2009 Information Reporting Program Advisory Committee Public Report Ad Hoc Subgroup
Issues Covered in this Section
- Proposed Regulations under IRC §3402(t) – Withholding on Certain Payments Made by Government Entities
- Simplifying Employer Tax Compliance for Non-Resident Aliens
- Form 5498, IRA Contribution Information: Reporting for Successor Beneficiaries
- Barter Exchange Education, Back-up Withholding and “B” Notice Requirements
- Federally Declared Disaster Casualty Losses
- Electronic Furnishing of Form 1098-T, Tuition Statement
IRPAC recommends that the IRS provide additional guidance to government entities that must comply with the withholding provisions of IRC §3402(t) and that the IRS considers higher withholding thresholds. The costs of implementation of IRC §3402(t) in terms of systems and staffing requirements will be enormous and a government entity’s constituencies might experience reduced services as governments are forced to increase spending on administrative systems to comply with the withholding requirements. Vendors that provide property and services to government entities already operating in an uncertain economic environment will experience decreased cash flows, further straining their ability to pay for labor and supplies. IRPAC recommends the IRS consider additional relief provisions in recognition of these economic factors. IRPAC also recommends that clarification be provided that IRC §3402(t) withholding does not conflict with the treatment and reporting of other types of payments. IRPAC recommends guidance on how to determine if payees listed in regulations qualify for exemption from withholding. Guidance is also required to assist government entities in collecting the information necessary to apply these payee exceptions. These recommendations will enhance payers’ compliance with the regulations and help to reduce unnecessary withholding and reporting.
IRS released Proposed Regulations under IRC §3402(t) for public comment on December 5, 2008. The Proposed Regulations provide for withholding on certain payments made by government entities or their payment administrators to persons providing property or services. Government entities would benefit from additional guidance, clarification and relief provisions with respect to the Proposed Regulations. Government entities would benefit from clarification that IRC §3402(t) withholding does not conflict with the treatment and reporting of other types of payments. In particular, qualified plan and deemed Individual Retirement Account (IRA) distributions to participants and beneficiaries subject to withholding under IRC §3405; employer contributions to employee benefit and deferred compensation plans, including any payments by an employer to, or for the benefit of, an employee; and certain payments related to investments, including annual distributions made by colleges and universities as trustees to beneficiaries of charitable remainder trusts, and capital contributions made by endowments from colleges and universities to limited partnerships for investment purposes.
The Proposed Regulations provide that payments to certain payees are exempt from withholding:
- Government entities subject to 3402(t)
- Tax-exempt organizations
- Foreign governments
- Certain payments to nonresident aliens
- Foreign corporations
- Indian tribal governments
- Certain pass-through entities
Currently, there is a lack of guidance on how to determine that payees qualify for these exemptions. Guidance is required to assist government entities in collecting the information necessary to apply these exceptions. Absent such a mechanism to facilitate proper application of the exceptions, an unnecessary burden will be imposed on entities not subject to taxation, and the IRS will be burdened with processing additional filings and requests for refunds from these excepted entities.
The Proposed Regulations provide a transition rule for interest and penalties for failure to withhold on payments made in the first year that the regulations are effective for entities who make a good faith effort to comply with the requirements of IRC §3402(t). Government entities would benefit from clarification of the conditions necessary to meet the standard of “good faith effort to comply.”
Certain provisions for relieving the compliance burden should be considered. Raising the $10,000 per payment threshold would help alleviate concerns about discouraging affected government entities from using payment cards for transactions over the threshold amount and thereby putting the payment card industry at a competitive disadvantage and increasing administrative costs of disbursement mechanisms.
The Proposed Regulations provide a threshold of $100,000,000 of annual payments for determining if a political subdivision of a state (or any instrumentality thereof) is subject to withholding under IRC §3402(t). This determination would be enhanced by a special rule allowing the averaging of multiple accounting years.
The Proposed Regulations provide that payments made under written or binding contracts in effect before issuance of final regulations are not subject to IRC §3402(t) withholding, unless such contract is materially modified. Government entities will require time to negotiate renewal options and draft contractual amendments to reflect the impact of the withholding requirements. The date set by the regulations relating to contract renewals should take into consideration this additional time required. In addition, many government entities are subject to statutory requirements favoring the use of minority-owned and other small contractors who will be especially sensitive to the adverse cash flow impact of the withholding requirements. A multi-year phase-in approach based on the size of the contractor might mitigate the impact on small contractors.
