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Tax Alerts Tax Briefing(s) 2022 Tax Year-In-ReviewConsolidated Appropriations Act, 2023Inflation Reduction Act of 2022, Signed Aug. 16 Factors to Consider When IRS Contacts Taxpayers, IR-2023-56 Taxpayers must keep some important factors in mind when the IRS may initiate direct contact with a them. The IRS provides many different payment options to help taxpayers meet their obligat... IRS Requests Comments on Treating NFTs as Collectibles, Notice 2023-27 The IRS requested comments on its intention to treat certain nonfungible tokens (NFTs) as collectibles under Code Sec. 408(m). If an NFT is treated as a collectible, an IRA's acquisition o... Copies of Exempt Organization Returns Now Available Online Instead of DVD The IRS has revised the instructions on obtaining the copies of exempt organization returns. Under the new revision, taxpayers will not be able to obtain the copies of returns on DVD. Instead, ... Changes to 2023 Forms 5500 Issued The Department of Labor (DOL), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) issued final forms and instructions revisions for the Form 5500 Annual Return... Indexing Adjustments Provided for Employer Shared Responsibility Applicable Dollar Amounts, Rev. Proc. 2023-17 The IRS has provided indexing adjustments for the applicable dollar amounts under Code Sec. 4980H(c)(1) and (b)(1). These indexed amounts are used to calculate the employer shared respon... IRS Announces Successful Expansion of Digital Scanning Initiative, IR-2023-41 The IRS has announced the successful expansion of the digital scanning initiative also known as Digital Intake. The Service has already scanned more than 120,000 paper Forms 940 since the s... Population Figures Provided for Calculating Low-Income Housing Tax Credits, Notice 2023-22 State and local housing credit agencies that allocate low-income housing tax credits and states and other issuers of tax-exempt private activity bonds have been provided with a listing of the prop... IRS Addresses FAQs on Nutrition, Wellness and General Health, IR-2023-47 The IRS announced frequently asked questions (FAQs) that addressed whether certain costs related to nutrition, wellness and general health are medical expenses. These are expenses that may b... IN - Electronic power of attorney discussed Indiana corporate and personal income taxpayers may find it helpful to give their tax practitioner electronic access to their Indiana tax information via INTIME, the Department of Revenue’s (departm... KY - December sales tax facts sheet discusses residential utility exemption Kentucky in its recent sales tax facts sheet discusses residential utility exemption, among other topics.The facts sheet discusses:Tax changes enacted by the General Assembly, through House Bill (HB)8... OH - CAT assessment upheld because taxpayer failed to establish error An assessment of Ohio corporate income tax against an architectural firm (taxpayer) was upheld because the taxpayer failed to provide credible evidence that the Department of Taxation (department) imp... Your FROG File: Financial Reporting of Gross estate value for loved ones when you croak! THE 27 DOCUMENTS YOU NEED IN YOUR “FROG” FILE
Substantiating Charitable Contributions - An Overview - To get a charitable tax deduction, your donations generally need to be made to a non-profit 501(c) (3) charitable organization. Donations to most churches and religious organizations give you a charitable deduction. Under the recordkeeping rule for all cash, check, electronic funds transfers, credit card charges, or other monetary contributions of any amount, the donor must obtain and keep a bank record or a written communication from the donee as a record of the contribution. Written records prepared by the donor (such as check registers or personal notations) are no longer sufficient to support charitable contributions. Bank records for this recordkeeping requirement include bank or credit union statements, canceled checks, or credit card statements. They must show the date paid or posted, the name of the charity, and the amount of the payment. Taxpayers who claim charitable contributions made by payroll deduction can satisfy the recordkeeping requirement if the donor has (1) a pay stub, W-2, or other document furnished by the employer that states the amount withheld for payment to charity, and (2) a pledge card other document prepared by or at the direction of the charity that shows the name of a donee. A qualified organization must give you a written statement if you make a payment of more than $75 that is partly a contribution and partly for goods or services. The statement must say you can deduct only the amount of your payment that is more than the value of the goods or services you received. It must also give you a good faith estimate of the value of those goods or services. A donor claiming a deduction of $250 or more is also required to obtain and keep a contemporaneous written acknowledgment for a charitable contribution . To be contemporaneous the written acknowledgment must generally be obtained by the donor no later than the date the donor files the return for the year the contribution is made. The written acknowledgment must state whether the donee provides any goods or services in consideration for the contribution. If the donee provides goods or services to the donor in exchange for the contribution the written acknowledgment must include a good faith estimate of the value of the goods or services. When you make any NONCASH CONTRIBUTIONS you must get and keep a receipt from the charitable organization showing: 1. The name of the charitable organization, 2. The date and location of the charitable contribution, and , 3. A reasonably detailed description of the property. A letter or other written communication from the charitable organization acknowledging receipt of the contribution and containing the information in (1), (2), and (3) will serve as a receipt. Household items and clothing contributed to charity after August 17, 2006 must be in at least good used condition to be deductible.
