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2014 IRPAC Public Report: Emerging Compliance Issues Subgroup

A. 1099-B Limitations of Boxes 1f and 1g

Recommendations

1. Provide separate boxes on Form1099-B, Proceeds Form Broker and Barter Exchange 
    Transactions, to report disallowed loss, market discount, and an indicator to report the sale of 
    collectibles.
        • Repurpose box 1f to report market discount.
        • Repurpose box 1g to report wash sale disallowed amount.
        • Add a new box containing a checkbox to indicate whether or not the gross proceeds are 
           from the sale of collectibles.

2. IRPAC understands that resource constraints may prevent the IRS from making the changes 
    required to provide meaningful market discount and wash sale disallowed loss amounts to 
    both the IRS and taxpayer for Tax Years 2014 and 2015. IRPAC therefore strongly 
    recommends that brokers should not be required to treat the transaction as covered. Brokers 
    should not report cost basis, market discount, or disallowed loss in circumstances where a 
    client sells a debt instrument acquired at a market discount in a wash sale transaction.

Discussion

Instructions for Form 1099-B require brokers to enter either market discount or wash sale disallowed loss in box 1g. They also require that brokers enter a corresponding code in box 1f indicating whether the amount in 1g was provided for wash sales (W), market discount (D), or if the proceeds were from the sale of collectibles (C). It doesn’t appear the IRS considered the possibility of a transaction having both market discount and disallowed loss amounts. While this type of transaction does not happen frequently, brokers require a mechanism to report both amounts.

Given the inability to report both numbers on the 1099-B brokers are left with the decision to report either the disallowed loss or market discount. If a taxpayer sees a disallowed loss on their 1099-B for a covered transaction, they may presume they had no market discount leading them to underreport their income with no means for the IRS to check the transaction. Alternatively, if brokers report market discount and not disallowed loss clients may unintentionally claim a loss they are not entitled to.

Over the past year IRPAC has met on several occasions with the IRS and it has indicated resource constraints prevent them from making the 1099-B box changes for Tax Year 2014 and likely Tax Year 2015. IRPAC recommends that in situations where taxpayers sell debt instruments acquired at a discount in a wash sale transaction that brokers be allowed to treat the position as non-covered until such time the IRS is able to implement the programming changes required for the additional boxes. This transition relief will prevent taxpayers from underreporting their income because they are relying on incomplete reporting on their Form 1099-B for covered transactions.

B. 1099-INT Limitation of Box 11 Bond Premium

Recommendation

1. Provide information that can be easily transferred to a taxpayer’s return and will result in the 
    correct payment of tax. Add four new bond premium boxes that correspond to the existing 
    interest income reporting boxes on Form 1099-INT, Interest Income:
        • Premiums on bonds that accrue taxable interest (non-government).
        • Premiums on bonds that pay non-taxable interest not subject to AMT.
        • Premiums on bonds that pay federally taxable interest (government instruments).
        • Premiums on private activity bonds with accrued premium subject to AMT.

Discussion

The instructions to box 11 for the Form 1099-INT require brokers to aggregate bond premium for all individual bonds into a single gross number in Box 11 regardless of whether the debt instrument is taxable or tax-exempt. This method does not provide a useful number for the taxpayer to report their income and may result in underreporting of income because they reduced their taxable interest by tax-exempt bond premium. In meetings with the IRS they reiterated their previous comments that form changes would be delayed until the 2016 Tax Year due to resource constraints.

C. 1099-B Aggregate Reporting of Sales

Recommendation

1. Allow for aggregate sales reporting for one trade order filled on the same day by multiple fills.

Discussion

The IRS instructions for Form 1099-B require brokers to report each transaction (other than regulated futures, foreign currency, or section 1256 option contracts) on a separate Form 1099-
B. Clients who place large orders to sell or sell securities that are thinly traded may have one trade order broken up into multiple transactions at different times and prices to fulfill their order. This usually happens on the same day but can take place on subsequent trading days. There are some clients who require hundreds to thousands of transactions to fulfill their order.

