Date: March 23rd 2006

Here is the complete list of questions and answers from the March 15 EBAEA Dinner meeting IRS Tax Panel. WARNING: THIS RUNS TO NINE PAGES IN MICROSOFT WORD. Because some members can't get long emails, and others can't get attachments, I am sending this out twice in two different formats. This time, it's the whole text. Many, many thanks to Joe Calderaro and Karen Brosi!
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Questions submitted to the East Bay Association of Enrolled Agents March 15, 2006 IRS Tax Panel. Panel members: Joe Calderaro (IRS joseph.calderaro@irs.gov), Karen Brosi (EA, CFP), and the odd comment by Phil Feigler and Lonnie Gary. Answers transcribed by Duncan Sandiland, who did the best he could but probably made some mistakes, so use these answers at your own risk!

1) RENTALS
Rental is a condo and homeowner's association is assessing each owner $10,000 for roof repairs in one lump sum. Is $10,000 deductible as association dues or must it be capitalized and if capitalized, is it 27.5 years?
Karen: It’s not HOA dues, if capitalize, it IS 27.5 years, but it COULD be a repair if not total replacement but just upgrading a leaky roof – Tax Court mixed.
Joe: $10K is substantial and adding to the value of the property – definitely capital improvement.
Phil: There was a court case last year or the year before where the court allowed a “repair” of 200K. Judges ruled that it was maintaining the value of the rental building in order that it can continue to produce income, therefore keeping it in working condition.

Rental is an older house. Plumbing beneath the house is corroding and needs to be replaced for $7200. Is this a repair or improvement?
Karen: Improvement.

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2) 1031 TIMING
Can people who buy real estate for investment, ie purchase, fix-up and sell within a few months, do a 1031 exchange with that property? If so, how would you report it, just on the 8824?
Joe: If you’re doing this on a regular basis, it becomes inventory and would not qualify for a 1031, as it goes on a Schedule C and is subject to self-employment tax. If it is an occasional issue, at least two years holding period, 1031 is OK.

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3) NAME CHANGE
Client files returns for 1996 and 1997 under married name as head of household. IRS sends refund. Later IRS sends letter stating name and social security number do not match. IRS revises returns denying both personal exemption and head of household filing status. I called IRS and was told they could not correct returns and that she had to go to Social Security to have new card issued. I explained that she could not legally do that as she had since remarried. They, in effect, said "tough luck." How can I resolve this issue?
Joe: This was generated by a CP-2000, so ask for an Appeals hearing with a face-to-face meeting.

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4) EXPATRIATE FILINGS
We have several clients who are expatriates living outside the United States. In the past, we have always told them that they could file their U.S. tax return at the U.S. Embassy in the country that they are living in and that the date stamped on the return by the U.S. Embassy is the date the IRS considers the return received. Last year, we gave this advice to a couple in the Netherlands. They went to the U.S. Embassy and were told that the Embassy no longer accepts U.S. tax returns. Is this a new policy? And, if the U.S. Embassies no longer accept tax returns, will the IRS recognize foreign postal service date stamps as timely filing? If not, what do you recommend that we tell our overseas clients about the best way to file their return?
Joe: Efile or file it early, or use DHL or one of the other accepted delivery services.

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5) WRONG CP2000 NOTICES
Why is the IRS suddenly sending out CP2000 notices claiming 1099-MISC forms with an amount as "RENTS" in Box 1 are actually "Non-employee Compensation" in Box 7? I will bring you two of my clients notices and the amounts are clearly in "rents" box 1.
Karen: This is localized to Oakland Housing Authority, and the problem seems to be with their magnetic media transmissions.

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6) 1099-Q (QUALIFIED TUITION PROGRAM)
Now that these are coming out, what on earth are we supposed to do with them? My software doesn’t yet support this.
Karen: Line 21 item with a statement attached to zero out the “income” against the qualified expenses, so you wind up with “0” and “SEE STATEMENT” on the 1040. If issued to a dependent, it MAY be under the filing requirement.

