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Basics & Beyond TAX Flash February 2019

Key Issues for Practitioners

Welcome to the first Tax Flash, something new to keep you informed during tax season and throughout the year. We will pick up key issues, reminders and other bits and pieces that may help ease the stress we are all facing with the “special” season.
Though IRS states that the government shutdown will not impact “refunds” it will have a lasting impact as we deal with IRS letters, correspondence in reply and other IRS issues we tackle daily. IRS averages one million pieces of mail daily, annually and that mail has been piling up – meaning delay in responses, delays in Powers of Attorneys placed into the system, delays in transcripts and the list goes on. Now with the three-week, short-term opening of the government we await to see what our Congressional officials will do to keep the government open and operating.

Planning Your Tax Year 2019

Throughout the year we will be conducting webinars to assist you in your practice, scheduling our fall and year end seminars, selecting and writing the material for these ventures, all the while keeping our ears close to new developments and issues of importance to you and your practice. Let us know how we can improve; what topics are you interest in seeing and other issues that you may identify as needed in your practice. Claudine Raschi and the team are ready to assist. Though we cannot address individual questions, our goal is to support your needs for education through this newsletter. In addition, please check out our current offerings at the end of this newsletter.

Issue 1: No More Faxing of Transcripts – BUT Tax Professionals Have an Option

The IRS has begun partially masking the personally identifiable information for all individuals and entities listed on an individual tax return and a New Tax Transcript and Customer File Number has been implemented.

The IRS will stop faxing transcripts as of February 4, 2019 to both taxpayers and authorized third parties, including tax professionals.

Masked transcripts will still be available to tax professionals through the Transcript Delivery System, an e-Services tool. Business transcripts are not masked and may be accessed by tax professionals through TDS.

Customer File Number—Also starting on Sept. 23, 2018, IRS introduced a revised Form 4506-T and Form 4506T-EZ, Request for Transcript, to include a new field—line 5b—Customer File Number. The Customer File Number is created by the requester, not IRS. This is an optional field for the requester (e.g., a lender or college) to use as an identifier because the SSN will no longer be fully visible. Requesters have the option of creating and entering an identifying number that is displayed on the transcript. The field is unique to the requester and will not be searchable by IRS.

The requester will assign a 10-digit number, for example, a loan account number, enter it on line 5b of the Form 4506T or Form 4506T/EZ. The Customer File Number assigned by the requester will populate on the transcript, enabling the requester to match the transcript to the taxpayer. Requesters may use any 10-digit number except the taxpayer’s SSN.

Customer File Number—e-Services TDS. Tax professionals requesting transcripts through TDS may also assign a Customer File Number to the transcript. This is an optional field for the requester to use as an identifier because the SSN will no longer be fully visible. TDS users will have the option of creating and entering an identifying number that is displayed on the transcript. The field is unique to the requester and will not be searchable by IRS.

The requester will enter a 10-digit number (any 10-digit number except the taxpayer’s SSN) in the Customer File Number field on TDS. The Customer File Number assigned by the requester will populate on the transcript, enabling the requester to match the transcript to the taxpayer.

Customer File Number—Get Transcript. Starting in mid-January 2019, taxpayers also may assign a 10-digit number to their transcript that they obtain through Get Transcript Online or Get Transcript by Mail. In these instances, the Customer File Number field will assist those taxpayers who require a transcript for income verification purposes, such as a loan application or college financial aid.

Issue 2 – New 2019 W-4 – Concerns About Under Withholding Penalties – Relief Announced

Employees are generally required to furnish a new Form W-4 to their employer within 10 days if they experience a “change of status” that results in a reduction of withholding allowances. However, Notice: 2018-92, allows employees who experience a reduction in withholding allowances before May 1, that was solely due to tax law changes in the TCJA, to not furnish a new W-4 to their employer until May 10, 2019. The employer has 30 day after receiving the revised W-4 to place it in the system.

