IRS Sees Own Shadow | Four More Weeks of Tax Season Await

Nitti Gritty Tax


	March Madness is here, which always reminds me of the single most satisfying business deal I've ever pulled off. The year was 2004, and the first two rounds of the tournament were held in my then-backyard of Denver. A few months earlier I had entered a lottery in hopes of winning the right to buy tickets to two days' worth of games for only $120, and was lucky enough to have my number called. I walked into the Pepsi Center, took my seat, and was instantly reminded of two things: 1) I was missing all of the other games that were being played simultaneously, and 2) while I may love college basketball, there's nothing I like less than large groups of people. So before the first game even started, I stood up, walked out of the stadium, and promptly sold my tickets to the first scalper I saw for $300. On my drive home, I ordered up the entire tournament package on DIRECTV for only $80, and then proceeded to spend the rest of the weekend consuming an endless buffet of college hoops and Chipotle from the comfort of my couch; alone, happy, and $100 richer. And that, boys and girls, is how you carve out a twenty-year career in tax; by possessing a desire to save money that's matched only by your desire to avoid human interaction. It's a winning combination.

IRS Delays Tax Season By One Month


	You have to hand it to the IRS. It’s not easy to address an issue that has evenly divided an industry and manage to leave everyone pissed off. But that’s exactly what the Service did last week when it announced a depressingly impotent half-measure by extending the individual -- and only the individual -- 2020 filing deadline by one month to May 17, 2021. Those who wanted a repeat of last year’s blanket extension for all returns into midsummer were understandably disappointed. And those who preferred to wrap up tax season on April 15th now have to keep their foot on the gas for an extra month while enjoying no immediate relief, because the IRS neglected to extend the due date for 2021 1st quarter estimated payments.



	IRS Commissioner Charles Rettig Accounting Today

In testimony issued last week, IRS Commissioner Charles Rettig offered his explanation for the limited relief, but it was far from satisfying. When questioned, Commissioner Rettig stated that the due date for 2021 first quarter estimated payments couldn't be pushed back because high-earners would use the extra month to game the system, without providing any more detail. He then went on to add that because he looks like a cross between bad-ass actors Ray Liotta and Brian Dennehy, he can act with impunity.*

*last thing may not have happened

Let’s sort through the new individual extension with a quick Q&A…

Q: Is the one month extension to file my tax return automatic?

A: Yup. No action is required on the part of an individual taxpayer to participate in the one month extension. Individuals needing an extension of time to file until October 15, 2021, however, must still file Form 4868 by May 17, 2021.

Q: I owe taxes on my Form 1040 for 2020; does the extension also delay the time to PAY by one month, or only the time to file?

A: The time to pay is also extended until May 17. Payments due for individual income tax returns will not accrue interest or penalties until May 18, 2021.

Q: Do entities other than individuals get an extension to file and pay?

A: No. Only individuals filing Form 1040 receive an automatic extension of time to file and pay 2020 tax due. This is quite different from last year.

Q: Are first quarter 2021 estimated payments for individuals and entities extended to May 17, 2021?

A: No. First quarter estimated tax payments for calendar year filers are still due April 15, 2021.

Q: Wait…that makes no sense. You’re saying my 2020 tax liability doesn’t have to be paid until May 17, but my 1st quarter 2021 payment, which is likely going to be based on my final 2020 liability, is due one month earlier, on April 15? That’s ridiculous.

A: That last part isn't really a question, but it is accurate. It’s why this whole thing is rather silly.

Q: OK, riddle me this…let’s say I file my 2020 extension in May, and purposefully pay more than the balance due so that it will give rise to a large overpayment. Will that overpayment be credited to the Q1 2021 payment – as it would have if the extension payment had been due and made before April 15 -- or will it not be credited to my 2021 account until May 2021, causing me to have to pay penalties for Q1?

A: This is the big unknown. If I were a betting man – and I am, based on the losses that piled up this past weekend because the Big Ten suddenly forgot how to play basketball – I’d say that it’s going to be credited in May, and not April, and will be too late to cover your Q1 payment.

Q: Are the deadlines for contributions to IRAs and HSAs extended?

A: They certainly should be. Under Section 219, the IRA contribution is due by the due date of the return, without extensions, so that should now be May 17. Section 223(d)(4) should do the same for HSA contributions.

