Mengwasser Martin Lall & Clark P.C.

"A thumb goes up, a car goes by…" Tax extenders remain a top contender for "hitching a ride" on November’s must-pass government funding bill.

Wolters Kluwer recently sat down with Jennifer Acuña, Principal, Federal Legislative and Regulatory Services, KPMG LLP, in Washington, D.C. to discuss over 30 temporary tax provisions known as "tax extenders," which have expired or will soon expire spanning from 2017 to 2019. Before joining KPMG, Acuña served as chief tax counsel for the Senate Finance Committee (SFC), and was previously tax counsel for the House Ways and Means Committee.

New Tax Extenders Climate on Capitol Hill
"There is an interesting dynamic going on with tax extenders on Capitol Hill. In the past, extenders were viewed as a priority item, and that has changed," Acuña said.

Generally, tax extenders have been viewed on Capitol Hill as a consistently bipartisan annual or biannual year-end legislative initiative. However, the fate of tax extenders is more uncertain than it has been in the past – in part because it is not clear yet whether there will be an opportunity for any further tax legislation to become law this year, Acuña observed.

Funding Bill Likely Driver for Tax Package
Lawmakers are revving up negotiations as Congress races against this year’s dwindling legislative calendar to reach an agreement on fiscal year (FY) 2020 appropriations. Government funding is scheduled to expire on November 21.

Given the political climate on Capitol Hill and Congress’s limited time left on the legislative calendar, a stand-alone tax package is considered unlikely to make its way through both chambers successfully. That said, November’s "must-pass" government funding bill could be the legislative vehicle for dozens of expired or soon-to-be expired tax extenders, as well as for any other tax provisions that may crop up during lawmakers’ negotiations.

SFC Chair Chuck Grassley, R-Iowa, and ranking member Ron Wyden, D-Ore., introduced their bipartisan Tax Extenders and Disaster Relief bill (Sen. 617) earlier this year. Subsequently, House Ways and Means Committee Chairman Richard Neal, D-Mass., introduced his version of a similarly named tax extenders bill (HR 3301). However, Neal’s bill—which proposes undoing certain provisions related to estate taxes under 2017 tax reform as a "pay for"—was immediately deemed a nonstarter by Senate Republicans.

Notably, Acuña observed that House Democrats may be viewing their tax extenders bill as an opening offer, providing leverage for a larger tax policy negotiation. "In today’s climate it seems that some of the signaling that’s taking place is that House Democrats are trying to position tax extenders as a Republican priority to build up leverage for a larger tax policy negotiation," Acuña said. "Once you have a tax title on a big bill, there is no limit as to which tax provisions could actually be included in the bill," she added.

Larger Tax Package Could Emerge
In that vein, there has been talk among lawmakers that a larger, catch-all tax package could emerge from these negotiations. Any tax package that is unveiled in the coming weeks must have significant bipartisan support to make it to the president’s desk. That said, amidst the new climate surrounding tax extenders on Capitol Hill. several lawmakers have alluded that bipartisan negotiations could result in any number of tax provisions being added to the anticipated tax package, including technical corrections to the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

Staking Ground on Extenders
"Right now, what is happening is that parties are staking their ground," Acuña said. While Neal’s bill was largely seen on Capitol Hill as an opening bid to these negotiations, "no one opens with their best offer," Acuña said. However, "there is common ground with respect to tax extenders," she added.

Additionally, Acuña noted that these temporary tax provisions benefit a broad range of constituents. "They have been extended historically without fail for a reason. And it is because there has typically been general bipartisan support for extenders; there is a little bit of something for everyone" she said.

However, as for which tax extenders will be renewed this year, as well as retroactively or all together forgotten, Grassley recently indicated that all eligible provisions will likely make the cut. "I would expect that as of right now, if there is an extenders package there won’t be anything left out," Grassley told reporters.

When asked if Grassley was likely referring to all expired or soon-to-be expired tax incentives spanning from 2017 to 2019, Acuña told Wolters Kluwer "that would seem to be the case." While discussing the possibility of yet another temporary extension, Acuña noted that it is hard to make policy calls on a temporary tax extenders package.

"If you want a drama free negotiation on temporary extensions, it’s a clean date change. It is easier – you do not have a policy debate," she said. "If there is an opportunity for a tax title to be attached to a larger bill this year, it is infinitely harder to include changes that some Members of Congress will not like than it is to just do what has been done in the past and kick the can down the road by temporarily extending everything."

In looking ahead, deciding which temporary tax provisions get the axe is a policy call that is unlikely to be made this year and will not easily be done on a bipartisan basis, according to Acuña.

To Pay For or Not to Pay For
As for tax extenders’ cost, the issue of pay-fors has not generally been a longwinded discussion among lawmakers. "In the past, there have been very short-lived debates on whether to pay for them," Acuña said, adding that extenders generally have not been paid for. "It is hard to find a way to raise the kind of money needed to pay for a tax extenders bill that would be politically palatable for both sides of the aisle."