IRS is currently considering comments submitted in response to the proposed regulations. IRPAC submitted its comments in January.
IRPAC’s original recommendation in 2008 was a “decision tree” format on IRS.gov that provides employers with step-by step guidelines based on facts and circumstances to arrive at an employment tax withholding answer for non-resident alien scholars. Since the IRS determined that technologically the project was not feasible, the IRS Large and Mid-size Businesses (LMSB) operating division, proposed an alternative that is close to being fully developed and IRPAC supports. This alternative, which will be housed on IRS.gov under the International Taxpayer page, will provide links based on visa type to allow employers as well as non-residents to manage and understand withholding and reporting requirements.
Since Tax Treaties cannot be substantively changed or altered either quickly or easily, this recommendation works with existing laws to enhance compliance in an easy to use format.
LMSB initially thought a decision tree might be possible but later discovered that IRS.gov could not handle that kind of technical maneuvering. However, LMSB has been able to come up with an effective alternative, which actually expands the information provided.
This project began as a discussion on non-resident scholars and served as a carryover item from the 2008 IRPAC recommendation. The recommendation focused on the employer being hampered by several issues. The first issue is the obvious complexity of the laws and regulations. The second issue is the constant status changes that occur with an individual. The employer is hard-pressed to apply confidently the correct tax withholding and reporting.
The 2009 discussions have now broadened to include all visa holders and tax
issues related to their employment. As stated above, the new format will offer links from the International Taxpayer webpage that will be determined by visa type. The information contained in these pages will allow the employer and employee to be on the same understanding level for the taxation issues. On each visa webpage there will be discussions concerning the tax residency rule, common types of incomes for the visa type, individual tax filing requirements, tax treaty information, withholding tax provisions, and the integration of immigration and tax laws. IRPAC has also requested a webpage that addresses retirement plan beneficiary issues for the non-resident alien.
The release of these pages will substantially reduce confusion over withholding issues concerning non-resident aliens. IRPAC will follow–up with LMSB in the upcoming year to gather feedback and possible enhancements to the website pages, but believes the website offers a clearer picture on non-resident alien employment tax issues.
IRPAC recommends the IRS provide guidance and/or instruction to address Form 5498 reporting with respect to a successor beneficiary of a deceased IRA beneficiary. An IRA in this situation is often termed a stretch IRA. IRPAC recommends the guidance/instructions provide that Form 5498 reporting for the year of an IRA beneficiary’s death and subsequent years indicate the successor beneficiary and the original IRA owner or plan participant as well as such successor’s share of any December 31 fair market value. To the extent multiple successor beneficiaries exist and have assets remaining in an account, separate Forms 5498 are recommended for each one titled as described above with their share (amount) of the December 31 fair market value. IRPAC recommends for the year of a beneficiary’s death that no final Form 5498 is required in the deceased beneficiary name. However, IRPAC recommends the guidance/instructions should state that upon request, the beneficiary’s date of death value must be provided to the executor or administrator of the deceased beneficiary’s estate.
Currently, no specific Form 5498 reporting guidelines/instructions are provided for a successor beneficiary of a deceased IRA beneficiary. IRA Custodians, Trustees and Issuers (C/T/Is) are reporting on these successor beneficiary (inherited) IRAs by extrapolating guidance in Revenue Procedure 89-52 and current Form 5498 instructions. Additionally, recent guidance on account titling is found in Notices 2007-7 and 2008-30 with respect to beneficiaries of deceased plan participants following rollover to inherited traditional and Roth IRAs, respectively. Thus, identical situations have and will result in different reporting results.
