In her first report to Congress, National Taxpayer Advocate Erin Collins identified taxpayer challenges related to the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136, and the IRS's implementation of the Taxpayer First Act, P.L. 116-25.
Collins was sworn in on March 30, 2020, as the third national taxpayer advocate, in the midst of the COVID-19 pandemic. Prior to her appointment, she was managing director of KPMG's tax controversy practice for the Western region for 20 years, and before that she was an attorney in the IRS Office of Chief Counsel, where she worked for nearly 15 years.
The national taxpayer advocate's report released at mid-calendar year usually identifies the most serious problems encountered by taxpayers and typically assesses the recently completed filing season. Naturally, this year's midyear report focused on the effect of the COVID-19 pandemic, the impact it had on IRS service levels, and the impact the reduced services had on taxpayers. (See the National Taxpayer Advocate Objectives Report to Congress: Fiscal Year 2021.)
The report notes that the IRS must plan for the next significant emergency to avoid some of the challenges it faced during COVID-19. The report makes the following recommendations for the IRS to be prepared for any future national emergency:
- Improve hardware and software to allow IRS employees to work and interact digitally between offices or remote locations;
- Prioritize the modernization of its technology and increase the use of digital communications and the electronic production of documents in a secure environment;
- Continue to provide taxpayer services on multiple channels but be prepared to continue operations if one or more service channels become inoperable; and
- Analyze all core functions to determine how to improve technology to make the duties more portable.
FAQs as IRS guidance
The report notes the IRS Office of Chief Counsel acted quickly to issue guidance as the pandemic unfolded. The Families First Coronavirus Response Act, P.L. 116-127, enacted on March 18, 2020, and the CARES Act enacted on March 27, 2020, created many guidance projects requiring immediate attention. Much of this guidance was released as frequently asked questions (FAQs). The report acknowledges that FAQs do not rise to the level of "published guidance" and cannot be relied on by taxpayers to establish substantial authority for avoiding penalties. The Taxpayer Advocate Service (TAS) recommends that the IRS publicly state that it will follow the FAQs issued during the pandemic and also that the IRS publish a statement in the Federal Register that says:
- The IRS must number and provide effective dates for all FAQs, and the IRS will be prohibited from deleting previously issued guidance from its website, even if it has changed its position (instead indicating when an FAQ is obsolete, if applicable); and
- For penalty relief purposes, taxpayers can rely on an FAQ as authority for returns filed before an FAQ is made obsolete (id., p. 36).
The report notes that this will add permanence and prevent the IRS from changing an FAQ without leaving any evidence. For example, if the IRS issues an FAQ 10, it should provide the effective date of the FAQ and, if the IRS changes its position, add a new FAQ 10.1 with the new position and its effective date. The report also recommends the IRS move obsolete FAQs to a taxpayer-accessible archive that can be used for historical purposes but would not be presented in a way that confuses taxpayers as to which rule applies (id., p. 36).
For a detailed discussion of the issues in this area, see "D.C. Currents: COVID-19 Challenges at Center of National Taxpayer Advocate Report," in the October 2020 issue of The Tax Adviser.
— David Taylor, CPA
The Tax Adviser is the AICPA's monthly journal of tax planning, trends, and techniques.
Also in the October issue:
- An update on recent developments in estate planning.
- A look at issues involving rental real estate.
- A discussion of state and local tax effects of the COVID-19 pandemic.
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