However, cost can be a leading issue when Congress creates these tax breaks on a temporary rather than permanent basis, Acuña explained. "In theory, everyone might agree that a tax incentive is excellent tax policy, but because of revenue constraints, Congress will not or cannot pay for it on a permanent basis—and that is usually where Congress lands in this temporary tax policy pickle."

Additionally, Acuna highlighted that many of the individual tax cuts under the TCJA were enacted temporarily through 2025 due to budgetary reasons. "A lot of the TCJA provisions gave life to new expiring provisions," Acuña noted. Likening the TCJA’s individual provisions to the long list of tax extenders currently awaiting possible renewal, Acuña noted that tax policy is not usually made temporary "because the members viewed the underlying tax policy as unsound but because of other constraints."

The End for Tax Extenders?
Many Republican and Democratic lawmakers’ have called for an end to tax extenders, citing to the annual year-end dash to renew temporary tax provisions as bad tax policy overall. Indeed, five taskforces comprised of bipartisan SFC members recently reviewed these tax extenders and largely agreed that temporary tax policy in general is less than ideal. While many House lawmakers on both sides of the aisle, in this Congress and those before it, have agreed that enacting permanent tax invectives is better policy than doing so temporarily, actually getting there remains a challenge, even if just procedurally.

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The IRS has issued a revenue procedure with a safe harbor that allows certain interests in rental real estate to be treated as a trade or business for purposes of the Code Sec. 199A qualified business income (QBI) deduction. The safe harbor is intended to lessen taxpayer uncertainty on whether a rental real estate interest qualifies as a trade or business for the QBI deduction, including the application of the aggregation rules in Reg. §1.199A-4.

QBI Deduction and Rental Real Estate
Under Code Sec. 199A, certain noncorporate taxpayers can deduct up to 20 percent of the taxpayer’s QBI from each of the taxpayer's qualified trades or businesses, including those operated through a partnership, S corporation, or sole proprietorship. Certain relevant passthrough entities (RPEs) (partnerships, S corporations, trust funds) calculate the deduction and pass it along to their owners or beneficiaries. A qualified trade or business is generally any trade or business under Code Sec. 162, but not a specified service trade or business (SSTB) or a trade or business of performing services as an employee.

Rental or licensing of tangible or intangible property (i.e., rental activity) that is not a Code Sec. 162 trade or business is still treated as a trade or business for the QBI deduction if the property is rented or licensed to a trade or business conducted by the individual or a RPE which is commonly controlled under Reg. §1.199A-4 ( Reg. §1.199A-1(b)(14)).

Earlier this year, the IRS released a proposed revenue procedure with a safe harbor for treating a rental real estate enterprise as a trade or business under Code Sec. 199A ( Notice 2019-7, I.R.B. 2019-9, 740). The IRS has issued the new revenue procedure after considering public comments on Notice 2019-7.

Rental Real Estate Enterprise
The new safe harbor applies to a "rental real estate enterprise." This is an interest in real property held for the production of rents, and may consist of an interest in a single property or interests in multiple properties. The taxpayer or RPE must hold each interest directly or through a disregarded entity, and may either:

treat each interest in similar property held for the production of rents as a separate rental real estate enterprise; or
treat interests in all similar properties held for the production of rents as a single rental real estate enterprise.

Properties are similar if they are part of the same rental real estate category: either residential or commercial. Commercial real estate held for the production of rents can only be part of the same enterprise with other commercial real estate. Residential properties can only be part of the same enterprise with other residential properties.

A taxpayer or RPE that treats interests in similar properties as a single rental real estate enterprise must continue to treat interests in all similar properties, including newly acquired properties, as a single rental real estate enterprise if it continues to rely on the safe harbor. However, a taxpayer or RPE that chooses to treat its interest in each residential or commercial property as a separate rental real estate enterprise can choose to treat its interests in all similar commercial or all similar residential properties as a single rental real estate enterprise in a future year.

An interest in mixed-use property—a single building that combines residential and commercial units—can be treated as a single rental real estate enterprise, or bifurcated into separate residential and commercial interests. A mixed-use property interest that is treated as a single rental real estate enterprise cannot be treated as part of the same enterprise as other residential, commercial, or mixed-use property.

Safe Harbor Requirements
The safe harbor determination must be made annually. For a rental real estate enterprise to qualify for the safe harbor, all of the following requirements must be met during the tax year:

Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise. If an enterprise has more than one property, the requirement can be met if income and expense information statements for each property are maintained and then consolidated.
For rental real estate enterprises in existence for less than four years, 250 or more hours of rental services are performed per year. For rental real estate enterprises in existence for at least four years, 250 or more hours of rental services are performed per year in any three of the five consecutive tax years that end with the tax year.
The taxpayer maintains contemporaneous records (including time reports, logs, or similar documents) on the hours of all services performed, a description of all services performed, the dates when the services were performed, and who performed the services. For services performed by employees or independent contractors, the taxpayer may provide a description of the rental services, the amount of time generally spent performing the services, and the time, wage, or payment records for the employee or independent contractor. Records must be made available for inspection at the IRS's request. (The contemporaneous records requirement does not apply to tax years that begin before January 1, 2020.)
For each tax year for which it relies on the safe harbor, the taxpayer or RPE must attach a statement to a timely filed original return (or an amended return for the 2018 tax year only) that includes: (i) a description (including the address and rental category) of all rental real estate properties in each rental real estate enterprise; (ii) a description (including the address and rental category) of rental real estate properties acquired and disposed of during the tax year; and (iii) a representation that the requirements of Rev. Proc. 2019-38 have been satisfied.

