Mar
21
2017

IRS Notice: Conservation Easements for Charitable Giving

In Notice 2017-10, the Internal Revenue Service recently issued guidance on syndicated conservation easement transactions presumed to be used as tax shelters. This addition to the “listed transactions” under Section 1.6011-4(b)(2) requires both participants and material advisors involved in such transactions to report their activity to the IRS. Failure to report involvement in such a transaction, or to correct previously filed returns, will subject individuals to penalty under Section 6707.

Conservation easements provide a tax deduction aimed at furthering the public good. Most often, conservation easements involve historical, endangered, or otherwise valuable property. The property is contributed to a charitable organization, encumbered by a right or restriction in the form of an easement. The easement guarantees to maintain or change the current use of the land, so that it is properly conserved.  However, like many tax deductions, conservation easements are susceptible to abuse by individuals seeking to shelter large investments from taxation. The Notice pertains to using conservation easements through a pass-through entity to effectuate an improper charitable tax deduction.

Notice 2017-10 describes a transaction whereby a pass-through entity solicits prospective investors for a charitable tax deduction through a conservation easement. In such a transaction, the pass-through entity holds real property that is eligible for a conservation easement. The investors purchase direct or indirect interests in the pass-through entity. In turn, the pass-through entity contributes a conservation easement encumbering the property to a tax-exempt organization. This contribution entitles the pass-through entity to a charitable tax deduction, which it allocates to the taxpayer investors. The investors then claim a deduction on their federal tax returns. Notice 2017-10 requires investors as well as the pass-through entity, and any sub-tiers thereof, to report participation in such transaction.

Ordinarily, the donor of a qualified conservation easement is properly entitled to a tax deduction. The contribution is usually made through a deed executed in favor of the charitable organization, which grants the perpetual right to use the property for purposes other than its current use. The deduction for a gift of a conservation easement, or similar restriction, is the fair market value of the restriction at the time the gift is made. Due to the conservation restriction, this is typically calculated by the decrease in the property value. However, solicitation materials described in Notice 2017-10 offer investors a charitable deduction that equals or exceeds two and a half times the original amount invested.

Written by in: Tax Shelters
Mar
13
2017

What a Difference an “H” Makes

Late on Monday, House Republicans revealed, in two parts (here and here, with summaries here and here) the American Health Care Act (“AHCA”) that is designed to meet the Republicans’ promise to “repeal and replace” the ACA.  In many respects, the AHCA is less “repeal and replace” and more “retool and repurpose,” but there are some significant changes that could affect employers, if this bill becomes law as-is.  Below is a brief summary of the most important points:

