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Passport Revocation and Denial for Tax Debt | IRS Tax Lawyer & Attorney

Starting January 1, 2018, the State Department commenced to deny the requests for US passport issuance and renewal made by individuals with “seriously delinquent tax debt”. Moreover, the State Department has been granted the authority for US passport revocation with respect to these individuals. Let’s explore this new law on passport revocation and denial for tax debt.

Passport Revocation and Denial: IRC Section 7345

Section 32101 of the 2015 Fixing America’s Surface Transportation Act (“FAST Act”) added IRC section 7345, which requires the IRS to notify the State Department of taxpayers that the IRS has certified individuals as having “seriously delinquent tax debt.” This is called “Section 7345 Certification.” Once the State Department receives such a Certification, it is generally required to deny a passport application for the certified individuals and may even revoke or limit passports that were previously issued to these individuals.

Passport Revocation and Denial: Who Can Make Section 7345 Certifications

Only designated IRS officials may certify an individual or reverse Certification. IRC Section 7345(g) specifically reserves this right to the Commissioner of Internal Revenue, the Deputy Commissioner for Services and Enforcement of the Internal Revenue Service (IRS), or the Commissioner of an operating division of the IRS (collectively, “Commissioner or specified delegate”).

Passport Revocation and Denial: Seriously Delinquent Tax Debt

The term “seriously delinquent tax debt” is defined in IRC Section 7345(b)(1), which sets up four requirements. First, the debt must be “unpaid, legally enforceable Federal tax liability of an individual.” Id. Note that the seriously delinquent tax debt is limited to liabilities incurred under Title 26 of the United States Code (i.e. the Internal Revenue Code). The term does not include items such as FBAR penalties and child support.

Second, this federal tax liability must have been “assessed.” IRC Section 7345(b)(1)(A).

Third, the assessed liability must be greater than $50,000. IRC Section 7345(b)(1)(B). Pursuant to the IRC Section 7345(f), the $50,000 amount is adjusted for inflation each calendar year beginning after 2016. In fact, for 2018, the threshold amount is $51,000.

Finally, either a levy pursuant to IRC Section 6331 or a lien pursuant to the IRC Section 6323 has been issued with respect to the assessed tax liability. IRC Section 7345(b)(1)(C). Moreover, the administrative appeal rights under IRC Section 6320 with respect to the lien must have been either exhausted or lapsed. Id.

Passport Revocation and Denial: More Than $50,000 Threshold

In calculating whether the $50,000 federal tax liability threshold is met, the IRS will aggregate all of the current tax liabilities for all taxable years and periods assessed against an individual. It will also include penalties and interest.

Passport Revocation and Denial: Exclusions

Under the newly-issued IRS guidance, the term “seriously delinquent tax debt” for the purposes of passport revocation and denial does not include the following:

1. A debt that is being timely paid under an IRS-approved installment agreement under section 6159.

2. A debt that is being timely paid under an offer in compromise accepted by the IRS under section 7122.

3. A debt that is being timely paid under the terms of a settlement agreement with the Department of Justice under section 7122.

4. A debt in connection with a levy for which collection is suspended because of a request for a due process hearing (or because such a request is pending) under section 6330.

5. A debt for which collection is suspended because the individual made an innocent spouse election (section 6015(b) or (c)) or the individual requested innocent spouse relief (section 6015(f)).

Passport Revocation and Denial: Exceptions

Additionally, the State Department will not revoke or deny the US passport of a taxpayer if one of the following exceptions apply:

1. The taxpayer is in bankruptcy;

2. The IRS identified the taxpayer as a victim of tax-related identity theft;

3. The IRS determined that the taxpayer’s account is currently uncollectible due to hardship;

4. The taxpayer is located within a federally declared disaster area;

5. The taxpayer has a request pending with the IRS for an installment agreement;

6. The taxpayer has a pending offer in compromise with the IRS;

7. The taxpayer has an IRS-accepted adjustment that will satisfy the debt in full; or

8. If the taxpayer is serving in a designated combat zone or participating in a contingency operation, the IRS will postpone the Certification.

Passport Revocation and Denial: 90-Day Delay

Before denying a passport, the State Department will grant a taxpayer 90 days to allow him to either resolve any erroneous certification issues, make a full payment of the tax debt or enter into a payment arrangement with the IRS.

