Key Issues for Practitioners
We are now knee deep in the middle of tax season. As of this writing, we are unsure how fast refunds are being issued and how far behind IRS is with correspondence. Many requests came in to discuss some key issues related to the Qualified Business Income Deduction. For those who did not attend the January 24, 2019 update of the final regulations you can purchase the one-hour webinar. We will cover some key issues of concern in the newsletter and remind you of some new requirements for the 2019 filing season.
Issue 1: Safe Harbor Statement– Final Regulations and Notice 2019-07
We received many comments on the New Rental Real Estate Safe Harbor and how to handle – Here is one example: Any idea how preparers will be handling the required signed statement for real estate logistically for electronic filing. Add it as a PDF? Does it need an original signature? Is attaching it unsigned as a PDF and having the client sign the electronic consent form sufficient? Do we have to send it to client for signature, have it returned and then add it into the return? Any ideas would help. Thanks.
The following document is a sample that can be used. Modify as needed, BUT I would place in your file and make sure it is dated and the client, meets the criteria addressed in the February Newsletter which provided an overview of the Safe Harbor rule. Sending a canned or pdf copy with the return is also an option.
Under IRS Notice 2019-07 and future Revenue Procedure 2019-XX, the taxpayer hereby elects the following:
Under Section 3.02 of IRS Notice 2019-07, the taxpayer elects to treat all similar properties held for the production of rents (with the exception of those described in Section 3.05 of IRS Notice 2019-07) as a single rental real estate enterprise. In addition, taxpayer acknowledges that commercial and residential real estate may not be part of the same enterprise if applicable. Under Section 3.06 of IRS Notice 2019-07, this statement is included to satisfy the procedural requirements for application of the safe harbor to treat the rental real estate enterprise as a trade or business under § 162 as defined in § 199A(d) and as laid out in Section 3.01 of IRS Notice 2019-07. The taxpayer hereby acknowledges that they have meet all requirements as laid out in detail under Section 3.03 (A)(B)(C) and further explained in Section 3.04 of IRS Notice 2019-07.
“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.”
Signature of Taxpayer Dated
Remember this is a safe harbor and you may not want to elect the option in your software or when filing a return on paper. The safe harbor has specific requirements that must be met, and you will need to ensure that your client has met the requirements. You can still elect to treat qualified property as § 199A property for purposes of the Qualified Business Income Deduction without electing the safe harbor option. Review February 2019 Newsletter for information on the safe harbor requirements.
Issue 2: Depreciation and § 179 – What Happen with 15-Year Property
15-year property under the TCJA received a significant “hit”. The issue is not clearly defined. Without a technical correction, this property is now considered 39-year property.
Issue 3: How to Retrieve Your Client’s IP PIN Online
Your client can use IRS’s Get an IP PIN online tool to retrieve the current IP PIN. IRS requires the client to register and verify their identity in order to use the tool. If the client previously created an online account and obtained an IP PIN, they can access Get an IP PIN and log in to their account with their username and password. They may be required to verify their identity again due to our increased account security.
Here’s what new users need to get started:
- A readily available email address;
- Their Social Security number;
- Their filing status and address from the last-filed tax return;
- Their personal account number from a: Credit card, or student loan, or home mortgage loan, or home equity (second mortgage) loan, or home equity line of credit (HELOC), or car loan – (The IRS does not retain this data).
- A readily available mobile device.
- For instant access, the client’s name must be associated with a U.S-based mobile phone capable of receiving text messages. If the mobile phone number cannot be linked to the name, they may opt for a mailed activation code during registration.
Note: The credit card cannot be American Express, a debit card, or a corporate card issued in the client’s name by the company or organization.
Because this process involves verification using financial records, there may be a “soft inquiry” placed on the client’s credit report. This notice does not affect the credit score. The IRS does not retain any financial account information.
If the client has a pay-as-you-go mobile phone or a business/family plan mobile phone not associated with their name, they may request that IRS mail an activation code to the address IRS has on file. To complete the registration process, the client must have either 1) a U.S.-based phone to receive a security code via text/phone call or 2) the IRS2Go mobile application to receive a security code within the IRS2Go app.
