The Internal Revenue Service on Friday released the final version of the much-anticipated Schedule UTP (and accompanying instructions) as well as additional guidance about changes that had been made the schedule. At the same time, the IRS also announced an expansion of the Compliance Assurance Program (CAP) as well as some other minor matters. In the face of much criticism of the draft Schedule UTP and instructions, the IRS made a numbers of significant adjustments; however, several issues remain unresolved.
Posted tagged ‘workpapers’
Judging by the feedback we receive from our readers, the topic of workpapers and work product continues to be an area of major concern for many tax practitioners. For those who are interested in learning more about the topic, particularly in light of the D.C. Circuit’s recent decision in United States v. Deloitte LLP, I will be speaking on a webinar panel, U.S. v. Deloitte: Expansion of Work Product Doctrine in Tax Controversies, next Tuesday at 1pm (EDT). For prior TaxBlawg discussion of the Deloitte opinion, see here.
Together with Edward Froelich of Morrison & Foerster and Kevin Spencer of McDermott, Will & Emery, I will be discussing the implications of Deloitte for protecting tax documents, particularly in the context of responding to IRS summons and complying with the proposed Schedule UTP. It should be an interesting presentation, with a discussion of practical tips for navigating this constantly changing area.
By Phil Karter
In Tuesday’s confirmation hearings for Supreme Court nominee Elena Kagan, one topic on which there appeared to be agreement between the nominee and the panel was concern about the dwindling number of cases heard by the High Court. In response to questioning from Senator Arlen Specter, Kagan had no explanation for the precipitous decline in the Court’s docket over the last 20 years, but agreed that it has led to an increase in unresolved conflicts among the circuit courts on “vital national issues.”
Quite naturally, those of us in the tax field like to think of our livelihoods as involving “vital national issues,” so perhaps we take it a little personally when the Supreme Court appears to hold a different perspective. The Court certainly surprised many tax professionals in May by declining to hear the Textron case, which presented one of the most prominent “hot-button” tax issues to come along in years. What perfect irony (and timing) it was then on the heels of Kagan’s congressional testimony for the issuance of a decision by the D.C. Circuit the same day in United States v. Deloitte LLP et al., No. 09-5171, that once again accentuated the differing views of the circuit courts on an issue of considerable importance to tax professionals. (more…)
Just when the Department of Justice must have thought that it could do no wrong in pursuing the workpapers of taxpayers and their auditors, it ran smack into the formidable blockade that is the Court of Appeals for the District of Columbia Circuit. In United States v. Deloitte LLP et al., No. 09-5171 (D.C. Cir. Jun. 29, 2010), the D.C. Circuit seems to have fired a shot across the bow of both the Department of Justice and the IRS’s brand-new Schedule UTP. (You can find the opinion here.)
President Obama’s health-care legislation is becoming more of a tax issue on a daily basis. In addition to the codification of economic substance (discussed here; see also yesterday’s TNT story featuring our own Phil Karter) contained in the reconciliation bill, the consequences of the legislation seem to be increasingly a matter of tax, rather than health-care, policy.
Of particular relevance here is the brewing confrontation between Reps. Waxman and Stupak and the companies who have announced substantial hits to their financial statements as a result of provisions in the health-care legislation. In response to these announcements, Reps. Waxman and Stupak have requested that companies provide documentation verifying their assessment of the impact of the legislation and have indicated an intention to hold a hearing to examine the impact of the new law on these companies. (Presumably, the documentation provided by the companies will be a central basis for whatever questions are directed at the executives who appear at these hearings.)
Without taking a position about the politics of the matter, the dynamics of the request (and any responses to it) may implicate sensitive areas of tax policy and procedure. At this point, Reps. Waxman and Stupak have merely requested that the corporate taxpayers provide information about the impact of the health-care legislation. Suppose, though, that one or more companies decline to produce the requested information. The perceived costs and benefits of the health-care legislation are likely to be key issues in the upcoming Congressional races this fall. If the request is declined, and Congressional Democrats fear that their signature achievement is being negatively perceived, would subpoenas to the taxpayers, demanding that they produce the information, come next?
Assuming that scenario, would taxpayers then be obligated to provide the information being sought? Perhaps more importantly, would Congress be authorized to use that information in a public hearing?