Passport Revocation and Denial: Main Remedy in Case of Erroneous Certification

In cases where the IRS makes an erroneous Certification or fails to revers a certification, a taxpayer does not have many choices. It appears that the taxpayer will not be able to appeal to the IRS Office of Appeals. The main course of action in these situations appears to be a civil action in court under IRC Section 7345(e).

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IRS Increases Interest Rates for the Second Quarter of 2018

On March 7, 2018, the Internal Revenue Service announced that the IRS underpayment and overpayment interest rates have increased for the second quarter of 2018. The second quarter of 2018 begins on April 1, 2018 and ends on June 30, 2018.

The second quarter of 2018 IRS interest rates will increase by one percent and will be as follows:
five percent for overpayments (four percent in the case of a corporation);
two and one-half percent for the portion of a corporate overpayment exceeding $10,000;
five percent percent for underpayments; and
seven percent for large corporate underpayments.

The IRS increased its underpayment and overpayment interest rates for the last time in the second quarter of 2016.

Under the Internal Revenue Code, the rate of interest for the second quarter of 2018 is determined on a quarterly basis. The second quarter of 2018 overpayment and underpayment interest rates are computed based on the federal short-term rate determined during January 2018 to take effect February 1, 2018, including daily compounding.

Generally, in the case of a corporation, the underpayment rate is the federal short-term rate plus 3 percentage points and the overpayment rate is the federal short-term rate plus 2 percentage points. The rate for large corporate underpayments is the federal short-term rate plus 5 percentage points. The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus one-half (0.5) of a percentage point.

This increase in the IRS underpayment and overpayment interest rates for the second quarter of 2018 is highly important and will have an impact on many US taxpayers. In particular, I would like to point out two principal areas impacted by this increase in the second quarter of 2018 IRS interest rates.

First, this increase means that the taxpayers will have to pay a higher interest on any underpayment of tax as calculated on the amended tax returns. This includes the payments that US taxpayers must make pursuant to the IRS Offshore Voluntary Disclosure Program and the Streamlined Domestic Offshore Procedures.

Second, the increase in the interest rates for the second quarter of 2018 directly affects the calculation of PFIC interest due on any “excess distributions”. It is important to remember that PFIC interest cannot be offset by foreign tax credit.

South Korean Cryptocurrency Taxation of Exchanges | IRS Tax Lawyer

In January of 2018, South Korea announced that it will start taxing cryptocurrency exchanges. This is a highly important development in international tax law concerning cryptocurrencies, because South Korea is a major hub for cryptocurrency trading. Let’s delve a bit deeper into South Korean cryptocurrency taxation.

South Korean Cryptocurrency Taxation of Exchanges

The first important point to make is that the new law affects only South Korean cryptocurrency exchanges, such as Bithumb and Coinone.

South Korean Cryptocurrency Taxation Starts With Tax Year 2017

The new South Korean cryptocurrency taxation will apply retroactively to any income derived from digital currency in the calendar year 2017. In other words, any profits the exchanges realized in 2017 on the trading of cryptocurrencies will be subject to the South Korean corporate taxation.

South Korean Cryptocurrency Taxation Rates

There is no new special tax rate created for cryptocurrency exchanges. Rather, the current corporate income tax rates will apply. In other words, the cryptocurrency exchanges are likely to pay a 22 percent tax rate for corporate profits exceeding an annual threshold of KRW 20 billion and an additional 2.2 percent local income tax (which constitutes 10 percent of the corporate income tax rate).

South Korean Cryptocurrency Taxation Deadlines

The deadline to pay the corporate income tax for the tax year 2017 will be March 31, 2018. The deadline to pay the 2017 local income tax will be April 30, 2018.

South Korean Cryptocurrency Taxation is Part of the South Korean Overhaul of the Cryptocurrency Market

The extension of corporate taxation to cryptocurrency exchanges is part of a major overhaul of the entire South Korean cryptocurrency market.  In fact, the South Korean government has instituted a number of non-tax measures to address concerns about money laundering and tax evasion.  For example, South Korea recently prohibited the opening of new virtual accounts for cryptocurrency investors while the cryptocurrency traders are required to change the names of their accounts to make them identifiable.