"Rental services" include, but are not limited to:

advertising to rent or lease the real estate;
negotiating and executing leases;
verifying information contained in prospective tenant applications;
collecting rent;
daily operation, maintenance, and repair of the property, including purchasing materials and
supplies;
managing the real estate; and
supervising employees and independent contractors.

Rental services does not include:

financial or investment management activities, such as arranging financing;
procuring property;
studying and reviewing financial statements or reports on operations;
improving property under Reg. §1.263(a)-3(d); or
time spent traveling to and from the real estate.

If an enterprise fails to satisfy the safe harbor requirements, it can still be treated as a trade or business for the QBI deduction if it otherwise meets the trade or business definition in Reg. §1.199A-1(b)(14).

Property Excluded From Safe Harbor
The safe harbor does not apply to:

real estate used by the taxpayer (including an owner or beneficiary of an RPE) as a residence under Code Sec. 280A(d);
real estate rented or leased under a triple net lease, which includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to pay for maintenance activities for a property in addition to rent and utilities;
real estate rented to a trade or business conducted by a taxpayer or an RPE that is commonly controlled under Reg. §1.199A-4(b)(1)(i); or
the entire rental real estate interest, if any portion of it is treated as an SSTB under Reg. §1.199A-5(c)(2).

Effective Date
The safe harbor applies to tax years ending after December 31, 2017. However, taxpayers and RPEs can rely on the prior safe harbor in Notice 2019-7 for the 2018 tax year.

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The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency.

The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency. Under the cryptocurrency guidance:

a taxpayer does not have gross income from a "hard fork" of the taxpayer's cryptocurrency if the taxpayer does not receive units of a new cryptocurrency; and
a taxpayer has ordinary income as a result of an "airdrop" of a new cryptocurrency following a hard fork if the taxpayer receives units of the new cryptocurrency.

The IRS has posted the FAQs on its website ( https://www.irs.gov/individuals/international-taxpayers/frequently-asked-questions-on-virtual-currency-transactions).

Virtual Currency and Cryptocurrency
Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account, and a store of value other than a representation of the U.S. dollar or a foreign currency.

Cryptocurrency is a type of virtual currency that uses cryptography to secure transactions that are digitally recorded on a distributed ledger, such as a blockchain. Distributed ledger technology uses independent digital systems to record, share, and synchronize transactions, the details of which are recorded in multiple places at the same time with no central data store or administration functionality.

Hard Forks and Air Drops
A hard fork occurs when a cryptocurrency on a distributed ledger undergoes a protocol change resulting in a permanent diversion from the legacy or existing distributed ledger. A hard fork may result in the creation of a new cryptocurrency on a new distributed ledger in addition to the legacy cryptocurrency on the legacy distributed ledger. Following a hard fork, transactions involving the new cryptocurrency are recorded on the new distributed ledger, and transactions involving the legacy cryptocurrency continue to be recorded on the legacy distributed ledger.

An airdrop is a means of distributing units of a cryptocurrency to the distributed ledger addresses of multiple taxpayers. A hard fork followed by an airdrop results in the distribution of units of the new cryptocurrency to addresses containing the legacy cryptocurrency. Note, however, that a hard fork is not always followed by an airdrop.

Cryptocurrency from an airdrop generally is received on the date and at the time it is recorded on the distributed ledger. However, a taxpayer may constructively receive cryptocurrency prior to the airdrop being recorded on the distributed ledger. A taxpayer does not have receipt of cryptocurrency when the airdrop is recorded on the distributed ledger if the taxpayer is not able to exercise dominion and control over the cryptocurrency.

Gross Income
If the taxpayer did not receive units of new cryptocurrency from a hard fork, the taxpayer does not have an accession to wealth and does not have gross income as a result of the hard fork.

If the taxpayer receives units of new cryptocurrency from an airdrop following a hard fork, the taxpayer received a new asset. Therefore, the taxpayer has an accession to wealth and has ordinary income in the year in which the taxpayer receives the new cryptocurrency. The taxpayer includes in gross income the fair market value of the cryptocurrency received. The taxpayer’s basis in the new cryptocurrency is the amount of income recognized.