Q: Is the time for filing a claim for refund for my 2017 tax return extended to May 17, 2021?

A: That one I'm not so sure about. We'll see if we get broad relief from the IRS like we did last year in Notice 2020-35.

Q: When is my individual income tax state return due?

A: Depends on the state. Most states have already pushed back to at least the May 17 federal due date. As of the moment, however, the following states have NOT conformed, and are due before May 17: Arizona (pending, with a vote scheduled for March 24), Hawaii, Idaho, Indiana, and Ohio.

Q: Do taxpayers affected by disaster declarations that have a June 15, 2021 deadline now need to file by May 17, 2021?

A: No, the individual filing and payment extension to May 17, 2021 does not impact taxpayers in Texas, Oklahoma, and Louisiana who previously had their Federal due date extended to June 15, 2021.

RubinBrown's Ashley Granger and Charlie Forsyth contributed to this article.

The Latest on Legislation

President Biden Set to Roll Out the "Build Back Better" Agenda


	We spent last week dissecting the recently-enacted American Rescue Plan Act (ARPA), a $1.9 trillion COVID relief bill loaded with lower and middle-income tax cuts. There’s no rest for the weary, however, because momentum is already starting to build for ANOTHER round—or rounds -- of legislation. It is expected that President Biden will soon release his "Build Back Better" (BBB) agenda, which will address infrastructure, climate change, and several other domestic priorities, including a national paid leave program and free community college, all for the tidy sum of $3 trillion. As reported by the Washington Post, the legislative effort is expected to come in two pieces, the first addressing infrastructure and climate change, with the latter focusing on the remaining goals. As opposed to the ARPA, which was completely debt-financed, the BBB is anticipated to be partly paid for with tax increases. According to the Washington Post's sources, those increases would also be split between the two bills. As part of the infrastructure bill, President Biden would seek to increase the corporate rate to 28% and make several changes to the international tax regime, including an increase in the global minimum tax from 13% to 21%. Individual tax increases would be used to pay for the second bill; changes reported to be on the table include raising the top rate on ordinary income from 37% to 39.6%, eliminating the preferential rate on long-term capital gains for those with taxable income in excess of $1 million, and expanding the reach and rate of the current estate tax regime. These types of targeted tax increases should come as no surprise; each were included in the President's campaign-trail tax proposal. But if you read that Washington Post article the same way I did, something might have struck you as a bit...odd. I can certainly understand why the White House would be inclined to separate a $3 trillion bill into two separate pieces of legislation. But wouldn't splitting tax increases between both bills be guaranteed to doom at least one of them? After all, Republican leaders have made it clear that tax increases of the like mentioned above are an absolute non-starter. Just last week, Senate Minority Leader Mitch McConnell confirmed as much, stating that Democrats, “…want to raise taxes across the board, and the only way I think they could pull that off would be through a reconciliation process." Ahh...good ol' budget reconciliation. As a a reminder, the budget reconciliation process is available when one party controls the White House, House and Senate, as Democrats do now. It's unbelievably valuable to the controlling party, because it allows a bill to become law with a simple majority in the Senate. It's how the Republicans passed the Tax Cuts and Jobs Act in 2017. It's how the Democrats passed the ARPA ten days ago. And it's the only prayer the Democrats have of passing any future legislation with tax increases, because ten Republican Senators are not going to cross the aisle and support a bill that does away with large swaths of the Tax Cuts and Jobs Act, and that's exactly what would be required if the conventional 60 votes are needed for passage. So if using tax increases as pay-fors is the goal, the Democrats only hope is to use budget reconciliation. But what's unique about that process is that for each fiscal year, you only get one bite of the apple. If the proposed tax increases are split between two bills, whatever proposal goes through the normal procedures would be DOA. Given that reality, one would expect that the Biden administration would consolidate the tax increases into one bill that would be passed using budget reconciliation, where Republican dissent is of no consequence. Of course, even if that's what ends up happening, the bill's passage is far from assured. Several Democratic Senators have already made known their reluctance to raising taxes while the economy rebounds, and all it takes is one defection to doom the deal. Now, if you find yourself pondering how the Democrats can use budget reconciliation for any part of the BBB when they just used it for the ARPA and the government only passes one budget per fiscal year, I’d respond by strongly encouraging you to find a hobby. Then, I’d explain that the ARPA was passed using the budget for the FYE September 30, 2021, and that Democrats can immediately get moving on using the FY 2022 budget – their final budget before the 2022 midterm elections – to enact tax increases. Needless to say, we'll be tracking the BBB carefully. Should significant tax increases make their way into the legislation, proactive tax planning will be crucial.

