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IRS Announces Abatements of Frivolous Filing Penalty

From the IRS

Taxpayers who have filed all required tax returns and paid all outstanding tax liabilities, including penalties (except for the Sec. 6702 penalty) and related interest, may qualify for a one-time reduction to $500 of any unpaid penalties that the IRS has assessed (Rev. Proc. 2012-43).

Under Sec. 6702, a $5,000 penalty is imposed for filing a frivolous tax return or for making a specified frivolous submission to the IRS, which includes a frivolous request for a collection due process hearing, an offer-in-compromise, an installment agreement, or a taxpayer assistance order. The IRS has the discretion to reduce this penalty under Sec. 6702(d).

To promote compliance with the Code, the IRS has determined that taxpayers who abandon any frivolous positions and meet these other requirements in the revenue procedure will qualify for relief, effective Nov. 5, 2012:

    The request must be made on Form 14402, IRC 6702(d) Frivolous Tax Submissions Penalty Reduction, which must be signed under penalties of perjury.
    Taxpayers must pay at least $250 of the reduced penalty with the form, except for taxpayers who have installment agreements.
    Taxpayers who are currently paying a full payment installment agreement can pay the reduced penalty as part of the agreement.
    Taxpayers must file the request before the IRS files suit to collect the full penalty or to reduce any assessment of the penalty to judgment.
    Taxpayers must be in full compliance by having filed any tax returns for any type of tax for all tax periods for six years before the request, including individual returns and returns for any entity for which the taxpayer has a controlling interest.
    Taxpayers must have either paid in full all tax liabilities, penalties, interest, and additions to tax (other than the Sec. 6702 penalty) for all types of tax and all periods for which the statute of limitation remains open or have entered into and be in compliance with a full payment installment agreement.
    Taxpayers who are employers must have made all required deposits of employment taxes for the current and prior two quarters.

The IRS will not grant penalty relief to a taxpayer (1) who previously had Sec. 6702 penalty reductions; (2) who has an offer-in-compromise pending or is currently participating in a partial payment installment agreement; (3) who has entered into a closing agreement that includes the penalty; (4) who submits a frivolous return or submission after applying for penalty relief; or (5) who is currently in bankruptcy, whether or not the taxpayer is seeking to have the penalty discharged in the bankruptcy proceedings.

The penalty relief does not apply to any Sec. 6702 penalty that has already been paid. The IRS must give taxpayers written notice whether their request has been accepted. If the IRS denies a request, it will not be subject to administrative appeal.


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Simplified home-office deduction safe harbor announced

By Sally P. Schreiber, J.D.
January 15, 2013

On Tuesday, the IRS released Rev. Proc. 2013-13, which gives taxpayers an optional safe-harbor method to calculate the amount of the deduction for expenses for business use of a residence during the tax year under Sec. 280A, beginning with the current tax year.

Individual taxpayers who elect this method can deduct an amount determined by multiplying the allowable square footage by $5. The allowable square footage is the portion of the house used in a qualified business use, but not to exceed 300 square feet. The maximum a taxpayer can deduct annually under the safe harbor is $1,500. The IRS may update the $5 allowance from time to time.

Electing the safe-harbor is done on a timely filed original tax return (instead of on Form 8829, Expenses for Business Use of Your Home, which is used for the actual expense method), and taxpayers are allowed to change their treatment from year-to-year. However, the election made for any tax year is irrevocable.

No depreciation is allowed for the years in which the safe harbor is elected, but it is permitted in the years in which the actual expense method is used. The revenue procedure has detailed examples of how depreciation is calculated in a year subsequent to a year the safe-harbor method is used.

To use the sale-harbor method, taxpayers must continue to satisfy all the other requirements for a home-office deduction, including the requirement that the space in the residence used as an office be used exclusively for that purpose and the limitation that an employee qualifies for the home-office deduction only if the office is for the convenience of the taxpayer’s employer.