For more information: IRS PUBLICATION 526 : Charitable Contributions IRS PUBLICATION 78 DATABASE: Most eligible organizations are listed in Exempt Organizations President Biden is looking to add $2.1 billion more to the Department of the Treasury budget over 2023 enacted levels, an increase that would give the agency $16.3 billion in discretionary budget authority, with the majority of those funds earmarked for the Internal Revenue Service. President Biden is looking to add $2.1 billion more to the Department of the Treasury budget over 2023 enacted levels, an increase that would give the agency $16.3 billion in discretionary budget authority, with the majority of those funds earmarked for the Internal Revenue Service. "To ensure that taxpayers receive the highest quality customer service and that all Americans are treated fairly by the U.S. tax system, the Budget provides a total of $14.1 billion for the IRS, $1.8 billion, or 15percent, above the 2023 enacted level," the White House stated in the budget document released on March 9, 2023. On the same day, the Treasury Department released the so-called “Greenbook” which outlines the administration’s revenue proposals for Fiscal Year 2024. Adding some additional details, the budget document noted that the IRS budget includes "an increase of $642 million to improve the taxpayer experience and expand customer service outreach to underserved communities and the entire taxpaying public," the document states, adding that $290 million will be allocated to information technology modernization. The budget document also notes that in "addition to the annual discretionary funding, the Budget proposes to maintain deficit reducing Inflation Reduction Act-funded initiatives in 2032 and beyond. This proposal builds on decades of analysis demonstrating that program integrity investments to enforce existing tax laws and increase revenues in a progressive way by closing the tax gap—the difference between taxes owed and taxes paid." Tax Policy HighlightsThe budget document notes that spending within the overall budget will be offset "by tax reforms to ensure that the wealthiest Americans and multinational corporations pay at least a minimum tax rate and reforming taxation of stock buybacks," which is expected to reduce the deficit by $1.17 trillion during the next decade. On the corporate side, the document states it plans to raise the corporate income tax rate to 28 percent. The budget also notes that it will invest "in working families, by cutting taxes for working people and families with children, providing paid leave, and improving home care." President Biden is proposing in the budget to restore "and make permanent the American Rescue Plan expansion of the Earned Income Tax Credit for workers without qualifying children," as well as other tax provisions, including:
The Greenbook also provides some additional clarity on the tax policy proposals. The Biden Administration once again will be seeking the implementation of a billionaire minimum tax of 25 percent, targeted at the wealthiest 0.01 percent of individuals to ensure they are paying their fair share of taxes. The budget also includes health-related tax policy proposals, including the closure of Medicare tax loopholes and increasing the Medicare tax and the Net Investment Income Tax rate by 1.2 percentage points above $400,000 for a total Medicare tax rate of 5 percent on high-income taxpayers. It also looks to expand tax credits for health insurance premiums. The IRS has offered tips to taxpayers who received an incorrect Form 1099-K, Payment Card and Third-Party Network Transactions or received one of these forms in error. 2022 transactions were reported on the form taxpayers received by January 31, 2023. If the information on the form is incorrect or wrong, taxpayers are directed to contact the issuer of the Form 1099-K immediately. The issuer’s name appears in the upper left corner on the form along with their phone number. Further, taxpayers should keep a copy of all correspondence with the issuer for their records. The IRS has offered tips to taxpayers who received an incorrect Form 1099-K, Payment Card and Third-Party Network Transactions or received one of these forms in error. 2022 transactions were reported on the form taxpayers received by January 31, 2023. If the information on the form is incorrect or wrong, taxpayers are directed to contact the issuer of the Form 1099-K immediately. The issuer’s name appears in the upper left corner on the form along with their phone number. Further, taxpayers should keep a copy of all correspondence with the issuer for their records. If taxpayers can’t get a corrected Form 1099-K, they should report the information on Schedule 1 (Form 1040), Additional Income and Adjustments to Income, as follows:
