Colorado Bar Association
Colorado Bar Association

IN THIS ISSUE


Reminder: Attorneys may obtain CLE credit for authoring published articles. To request CLE credit use Colorado Supreme Court Board of Continuing Legal and Judicial Education Form 6. Anyone interested in publishing an article in this newsletter may contact Jake Millis of Fox Rothschild, LLP at 303-446-3845 or jmillis@foxrothschild.com.


CLE Opportunities

The CBA Tax Section
Cordially Invites You to a Brown Bag Luncheon Presentation:

On Wednesday, May 9, Justin Mills, Esq. and Christopher Levkulich, Esq. of the Denver law firm Robinson, Diss and Clowdus, P.C. will present an annual update on the taxation of pass-through entities. This presentation will discuss important statutory changes, cases and administrative guidance from the last year.

Wednesday, May 9, 12 p.m.
At: Davis, Graham & Stubbs, LLP
1550 17th Street, Suite 500
Denver, CO

COST
$15.00 — Tax Section Member, Registered Attendance with Lunch
$20.00 — Non-Section Members with Lunch
$10.00 — Phone-ins

Submitted for 1 general CLE credit
***
**PRE-REGISTRATION REQUIRED**
RSVP by e-mailing lunches@cobar.org or online at cobar.org.

The CBA Tax Section
Cordially Invites You to a Luncheon Presentation:

On Wednesday, June 13, the Tax Section will host a Legislative Update for the Tax, Business Law, Real Estate and Trust and Estate Sections. Presenters will discuss important Colorado legislative changes in these practice areas from the last year.

Wednesday, June 13, 12 p.m.
At: Brown Palace Hotel
321 17th Street
Denver, CO

COST
$35.00 — Tax Section Member, Registered Attendance with Lunch
$40.00 — Non-Section Members with Lunch
$45.00 — Non CBA Members
$25.00 — Phone-ins
Free — Student Phone-in

Submitted for 2 general CLE credits
***
**PRE-REGISTRATION REQUIRED**
RSVP by e-mailing lunches@cobar.org or online at cobar.org.


Special CLE Opportunity

TAX CODE AND PRACTICE CHANGES
Wednesday, April 18

On Wednesday, April 18, the Tax Section of the Colorado Bar Association is co-sponsoring a special CLE presentation with Colorado Bar Association CLE regarding the Tax Cut and Jobs Act of 2017. This day-long event will feature distinguished speakers discussing topics that include the essential components of the new Tax Act; changes to the taxation of individuals, corporations and pass-through entities; changes to international taxation; divorce planning and much more. Those interested may attend the program in person at 1900 Grant St., Suite 300, Denver, CO. A live webcast will also be available, and video replays will be available on May 16.

Available for 6 general CLE credits.

View the full program agenda and register online.


Notice of Pro Bono Opportunity

Volunteer at the U.S. Tax Court Docket Call

The United States Tax Court will hold a small claims case session on April 16. Tax attorneys are invited to volunteer their assistance for a few hours on these dates. Attorneys interested in helping Pro Se taxpayers with docketed U.S. Tax Court cases may appear at 10 a.m. in Room C502 of the Byron G. Rogers U.S. Courthouse, 1929 Stout Street, Denver, CO 80294. Program guidelines are available online at cobar.org. Anyone wishing to volunteer should immediately contact Olena Ruth of the Merriam Law Firm, P.C. at olena@merriamlaw.com or (303) 592-5404, or David Sprecace of David A. Sprecace, P.C. at david@mytaxlex.com or (303) 454-8260, for additional information.


Tax Section Executive Council News

Looking for Assistance with a Tax Article?

Are you currently writing an article or outline regarding tax issues? Would you like some assistance with your writing or research? The Law School Outreach Committee of the Tax Section may be able to pair you with a current law student from the University of Denver Sturm College of Law or the University of Colorado School of Law to assist with your research and writing. The committee is focused on exposing current law and graduate tax students to the field of tax law through work with local practitioners. For additional information please contact Jake Millis, Esq. of Fox Rothschild LLP at jmillis@foxrothschild.com.

Tax Section Listserv

The CBA Tax Section has introduced the first ever tax-focused listserv for section members. To access and subscribe to the listserv, please register at the Colorado Bar Association Tax Section website. Similar listservs have been well received and utilized by other CBA sections. The Tax Section hopes that the listserv will provide a platform for members to solicit informal advice and input from their professional peers. Should you have any questions regarding the listserv, please feel free to contact David Sprecace of David A. Sprecace, P.C. at dave@daspclaw.com or 303-454-8260.