Schedule 1, Form 1040 for 2019
A draft of the 2019 Form 1040, Schedule 1, "Additional Income and Adjustments to Income," includes a question which asks: "At any time during 2019, did you receive, sell, send, exchange or otherwise acquire any financial interest in any virtual currency?" If an individual has engaged in any virtual currency transaction in 2019, he or she must check the “Yes” box next to the question.

If the taxpayer has disposed of any virtual currency that was held as a capital asset, he or she must use Form 8949 to figure the capital gain or loss and report it on Schedule D (Form 1040 or Form 1040-SR). If the taxpayer has received any virtual currency as compensation for services, or disposed of any virtual currency that he or she held for sale to customers in a trade or business, the taxpayer must report the income as he or she would report other income of the same type.

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A district court has dismissed a lawsuit filed by four states’ against the federal government, ruling that the $10,000 state and local taxes (SALT) federal deduction cap is not unconstitutionally coercive.

In 2018, New York, Connecticut, Maryland, and New Jersey filed suit against the IRS and Treasury alleging that the SALT cap violates the federalism principles that undergird the U.S. Constitution. Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York ruled on September 30 that the SALT cap is not an unconstitutional infringement of state power.

The states’ primary concern stemmed from the claim that the introduction of the SALT cap could impair each of the states’ ability to pursue its own preferred tax policies. However, the court noted that Congress lawfully enacted the SALT cap pursuant to its broad tax powers under Article I, section 8 and the Sixteenth Amendment, and that the cap, like any federal tax provision, will affect some taxpayers more than others and, by extension, will affect some states more than others. However, the cap, like every other feature of the federal tax code, is a part of the landscape of federal law with which states make their decisions as to how they will exercise their own sovereign tax powers, according to Oetken. Because the states failed to plausibly allege that the cap, more so than any other major federal initiative, meaningfully constrains this decision-making process, the district court had no basis for concluding that the SALT cap is unconstitutionally coercive.

Background
In 2017, President Trump signed into law sweeping tax reform legislation informally known as the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97), which made several substantial amendments to the federal tax code. Among other things, the TCJA placed an upper limit of $10,000 on the amount a taxpayer may deduct from their federal tax income to offset those sums they have paid toward certain state and local taxes (the "SALT cap"). As enacted, the SALT cap is scheduled to expire at the end of 2025.

Democrats on Capitol Hill Prepare to Move SALT Cap Repeal Bill
Meanwhile, Democratic lawmakers on Capitol Hill are preparing to move a SALT cap repeal bill when Congress returns from its two-week recess. Specifically, Rep. Bill Pascrell, D-N.J. has proposed repealing the SALT cap and raising the top income tax rate from 37 percent to 39.6 percent, where it previously sat. Additionally, Pascrell recently told reporters that House Democrats will likely propose a temporary repeal of the SALT cap as a "compromise."

At this time, however, any Democratic-backed measure to repeal or scale back the SALT cap is expected to fail in the Republican-controlled Senate.

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New final regulations that address the allocation of partnership liabilities for disguised sale purposes revert back to prior regulations. Under the final regulations:

a partner’s share of a recourse liability of the partnership equals the partner’s share of the liability under the rules of Code Sec. 752 and the related regulations; and
a partner’s share of a nonrecourse liability of the partnership is determined by applying the same percentage used to determine the partner’s share of the excess nonrecourse liability under Reg. §1.752-3(a)(3) ( Reg. §1.707-5(a)(2)).

Executive Order Triggers Reversion Back to Prior Disguised Sale Rules
In October 2016, the IRS issued final and temporary regulations (707 Temporary Regulations) under which a partnership would determine all partnership liabilities for disguised sales purposes—both recourse and nonrecourse—by applying the same percentage used to determine a partner’s share of excess nonrecourse liability under Reg. §1.752-3(a)(3) ( T.D. 9788).

In April 2017, the President issued Executive Order 13789 (E.O. 13789) on reducing tax regulatory burdens. In response, the IRS identified the final and temporary regulations in T.D. 9788 as implicating some of those regulatory burdens. In turn, in 2018 Proposed Regulations, the IRS proposed to withdraw the 707 Temporary Regulations and reinstate the regulations under Reg. §1.707-5(a)(2) described above. Now, the IRS has adopted the 2018 Proposed Regulations, thereby reinstating the Prior 707 rules.

Treasury and the IRS will continue to study the merits of the approach in the 707 Temporary Regulations and other approaches, including the final regulations, to determine which results in the most appropriate treatment of liabilities in the context of disguised sales.

Effective Dates
The final regulations apply to any transaction with respect to which all transfers occur on or after October 4, 2019, the date that the 707 Temporary Regulations expire. However, partnerships and their partners may apply the final regulations to any transaction where all transfers occur on or after January 3, 2017, the applicable date of the 707 Temporary Regulations.

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The IRS has released final regulation on the election to take a loss resulting from a federally declared disaster in the year preceding the disaster. The final regulations adopt proposed regulations substantially without change.

Disaster Defined
The regulations provide definitions of:

federally declared disaster;
federally declared disaster area;
disaster loss;
disaster year; and
preceding year.