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7) LIEN RELEASE
I have determined that a lien should be removed. How do I go about doing this: what is the normal processing period, who do I contact, what forms do I file, how do I check up on it?
Joe: Lien Release desk is now in Cincinnati, so go to irs.gov and get instructions. If you run into problems, call PPS or Taxpayer Advocate.

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8) FINAL 941
501(c)(3) organization had an employee once upon a time and filed 940 and 941 returns. There are no employees now and none in the foreseeable future, but IRS is requesting that 941's be filed. The IRS-provided solution is to file returns for all prior quarters indicating zero salaries paid for each and then "giving up" the organization's ID number. I'm missing something. Is there more than one ID? Isn't the ID necessary for things other than the 941? How does the organization get out of the 941 loop without giving up its ID number?
Joe: Confused by IRS response – it should be enough to just write a letter saying no more employees and keep sending the letter back until IRS gives in.

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9) CAPITAL LOSS CARRYFORWARD
Taxpayer sold stock in 2005, resulting in loss of $10,000. The stock sale was the only reportable item for 2005. In 2006 there is no anticipated income of any kind. What is the proper thing to do in order to document the loss carry forward? Must/should the taxpayer file a return for 2006?
Karen: Not required to file, the carryforward continues regardless of return filing, but watch your software for the carryforward falling off.
Joe: But watch out for interim capital gains which could erode the carryforward.
Karen: For ALL carryforwards – you use up standard deduction and personal exemption first, then if not negative return, use carryforwards. If negative return after SD and PE but before carryforwards, carryforwards are NOT used during that year.

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10) MOVING EXPENSE
Taxpayer is a "product manager" for a bank. She received a W-2 from the bank but works from her home most of the time. She does not have an office at the bank. Recently she moved to Washington state. Still works for the same employer and she still works from her home office. Her personal belongings were moved to Washington; her home office furniture and equipment were moved to Washington. The "x- miles closer..." test does not fit. Is she in anyway entitled to claim moving expense? The employer did not require her to move. But, then again, she did move her office...
Joe: Yes, she did move her office, but this hinges on where is her principal place of business. Maybe she should be taking home office on 1040 if she can get requirement by employer to qualify the home office, then it will definitely be deductible.

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11) 1031 EXCHANGE
A) Taxpayer did a 1031 exchange in 2003 - office building for residential rental. There have been attempts to rent - online advertising and realtors, but to date the "rental" has been rented for about a month as the tenant was evicted shortly after moving in. Any suggestions for the taxpayer? Without tenants it's not a rental. Should she start claiming is as a second residence? Should she go back and amend the 2003 return and claim the gain on the sale?
Karen: Lack of tenants does not disqualify as rental property, must have INTENT to hold out as a rental, and her attempts show profit motive, so 1031 is valid.

B) When you do a 1031 exchange how do you handle the new loan fees? Are they reduced by a percentage of the deferred gain?
Karen: No, it’s like any loan fee, amortized over the life of the loan.

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12) ACCIDENTAL 401(k) DISTRIBUTION
Senior citizen taxpayers were beneficiaries of son's 401(k). Son died in 2005 and company distributed 401(k) all plan monies (about $200K) to parents who now face a $50K+ tax bill. They are totally puzzled and in shock. The money went into their bank account in mid-2005 and it looks like a done deal. Could they have had the company roll it to a beneficiary IRA so they could take it out a bit at a time? What could/should they have done? Is there ANY remedy possible at this late date?
Joe: No relief available. Audience comment: Sue the advisor or administrator!

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13) Canadian RRSP (IRA look-a-likes)
In past years, we had to file Form TD F 90.22-1 (Report of Foreign Bank and Financial Accounts) for clients that had these accounts. Last year, IRS introduced Form 8891 (US Info Return for Beneficiaries of Certain Canadian Registered Retirement Plans). Does the TD form still need to be filed, or is the IRS form adequate?
Joe: If the account is over $10K, yes you do.

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14) CHARITABLE CONTRIBUTIONS
My customer donated wine which had appreciated in value to a charity auction.

1. The receipt provided by the charity does not address the issue of goods and services provided as a result of this donation. Is it OK to ignore the goods and services issue?
Karen: Only if there weren’t any goods/services provided – just because they didn’t say so doesn’t mean it wasn’t so.