NOTE: Your client may now choose to get an IP PIN if:
- They received an IRS letter inviting them to ‘opt-in’ to get an IP PIN, or
- They filed a federal tax return last year with an address in Florida, Georgia, District of Columbia, Michigan, California, Maryland, Nevada, Delaware, Illinois, or Rhode Island.
Issue 4: Form 4852 – Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.
Form 4852 serves as a substitute for Forms W-2, W-2c, and 1099-R and is completed by the client or you who represent them.
Use the Form 4582 when:
(a) The employer or payer doesn’t issue a Form W-2 or Form 1099-R or
(b) An employer or payer has issued an incorrect Form W-2 or Form 1099-R.
Attach this form to the back of the income tax return before any supporting forms or schedules. Your client should always attempt to get their Form W-2, Form W-2c, or Form 1099-R from the employer or payer before contacting the IRS or filing Form 4852. If they don’t receive the missing or corrected form from the employer or payer by the end of February, you may call the IRS at 800-829-1040 for assistance. Your client must provide their name, address (including ZIP code), phone number, social security number, and dates of employment. They also must provide the employer’s or payer’s name, address (including ZIP code), and phone number. The IRS will contact the employer or payer and request the missing form. The IRS also will send your client a Form 4852. If the client does not receive the missing form in enough time to file their income tax return timely, they may use the Form 4852 that the IRS sent. If the client received an incorrect Form W-2 or Form 1099-R, they should always attempt to have the employer or payer issue a corrected form before filing Form 4852.
Important Note: If the client receives a Form W-2, Form W-2c, or Form 1099-R after the return is filed with Form 4852, and the information received indicates that the information reported on the original return is incorrect, the client must amend their return by filing Form 1040X, Amended U.S. Individual Income Tax Return.
Issue 5: Parking Lot Expenses-Notice 2018-99 and Notice 2018-100 – Qualified Transportation Fringe Benefits (QTF)
QTFs are defined in § 132(f)(1) to include:
(1) transportation in a commuter highway vehicle between the employee’s residence and place of employment,
(2) any transit pass, and
(3) qualified parking.
Qualified parking is defined in §132(f)(5)(C) as parking provided to an employee on or near the business premises of the employer or on or near a location from which the employee commutes to work. The term does not include any parking on or near property used by the employee for residential purposes.
The new law disallows a deduction for expenses associated with providing any qualified transportation fringe benefits to employers of the taxpayer. For tax-exempt organizations there is a corresponding increase in the amount of unrelated business taxable income (UBTI) that must be calculated.
If a taxpayer pays a third party so that employees may park at the third party’s parking lot or garage, the § 274(a)(4) disallowance generally is calculated as the taxpayer’s total annual cost of employee parking paid to the third party. However, if the amount the taxpayer pays to a third party for an employee’s parking exceeds the §132(f)(2) monthly limitation on exclusion, which for 2018 is $260 per employee, that excess amount must be treated by the taxpayer as compensation and wages to the employee. As a result, the total of the monthly amount in excess of $260 that is treated as compensation and wages is excepted from the taxpayer’s § 274(a) disallowance amount by § 274(e)(2).
Taxpayer Owns or Leases All or a Portion of a Parking Facility
Until further guidance is issued, if a taxpayer owns or leases all or a portion of one or more parking facilities where its employees park, the § 274(a)(4) disallowance may be calculated using any reasonable method.
The notice identifies 4 steps that must be used to be deemed a reasonable method. Using the value of employee parking to determine expenses allocable to employee parking in a parking facility owned or leased by the taxpayer is not considered a reasonable method.
Furthermore, for taxable years beginning on or after January 1, 2019, a method that fails to allocate expenses to reserved employee spots (within the meaning of step 1) cannot be a reasonable method; but changes in employee reserved spot designations made by March 31, 2019, may be treated as applying retroactively for purposes of Notice 2018-99.
A “parking facility” includes indoor and outdoor garages and other structures, as well as parking lots and other areas, where employees may park on or near the business premises of the employer or on or near a location from which the employee commutes to work.
If a taxpayer owns or leases more than one parking facility in a single geographic location, the taxpayer may aggregate the number of spots in those parking facilities when using the methodology in this section B of Notice 2018-99.
However, if a taxpayer owns or leases parking facilities in more than one geographic location, the taxpayer may not aggregate the spots in parking facilities that are in different geographic locations.