Scope and Effect of Election
The election for a disaster loss attributable to a particular disaster applies to the entire loss sustained by the taxpayer from that disaster during the disaster year.

Making or Revoking Election
A taxpayer elects to deduct a disaster loss for the preceding year on:

an original federal income tax return for the preceding year; or
an amended federal income tax return for the preceding year.

The election is made in the manner specified by guidance issued pursuant to the regulations.

A taxpayer may not to take a disaster loss in the preceding year if the taxpayer claims a deduction (as a loss, as cost of goods sold, or otherwise) for the same loss for the disaster year.

If a taxpayer has claimed a deduction for a disaster loss for the disaster year and wants to elect the loss for the preceding year, the taxpayer must file an amended federal income tax return to remove the previously deducted loss on or before the date that the taxpayer makes the election for the preceding year loss.

If a taxpayer has claimed a deduction for a disaster loss for the preceding year and wants to revoke that election, the taxpayer must file an amended federal income tax return to remove the loss for the preceding year on or before the date the taxpayer files the federal income tax return or the amended federal income tax return for the disaster year that includes the loss.

Due Dates
The due date for making the election to deduct a disaster loss in the preceding year is six months after the due date for filing the taxpayer's federal income tax return for the disaster year (determined without regard to any extension of time to file).

Subject to the final regulation requirements, a taxpayer may revoke the election on or before the date that is 90 days after the due date for making the election.

Applicability Date
The final regulations apply to elections and revocations that are made on or after the date they are published in the Federal Register.

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Proposed regulations provide guidance on the potential tax consequences of replacing the London interbank offered rates (LIBORs) with a new reference rate in contracts and agreements.

On July 27, 2017, the U.K. Financial Conduct Authority announced that all currency and term variants of the LIBORs may be phased out after 2021. On March 5, 2018, the Alternative Reference Rates Committee (ARRC) established that the Secured Overnight Financing Rate (SOFR) would replace the LIBOR within the United States.

Tax Implications
Because the LIBORs are being phased out, existing debt instruments and derivatives must be amended. Parties will either amend debt instruments or contracts to replace references to the LIBOR with the SOFR (if in the United States). Alternatively, parties may alter debt instruments or contracts to replace the LIBOR-referencing fallback rate with another fallback rate upon the cessation of the LIBOR.

The ARRC has expressed several concerns to the IRS about the potential tax consequences associated with these contract amendments:

Modification of Terms of Debt and Non-Debt Instruments. Currently, there are no regulations under Code Sec. 1001 that address when a modification of a debt instrument, derivative, or other non-debt contract creates a realization event.
Transactions and Hedges. Amending the LIBOR-referencing debt instrument or hedge may cause a deemed termination of the hedge, which could lead to undesirable tax consequences.
Character of a One-Time Payment. Parties may need to agree to a one-time payment to address any differences between the LIBOR and the new rate, and it is unclear what the character of this payment would be.
Grandfathered Agreements. Certain debt and non-debt instruments that are exempt from specific laws due to their grandfathered status may lose that status if they are modified to reflect the elimination of the LIBOR.
OID and Qualified Floating Rates. The transition from the LIBOR to the SOFR (or other alternative rates) raises potential issues under the original issue discount (OID) rules.
REMICs. The modification of the terms of the regular interest rate in a real estate mortgage investment conduit (REMIC) to deal with the elimination of the LIBOR could preclude the interest from being a regular interest.
Interest in Foreign Corporations. The elimination of the LIBOR could prevent a foreign bank from taking advantage of the election under Reg. §1.882-5(d)(5)(ii)(B).

Modification of Debt Instruments, Non-Debt Contracts
Under Proposed Reg. §1.1001-6(a), if the terms of a debt instrument or non-debt contract are modified to replace, or to provide a fallback to, an LIBOR-referencing rate and the modification does not change the fair market value, there is no gain or loss under Code Sec. 1001. These rules apply regardless of whether the modification occurs by an amendment to the terms of the instrument or agreement or by replacing the existing debt instrument or contract with a new one.

Furthermore, altering the debt instrument’s terms to replace the LIBOR with a qualified rate is not treated as a modification and does not result in a deemed exchange of the debt instrument under Reg. §1001-3. Likewise, an alteration to a debt instrument’s terms to include a qualified rate (see below) as a fallback to an LIBOR referencing rate is not treated as a modification and therefore does not result in an exchange of the debt instrument for purposes of Reg. §1.1001-3.

Qualified Rate
Proposed Reg. §1.1001-6(b) provides the rules for determining whether a rate is a qualified rate. To be a qualified rate, Proposed Reg. §1.1001-6(b)(2)(i) requires that the fair market value of the debt instrument or non-debt contract after the modifications must be substantially equivalent to the fair market value before that alteration or modification. The proposed regulations provide that the fair market value of a debt instrument or derivative may be determined by any reasonable valuation method, as long as that method is applied consistently and takes into account any one-time payment made in lieu of a spread adjustment.

