The Court of Appeals for the First Circuit has upheld a district court’s determination that two officers of a corporation were liable for the Code Sec. 6672 penalty..!!

First Circuit upholds corporate officers’ responsible person status

Schiffmann v. U.S., (CA 1 1/29/2016) 117 AFTR 2d ¶2016-386

The Court of Appeals for the First Circuit has upheld a district court’s determination that two officers of a corporation, that was years behind on its income and payroll taxes, were liable for the Code Sec. 6672 penalty. The Court found that both individuals, within certain time periods, had sufficient authority within the company to be considered a responsible person, and that each individual had acted willfully where he could have directed that unencumbered funds be used to pay off the company’s tax debts.

Background. Code Sec. 6672 imposes the trust fund recovery penalty on any person who: (1) is responsible for collecting, accounting for, and paying over payroll taxes; and (2) willfully fails to perform this responsibility. The amount of the penalty is equal to the amount of the tax that was not collected and paid.

In determining whether an individual is a responsible person, courts consider factors including whether the individual: (1) is an officer or member of the board of directors, (2) owns shares or possesses an entrepreneurial stake in the company, (3) is active in the management of day-to-day affairs of the company, (4) has the ability to hire and fire employees, (5) makes decisions regarding which, when and in what order outstanding debts or taxes will be paid, (6) exercises control over daily bank accounts and disbursement records, and (7) has check-signing authority. (Vinick v. Comm., (CA 1 1997) 79 AFTR 2d 97-190579 AFTR 2d 97-1905) Responsibility is generally a matter of status and authority, and it is determined on a quarter-to-quarter basis. In determining whether there is willfulness, the courts have focused on whether a taxpayer had knowledge about the nonpayment of the payroll taxes, or showed reckless disregard with respect to whether the payments were being made.

Facts. Richard Schiffmann began working for ICOA and became its president in October 2004. On Apr. 1, 2005, Schiffmann became CEO and, at or about the same time, also became a member of ICOA’s board of directors.

As CEO, Schiffmann supervised employees, had the authority to fire employees, and was involved in the acquisition of numerous subsidiaries. He also authorized payments to creditors, including payroll, was a signatory on ICOA’s bank account and exercised check signing authority when the officer who normally did so was unavailable. He was aware that ICOA experienced cash flow problems and had trouble paying creditors and, in August 2005, hired Stephen Cummings as a financial consultant. Cummings became the CFO on Oct. 25, 2005, and as such had check signing authority and was generally responsible for the company’s financial well-being.

Cummings learned shortly after becoming CFO that ICOA hadn’t paid its payroll taxes for several years and then made Schiffmann aware of this liability. In November, they informed the board of directors that ICOA was approximately four years behind on its payroll and income taxes. They had discussions on ways to raise funds to pay the tax liabilities and spoke to an attorney, but didn’t actually make any payments. ICOA’s board of directors fired Schiffmann and Cummings effective June 23, 2006.

After notice and demand on ICOA’s payroll processor, IRS made tax assessments under Code Sec. 6672 against Schiffmann for the second quarter of 2005 through the second quarter of 2006, and Cummings for the fourth quarter of 2005 through the second quarter of 2006.

Schiffmann filed a complaint to recover payroll taxes assessed and collected and to nullify the assessments against him. IRS counterclaimed to collect outstanding taxes against him and Cummings and moved for summary judgment. IRS also filed a statement of facts with its motion which Schiffman and Cummings didn’t dispute and was thus deemed admitted.

District court decision. The court determined that both Schiffmann and Cummings were responsible persons during the quarters for which the Code Sec. 6672 tax was assessed against them. Of the seven Vinick factors noted above, at least five were present for Schiffmann and at least four were present for Cummings.