Nominations for the James E. Bye Lifetime Achievement Award—Due Tuesday, April 24

The Executive Council of the Colorado Bar Association Tax Section is accepting nominations for the James& E. Bye Lifetime Achievement Award. Please use this Nomination Form to make a nomination for the Award. You may attach supplemental information to this Form as necessary.

The James E. Bye Lifetime Achievement Award is awarded annually to a Colorado tax attorney who has adhered to the highest principles and traditions of the legal profession in the practice of tax law, and who has distinguished himself or herself in areas such as the practice of tax law in the State of Colorado, the improvement of the quality of the tax law, legal education, service to the Tax Bar, and community involvement.

The award is named in honor of the late James E. Bye, a long-time tax lawyer with the Denver law firm Holme Roberts & Owen (now Bryan Cave).  Past award winners include:

Professor Mark A. Vogel
Robert S. Rich
Judge Robert A. Wherry
John R. Maxfield
Joseph H. Thibodeau
Theodore Z. Gelt
Richard B. Robinson
Nancy R. Crow
James R. Walker

Submit your James E. Bye Lifetime Achievement Award nomination.

Trust & Estate Section Update:
New Subcommittee to Review UFIPA

The Trust & Estate Section’s Statutory Revisions Committee has formed a new subcommittee chaired by Gene Zuspann to review the Uniform Fiduciary Income and Principal Act (UFIPA). The subcommittee’s initial meeting will be on Thursday, April 19 from 10:30 to 11:30 a.m. in the CBA’s Capitol Room. Any member of the Tax Section is welcome to join the subcommittee. Please contact Georgine Kryda at 303-205-8485 or gkryda@gkryda.com to be added to the committee member email list and receive introductory information.


Feature Article

GREEN V. U.S. — TENTH CIRCUIT LIMITS DEDUCTION UNDER IRC § 642 TO BASIS FOR TRUST’S DONATED REAL PROPERTY

By Georgine M. Kryda1

In Green v. U.S., 2018 PTC 6 (10th Cir. 2018), the Tenth Circuit Court of Appeals reversed a District Court decision, and interpreted IRC § 642(c)(1) as limiting a trust’s deduction for donated property under that section to the trust’s adjusted basis in the property.

Facts

Taxpayers established a trust to benefit their children and to make charitable contributions. The trust held 100 percent ownership of a single-member limited liability company (SMLLC). Because the SMLLC was a disregarded entity, all of its income, deductions and credits passed through to the trust.

The trust was also a limited partner: owning 99 percent of the Hob-Lob Limited Partnership, and receiving shares of Hob-Lob’s ordinary business income (from ownership and operation of Hobby Lobby stores) as well as other distributions from Hob-Lob. 

In 2002 and 2003, the SMLLC used distributions received by the trust from Hob-Lob to purchase real property and buildings in three states for $10.6 million.  In 2004, the trust donated the same property to three charitable organizations, each of which was qualified under IRC § 170(b)(1)(A), and claimed a $20.5 million non-cash charitable deduction based on the property’s fair market value.

In 2008, the trust increased the value of its 2004 non-cash charitable deduction to $3 million and filed a refund claim for the $3 million, which the IRS denied on the grounds that the trust’s contribution deduction was limited to its basis in the property, not the property’s fair market value.  The trust sued for a refund and prevailed in its motion for summary judgment in the U.S. District Court for the Western District of Oklahoma.

The Trust’s Argument and the District Court’s Decision

The district court found that Congress intended for charitable deductions by trusts and estates under IRC § 642(c)(1) to be “without limitation”; whereas donations by individuals and corporations under IRC § 170 are based on the fair market value of the donation at the time of contribution, and are limited to a percentage of the taxpayer’s adjusted gross income.2 IRC § 642 is silent as to whether the deductible amount of a non-cash contribution is the property’s basis or its fair market value at the time of the donation.  The district court reasoned that because IRC § 642 had to be read with reference to IRC § 170, and the latter was based on the fair market value of the property at the time of donation, it was reasonable to interpret IRC § 642 as allowing a deduction for the fair market value of the property at the time of the donation.

