Wednesday, February 9, 2022
I haven’t done a “potpourri” topic for a couple of months, so it is time for one. There are always interesting developments happening in the courts and with the IRS. Today’s edition of the “potpourri” is no different.
Recent miscellaneous developments in the courts and with the IRS – it’s the topic of today’s post.
No WOTC For “Weed” Business
C.C.A. 202205024 (Nov. 30, 2021)
The taxpayer is a business that is engaged in the trade or business of trafficking marijuana. Under federal law, marijuana is a Schedule I controlled substance under the Controlled Substances Act. The taxpayer hires and pays wages to employees from one or more targeted groups provided under I.R.C. §51, and is otherwise eligible for the Work Opportunity Tax Credit (WOTC). The IRS noted that I.R.C. §280E bars a deduction or credit for a business that traffics in controlled substances as defined by state or federal law. Thus, the taxpayer was not eligible for any WOTC attributable to wages paid or incurred in carrying on a business of trafficking in marijuana.
Note: The IRS position is correct, based on the statute. But, the discrepancy between federal law and the law of some states creates confusion and inconsistency.
IRS Email Approval of Supervisor Penalty Approval
C.C.A. 202204008 (Sept. 13, 2021)
Under I.R.C. §6751(b)(1), when an IRS agent makes an initial determination to assess penalties against a taxpayer, the agent must obtain “written supervisory approval” before informing the taxpayer of the penalties via a “30-day” letter. Here, the IRS agent received written supervisory approval of the penalty recommendation via an email from his supervisor before issuing the 30-day letter to the taxpayer. The taxpayer sought to have the IRS remove the tax lien securing penalties imposed for his failure to furnish information on reportable transactions on the basis that IRS had failed to comply with I.R.C. §6751. The taxpayer claimed that such failure made the penalties invalid and required the lien to be released. The IRS Chief Counsel’s Office disagreed, finding that the IRS had complied with I.R.C. §6751. The Chief Counsel’s Office noted that the U.S. Tax Court has held that compliance with the supervisory approval requirement doesn’t require written supervisory approval to be given on a specific form and that an email satisfied the statute, if not the Internal Revenue Manual.
Low Soil Quality Doesn’t Reduce Assessment Value
Reichert v. Scotts Buff County Board of Equalization, No. 20A 0061, (Neb. Tax Equal. And Rev. Com. Jan. 31, 2022)
The petitioner owned low soil quality farmland in western Nebraska and challenged the assessed value of the land of $312,376 for 2020 as determined by the county assessor. The value had been set at $289,186 for 2020. The petitioner sought a value of $269,595 for 2020 in accordance with the land’s lower 2019 classification. The County Board of Equalization (CBOE) determined the taxable value of the property was $289,186 for tax year 2020. The petitioner’s primary issue with the county’s valuation was that the county had upgraded the soil quality of the land from 2019 to 2020 to justify the higher valuation. The petitioner provided a Custom Soil Resource Report conducted by the Natural Resources Conservation Service (NRCS) showing that the soil had a farmland classification of “not prime farmland” and should be put back to its prior classification at the lower valuation. The CBOE determined that the value should be $289,186 for 2020. The petitioner appealed.
On review, the Nebraska Tax Equalization and Review Commission (Commission) affirmed the CBOE’s valuation. The Commission noted that the CBOE’s valuation was based on state assessment standards that became law in 2019 as a result of LB 372 that amended Neb. Rev. Stat. §77-1363. Under the revised law, the Land Capability Group (LCG) classifications must be based on land-use specific productivity data from the NRCS. The Nebraska Dept. of Revenue Property Assessment Division used the NRCS data to develop a new LCG structure to comply with the statutory change. Each county received the updated LCG changes and applied them to the land inventory in the 2020 assessment year. The Commission noted that the petitioner’s NRCS report did not show the classification that each soil type should receive under the LCG system and, thus, did not rebut the reclassifications of the soil types for his farmland under an arbitrary or unreasonable standard.