On the issue of Schiffmann’s willfulness, the court noted that it “is settled law that a responsible person who becomes aware that taxes have gone unpaid in past quarters in which he was also a responsible person is under a duty to use all “unencumbered funds” available to the corporation to pay those back taxes.” (U.S. v. Kim, (CA 7 1997) 79 AFTR 2d 97-223879 AFTR 2d 97-2238) In this case, although Schiffmann didn’t learn of the tax delinquency until early November of 2005, the record showed that ICOA had sufficient unencumbered funds available to pay the taxes assessed for the period from the second quarter of 2005 through early November 2005. Because he failed to do so, he was considered to have acted willfully for that period. For the period after he learned of the delinquency, the court found that, by continuing to pay ICOA employees, he willfully preferred other creditors in lieu of paying taxes.

With respect to Cummings, the court noted that he became CFO in late October 2005 and learned of the unpaid taxes in early November 2005. As CFO, he chose what bills to pay in order to keep ICOA operating, authorizing payments to creditors other than the U.S., and was thus considered to have acted willfully for Code Sec. 6672 purposes. (Schiffman v. U.S., (DC RI 2014) 113 AFTR 2d 2014-1732113 AFTR 2d 2014-1732; see Weekly Alert ¶ 6 04/24/2014 for more details)

IRS then moved for summary judgment on the claims asserted by Schiffman and Cummings, respectively, which the court granted in an unpublished order, then entered final judgment to include sums certain ($394,334 plus interest against Schiffman, and $254,281 plus interest against Cummings).

First Circuit affirms. The First Circuit first considered the district court’s summary judgment determination that Schiffman and Cummings were responsible persons and found no error in its conclusion. Schiffman’s CEO status gave him effective power to pay the taxes, and he acted willfully in allowing the company to use unencumbered funds to pay other creditors. Similarly, Cummings was a CFO with check-signing authority who also authorized the use of company money to pay rent and operational expenses instead of taxes.

With regard to the second grant of summary judgment, the First Circuit similarly found no error in the district court’s conclusion. Here, although Schiffman and Cummings did submit a counterstatement of disputed material facts, those facts didn’t undermine the overall conclusion that they were responsible persons who acted willfully.

Specifically, they claimed that ICOA’s funds were actually largely encumbered and not available for tax payments, but failed to show the existence of any such legal obligation; they unsuccessfully attempted to draw a distinction between their technical power to avoid a default and the power they actually had, which the Court rejected as a “false dichotomy” that ignored the fact that each had the responsibility and authority to address the situation; their claim that the board of directors limited their check-signing authority by directing it not be used to pay taxes was belied by the record, which contained no such limitation; and their argument that they were subordinate to the board’s wishes, if true, wouldn’t shield them from liability because Code Sec. 6672 liability requires significant, but not exclusive, control over the disbursement of funds.

Recommendation. If your client is receiving IRS notices regarding payroll tax issues …PLEASE have a confidential conversation with them and their corporate attorney to determine  whether they may have  personal exposure to liability under Code Section 6672.

Recent legislative tax changes will help your business clients for 2016 !!

 Business Tax  Changes should be on your radar screen to discuss with your key clients this spring…

A large number of important tax changes go into effect this year. Many were ushered in by the Protecting Americans from Tax Hikes (PATH) Act of 2015, although legislation enacted earlier in 2015 and in 2014 also contributed a fair share. Still other changes are the result of various administrative pronouncements by IRS.

The recent legislation responsible for the lion’s share of the changed rules for 2016 consists of:

  • The Protecting Americans from Tax Hikes (PATH) Act of 2015 (P.L. 114-113, 12/18/2015);
  • The Fixing America’s Surface Transportation (FAST) Act (P.L. 114-94, 12/4/2015);
  • The Bipartisan Budget Act of 2015 (P.L. 114-74, 11/2/2015);
  • The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (P.L. 114-41, 7/31/2015);
  • The Trade Preference Extension Act of 2015 (P.L. 114-27, 6/29/2015); and
  • The Achieving a Better Life Experience Act of 2014 (ABLE Act), part of the Tax Increase Prevention Act of 2014 (P.L. 113-295, 12/19/2014)

Business Changes

Enhancements for Sec. 179 expensing. For tax years beginning in 2014: (1) the dollar limitation on the expensing deduction under Code Sec. 179 was $500,000; and (2) the investment-based reduction in the dollar limitation began to take effect when property placed in service in the tax year exceeded $2 million (the investment ceiling). Under prior law, for tax years beginning after Dec. 31, 2014, the maximum expensing limit was to have dropped to $25,000, and the investment ceiling was to have dropped to $200,000. Up to $250,000 of qualified real property—qualified leasehold improvement property, qualified restaurant property, and qualified retail improvement property—was eligible for Code Sec. 179 expensing. Under a carryover limitation for qualifying real property, no portion of disallowed expensing because of the active business taxable income limit in Code Sec. 179(b)(3)(A), could be carried to a tax year beginning after 2014.