The proposed regulations provide two safe harbors to address the fair market value requirements. The debt instrument or non-debt contract are considered equivalent in value after the modification if:

at the time of the modification, the historic average of the LIBOR-referencing rate is within 25 basis points of the historic average of the rate that replaces it; or
the parties to the debt instrument or non-debt contract are not related and, through bona fide, arm’s length negotiations, determine that the fair market value of modified instrument or contract is substantially equivalent to the fair market value prior to the modification.

Transactions and Hedges
Proposed Reg. §1.1001-6(c) clarifies that a taxpayer can alter the terms of a debt instrument or modify one or more of the other components of an integrated or hedged transaction to replace a rate referencing an IBOR with a qualified rate without affecting the tax treatment of either the underlying transaction or the hedge. However, the integrated or hedged transaction as modified must continue to qualify for integration.

One-Time Payment
Under Proposed Reg. §1.1001-6(d), the source and character of a one-time payment that is made in connection with a modification described above will be the same as the source and character that would otherwise apply to a payment made by a payor with respect to the debt instrument or non-debt contract that is altered or modified.

Grandfathered Agreements
Because Proposed Reg. §1.1001-6(a) prevents debt instruments and non-debt contracts from being treated as reissued following a deemed exchange under Code Sec. 1001, the debt instrument or contract would not lose its grandfathered status as a result of any modifications made in connection with the elimination of an LIBOR.

OID and Qualified Floating Rate
Proposed Reg. §1.1275-2(m) stipulates three special rules for determining the amount and accrual of OID in the case of a variable rate debt instrument that provides both for interest at an LIBOR-referencing qualified floating rate and for a fallback rate that is triggered when the LIBOR becomes unavailable or unreliable.

The LIBOR-referencing qualified floating rate and the fallback rate are treated as a single qualified floating rate for purposes of Reg. §1.1275-5.
The possibility that the relevant LIBOR will become unavailable or unreliable is treated as a remote contingency for purposes of Reg. §1.1275-2(h).
Occurrence of the event that triggers activation of the fallback rate is not treated as a change in circumstances.

REMIC Interests
Proposed Reg. §1.860G-1(e) permits an interest in a REMIC to retain its status as a regular interest despite certain alterations and contingencies.

Foreign Corporation Interests
The proposed regulations amend the election in Reg. §1.882-5(d)(5)(ii)(B) to allow a foreign corporation that is a bank to compute interest expense attributable to excess U.S.-connected liabilities using a yearly average SOFR in addition to the 30-day LIBOR. This amendment would allow the foreign corporation bank to make the election even after the LIBOR is phased out.

Applicability Date
The proposed regulations will apply to an alteration of the terms of a debt instrument or a modification to the terms of a non-debt contract that occurs on or after the date of publication of a Treasury Decision adopting those rules as final regulations in the Federal Register. A taxpayer may choose to apply the proposed regulations to alterations and modifications that occur before the regulations are finalized.

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The new year brings a new tax filing season. Mid-April may seem like a long time away in January but it is important to start preparing now for filing your 2011 federal income tax return. The IRS expects to receive and process more than 140 million returns during the 2012 filing season. Early planning can help avoid any delays in the filing and processing of your return.

Records

Initially, you will need to gather your records for 2011. A helpful jumping-off point is to review your 2010 return. Your personal situation may be unchanged from when you filed your 2010 return or it may have changed significantly. Either way, your 2010 return is a good vantage point for assembling the materials you will need to prepare your 2011 return.

If you need a copy of your previous year(s) return information, you have several options. You can order a copy of your prior-year return. Alternatively, you may order a tax return transcript or a tax account transcript. A tax return transcript shows most line items from your return as it was originally filed, including any accompanying forms and schedules. However, a tax return transcript does not reflect any changes you or the IRS made after the return was filed. A tax account transcript shows any later adjustments you or the IRS made after the tax return was filed.

If you changed your name as a result of marriage or divorce since you filed your 2010 return, you must advise the IRS. Your name as it appears on your return needs to match the name registered with the Social Security Administration. A mismatch will likely delay the processing of your return.

Forms W-2

Many taxpayers cannot begin preparing their 2011 income tax returns until they have their Forms W-2, Wage and Tax Statement. Employers have until January 31, 2012 to send you a 2011 Form W-2 earnings statement. If you do not receive your W-2 by the deadline, contact your employer. If you do not receive your W-2 by mid-February, contact the IRS. You still must file your return or request an extension to file even if you do not receive your Form W-2. In certain cases, you may be able to file Form 4852, Substitute for Form W-2, Wage and Tax Statement.

Filing deadline

April 15, 2012 is a Sunday. Returns would normally be due the next day, April 16, 2012. However, April 16 is a holiday in the District of Columbia (Emancipation Day). As a result, the due date for 2011 returns is April 17, 2012. If the mid-April tax deadline clock runs out, you can get an automatic six-month extension of time to file through October 17. However, this extension of time to file does not give you more time to pay any taxes due. To obtain an extension, you need to file Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.