  • Employer Mandate, We Hardly Knew You. The ACA employer play or pay mandate is repealed retroactive to January 1, 2016, so if you didn’t offer coverage to your full-time employees, then this is the equivalent of the Monopoly “Get out of Jail Free” card.
  • OTC Reimbursements Allowed from HSAs and FSAs, Without a Prescription. This goes back to the old rules that allowed these reimbursements. This would begin in 2018.
  • Reduction in HSA Penalty. One of the pay-fors for the ACA was an increase in the penalty for non-health expense distributions from HSAs from 10% to 20%. The AHCA takes it back to 10% starting in 2018.
  • Unlimited FSAs Are (or Would Be) Here Again. AHCA repeals the $2,500 (as adjusted) limit on health FSA contributions starting in 2018.
  • Medicare Part D Subsidy Expenses Would Be Deductible Again. The ACA still allowed Medicare Part D subsidies to be excluded from a company’s income, but denied the deduction, for tax purposes, for any expenses that were subsidized.  This reinstates the prior law that allowed a “double tax benefit” of both the exclusion of the subsidy from income and the deduction for the costs funded by the subsidy starting in 2018.
  • A New COBRA Subsidy. The AHCA does away with ACA’s income-based subsidies in favor of age-based subsidies from $2,000 to $4,000 per individual (with a max of $14,000 for a family) with a phaseout for incomes over $75,000 per year ($150,000 for married filing jointly). However, unlike the ACA subsidies (which could only be used for individual market insurance), the new subsidies would also be available for unsubsidized COBRA coverage.   This would not kick in until 2020.  The subsidies are adjusted based on the CPI+1, which means they are probably unlikely to keep pace with medical inflation.  Additionally, any excess subsidy (which seems unlikely) would be put into an HSA for the individual’s benefit.
  • Trading in The Cadillac Tax for a Newer Model Year. Hearing the outcry of employers who did not want their health benefits taxed, the bill instead kicks the Cadillac Tax down the road. Instead of applying in 2020, it now applies in 2025.  There is no adjustment to the thresholds in this bill, so it will still pick up coverage that is not all that “Cadillac” (despite its name). Despite being highly unpopular, the Cadillac Tax has basically survived.
  • HSA Enhancements. The HSA contribution limits would be increased effective in 2018 so that they are the same as the out of pocket maximums that apply to HSAs (currently $6,550 for self-only coverage and $13,100 for family coverage). Additionally, expenses incurred up to 60 days before the account is established could be reimbursed from the account.
  • Continuous Coverage Requirement. In lieu of the individual mandate, the law would require individuals to maintain continuous coverage (with no more than a 63-day break). If they did not, then insurance companies could assess a 30% enrollment surcharge above their regular premium for twelve months.  This is designed to encourage individuals to stay in the insurance market, even if they don’t need coverage.  Employers will recognize the 63-day break rule from the old HIPAA creditable coverage rules.  This is basically the same concept, only applied across both employer plans and the individual market (the HIPAA rules did not apply to the individual market).  And unlike the HIPAA rules, the penalty here is a 30% premium increase, whereas under the HIPAA rules, pre-existing conditions could be excluded for a period of time if the individual did not maintain creditable coverage.  For employers, this probably mostly would mean a return to having to issue creditable coverage certificates.

The proposed AHCA makes many other changes that are beyond the scope of this post, but these are the ones that are most likely to have an impact on employer plans.  Of course, at this point, this is just proposed legislation and there’s no telling how much (if any) of this will survive the legislative process.   At least now, however, some legislators have something specific with which to work (and others have something specific to criticize).

Feb
27
2017

EO Update: e-News for Charities & Nonprofits

Two new Issue Podcasts available for viewing
Go to the Stay Exempt Issue Podcast page on irs.gov to see Issue Podcasts on:

  • When are Commercial-Type Activities a Substantial Nonexempt Purpose for an IRC 501(c)(3) Organization?
    Learn about determining when commercial-type activities further a substantial nonexempt purpose for an IRC 501(c)(3) organization
  • IRC 501(c)(3) Proposing Denial
    Learn about the five-step roadmap the IRS uses to determine whether proposing denial is appropriate for an organization requesting recognition of tax exemption under IRC 501(c)(3)

What is an Issue Podcast?

An Issue Podcast is a resource the IRS uses for sharing technical knowledge.

An Issue Podcast is a short (approximately 15 minute), on-demand audio and visual presentation that includes:

  • A brief summary and analysis of an issue
  • References to key resource materials
Written by in: General
Feb
22
2017

EO Update: e-News for Charities & Nonprofits

IRS makes approved Form 1023-EZ data available online

The IRS announced today that publicly available information from approved applications for tax-exemption using Form 1023-EZ, Streamlined Application for Recognition of Exemption, is now available electronically for the first time.

Read news release.

Resources for 403(b) retirement plans

Review the following information.

IRS summarizes “Dirty Dozen” list of tax scams for 2017

The IRS recently announced the conclusion of its annual “Dirty Dozen” list of tax scams. The annual list highlights various schemes that taxpayers may encounter throughout the year, many of which peak during tax-filing season. Taxpayers need to guard against ploys to steal their personal information, scam them out of money or talk them into engaging in questionable behavior with their taxes.

Read news release.

Written by in: General
Feb
21
2017

Just Push Pause: Revisiting Proposed Regulations

On January 20, 2017, President Trump signed an executive order entitled “Regulatory Freeze Pending Review” (the “Freeze Memo“).  The Freeze Memo was anticipated, and mirrors similar memos issued by Presidents Barack Obama and George W. Bush during their first few days in office.  In light of the Freeze Memo, we have reviewed some of our recent posts discussing new regulations to determine the extent to which the Freeze Memo might affect such regulations.