Total Parking Expenses include, but are not limited to, repairs, maintenance, utility costs, insurance, property taxes, interest, snow and ice removal, leaf removal, trash removal, cleaning, landscape costs, parking lot attendant expenses, security, and rent or lease payments or a portion of a rent or lease payment (if not broken out separately). A deduction for an allowance for depreciation on a parking structure owned by a taxpayer and used for parking by the taxpayer’s employees is an allowance for the exhaustion, wear and tear, and obsolescence of property, and not a parking expense.
Expenses paid for items not located on or in the parking facility, including items related to property next to the parking facility, such as landscaping or lighting, also are not included.
Step 1. Calculate the disallowance for reserved employee spots. An employer must identify the number of spots in the parking facility, or the taxpayer’s portion thereof, exclusively reserved for the taxpayer’s employees (“reserved employee spots”).
The taxpayer must then determine the percentage of reserved employee spots in relation to total parking spots and multiply that percentage by the taxpayer’s total parking expenses for the parking facility. The product is the amount of the deduction for total parking expenses that is disallowed under § 274(a)(4) for reserved employee spots. Until March 31, 2019, taxpayers that have reserved employee spots may change their parking arrangements (changing signage, access, etc.) to decrease or eliminate their reserved employee spots and treat those parking spots as not reserved employee spot.
Step 2. Determine the primary use of remaining spots (the “primary use test”). The taxpayer may identify the remaining parking spots in the parking facility and determine whether their primary use is to provide parking to the general public. If the primary use of the remaining parking spots in the parking facility is to provide parking to the general public, then the remaining total parking expenses for the parking facility are excepted from the § 274(a) disallowance by the general public exception under § 274(e)(7). “Primary use” means greater than 50 % of actual or estimated usage of the parking spots in the parking facility. Primary use of the parking spots is tested during normal business hours on a typical business day, or in the case of an exempt organization during the normal hours of the exempt organization’s activities on a typical day. Non-reserved parking spots that are available to the general public but empty during normal business hours on a typical business day, or in the case of an exempt organization, during the normal hours of the exempt organization’s activities on a typical day, are treated as provided to the general public. In addition, if the actual or estimated usage of the parking spots varies significantly between days of the week or times of the year, the taxpayer may use any reasonable method to determine the average actual or estimated usage.
For purposes of § 274(a)(4) and this notice, the “general public” includes, but is not limited to, customers, clients, visitors, individuals delivering goods or services to the taxpayer, patients of a health care facility, students of an educational institution, and congregants of a religious organization. The general public does not include employees, partners or independent contractors of the taxpayer.
Step 3. Calculate the allowance for reserved nonemployee spots if the primary use of a taxpayer’s remaining parking spots is not to provide parking to the general public, the taxpayer may identify the number of spots in the parking facility, or the taxpayer’s portion thereof, exclusively reserved for nonemployees. Reserved nonemployee spots include spots reserved for visitors and customers, as well as spots reserved for partners, sole proprietors, and 2 % shareholders of S Corporations. The number of reserved nonemployee spots in the parking facility, or portion thereof, may be exclusively reserved for nonemployees by a variety of methods, including, but not limited to, specific signage (for example, “Customer Parking Only”) or a separate facility or portion of a facility segregated by a barrier to entry or limited by terms of access. A taxpayer that has no reserved nonemployee spots may go to Step 4. If the taxpayer has reserved nonemployee spots, it may determine the percentage of reserved nonemployee spots in relation to the remaining total parking spots and multiply that percentage by the taxpayer’s remaining total parking expenses. The product is the amount of the deduction for remaining total parking expenses that is not disallowed under § 274(a)(4).
Step 4. Determine remaining use and allocable expenses If the taxpayer completes Steps 1-3 in the methodology above and has any remaining parking expenses not specifically categorized as deductible or nondeductible, the taxpayer must reasonably determine the employee use of the remaining parking spots during normal business hours on a typical business day (or, in the case of an exempt organization, during the normal hours of the exempt organization’s activities on a typical day) and the related expenses allocable to employee parking spots. Methods to determine employee use of the remaining parking spots may include specifically identifying the number of employee spots based on actual or estimated usage. Actual or estimated usage may be based on the number of spots, the number of employees, the hours of use, or other measures.