The trust and the IRS agreed that IRC § 642 requires charitable contributions to be sourced from gross income.  The district court found that the IRS contradicted itself by attempting to argue that the real properties had become part of the trust’s corpus, but admitting that the trust was entitled to some amount of deduction under IRC § 642(c)(1).  The IRS argued that the trust should not benefit from a charitable deduction of unrealized capital gains due to the appreciation in the real properties’ values.  This argument regarding the apparent double tax benefit of allowing the trust to include unrealized capital gains in the “gross income” required for a charitable contribution deduction under IRC § 642 became a central issue in the Tenth Circuit’s analysis.

IRS’s Argument and the Tenth Circuit’s Decision

The Tenth Circuit looked to 26 C.F.R. § 1.642(c)-1 and found that the regulation narrowed, but did not resolve the issue.  The court then turned to IRC § 61 and the regulation at 26 C.F.R. § 1.61-6(a) for guidance regarding the definition of “gross income.”  The court then reasoned that the emphasis on “sale or exchange” is compatible with the concept of “realization.”  Thus, the IRS argued, and the Tenth Circuit Court reasoned, that mere appreciation, unlike a sale or exchange, of the property would not be included in the trust’s gross income under IRC § 61 and thus was ineligible for deduction under IRC § 642(c)(1).3

Conclusion for Practitioners

IRC § 642 presents at least three major concerns for practitioners.  First, the governing document for the trust or will must authorize the trust or estate to make charitable contributions.  Second, the settlor or testator needs to have designated property to fulfill the charitable contribution.  A trustee or personal representative cannot decide to make charitable contributions simply to improve the trust’s or estate’s tax posture.  Third, the practitioner needs to examine the source of the property for any non-cash charitable contribution by the trust or estate, inquire as to its adjusted basis and omit any unrealized gains in value in calculating the amount of the charitable contribution under IRC § 642(c)(1).

1 Georgine M. Kryda is an attorney, CPA, CFE, mediator, arbitrator, and founder of Georgine M. Kryda, Ph.D., Esq., LLC. She can be reached at gkryda@gkryda.com.
2 You can read the District Court’s opinion here.
3 You can read the Tenth Circuit’s opinion here.

MINUTES FROM JANUARY IRS PRACTITIONER LIAISON MEETING

Practitioner Liaison Meeting
January 26, 2018
Denver, Colorado
8:30–11:30 a.m.

Attendees: 

  • Practitioner Organization/Representatives
  • American Federal Women’s Alliance
  • Colorado Bar Association
    • Nick Kellem
  • Colorado Society of Certified Public Accountants
  • Colorado Society of Enrolled Agents
    • Anita Ward
    • Lisa B Wilson
  • Colorado Public Accountants
    • Ernie Kozace
  • Other Practitioners
    • Michael Christoff
    • Eliott Gidan
    • Clarice Landreth
    • Olena Ruth
    • David Sprecace
  • IRS Representatives/Title/IRS Function
    • Diane Sandoval, Territory Manager, Collection
    • John Owens, Group Manager, Collection
    • Tamara Hobson, Operations Manager, ACS
    • Gary Van Dorn, Quality Reviewer, ACS
    • Rose Garcia, Group Manager, Taxpayer Advocate
    • Heath Beckett, Appeals Team Manager, Appeals
    • Steven Osborne, Special Agent in Charge, Criminal Investigation
    • Kenneth Cooper, Territory Manager, Examination
    • Matthew Houtsma, Area Counsel
    • Debbie Rodgers, Senior Stakeholder Liaison

Meeting Summary

Examination Appeals

Appeals conference procedures changed in Oct 2016.

Oct 2016 revisions went back to face-to-face for Field Appeals only. Doesn’t require TP meet certain criteria.

Face to Face includes WebEx (EE can be seen). Applies to field EE not campus.
Appeals Team Manager concurrence no longer required for appeals officer to hold in-person conference.

Appeals can now invite Chief Counsel & Compliance (TCOs & RA’s) to attend appeals conferences. Compliance being present doesn’t jeopardize Appeals independence.

Complex cases generally come from LB&I, Appeals will invite Compliance for pre-Appeal conference for legal arguments. For complex cases, Appeals doesn’t have to secure TP agreement to invite Compliance.

Time appeals officers are given to complete preliminary review on a case is 45 days, which can be extended, with ATM approval, to 75 days.