The deduction under the safe-harbor method cannot exceed the amount of gross income derived from the qualified business use of the home minus business deductions, and a taxpayer cannot carry over any excess to another tax year. If a taxpayer uses the actual expense method for calculating the deduction and has had his or her deduction limited by the gross income limitation in that year, the taxpayer can deduct this amount in the next year he or she uses the actual expense method, but cannot use the disallowed amount in a year he or she elects the safe harbor. This limit on carryovers for the safe-harbor method means taxpayers must be careful before electing it to be sure they will not lose any of their deduction.

Taxpayers sharing a home (for example, roommates or spouses, regardless of filing status), if otherwise eligible, may each use the safe harbor method provided by the revenue procedure, but not for qualified business use of the same portion of the home. The revenue procedure contains detailed rules for use of the home for part of the year. It allows taxpayers who have a qualified business use of more than one home for a tax year to use the safe harbor for only one home, but it permits them to use the actual expense method for the other homes.  

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What the New Tax Law Means for You: A look at the provisions of the new law and the fiscal challenges ahead

Will the American Taxpayer Relief Act of 2012, signed by the president on January 2, raise your taxes? That’s the $600 billion question, and the answer depends on your specific financial circumstances. The nation’s top earners will owe significantly more than they did under the previous tax law. And most people, regardless of income, will find themselves paying a bit more in 2013.
But considering the massive tax hikes that would have gone into effect if Congress hadn’t acted, the law is worth noting for what it doesn’t do: It doesn’t touch broad elements of the Bush-era tax cuts of 2001 and 2003. And unlike the temporary extension of those cuts two years ago, this time the rules are permanent. There are no more “automatic” tax hikes looming. However you may view its specific provisions, the new law adds a sense of stability to the tax structure.
That said, few experts see this law as the ultimate fix for the nation’s deficit problem. It leaves unanswered many questions about the combination of further tax increases and spending cuts that may be necessary if the nation is to reduce its long-term debt.
Here’s a look at the major provisions of the new law, some of the key questions Merrill Lynch clients have been asking their advisors, and a summary of the fiscal challenges ahead. The best way to understand the new tax picture may be to consider three main areas of change: income, investments and wealth transfer.

The biggest change in the new tax law is a new, higher income tax rate for individuals whose taxable income is more than $400,000, or for couples filing jointly whose taxable income exceeds $450,000. Those taxpayers will now pay a top rate of 39.6%, up from 35%. Because 2013 also ushers in a new 3.8% Medicare surtax on investment income, along with a 0.9% wage surtax for high earners (both part of the 2010 health care law), many people in the new top income bracket will now see an effective tax rate of nearly 45%.
Some proposals had called for higher rates on taxable incomes above $200,000 for individuals or $250,000 for couples. Taxpayers who fall below the $400,000/$450,000 threshold will see no increase in their income tax rates (but note, taxpayers could still be subject to the Medicare surtax, as described above).
Payroll taxes. This is where most Americans will feel the impact of the new tax law. After a two-year “holiday,” during which Social Security and other FICA taxes were reduced to 4.2%, the FICA payroll tax now will rise to its previous level of 6.2% on the first $113,700 of wages—meaning a smaller paycheck for most workers.
Alternative minimum tax (AMT). The individual AMT—an alternative way to calculate taxes that, in some cases, can steeply increase the amount owed—was put in place decades ago to target a handful of extremely wealthy people. But because it was not indexed for inflation, the AMT expanded to include millions of Americans. The new law puts a permanent “patch” on the AMT, preventing an estimated 27 million taxpayers in 2013 alone from qualifying for it.