Under the PATH Act, the $500,000 expensing limitation and $2 million investment ceiling amount are retroactively extended and made permanent. (Code Sec. 179(b)) Additionally, the PATH Act makes other Code Sec. 179 changes, including the following enhancements that apply for tax years beginning after 2015:

  • Both the $500,000 expensing limit, and the $2 million investment ceiling amount are indexed for inflation. (Code Sec. 179(b)(6))
  • Expensing of qualified real property is made permanent without a carryover limitation (Code Sec. 179(f)(1) and Code Sec. 179(f)(4)) and the $250,000 expensing limitation that applied to qualifying real property under prior law is eliminated. (Code Sec. 179(f), as amended by Act Sec. 124(c))
  • Air conditioning and heating units are newly eligible for expensing. (Code Sec. 179(d)(1))

De minimis expensing safe harbor for taxpayers with no AFS raised to $2,500. Final tangible property regs permit businesses to elect to expense their outlays for “de minimis” business expenses. If the taxpayer is eligible for the de minimis safe harbor election, and chooses it, an amount paid to acquire or produce any eligible unit of property (or any eligible material or supply) is deducted under Code Sec. 162 in the year paid or incurred.

Under the regs, the de minimis safe harbor applies to an amount paid during the tax year to acquire or produce a unit of property (UOP), or acquire a material or supply, only if:

  1. The taxpayer has, at the beginning of the tax year, written accounting procedures treating as an expense for non-tax purposes amounts paid for property (1) costing less than a specified dollar amount; or (2) with an economic useful life of 12 months or less;
  2. The taxpayer treats the amount paid for the property as an expense on its applicable financial statement (AFS, such as a financial statement required to be filed with the Securities and Exchange Commission or a certified audited financial statement accompanied by an independent CPA’s report and used for credit or reporting purposes) if it has one – or on its books and records if it does not – in accordance with its accounting procedures; and
  3. If the taxpayer has an AFS, the amount paid for the property does not exceed $5,000 per invoice (or per item as substantiated by the invoice), or if the taxpayer does not have an AFS, does not exceed $500 per invoice (or per item as substantiated by the invoice), or other amount as identified in published IRS guidance. (Reg. § 1.263(a)-1(f)(1)(i), Reg. § 1.263(a)-1(f)(1)(ii))

Assets expensed under the de minimis safe harbor election may be deducted in the year of purchase, assuming that the costs that otherwise qualify as ordinary expenses, and assuming the costs don’t have to be capitalized under the UNICAP rules of Code Sec. 263A.

In Notice 2015-82, 2015-50 IRB, IRS increased the Reg. § 1.263(a)-1(f)(1)(ii)(D) de minimis safe harbor limitation for a taxpayer without an AFS from $500 to $2,500. (The limit for taxpayers with an AFS remains at $5,000.) This increase is effective for costs incurred during tax years beginning on or after Jan. 1, 2016, but use of the new threshold won’t be challenged in tax years prior to 2016.

More building improvements eligible for bonus depreciation. Under prior law, qualified leasehold improvement property qualified for bonus depreciation. Such property included any improvement to an interior portion of a building that was nonresidential real property, if (1) the improvement was made under or pursuant to a lease; (2) the interior building portion was to be occupied exclusively by the lessee or sublessee; (3) the improvement was placed in service more than 3 years after the date the building was first placed in service by any person (i.e., not necessarily the taxpayer) and (4) the improvement was a structural component of the building. However, qualified leasehold improvement property didn’t include any improvement for which the expense was attributable to (a) enlargement of the building, (b) any elevator or escalator, (c) any structural component benefiting a common area, or (d) the internal structural framework of the building.