The instructions for Form 1099-B require brokers to issue multiple forms for a single sale order unless the “transactions are reported on a single confirmation that lists an aggregate price or an average price per share.” Despite this provision, brokers are still issuing multiple 1099-Bs for same day orders because their system does not provide for single confirmations for the same order with an aggregate or average price. This creates unnecessary records and leads to increased postage and print costs for broker dealers. IRPAC recommends the IRS permit brokers to aggregate sales for the same order that take place on the same trade date for the same CUSIP (Committee on Uniform Securities Identification) or security identifier. Allowing aggregation would materially reduce the number of Forms 1099-B issued to the taxpayer without changing income reported to the IRS.

D. Taxpayer Access to Information on Cost Basis Reporting for Debt Instruments

Recommendations

1. Add Frequently Asked Questions (FAQs) specific to reporting cost basis and bond premium 
    for debt instruments to IRS.gov.

            Cost Basis FAQ’s for Debt Instruments for consideration:

            What debt instruments are covered in 2014, 2015, 2016 and 2017?

            What debt instruments are not covered at all?

            What is market discount?

            What is acquisition premium?

            What is bond premium amortization and how do I adjust my cost basis for it?

            What does it mean to accrue market discount and how do I adjust my cost basis for it?

            What defaults are you requiring brokers to use when reporting premium and market 
            discount?
                • Brokers must assume clients have made IRC §171 election to amortize bond 
                   premium on taxable bonds
                • Brokers must report market discount at disposition
                • Brokers must accrue market discount using the straight-line method

            What is an IRC §171 election?

            Why are brokers required to assume clients have made an election under IRC §171 to 
            amortize bond premium?

            What if the broker reporting rules do not match my tax filing elections? Can I instruct 
            them to make changes to their reporting?

            If I give brokers written instructions to change my elections will they notify you so it will 
            also apply to my tax return? Does making an election with my broker mean that I have 
            made the election with the IRS?

            Why can't I elect with my broker to turn off amortization on my tax exempt bonds?

            How do I make an election with the IRS?

            Can I change my elections every year? Can I change my elections back to the defaults?

            What is the deadline for me to provide my broker with my debt instrument elections?

            If brokers are reporting my cost basis do I need to make additional adjustments to my 
            cost basis on my schedule D for my debt instruments?

2. Move the location of the Cost Basis Reporting FAQ page on IRS.gov to the Help and 
    Resource page for Individuals (Appendix A).

Discussion

The cost basis and bond premium reporting regulations represent a significant change for taxpayers and brokers. Much of the information for the reporting of cost basis and premium on debt instruments is located within the Internal Revenue Code and is not easily accessible by or understood by individual taxpayers. As discussed in the 2013 Public report, providing easily understood and accessible taxpayer resources is necessary. Developing plain language answers to the suggested FAQs would go a long way towards alleviating confusion over the new reporting rules.

A Cost Basis Reporting FAQ page exists on IRS.gov under the Small Business & Self Employed pages. Individual Taxpayers can only locate it through a key term search. We recommend moving it to the Help and Resources for Individuals page and adding the link to the list of frequently asked questions. This will enable taxpayers to locate it more easily.

E. Transfers of Section 1256 Options

Recommendations

1. Amend IRC §1.6045A–1(B)(vi) to remove transferors of § 1256 Option Contracts as being exempt from transfer statements.

2. Amend IRC 1§ 1.6045A–1 to include the following:
        • In addition to the information required in paragraph (b)(1) of this section, for a transfer of 
           a § 1256 option that is a covered security, the unrealized profit or (loss) at the end of the 
           prior tax year is required.

Discussion

The final cost basis regulations for Debt and Options specifically exempted transferors of § 1256 options from issuing a transfer statement. Holders of § 1256 option contracts have the ability to transfer them between firms. Brokers are required to treat § 1256 options as if they were regulated futures contracts and perform realized profit or (loss) calculations on closed contracts, unrealized profit or (loss) on open contracts, and aggregate profit or (loss). Brokers are unable to perform these calculations without knowing the cost basis and the prior year´s unrealized gain loss number at the transferring firm. If these numbers are not added to the transfer statement brokers will not be able to issue Form 1099-B reporting for any § 1256 option contracts that are transferred from another firm.

F. Coordination of Taxpayer Forms with Broker Forms

Recommendations

1. The IRS should coordinate revisions to individual taxpayer forms with the release of 1099 
    substitute statement requirements.