Cryptocurrency Trading is Taxable in the United States

Sherayzen Law Office reminds US taxpayers cryptocurrency exchanges are taxable in the United States as capital gains. Contact Sherayzen Law Office to schedule a consultation to learn more about US taxation of cryptocurrencies.

IRS Fails to Recover a Large Erroneous Refund | Litigation Tax Attorney

In a recent case, the IRS failed to recover a large erroneous refund of $21 million that it gave to a company called Starr International Co. Inc. (“Starr”). The opinion was released on January 31, 2018 by the District Judge Christopher R. Cooper (U.S. District Court for the District of Columbia) who granted Starr’s summary judgment motion. Let’s delve deeper into why the IRS was not able to recover this erroneous refund.

The Starr Case: Initial 2007 Request for Erroneous Refund

The story that led to a such a large erroneous refund is very interesting and related to the US-Swiss tax treaty. In 2007, as a shareholder of AIG stocks, Starr received dividends from AIG. In December of 2007, Starr filed a request with the US Competent Authority (“CA”) to claim a reduced withholding tax rate on the AIG dividends.

Then, without waiting for the CA response, Starr filed a refund claim with the IRS for the tax year 2007, seeking a refund in the amount it would have been entitled to had the CA granted the request for treaty benefits. It should be pointed out that Starr indicated on its Form 1120-F that this was a protective refund claim (to avoid the later Statute of Limitations problems) and informed the CA of the claim.

Once it was informed about the Starr’s protective refund claim, the CA instructed the Ogden Service Center not to issue a refund for 2007. Moreover, in October of 2010, the CA denied Starr’s request for treaty benefits for 2007.

The Starr Case: Request for 2008 Large Erroneous Refund Granted

This denial did not have the intended effect. On the contrary, Starr filed another refund request with the IRS for $21 million for 2008 and amended its refund claim for 2007. Starr also did it in a very clean and honest manner – on its 2008 Form 1120-F (next to the line indicating the refund amount), Starr wrote “see statement 1”. Statement 1 disclosed that CA did not grant treaty benefits to Starr and presented its counter-arguments arguing that CA’s decision was erroneous.

In 2011 the IRS erroneously granted Starr’s refund request for 2008 and issued a refund for $21,151,745.75. At the same time, the IRS did not issue any refund for the amended 2007 claim.

The Starr Case: Erroneous Refund for 2008 Leads to Lawsuit to Recovery Refund for 2007 and IRS Lawsuit to recover the 2008 Erroneous Refund

Emboldened by its 2008 erroneous refund, Starr decided to file a lawsuit in the D.C. District court to claim a refund for 2007. The lawsuit was filed in 2014 after Starr must have believed that the Statute of Limitations for the IRS to recover the 2008 erroneous refund had expired. It appears that this part of the case still continues as Starr has appealed the recent ruling in the government’s favor.

In the meantime, in response to Starr’s ever expanding appetite for refunds, the IRS decided to attempt to curb the Starr’s ambitions by recovering the 2008 erroneous refund. In 2015, the government amended its answer to Starr’s 2014 lawsuit and added a counterclaim seeking to recover the 2008 refund. Here, the most interesting part of the case begins.

The Starr Case: the IRS Arguments for the IRS Statute of Limitations to Recover 2008 Erroneous Refund

Generally, the IRS has only two years to initiate a lawsuit to recover a refund. There is, however, an exception. If a taxpayer obtains any part of the refund through fraud or misrepresentation, the Statute of Limitations may be extended to five years. The government bears the burden of proof to show that an extension of the statute of limitations is justified.

The IRS based its claim for the extension of the Statute of Limitations on three different arguments. First, the IRS stated that Starr made a misrepresentation when it indicated on line 9 of Form 1120-F that Starr was entitled to a $21 million refund; the IRS argued that it should have put “0″ on it.

Additionally, the IRS also made a second variation on the same argument, relying on Rev. Proc. 2006-54, which sets forth the procedures for requesting treaty benefits from the CA. Section 12.04 expressly states that denials of requests for discretionary treaty benefits are final and not subject to administrative review. Based on this section, the government asserted that Starr, in contradiction to the established procedure, sought an administrative review of the CA’s denial of its refund claim by not making it clear that it was not entitled to a refund claim.