The 2009 Form 5498 instructions state:
“Inherited IRAs. In the year an IRA participant dies, you, as an IRA trustee or issuer, generally must file a Form 5498 and furnish an annual statement for the decedent and a Form 5498 and an annual statement for each no spouse beneficiary. An IRA holder must be able to identify the source of each IRA he or she holds for purposes of figuring the taxation of a distribution from an IRA, including exclusion from current year gross income as an eligible rollover distribution under section 402(c). Thus, the decedent’s name must be shown on the beneficiary’s Form 5498 and annual statement. For example, you may enter “Brian Willow as beneficiary of Joan Maple” or something similar that signifies that the IRA was once owned by Joan Maple. You may abbreviate the word “beneficiary” as, for example, “bene.”
For a spouse beneficiary, unless the spouse makes the IRA his or her own, treat the spouse as a no spouse for reporting purposes.
An IRA set up to receive a direct rollover for a non-spouse designated beneficiary is treated as an inherited IRA.”
This guidance leads C/T/Is to make assumptions for the following reporting issues and provides background to current reporting inconsistencies:
- For the year a beneficiary dies, are multiple Forms 5498 for both successor beneficiary(ies) and the deceased beneficiary required? If assumed yes, for the naming convention purposes, is the requirement for the final Form 5498 for the deceased beneficiary met by issuing one in the beneficiary of the original decedent’s (IRA owner or plan participant) name? Or, if such deceased beneficiary was a successor beneficiary, is the previous beneficiary’s name/title used, or are all prior beneficiaries, including the original decedent, named? In addition, is the Form 5498 requirement for the successor beneficiary(ies) met by issuing one in the name of the successor beneficiary with the now deceased original/prior beneficiary, or with the original decedent’s name, or with all prior parties?
- Is the reporting requirement for a deceased beneficiary in question 1 not applicable and thus only applicable for the year of death reporting for the original IRA owner?
- For the years after a beneficiary’s death where assets remain in the IRA through the end of the year, is the Form 5498 reporting done in the name/title of the current successor beneficiary, preceding beneficiary(s), and original IRA owner/plan participant?
- For the years after a beneficiary’s death where assets remain in the IRA through end of year, is the Form 5498 reporting done in the name/title of the current successor beneficiary and the original IRA owner/plan participant?
- For the years after a beneficiary’s death where assets remain in the IRA through end of year, is the Form 5498 reporting done in the name/title of the current successor beneficiary, the original beneficiary of the deceased IRA owner/plan participant, and the original IRA owner/plan participant?
- For the years after a beneficiary’s death where assets remain in the IRA through end of year, is the Form 5498 reporting done in the name/title of the current beneficiary and the immediately preceding deceased beneficiary?
These inconsistencies with respect to current reporting and naming conventions for successor beneficiaries are presented in the following example:
Brian Willow as original beneficiary and Joan Maple as original IRA owner:
Brian Willow, as Bene of Joan Maple IRA
Brian dies, having named his daughter Sandra as successor beneficiary:
Sandra Willow, as Bene of Joan Maple or
Sandra Willow, as Bene of Brian Willow, as Bene of Joan Maple or
Sandra Willow, as Bene of Brian Willow
Sandra dies, having named her husband George as successor beneficiary:
George Willow, as Bene of Joan Maple or
George Willow, as Bene of Brian Willow, as Bene of Joan Maple or
George Willow, as Bene of Sandra Willow, as Bene of Joan Maple or
George Willow, as Bene of Sandra Willow, as Bene of Brian Willow, as Bene of Joan Maple or
George Willow, as Bene of Sandra Willow
Consideration was also given to the following factors in support of our recommendation:
- A successor beneficiary of the beneficiary of the original IRA owner/plan participant will usually be taking required minimum distributions (RMDs) based on the single life expectancy of the original beneficiary and the original beneficiary’s age in the year following the death of the original owner. Thus, IRPAC considered the possibility of adding the original beneficiary to the Participant’s name field. The advantage from the IRS’s perspective is the record for audit purposes and the potential limitation of a successor beneficiary from using his/her own life expectancy factor for calculating and taking required minimum distributions, thus resulting in the distribution of less than the required amount and also stretching the tax deferral period. Since traditional (including Simplified Employee Pension Plans) and Savings Incentive Match Plan for Employees (SIMPLE) IRA assets are generally pre-tax, an incorrect determination of life expectancy by using a longer life expectancy (based on a younger successor beneficiary age) will delay the inclusion of IRA distributions in income and increase pretax earnings – also delaying taxation. Since Roth IRA assets are generally post-tax and qualified distributions are tax free (after a 5 year holding period), an incorrect determination of life expectancy by using a longer life expectancy (based on a younger successor beneficiary age) will increase tax free earnings and delay their receipt. However, factors working against and limiting the value of requiring the original beneficiary to the name field:
- The five year payout rule was elected,
- Spouse was original IRA beneficiary and the spouse died before life expectancy payments were required to begin,
- Payments to non-spouse beneficiary were set based on plan requirements more restrictive than allowed,
- For a traditional/SIMPLE IRA with death after the required beginning date, the life expectancy payments may be based on the longer life expectancy of the decedent, rather than an older beneficiary (followed by a much younger successor beneficiary being named).