The tax rate on long-term capital gains and qualified dividends rises under the new law from 15% to 20% for taxpayers in the new top bracket—that is, individuals with taxable income above $400,000 and couples with taxable income of more than $450,000. For those making less, rates will generally stay at 15%. However, couples whose modified adjusted gross income (MAGI) exceeds $250,000, along with individuals whose MAGI is more than $200,000, may also be subject to the new 3.8% Medicare surtax. In practical terms, this means individuals with MAGI above $200,000 (or $250,000 for couples), but taxable income below $400,000 ($450,000 couples) could be subject to taxes on qualified dividend/long-term capital gains of 18.8%. Individuals over $400,000 ($450,000 couples) could pay 23.8%.

Starting this year, the top estate tax rate climbs from 35% to 40%. But many estates won’t be affected, because the amount that can be exempted from estate or gift taxes remains at $5 million (adjusted annually for inflation) instead of plunging to $1 million—which would have been the qualifying amount if Congress hadn’t acted. For 2013 the exemption will stand at $5.25 million, which means a married couple’s combined exemption amount will equal $10.5 million. Even those paying the higher rate have some relief, as the top rate had been scheduled to rise to 55%.
As with estate taxes, the top tax rate on gift taxes and generation skipping taxes (GST) will go from 35% to 40%. But the combined exemption stays at $5 million, adjusted for inflation, resulting in a $5.25 million exemption amount for 2013. This preserved exemption means you can continue to pass along up to that amount (indexed for inflation) either during your lifetime or at your death without owing federal tax on the amount you transfer. For GST, the law likewise maintains the $5 million exemption and extends several tax-related allocation provisions that had been scheduled to disappear at the end of 2012.
Prior to passage of the new law, some lawmakers had also proposed tightening and restricting some popular wealth transfer strategies, such as dynasty trusts or grantor-retained annuity trusts. These strategies are not affected.
There are several other key provisions in the new tax code. They include:
• Limits on itemized deductions and personal exemptions. The so-called Pease limitations have been reinstated in 2013. Individual taxpayers with taxable incomes above $250,000 ($300,000 for couples) will see their itemized deductions reduced by up to 3% of their total taxable income in excess of those thresholds. The law also phases out personal exemptions for these taxpayers.
• Tax “extenders.” The bill extends through 2013 the rule providing that individuals will not be taxed on forgiven mortgage debt. The deal also reinstates for 2012 and extends through 2013 a number of tax provisions that expired at the end of 2011. These include the ”active financing exception” rule that defers U.S. tax on certain income earned by foreign financial subsidiaries; the CFC “look-through” rule; the New Markets Tax Credit; the provision increasing the amount of employer-provided mass transit benefits that may be provided tax-free; and the IRA charitable contribution rule allowing individuals to make charitable contributions directly from IRAs without paying tax. The tax credit for production of wind energy also is extended for one year, available for projects where construction has commenced by December 31, 2013. The deal also extends 50% bonus depreciation through 2013.
• Tax-free distributions to charities from IRAs. The law extends through the end of 2013 a provision allowing individuals who are age 70½ or older to make tax-free distributions from their IRAs directly to public charities, up to a maximum of $100,000 annually. Among special transition rules contained in the law, taxpayers may count distributions made in January 2013 as made on December 31, 2012. Additionally, taxpayers may count distributions they received from their IRA in December 2012 as charitable distributions, so long as the money is transferred to charity before February 1 of this year.
• Charitable contributions of real estate conservation easements. The law extends through the end of 2013
the special rule for contributions of capital gain real property for conservation. This rule allows the contribution to be taken against 50% of the taxpayer’s adjusted gross income. In addition, the new law extends the special rule for contributions by certain corporate farmers and ranchers.
• Student loan interest deduction. The law permanently suspends the 60-month limitation on the $2,500 above-the-line student loan interest deduction, which would have been reinstated if Congress failed to act. It also permanently expands the modified adjusted gross income range for phaseout of the deduction. The law also repeals a restriction against deducting voluntary interest payments.

The American Taxpayer Relief Act of 2012 averted a potential fiscal crisis, but there’s more to be done in order to assure long-term stability to the U.S. economy. Here are some of the major challenges ahead:

In addition to the provisions we’ve detailed above, here are some of the biggest concerns about the new tax laws that clients have been asking their advisors.