Under the PATH Act, qualified leasehold improvement property is no longer eligible for bonus depreciation. Instead, for property placed in service after Dec. 31, 2015, “qualified improvement property” is eligible for bonus depreciation.

Qualified improvement property is any improvement to an interior portion of a building that is nonresidential real property if the improvement is placed in service after the date the building was first placed in service. (Code Sec. 168(k)(3)(A)) But qualified improvement property doesn’t include any improvement for which the expense is attributable to: the enlargement of the building; any elevator or escalator; or the internal structural framework of the building. (Code Sec. 168(k)(3)(B))

Thus, the PATH Act liberalizes the rules in three ways: (1) building improvements are eligible for bonus depreciation regardless of whether the improvements are property subject to a lease; (2) the improvement need not be placed in service more than three years after the date the building was first placed in service; and (3) structural components of a building that benefit a common area are no longer excluded from the definition of qualified improvements.

Relaxed placed in service rule for claiming bonus depreciation on certain plants. Under the PATH Act, for specified plants planted or grafted after Dec. 31, 2015, and before Jan. 1, 2020, bonus depreciation is allowed when the plant is planted or grafted, rather than when placed in service. (Code Sec. 168(k)(5)) A specified plant is one planted or grafted in the U.S., that is: any tree or vine that bears fruits or nuts; or any other plant that will have more than one yield of fruits or nuts and generally has a pre-productive period of more than two years from the time of planting or grafting to the time at which the plant bears fruit or nuts. (Code Sec. 168(k)(5)(B))

Research credit of eligible small business may offset AMT as well as regular tax. For credits determined for tax years that begin after Dec. 31, 2015, eligible small businesses (ESBs) may claim the credit against their alternative minimum tax (AMT) liability as well as their regular tax liability. (Code Sec. 38(c)(4)(B)(ii))

An ESB is, with respect to any tax year: a nonpublicly traded corporation, a partnership, or a sole proprietorship whose average annual gross receipts for the 3-tax-year period preceding the tax year does not exceed $50 million. (Code Sec. 38(c)(5)(C))

Research credit of qualified small business may offset payroll tax. For tax years that begin after Dec. 31, 2015, qualified small businesses may elect to claim a portion of their research credit as a payroll tax credit against their employer FICA tax liability, rather than against their income tax liability. (Code Sec. 41(h) and Code Sec. 3111(f))

A qualified small business is one that, in the case of a corporation or partnership, with respect to any tax year:

  1. Has gross receipts (as determined under the rules of Code Sec. 448(c)(3), without regard to Code Sec. 448(c)(3)(A)) of less than $5 million, and
  2. Did not have gross receipts (as determined in (1), above) for any tax year preceding the 5-tax-year period ending with the tax year. (Code Sec. 41(h)(3)(A)(i))

An individual can qualify if he meets the two conditions above, taking account the aggregate gross receipts received by the individual in carrying on all his trades or businesses. (Code Sec. 41(h)(3)(A)(ii)) Special aggregation rules apply. And an organization exempt from tax can’t be a qualified small business. (Code Sec. 41(h)(3)(B))

The payroll tax credit portion is equal to the least of:

  1. An amount specified by the taxpayer that does not exceed $250,000,
  2. The research credit determined for the tax year, or
  3. In the case of a qualified small business other than a partnership or S corporation, the amount of the business credit carryforward under Code Sec. 39 from the tax year (determined before the application of Code Sec. 41(h) to the tax year). (Code Sec. 41(h)(2))

The election can’t be made for a tax year if the taxpayer has made such an election for five or more preceding tax years. (Code Sec. 41(h)(4)(B)(ii)) For a partnership or S corporation, an election to apply the credit against OASDI liability is made at the entity level. (Code Sec. 41(h)(4)(C))

The payroll tax portion of the research credit is allowed as a credit against the qualified small business’s OASDI tax liability for the first calendar quarter beginning after the date on which it files its income tax or information return for the tax year. The credit can’t exceed the OASDI tax liability for a calendar quarter on the wages paid with respect to all employees of the qualified small business. If the payroll tax portion of the credit exceeds the qualified small business’s OASDI tax liability for a calendar quarter, the excess is allowed as a credit against the OASDI liability for the following calendar quarter. (Code Sec. 3111(f))