- The successor beneficiary IRAs already outstanding may have been transferred from the C/T/I of the original beneficiary IRA, thus information collected by current C/T/I may be insufficient for future Form 5498 reporting based on solution.
- The cost of gathering additional beneficiary information and recording the information will be significant.
A significant issue for electronic reporting on Filing Information Returns Electronically (FIRE) is the 80-character limitation in the name/title field. This may cause difficulty if the C/T/I is required to list all previously deceased beneficiaries and original owners.
IRPAC understands the IRS is not ready to provide such guidance/instructions; however, the IRS has informed IRPAC that it will study the recommendation and background from this year’s discussions and will add this issue to its current priority guidance list. IRPAC would appreciate the opportunity to provide further input prior to guidance/instructions being issued.
IRPAC recommends follow-up for the results of two studies:
- For the abatements granted to barter exchanges for non-matching Taxpayer Identification Numbers (TIN) civil penalties, and
- For instances where non-matching TIN penalties have been assessed without appropriate notice being sent.
IRPAC recommends continued openness to accept “as needed” revisions to Barter Topic 420 and IRS.gov website sections relating to barter exchange. IRPAC also recommends the IRS continue to encourage the modern trade and barter industry to place the IRS.gov barter exchange link and other pertinent IRS information on their individual websites via assistance from the International Reciprocal Trade Association.
Barter Exchanges are defined as third-party record keepers under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) and as such are subject to Form 1099-B reporting and subsequent “B” Notice solicitations for non-matching TINS. The “B” Notice, which states the payer will back-up withhold, makes an assertion that is impossible for barter exchanges to comply with since they do not control any cash accounts for their client members. In its 2007 Public Report IRPAC made three recommendations regarding this issue:
- That the IRS educate the barter industry through outreach programs to effectively reduce 972CG penalties.
- The “B” Notice be amended to provide language more pertinent to the barter industry’s inability to comply with back-up withholding.
- Exempt barter exchanges from back-up withholding requirements.
In 2008, the IRS concluded that recommendations #2 and #3 above would require legislative changes, which are outside the scope of the operating division’s authority. As a result, the Ad Hoc Subgroup of IRPAC worked in conjunction with the SB/SE E-Business and Emerging Issues group on the following creative new approaches to addressing the barter back-up withholding issue:
- A study to determine the percentage of abatements granted to barter exchanges for proposed 972CG non-matching TIN civil penalties.
- A study examining reported instances of where non-matching TIN penalties have been assessed without 972CG Notices of Proposed Civil Penalty letters being sent.
- Revision of the Topic 420 – Bartering Income and Bartering Tax Center IRS.gov sections to make them more pertinent:
- Request the modern trade and barter industry post important IRS.gov barter exchange links to their individual websites to provide better education and increased compliance.
- Place a link on IRS.gov directing users to the March 2009 CNN news report on the modern trade and barter industry.
Ron Whitney, Ad Hoc member and Executive Director of the International Reciprocal Trade Association, submitted revisions to the barter sections of the IRS.gov website in 2009 that were approved and implemented by the Service. Further, Mr. Whitney sent a mass email in the Spring of 2009 to all known barter exchange companies advising them to post the newly revised IRS.gov barter section links on their individual websites to improve education and compliance. Similar email communications will take place in the future as additional website revisions are completed. Lastly, the CNN news segment link on the IRS.gov website is expected to be operational by October 2009.