Casualty losses

Many taxpayers experienced family, business and personal losses from hurricanes, tropical storms, wild fires, floods, and other natural disasters in 2011. For federal tax purposes, a casualty loss can result from the damage, destruction or loss of your property from any sudden, unexpected, or unusual event such as a hurricane, tornado, fire, or other disaster.

Casualty losses are generally deductible in the year the casualty occurred. However, if you have a casualty loss from a federally-declared disaster, you can choose to treat the loss as having occurred in the year immediately preceding the tax year in which the disaster happened. This means you can deduct a 2011 loss on your 2011 return or amended return for that preceding tax year (2010). If you have any questions about a casualty loss, please contact our office.

Retirement savings

Just because the calendar moved from 2011 to 2012 doesn’t necessarily mean you missed out on contributing to a retirement savings plan. You can contribute up to $5,000 to a traditional IRA for 2011 and you can make the contribution as late as April 17, 2012. However, if you or your spouse is covered by an employer retirement plan, this will affect how much, if any, of your contribution is tax deductible. Individuals age 50 and older may qualify for a catch-up contribution of $1,000 on top of the $5,000 maximum. Different rules apply to other types of retirement savings plans. Our office can review these rules in detail with you.

IRS Fresh Start Initiative

In 2011, the IRS announced a new program, called the Fresh Start Initiative, to help distressed taxpayers. The IRS adjusted its lien policies, increased the dollar threshold when liens are generally issued, made it easier for taxpayers to obtain lien withdrawals, and extended the streamlined offer-in-compromise program. Previously, the IRS had given its employees greater authority to suspend collection actions in certain hardship cases where taxpayers are unable to pay. This includes instances where a taxpayer has recently lost a job, is relying solely on Social Security, or is paying significant medical bills.

If you are experiencing hardship, the most important thing you can do is to remain in compliance with your tax obligations. If you owe back taxes, now is the time to pay them, if possible, or enter into an installment agreement, if you qualify, with the IRS. The IRS wants to see you making a good faith effort to pay your taxes.

Tax law changes

Along with assembling records and reviewing activities in 2011, it’s a good idea to review some of the tax law changes in 2011 that may affect your return. Our office can review your 2010 return and see which areas may have been affected by tax law changes for your 2011 return. In some cases, popular tax incentives that were available in 2010 were extended into 2011. You don’t want to miss out on any available tax breaks.

If you have any questions about preparing for the 2012 filing season, please contact our office.

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As 2012 gets underway, Congress has extended the employee-side payroll tax cut but a laundry list of tax incentives have expired and their renewal is in doubt. The fate of these incentives, along with the Bush-era tax cuts, will dominate debate in Washington D.C. in 2012. At the same time, tax planning in a time of uncertainty appears to have become the new normal.

Payroll tax cut

The Temporary Payroll Tax Cut Continuation Act of 2011, approved by Congress on December 23 and signed by President Obama the same day, extends the 2011 payroll tax holiday through the end of February 2012. The employee-share of OASDI taxes is 4.2 percent for the period January 1, 2012 through February 29, 2012 (10.4 percent for self-employment income). The new law also includes a recapture provision for certain individuals. However, the House Ways and Means Committee reported that the recapture provision will only apply if the payroll tax reduction is not extended for the remainder of 2012. Lawmakers are expected to extend the employee-side payroll tax cut through the end of 2012, although not before difficult negotiations.

One speed bump to extending the payroll tax cut through the end of 2012 is its cost. The two-month extension is paid for by increasing certain fees charged to mortgage lenders. A full-year extension will require additional offsets (unless Congress decides not to offset an extension). Lawmakers are reportedly discussing additional revenue raisers, such as unspecified changes to the S corporation rules and the closing of a loophole for corporate jets. Other revenue raisers reportedly under consideration are repeal of certain oil and gas preferences and repeal of the last-in, first-out (LIFO) method of accounting. A variety of spending cuts are also on the table.

Extenders

After December 31, 2011, many popular but temporary tax breaks expire. The incentives, which are known as “extenders,” impact individuals and businesses. Some of the more popular individual extenders are the state and local sales tax deduction, the higher education tuition deduction, and the teachers’ classroom expense deduction. For businesses, the research tax credit is one of the most important extenders.

One immediate change that many taxpayers will notice is a drop in transit benefits. In 2011, commuters benefitted from more generous transit benefits. The 2011 monthly limit on the tax benefit for transit and vanpools of $230 per month reverts to $125 per month in 2012. However, the monthly limit for qualified parking provided by an employer to its employees for 2012 will increase to $240, up $10 from the limit in 2011.