Review Notices 2018-99 and 2018-100 for examples that will assist in determining parking lot expenses or taxability.
Issue 6: QBI – An Issue for Tax Season – What is the Definition of “Net Capital Gains/Losses”
In the proposed regulation, the term “net capital gains” was not clearly defined. The final regulations provided some guidance. §1.199A-1(b)(3) defines net capital gain for purposes of § 199A as net capital gain within the meaning of § 1222(11) plus any qualified dividend income (as defined in § 1(h)(11)(B)) for the taxable year. Capital gains and qualified dividends treated as investment income are net capital gain for purposes of determining the § 199A deduction. Your software will pick these items up as part of the QBI calculation -IF it is working properly.
Issue 7: Treatment of Other Deductions – The Surprise When Calculating the QBI Amount
§ 199A(c)(1) provides that QBI includes the net amount of qualified items of income, gain, deduction, and loss with respect to any qualified trade or business of the taxpayer. § 199A, deductions such as the deductible portion of the tax on self-employment income, the self-employed health insurance deduction and the deduction for contributions to qualified retirement plans under § 404 are considered attributable to a trade or business to the extent that the individual’s gross income from the trade or business is taken into account when calculating the allowable deduction. Therefore, the QBI Income must be reduced by these amounts to calculate the QBI income deduction.
Qualified Business Income must be reduced by:
- 1/2 of self-employment tax
- Self-employed health insurance and
- § 404 retirement plans.
The calculation is done on a proportionate basis to the gross income received from the trade or business.
Treasury and the IRS decline to address whether deductions for unreimbursed partnership expenses, the interest expense to acquire partnership and S corporation interests, and state and local taxes are attributable to a trade or business as guidance is beyond the scope of the regulations.
Note: Self-employment tax and net investment income tax. The deduction allowed under § 199A does not reduce net earnings from self-employment under § 1402 or net investment income under § 1411.
IRS announced that the instructions for 2018 Form 1040 and for 2018 pass-through entity returns will soon be updated to reflect changes that need to be made as a result of recently issued regs on the § 199A qualified business income deduction. Software will most likely be updated to the final regulations as well.
Issue 8: §1250 Real Property Recapture is that Part of QBI?
Given the specific reference to —§ 1231 gain in the proposed regulations, other commenters requested guidance with respect to whether gain or loss under other provisions of the Code would be included in QBI. One commenter asked for clarification about whether real estate gain, which is taxed at a preferential rate, is included in QBI. Additionally, other commenters requested clarification regarding whether items treated as ordinary income, such as gain under §§sections 475, 1245, and 1250, are included in QBI.
To avoid any unintended inferences, the final regulations remove the specific reference to § 1231 and provide that any item of short-term capital gain, short-term capital loss, long-term capital gain, or long-term capital loss, including any item treated as one of such items under any other provision of the Code, is not taken into account as a qualified item of income, gain, deduction, or loss. To the extent an item is not treated as an item of capital gain or capital loss under any other provision of the Code, it is taken into account as a qualified item of income, gain, deduction, or loss unless otherwise excluded by section 199A or these regulations.
This is the discussion in the preamble under the title of “10”. Items Treated as Capital Gain or Loss”. Note the red highlighted comment we interpret this language to exclude any gain that is taxed as a rate of less than the maximum ordinary tax rate. We believe that IRC §1250 recapture is taxed at 25%. Therefore, we believe that IRC §1250 recapture gain would not be eligible for QBI deduction.
Issue 9: Is § 179 Expense Subtracted when Calculating Qualified Business Income?
First, the §179 deduction must relate to the trade or business qualifying for the QBI deduction. There may be §179 deductions at a partnership or S corporation level that may not relate to a trade or business qualifying for the QBI deduction.
Second, if an individual has multiple trades or businesses from partnerships and S corporations with passthrough §179 deductions, the limitation for §179 is computed at the individual level. Any §179 deduction that is limited may also impact the potential QBI deduction (actually provide more QBI if the IRC §179 deduction is limited).