The net effect of these two adjustments on adjusted gross income would be $0. Personal Item Sold at LossIf a taxpayer receives a Form 1099-K for a personal item sold at a loss, report the information on Schedule 1 with offsetting transactions. The net effect of these two adjustments on adjusted gross income would be $0. Personal Item Sold at GainIf a taxpayer sells an item owned for personal use, they should report the gain as any other capital gain on Form 8949, Sales and other Dispositions of Capital Assets, and Schedule D (Form 1040), Capital Gains and Losses. Mix of Personal Items SoldIf a taxpayer sold an item owned for personal use at a gain, see Personal items sold at a gain for information on how to report. For personal items sold at a loss, follow the instructions for Personal items sold at a loss. New Reporting ThreshholdThe IRS announced that the new Form 1099-K reporting threshold will start in tax year 2023.
The IRS has provided relief that permits taxpayers affected by the Coronavirus Disease 2019 (COVID-19) emergency who had a return filing due date postponed by Notice 2020-23, I.R.B. 2020-18, 742, or Notice 2021-21, I.R.B. 2021-15, 986, who did not receive an extension of time for filing such return, and who file timely credit or refund claims, to be credited or refunded amounts deemed paid on April 15 of each year. The IRS has provided relief that permits taxpayers affected by the Coronavirus Disease 2019 (COVID-19) emergency who had a return filing due date postponed by Notice 2020-23, I.R.B. 2020-18, 742, or Notice 2021-21, I.R.B. 2021-15, 986, who did not receive an extension of time for filing such return, and who file timely credit or refund claims, to be credited or refunded amounts deemed paid on April 15 of each year. Among other things, Notice 2020-23 postponed certain federal tax return filing and payment obligations that were due to be performed on or after April 1, 2020, and before July 15, 2020, to July 15, 2020. Notice 2021-21 postponed the due date for both filing Form 1040 series returns with an original due date of April 15, 2021, and making federal income tax payments in connection with one of these forms, to May 17, 2021. Under Code Sec. 6511, a taxpayer must file a refund or credit claim within three years from the time the taxpayer’s return was filed, or two years from the time the tax was paid, whichever period expires later. Under Code Sec. 6511(b)(2), the credit or refund amount is limited to the amount of tax paid within a specified period immediately preceding the filing of the refund or credit claim (the "lookback period"). When a taxpayer files a claim within three years of filing the return, the lookback period is three years plus the period of any extension of time for filing the return. Otherwise, the lookback period is two years. While Notice 2020-23 and Notice 2021-21 postponed certain return filing due dates, they did not extend the time for filing the returns because a postponement is not an extension. As a result, the postponements did not lengthen the lookback periods. Relief for Determining Lookback PeriodThe relief applies for determining the credit or refund amount on the tax for which the return filing or payment due date was postponed:
The relief is automatic, so affected taxpayers do not have to call the IRS, file any form, or send letters or other documents to receive the relief. The IRS has issued final regulations for filing certain returns and other documents electronically (e-file). The regulations affect persons required to file returns for partnerships, corporations, unrelated business income tax, withholding, excise taxes, as well as information returns, disclosure statements, and other documents The IRS has issued final regulations for filing certain returns and other documents electronically (e-file). The regulations affect persons required to file returns for partnerships, corporations, unrelated business income tax, withholding, excise taxes, as well as information returns, disclosure statements, and other documents. The electronic filing requirements generally apply to applicable returns and documents required to be filed beginning in 2024, except for returns of tax-exempt organizations which apply to tax years beginning after July 1, 2019. Electronic FilingThe final regulations generally adopt the proposed regulations issued in 2021 for electronic filing under the following Code Section:
Like the 2021 proposals, the final regulations generally require e-filing by taxpayers other than individuals if, during the calendar year, they are required to file 250 or more returns. The final rules also eliminate the e-filing exception for income tax returns of corporations that report total assets under $10 million at the end of their taxable year. Partnerships with more than 100 partners are required to e-file information returns, and they require partnerships required to file at least 10 returns of any type during the calendar year to e-file their partnership return. Information ReturnsUnder Code Sec. 6011(e) and related regulations, filers are already required to file information returns and statements electronically if, during a calendar year, they are required to file 250 or more returns. The 2021 proposed regulations would have reduced