2. My customer valued the wine at $2000 but the high bid was $1500. Is the auction price the best measure of FMV?
Karen: Issue is moot due to the rest of question.

3. My customer paid $1000 for the wine. IRS Pub 526 says the stamp collections are capital gains property so presumably wine collections are also capital gains property. That suggests that the charitable contribution is the appreciated FMV. However, there is the rule that says the deduction is limited to basis if the contributed property is tangible personal property that is put to an "unrelated use" by the charity. Pub 526 Example: If a painting contributed to an educational institution is used by that organization for educational purposes by being placed in its library for display and study by art students, the use is not an unrelated use. But if the painting is sold and the proceeds are used by the organization for educational purposes, the use is an unrelated use. Is the donation of wine to be sold at a charitable auction an unrelated use? Can the taxpayer claim FMV or are they limited to basis?
Karen: Basis.

4. Customer bid $5000 for different wine at the auction. They bid "too much because it was for a good cause." Can they claim the excess of the price paid over the appraised value as a charitable contribution?
Karen: Yes, absolutely.

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15) KATRINA RELIEF
As part of a church group the taxpayer went to New Orleans to help. Can taxpayer deduct per diem for meals and, if so, half or all of the per diem for meals?
Joe: Out-of-pocket expenses under a 501(c)(3) umbrella means full per diem is deductible.

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16) TUITION
Taxpayer paid $8000 tuition to University in New Orleans which was destroyed by Katrina. The money that was paid for tuition was not recovered in full. Maybe the university will reopen in the future. In the meantime the student has to pay tuition at another college. What can be done about the unrecovered portion of the original payment?
Karen/Joe: It’s a deduction under Sec 222 tuition paid for enrollment in a university, but must attend classes either this year or beginning within the first three months of the next year. Otherwise, not a tuition deduction, and not casualty loss because you don’t know how much will be refunded (not fixed and determinable). When the refund is finalized, then at that time it’s a loss.

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17) C CORP INSTALLMENT SALE
Can a shareholder of a closely held C Corporation, who is retiring from the corporation, engage in an installment sale to sell his stock? Shareholder is selling the shares back to the other 3 shareholders. Before the sale, each one of the four owned 25% of the outstanding stock. The terms are $450,000, of which $250K is paid at time of sale and $200K is on a 5-year note at 6%. I believe this is possible provided that the securities are not tradable on an established securities market.
Joe: Yes, you can do this.

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18) S CORP HEALTH INSURANCE DEDUCTION
S Corp pays Health Insurance for an employee/shareholder who is >2% shareholder. The payment by the Corp has been booked as a distribution, and I have taken the SE health Insurance deduction on the Shareholder's Individual return. I have also seen the same treatment on all the K-1s for individual clients who are S Corp >2% shareholder/employees and another practitioner prepared the S Corp return. It seems that the rule in this case is that the insurance payments by the Corp should be considered as compensation (not subject to FICA) and included in the employee/shareholder's W-2. They are supposed to be delineated in Box 14 of the W-2 and the shareholder may still deduct them as an adjustment on 1040. If I did that, the corporation would have an additional deduction for wages, and the employee would have the same amount of additional income via increased wages. If it is a distribution, the Corp's income is now larger by the same amount, as they did not receive a wage deduction. The TP's income still increases by the same amount (still not subject to FICA), as his K-1 increases by the same amount due to the fact that the Corp's income was that much larger without the wage deduction. Do you see a problem with this treatment?
Karen: It’s not a distribution, it should be declared as wages (not subject to FICA).

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19) REFILING OLD RETURNS
I have a client with 1996 & 1997 issues. They filed timely (so they say) for both years but the IRS never rec’d the returns. We resubmitted the returns with cover letters in 2004 and again in 2006. The IRS says they never rec’d our 2004 pkg. Their response to our 2006 package was a copy of the transcript prepared by the IRS, followed by notices of intent to levy. I was referred after numerous phone calls to the ASFR Unit in New York and the phone has been busy non stop. So, I faxed the packages to the Holtsville fax number. I cannot get through via telephone to find out if they received it and what my next step is. Help please.
Joe: Call the collection agent assigned to the account. If that doesn’t work, file a Collection Due Process notice to get to a real person. Maybe an OIC-Doubt as to Liability or requesting audit recon would get it out to the field.