2. The IRS should share copies of draft forms with IRPAC for feedback.

Discussion

On January 14, 2014 the IRS released revised Form 8949, Sales and Other Dispositions of Capital Assets, for use in the 2013 filing season. This form revision was intended to help taxpayers report more accurately by providing new alpha check boxes for the reporting of assets with a long term holding period. Unfortunately, the IRS did not revise IRS Publication 1179, General Rules and Specifications for Substitute Forms 1096, 1098, 1099, 5498, and Certain Other Information Returns, which provides the rules for substitute forms. The instructions required brokers to reference these checkboxes on Composite Forms 1099-B. This mismatch between the broker reporting headings and the instructions on Form 8949 led to taxpayer confusion, eroded client confidence in the accuracy of their 1099 forms, and placed the burden and associated costs on firms to communicate with their clients on an emergency basis.

IRPAC advises the IRS to consider all potential forms impacted by revising the instructions of a single taxpayer form. In addition IRPAC recommends that the IRS share copies of draft forms with IRPAC so that members may provide necessary and meaningful feedback on the potential impacts to the information reporting community and taxpayers.

G. IRC §6050W and Form 1099-K Reporting

Recommendations

IRPAC continues to recommend this year that more guidance is needed related to IRC § 6050W "Returns Relating to Payments Made in Settlement of Payment Card and Third Party Network Transactions." These recommendations are set forth below as numbered items.

        1. IRPAC recommends that the IRS provide additional official guidance (e.g.revenue 
            rulings, notices, proposed regulations) to further address open questions regarding 
            IRC § 6050W. Official guidance is necessary to address open questions regarding the 
            meaning and scope of the terms in the statute and Treasury Regulations.

        2. Key terms integral to the meaning of “third party payment network” have still not been 
            defined in official guidance in order for reporting organizations to reasonably apply the 
            rules. These terms include “central organization,” “guarantee,” and “substantial number of 
            providers of goods or services.” IRPAC's detailed recommendations related to the 
            definition of these terms can be found in its March 28, 2011 comment letter in Appendix 
            D to the 2011 Report.

        3. During meetings with the IRS in 2014, IRPAC recommended that the IRS issue 
            guidance to clarify that an aggregated payee (i.e., an intermediary who receives 
            payments from a payment settlement entity (PSE) on behalf of one or more participating 
            payees and distributes such payments to the participating payees) must either be: (i) in 
            the case of a payment card transaction, a merchant acquiring entity (MAE); or (ii) in the 
            case of a third party network transaction, a third party settlement organization (TPSO). 
            IRC § 6050W(b)(1). IRPAC suggested that the IRS include in guidance two examples 
            that make it clear that the de minimis rules applicable to TPSOs would apply to an 
            aggregated payee that also met the definition of a TPSO.

        4. It continues to be true that the definition of “third party payment network” can be 
            interpreted broadly to include transactions not apparently considered by Congress when 
            it drafted the statute. IRPAC continues to recommend that official guidance be issued to 
            clearly set forth the IRS's understanding of the scope of the statutory and regulatory 
            language to various arrangements that involve three parties but may not constitute a 
            “third party payment network.” This has resulted in significant confusion among parties 
            participating in three-party arrangements (e.g. parties participating in accounts receivable 
            factoring transactions). Thus, guidance should be issued that allows a reasonably 
            informed reader to understand when IRC § 6050W reporting is required and delineate 
            between three-party arrangements that are subject to reporting under IRC § 6050W     
            and ones that are not subject to reporting under IRC §6050W. IRPAC continues to 
            urge the IRS to provide guidance to distinguish when specific arrangements currently 
            used in the marketplace must be reported under IRC §6050W.

        5. The documentation requirements for U.S. payers to foreign merchants should be relaxed 
            to conform to the current requirements for non-U.S. payers making payments under IRS 
            § 6041.

        6. Guidance is needed to identify the entity deemed to be the payment settlement entity 
            when there are multiple payment settlement entities. There is tension between the 
            language of the preamble under “payment settlement entity” and the language in Treas. 
            Reg. § 1.6050W-1(a)(4)(ii). In particular, the last sentence of the second paragraph of 
            the preamble provides, “[t]he final regulations clarify that the entity that makes a payment 
            in settlement of a reportable payment transaction is the entity that actually submits the 
            instruction to transfer funds to the account of the participating payee to settle the 
            reportable payment transaction” whereas Treas. Reg. §1.6050W-1(a)(4)(ii) provides 
            “[i]f two or more persons qualify as payment settlement entities … with respect to a 
            reportable payment transaction, then only the payment settlement entity that in fact 
            makes payment in settlement of the reportable payment transaction must file the 
            information return required by paragraph (a)(1) of this section.” Stated differently, the 
            preamble emphasizes “submitting the instruction to transfer funds” while the actual 
            regulation emphasizes “in fact makes payment.” This has caused confusion in certain 
            arrangements in which the instruction to transfer funds and the actual transfer of the funds 
            are performed by separate entities.

