2020 Tax Update - Tax Court strikes down Syndicated Conservation Easement Transaction

In December 2019, the U.S. Tax Court delivered a gift to the IRS and entered its first decision on a syndicated conservation easement transaction. In TOT Property Holdings, LLC v. Commissioner, Docket No. 005600-17, the Tax Court sustained in its entirety the IRS's determination that all tax benefits from a syndicated conservation easement transaction should be denied and that the 40% gross valuation misstatement and negligence penalties applied. The Tax Court found that the transaction failed the legal requirements applicable to donations of land easements and, in imposing the gross valuation misstatement penalty, found that the actual value of the easement donation was less than 10 percent of what was originally reported on the tax return.

"In denying the deductions and upholding the 40% gross valuation misstatement penalty, the Tax Court confirmed that aggressive syndicated easement transactions simply will not survive scrutiny," said IRS Commissioner Chuck Rettig. "We will not stop in our coordinated pursuit of these abusive transactions while seeking the imposition of all available civil penalties and, when appropriate, various criminal options for those involved."

"If you engaged in any questionable syndicated conservation easement transaction, you should immediately consult an independent, competent tax advisor to consider your best available options," Rettig added.

Tax Court trials in four other syndicated easement cases were conducted earlier this year and more than 50 cases are pending. In other recent cases, the Tax Court has rejected arguments that various regulations taxpayers failed to comply with are invalid, essentially negating one of these taxpayers' main defenses.

Anyone considering a conservation easement donation or already involved in one should have the transaction reviewed by an independent tax attorney with experience in this area of law.  Contact Joseph P. Wilson at 949-397-2292 or wilson@wilsontaxlaw.com.  Mr. Wilson represents clients throughout California and the Globe, involving local, state, federal and international civil tax disputes and tax litigation and criminal tax defense. Mr. Wilson is the Managing Shareholder at Wilson Tax Law Group, APLC, former Member of the Executive Committee of the Taxation Section, California Lawyers’ Association, a former IRS Attorney, a former Assistant United States Attorney, and a former Tax Attorney, California Franchise Tax Board.

Wilson Tax Law Group, APLC is an Orange County law firm specializing in Federal and State tax audits, internal compliance, FBAR, offshore bank account disclosures, and criminal tax, including appeals, trials, and collections. The Los Angeles and San Francisco Daily Journals have named Wilson Tax Law Group, APLC as one of the “Top 20 Boutique Firms in California”.

Newport Beach Main Office
1401 Dove Street Suite 630
Newport Beach, CA 92660
949.397.2292

Yorba Linda Branch Office
18281 Lemon Drive
Yorba Linda, CA 92886
714.463.4430

https://wilsontaxlaw.com

Press Relations
Wilson Tax Law Group, APLC
Newport Beach, California
949-397-2292

Tax Litigation: Tax Court Denies Conservation Easement Deduction

For landowners, donating a conservation easement is a way to protect places they love. It’s also a major financial decision.  Done right the tax incentives may offset some of that loss in property value, making conservation a viable option for more landowners.  However, done wrong, the IRS may reign down on the transaction to deny the deduction as an abusive tax transaction.

In a recent case, the United States Tax Court ruled a limited liability company (LLC) was not entitled to charitable contribution deduction because the conservation purpose of the easement was not "protected in perpetuity" as required by Code Sec. 170(h)(5)(A). The taxpayer had donated a conservation easement to a qualified charitable organization. The easement deed provided that, if the property were sold following judicial extinguishment of the easement, the donee organization would receive a share of the proceeds, "after the satisfaction of prior claims," determined by a formula.

The easement did not satisfy the requirements of Reg. §1.170A-14(g)(6) because the portion of the proceeds to which the donee was entitled was improperly reduced by amounts paid in satisfaction of prior claims against the taxpayer. Further, the amounts inuring to the taxpayer were attributable to (i) appreciation in the value of improvements existing when the easement was granted; and (ii) the fair market value of any improvements the taxpayer subsequently made to the property, followed.