Liberalized rules for food inventory enhanced deduction. A taxpayer engaged in a trade or business is eligible to claim an enhanced deduction for donations of food inventory. The enhanced deduction equals the lesser of (a) basis plus half of the ordinary income that would have been recognized if the property were sold at fair market value (FMV) at the contribution date, or (b) twice the property’s basis. A contribution of food inventory that is apparently wholesome food—i.e., meant for human consumption and meeting certain quality and labeling standards—qualifies for the enhanced deduction. For a taxpayer other than a C corporation, the aggregate amount of contributions of apparently wholesome food that may be taken into account for the tax year can’t exceed 10% of the taxpayer’s aggregate net income for that tax year from all trades or businesses from which those contributions were made for that tax year. A corporation’s deductions for charitable contributions can’t exceed 10% of its taxable income as specially computed.

The PATH Act retroactively and permanently extended the apparently wholesome food contribution rules. (Code Sec. 170(e)(3)(C)(iv), as amended by Act Sec. 113(a)) Additionally, for tax years beginning after Dec. 31, 2015, the PATH Act also liberalized the rules for such contributions, as follows:

  • The fair market value (FMV) of apparently wholesome food that cannot or will not be sold solely by reason of internal standards of the taxpayer, lack of market, or similar circumstances is determined without regard to such internal standards, etc. FMV is determined by taking into account the price at which the same or substantially the same food items—as to both type and quality—are sold by the taxpayer at the time of the contribution. If the items have been discontinued, the price comparison is made to the price at which the taxpayer sold the items in the recent past. (Code Sec. 170(e)(3)(C)(v)).
  • For taxpayers other than C corporations, the limitation on deductible contributions of food inventory increases to 15% of the taxpayer’s aggregate net taxable income from all trades or businesses from which such contributions were made. For C corporations, food inventory contributions are subject to a limitation of 15% of taxable income as specially computed. (Code Sec. 170(e)(3)(C)(ii)) Although a C corporation’s charitable deduction for contributions of food inventory isn’t subject to the general corporate 10%-of-taxable-income limit, that 10% limit is reduced—but not below zero—by the amount of the corporation’s allowable food inventory contributions. (Code Sec. 170(e)(3)(C)(iii)(II))
  • Taxpayers who do not account for inventories using full absorption costing and who are not required to capitalize indirect costs under the Code Sec. 263A UNICAP rules may elect to treat the basis of any apparently wholesome food as being equal to 25% of the market value of the food, in determining the amount of the charitable contribution deduction under Code Sec. 170(e)(3)(B). (Code Sec. 170(e)(3)(C)(iv))

More employers eligible for differential wage payment credit. Eligible small business employers that pay differential wages—payments to employees for periods that they are called to active duty with the U.S. uniformed services (for more than 30 days) that represent all or part of the wages that they would have otherwise received from the employer—can claim a credit. This differential wage payment credit is equal to 20% of up to $20,000 of differential pay made to an employee during the tax year. Under prior law, an eligible small business employer was one that: (1) employed on average less than 50 employees on business days during the tax year; and (2) under a written plan, provides eligible differential wage payments to each of its qualified employees. A qualified employee is one who has been an employee for the 91-day period immediately preceding the period for which any differential wage payment is made.

The PATH Act not only retroactively and permanently extended the credit (which had expired at the end of 2014), but liberalized it as well. For tax years beginning after Dec. 31, 2015, the credit applies to employers of any size (i.e., the less than 50 employee average no longer applies). (Code Sec. 45P(a))

Work opportunity tax credit expanded. The work opportunity tax credit (WOTC) allows employers who hire members of certain targeted groups to get a credit against income tax of a percentage of wages. The credit varies by targeted group.