In March 2016, IRS issued Rev Proc 2016 – 22, which supersedes Rev Proc 87-24, that provides for the administrative appeal process in docketed tax court cases. It clarifies the time frame Appeals has jurisdiction to work a docketed case before we are required to give it back to Chief Counsel. Docketed cases can be called back with no warning. For example, if it is a small tax case or regular tax case (disputed issue for any given tax year is equal to or less than $50,000). Appeals will return the case so that it is received by Counsel no later than 30 calendar days prior to the date of the calendar call. Appeals will return all other docketed cases to Counsel within 10 calendar days after the case appears on a trial calendar. In all cases, Counsel and Appeals may agree to extend the time for Appeals to consider a case, if settlement appears reasonably likely.

Collection

Collection has experienced over 40% attrition nationwide in the last 7 years.
Nationwide IRS has gone from 4068 Revenue Officers to 2380.
Colorado staff is currently at 30; we normally have about 100 ROs.
Collection’s primary focus is on employment taxes. As of April 2017, of the $68 billion unpaid employment taxes, 70.2% of all revenue was secured.
Secondary focus is getting RO on field calls to address of record. Having information available as soon as possible helps in resolution of case.

Automated Collection System (ACS)

Streamlined plan. Accounts Management follows the 21 manual which has a limit of $25,000. ACS follows the 5.19 manual which allows ACS to work streamline IAs up to $50,000. Liabilities from $50,000 to $250,000 would require ACS to obtain a financial information statement. ACS has an IRM deviation until September 30, 2018 effecting individual and out of business sole proprietor taxpayer accounts with assessments from $25,000 to $100,000. The deviation allows ACS to accept IAs that pay the assessed amount in 72 months with a Direct Debit Installment Agreement (DDIA) of $25,000 to $50,000; a Notice of Federal Tax Lien (NFTL) or financial information statement is not required with the DDIA. However, an NFTL is required if the TP does not provide the DDIA. ACS may also accept a DDIA without a financial information statement on assessed amounts paid in 84 months from $50,000 to $100,000 with a DDIA; ACS must file an NFTL on this type of streamline IA. These streamline IAs must be paid within the Collection Statute Expiration Date (CSED). IRM 5.19 allows ACS to work cases up to $250,000; mandatory assignment to the Field occurs if the assessed liability exceeds $250,000 assessed. ACS can work up to $250,000 with a FP, or 120-day FP. This FP or 120-day arrangement is available for individual, out of business sole-proprietor and non-trust fund business based upon another deviation that expires on September 30, 2018.

During filing season (FS) if there is a shutdown, ACS has been deemed essential & will be open. After FS ACS is deemed to be non-essential.

Nationwide ACS has been allotted 500 new contact representative hires, Denver will receive 29 of the new hires.

POA Disclosures for ID Theft include DOB & SSN.

CAF #s have been compromised so there’s an increase in disclosure for practitioners:  DOB, SSN & one other but no information off their own return. Can do over the phone disclosure through your client who’s with you. Disclosure will be done with them; they can then state that you are authorized to speak on their behalf.  This is in the IRM 21.

The TP/POA must make a specific proposal for an IA before a code is input into the system effecting the CSED. IA codes are systemically removed after 14 weeks (cycles) if no is action taken; the codes can be reinput if ACS works the case. There is a deviation from the IRM until September 30, 2018 allowing the Independent Reviewer in ACS 15-days to respond to a request for rejection.

The CSED is affected during the independent review process. The CSED is extended from the date the TP/POA requests the IA until after the timeframe the Service completes processing the case. 

Examination

Approximately 475 RAs in western area. Has decreased significantly over the last 5 – 7 years. Exam has about 91 TCOs.

Exam has phased out the following programs: The 1099K initiative is done after 7 years. The ATAT program is decreasing and the Offshore Voluntary Disclosure Initiative has ended. Our resources are being focused on core programs.

Claims, DIF, NRP and Audit recons are still active. Please have documentation ready during an examination.  

NRP was suspended for 2016.

Question: Aggressive Revenue Agents?
Response: In 2017 Examination attempted to improve cycle time for exam due to a case study analysis.  The case study identified that every case worked 3 days in a row or within a short period of time for several days with the TP, the case closed within 8 months, otherwise every case took more than a year. Exam is trying to improve scheduling to get the examination accomplished quicker for both the taxpayer and the IRS.

Return Preparer Visitation Program is in process currently.

Taxpayer Advocate

PATH criteria cases are elevated to National Taxpayer Advocate Nina Olsen for review.
Taxpayer Advocate mediates between the functions & the TP or POA.

