a trustee or executor of a nongrantor trust or estate rather than treatment as a miscellaneous itemized deduction subject to the 2% floor under IRC § 67(a). “Unbundling” such expenses is otherwise required under proposed regulations (Prop. Treas. Reg. § 1.67-4) prompted by the Supreme Court’s decision to grant certiorari in Knight v. Commissioner (101 AFTR2d 2008-544; see also “Tax Matters: Supreme Court Upholds Trust Expense Floor,” JofA, March 08, page 73, and subsequent coverage). Last February, the Service announced that it would publish “without delay” after the comment deadline expired on May 27, 2008, final regulations that might contain safe harbors for distinguishing expenses not subject to the floor. In Notice 2008-116, issued on Dec. 11, 2008, the IRS extended relief for bundled fees another year and reiterated its intention to publish final regulations consistent with Knight.
AICPA SUGGESTS RETIREMENT PLAN FIXES
The AICPA has submitted comments as requested by the IRS in Revenue Procedure 2008-50 updating the Employee Plans Compliance Resolution System (EPCRS). The 103-page revenue procedure prescribes methods of correcting lapses and errors in administering tax-qualified employee retirement plans. Recommendations drafted by the AICPA’s Employee Benefits Tax Technical Resource Panel address such circumstances as when an employer adopts an automatic enrollment provision but fails to withhold amounts from an employee’s compensation. Two recommendations concern correcting errors in administering Roth 401(k) accounts, such as erroneously making a pretax elective deferral for a Roth account. In that case, the AICPA suggested, the employee should be allowed to make a retroactive Roth designation and pay tax on it in the year of the correction. The comments also requested further clarification of a number of points and may be viewed at http://tinyurl.com/7uteyf.
PREPARER PENALTIES GUIDANCE ISSUED, COMMENTS SOUGHT
With Notice 2009-5 (2009-3 IRB), the Service issued interim guidance on section 6694(a) preparer penalty standards in light of amendments by the Emergency Economic Stabilization Act of 2008, PL 110-343 (EESA). The changes, part of the Tax Extenders and AMT Relief section of the act, reversed field on the penalty threshold, which Congress in 2007 heightened to require a reasonable belief that an undisclosed tax position was “more likely than not” to be sustained upon examination. The AICPA and others argued that having a preparer standard higher than the “substantial authority” standard applicable to taxpayers under section 6662(d) would cause difficulties between tax practitioners and clients. In response, Congress in the EESA changed the preparer standard to “substantial authority” retroactively to the enactment date of the more-likely-thannot standard for positions other than those related to tax shelters and reportable transactions.
The guidance in Notice 2009-5 discusses transitional rules related to the 2007 and 2008 changes in standards and the definition of “substantial authority” for purposes of the preparer penalty standard. It also provides interim compliance rules with respect to tax shelter transactions. Under those rules, a preparer can avoid the section 6694 penalty with respect to a tax shelter transaction if there is a substantial authority for the position, the preparer advises the taxpayer of the penalty standards applicable to the taxpayer if the position is deemed to have a significant purpose of tax avoidance or evasion, and the preparer contemporaneously documents the giving of that advice. Thus, the preparer must advise the taxpayer that there must be substantial authority for the position, that the taxpayer must possess a reasonable belief that the position taken is more likely than not the proper treatment, and that the disclosure will not protect the taxpayer from the accuracy-related penalty.
Comments on the interim rules are requested by March 16 and may be submitted by mail or via e-mail at Notice.Comments@irscounsel.treas.gov with “Notice 2009-5” in the subject line.
RESPITE FOR § 403(B) COMPLIANCE
Sponsors of 403(b) employee retirement plans received relief from a requirement that they have a written plan in place by Jan. 1, 2009, that satisfies requirements of IRC § 403(b) and final regulations published in July 2007 (TD 9340). Because some sponsors did not previously have an approved plan in place and there has been no program by which they might obtain assurance that it satisfies the requirements, the IRS in Notice 2009-3 allowed limited relief during the 2009 calendar year, provided that the sponsor adopts a plan before the end of the year that is intended to satisfy the requirements as of the beginning of 2009 and operates it accordingly. Sponsors must also make their best effort to retroactively correct any failures during the year in accordance with the EPCRS (see “AICPA Suggests Retirement Plan Fixes,” above).