Second, the IRS argued that the Starr’s failure to inform the CA about it 2008 refund claim was another misrepresentation. Here, the IRS again relied on Rev.Proc. 2006-54, which states that a taxpayer must update the CA on all material changes regarding issues under consideration.

Finally, the government argued that Starr made the third misrepresentation when it failed to notify the Ogden Service Center (where the Starr’s claim for 2008 erroneous refund was filed), that it lacked the jurisdiction to issue the 2008 refund.

The Starr Case: the Court Refuted All IRS Arguments and Denied the IRS Request to Recover 2008 Erroneous Refund

The district court judge disagreed with all of the three IRS arguments. With respect to the first argument, the court disagreed with the government’s position, because had Starr requested $0 on its refund claim and then litigated the merits of the claim in court, it would have been entitled only to $0 even if it won. The court noted that this has been the government’s position in the past. Moreover, Treas. Reg. §301.6402-3(a)(5) requires that refund claims contain a statement of the amount overpaid.

In this context, the court addressed the government’s argument that, by filing a refund claim, Starr was looking for a back-door administrative review of the CA’s denial of its claim. The court noted that a refund claim is not a request for administrative review, but a normal way for a taxpayer to obtain a refund that the IRS already withheld.

Moreover, the refund claim was an absolute jurisdictional requirement for seeking a judicial review of CA’s denial of Starr’s claim for refund. Had Starr failed to file a refund claim before going to court, the court would have lacked the subject matter jurisdiction to hear the case.

With respect to the government’s second argument, the court stated that it is irrelevant because Starr filed its 2008 refund claim when CA already made the final decision to deny the refund claim. In other words, there were no issues under CA’s consideration at the time when Starr filed its refund claim.

Finally, the court completely disagreed with the government’s argument that Starr should have informed the Ogden Service Center that it lacked jurisdiction to issue the refund. The court stated that there is simply no regulation, statute or an IRS instruction that would require the taxpayers to inform the IRS of what falls and what does not fall within its jurisdiction.

Since the government failed its burden of proof that Starr obtained its refund through misrepresentations, the court granted Starr’s motion for summary judgment and found that the IRS was not entitled to extend the Statute of Limitations to five years.

Contact Sherayzen Law Office for Help With Tax Litigation

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Section 1041 Definition of Divorce | Divorce Tax Attorney & Lawyer

26 U.S.C. §1041(a)(2) states that transfers of property between former spouses are not taxable as long as they are “incident to divorce”. The question is what is the definition of divorce for Section 1041 purposes?

Section 1041 Definition of Divorce: 26 U.S.C. §71(b)(2)

The Treasury regulations specifically refer to 26 U.S.C. §71(b)(2) for the definition of divorce or separation instrument (see Treas Reg §1.1041-1T(b), Q&A-7). 26 U.S.C. §71(b)(2) lays out three definitions of divorce or separation instrument:

“(A) a decree of divorce or separate maintenance or a written instrument incident to such a decree,
(B) a written separation agreement, or
(C) a decree (not described in subparagraph (A)) requiring a spouse to make payments for the support or maintenance of the other spouse.”

The regulations specifically states that the definition of divorce or separation instrument under 26 U.S.C. §71(b)(2)(A) also includes a modification or amendment to such decree or instrument. Treas Reg §1.1041-1T(b), Q&A-7.

Section 1041 Definition of Divorce: Void Ab Initio Annulments

Additionally, for the purposes of 26 U.S.C. §1041, the definition “divorce” is expanded to include divorce annulments and the cessations of marriage that are deemed void ab initio due to violations of state law. Treas Reg §1.1041-1T(b), Q&A-8.

Void ab initio annulments dissolve a marriage retroactively from its very beginning. In other words, the legal outcome of such an annulment is to treat the annulled marriage as if it never happened. While the state law differs from state to state, there are generally four grounds under which a marriage is voided ab initio: bigamy, related parties (i.e. spouses are related within a certain degree of consanguinity or affinity), incompetence and situations where one of the spouses is less than sixteen years old.

Contact Sherayzen Law Office for Help with Tax Issues Concerning a Section 1041 Transfer of Property

If you need help with tax issues concerning a divorce or a transfer of property pursuant to a divorce, contact Sherayzen Law Office for professional legal help.