Biden Administration Clarifies Tax Promise


	While President Biden has never hidden his desire to raise taxes, his administration recently clarified a campaign promise that those of us who live in the tax law just knew would someday become problematic. As you’ll recall, the President has repeatedly stated that under his tax plan, no one earning less than $400,000 would see their tax liability increase. Drawing a line in the sand in such a manner is always fraught with peril when dealing with the Internal Revenue Code, where the inherent complexity of its provisions and the manner in which they interact often give rise to unpredictable results. But the problem with Biden’s promise is much more fundamental: does the no-increase-below-$400,000 guarantee apply to individuals or families? Last week, Press Secretary Jen Psaki confirmed that the promise does in fact apply to families. Thus, if one spouse earns $150,000 and the other earns $300,000, that family’s bill IS going up, despite the fact that neither individual earns more than $400,000. Not a surprising result, given how difficult keeping that promise would be on an individual-by-individual basis, but one that’s sure to create headaches for the President.

Senator Sanders isn’t Giving up the Minimum Wage Fight


	One item that didn’t –or perhaps I should say, “couldn’t” -- make it into the ARPA was a proposal to increase the federal minimum wage from $7.25 to $15. Budget reconciliation comes with both fiscal and procedural limitations; for example, only provisions that impact government spending or revenue may be included in the process. Because the minimum wage increase was judged to have violated that requirement, it had to be dropped from the bill. Vermont Senator Bernie Sanders, who has long made raising the federal minimum wage a personal crusade, isn't giving up the fight, however. Instead, his latest proposal would force businesses to pay a higher wage via the tax law. It would work like so: if the CEO of a corporation with gross receipts in excess of $100 million earns 50 times more than the median worker, the corporation’s tax rate – which now sits at 21% -- would start to rise. The increase would start at 0.5% once the ratio exceeds 50 to 1, but could grow to as much as 5% as the disparity widens, leading to a final corporate rate of 26%. Of course, with future legislation also seeking to raise the corporate rate to 28%, we'll have to see how these two provisions would interact. While legislating the minimum wage through a tax increase may strike you as a roundabout way to accomplish Sanders’ goal, it’s a savvy move in that it guarantees his latest proposal won’t be struck from any future budget reconciliation bill for procedural reasons.

News You Need to Know About News You Need to Know

IRS Offers Easier Path to 2020 Unemployment Exclusion


	The ARPA provided an exclusion for unemployment income of up to $10,200 per individual in 2020. Rather than force taxpayers to amend returns that were filed prior to the passage of the ARPA, Commissioner Rettig announced that the IRS will automatically process refunds for those who were eligible for the exclusion in 2020. The Commissioner did not identify the cutoff date at which point automatic adjustments would stop being made, but he did state that more guidance was forthcoming. It seems, however, that the Service is struggling to get a grasp on the statutory intent of the exclusion. In the initial worksheet published to its website, the IRS warned taxpayers NOT to reduce modified adjusted gross income by any unemployment income received. It has since backtracked, updating the worksheet yesterday to provide that you do NOT include unemployment income in modified adjusted taxable income. Caution: The exclusion instantly disappears once modified adjusted gross income exceeds $150,000, regardless of filing status. As a result, don't forget to check the married filing separately math when at least one spouse had unemployment income in 2020. Each spouse is eligible for their own $10,200 exclusion, and because the limit is $150,000 per taxpayer, there might be scenarios where filing separately provides a benefit.

Guidance Issued on Incorrect 2020 Stimulus Credits


	The IRS recently revised the questions and answers it posted to its website to assist individuals who failed to claim -- or incorrectly claimed -- the 2020 recovery rebate credit under Section 6428. The Service makes an important distinction: if you failed to claim ANY credit at all on the 2020 return but were entitled to, you must file an amended return on Form 1040-X in order to receive the benefit. If, however, you claimed a credit on the original return -- even if it was the incorrect amount -- you should NOT file an amended return; rather, the IRS will correct the amount for you.