Several bills have been introduced in Congress to extend the expiring incentives. However, the bills have languished in committee. One reason for the lack of movement is that Congress can extend the incentives in 2012 and make them retroactive to January 1, 2012. The extenders are also separate from the temporary Bush-era tax cuts, which are scheduled to expire after December 31, 2012. Many lawmakers do not want to link the extenders to the more-controversial Bush-era tax cuts.

IRS budget

One bill that did pass Congress at year-end 2011 was a fiscal year 2012 budget for the IRS. Congress voted to cut $305 million from the IRS’s FY 2012 budget. How this cut will impact IRS operations is unknown. In November 2011, the IRS offered buyouts and early outs to back-office employees to reduce its greatest expense: employee payroll. The IRS could also delay some business systems modernizations to save money. The IRS will likely keep customer service as close as possible to full funding, especially during the busy 2012 filing season.

Tax planning

One of the most significant challenges to long-term tax planning is the on-again, off-again nature of many tax incentives. Temporary incentives, such as the research tax credit and the state and local sales tax deduction, have become de facto permanent incentives because they are regularly extended. Nonetheless, they are temporary. Because of their temporary nature, taxpayers must have two tax plans: one that takes into account an extension of the incentives, and a second plan that does not.

If you have any questions about tax planning and tax legislation in 2012, please contact our office.

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The Foreign Account Tax Compliance Act (FATCA), enacted in 2010, requires certain U.S. taxpayers to report their interests in specified foreign financial assets. The reporting requirement may apply if the assets have an aggregate value exceeding certain thresholds. The IRS has released Form 8938, Statement of Specified Foreign Financial Assets, for this reporting requirement under FATCA.

Reporting

For now, only specified individuals are required to file Form 8938, but specified U.S. entities will eventually also have to file the form. Taxpayers who do not file a federal income tax return for the year do not have to File Form 8938, even if the value of their foreign assets exceeds the normal reporting threshold.

Individuals who have to file Form 8938 include U.S. citizens, resident aliens for any part of the year, and nonresident aliens living in Puerto Rico or American Samoa.

Reporting applies to specified foreign financial assets. Specified foreign financial assets include:

A financial account maintained by a foreign financial institution;
Other foreign financial assets, such as stock or securities issued by a non-U.S. person, or an interest in a foreign entity.

The aggregate value of the individual’s specified foreign financial assets must exceed specified reporting thresholds, as follows:

Unmarried U.S. taxpayers, and married U.S. taxpayers filing a separate return – more than $50,000 on the last day of the year, or more than $75,000 at any time during the year;
U.S. married taxpayers filing a joint return – more than $100,000 on the last day of the year, or more than $150,000 at any time during the year; or
Taxpayers living abroad: if filing a joint return, more than $400,000 on the last day of the year, or more than $600,000 during the year; other taxpayers, more than $200,000 on the last day of the year, or more than $300,000 at any time during the year.

Taxpayers who report assets on other forms, such as Form 3520, do not have to report the asset on Form 8938, but must use Form 8938 to identify other forms on which they report.

Filing

Reporting applies for tax years beginning after March 18, 2010, the date that FATCA was enacted. Most taxpayers, such as those who report their taxes for the calendar year, must start filing Form 8938 with their 2011 income tax return.

If you have any questions about Form 8938, please contact our office.

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Depreciation is a reasonable allowance for wear and tear on property used in a trade or business or for the production of income. Property is depreciable if it has a useful life greater than one year and depreciates in value. Property that appreciates in value may also depreciate if subject to wear and tear. Depreciation ends in the tax year that the asset is retired from service (by sale, exchange, abandonment or destruction) or that the asset is fully depreciated.

Assets with useful lives of one year or less can be deducted as current expenses in the year of their costs. Depreciation cannot be claimed on an asset that is acquired and disposed of in the same year.

Depreciation begins in the tax year that the property is placed in service for either the production of income or for use in a trade or business. Property generally is considered placed in service when it is in a condition or state of readiness to be used on a regular, ongoing basis. The property must be available for a specifically assigned function in a trade or business (or for the production of income).

An asset actually put to use in a trade or business is clearly considered placed in service. If, on the other hand, an asset is not actually put to use, it is generally not considered placed in service unless the taxpayer has done everything he or she can to put the asset to use. For example, a barge was considered placed in service in the year it was acquired, even though it could not be actually used because the body of water was frozen. For a building that is intended to house machinery and equipment, the building's state of readiness is determined without regard to whether the machinery and equipment has been placed in service. Leased property is placed in service by the lessor when the property is held out for lease.

Generally, the year property is placed in service is the tax year of acquisition, but it could be a later time. An asset cannot be placed in service any sooner than the time that the business actually begins to operate.

In the case of agriculture, livestock cannot be depreciated until it reaches maturity and can be used; orchards cannot be depreciated until the trees produce marketable quantities of crops. Prior to those times, costs must be capitalized and cannot be written off.

Especially at year-end, placing an asset in service before the new year can mean the difference between claiming a substantial amount of depreciation on this year's return instead of waiting a full year. If you have any questions on how to qualify a business asset under this deadline, please contact this office.

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