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Tax Controversies Copyright © 2021 Carolina Academic Press, LLC. All rights reserved. TAX CONTROVERSIES PRACTICE AND PROCEDURE (4TH EDITION) 2021 CUMULATIVE SUPPLEMENT Leandra Lederman Stephen W. Mazza CAROLINA ACADEMIC PRESS Durham, North Carolina Copyright © 2021 Carolina Academic Press, LLC. All rights reserved. TAX CONTROVERSIES: PRACTICE AND PROCEDURE (4TH ED.) 2021 CUMULATIVE SUPPLEMENT Leandra Lederman & Stephen W. Mazza This Cumulative Supplement to the Fourth Edition of the Tax Controversies: Practice and Procedure casebook replaces previous updates. It updates the casebook through July 1, 2021. After brief overviews of important legislative changes since the Fourth Edition of the casebook was published, this Supplement provides more detailed updates, organized by chapter and page number of the casebook. Tax Cuts and Jobs Act of 2017 In December of 2017, Congress passed and then-President Trump signed the Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054 (the “2017 Tax Act”). By that time, the fourth edition of the casebook was already in press. The 2017 Tax Act included significant changes to the individual and corporate tax, as well as to the rules relating to U.S. corporations with overseas operations. However, the 2017 Tax Act included only minor revisions to rules relating to tax practice and procedure. A couple of changes worthy of note are mentioned briefly in the material below relating to page 722 in Chapter 14. In addition, several of the substantive tax law changes in the 2017 Tax Act have an indirect effect on some of the material in the casebook. For example, the 2017 Tax Act increased the standard deduction and eliminated the personal exemption for tax years 2018 through 2025. See I.R.C. §§ 63(c) (standard deduction); 151(d)(5) (personal exemption). Those revisions also affect the return-filing threshold for individual taxpayers, mentioned on page 97 in Chapter 3. During the 2018 through 2025 time period, the filing thresholds for single individuals and married couples filing jointly are based on the applicable standard deduction amount, rather than the combined amounts of the standard deduction and personal exemption. I.R.C. § 6012(f). Taxpayer First Act of 2019 On July 1, 2019, then-President Trump signed the Taxpayer First Act of 2019, Pub. L. No. 116-25, 133 Stat. 981 (2019) (the “Taxpayer First Act”). The bill may be best known for a provision that ultimately was not included in the enacted law—codification of the Free File program, potentially preventing the IRS from developing its own free software. See Jad Chamseddine, Senate Clears IRS Reform Bill for Trump’s Signature, 163 TAX NOTES FED. 1886, 1886-87 (2019). However, even without that provision, the Taxpayer First Act contains four titles and over 40 sections, virtually all of which focus on aspects of tax procedure. Individual changes that affect the material in the casebook are discussed below in connection with the updates to Chapters 1, 3, 4, 5, 6, 12, 14, 15, and 17. The discussion here provides a brief, broad overview, as many of the individual sections are too specific to warrant individual discussion in a casebook. Title I of the Taxpayer First Act is entitled “Putting Taxpayers First.” It includes provisions titled “Independent Appeals Process,” “Improved [IRS] Service,” “Sensible Enforcement,” “Organizational Modernization,” and “Other Provisions.” Title II is called “21st Century IRS.” It generally focuses on IRS cybersecurity and its electronic systems, with the sections it includes grouped under five subtitles. Copyright © 2021 Carolina Academic Press, LLC. All rights reserved. Title III, “Miscellaneous Provisions” contains three subtitles: “Reform of Laws Governing Internal Revenue Service Employees,” “Provisions Relating to Exempt Organizations,” and “Revenue Provision.” Title IV is brief, simply providing for computation of the budgetary effects of the law. For further reading that summarizes the principal provisions of the Act, see Special Study on Taxpayer First Act of 2019, Thomson Reuters Tax & Accounting (June 17, 2019), https://tax.thomsonreuters.com/news/special-study-on-taxpayer-first-act-of- 2019/. Coronavirus Aid, Relief, and Economic Security (CARES) Act On March 27, 2020, then-President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). The CARES Act was primarily an economic relief package, but it does contain several tax provisions. For example, the legislation sought to support small businesses by granting an employment tax credit equal to 50 percent of qualified wages paid to employees who are not working due to a full or partial cessation of business. CARES Act § 2301. The Act also granted recovery rebates for individual taxpayers (often termed “economic impact” or “stimulus” payments), which represent advance refunds of credits against 2020 tax liability. Id. § 2201. Nothing in the CARES Act directly affects the procedural rules discussed in the casebook. Consolidated Appropriations Act, 2021 & American Rescue Plan Act of 2021 The Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1182, signed