Larry's Tax Law

It is not unreasonable to anticipate that there will be a federal tax policy transformation following a change in the political control of the White House, the U.S. Senate and the U.S. House of Representatives.  What may be unreasonable, however, is making knee-jerk tax planning decisions in anticipation of possible modifications to the Internal Revenue Code (the "Code").  Reactionary planning, unless it is well thought out and is based upon sound business judgment, could end up being disastrous.  During the present times, tax advisors and their clients need to be cautious in their tax planning and any related decision-making.   

Looking through a lens solely focused on federal taxation, it seems that commentators, tax advisors and taxpayers alike are all worried about the future.  Possible tax policy changes on the horizon that are being bantered about include:

2020 has been a rough year for all of us.  We have experienced personal loss, social unrest, economic challenges and significant limitations on personal interaction.  While the impacts of these conditions may manifest themselves differently in each of us, we have all been faced with some of the loftiest challenges we had ever likely encountered.  It is my sincere hope that with the COVID-19 vaccines recently approved by the Federal Drug Administration, we will return to some sort of normalcy in 2021.

It is a good time for us all to focus on the blessings in our lives.  One of the many blessings in my life was the opportunity of education.  It was not exactly given to me.  I had to work to pay for my education – many times working multiple jobs simultaneously – but the fact that a fine, quality education was available to me is a huge blessing.  Along the way, during college, law school and post-law school studies in taxation, I had the fortune of having terrific mentors.  One of my mentors, Professor David Richardson (now a retired professor and Chair of the Graduate Tax Program at the University of Florida College of Law), advised me that once I entered the practice of law, I had a duty to the profession to share the wealth of knowledge that I had been so fortunate enough to attain from my studies and that I would attain in my law practice.  That statement from Professor Richardson resonated strongly with me and has continuously been at the forefront of my career goals.

The Consolidated Appropriations Act, 2021

In a bipartisan effort, H.R. 133-116th Congress: Consolidated Appropriations Act, 2021 (the "Consolidated Appropriations Act, 2021") overwhelmingly passed both the House and the Senate on December 21, 2020.  It is now on President Trump's desk awaiting his signature.   

The Consolidated Appropriations Act, 2021, which spans almost 6,000 pages, once signed into law, will bring holiday cheer to many.  The new law includes a huge variety of provisions aimed at assisting individuals and businesses during this time of need.  One provision in particular is aimed at curing a wrong created by the Internal Revenue Service ("IRS") in Notice 2020-32.  

Introduction

On November 2, 2015, the Bipartisan Budget Act (“Act”) was signed into law by President Barack Obama.  One of the many provisions of the Act significantly impacted: (i) the manner in which entities taxed as partnerships are audited by the Internal Revenue Service (“IRS”); and (ii) who is required to pay the tax resulting from any corresponding audit adjustments.  The new rules sprung into life for tax years beginning after December 31, 2017. 

In the wake of the coronavirus pandemic, companies in wide-ranging industries across the country have unprecedented numbers of employees working from remote locations.  In a prior post, we discussed numerous issues that may arise from this new normal of teleworking, including tax, labor and employment, liability, and business registration implications. 

In this post, we drill down a bit further with respect to employers’ state tax reporting and payment obligations that may result from having employees working remotely in states other than where the employers maintain physical offices.  This is especially relevant in metropolitan areas that straddle multiple states, like here in Portland, Oregon.

It was one year ago today that two esteemed law firms based out of the Pacific Northwest merged to form Foster Garvey PC.  After going at it alone for a combined era that spanned more than 170 years, Garvey Schubert Barer, PC and Foster Pepper PLLC joined forces.  As a result, a full-service law firm of more than 150 attorneys with offices in Seattle, Portland, Washington, D.C., New York, Spokane and Beijing, China, emerged.

Shortly after the merger, the COVID-19 pandemic hit all people across the globe.  Then, social unrest throughout the United States joined the center stage, with continuing protests and riots occurring in almost every major city.  Most recently, wildfires of historic magnitude hit the Pacific Northwest.  On top of all of these life challenges, the attorneys and staff of Foster Garvey PC worked hard to maintain a focus on serving clients and our communities, as well as integrating the people and systems of two organizations.

When we thought times were bad enough with the COVID-19 pandemic and widespread social unrest in our country, the West Coast, including the Pacific Northwest, was struck with unprecedented wildfires and massive windstorms, taking lives, destroying property and rendering the air quality throughout the region unhealthy.  On September 16 and 17, the Internal Revenue Service announced good news for many taxpayers residing in Oregon. 

In News Release OR-2020-23 and News Release IR-2020-215, the IRS announced that, due to the wildfires and windstorms striking Oregon, the deadline for certain Oregonians to file returns and make tax payments will be extended to January 15, 2021.

More than six months into the coronavirus pandemic, and approximately four months since the IRS issued Notice 2020-32, it is looking increasingly likely that taxpayers will not be permitted to deduct business expenses funded with Paycheck Protection Program (“PPP”) loan proceeds that are ultimately forgiven.  It is terribly late in the game not to have finality on the issue, especially with the third quarter 2020 estimated tax payments due on September 15 (next week).     

Background

As we previously discussed, PPP loans authorized by the CARES Act may be forgivable, in whole or in part, if taxpayers use the proceeds for qualifying expenses (namely, payroll, benefits, mortgage interest, rent, and utilities).  Unlike other debt that is forgiven, PPP loan amounts forgiven pursuant to the CARES Act do not constitute cancellation of debt income.

On August 8, 2020, President Trump issued an executive order, directing the U.S. Treasury to grant employers the ability to defer the withholding, deposit and payment of certain payroll taxes as further COVID-19 tax relief.  The deferral applies only to the employee portion of Social Security taxes and Railroad Retirement taxes (i.e., 6.2 percent of wages) required to be withheld and paid under Internal Revenue Code (“Code”) Sections 3101(a) and 3201(a) from September 1, 2020 to December 31, 2020. 

PRACTICE ALERT:  The deferral does not apply to required employee Medicare tax withholdings under Code Section 3101(b) (either the standard 1.45 percent on all wages or the additional 0.9 percent tax on wages in excess of $200,000).  Further, the deferral is not available for the employer’s share of Social Security (6.2 percent) or Medicare (1.45 percent) taxes.

IRS NOTICE 2020-65

On August 28, 2020, the IRS issued Notice 2020-65, providing guidance relative to the president’s executive order.  It provides answers to several important questions.

Notice 2020-65 defines employers required to withhold and pay Social Security and Railroad Retirement taxes as “Affected Taxpayers.”  It goes on to provide that the due date for withholding and payment of the employee portion of Social Security taxes and Railroad Retirement taxes for the period September 1, 2020 to December 31, 2020 is postponed until the period commencing January 1, 2021 through April 30, 2021. 

Earlier this year, the Idaho Supreme Court, in Noell Industries, Inc. v. Idaho State Tax Comm’n, --- P.3d ---- (2020), ruled that gain from the sale of membership interests in a limited liability company that had business operations in Idaho by a taxpayer domiciled outside of Idaho was not business income.  As a result, the gain was not taxable in Idaho.

The court, in a 3-2 decision, upheld the district court’s reversal of the Idaho Tax Commission’s determination to tax the income.  The sharks were circling the taxpayer, ready to attack, but the majority of the justices on the Idaho Supreme Court intervened, saving the taxpayer from a savage death (or at least a boatload of taxes).