The taxpayer’s attempted use of a saving clause to reform the deed to comply with the regulation was not valid because the savings clause provided for a future event that altered the tax consequences of a conveyance and was therefore, declined to be enforced by the court. In addition, the taxpayer argued that Reg. §1.170A-14(g)(6) was ambiguous and that the text on which it relied did not constitute an impermissible saving clause but rather set forth a permitted interpretation provision. However, this argument was rejected because the regulation was unambiguous on its face as it plainly required that the charitable grantee be guaranteed to receive its full proportionate share of the sale proceeds, upon a sale following judicial extinguishment of the easement. Therefore, the IRS's motion for partial summary judgment was granted.

While the conservation easement transaction can sometimes be more difficult to attack, highly technically rules exist giving the IRS more ammo to find a reason to disregard and deny the perceived tax benefits.

Anyone considering a conservation easement donation or already involved in one should have the transaction reviewed by an independent tax attorney with experience in this area of law.  Contact Joseph P. Wilson at 949-397-2292 or wilson@wilsontaxlaw.com.  Mr. Wilson represents clients throughout California and the Globe, involving local, state, federal and international civil tax disputes and tax litigation and criminal tax defense. Mr. Wilson is the Managing Shareholder at Wilson Tax Law Group, APLC, former Member of the Executive Committee of the Taxation Section, California Lawyers’ Association, a former IRS Attorney, a former Assistant United States Attorney, and a former Tax Attorney, California Franchise Tax Board.

Wilson Tax Law Group, APLC is an Orange County law firm specializing in Federal and State tax audits, internal compliance, FBAR, offshore bank account disclosures, and criminal tax, including appeals, trials, and collections. The Los Angeles and San Francisco Daily Journals have named Wilson Tax Law Group, APLC as one of the “Top 20 Boutique Firms in California”.

Newport Beach Main Office
1401 Dove Street Suite 630
Newport Beach, CA 92660
949.397.2292

Yorba Linda Branch Office
18281 Lemon Drive
Yorba Linda, CA 92886
714.463.4430

https://wilsontaxlaw.com

Press Relations
Wilson Tax Law Group, APLC
Newport Beach, California
949-397-2292

Tax Flash : Summary of 2019 Property Tax Changes

This is a summary of 2019 legislation affecting property taxes issued by the BOE on December 4, 2019. All bills become effective January 1, 2020, unless otherwise specified.

AB 46 (Carillo), Chapter 9

Among others, amends section 253 of the Revenue and Taxation Code.

Veterans' Exemption. Replaces mental illness terms with more culturally sensitive terms and replaces gender references with gender neutral references.

AB 587 (Friedman), Chapter 657

Adds section 65852.26 of the Government Code.

Sale of Accessory Dwelling Unit. Allows an accessory dwelling unit to be sold or conveyed separately from the primary residence to a qualified buyer if all of the following are met:

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  The property was built or developed by a qualified nonprofit corporation receiving the welfare exemption;

  
  


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  A recorded contract exists that imposes an enforceable restriction upon the sale that ensures the property will be preserved for affordable housing for 45 years for owner-occupied housing;

  
  


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  The property is held pursuant to a recorded tenancy in common agreement; and

  
  


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  A grant deed is recorded, and a Preliminary Change of Ownership Report filed with the the grant deed.

  
  

AB 608 (Petrie-Norris), Chapter 92, effective July 12, 2019

Amends section 155.20 of the Revenue and Taxation Code.

Low Value Exemption. For a five-year period beginning with the January 1, 2020 lien date, the $50,000 limit that a county board of supervisors may exempt from property tax under a “low value” ordinance applies to any possessory interest. In addition, once a low value ordinance is enacted or amended, the assessor may choose how to administer the low value exemption, without specific authorization from the county board of supervisors. [1]

AB 872 (Aguiar-Curry), Chapter 685, effective October 9, 2019

Amends section 62 of the Revenue and Taxation Code.