into law by then-President Trump in December of 2020, provided a second round of economic- impact payments and allowed taxpayers the opportunity to calculate earned income and child tax credits in such a way that could increase these amounts for some taxpayers. Several months later, on March 11, 2021, President Biden signed the American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4. Among other things, the Act increased funding for covid vaccination and testing programs, provided aid to state and local governments, and granted assistance to schools. It also provided a third round of economic impact payments and expanded the amount of and eligibility for various credits (earned income, child tax, child and dependent care) for the 2021 taxable year only. The Act also included an appropriation of approximately $1.5 billion to the IRS to administer the payments, provide service, and modernize its technology. Id. § 9601(d)(1). Beyond that, neither the Consolidated Appropriations Act nor the American Rescue Plan Act include provisions that directly affect the material discussed in the casebook. 2 Copyright © 2021 Carolina Academic Press, LLC. All rights reserved. CASEBOOK UPDATES Chapter 1 Page 7: The Taxpayer First Act of 2019 (the “Taxpayer First Act”) required the Secretary of the Treasury to submit a written IRS reorganization plan to Congress. Taxpayer First Act of 2019, Pub. L. No. 116-25 § 1302. The legislation mandates that the plan “prioritize taxpayer services to ensure that all taxpayers easily and readily receive the assistance that they need”; “streamline the structure of the agency including minimizing the duplication of services and responsibilities within the agency”; and “best position the Internal Revenue Service to combat cybersecurity and other threats.” Id. At the same time, the Taxpayer First Act repeals a mandate in the IRS Reform Act that requires the IRS to organize its operations around particular groups of taxpayers. Id. According to a House Committee report relating to an earlier version of the Taxpayer First Act: The Committee believes that the current IRS organizational structure is one of the factors contributing to the inability of the IRS to properly serve taxpayers. The Committee believes that the current structure needs to be modernized and streamlined to help enable the IRS to better serve taxpayers and provide the necessary level of services and accountability to taxpayers in an efficient manner. Accordingly, the Committee believes it appropriate to require the IRS to submit a comprehensive reorganization plan. The Committee believes that the revised structure should ensure taxpayers’ rights are protected, information is kept secure, and that the IRS is approachable for taxpayers to ask questions and get assistance. Thus, the Committee seeks to provide flexibility to the IRS to reorganize its operations after the Commissioner determines that another organizational structure, different from past structures, would better serve taxpayers. H.R. REP. NO. 116-1957, at 53-54 (2019). Compare this legislative history to that reproduced on pages 7 and 8 of the casebook relating to the IRS Reform Act. Both are heavily focused on taxpayer service. After some delay, the IRS released a 253-page report in January 2021 entitled Taxpayer First Act Report to Congress (“First Act Report”). IRS Pub. 5426, Taxpayer First Act Report to Congress (Jan. 2021), https://www.irs.gov/pub/irs-pdf/p5426.pdf. The Report includes the following proposed IRS organizational structure: 3 Copyright © 2021 Carolina Academic Press, LLC. All rights reserved. Id. at 23 fig. 1. The new proposed structure includes (on the upper left in the chart) a Chief Taxpayer Experience Officer who will “drive strategic direction for improving the taxpayer experience across the IRS and would help ensure a consistent voice and experience across all taxpayer segments by developing agency-wide taxpayer experience guidelines and expectations.” Id. at 24. A key feature of the proposed plan involves a move away from an organizational structure based on types of taxpayers and towards a structure based on employee specializations. For example, the proposed plan consolidates all examination and collection functions into a single compliance division. Id. at 110. Currently, responsibility for examination and collection functions is spread across the various operating divisions. The IRS has announced that it expects to implement the redesign strategy over a five-year period, starting in 2021. Emily L. Foster, IRS Picking ‘Low-Hanging Fruit’ for Initial Restructuring, 170 TAX NOTES FED. 2093 (2021). Before the reform plan was released, a former IRS Commissioner warned against a significant IRS reorganization, which he believed would negatively affect enforcement. Allyson Versprille, Tax Veterans Caution Mnuchin Against Major IRS Reorganization, DAILY TAX REP. (BLOOMBERG LAW), July 23, 2019. A former Justice Department tax litigator and long-time practitioner views the report with some skepticism: 4 Copyright © 2021 Carolina Academic Press, LLC.
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