TimeoutThe Regulatory Freeze

The two-page Freeze Memo requires that:

  1. Agencies not send for publication in the Federal Regulation any regulations that had not yet been so sent as of January 20, 2017, pending review by a department or agency head appointed by the President.
  2. Regulations that have been sent for publication in the Federal Register but not yet published be withdrawn, pending review by a department or agency head appointed by the President.
  3. Regulations that have been published but have not reached their effective date are to be delayed for 60 days from the date of the Freeze Memo (until March 21, 2017), pending review by a department or agency head appointed by the President. Agencies are further encouraged to consider postponing the effective date beyond the minimum 60 days.

Putting a Pin in It: Impacted Regulations

We have previously discussed a number of proposed IRS regulations which have not yet been finalized.  These include the proposed regulations to allow the use of forfeitures to fund QNECs, regulations regarding deferred compensation plans under Code Section 457, and regulations regarding deferred compensation arrangements under Code Section 409A (covered in five separate posts, onetwothreefour and five).

Since these regulations were only proposed as of January 20, 2017, the Freeze Memo requires that no further action be taken on them until they are reviewed by a department or agency head appointed by the President.  This review could conceivably result in a determination that one or more of the proposed regulations are inconsistent with the new administration’s objectives, which might lead Treasury to either withdraw, reissue, or simply take no further action with respect to such proposed regulations.

A Freeze on Reliance?

The proposed regulations cited above generally provide that taxpayers may rely on them for periods prior to any proposed applicability date.  Continued reliance should be permissible until and unless Treasury takes action to withdraw or modify the proposed regulations.

The DOL Fiduciary Rule

The Freeze Memo does not impact the DOL’s fiduciary rule, which was the subject of its own presidential memorandum, discussed in detail elsewhere on our blog.

Feb
15
2017

Reminder: Filing Requirements for New 501(c)(4) Organizations

With lobbying efforts on the rise, the IRS has issued notice requirements for new 501(c)(4) social welfare organizations. These requirements follow the addition of Section 506 to the Code, where notification requirements for new 501(c)(4) organizations were outlined by the legislature.

A newly formed 501(c)(4) is required to notify the IRS within 60 days from the date it becomes a new legal entity. In providing notice, the organization must include the following information:

(1) the organization’s name, address, and taxpayer identification number;

(2) the date and state law under which the organization was formed; and

(3) a statement of the organization’s social welfare purpose.

The IRS has developed a new form – Form 8976 – that organizations should use to provide this notification. Note that continuing to file a Form 1024 is optional, and does not waive the requirement to provide notice. A Form 8976 can only be completed electronically through the IRS Electronic Notice Registration System. The system allows organizations to complete the notification process, keep account information current, and receive secure, digital communications from the IRS. You can access the Form 8976 here. Once notice is received, the IRS will issue a receipt of confirmation to the 501(c)(4) organization. However, this acknowledgement does not constitute approval of the organization’s qualifications for tax-exempt status under 501(c)(4), which is a separate determination.

Written by in: 501(c)(4)
Feb
09
2017

Understanding Effective Grant Management

When: Thursday, Feb. 23, 2017, 2 p.m. to 5 p.m.

Where: # 202 J.C. Penney Conference Center on the UM-St. Louis North Campus

Fee: $ 25

Program Description: Come to this class to learn the basics of effective grant management and implementation, and to learn the proper accounting procedures and practices you will need to employ as you put your grant funds into action.

Instructor Dan Sise, JD, joined the Nonprofit Management and Leadership Program (NPML Program) at UM-St. Louis in October, 2008, and serves as the NPML Program’s Academic Coordinator and Community Engagement Manager. A 1997 graduate of the University of Illinois College of Law, Dan is currently licensed to practice law in Missouri and Illinois. In the course of his legal career, Dan has dealt with a wide range of issues, including regulatory compliance, insurance coverage and defense, community redevelopment, and nonprofit governance and oversight. He serves on the board of directors of a number of nonprofit organizations, including the St. Louis-Jefferson Solid Waste Management District and The Daughters of Charity Foundation of St. Louis. Prior to joining the faculty of the NPML program, Dan worked at Habitat for Humanity St. Louis where he was director of operations.