Change in Ownership Exclusion for Transfer of Corporation Stock. Provides a change in ownership exclusion for a transfer of stock from a parent to a child in a qualified corporation that owns qualified real property, provided that the transfer is due to the death of the parent. A “qualified corporation” is a corporation that was created between March 1, 1975 and November 6, 1986, and has had parents and their children as the only stockholders. “Qualified property” is a parcel of land that contains the principal residence of the parents prior to their death and that has been the continuous place of residence of a child of those parents since the creation of the qualified corporation. The qualified property must have an adjusted base year value of $1 million or less.

SB 196 (Beall), Chapter 669

Amends sections 75.11, 402.1, and 532 of, and adds and repeals section 214.18 of, the Revenue and Taxation Code.

Community Land Trust – Land Use Restriction. Creates a rebuttable presumption, retroactive to September 27, 2016, that the sales price of a dwelling or unit includes the leased land on which the dwelling or unit is located.

Community Land Trust – Welfare Exemption. Until January 1, 2025, extends the welfare exemption to property owned by a community land trust intended to be developed into homes to be sold to low- or moderate-income households with a 99-year land lease or rental housing available to low-income households. Recaptures the property taxes if the community land trust does not commence housing construction on the property within five years.

SB 527 (Caballero), Chapter 273

Amends sections 51201 and 51231 of the Government Code.

Williamson Act Compatible Use. Provides that an agricultural commodity includes cultivated industrial hemp. Allows a local agency's rule on the administration of agricultural preserves to provide that commercial cultivation of cannabis may constitute an agricultural or compatible use.

SB 780 (Governance and Finance Committee), Chapter 329

Among others, amends section 72 of the Revenue and Taxation Code.

Building Permits. Expands the existing requirement to send the county assessor copies of all building permits to any entity authorized to issue a building permit.

SB 791 (Governance and Finance Committee), Chapter 333, effective September 20, 2019

Amends section 441 of, amends and adds section 1152 of, adds sections 1153.5 and 1157 to, and repeals section 1153 of, the Revenue and Taxation Code.

Valuation of Certificated Aircraft. Changes the method to calculate California's share of total aircraft value owned by commercial air carriers for property tax purposes and re-establishes streamlined administrative procedures for counties and air carriers.

VETOED BILLS

AB 885 Governor did not approve adding a definition of “substantially equivalent” for new construction exclusion of property damaged or destroyed by misfortune or calamity.

SB 294 Governor did not approve an increase in welfare exemption cap for lower income households.

These bills may be viewed from the California State Legislature's website at http://leginfo.legislature.ca.gov/#. The Board of Equalization's bill analyses may be viewed from our website at http://www.boe.ca.gov/app/proptax-leg-analyses.aspx?year=2019-2020.

If you have any questions regarding the application of these measures, please contact the Wilson Tax Law Group at 949-397-2292.

IRS Criminal Investigation releases Fiscal Year 2019 Annual Report; celebrates 100 years

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IR- 2019-199

Internal Revenue Service: Criminal Investigations Division (CID): 2019 annual report

IR-2019-199

WASHINGTON — The Internal Revenue Service today released the Criminal Investigation Division's (CI) annual report , highlighting significant successes and criminal enforcement actions taken in fiscal year 2019. The report also commemorates CI's 100th year anniversary as a law enforcement agency.

“CI is critical to the overall enforcement efforts of the IRS in pursuing its Mission in a fair, impartial, diligent and, where appropriate, tenacious manner.” said IRS Commissioner Chuck Rettig. “The Fiscal Year 2019 Annual Report summarizes various CI activities throughout the year but vastly understates the importance of CI to the overall IRS mission. CI supports the efforts of compliant taxpayers by visibly demonstrating the risks of noncompliance thereby helping otherwise honest taxpayers stay honest and compliant.”

Key focuses of CI in fiscal year 2019 included cybercrimes, with an emphasis on virtual and crypto currencies, traditional tax investigations, international tax enforcement, employment tax, refund fraud and tax-related identity theft. Other areas of emphasis included public corruption, corporate fraud and money laundering.