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20) CANADIAN PENSION
Canadian citizen who has lived most of his life in the USA receives a pension from the Canadian government. He is not a US citizen. Does he have to claim the income?
Karen: Yes! Resident in US has to report.

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21) FAILED RMD
Senior citizen over age 70 1/2 moves his IRA brokerage account and new broker forgets to call him re RMD so it does not get distributed for 2005 and he receives it in 2006. Any grounds for abatement of penalties and interest? Even if he told the broker when he moved it? Use Form 843 if he wants to try for abatement?
Karen: Unless the RMD was really huge, make sure he takes his 2006 RMD and report all the distributions received in 2006 on the 2006 return, then wait. Note that we know that’s not technically correct, but it should produce the desired result: tax on distribution but abatement or non-assessment of penalty.
Joe: Some preparers will put it on the 2005 return but not pay it, then wait for the penalty notice and write the whiny-crying letter, which almost always results in abatement. IRS really tries to honor these requests.

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22) TRUST K-1 TO BENEFICIARIES
Trust Estate, date of death 10/24/2004, 706 was timely filed. This is a large estate and we will have 2 years of trust estate returns. Fiscal year is 11/04 to 10/05. We forgot to file by February 15th and will file by the end of March. No heirs received any distribution in the fiscal year but the estate earned $60K that first year in DNI. Do the heirs have to claim their 2004 K-1 on their 2005 tax return or can they claim it on the 2006 tax return when they actually receive the money? Will I have a penalty on the 1041 with no taxes due (all passed thru to heirs)?
Joe: Income goes through in 2005 for beneficiaries. Chances are no penalty due to no tax due on a 1041 with pass-through.
Phil clarifies: As the FYE is in 05, the K-1s will therefore be reported on the beneficiaries’ 05 returns. I believe you have till 65 days after the FYE to distribute the DNI, so the fact that they did not get the $ in 05 may not be relevant if they get paid within 65 days of 2/15/06. I have to say that many of my own 1041 clients have distributed after the 65 day period, I don’t think the Service looks at it much. Further clarification, the fact that the 1041 had 60K of DNI gives it in essence a deduction for that, so the estate’s taxable income would end up at zero.

FOLLOWUP FROM PETER LINGANE:

The fiscal year of an estate must end no later than the last day of the month of the month before death. If death was 10/24, the longest fiscal year is 10/24/04 through 9/30/05. The tax return is due 3.5 months later or 1/15/06, not 2/1/506 as stated. The fiscal year is determined by the choice on the first return filed, not what it says on the SS4. Thus whether the IRS issued an EIN for a 11/30 year end is not relevant.

An estate is allowed to deduct income distributed during the tax year or within 65 days of the end of the tax year and any income it is required to distribute, whether or not distributed. While not stated in the problem, I assume that the estate was not required to distribute all income. The distribution period ended in mid December 2005. There were no distributions before mid December 2005. Thus all income is taxed at the trust level. No income is reported on the beneficiaries' returns.

The tax liability paid at the trust level is probably but not necessarily somewhat higher than the liability if the income had been distributed and reported on the beneficiaries' returns. I expect failure to file and failure to pay penalties and interest. There should be no underpayment penalties since an estate is not required to make estimated payments during its first two years.

I suspect that Phil was misquoted. An EA who recommends that an executor knowingly claim an income distribution deduction for a distribution after 65 days has probably recommended fraud and deserves to prosecuted to the full extent of the law. If the failure to distribute in a timely manner was caused by the oversight of the attorney or tax preparer, I would encourage the executor to seek redress from the attorney or tax preparer for any incremental tax and for all penalties.

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23) SCHEDULE C
When and how can a cell phone be deductible as a business expense on a Schedule C?
Karen: Cell-phone usage log, just like a mileage log.