IRPAC recommends that the IRS publish more written guidance on valuations and other federally declared disaster casualty loss issues. This could be accomplished by increasing the frequently asked questions (FAQs) on IRS.gov, writing more IRS notices, and providing examples shown in the forms, instructions, and publications. Assistance for real world examples could be solicited from the various practitioner groups around the country, as they have experience with the various issues that disasters bring. IRPAC also suggests that other examples could be drawn from IRS Revenue Agents when they audit the tax returns. IRPAC recommends utilization of Revenue Procedure 2006-32 (or something similar) for all federally declared disaster losses. This guidance would be fair to all victims of the various disasters the country has experienced recently. It would be less burdensome on the IRS, tax practitioners, and taxpayers that prepare their own returns as everyone would have other choices in arriving at fair market values.
Our country has always had various types of natural disasters. However, it appears that after the Gulf Coast area experienced Hurricane Katrina in 2005, these disasters have increased all over the country. Congress did a phenomenal job in quickly passing the Katrina Emergency Tax Relief Act of 2005. This legislation gave practitioners and taxpayers guidance on different ways to calculate valuations in order to prepare as accurate a return as possible under the circumstances. Since Hurricane Katrina, the Gulf Coast area has experienced other hurricanes and they have been almost as devastating. However, those affected areas did not receive the same relief and guidance Hurricane Katrina victims received. Since 2005, the country has also experienced floods and fires. In the past, Congress drafted legislation relating to the specific disaster. However, in 2008, Congress passed the National Disaster Relief Act of 2008 that provides tax relief for victims of federally declared disasters occurring after December 31, 2007 and before January 1, 2010. This legislation created uniformity in the rules and it is more efficient.
IRS has also been successful in posting timely information on IRS.gov regarding all of these new issues and disasters. Each casualty loss is unique and sometimes poses questions that are not addressed in the legislation. IRS.gov contains a section of FAQs that are helpful, but not always timely.
Q. Is there an audit technique guide to assist in the preparation of casualty losses?
A. No. However, Publication 584, Casualty, Disaster and Theft Loss Workbook, Internal Revenue Manual 18.104.22.168 and 22.214.171.124 are tools that provide guidance.
Q. The cost of making repairs to restore property to its original condition can be used as a measure of the decrease in the Fair Market Value (FMV) of the property (Reg. 1.165-7(a)(2)(ii). However, to use the cost of repairs method to substantiate the amount of the loss, the repair expenditures must be made. Hurricane Ike occurred on September 13, 2008, so when would be the final date those repairs would have to be made in order to use the cost of repairs method?
A. To be able to use the cost of repairs method, the repairs must have been made by the due date of the tax return. If they have not, then you must file the return without the casualty loss and then amend the return after the repairs are made.
Q. Instructions tell us to write “Hurricane….” and any Revenue Procedure used in red ink at the top of the Form 1040. For those that electronically file, we cannot put a statement in red ink at the top of the return. Our software allows us to put statements at the top, but only in black ink. Because Congress wants taxpayers to electronically file their returns, I suggest that the instructions reflect how it should be done for e-filing.
A. It is acceptable to put a statement in black ink at the top. However, the Federal Emergency Management Agency (FEMA) notifies the IRS on all affected counties in a federally declared disaster area. This information is entered into the IRS computer system therefore identifying the taxpayers located in those affected areas.
Q. During Hurricane Ike many taxpayers lost their food in refrigerators and freezers due to long periods with no electricity. Insurance companies were giving policyholders a flat amount for food loss without having to itemize or file a claim. Could they possibly have a gain if they received more than their original cost of the food?
A. No. IRC §1033(h)(1)(A)(i) states that no gain shall be recognized by reason of the receipt of any insurance proceeds for personal property which was part of such contents and which was not scheduled property for purposes of such insurance.
Q. In FS-2006-7, January 2006 Reconstructing Your Records, you state that you can use your current property tax statement for land vs. building ratios. What is the IRS position on using those property tax values as the FMV before the casualty?
A. The law allows either an appraisal from a competent appraiser [Reg. 1.165-7(a)(2)(i)] or the cost of repairs method [Reg. 1.165-7(a)(2)(ii)]. However, the IRS will review each return on a case-by-case basis based on all the facts and circumstances.