The PATH Act retroactively extended the WOTC for five years so that it applies to eligible veterans and non-veterans who begin work for the employer on or before Dec. 31, 2019. (Code Sec. 51(c)(4)(B), as amended by Act Sec. 142(a)) Additionally, effective for individuals who begin work for an employer after Dec. 31, 2015, the WOTC also applies to employers who hire workers who are members of a new targeted group—qualified long-term unemployed individuals (i.e., those who have been unemployed for 27 weeks or more). (Code Sec. 51(d)(15))

Live theatrical productions qualify for expensing. Under the PATH Act, for productions beginning after Dec. 31, 2015 and before Jan. 1, 2017, the Code Sec. 181 expensing election for qualified film and TV productions is expanded to also apply to any “qualified live theatrical production,” which is defined as a live staged production of a play (with or without music) which is derived from a written book or script and is produced or presented by a commercial entity in any venue which has an audience capacity of not more than 3,000, or a series of venues, the majority of which have an audience capacity of not more than 3,000. In addition, qualified live theatrical productions include any live staged production which is produced or presented by a taxable entity no more than 10 weeks annually in any venue which has an audience capacity of not more than 6,500. (Code Sec. 181)

Moratorium on medical device excise tax. Under the PATH Act, the 2.3% excise tax imposed on the sale of medical devices will not apply to sales during calendar years 2016 and 2017. (Code Sec. 4191(c))

Related party loss rules tightened. Under the Code Sec. 267(a) related party loss rules, no deduction is generally allowed for losses from sales or exchanges of property (except in corporate liquidations), directly or indirectly, between certain related persons. Under Code Sec. 267(d), if a taxpayer acquires property by purchase or exchange from a transferor who sustained a loss not allowed because of the related taxpayer rules, any gain realized by the taxpayer on a sale or other disposition of the property is recognized only to the extent that the gain exceeds the amount of the loss that is properly allocable to the property sold or otherwise disposed of by the taxpayer.

Under the PATH Act, for sales and exchanges of property acquired after Dec. 31, 2015, the general rule of Code Sec. 267(d) doesn’t apply to the extent gain or loss on property that has been sold or exchanged is not subject to Federal income tax in the hands of the transferor immediately before the transfer, but any gain or loss on the property is subject to Federal income tax in the hands of the transferee immediately after the transfer. (Code Sec. 267(d)) Thus, the related party loss rules are modified to prevent losses from being shifted from a tax-indifferent party (e.g., a foreign person not subject to U.S. tax) to another party in whose hands any gain or loss with respect to the property would be subject to U.S. taxation.

Alternative tax rate for corporate timber gains. Effective for tax years beginning in 2016, the PATH Act provides that a corporation is subject to a 23.8% alternative tax rate on the portion of its taxable income that consists of qualified timber gain (or, if less, the net capital gain) for a tax year. (Code Sec. 1201(b)(1)) Qualified timber gain means the net gain described in Code Sec. 631(a) and Code Sec. 631(b) for the tax year, determined by taking into account only trees held more than 15 years. (Code Sec. 1201(b)(2))

How about some simple tax planning strategies for your clients for 2016…

 

What’s new for 2016—a roundup of tax changes effective this year…

A large number of important tax changes go into effect this year. Many were ushered in by the Protecting Americans from Tax Hikes (PATH) Act of 2015, although legislation enacted earlier in 2015 and in 2014 also contributed a fair share. Still other changes are the result of various administrative pronouncements by IRS

The recent legislation responsible for the lion’s share of the changed rules for 2016 consists of:

  • The Protecting Americans from Tax Hikes (PATH) Act of 2015 (P.L. 114-113, 12/18/2015);
  • The Fixing America’s Surface Transportation (FAST) Act (P.L. 114-94, 12/4/2015);
  • The Bipartisan Budget Act of 2015 (P.L. 114-74, 11/2/2015);
  • The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (P.L. 114-41, 7/31/2015);
  • The Trade Preference Extension Act of 2015 (P.L. 114-27, 6/29/2015); and
  • The Achieving a Better Life Experience Act of 2014 (ABLE Act), part of the Tax Increase Prevention Act of 2014 (P.L. 113-295, 12/19/2014)

April 18 will be 2016 tax deadline for most individual taxpayers. In Rev Rul 2015-13, 2015-22 IRB, IRS announced that Monday, Apr. 18, 2016 will be the tax deadline for 2015 income tax returns for individual taxpayers in most states. Because Emancipation Day (a legal holiday in the District of Columbia) falls on Saturday, April 16, in 2016, it will be observed on Friday, April 15, which pushes the tax filing deadline to the next business day – Monday, Apr. 18, 2016. However, because Patriot’s Day will be observed this year on Monday, Apr. 18, 2016 in Maine and Massachusetts, residents of those states will have until Apr. 19, 2016 to file and pay their taxes.