        7. To minimize burdens and report insignificant amounts, IRPAC recommends 
            implementing a minimum threshold below which reporting under section 6050W would 
            not need to be performed. We believe this threshold should be at least as high as the 
            combined cost to the payer to print and mail the IRS Forms 1099-K, Payment Card     
            and Third Party Network Transactions, to the merchant. However, if the IRS does not 
            believe it has the authority to implement a minimum threshold at this time, IRPAC 
            alternatively recommends that the IRS issue guidance to exclude from the definition of a 
            "reportable payment transaction" wire transfers of funds that are equal to $.01 and that 
            are made by the PSE solely to check that it has the correct banking information for the 
            merchant at the time the relationship is established ("Wire-Check Payments").         
            Thousands of Form 1099-Ks are sent out each year with no more than $.01 reported 
            because the account activity for the year only involved setting up the account. Defining 
            reportable payment transactions to exclude these Wire-Check Payments would save 
            both the IRS and the private sector significant resources. IRPAC believes the IRS has 
            the authority to make this change since it relates to the definition of what is or is not a 
            payment transaction.

Discussion

Over the past year, IRPAC met on a number of occasions with IRS personnel regarding the law under IRC § 6050W and practical reporting issues for the Form 1099-K. These discussions were substantive and productive, and IRPAC recognizes the thoughtfulness and seriousness with which the IRS approached these discussions. IRPAC also recognizes that reporting under IRC § 6050W is inherently challenging, and that the marketplace is constantly evolving. All of this makes the process of developing rules under IRC § 6050W challenging. Based upon the substance of the discussions, however, IRPAC believes that the IRS is moving in the right direction.

IRC § 6050W and the related Treasury Regulations require the reporting of payment card transactions and third party network transactions, on the Form 1099-K. Payment card transactions are any transactions in which a payment card (or any account number or other indicia associated with a payment card) is accepted as payment. Third party network transactions are any transactions settled through a third party payment network.

The transition to reporting rules under IRC § 6050W has been challenging for both the IRS and reporting organizations. The drafters of the Treasury Regulations had to address a significant number of challenging implementation issues, including very broad statutory language regarding third party networks. The IRS continues to grapple with these issues, and IRPAC once again urges the IRS to issue guidance to address these issues as expeditiously as possible.

Guidance is needed to clarify that aggregated payees can retain their TPSO status upon distributing payment (as a PSE) to one or more participating payees. An aggregated payee's retention of TPSO status should not vary based on the type of arrangement (i.e. payment card, debit card or bank account) or the source of the funds from which it receives payment. This is especially appropriate, for example, where the contractual terms between the intermediary and the credit card processing entity from which the intermediary receives payments are not identical to those between the intermediary and the merchant. (e.g., the credit card processing entity might not provide any fraud guarantees for transactions, but the intermediary might offer that service to its merchant customers.) Where the contractual terms differ and may give rise to different obligations for the intermediary, the classification of the arrangement between the intermediary and the merchant cannot be derived from the character of the arrangement between the intermediary and the credit card processing entity. Instead, given the potential for different obligations under the two arrangements, each arrangement should be evaluated independently. Accordingly, IRPAC recommends that the IRS issue guidance to clarify that an intermediary serving as an aggregated payee when it receives payment may be treated as a TPSO with respect to its payment of those funds to the merchant.

Guidance is also needed either to implement a minimum threshold below which reporting under § 6050W would not need to be performed or – if the IRS does not believe it has the authority to implement a minimum threshold at this time – to exclude from the definition of reportable payment transactions Wire-Check Payments. In addition, guidance is needed to make clear under certain arrangements whether or not IRC § 6050W applies. Accordingly, IRPAC recommends that the IRS issue guidance to provide much needed clarity to reporting organizations as they attempt to navigate this complex area of the law.