Note: The case points out that the burden is in the taxpayer to establish that the assessed value is incorrect. To rebut the presumption, the evidence provided must be specific as to soil type. The Nebraska farmland tax valuation system is a frustration for many farmers and ranchers despite the change in the system made with the 2019 legislation.
ESOP Didn’t Shield Taxpayer From Income
Larson v. Comr., T.C. Memo. 2022-3
The petitioner, a CPA and an attorney, was also the fiduciary of an Employee Stock Ownership Plan (ESOP). He placed restricted S corporate stock in the ESOP for his own benefit. The petitioner claimed that the ESOP met the requirements of I.R.C. §401(a) such that the related trust was exempt from income tax under I.R.C. §501(a). The IRS claimed that the stock value was to be included in his income because he (and the other control person) failed to enforce employment performance restrictions, and “grotesquely” failed to perform fiduciary duties associated with the ESOP. The petitioner testified that he was not aware of his duties as a fiduciary, but the court didn’t believe the testimony. The court noted that the petitioner waived the stock restrictions and breached his fiduciary duties which revealed an effort to avoid enforcement of the restrictions. As such, there was no way he could lose control over the S corporation. As a result, there was no substantial risk of forfeiture associated with the stock, and the value of the stock was properly included in the petitioner’s income in accordance with Treas. Reg. §1.83-3(a)-(b). The court also upheld the denial of deductions for claimed business expenses incurred and paid by the S corporation.
New ESA Policy for ESA Consultations
EPA Announcement, January 11, 2022. Effective upon announcement
The Environmental Protection Agency (EPA) has announced a change in policy regarding Endangered Species Act (ESA) consultations (to determine the impact on endangered or threatened species in light of critical habitat) for newly registered pesticide active ingredients being registered under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) for the first time. Pesticides already registered under FIFRA or that have active ingredients already registered by EPA may not be subject to the same policy, but may still require ESA consultation but not under the ESA’s new policy. The EPA will determine whether formal or informal consultation is necessary on a case-by-case basis.
Court Says Animal Chiropractic is Veterinary Medicine
McElwee v. Bureau of Professional and Occupational Affairs, No. 1274 C.D. 2020, 2022 Pa. Commw. LEXIS 9 (Pa. Commw. Ct. Jan. 18, 2022)
The plaintiff is a licensed chiropractor that holds herself out to the public as an “animal chiropractor.” She treats animals in her practice. She is not a veterinarian and does not hold herself out as a veterinarian. She is certified in veterinary chiropractic by the International Veterinary Chiropractic Association. She receives medical records or x-rays when necessary from a treating veterinarian and reviews them to find infusions of the spine, breaks or fracturs of the spine, misalignments of the spine or any disk space between the vertebrae. She then makes a treatment and care plan for the animal with or without the veterinarian’s input. She also practices on animals of veterinarians, and requires animal owners to complete a consultation form granting authorization for her to provide chiropractic care to the animal’s owner. All animals in her care must have a veterinarian before she will work with the animals.
The defendant filed an order to show cause alleging that the plaintiff was subject to disciplinary action under state law because the services she performed in her practice constituted the unlicensed practice of veterinary medicine. The plaintiff sought a hearing on the matter and the hearing examiner issued a proposed adjudication and order concluding that the plaintiff was engaged in the unlicensed practice of veterinary medicine. The State Board of Veterinary Medicine issued a final adjudication finding the plaintiff, and the plaintiff appealed. The court rejected the plaintiff’s claim that animal chiropractic was unregulated not subject to the Board’s authority. The court held that even though animal chiropractic was not specifically regulated under the Veterinary Medicine Practice Act, it was regulated by the Board.
Note: Occupational licensure is highly questionable. In this case, there was no allegation that the plaintiff was not performing as an animal chiropractor in any manner other than with professional competence.