What is the latest IRS position on tax prep fees on a Schedule C – does it need to be allocated?
Karen: Can take it all on Sch C or E (taxpayer wouldn’t have ANY preparation expense if he didn’t have that business/etc), do not need to allocate, but use some prudence here.

Can a professional education course be a deductible Schedule C deduction AND get a Lifetime Learning Credit?
Joe: No, can’t double-dip.

Is a Starbucks gift card a 50% meal or a 100% gift?
Joe: If $25 or less, it’s a 100% gift.

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24) 1031 and related
Could interest on the excess of a >$1,000,000 personal residence loan be counted as basis on the sale of a personal residence?
Joe: No, it’s personal interest, assuming the Home Equity provision is exhausted.

Could a 1031 exchange be with a foreign property?
Lonnie: No, foreign property is not like-kind.

What does the IRS think about 1031 exchanges into TIC pooling scheme?
Joe: Rental-rental, investment-investment, etc is no problem.

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25) MFS/HH FILING STATUS
If you are married and taking your grandchild as a dependent, are you eligible for HH status, or does it have to be your child (not grandchild)?
Karen: Grandchild does count as qualifying child, and that works for HH status if married but meet the living separately rules.

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26) MORTGAGE INTEREST DEDUCTION FOR RENTAL
Client owns rental and wants to borrow $50K from rental and use as a down payment for a 2nd rental. Can the mortgage interest be deducted on a 2nd rental since the $50K was used to purchase the 2nd rental? I assume I can not deduct mortgage interest against income on 1st rental since the funds were not used on the first rental.
Joe: Tracing rules prevail. Trace the interest to the activity and deduct it there.

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27) TRADITIONAL IRAS WITH PROBABLE BASIS
What is the best and easiest way to get basis without 8606 or old tax returns? Is there a secret to do this?
Karen: Do the best you can, you can’t make it up.

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28) SWITCHING BETWEEN STANDARD MILEAGE AND ACTUAL EXPENSES
If a taxpayer uses standard mileage in first year of business use of an auto and never takes MACRS depreciation on it, may he switch back & forth in later years, depending upon which is most favorable? Recently an auditor and his supervisor interpreted the IRC to mean that a TP may make one switch only (for the lifetime of the vehicle). I need a written reference.
Joe: Revenue Procedure 2005-78 provides the authority to use actual after using the standard mileage rate. Section 2005-78 section 5.06
Karen: Try Revenue Procedure 2003-76
Phil: If you use standard miles in Y1 you may optimize from then on, and use whichever method is best in any given year. BUT – you must use SL depreciation instead of regular MACRS (Lacerte users – method 56). You also must not depreciate the car beyond basis, and have to take into account the depreciation component of standard miles when figuring this out (17 cents in 2005). You may not use standard mileage if operating more than 5 vehicles (this used to be 2 until a few years ago) or if you have a fleet. If you use Actual expenses in Y1 at all, regardless of depreciation method, you may not use standard miles ever for that vehicle. As far what Joe said, I went back to a 97 Quickfinder and as far as I can see, there was no prohibition against changing from year to year provided you followed the rules above. The primary changes, which I believe occurred in 99 (don’t quote me on the year) were: Number of vehicles allowed went from 2 to 5. Also for the first time, you were allowed to use miles on a leased vehicle, provided: You make the election in Y1 and you must then continue to use miles for the remainder of the lease term. Joe, perhaps this is what you were thinking of? You may not optimize and switch to actual expenses in a future year. Further observation by me – those with a leased vehicle will rarely come out better using standard miles.

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29) EFILING ACKNOWLEDGEMENT
Does the actual form that states IRS has received the tax return on XX date have to be sent or can a letter with pertinent info be used in its place? And what constitutes pertinent info? Date, DCN?
Karen: A letter is fine.

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30) CHARITABLE CONTRIBUTIONS
Katrina contributions made after 8/27/05 by individuals do not need to be designated but corporations must (phasing out itemized deductions). Is this an oversight?
Joe: No knowledge of this issue.
Karen: I don’t think it was an oversight. It was specifically written that corporate donations had to be in relief of Katrina disaster, but individual donations were not so restricted.