TAS will ask for same documentation that the functions request.

Criminal Investigation

Denver office services CO/ID/MT/WY, with 60 Special Agents. Currently there are 2100 Special Agents nationwide. In FY 2018, Nationwide CI was approved to hire approximately 96 – 144. Denver hopes to get some non-1811 positions, to assist with administrative assignments.

CI’s focus remains on ID Theft, and we see a spike during Filing Season.

2018 priorities include traditional tax crimes to include employment taxes, abusive tax Schemes, cyber-crimes and Laundering illicit funds through dark web.

CI will continue to work licensed marijuana grows and dispensaries as legal source tax cases.

Area Counsel

Small “S” cases less than $50,000 small case or regular case designation are handled by small group of attorneys & para-legal employees.

Para-legal employees try to settle cases quickly. Efficient handling of cases is the answer to effective resolution of issues. Talk to Counsel early, before the case goes on the calendar.

There is a frivolous case spike, possibly due to a promoter.

There are 2 Marijhana case opinions available, Jabari and Feinberg.

If you have clients that need legal advice, the Denver University tax clinic is a good resource.

Stakeholder Liaison

IRS Names 8 New IRPAC Members

irs.gov/newsroom/irs-names-8-new-irpac-members

The Internal Revenue Service announced the selection of eight new members and 14 reinstated members for the Information Reporting Program Advisory Committee (IRPAC), which provides a forum for IRS officials and members of the public to address information reporting issues.

IRS Statement on Retroactive Extender Provisions

irs.gov/newsroom/irs-statement-on-retroactive-extender-provisions

The IRS is reviewing the legislation signed Feb. 9 that retroactively extended and modified numerous tax provisions covering 2017. We are assessing these significant changes in the tax law and beginning to determine next steps. The IRS will provide additional information as quickly as possible for affected taxpayers and the tax community.

Key IRS Identity Theft Indicators Continue Dramatic Decline in 2017; Security Summit Marks 2017 Progress Against Identity Theft

irs.gov/newsroom/key-irs-identity-theft-indicators-continue-dramatic-decline-in-2017-security-summit-marks-2017-progress-against-identity-theft

The Internal Revenue Service announced steep declines in tax-related identity theft in 2017, attributing the success to the Security Summit initiatives that help safeguard the nation’s taxpayers. Key indicators of identity theft dropped for the second year in a row in 2017. This includes a 40 percent decline in taxpayers reporting they are victims of identity theft in 2016. Since 2015, the number of tax-related identity theft victims has fallen by almost two-thirds and billions of dollars of taxpayer refunds have been protected.

Tax Pros Urged to Step Up Security as Filing Scheme Emerges, Reminded to Report Data Thefts

irs.gov/newsroom/tax-pros-urged-to-step-up-security-as-filing-scheme-emerges-reminded-to-report-data-thefts

Seeing the emergence of a new filing season scam, the Internal Revenue Service urges tax professionals to step up security and beware of phishing emails that can secretly download malicious software that can help cybercriminals steal client data. In a new twist, the fraudulent returns in a few cases used the taxpayers' real bank accounts for the deposit. A woman posing as a debt collection agency official then contacted the taxpayers to say a refund was deposited in error and asked the taxpayers to forward the money to her.

Thanks for a great meeting. Next meeting, tentatively set for July 26, 2018.


CBA Tax Section 2017–18 Officers and Committee Members

Council Officers
Chair Trevor Crow
Vice-Chair Klaralee Charlton
Secretary Justin Mills
Treasurer Georgine Kryda
Section Committees and Chairs
Education Committee
CLE Gary Abrams
Topical Lunches Doug Becker
Pro Bono Olena Ruth and Dave Sprecace
Legislative Committee
Federal Greg Berger
State Jeremy Schupbach
LPC Liaison Michelle McCarthy
Publications Committee
Newsletter Justin Mills/Jake Millis
Tax Tips Adam Cohen
Website Trevor Crow
Agency Positions Committee
CO. Dep’t. of Revenue Klaralee Charlton
Interprofessional Committee
IRS Liaison Olena Ruth/Dave Sprecace
ABA Report Jennifer Benda
Section Liaisons
Business Trevor Crow
Trusts & Estates

Georgine Kryda

Real Estate Arthur Griffin
CBA Staff Liaison Juliann Tricarico
Colorado Bar Association
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