the applicable threshold to 100 or more returns for returns required to be filed during 2022 and 10 or more returns for returns required to be filed after calendar year 2022. Because the final regulations are not applicable until calendar year 2024, the proposed electronic-filing thresholds of 100 and 10 returns, respectively are not adopted. Instead, the electronic-filing threshold for information returns required to be filed in calendar years 2022 and 2023 remains at 250. However, the final regulations adopt the electronic-filing threshold of 10 for returns required to be filed on or after January 1, 2024. In addition, the final regulations adopt the proposed rule without any change that if a person is required to file original information returns electronically, that person must file any corresponding corrected information returns electronically. Waivers and ExemptionMany of the regulations imposing electronic-filing requirements also provide a waiver from electronic filing to any person who establishes undue hardship. The final regulations adopt several changes in reviewing waiver requests, noting that costs to a taxpayer will only be one factor. The Treasury and IRS anticipate providing additional details on the specific hardship-waiver procedures for each form affected by the final regulations, including exemptions for taxpayers whose religious belief conflict with the electronic filing requirement. The final regulations do not provide for waivers and exemptions in all circumstances or for all tax forms required to be electronically filed. The Financial Crimes Enforcement Network (FinCEN) has published its first set of guidance materials to aid the public, and especially the small business community, in understanding the beneficial ownership information (BOI) reporting requirements which will take effect on January 1, 2024. The Financial Crimes Enforcement Network (FinCEN) has published its first set of guidance materials to aid the public, and especially the small business community, in understanding the beneficial ownership information (BOI) reporting requirements which will take effect on January 1, 2024. The Corporate Transparency Act (CTA) established uniform BOI reporting requirements for certain types of corporations, limited liability companies, and other similar entities created in or registered to do business in the United States. New FinCEN regulations require these entities to report to FinCEN information about their "beneficial owners"—the persons who ultimately own or control the company. In an effort to make the process as simple as possible, particularly for small businesses who may have never heard of or interacted with FinCEN before, FinCEN has placed several items on its BOI reporting webpage (https://www.fincen.gov/boi), including:
In the coming months, FinCEN expects to publish additional guidance on the BOI webpage, including a Small Entity Compliance Guide. The American Institute of CPAs is suggesting a series of frequently asked questions for the Internal Revenue service to post and answer on its website regarding the new digital asset question that appears on the 2022 Form 1040. The American Institute of CPAs is suggesting a series of frequently asked questions for the Internal Revenue service to post and answer on its website regarding the new digital asset question that appears on the 2022 Form 1040. The 2022 Form 1040 asks the following yes/no question: "At any time during 2022, did you (a) receive (as a reward, award, or payment for property or services); or (b) sell, exchange, gift, or otherwise dispose of a digitalasset (or a financial interest in a digitalasset)?" In a February 17, 2023, letter to the agency, AICPA identified 12 questions and offered recommended responses to those questions that the IRS could include on its website to guide taxpayers on how to answer the digital asset question. Among the questions the organization is recommending the IRS answer are:
AICPA sent the letter in hopes that "IRS will consider posting these or similar FAQs on the website for this 2022 tax return filing season and that the 2023 Form 1040 instructions will be modified for next year to provide greater certainty to taxpayers and their preparers in confidently and properly complying with the question and overall requirements for digitalasset," the letter states. A copy of this letter can be found with all of AICPA’s tax policy and comment letters here. The IRS added widely circulating promoter claims involving Employee Retention Credits (ERC) as a new entry in the annual Dirty Dozen list of tax scams. The IRS added widely circulating promoter claims involving Employee Retention Credits (ERC) as a new entry in the annual Dirty Dozen list of tax scams. These promotions can be based on inaccurate information related to eligibility for and computation of the credit. Eligible taxpayers can claim the ERC on an original or amended employment tax return for qualified wages paid between March 13, 2020 through December 31, 2021. "The aggressive marketing