H. Form 1098-T

Recommendations

1. IRPAC recommends that the IRS clarify terms in IRC § 6050S(b)(2)(B)(ii) that are used by colleges and universities to determine whether or not to report certain amounts in box 5 of Form 1098-T, Tuition Statement. Specifically, colleges and universities need clarification regarding the meaning of "costs of attendance" and "administered and processed." Guidance is also needed regarding the proper reporting of payments in box 5 when those same payments must also be reported as income on other forms such as Form 1099-MISC, Miscellaneous Income, and Form W-2, Wage and Tax Statement.

2. IRPAC encourages the IRS to update current notices and to closely monitor future notices sent to taxpayers in relation to the Form 1098-T. Previous forms have contained confusing language indicating that colleges and universities are completing the forms erroneously or that could be misinterpreted to indicate that colleges and universities should furnish additional information to help the taxpayer claim education credits.

3. IRPAC recommends that the IRS update the example in the Appendix of Publication 970, Tax Benefits for Education, to include treatment of qualified expenses that are not reported on Form 1098-T and treatment of a scholarship that is used for qualifying expenses but that cannot be claimed as paid by the taxpayer.

Discussion

IRC § 6050S(b)(2)(B)(ii) requires colleges and universities to report the aggregate amount of grants received by their individual students for payment of costs of attendance that are administered and processed by the institution during each calendar year. IRS Notice 2006-72, Q&A number 8, provides some very limited guidance stating that a student's cost of attendance may include both qualified fees (such as tuition and required fees) and non-qualified expenses (such as room and board), and that the institution should report these amounts in box 5.

The term "administered and processed" is not defined in the Internal Revenue Code. The term "cost of attendance" is not defined in the Internal Revenue Code but is defined in § 472 of Title IV of the Higher Education Act of 1965 (20 USC 1087II) part of which provides, as follows:

        § 1087ll. Cost of attendance

        For the purpose of this subchapter and part C of subchapter I of chapter 34 of title 42, the 
        term “cost of attendance” means—

                (1) tuition and fees normally assessed a student carrying the same academic workload 
                as determined by the institution, and including costs for rental or purchase of any 
                equipment, materials, or supplies required of all students in the same course of study;

                (2) an allowance for books, supplies, transportation, and miscellaneous personal 
                expenses, including a reasonable allowance for the documented rental or purchase of 
                a personal computer, for a student attending the institution on at least a half-time basis, 
                as determined by the institution;

                (3) an allowance (as determined by the institution) for room and board costs incurred 
                by the student which—

                        (A) shall be an allowance determined by the institution for a student without 
                        dependents residing at home with parents;

                        (B) for students without dependents residing in institutionally owned or operated 
                        housing, shall be a standard allowance determined by the institution based on the 
                        amount normally assessed most of its residents for room and board;

                        (C) for students who live in housing located on a military base or for which a 
                        basic allowance is provided under § 403(b) of title 37, shall be an allowance 
                        based on the expenses reasonably incurred by such students for board but not 
                        for room; and

                        (D) for all other students shall be an allowance based on the expenses 
                        reasonably incurred by such students for room and board;

IRPAC recommends that the IRS adopt or reference the definition of “cost of attendance” in § 472 of Title IV of the Higher Education Act of 1965 since this is a workable definition already familiar to colleges and universities. IRPAC also recommends that the IRS define the term “administered and processed,” as it is used in IRC § 6050S(b)(2)(B)(ii) and IRS Notice 2006-72.

In recent years taxpayers have received IRS notices, regarding education credits, that have resulted in significant taxpayer confusion. Form 886-A, Explanation of Items, indicated that the taxpayer needed to obtain a Form 1098-T with box 1, payments received for qualified tuition and related expenses, completed even though the college or university accurately reported amounts billed for qualified tuition and related expenses, in box 2 as allowed by law. Since colleges and universities may report in either box 1 or box 2, this language should be amended to reflect that a correction of the form is not required. In other instances, taxpayers received a CP2000 notice with unclear language that was interpreted by taxpayers to mean that they needed a letter signed by the student’s institution explaining the amounts claimed on the taxpayer’s tax return. The IRS has been receptive to updating the wording in these notices so IRPAC will continue to work with the IRS to develop clear language that reflects the IRS’ need for additional information from the taxpayer while observing that colleges and universities may, by law, report in either box 1 or box 2 of the Form 1098-T. Additionally, IRPAC recommends that the IRS continue to monitor future notices to ensure that confusing language is not used.