Will surviving spouses still be able to use the “portability provision” to give more to their heirs?
Yes. The portability provision, which lets a surviving spouse take advantage of any leftover portion of a deceased spouse’s estate tax exemption, has been permanently extended under the new law.

What impact does the law have on Social Security and other payroll taxes?
Over the past two years Congress implemented a “payroll tax holiday,” lowering the employee’s share of FICA taxes from 6.2% to 4.2%. Under the new law, the rate goes back up to 6.2%, so most employees will see somewhat smaller paychecks.

Medicare surtax apply to all taxpayers?
The 3.8% Medicare surtax on investment income (interest, dividends, capital gains, etc.) passed as part of the 2010 health care law and takes effect this year. It applies only to individuals whose MAGI is more than $200,000 a year and couples whose MAGI is more than $250,000. When added to the new 39.6% income tax rate for individuals with taxable income of more than $400,000 and couples earning more than $450,000, the surtax means that those highest earners will have an effective marginal tax rate of 43.4% on certain investment income.

Will I still be able to convert from a traditional 401(k) to a Roth 401(k)?
Actually, the new law makes direct conversions easier for employees whose companies allow such transfers by lifting age restrictions and certain other former requirements. Keep in mind that a Roth conversion triggers income taxes on some or all of the amount transferred to the new account. One reason Congress lifted the restrictions was in order to raise revenue.

Will special tax credits for individuals and businesses still be available?
The new law extends more than 50 provisions retroactively for 2012 and ahead through the end of 2013. These include a host of personal credits, such as the child tax credit, the earned income credit and qualified tuition deductions. Business extenders include bonus depreciation, work opportunity tax credits, research credits and others.

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Tax tables, other inflation adjustments, issued for 2013

On Friday, the IRS issued Rev. Proc. 2013-15, which contains
inflation-adjusted items for 2013, as well as the new income tax rate
tables now in effect as a result of the American Taxpayer Relief Act of
2012, P.L. 112-240 (the Act). In October 2012, when the IRS issued its
usual end-of-the-year inflation
adjustment revenue procedure (Rev. Proc. 2012-41), it noted that many of
the items normally included would have to wait until Congress acted.
This release contains many of those items.

Among the inflation-adjusted amounts that have increased are the personal
exemption, which increased from $3,800 in 2012 to $3,900 for 2013, and
the standard deduction, which for married filing jointly status
increased from $11,900 in 2012 to $12,200 in 2013. In addition, the
adoption credit under Sec. 23 is inflation-adjusted from $12,650 in 2012
to $12,970 in 2013.

The revenue procedure also contains the  inflation-adjusted unified credit against the estate tax, which is $5.25  million for 2013.

The AMT exemption amount for 2013 is $80,800
for married taxpayers filing joint returns and $51,900 for single
taxpayers. The American Taxpayer Relief Act set the 2012 exemption
amounts at $78,750 for married taxpayers filing jointly and $50,600 for
single filers and indexed the numbers for inflation, so Congress will no
longer have to pass annual AMT “patches.”

The revenue  procedure provides the beginning income levels for the limitation on
certain itemized deductions and the beginning income levels for the
phaseout of personal exemptions, which were reinstated by the Act. It
also includes the 2013 amounts for the child tax credit; the Hope
scholarship, American opportunity, and lifetime learning credits; the
earned income credit; and the phaseout limits for interest paid on
qualified education loans.

One curious item in the  revenue procedure is the inclusion of the amount for the qualified
transportation fringe benefit for 2012. The Act retroactively reinstated
parity between the benefits for parking and for transportation in a
commuter highway vehicle or a transit pass for 2012 at $240 a month,
which the IRS notes in the revenue procedure. However, as a practical
matter, taxpayers have received their benefits for 2012, and it is
unclear what the mechanism would be to refund the tax paid on amounts
that would have been excluded from income under the higher $240 a month