“We are working smarter using data analytics to augment good old-fashioned police work and find those cases that have the biggest impact on tax administration,” said Don Fort, Chief of CI. “We are leading the world in our ability to trace virtual currency in financial investigations while still working our bread and butter tax enforcement mission areas.”

CI initiated 2,485 cases in fiscal year 2019, applying approximately 75 percent of its time to tax related investigations. The number of CI special agents dropped to 2,009 by the end of fiscal year 2019, which is the lowest level since the early 1970's. Consequently, CI has increased its usage of data analytics and strengthened its international partnerships to assist in finding the most-impactful cases.

CI is the only federal law enforcement agency with jurisdiction over federal tax crimes. CI achieved a conviction rate of 91.2 percent in fiscal year 2019, which is among the highest of all federal law enforcement agencies. The high conviction rate reflects the thoroughness of CI investigations and the high caliber of CI agents. CI is routinely called upon by prosecutors across the country to lead financial investigations on a wide variety of financial crimes.

“While we have published an annual report since 1920 to highlight our successes during the past year, this particular year had special meaning as we celebrated our 100th anniversary as a law enforcement agency,” Fort said. “Honor the Badge, Preserve the Legacy, Master Your Craft, Inspire the Future. These are the guiding principles that IRS Criminal Investigation lives by and that 2019 was defined by.”

The 2019 report is interactive, summarizes a wide variety of CI activity during the year and features examples of cases from each field office on a wide range of financial crimes. The federal fiscal year begins Oct. 1 and ends on Sept. 30.

IRS issues new guidance on tax and reporting rules for virtual currency

Press Release
FOR IMMEDIATE RELEASE

 

Virtual currency: IRS issues additional guidance on tax treatment and reminds taxpayers of reporting obligations

NEWPORT BEACH November 29, 2019 — As part of a wider effort to assist taxpayers and to enforce the tax laws in a rapidly changing area, the Internal Revenue Service today issued two new pieces of guidance for taxpayers who engage in transactions involving virtual currency.

Expanding on guidance from 2014, the IRS is issuing additional detailed guidance to help taxpayers better understand their reporting obligations for specific transactions involving virtual currency. The new guidance includes Revenue Ruling 2019-24 (here) and frequently asked questions (here).

The new revenue ruling addresses common questions by taxpayers and tax practitioners regarding the tax treatment of a cryptocurrency hard fork. In addition, a set of FAQs address virtual currency transactions for those who hold virtual currency as a capital asset.

"The IRS is committed to helping taxpayers understand their tax obligations in this emerging area," said IRS Commissioner Chuck Rettig. "The new guidance will help taxpayers and tax professionals better understand how longstanding tax principles apply in this rapidly changing environment. We want to help taxpayers understand the reporting requirements as well as take steps to ensure fair enforcement of the tax laws for those who don't follow the rules."

The new guidance supplements the guidance the IRS issued on virtual currency in Notice 2014-21 (PDF). The IRS is also soliciting public input on additional guidance in this area.

In Notice 2014-21, the IRS applied general principles of tax law to determine that virtual currency is property for federal tax purposes. The Notice explained, in the form of 16 FAQs, the application of general tax principles to the most common transactions involving virtual currency.

The IRS states it is aware that some taxpayers with virtual currency transactions may have failed to report income and pay the resulting tax or did not report their transactions properly. The IRS is actively addressing potential non-compliance in this area through a variety of efforts, ranging from taxpayer education to audits to criminal investigations.

For example, in July of this year the IRS began mailing educational letters to more than 10,000 taxpayers who may have reported transactions involving virtual currency incorrectly or not at all. Taxpayers who did not report transactions involving virtual currency or who reported them incorrectly may, when appropriate, be liable for tax, penalties and interest. In some cases, taxpayers could be subject to criminal prosecution.

Wilson Tax Law Group, APLC is an Orange County law firm specializing in Federal and State tax audits, internal compliance, FBAR, offshore bank account disclosures, and criminal tax, including appeals, trials, and collections. The Los Angeles and San Francisco Daily Journals have named Wilson Tax Law Group, APLC as one of the “Top 20 Boutique Firms in California”.