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31) PROP 13 AND REAL ESTATE TAX DEDUCTIBILITY
Ad valorem real estate taxes are deductible to the homeowner (of qualified primary residence). CA’s Prop 13 has resulted in many flat parcel taxes and fixed assessments being added to property tax bills. These would seem not to be deductible. Can we get firm guidance?
Joe: The additional fees are not deductible. Practice may be different, but that’s the law.

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32) INVESTMENT EXPENSES
Client owns property in Brazil, holding it as investment property (never rented) and planning to sell it in the future. They hire a caretaker to stay at the property and maintain it. Can they deduct cost of caretaker on Schedule A as investment expenses?
Joe: Yes.

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33) BASIS OF PERSONAL RESIDENCE
Taxpayer is 100% shareholder of S-corp that develops real estate. Taxpayer built a personal residence that cost $1M, $600K of the construction cost was paid by the S-corp and $400K from his personal funds. Taxpayer only has basis of $100K in the S-corp. Taxpayer sold the personal residence for $1.5M, took the $500K exclusion and reported no gain. Does taxpayer get basis in his personal residence for the $600K paid by the S-corp? Taxpayer never reported any income or distributions from the S-corp.
Karen: He gets basis in the residence only to the extent he reported the distribution on his 1040 (and was taxed for receiving a distribution in excess for his S-corporation basis), otherwise no basis.

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34) CLAIMING 1098 INTEREST
Daughter lives with mother and pays all expenses (daughter claims mom as dependent). 1098 interest paid by daughter has mother’s SSN. Can daughter claim on Schedule A?
Joe: If the daughter is the beneficial owner, she can claim it. If mom is the owner, how can mom be a dependent?

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35) NON-COMMUNITY PROPERTY BASIS
California residents own rental property in non-community state. Spouse dies. Does step-up in basis increased to FMV of both spouses under Section 1016 or does local law prevail with step-up only on dead spouse’s FMV?
Karen: The latter, the location of the property is the prevailing law.

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36) NONACCOUNTABLE PLAN
Client works for a Belgian company. They give him a monthly $400 allowance for vehicle and other Form 2106 expenses. He gets a simple W-2, with no box 12 or 14 items, and gets a 1099-MISC showing either box 3 or box 7 for $4800. We take it off Form 2106 reducing 2106 expenses to nearly zero, which worked before efiling, now it’s wrong every year. What should we do?
Joe: That’s the proper way to do it, but efiling bumps it because it doesn’t show on line 21 as miscellaneous income. Employer should treat this as additional wage income because it’s not accountable plan.
Karen: You can put it on and back it out of line 21, then do the 2106 properly.

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37) PARTNERSHIP TO SCHEDULE C
Clients are a husband and wife who work in a mom and pop business, she sells and does books and he builds products. They were always a Schedule C. A few years ago they changed to a partnership and got a new EIN. They are now getting 1099s with his SSN, her SSN and the EIN. They are February filers, so most 1099s don’t get to them until now. How should we handle this?
Karen: Now mom & pop can be a Schedule C so the partnership is unnecessary. The best you can do is keep a stack of W-9s handy and send that with every invoice so payers can correct then. For remaining 1099s, make a Schedule C with all the income, and nominee it out on line 27.

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38) PHONY SSN
A guy with a phony SSN slipped his W-2 past me last year. Efile accepted it somehow. What should I do, call IRS, SSA or my insurer?
Joe: Don’t lose sleep over it. It’s the employer’s responsibility to ensure the correct info.

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39) FORM 1099-LTC
Attached is a Form 1099-LTC received by a 97-year old client in nursing care home. I’ve never seen a 1099-LTC. Is this a report of income to be entered on the 1040? Is this taxable income?
Karen: Taxable to the extent proceeds not used to pay for long-term care expenses – on line 21 with a statement backing out the amount used for LTC expenses.

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40) POACHING DEPENDENT
2005 is the third time in five years taxpayer’s return has been rejected due to ex-spouse filing earlier and incorrectly claiming child. Will IRS ever fix this or is the only answer to file immediately and amend later to get the return correct?
Joe: Yes, the best way is to file his return first.



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