SBA Updates


	You know, when I decided to make a go of it in tax, no one told me that one day I'd also need to endlessly click "refresh" on the SBA.gov website, breathlessly awaiting the 16th modification to Form 3508. But for the past year, it's been part of the gig. For that reason, each week we'll devote a bit of space to updating the various SBA acronyms we've been introduced to since last March, from PPP to EIDL to SVO to the new RRG (restaurant revitalization grant). Let's jump in... Time is running out on the PPP, as both Round 1 and Round 2 loans will no longer be available after March 31, 2021. There is hope for more, however; the PPP Extension Act of 2021 would extend the application due date to May 31, 2021 and allow an additional 30 days for the SBA to process applications submitted before that date. The bipartisan bill passed overwhelmingly in the House and is expected to hit the Senate soon. The SBA issued another Interim Final Rule governing PPP loans, updating the previous guidance to implement changes made by the ARPA. Most notably, the IRS clarified that forgivable payroll costs do not include qualified wages taken into account in computing the extended Employee Retention Credit from July 1 – December 31, 2021, as well as any premiums for COBRA continuation coverage taken into account in determining the new credit under Section 6432. Also worthy of attention are the following:

PPP eligibility is expanded to include any Section 501(c) tax-exempt organization, except for those described in Section 501(c)(4).

A taxpayer may receive a Shuttered Venue Operator (SVO) grant if it previously received a PPP loan, but the grant will be reduced by all PPP loans received after December 27, 2020. The IFR clarifies an item that we discussed in last week’s newsletter: no PPP loan may be taken by a business after being approved for an SVO grant. The PPP loan number must be issued prior to the business being approved for the SVO grant, or the PPP applicant will be deemed ineligible. For more on the SVO program, give this a read.


	In related news, the SBA stated that the SVO program will finally be ready to accept applications on April 8th. Recently updated FAQs clarified that audited financial statements are not required, applicants can use a 2019 fiscal or calendar year lookback as a basis for calculating award amounts, and only one application and award will be allowed per EIN (important for affiliated groups). The application portal will be found here. As the SVO grant opening day nears, applicants should review eligibility requirements and finer points laid out in the FAQs, and begin gathering documentation as listed in the preliminary application checklist. If eligibility requirements are met, applicants should obtain a DUNS number and register in the System for Award Management (SAM.gov). Finally, the SBA also alerted EIDL borrowers that their payments are deferred until 2022. RubinBrown's Amie Kuntz contributed to this article.

AICPA Chimes in on PPP Loans: Timing of Basis Increase for Tax-Exempt Income and Impact on Accumulated Adjustments Account


