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Notice 2017-10 Set Aside; Requirements of Notice and Comment Under APA Not Met, Green Valley Investors, LLC, Dec. 62,122

The Tax Court set aside Notice 2017-10, 2017-4 I.R.B. 544, while adjudicating a series of consolidated cases involving limited liability companies (LLCs) and conservation easements, because it was improperly issued by the IRS without meeting the notice and comment requirements under the Administrative Procedure Act (APA). Notice 2017-10 identified as listed transactions for purposes of Reg. §1.6011-4(b)(2) all syndicated conservation easement transactions, including all substantially similar transaction, entered into on or after January 1, 2010. The IRS had conducted examinations of the taxpayers’ Forms 1065, U.S. Return of Partnership Income, and disallowed the claimed deductions for noncash charitable contributions. In addition, each notice of final partnership administrative adjustment asserted a gross valuation misstatement penalty, a substantial valuation misstatement penalty, a negligence penalty, a substantial understatement penalty and an additional reportable transaction penalty.

The Tax Court held that Notice 2017-10 was a legislative rule because it created new substantive reporting obligations for taxpayers and material advisors, the violation of which prompted exposure to financial penalties and sanctions. Because the notice was a legislative rule, it should have gone through the notice-and-comment rulemaking under the APA. Moreover, Congress did not expressly authorize the IRS to identify a syndicated conservation easement transaction as a listed transaction without following the APA’s notice-and-comment procedures. In these consolidated cases, Notice 2017-10 was not issued until the tax year at issue. Accordingly, the court did not apply Notice 2017-10 retrospectively and disagreed that prior notice and comment made at the time of promulgation of Reg. §1.6011-4 satisfied the IRS’s ongoing obligation to comply with the APA when issuing Notice 2017-10. The Tax Court also concluded that the Congress had made it clear that each substantive rule of general applicability, including any amendment or revision, must comply with the APA. Consequently, the taxpayers’ cross-motions for summary judgment was granted in part, and Notice 2017-10 was set aside. Finally, Code Sec. 6662A penalties were not imposed with respect to reportable transactions.

Four concurring and two dissenting opinions were filed. The dissenting opinions focused on the express reference to Code Sec. 6011 in Code Sec. 6707A when it was enacted, and that the IRS had already identified 30 listed transactions by 2004 when Code Sec. 6707A was enacted without adherence to the APA’s notice-and-comment requirements. In addition, when Code Sec. 4965 was enacted in 2006, the conference report defined a listed transaction as a tax avoidance transaction “identified by notice, regulation, or other form of published guidance as a listed transaction.”

FL - Solid mineral tax rates for 2024 announced

Florida has released the severance tax rates on the production of heavy minerals and other solid minerals for 2024. From […]

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FL - Solid mineral tax rates for 2024 announced

IRS Provides Waiver for Taxpayers Failing to Meet Foreign Earned Income Requirements, Rev. Proc. 2024-17

The IRS has provided a waiver for any individual who failed to meet the foreign earned income or deduction eligibility requirements of Code Sec. 911(d)(1) because adverse conditions in a foreign country […]

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IRS Provides Waiver for Taxpayers Failing to Meet Foreign Earned Income Requirements, Rev. Proc. 2024-17

ERC Compliance Efforts Top $1 Billion in Six Months, IR-2024-78

The IRS announced that compliance efforts around erroneous Employee Retention Credit (ERC) claims have topped more than $1 billion within six months. “We are encouraged by the results so far of […]

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ERC Compliance Efforts Top $1 Billion in Six Months, IR-2024-78

IRS Provides Guidance on Replacement of Certain Lead Service Lines, Announcement 2024-10

The IRS has announced the federal income tax treatment of certain lead service line replacement programs for residential property owners. It is required by the federal and many […]

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IRS Provides Guidance on Replacement of Certain Lead Service Lines, Announcement 2024-10

IRS Releases Guidance on Form 1099-K, FS-2024-7; IR-2024-5

The IRS has released guidance to help taxpayers understand what to do with Form 1099-K. Responding to feedback from taxpayers, tax professionals and payment processors, […]

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IRS Releases Guidance on Form 1099-K, FS-2024-7; IR-2024-5

Treasury Department's AI-Powered Fraud Detection Yields $375 Million Recovery

The Treasury Department‘s Office of Payment Integrity (OPI) deployed Artificial Intelligence(AI)-based fraud detection at the onset of Fiscal Year 2023, resulting in the recovery of over $375 million. […]

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Treasury Department's AI-Powered Fraud Detection Yields $375 Million Recovery

FL - Senate approves IRC conformity changes

The Florida Senate approved a tax bill that changes the corporate income tax IRC conformity tie-in date. H.B. 7073, as […]

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FL - Senate approves IRC conformity changes

FL - House passes bill that modifies IRC conformity date

Florida House of Representatives passed a bill with a provision that modifies the IRC conformity tie-in date for determining corporate […]

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FL - House passes bill that modifies IRC conformity date

FinCEN Issues Guidance on Inflation Adjustments to Civil Monetary Penalties

The Financial Crimes Enforcement Network (FinCEN) issued guidance on inflation adjustments to its civil monetary penalties as mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Act), as amended. This rule […]

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FinCEN Issues Guidance on Inflation Adjustments to Civil Monetary Penalties

FL - IRC conformity update, disability employment credit proposed

Legislation introduced in the Florida House of Representatives proposes to: update the IRC conformity tie-in date for determining corporate income […]

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FL - IRC conformity update, disability employment credit proposed