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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 - Guidance issued on catastrophic event property damage

Florida provides guidance on catastrophic event property damage for property tax purposes. Topics discussed include the payment of property taxes, […]

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FL - Guidance issued on catastrophic event property damage

FL - Tax relief provided for taxpayers affected by Hurricane Idalia

In response to Hurricane Idalia, eligible taxpayers that file Florida corporate income tax returns with original due dates or extended […]

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FL - Tax relief provided for taxpayers affected by Hurricane Idalia

IRS Warns About ESOP Compliance Issues, IR-2023-144

As part of ensuring high income taxpayers pay what they owe, the IRS warned businesses and tax professionals to be alert to […]

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IRS Warns About ESOP Compliance Issues, IR-2023-144

Rates Used in Computing Special Use Value Issued, Rev. Rul. 2023-15

The 2023 interest rates to be used in computing the special use value of farm real property for which an election is made under Code Sec. 2032A were issued by the IRS. In the […]

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Rates Used in Computing Special Use Value Issued, Rev. Rul. 2023-15

Taxpayers Reminded of Identity Protection PINs' Importance, IR-2023-134

The IRS has reminded taxpayers about the IRS Identity Protection PIN opt in program to help protect people against tax-related identity theft. “The Identity Protection (IP) PIN is […]

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Taxpayers Reminded of Identity Protection PINs' Importance, IR-2023-134

Contractors Reminded of Expanded New Energy Efficient Homes Tax Credit, IR-2023-142

The IRS has reminded eligible contractors who build or substantially reconstruct qualified new energy efficient homes that they might qualify for a tax credit […]

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Contractors Reminded of Expanded New Energy Efficient Homes Tax Credit, IR-2023-142

IRS Reminds Educators About Expense Deductions in 2023, IR-2023-150

The IRS has reminded eligible educators that they will be able to deduct out of pocket classroom expenses upto $300 while filing their federal income tax returns next year. […]

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IRS Reminds Educators About Expense Deductions in 2023, IR-2023-150

FL - Guidance provided on 2023 tax holiday for tools used by skilled trade workers

Guidance is provided regarding the Florida sales tax holiday on tools commonly used by skilled trade workers, which is held […]

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FL - Guidance provided on 2023 tax holiday for tools used by skilled trade workers

FL - Highlands County tourist development tax rate hike announced

The Florida tourist development tax rate in Highlands County is increased from 4% to 5% effective August 1, 2023. Combined […]

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FL - Highlands County tourist development tax rate hike announced

IRS Optimizing Service and Strengthening Enforcement, IR-2023-126

The IRS delivered dramatically improved service in 2023 filing season and continues to build on this progress by focusing on critical work across the […]

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IRS Optimizing Service and Strengthening Enforcement, IR-2023-126