Q. A taxpayer had a beachfront rental property that was totally destroyed during Hurricane Ike in 2008. He has decided that he will not rebuild at all. The land value is only $100 now per the County Tax Assessor. He received insurance proceeds in 2009 and he does have a gain. He had been reporting the income and expenses on Schedule E and had suspended losses. Therefore, does the taxpayer report the gain in 2008 or 2009? Does he consider the property to be disposed of and take the suspended losses? If so, are these losses reported on the 2008 or 2009 return?
A. The gain on the casualty must be reported in the year the insurance proceeds are received, so the taxpayer would report the gain in 2009. Notice 90-21 both addresses this issue and has an example. Under IRC §469(g), losses are allowed without limitation if the taxpayer disposes of the entire interest in the activity to an unrelated person in a fully taxable transaction. In general, this rule does not apply unless all the assets used in the activity (including land) are disposed of. Because the taxpayer has not disposed of the land, he can only take passive activity losses up to passive income in 2008. The suspended losses unallowed would then carryover to 2009.
Since the IRS uses the facts and circumstances approach, using an FAQ approach may give the tax preparers greater assistance in preparation of the returns. IRS has indicated that they will consider updating the FAQs on the website.
IRPAC recommends that Form 1098-T would be most effectively and securely delivered electronically based on students’ negative consent. It has been demonstrated that electronic communication is the most effective means of communicating with college students, the recipients of Form 1098-T. For most students, the absence of affirmative consent to electronic delivery is not an indication that they prefer hard copy forms, but rather an indication that students are unaccustomed to the default to a hard copy environment and do not respond well to requests for affirmative consent. Absent a change in regulations to change the consent requirements, and as a positive first step, the Ad Hoc Subgroup will draft Q&A guidance for Chief Counsel review, covering alternative methods for obtaining affirmative consents from recipients for posting on IRS.gov.
Treasury Regulation 1.6050S-2 provides that a person required by IRC §6050S(d) to furnish a written Form 1098-T, Tuition Statement, (furnisher) to the individual to whom it is required to be furnished (recipient), may furnish the statement in an electronic format in lieu of a paper format. The recipient must have affirmatively consented to receive the statement in an electronic format.
Educational institutions conduct most, if not all, administrative functions and correspondence with students electronically. Application for admission, registration for classes, posting of grades, billing and payments, student refunds, transcript requests, financial aid applications and awards, student loan promissory notes, and entrance and exit loan counseling are all transacted electronically. Access to university systems providing these functions and services are commonly made available to students via institutional portals or websites.
Students are accustomed to and expect this electronic environment for delivery of services and business transactions. Other than for the receipt of tax forms, they have no need to provide updated physical mailing addresses to their educational institutions and students no longer consider it important to provide accurate or current postal addresses to universities. In addition, students tend to be transient with frequent address changes.
The regulations require institutions to provide hard copies of Forms 1098-T unless the students affirmatively consent to receive the information electronically. Educational institutions have found that most students do not respond to requests to furnish Form 1098-T electronically. Institutions are then forced to issue paper forms via the Postal Service. Problems with paper forms include the return of a significant number of forms as undeliverable because of incorrect addresses, the significant cost to print and mail the forms, and the inclusion of sensitive information such as student Social Security Numbers on the forms, which are often delivered to an address other than that of the intended recipient.
The regulations include broad consent language focusing on the goal of ensuring receipt of Form 1098-T, providing that the consent may be made electronically in any manner that reasonably demonstrates that the recipient can access the statement in the electronic format in which it will be furnished. Articulation of acceptable alternative methods for obtaining affirmative consent in FAQs will assist furnishers of the statement in establishing a reasonable basis for implementing processes to which students will be responsive. This would alleviate many of the problems involved with delivery of hard copies, result in more timely delivery, and in general better meet student expectations and needs.
IRS Office of Chief Counsel will review FAQs drafted by members of the IRPAC Ad Hoc Subgroup to provide guidance that will be available on IRS.gov. This guidance may give educational institutions a reasonable basis for collecting affirmative consent as part of other administrative functions (for example, when paying tuition or accessing grades). Again, this is a good first step, but more authoritative guidance would be helpful to address this situation.