	I’m nothing if not a shameless name dropper, and MY GOOD PAL Chris Hesse wrote an excellent letter to the IRS on behalf of the AICPA, imploring the Service to issue guidance on two PPP-related issues that have created no shortage of consternation among businesses owners and tax advisers. But first, the no-background: Section 1106 of the CARES Act provided that PPP loans, when forgiven, give rise to tax-exempt income rather than taxable cancellation of debt income. Then, after some twists and turns during 2020, Section 276 of the Consolidated Appropriations Act, 2021 confirmed that expenses paid with PPP funds are fully deductible. On to the first issue…owners of pass-thorough businesses increase their basis for their share of the business’s tax-exempt income. But as we addressed in this article, while we know that forgiveness of a PPP loan gives rise to tax-exempt income, what we don’t know is when. The AICPA urged the IRS to permit owners of pass-through businesses to increase their basis for the tax-exempt income created by PPP forgiveness in the year in which the funds are used to pay eligible expenses, rather than the year in which forgiveness is obtained by the SBA. Next, the AICPA took on the issue that has rocked #taxtwitter to its very core: should S corporations reduce the Accumulated Adjustments Account (AAA) or the Other Adjustments Account (OAA) for deductible expenses paid with PPP funds? In its letter, the AICPA urged the IRS to provide guidance that the expenses should reduce OAA as expenses “related” to tax-exempt income. This would prevent AAA from being artificially reduced, which would limit the threat threat of distributions being taxed as dividends if the S corporation has earnings and profits (E&P) from prior C corporation years. For what it’s worth, I agree with the AICPA on both counts. While a conservative approach would suggest that the tax-exempt income resulting from PPP forgiveness does not arise until the forgiveness is granted by the SBA, there is ample case law that suggests that when forgiveness is in the control of the debtor, a debt can be treated as being forgiven well before the lender makes it formal. (check out U.S. v. Ingalls). That’s why I side with the AICPA’s argument that once a borrower has spent PPP funds on eligible expenses during the covered period, the tax-exempt income should be triggered and the resulting basis increase recognized. Of course, one could also argue that a PPP loan is not debt for tax purposes in the first place (check out Novoselsky v. Commissioner) because the obligation to repay the amount is conditional -- if you spend the fees appropriately, you know the loan will be forgiven – and thus should be included in tax-exempt income at the time it is received. I’m not quite as comfortable with that argument in all fact patterns, but it can certainly be made. It is the AAA/OAA argument that has turned #taxtwitter into a battle ground, pitting brother against brother, coworker against coworker, and Adam Markowitz against everyone. You’ve got the “reduce AAA” faction, who argue that because the expenses paid with PPP funds are not separately stated, they MUST reduce that account pursuant to the regulations. Then you’ve got the “reduce OAA” proponents, who read those same regulations, and like the AICPA, argue that the expenses, while deductible, remain “related” to tax-exempt income, and thus should reduce OAA. They go on to add that because the net cash impact on a business is zero, the AAA should be similarly unaffected. Finally, there’s the loudest group of all, the “who gives a sht?” camp, who repeatedly (and correctly) point out that if an S corporation doesn’t have E&P from prior C corporation years, the AAA balance is irrelevant in determining the taxability of distributions, and this whole debate is much ado about nothing. I would caution this final group to remember, however, that the AAA balance could become VERY relevant if the S election ever terminates, because the ending balance may be distributed by the now-C corporation during the post-termination transition period without* being taxed as a dividend. And if that should come to pass, you’d be pretty bummed if you previously reduced AAA and didn’t have to. For reasons rooted in both law and logic, I side with Team OAA on this one. What I think, however, matters not. We'll have to wait and see if the IRS responds to the AICPA's letter and issues some guidance.

IRS Releases Instructions on Claiming Opportunity Zone Relief


	The IRS recently issued form instructions reminding Qualified Opportunity Funds and their investors of the relief available to those Opportunity Zone projects that were delayed by the COVID-19 pandemic. Born as part of the TCJA, Section 1400Z-2 provides that if you invest capital gain dollars within a required time period into a “qualified opportunity fund” (QOF), and that QOF in turn invests in qualified opportunity zone business property (QOZBP) – either directly or through a subsidiary qualified opportunity zone business (QOZB) -- then over a ten-year span, four tax benefits are available:

First, any gain invested into a QOF is deferred until December 31, 2026.

For any taxpayers who invested prior to December 31, 2019, at the seven year anniversary of the investment, 10% of the deferred gain will disappear forever.

For any taxpayers who invest before December 31, 2021, at the five year anniversary, 5% of the deferred gain will disappear. (If you invested before December 31, 2019, you’ll get the benefit of the 10% exclusion on the five-year anniversary and the 5% exclusion after year seven.

And then the big carrot…after ten years, you can sell your investment in the QOF -- or the QOF can sell its assets -- and the gain is completely tax free.


	Of course, you’ll have to earn those tax benefits. And so twice a year for ten years, you’ll have to kick the tires on the QOF and make sure that at least 90% of the assets held meet the definition of QOZBP. If the 90% test isn't satisfied, penalties apply for each month the QOF fails to meet the standard. There’s a LOT more to this, and if you’d like to understand all the details, you can thank the man who, for reasons unknown to him at the time, saw fit to write 17,000 words on the program. Perhaps Ozones are new to you. Well, if anyone ever approaches you about investing in one – or if you are thinking of doing so yourself – I can save you a LOT of time by remembering to immediately address these three things, which may quickly rule out whether it’s a good fit.

You ONLY get tax-free gain after ten years if you invest capital gain dollars today. People often like the sound of an Ozone investment and think, “I don’t have any gain to invest, but I’m not worried about deferral; I just want the back-end benefits,” but it doesn’t work that way. ALL the benefits only flow from an initial investment of capital gain dollars.