Finally, in Publication 970, Tax Benefits for Education, the IRS provided an Illustrated Example of Education Credits. IRPAC recommends that the IRS add language that addresses how a taxpayer may utilize qualifying payments not reported on a Form 1098-T, such as books not purchased through the school, and also how a taxpayer should deal with a scholarship that is used to pay for qualifying expenses.

In sum, there are thousands of colleges and universities in the U.S. that struggle with tax information reporting issues involving Form 1098-T. Further, taxpayers continue to struggle with the complexities of claiming education credits. IRPAC has attempted to address some of the challenges in its recommendations over the past few years and makes the recommendations contained herein in order to improve tax information reporting by these thousands of colleges and universities to millions of students, and also to improve taxpayers’ experience in claiming valuable education credits.

I. Form 8300

Recommendation

1. IRPAC again recommends that the IRS clarify whether public universities that do not have “dual status” exemptions (recognized as both charitable organizations under IRC § 501(c)(3) as well as a college or university that is an agency of, an instrumentality of, owned by or operated by a governmental entity) must file Form 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business. Clarification should include clear guidance concerning filing differences among public, private and “dual status” colleges and universities.

Discussion 

IRC § 6050I and 31 USC 5331 require that certain information be reported to the IRS and the Financial Crimes Enforcement Network (FinCEN). This information must be reported on IRS/FinCEN Form 8300.

IRC § 6050I(a) provides that “Any person - (1) who is engaged in a trade or business, and (2) who, in the course of such trade or business, receives more than $10,000 in cash in one transaction (or two or more related transactions), shall make the return described in subsection (b) with respect to such transaction (or related transactions) at such time as the Secretary may by regulations prescribe.” The Bank Secrecy Act (BSA) also requires reporting by any person, who in the course of a nonfinancial trade or business in which that person is engaged, receives currency in excess of $10,000 in one transaction (or two or more related transactions). Nearly the entire language of IRC § 6050I was enacted in the BSA as 31 USC 5331. A single IRS Form 8300 satisfies both the IRS and BSA filing requirements.

FAQs #2 and 10 in the section entitled “Reportable Transactions” of “FAQs Regarding Reporting Cash Payments of Over $10,000 (Form 8300)” on IRS.gov indicate that state-supported colleges and universities must file Form 8300 for the receipt of cash payments of tuition, while private colleges and universities (those recognized as exempt under IRC § 501(c)(3)) are excluded from filing Form 8300 when carrying on or furthering their charitable missions, which would include collection of tuition. The IRS FAQs read as follows:

        2. Are state-supported colleges and universities exempt from filing Form 8300?

            No, colleges and universities are required to file Form 8300 upon receiving, for one 
            transaction or two or more related transactions, more than $10,000 in cash (for 
            example, a tuition payment) in the course of their trade or business of providing 
            educational products and services, regardless of the fact that the money may be 
            excludable from gross income under § 115 of the Internal Revenue Code. The section 
            115 income exception is distinct from, and does not relieve an educational institution of, 
            the requirement under § 6050I to file a Form 8300 information report.

       10. If a nonprofit organization is selling a tangible asset like furniture or vehicles and 
             receives cash for it that exceeds $10,000, is there a Form 8300 filing requirement?

            Exempt organizations do not need to report the receipt of cash donations over $10,000 
            because an exempt organization is not, in carrying out its exempt function, considered in 
            the definition of a trade or business under IRC § 162. To fall under this category, an 
            organization must have obtained § 501(c)(3) or other tax-exempt status under the 
            Internal Revenue Code; having in its possession a determination letter or an approved 
            application for tax-exempt status from the Internal Revenue Service. The proceeds of a 
            sale must be exempt from tax as part of the carrying on of the exempt organization's 
            tax-exempt activities; in which case, Form 8300 reporting is inapplicable. Form 8300 is 
            required for cash received in the conduct of unrelated trade or business activity of the 
            organization.