of these credits is deeply troubling and a major concern for the IRS," said IRS Commissioner Danny Werfel. "Businesses need to think twice before filing a claim for these credits. While the credit has provided a financial lifeline to millions of businesses, there are promoters misleading people and businesses into thinking they can claim these credits. People should remember the IRS is actively auditing and conducting criminal investigations related to these false claims. We urge honest taxpayers not to be caught up in these schemes," he added. Further, abusive ERC promotions highlight day one of the IRS annual Dirty Dozen campaign. These are a list of 12 scams and schemes that put taxpayers and the tax professional community at risk of losing money, personal information, data and more. Finally, more information can be found here. The U.S. Government Accountability Office is offering recommendations to close the tax gap, a move it says could yield large fiscal benefits even if there is only a modest narrowing of the gap between what is paid and what is owed. The U.S. Government Accountability Office is offering recommendations to close the tax gap, a move it says could yield large fiscal benefits even if there is only a modest narrowing of the gap between what is paid and what is owed. In a "snapshot" report issued February 27, 2023, the GAO cited Internal Revenue Service-reported figures for the years 2014-2016 that show taxpayers owed $3.3 trillion in taxes but paid only $2.8 trillion. GAO analysis of IRS data attributes the gap to three key factors: underreporting ($398 billion); underpayment ($59 billion); and nonfiling ($39 billion). GAO reported a number of factors that have contributed to the tax gap, including limited third-party information reporting, declines in audit rates, worsening customer service and the complexities of the tax code. It also noted that abusive tax shelters also play a role in contributing to the tax gap. The report did not quantify how much these factors contributed to the tax gap. "Our work shows there are no easy ways to reduce the taxgap," the report states. "Multiple approaches are needed to address the many causes of tax noncompliance." The government watchdog recommends that the IRS re-establish quantitative goals to reduce the tax gap; expand third-party information reporting; digitize taxpayer returns to make them more readily available to enforcement programs; and make it easier for individuals to report preparers and promoters involved in abusive tax schemes. It also is recommending that Congress give the IRS explicit authority to establish professional requirements for paid preparers; expand third-party reporting requirements related to real estate; expand IRS authority to correct errors and discrepancies between taxpayer reported and other government collected information; and requiring paper returns include a scannable code to allow information to be processed digitally. The GAO did not quantify how much benefit the federal government could get with even a modest reduction in the tax gap. Panelists convened to testify before the Senate Finance Committee called for enhancements of the low income housing tax credit as a means of making real estate more available and affordable. Panelists convened to testify before the Senate Finance Committee called for enhancements of the low income housing tax credit as a means of making real estate more available and affordable. During a March 7, 2023 hearing, Denise Scott, president of Local Initiatives Support Corporation, testified that the credit "has been responsible for the production of most of the affordable housing, and more than 50 percent of the households in tax credit properties are extremely low income families." An overview of various tax policies was prepared for the hearing by the Joint Committee on Taxation and can be found here. She suggested Congress could "spur the creation of over 2 million more rental units over the next decade by restoring the 12.5 percent increase to the formula for the allocated tax credits." That increase was enacted in 2018 but expired in 2021. Sharon Wilson Geno, president of the National Multifamily Housing Council, recommended that the low income housing tax credit be expanded to capture more middle class families and build "off of the success of the low income housing tax credit." However, Mark Calabria, senor advisor at the Cato Institute, urged a little restraint when it comes to using tax policy to stimulate the housing market. "Most indicators suggest that rents would decline over the next 12-to-18 months," he testified before the committee. "So, I would just urge some cautiousness to thinking about adding stimulus to additional construction at a time when we are likely passing the peak of the cycle." Wilson Geno said that the private market "simply cannot afford to provide housing in the amounts we need it in the lowest income tiers, and also the middle-income tier. So those tax incentives are incredibly useful." Calabria also cautioned