As for adequate withholding for the 2018 tax season, Congress is already questioning IRS concerning penalty relief for under withholding due to the TCJA. On January 16, 2019, IRS issued Notice 2019-11 concerning wavier of estimated tax penalty for many taxpayers whose 2018 federal income tax withholding and estimated tax payments fell short of their total tax liability for the year. The IRS is generally waiving the penalty for any taxpayer who paid at least 85 % of their total tax liability during the year through federal income tax withholding, quarterly estimated tax payments or a combination of the two. The usual percentage threshold is 90 % to avoid a penalty. The waiver computation announced today will be integrated into commercially-available tax software and reflected in the forthcoming revision of Form 2210 and instructions.

Issue 3: Notice on the Centralized Partnership Audit Regime

Notice 2019-06 informs taxpayers that the Department of the Treasury and the Internal Revenue Service intend to propose regulations addressing certain special enforcement matters under § 6241(11). The Notice will explain when the centralized partnership audit regime will not apply to adjustments to partnership-related items in certain limited circumstances and that partnerships with a qualified subchapter S subsidiary (QSub) are not eligible to elect out of the centralized partnership audit regime except by applying a rule similar to the rules for S corporations under §6221(b)(2)(A) to the QSub partner.

Issue 4: Final Centralized Partnership Audit Regs: Clarification of the Consistency Requirement – TD9844

The treatment of partnership-related items on a partner’s return must be consistent with the treatment of such items on the partnership return in all respects, including the amount, timing, and characterization of such items.

Example 1 Adam is a partner in Partnership during 2018 and 2019. In December 2018, Partnership receives an advance payment for services to be performed in 2019 and reports this amount as income on its partnership return for 2018. Adam includes its distributive share of income from the advance payment on his income tax return for 2019 and not on his income tax return for 2018. Adam has not satisfied the requirements because Adam’s treatment of the income attributable to Partnership is inconsistent with the treatment of that item by Partnership on its partnership return.

Example 2 George was a partner in Partnership during 2018. George’s taxable year ends on the same day as Partnership’s 2018 taxable year. Partnership did not file a partnership return for its 2018 taxable year. George files an income tax return for its 2018 taxable year and reports his share of a loss attributable to his interest in Partnership. Because Partnership failed to file a partnership return, George’s treatment of such loss is per se inconsistent.

Issue 5 Changes in the Questions on the 2018 Form 1065 U.S. Return of Partnership Income

Many questions have changed on the 2018 Form 1065, review the Schedule B carefully to address questions concerning new law implementation.

Summary below:

Issue 6 Notice 2019-5– Hardship Exemptions for ACA

IRS has identified additional hardship exemptions from the individual shared responsibility payment under § 5000A (also known as the individual mandate) that a taxpayer may claim on a Federal income tax return without obtaining a hardship exemption certification from the Health Insurance Marketplace (Marketplace). The Notice applies to tax years that begin after Dec. 31, 2017 and before Jan. 1, 2019.

Issue 7 Rev. Proc. 2019-08 – Changes to Depreciation and § 481 Adjustment

This revenue procedure provides guidance by modifying the definition of qualified real property that may be eligible as § 179 property under § 179(d)(1). TCJA amended § 168 by:

The TCJA amended § 168 by requiring certain property held by an electing farming business to be depreciated under the alternative depreciation system. This revenue procedure also provides an optional depreciation table for residential rental property depreciated under the alternative depreciation system with a 30-year recovery period, and in addition, guidance for calculating a § 481(a) adjustment for a change in the method of accounting due to the change in the use of depreciable tangible property.

Issue 8 Final Regulations Issued on the Qualified Business Income Deduction – § 199A Trade or Business Safe Harbor: Rental Real Estate-Safe Harbor

This safe harbor is available to taxpayers who seek to claim the Qualified Business Income Deduction with respect to a rental real estate enterprise. If the safe harbor requirements are met, the real estate enterprise will be treated as a trade or business. This will also require the rental real estate enterprise to issue Form 1099’s as appropriate – a significant change.
Qualified passthrough entities (RPEs) may also use this safe harbor in order to determine whether a rental real estate enterprise is a trade or business. C Corporations will not qualify for this deduction. Failure to satisfy the requirements of this safe harbor does not preclude a taxpayer from otherwise establishing that a rental real estate enterprise is a trade or business.