Standing alone, these FAQs would seem to make it clear that public educational institutions are required to file Form 8300 while private institutions are not. However, a provision in the Internal Revenue Manual has caused confusion. Specifically, § 4.26.10.6 (07-13-2012) of the IRS Internal Revenue Manual (IRM) provides that "[t]he language of IRC § 6050I does not require governmental units to file Form 8300, except for the specific requirement for criminal court clerks." At least one IRS agent has provided advice to a public university (which has been shared in the higher education community) that the exclusion from filing Form 8300 for governmental units in this section of the IRM applies and thus excludes a public university from the Form 8300 filing requirement.

The statement in the IRM is consistent with the plain language of IRC § 6050I(a) because IRC § 6050I only applies to a “person.” IRC § 7701(a)(1) defines a “person” as meaning and including “an individual, a trust, estate, partnership, association, company or corporation.” This definition does not include a public college or university, whether or not it also has tax exempt status under IRC § 501(c)(3).

The term "person" is not defined the same way, however, in the BSA, but the applicable regulations explicitly bring the two definitions into conformity using the definition of person at IRC § 7701(a)(1). See 26 CFR 1.6050I-1(a)(1)(i) and 31 CFR 1010.330(a)(1)(i) (formerly 103.30(a)(1)). "Person," as defined in the BSA, includes an individual, corporation, company, association, firm, partnership, society, joint stock company, trustee, a representative of an estate, and, when the Secretary prescribes, a governmental entity. The applicable regulations specifically provide that "solely for purposes of section 5331 of title 31, United States Code and this section, ‘person’ shall have the same meaning as under 26 USC 7701(a)(1)." 31 CFR 1010.330(a)(1) (formerly 103.30(a)(1)). The end result is that "person" is defined exactly the same way under the BSA and in the Internal Revenue Code for purposes of Form 8300.

Although is it clear that the definition of who must file Form 8300 is identical for both purposes of the filing, the IRS has not explained how a public university meets this definition. Since the IRS definition is used for both BSA and IRS purposes, it would be within the purview of the IRS to provide guidance on this matter. Unless the IRS provides clear guidance that a public university cannot meet this definition, then IRPAC requests that the IRS resolve the long-standing confusion among colleges and universities and its own agents concerning the application of the filing requirements to private, public and “dual status” colleges and universities. The IRS has indicated to IRPAC that there are plans to issue guidance to clarify Form 8300 reporting requirements for colleges and universities. IRPAC eagerly awaits this guidance.

J. Revenue Procedure 95-48

Recommendation

1. IRPAC recommends the IRS add Revenue Procedure 95-48 to the list of documents modified by Revenue Procedure 2011-15. IRPAC believes it is misleading to leave Revenue Procedure 95-48 and Revenue Procedure 2011-15 published with no information linking the two. The IRS has indicated that it agrees with IRPAC; however, no action has been taken to date.

Discussion

The Pension Protection Act (PPA) of 2006 (Pub. L. 109–280), 120 Stat. 780, amended IRC § 6033(a)(3)(B) to remove IRS authority to relieve organizations described in IRC § 509(a)(3) (i.e., supporting organizations) from filing Form 990, Return of Organization Exempt from Income Tax. Thus, supporting organizations were required to file Form 990 as of the effective date of the PPA. Prior to this legislative change, the IRS issued Revenue Procedure 95-48, which provided governmental units and affiliates of governmental units, some of which are § 509(a)(3) supporting organizations, that are exempt from federal income tax under IRC § 501(a) were not required to file annual information returns on Form 990. After this legislative change, the IRS issued Revenue Procedure 2011-15, which mentions the PPA removed the Secretary’s authority to relieve organizations described in § 509(a)(3) from filing an information return as was done in Revenue Procedure 95-48. Revenue Procedure 2011-15 did not include Revenue Procedure 95-48 in the list of rulings it modified and superseded. Consequently, organizations described in IRC § 509(a)(3) that are relying on guidance provided in Revenue Procedure 95-48 may not be aware of the need to file Form 990 after the PPA. In addition to clarifying that such filing is required by explicitly including Revenue Procedures 95-48 in the list of rulings modified by Revenue Procedure 2011-15, IRPAC agrees with the IRS plan to consolidate all non-regulatory exceptions from filing in one Revenue Procedure. IRPAC also recommends that the IRS consider highlighting, for the benefit of these filers, that this type of organization can change its public charity classification to something other than an organization described in IRC § 509(a)(3) (if it is eligible) and still qualify for the filing exception contained in Revenue Procedure 95-48.

Page Last Reviewed or Updated: 02-Aug-2016