Also, the §179 Expense needs to be listed separately on the QBI worksheet attachment for the K-1:
Name of Trade or Business
QBI Income / (Loss)
Section 1231 Gain / (Loss)
Qualified REIT Dividends
Qualified PTP Income / (loss)
Issue 10: “Returns Per PTIN” Opens to All PTIN Holders
Beginning Feb. 25, 2019, the IRS expanded the availability of “Returns Per PTIN” information in the PTIN system to all preparer tax identification number holders. PTIN holders must process a minimum of 50 returns under their PTIN in the current year for data to be displayed. The PTIN system will only include Form 1040 series returns.
Issue 11: Enrolled Agent Renewal Processing Delayed
Due to the government shutdown, the IRS is delaying renewal processing for enrolled agents whose enrollment expires March 31. Additionally, the IRS is automatically extending enrollment card expiration for this group, which includes all Enrolled Agents with social security numbers ending in 0, 1, 2 or 3. Enrolled Agents with social security numbers ending in 0, 1, 2 or 3 who have not yet submitted a renewal should do so immediately at Pay.gov.
Issue 12: IRS Provides a Safe Harbor Method of Accounting for Passenger Automobiles that Qualify for the 100 % Additional First Year Depreciation
Treasury and the IRS issued guidance that provides a safe harbor method for determining depreciation deductions for passenger automobiles that qualify for the 100 % additional first year depreciation deduction and that are subject to the depreciation limitations for passenger automobiles. Under the Tax Cuts and Jobs Act (TCJA), the additional first year depreciation deduction applies to qualified property, including passenger automobiles, acquired and placed in service after September 27, 2017, and before January 1, 2027.
In general, the § 179 and depreciation deductions for passenger automobiles are subject to dollar limitations for the year the taxpayer places the passenger automobile in service and for each succeeding year. For a passenger automobile that qualifies for the 100 % additional first year depreciation deduction, TCJA increased the first-year limitation amount by $8,000. If the depreciable basis of a passenger automobile for which the 100 % additional first year depreciation deduction is allowable exceeds the first-year limitation, the excess amount is deductible in the first taxable year after the end of the recovery period.
The guidance provides a safe harbor method of accounting for passenger automobiles. The safe harbor allows depreciation deductions for the excess amount during the recovery period subject to the depreciation limitations applicable to passenger automobiles. To apply the safe-harbor method, the taxpayer must use the applicable depreciation table in Appendix A of IRS Publication 946. The safe harbor method does not apply to a passenger automobile placed in service by the taxpayer after 2022, or to a passenger automobile for which the taxpayer elected out of the 100 % additional first year depreciation deduction or elected under § 179 to expense all or a portion of the cost of the passenger automobile.
Taxpayers adopt the safe harbor method of accounting by applying it to deduct depreciation of a passenger automobile on their return for the first taxable year following the placed-in-service year.
Issue 13: Publications to Assist Business Owners and Employees Learn about Tax Reform
The IRS encourages businesses owners to view recently issued publications on tax reform and to share them with their employees. Some publications give an overview of tax law changes and others focus on paycheck withholding and the tax credit for paid family and medical leave.
- Pub 5307, Tax Reform Basics for Individuals and Families
- Pub 5318, Tax Reform What’s New for Your Business
- Pub 5330, Reminder from the IRS and the American Payroll Association
- Pub 5327, New tax credit for employers who provide paid family and medical leave
- Pub 5327SP, Nuevo crédito tributario para los empleadores que proporcionan licencia familiar y médica pagada
All can be found at irs.gov.
Issue 14: New Forms for Partnership Audit Regime “Push Out” Election
IRS has issued new Form 8988, Election for Alternative to Payment of the Imputed Underpayment – § 6226 and Form 8989, Request to Revoke the Election for Alternative to Payment of the Imputed Underpayment. These forms will be used by partnerships to make or revoke, respectively, the election to “push out” partnership adjustments etc. to their partners, under the new centralized partnership audit regime enacted as part of the Bipartisan Budget Act of 2015 (BBA). The forms were initially released on February 6 to reflect changes enacted under the Bipartisan Budget Act of 2015, but now appear to have been pulled from the website.
- The Form 8988 Election requires the partnership to:
- Attach a copy of the Notice of Final Partnership Adjustment and indicate the date of that notice.