Rental Real Estate Enterprise

A rental real estate enterprise is defined as an interest in real property held for the production of rents and may consist of an interest in multiple properties. The individual or pass through entity relying on this revenue procedure must hold the interest directly or through an entity disregarded as an entity separate from its owner.
Taxpayers must either treat each property held for the production of rents as a separate enterprise or treat all similar properties held for the production of rents as a single enterprise. Commercial and residential real estate may not be part of the same enterprise. Taxpayers may not vary this treatment from year-to-year unless there has been a significant change in facts and circumstances.

Safe Harbor

Solely for the purposes of the Qualified Business Income Deduction, a rental real estate enterprise will be treated as a trade or business if the following requirements are satisfied during the taxable year with respect to the rental real estate enterprise:

(A) Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise.

(B) For taxable years beginning prior to January 1, 2023, 250 or more hours of rental services are performed per year with respect to the rental enterprise.
For taxable years beginning after December 31, 2022, in any three of the five consecutive taxable years that end with the taxable year (or in each year for an enterprise held for less than five years), 250 or more hours of rental services are performed per year with respect to the rental real estate enterprise and

(C) The taxpayer maintains contemporaneous records, including time reports, logs, or similar documents, regarding the following:

(i) hours of all services performed.

(ii) description of all services performed

(iii) dates on which such services were performed and

(iv) who performed the services.

Records are to be made available for inspection at the request of the IRS. The contemporaneous records requirement will not apply to taxable years beginning prior to January 1, 2019.

Rental Services

Rental services for purpose of this revenue procedure include:

(i) advertising to rent or lease the real estate.
(ii) negotiating and executing leases.
(iii) verifying information contained in prospective tenant applications.
(iv) collection of rent.
(v) daily operation, maintenance, and repair of the property
(vi) management of the real estate
(vii) purchase of materials.
(viii) supervision of employees and independent contractors.

Rental services may be performed by owners or by employees, agents, and/or independent contractors of the owners. The term rental services do not include financial or investment management activities, such as arranging financing; procuring property; studying and reviewing financial statements or reports on operations; planning, managing, or constructing long-term capital improvements; or hours spent traveling to and from the real estate.

Certain Rental Real Estate Arrangements Excluded

Real estate used by the taxpayer (including an owner or beneficiary of an RPE relying on this safe harbor) as a residence for any part of the year is not eligible for this safe harbor. Real estate rented or leased under a triple net lease is also not eligible for this safe harbor. For purposes of this revenue procedure, a triple net lease includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to be responsible for maintenance activities for a property in addition to rent and utilities. This includes a lease agreement that requires the tenant or lessee to pay a portion of the taxes, fees, and insurance, and to be responsible for maintenance activities allocable to the portion of the property rented by the tenant.

Procedural Requirements for Application of Safe Harbor

A taxpayer or pass-through entity must include a statement attached to the return on which it claims the Qualified Business Income Deduction or passes through information that the requirements in of this revenue procedure have been satisfied.
The statement must be signed by the taxpayer, or an authorized representative of an eligible taxpayer or pass through entity, which states: “Under penalties of perjury, I (we) declare that I (we) have examined the statement, and, to the best of my (our) knowledge and belief, the statement contains all the relevant facts relating to the revenue procedure, and such facts are true, correct, and complete.” The individual or individuals who sign must have personal knowledge of the facts and circumstances related to the statement.

The proposed revenue procedure, included in Notice 2019-07, allows individuals and entities who own rental real estate directly or through a disregarded entity to treat a rental real estate enterprise as a trade or business for purposes of the QBI deduction if certain requirements are met. Taxpayers can rely on this safe harbor until a final revenue procedure is issued.

Issue 9 New Form 1099 PATR for 2019 has a New Box 7 – Qualified Payments

For specified agricultural and horticultural cooperatives only, enter the qualified payments paid to the patron. You are required to provide this information whether or not you pass any of the DPAD through to the patrons.

Issue 10 Things to Remember as We Enter the 2019 Tax Season

Medical expenses for 2018 allows a deduction in excess of 7.5% of the taxpayer’s adjusted gross income (AGI). For 2019, the “floor” beneath medical expense deductions increases to 10%.

Alimony – For payments required under divorce or separation instruments that are executed after Dec. 31, 2018, the deduction for alimony payments is eliminated. And recipients of affected alimony payments will no longer have to include them in taxable income.