New exclusion for payments from certain work-learning-service programs. For amounts received in tax years beginning after Dec. 18, 2015, a taxpayer may exclude from gross income any payments from certain work-learning-service programs that are operated by a work college (as defined in section 448(e) of the Higher Education Act of 1965). (Code Sec. 117(c)(2)(C)) Under Sec. 448(e)(1) of the ’65 Higher Education Act, work colleges are public or private nonprofit, 4-year, degree-granting institutions committed to community service, which have operated a comprehensive work-learning-service program for at least two years, and which require that students participate in a comprehensive work-learning-service program.

Agricultural research organizations are 50% charities. Contributions by an individual to an organization that is a “50% charity” are deductible up to 50% of the donor’s contribution base, which is the donor’s adjusted gross income, computed without any net operating loss carryback deduction. A 30% limitation applies to an individual’s contributions to a 50% charity of appreciated capital gain property, i.e., a capital asset the sale of which at its fair market value at the time of the contribution would have resulted in long-term capital gain.

For contributions on or after Dec. 18, 2015, the PATH Act adds agricultural research organizations to the list of 50% charities. The organization must commit to use the contribution for agricultural research before January 1 of the fifth calendar year that begins after the date of the contribution. (Code Sec. 170(b)(1)(A)(ix))

Toughened rules for claiming child tax credit (CTC). Under the PATH Act, the following toughened compliance rules apply to taxpayers claiming the CTC. They all apply for tax years beginning after Dec. 31, 2015, except as otherwise noted:

  • Effective for returns, and any amendment or supplement to a return, filed after Dec. 18, 2015, an individual can’t retroactively claim the child tax credit (CTC) by amending a return (or filing an original return if he failed to file) for any prior year in which the individual or a qualifying child for whom the credit is claimed did not have an individual tax identification number (ITIN). (Code Sec. 24(e)) But the provision won’t apply to any tax return (other than an amendment or supplement to a return) for any tax year that includes Dec. 18, 2015 if the return is filed on or before its due date. (PATH Act Sec. 205(c)(2))
  • No CTC is allowed for any tax year in the “disallowance period” which is: (a) two tax years after the most recent tax year for which there was a final determination that the taxpayer’s CTC claim was due to reckless or intentional disregard of rules and regs (but not due to fraud); (b) 10 tax years after the most recent tax year for which there was a final determination that the taxpayer’s CTC claim was due to fraud. (Code Sec. 24(g)(1))
  • If a taxpayer is denied the CTC for any tax year as a result of the deficiency procedures, then no CTC is allowed for any later tax year unless the taxpayer provides the information that IRS requires to demonstrate eligibility for the CTC. (Code Sec. 24(g)(2))
  • The following are added to the mathematical or clerical errors for which IRS can make a summary assessment (i.e., with respect to which IRS can summarily assess the additional tax due without sending the taxpayer a deficiency notice): an entry on the return claiming the CTC for a tax year for which the CTCs are disallowed under Code Sec. 24(g)(1) because of an earlier CTC claim due to reckless or intentional disregard of rules and regs or fraud; and an omission of information that a taxpayer who has made an earlier CTC claim that was denied as a result of the deficiency procedures must provide under Code Sec. 24(g)(2) to demonstrate eligibility for the CTC. (Code Sec. 6213(g)(2)(P))

New anti-abuse measures for American opportunity tax credit (AOTC). The following toughened compliance rules apply to taxpayers claiming the AOTC. They all apply for tax years beginning after Dec. 31, 2015, except as otherwise noted:

  1. Effective for returns, and any amendment or supplement to a return, filed after Dec. 18, 2015, an individual is prohibited from retroactively claiming the AOTC by amending a return (or filing an original return if he failed to file) for any prior year in which the individual or a student for whom the credit is claimed did not have an ITIN. (Code Sec. 25A(i)(6)) However, the preceding change doesn’t apply to any tax return (other than an amendment or supplement to a return) for any tax year that includes Dec. 18, 2015, if the return is filed on or before its due date. (PATH Act Sec. 206(b)(2))
  2. A taxpayer may not claim an AOTC for any tax year during the disallowance period, which is: the period of 10 tax years after the most recent tax year for which there was a final determination that a taxpayer’s claim of an AOTC was due to fraud; and the period of two tax years after the most recent tax year for which there was a final determination that a taxpayer’s claim of an AOTC was due to reckless or intentional disregard of rules and regs (but not fraud). (Code Sec. 25a(i)(7)) Additionally, for a taxpayer who’s denied an AOTC for any tax year as a result of the Code’s deficiency procedures, no AOTC is allowed for any later tax year unless the taxpayer provides the information IRS may require to demonstrate eligibility for the credit. (Code Sec. 25a(i)(7)(B))
  3. If a taxpayer doesn’t provide the eligibility information required by IRS, or makes an entry on a return claiming the AOTC for a tax year for which the credit is barred due to an earlier claim based on fraud or the reckless or intentional disregard of rules and regs, then IRS can deny any AOTC claimed by the taxpayer, by summary assessment (i.e., without going through the normal deficiency procedures). (Code Sec. 6213(g)(2)(Q))
  4. For tax years beginning after Dec. 31, 2015, and expenses paid after that date for education furnished in academic periods beginning after that date, a taxpayer claiming the AOTC must report the employer identification number (EIN) of the educational institution to which the taxpayer makes qualified payments under the credit. (Code Sec. 25A(i)(6))
  5. For expenses paid after Dec. 31, 2015, an eligible educational institution to which qualified tuition and related expenses were paid must include its employer identification number (EIN) on the information return (Form 1098-T) that it provides to IRS. (Code Sec. 6050S(b)(2)(C))
  6. For expenses paid after Dec. 31, 2015 for education furnished in academic periods beginning after that date, higher education institutions must report (on Form 1098-T) only qualified tuition and related expenses actually paid (rather than choosing between amounts paid and amounts billed, as under prior law). (Code Sec. 6050S(b)(2)(B)(i)) Additionally, under the 2015 Trade Preferences Extension Act of 2015, for tax years beginning after June 29, 2015, as a condition for claiming the higher education credit under Code Sec. 25A (or the Code Sec. 222 tuition and fees deduction), a taxpayer must receive, or be treated as having received, a payee statement (generally, Form 1098-T, Copy B) that contains all of the information required to be included on the Form 1098-T information return filed with IRS, including the TIN of the student for whom the qualified tuition and related expenses were paid, or billed, for the tax year. (Code Sec. 25A(g), Code Sec. 222(d)(6)(A)) In a related change, the 2015 Trade Preferences Extension Act of 2015 waives the otherwise applicable information reporting penalty on educational institutions that fail to file Forms 1098-T with accurate TINs of students attending the educational institution if the institution certifies, under penalty of perjury, that it properly requested TINs from the students as required under Treasury regs. (Code Sec. 6724(f)) This change is effective for returns required to be made, and statements required to be furnished, after Dec. 31, 2015.

Toughened earned income tax credit (EITC) rules. Effective for returns, and any amendment or supplement to a return, filed after Dec. 18, 2015, an individual is prohibited from retroactively claiming the EITC by amending a return (or filing an original return if he failed to file) for any prior year in which the individual or a student for whom the credit is claimed did not have a valid social security number. (Code Sec. 32(m), as amended by Act Sec. 204) However, the preceding change doesn’t apply to any tax return (other than an amendment or supplement to a return) for any tax year that includes Dec. 18, 2015 if the return’s filed on or before its due date. (PATH Act Sec. 204(b))