You CANNOT just purchase an existing rental property, slap some paint on the walls, and wait ten years. Property that is not being used in the Ozone for the first time (“original use property”) must be “substantially improved.” That means you have 30 months to spend as much to improve the property as you did to purchase it, or at least the portion of the purchase price not allocated to land. To illustrate, if you buy a rental property for $500,000, with $100,000 allocated to the land, you have 30 months to spend ANOTHER $400,000 improving the residence. That can be a big ask.

Unless you plan on getting creative with debt, you don't invest in an Ozone because you want to use losses to shelter other sources of income. The amounts invested reflect deferred gain, and thus under the Code, your stating basis is ZERO. And because losses from a pass-through entity are limited to basis, loss utilization -- at least in the initial years -- is very difficult.


	Trust me: If I had remembered to make those three points known at the START of Ozone conversations, I could have prevented a LOT of wasted time over the past few years. But maybe you’re not new to this. Maybe you or a client have already taken the plunge. Because of the COVID pandemic, many Ozone investments were put on hold during much of 2020 and 2021, and that can cause a problem for a program that is subject to a number of time-sensitive requirements. As a result, the IRS issued two Notices – the latest being Notice 2021-10 -- that offer the following relief for investors and QOFs and that impact 2020 tax returns:

Taxpayers normally have a 180-day window from the date gain was recognized to reinvest the gain into a QOF. The starting point for that window varies depending on whether the gain is recognized in an individual capacity or via a flow-through entity. Notice 2021-10 provides that if the last day of the 180-period ends between April 1, 2020 and March 31, 2021, the period is postponed until March 31, 2021.

In determining whether property has been “substantially improved,” during the required 30-month period, the stretch from April 1, 2020 through March 31, 2021 is disregarded.

The 31-month working capital safe harbor – which basically allows a subsidiary QOZB to take 31 months to convert cash into bricks and mortar – can be extended by as many as 24 months.

And most importantly, for any QOF whose first six-month period of a tax year or last day of a tax year falls between April 1, 2020 and June 30, 2021, NO PENALTY WILL APPLY for failure to meet the 90% standard.


	Understand, however, that just because no penalty applies, it doesn’t mean you don’t have to compute the 90% test. You still need to go through the steps of determining the QOZBP held by the QOF at the end of the first six months of its tax year and again at year end. It’s just that when filling out the required Form 8996, the form instructions now tell us to enter ZERO on Part IV, Line 8, which is captioned “Penalty.”

Quick Reads


	MY GOOD PAL Richard Rubin at the WSJ wrote a great piece about a forthcoming report alleging that the top 1% of households fail to report about 21% of their income. The IRS clarified that Section 165(d), which from 2018-2026 limits the non-wagering loss business deductions of a professional gambler to the amount of gambling winnings, does NOT apply to a business engaged in gambling, like a casino or racetrack. OK, it's not that quick of a read, but it'll be time well spent. Check out Ward v. Commissioner, T.C. Memo 2021-32, for a good lesson on a wide variety of common issues, from S corporation reasonable compensation to cancellation of debt income to substantiation of travel expenses.


	Enjoy the games. Until next week, Tony

Tony Nitti

Partner-in-Charge of National Tax at RubinBrown

I am Partner-in-Charge of National Tax at RubinBrown, one of the nation’s leading accounting and professional consulting firms. I am a licensed CPA in Colorado and New Jersey, an adjunct professor at the graduate tax programs of the University of Denver (DU) and Golden Gate University, and hold a Masters in Taxation from DU. My specialties include corporate and partnership taxation, with an emphasis on complex mergers and acquisitions structuring.

Check out my latest Forbes articles. Follow me on Twitter.

The contents of this newsletter are the expressed views, statements and opinions of Tony Nitti and not those of Forbes or RubinBrown. Further, the information contained herein is for guidance and informational purposes only and is not intended nor should it be construed in any way as providing any accounting, tax, legal or other professional advice on any specific factual situation. As such advice must be tailored to the specific circumstance of each case, the general information provided herein is likewise not intended nor should it be construed as a substitute for the advice of a professional advisor. If accounting, tax, legal or other expert assistance or professional advice is needed, the reader is strongly encouraged to consult with or engage the services of a professional advisor.”

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IRS Sees Own Shadow | Four More Weeks of Tax Season Await

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