ACA Penalty: 2018 will be the last year where the ACA shared responsibility payment will be required. The penalty is eliminated in 2019 going forward. Note: The employer mandate is still law – no change here.

401(k) rule changes: Liberalized rules for hardship distributions from 401(k) plans. 401(k) plans may provide that an employee can receive a distribution of elective contributions from the plan on account of hardship (generally, because of an immediate and heavy financial need of the employee; and in an amount necessary to meet the financial need). Under Reg. § 1.401(k)-1(d)(3)(iv)(E), an employee who receives a hardship distribution cannot make elective contributions or employee contributions to the plan and to all other plans maintained by the employer, for at least six months after receipt of the hardship distribution.

Miscellaneous Itemized Deductions: This could present some surprises for some of your clients. Just when you may have finally trained them to keep records, the employees business expense deduction is suspended from 2018-2025. If they are keeping records, request that they continue to do so, as laws can change and at times, we only see them once a year. You will need to address the law change and the impact for 2018 and plan accordingly for 2019 and the future.

NOTE: Some states have not coupled with these provisions so be aware of your state requirements and adjustments that need to be made.

Issue 12 IRS has released 2018 Form 8994 (Employer Credit for Paid Family and Medical Leave), the form to be used by employers to claim the credit for paid family and medical leave that was enacted by the Tax Cuts and Jobs Act (P.L. 115-97, 12/22/2017).

Background. Generally, § 45S provides that, for wages paid in tax years beginning in 2018 and 2019, “eligible employers” can claim a general business credit equal to the “applicable percentage” of the amount of wages paid to “qualifying employees” during any period in which such employees are on “family and medical leave” if certain requirements are met. The credit doesn’t apply to wages paid in tax years beginning after Dec. 31, 2019.

To be eligible to claim the credit, an employer must have a written policy that satisfies certain requirements.

Issue 14 Can We Still Deduct 50% of Our Business Meals Under the TCJA? Notice 2018-76

The TCJA did not change the definition of entertainment under § 274(a)(1); therefore, the regulations under § 274(a)(1) that define entertainment continue to apply. The Act did not address the circumstances in which the provision of food and beverages might constitute entertainment. However, the legislative history of the Act clarifies that taxpayers generally may continue to deduct 50 % of the food and beverage expenses associated with operating their trade or business.

The IRS intends to publish proposed regulations under § 274 clarifying when business meal expenses are nondeductible entertainment expenses and when they are 50 % deductible expenses. Until the proposed regulations are effective, taxpayers may rely on the guidance in this notice for the treatment under § 274 of expenses for certain business meals.

Under this notice, taxpayers may deduct 50 % of an otherwise allowable business meal expense if:

  1. The expense is an ordinary and necessary expense under § 162(a) paid or incurred during the taxable year in carrying on any trade or business;
  2. The expense is not lavish or extravagant under the circumstances;
  3. The taxpayer, or an employee of the taxpayer, is present at the furnishing of the food or beverages;
  4. The food and beverages are provided to a current or potential business customer, client, consultant, or similar business contact; and
  5. In the case of food and beverages provided during or at an entertainment activity, the food and beverages are purchased separately from the entertainment, or the cost of the food and beverages is stated separately from the cost of the entertainment on one or more bills, invoices, or receipts. The entertainment disallowance rule may not be circumvented through inflating the amount charged for food and beverages.

Issue 15 Effect of Sequestration on the Alternative Minimum Tax Credit for Corporations (fiscal year 2019)

Pursuant to the requirements of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, refund payments issued to, and credit elect and refund offset transactions for, corporations claiming refundable prior year minimum tax liability, are subject to sequestration. This means that refund payments and credit elect and refund offset transactions processed on or after Oct. 1, 2018, and on or before Sept. 30, 2019, will be reduced by the fiscal year 2019 6.2 % sequestration rate, irrespective of when the IRS received the original or amended tax return. The sequestration reduction rate will be applied unless and until a law is enacted that cancels or otherwise affects the sequester, at which time the sequestration reduction rate is subject to change.