- Attach a schedule listing each reviewed year direct partner’s name, address and Taxpayer Identification Number (TIN) and indicate the number of reviewed year partners.
- Indicate whether it is making the election for a general imputed underpayment or a specific imputed underpayment.
- Acknowledge that it must furnish statements to its reviewed year partner’s and file a copy of the statements with IRS.
- Acknowledge that election may only be revoked with the consent of IRS.
Issue 15: IRS Issues a Series of Forms Related to Modification of Imputed Partnership Underpayments
- Form 8980, Partnership Request for Modification of Imputed Underpayments § 6225(c)
- Form 8982, Affidavit for Partner Modification Amended Return Under §6 225(c)(2)(A) or Partner Alternative Procedure under §6225(c)(2)(B)
- Form 8983, Certification of Partner Tax-Exempt Status for Modification under §6225(c)(3)
- Form 15028, Certification of Publicly Traded Partnership to Notify Specified Partners and Qualified Relevant Partners for Approved Modifications Under 6225(c)(5)
More on these partnership changes in the April newsletter when the instructions are released and forms are available online.
Issue 16: Closure of Cincinnati Submission Processing Center
The IRS Cincinnati Submission Processing Center located in Covington, Ky., will be closing in 2019. If you have clients who need a 147C letter for Backup Withholding purposes, please send requests to the Ogden or Kansas City centers.
TIP: A closing date has not been announced, but monitor is you have preaddressed envelopes in your office as well as current address changes embedded in your software.
Issue 17: TIGTA Report 2019-30-016 – Expansion of the Gig Economy Warrants Focus on Improving Self-Employment Tax Compliance
The IRS last estimated the self-employment portion of the annual Tax Gap at $69 billion. The gig economy has since emerged and grown considerably, with thousands of new taxpayers each year being responsible for self-employment taxes.
The audit was initiated to evaluate the self-employment tax compliance of taxpayers who earn income in the gig economy and assess the IRS’s processes and controls that identify and address noncompliance with self-employment tax requirements.
Heads UP!!! TIGTA reviewed cases in the IRS’s Automated Underreporter (AUR) program for taxpayers who work in the gig economy and who have discrepancies between what is reported on their income tax returns and payments reported to the IRS on Tax Years 2012 through 2015 Forms 1099-K, Payment Card and Third Party Network Transactions, by payers. The review was limited to nine commonly recognized gig economy payer companies and identified 264,346 cases with potentially underreported payments included on Form 1099-K. The number of discrepancies involving Forms 1099-K from these gig economy payers increased 237 % from 2012 to 2015.
Like other types of AUR inventory, many cases were not selected to be worked by the AUR program due to the large volume of discrepancies that were identified. Specifically, 59 % of taxpayers were not selected to be worked by the AUR. This includes 2,817 taxpayers with potential underreporting of their Form 1099-K income in all four tax years, involving $2.7 billion in potentially underreported payments included on Form 1099-K.
Tip: Monitor your cash intensive businesses and Form 1099-K’s that are issued.
Issue 18: Additional Relief Has Been Requested for Underpayment of 2018 Taxes
Additional relief has been requested by Rep. John Lewis (D-GA), chairman of the House Ways and Means Subcommittee on Oversight, for Treasury and IRS to provide additional relief from the underpayment penalty to certain taxpayers. Currently if the taxpayer’s withholding and estimated taxes meet at least 85% of the tax due (Notice 2019-11), IRS had granted relief from an estimated tax penalty. That could change to 80% if Treasury agrees. We will keep you posted.
Issue 19: Beneficiary Deductions
§ 67(g) suspends miscellaneous itemized deductions subject to the 2% floor for tax years 2018 through 2025. Review Notice 2018–61, Clarification Concerning the Effect of § 67(g) on Trusts and Estates for information about allowable beneficiary deductions under §§ 67(e) and 642(h). Note: the Form 1040 instructions do not directly address this deduction.
Issue 20: IRS has provided various applicable federal rate tables for March 2019.
Applicable Federal Rates (AFR) for March 2019
Period for Compounding
2019 Tax Seminar Dates are Now Available
Have suggestions for topics? Send us an email, we are always looking for feedback.
Claudine Raschi, MS.
Basics & Beyond
727-210-6600 ext. 103