about offering any additional credits that are focused on the demand side of housing equation. "We need to be cautious about adding demand subsidies that simply run up prices, which is how we’ve gotten the inflationary pressures we face today," he said. Department of the Treasury Secretary Janet Yellen was noncommittal on the idea of trading a permanent child tax credit for the elimination of the state and local tax deduction. Department of the Treasury Secretary Janet Yellen was noncommittal on the idea of trading a permanent child tax credit for the elimination of the state and local tax deduction. Yellen was faced with this question during a March 16, 2023, Senate Finance Committee hearing convened to discuss the Biden Administration’s proposed budget for fiscal year 2024 and the corresponding so-called "Greenbook," which outlines proposed changes to tax policy that in total reflect how the government plans to pay for changes to the overall budget. Sen. Steve Daines (R-Mont.) noted that the White House budget proposal increases the child tax credit from $2,000 to $3,600 and makes it fully refundable and deliverable on a monthly basis. "However, I see they didn’t make that change permanent," Sen. Daines said, adding that increase would expire in 2025. "My question is this: does the President believe that the child tax credit should be made permanent for $3,600? And if so, are you willing to eliminate the SALT deduction, which overwhelmingly benefits the wealthy, to give working families an expanded child tax credit that, importantly, never ends?" Yellen explained that the reason for the proposed expanded tax credit expiring in 2025 is due to other provisions in the Tax Cuts and Jobs Act that will expire in 2025 that affect the child tax credit. "And then there will need to be consideration of what to do," Yellen said, while offering no explicit comment on the desire to make the child tax credit permanent and not addressing at all the possibility of making the CTC permanent while at the same time eliminating the SALT deduction. One point Yellen was challenged on was on the promise that there would be no increases in taxes on individuals and corporations making less than $400,000. Sen. Todd Young (R-Ind.) suggested that President Biden would not be able to keep that promise based on provisions in the Tax Cuts and Jobs Act that would sunset in or after 2025. "Well, there certainly are aspects of the TCJA that, if they sunset, would impact households [with] taxpayers earning under $400,000,”" Yellen testified. "And the President has, as you mentioned, pledged he doesn’t want to see taxes raised by a penny on anyone making under that. He stands ready to work with Congress." However, when pressed further to provide a list of those sunsetting provisions that could push taxes higher for taxpayers making under $400,000, Yellen said that "I don’t know that I can provide you with that. I think there are a lot of complicated provisions." She declined to commit to providing the information within the two-week time frame that Sen. Young asked for, but pledged to work with the committee to provide the information. A Mirror Of Previous TestimonyFor the questions that covered the budget, the committee touched on many of the same subjects and asked similar questions of Yellen that the House Ways and Means Committee did on March 10, 2023, although conversations about the budget at times took a back seat to discussion on the recent bank failures and the government’s response to it as well as the looming need to address the debt ceiling. When the budget was discussed, Yellen promoted the improvements to customer service, noting that the Internal Revenue Service has answered "hundreds of thousands" of more call calls this tax season than at the same point last year. She also pushed the Biden Administration’s targeting of the highest earning taxpayers, both individual and corporate, to get them to pay their fair share. Yellen also reiterated the defense of the United States’ participation in the Organisation for Economic Co-operation and Development’s work on building a framework for implementing a global corporate minimum tax structure. She did emphasize that any agreement would not violate existing tax treaties between the United States and other individual countries, although there was pushback on whether that was accurate. She also promoted the provisions in the Greenbook that will help close the housing supply gap, noting the budget has provisions to make to make rent and ownership more affordable. Yellen also said the IRS plan to spend the $80 billion that was allocated to agency in the Inflation Reduction Act would be ready in the coming weeks. The U.S. Supreme Court has ruled that the $10,000 maximum penalty under the Bank Secrecy Act (BSA) for the nonwillful failure to file a compliant Report of Foreign Bank and Financial Accounts (FBAR) accrues on a per-report, not a per-account, basis. This ruling settles a split in authority between the Ninth Circuit (J. Boyd, CA-9, 2021-1 ustc ¶50,112) and the Fifth Circuit (A. Bittner, CA-5, 2021-2 ustc ¶50,242). The U.S. Supreme Court has ruled that the $10,000 maximum penalty under the Bank Secrecy Act (BSA) for the nonwillful failure to file a compliant Report of Foreign Bank and Financial Accounts (FBAR) accrues on a per-report, not a per-account, basis. This ruling settles a split in authority between the Ninth Circuit (J. Boyd, CA-9, 2021-1 ustc ¶50,112) and the Fifth Circuit (A. Bittner, CA-5, 2021-2 ustc ¶50,242). BackgroundU.S. citizens and residents must keep records and/or file reports when the person makes a transaction or maintains a relation for any person with a foreign financial agency (31 USC 5314). Each person with a financial interest in a financial account in a foreign country must report the relationship to the IRS for each year the relationship exists by providing specified information on and filing the FBAR. The FBAR generally must be filed by June 30 of each calendar year for foreign financial accounts over $10,000 maintained during the previous calendar year (31 C.F.R. 1010.350, 1010.306). If the person fails to file the FBAR, the IRS can impose a penalty of up to $10,000 for nonwillful violations, unless the violation was due to reasonable cause (31 USC 5321). Here, the taxpayer nonwillfully failed to report his interests in multiple foreign bank accounts on annual FBAR forms for several years. The government assessed $2.72 million in civil penalties against the taxpayer: $10,000 for each unreported account each year for five years. The district court found the taxpayer liable and denied his reasonable cause defense, but reduced the assessment to $50,000 because it determined that the $10,000 maximum penalty attached to each failure to file an annual FBAR, not to each failure to report an account. The Fifth Circuit ruled that the text, structure, history, and purpose of the relevant statutory and regulatory provisions showed that the "violation" of 31 USC 5314 contemplated by the 31 USC 5321 penalty was the failure to report a qualifying account, not the failure to file an FBAR. Therefore, the $10,000 penalty cap applied on a per-account basis, not a per-report basis. FBAR Penalty Per ReportIn the majority opinion by Justice Gorsuch, the Court determined that 31 USC 5314, which delineates an individual’s legal duties under the BSA, does not mention accounts or their number, but instead addresses the legal duty to file reports which must include various kinds of information about an individual’s foreign transactions or relationships. Further, 31 USC 5321 authorizes the Treasury Secretary to impose a civil penalty of up to $10,000 for “any violation” of section 5314. The nonwillful penalty provision in section 5321 does not speak in terms of accounts or their number, but instead pegs the quantity of nonwillful penalties to the quantity of violations. While multiple deficient reports may yield multiple $10,000 penalties, and even a simple deficiency in a single report may expose an individual to a $10,000 penalty, the Court ruled that the penalties for nonwillful violations accrue on a per-report basis, not a per-account basis. Also, while section 5321 does tailor penalties to accounts for certain cases that involve willful violations, Congress did not say in section 5321 that the government may impose nonwillful penalties on a per-account basis. The Court found other contextual clues that cut against the government’s arguments. First, the government's guidance to the public in various warnings, fact sheets, and instructions seemed to tell the public that the failure to file a report represented a single violation exposing a nonwillful violator to one $10,000 penalty. Also, when Congress amended the law in 2004 to authorize penalties for nonwillful violations, it did not apply language from previous amendments to willful penalties to authorize per-account penalties for nonwillful violations. The Court also observed that other features of the BSA and its regulatory scheme suggested that the law aimed to provide the government with a report sufficient to tip it to the need for further investigation, not to ensure the presentation of every detail or maximize revenue for each mistake. Finally, the Court stated that the government’s per-account penalty reading of the statute invited anomalies, such as subjecting willful violators to lower penalties than nonwillful violators, that are avoided by reading the nonwillful penalty to apply on a per-report basis. The Court concluded that, best read, the BSA treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, not a cascade of such penalties calculated on a per-account basis. Dissenting OpinionJustice Barrett’s dissent (joined by Justices Thomas, Sotomayor, and Kagan) stated that the most natural reading of the statute establishes that each failure to report a qualifying foreign account constitutes a separate reporting violation, so the government can levy penalties on a per-account basis. |
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