For taxable years beginning before Jan. 1, 2018, a corporation that can claim an additional first-year depreciation deduction under § 168(k) can choose instead to accelerate the use of its prior year minimum tax credits, treating the accelerated credits as refundable credits. Corporations making this § 168(k)(4) election and claiming a refund of prior year minimum tax credits should complete Form 8827. Corporations claiming refundable credits under § 168(k) will be notified that a portion of their requested refund was sequestered.

For taxable years beginning after December 31, 2017, refund payments and credit elect and refund offset transactions due to refundable minimum tax credits under § 53(e) will not be subject to sequestration.

Issue 16 IRS Update on Shutdown Impact on Tax Court Cases; Important Information for Taxpayers, Tax Professionals with Pending Cases

The United States Tax Court’s website (www.ustaxcourt.gov) announced that the Tax Court shut down operations on Friday, December 28, 2018, at 11:59 p.m. and will remain closed until further notice. The Tax Court website is the best place to get information about a pending case. With the government opening for a period of at least three weeks, go to the website for updates.

These are some questions and answers to help during the current appropriations lapse.

Q: What should tax professional’s do if a document was mailed or sent to the Tax Court was returned?
A: The Tax Court website indicates that mail sent to the court through the U.S. Postal Service or through designated private delivery services may have been returned undelivered. If a document sent to the Tax Court was returned, as the Tax Court website indicates, re-mail or re-send the document to the Court with a copy of the envelope or container (with the postmark or proof of mailing date) in which it was first mailed or sent. In addition, please retain the original.

Q: The case was calendared for trial. What does the Tax Court’s closure mean for pending case?
A: The Tax Court canceled trial sessions for January 28, 2019 (El Paso, TX; Los Angeles, CA; New York, NY; Philadelphia, PA; San Diego, CA; and Lubbock, TX), February 4, 2019 (Hartford, CT; Houston, TX; San Francisco, CA; Seattle, WA; St. Paul, MN; Washington, DC; and Winston-Salem, NC) and February 11, 2019 (Detroit, MI; Los Angeles, CA; New York, NY; San Diego, CA; and Mobile, AL). The Tax Court will inform taxpayers who had cases on the canceled trial sessions of their new trial dates.
The Tax Court’s website indicates that it will make a decision about the February 25, 2019 trial sessions (Atlanta, GA; Chicago, IL; Dallas, TX; Los Angeles, CA; and Philadelphia, PA) on or before February 7, 2019. Taxpayers with cases that are scheduled for trial sessions that have not been canceled or that have not yet been scheduled for trial should expect their cases to proceed in the normal course until further notice.

Q: If my case was on a canceled trial session, when will I have an opportunity to resolve my case with Appeals or Chief Counsel after the government reopens?
A: After the IRS and Chief Counsel reopen, IRS will make their best efforts to expeditiously resolve cases.

Q: Where can I get more information about my Tax Court case?
A: If someone is representing a client in a case, they should contact the client and make them aware of this issue. In addition, the Tax Court’s website is the best place for updates. The IRS Chief Counsel and Appeals personnel assigned to the case may be furloughed and will not be available to answer questions until the government reopens. Taxpayers seeking assistance from Low Income Taxpayer Clinics (LITCs) can find a list of LITCs on the Tax Court’s website (www.ustaxcourt.gov/clinics/clinics.pdf).

Q: During the shutdown, does interest continue to accrue on the tax that I am disputing in my pending Tax Court case?
A: Yes. To avoid additional interest on the tax that taxpayers are disputing in the pending Tax Court case, the client can stop the running of interest by making a payment to the IRS. Go to www.irs.gov/payments for payment options available to you. The IRS is continuing to process payments during the shutdown.

Q: What should I do if I received a bill for the tax liability that is the subject of the Tax Court case?
A: If the client receives a collection notice for the tax that is in dispute in the Tax Court case, it may be because the IRS has not received the petition and has made a premature assessment. When the government reopens, the IRS attorney assigned to the case will determine if a premature assessment was made and request that the IRS abate the premature assessment.

Next Month Features:
• More discussion on Qualified Business Income as we break down the individual sections of the regulations.
• Due Diligence
• Notice of Form Changes
• Hot off the Press Updates

Click here for the Upcoming Webinar Schedule

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