Instructor Pamela Stuerke, Ph.d., is an Associate Professor of Accounting in the College of Business Administration at UM-St. Louis, and also serves as Chair of the Faculty Senate and University Assembly. In the College of Business Administration, she teaches Financial Accounting and Reporting, Accounting for Governmental and Not-for-Profit Entities, and Writing and Professional Research in Accounting. She also teaches Financial Issues in Managing Nonprofits for the Nonprofit Management and Leadership Program. She holds a Ph.D. from Indiana University’s Kelley School of Business, and a Missouri CPA certificate (inactive). She has served on the Board of Directors of the St. Louis Women’s Chorale, the Center for the Eucharist, and on the Chapter of Christ Church Cathedral (St. Louis). Before joining the accounting faculty at U.M. – St. Louis, she held faculty appointments at the University of Rhode Island and Case Western Reserve University.

Click here to register.

Written by in: Events
Feb
03
2017

Dangerous W-2 Phishing Scam Evolving; Targeting Schools, Restaurants, Hospitals, Tribal Groups and Others

WASHINGTON – The Internal Revenue Service, state tax agencies and the tax industry issued an urgent alert today to all employers that the Form W-2 email phishing scam has evolved beyond the corporate world and is spreading to other sectors, including school districts, tribal organizations and nonprofits.

In a related development, the W-2 scammers are coupling their efforts to steal employee W-2 information with an older scheme on wire transfers that is victimizing some organizations twice. “This is one of the most dangerous email phishing scams we’ve seen in a long time. It can result in the large-scale theft of sensitive data that criminals can use to commit various crimes, including filing fraudulent tax returns. We need everyone’s help to turn the tide against this scheme,’’ said IRS Commissioner John Koskinen.

When employers report W-2 thefts immediately to the IRS, the agency can take steps to help protect employees from tax-related identity theft. The IRS, state tax agencies and the tax industry, working together as the Security Summit, have enacted numerous safeguards in 2016 and 2017 to identify fraudulent returns filed through scams like this. As the Summit partners make progress, cybercriminals need more data to mimic real tax returns.

Here’s how the scam works: Cybercriminals use various spoofing techniques to disguise an email to make it appear as if it is from an organization executive. The email is sent to an employee in the payroll or human resources departments, requesting a list of all employees and their Forms W-2. This scam is sometimes referred to as business email compromise (BEC) or business email spoofing (BES).

The Security Summit partners urge all employers to be vigilant. The W-2 scam, which first appeared last year, is circulating earlier in the tax season and to a broader cross-section of organizations, including school districts, tribal casinos, chain restaurants, temporary staffing agencies, healthcare and shipping and freight. Those businesses that received the scam email last year also are reportedly receiving it again this year.

Security Summit partners warned of this scam’s reappearance last week but have seen an upswing in reports in recent days.  (more…)

Written by in: General
Jan
31
2017

IRS Releases Updated Form 990-EZ; New Options to Help Exempt Organizations Avoid Errors, File a More Accurate Return

WASHINGTON — The IRS announced today the release of an updated Form 990-EZ, Short Form Return of Organization Exempt From Income Tax, that will help tax-exempt organizations avoid common mistakes when filing their annual return.

The updated Form 990-EZ includes 29 “help” icons describing key information needed to complete many of the fields within the form. The icons also provide links to additional helpful information available on IRS.gov. These “pop-up” boxes share information to help small and mid-size exempt organizations avoid common mistakes when filling out the form and filing their return.

(more…)

Written by in: Form 990
Jan
05
2017

Bryan Cave’s Private Client Services Group Welcomes David Adler

Bryan Cave’s Private Client Services Group welcomes a new partner in our London office:

David Adler has joined us in the London office, and will be a member of the Private Client Group. David is a U.S. tax lawyer who advises international entities, individuals and intermediaries on planning that has a U.S. component. Along with core U.S. federal income, estate and gift tax advice, he provides a U.S. perspective on issues of wealth preservation and transfer, as well as on corporate governance and family succession for privately held businesses. He is also a highly experienced adviser on issues arising under the U.S. Foreign Account Tax Compliance Act (FATCA) and the OECD Common Reporting Standard. David is joining us from the London office of another large firm.

Written by in: General

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