Newport Beach Main Office
1401 Dove Street Suite 630
Newport Beach, CA 92660
949.397.2292

Yorba Linda Branch Office
18281 Lemon Drive
Yorba Linda, CA 92886
714.463.4430

https://wilsontaxlaw.com

Press Relations
Wilson Tax Law Group, APLC
Newport Beach, California
949-397-2292

California Attorney, a Prior Tax Offender and Embezzler, Pleads Guilty to Tax Evasion

Press Release
FOR IMMEDIATE RELEASE

California Attorney, a Prior Tax Offender and Embezzler, Pleads Guilty to tax Evasion

NEWPORT BEACH November 23, 2019 -- James Roy McDaniel, 66, who pleaded guilty before United States District Judge S. James Otero to one count of tax evasion, is scheduled to be sentenced on February 3, 2020. At sentencing, McDaniel could receive a statutory maximum sentence of five years imprisonment.  Because this is his second criminal tax offense his chances of receiving a higher sentence are increased.

McDaniel was a licensed California attorney for more than two decades, until he pleaded guilty in late 2004 to one felony count of subscribing to a false income tax return. In 2005, McDaniel was sentenced to three years in federal prison for that crime, and he surrendered his license to practice law in California. In that case, McDaniel’s failure to report income resulted in a tax loss of $677,368 to the federal government, according to court documents. McDaniel’s additional income was the result of his embezzlement of over $1.6 million from two prominent families he represented as an attorney. McDaniel served time in state prison for the embezzlement.

The IRS subsequently assessed McDaniel more than $1.4 million in taxes, interest and penalties for the tax years 1997 through 2001, court papers state. According to the signed plea agreement, McDaniel willfully attempted to evade paying his debt to the IRS by creating two shell companies – Davis Bell Consulting LLC and James Roy Consulting LLC – where he directed payments for tax and estate planning consulting work he performed after being released from prison.

During a scheme that allegedly ran from May 2008 until December 2012, McDaniel attempted to mislead federal tax authorities and conceal his income by directing other people to sign documents identifying themselves as the sole managing members of the shell companies. As part of the scheme, McDaniel directed them to open bank accounts where he deposited checks for his tax and estate planning work.

McDaniel continued to earn income for tax and estate planning consulting work during each of calendar years 2008 to 2018, but willfully failed to report his income, and willfully failed to file tax returns with the IRS for tax years 2011 to 2018.  McDaniel admits that from 2012 through 2017, he received taxable income of at least $527,944, and subsequently owes unpaid taxes of $184,126, in addition to the $1.4 million previously assessed.

Commentator's suggest this may not be your typical tax crimes case.   The typical tax crime offender is a one-time offender and is not charged again after serving his time.  This is because they presumably  learned their lesson and will not commit tax crimes again. However, in this case, McDaniel seriously thumbed his nose at the government following his first conviction by purposefully failing to file tax returns and pay taxes for a period of approximately 8 years.  Moreover, McDaniel's arguably engaged in the illegal practice of law and violated the public trust by preparing estate plans for clients without an active law license. For these reasons, it makes sense why the government would proceed against McDaniel's a second time.

Wilson Tax Law Group, APLC is an Orange County law firm specializing in Federal and State tax audits, internal compliance, FBAR, offshore bank account disclosures, and criminal tax, including appeals, trials, and collections. The Los Angeles and San Francisco Daily Journals have named Wilson Tax Law Group, APLC as one of the “Top 20 Boutique Firms in California”.

Newport Beach Main Office
1401 Dove Street Suite 630
Newport Beach, CA 92660
949.397.2292

Yorba Linda Branch Office
18281 Lemon Drive
Yorba Linda, CA 92886
714.463.4430

https://wilsontaxlaw.com

Fareedeh Wilson
Press Relations
Wilson Tax Law Group, APLC
Newport Beach, California
949-397-2292

California Attorney, a Prior Tax Offender and Embezzler, Pleads Guilty to Tax Evasion

Press Release
FOR IMMEDIATE RELEASE

California Attorney, a Prior Tax Offender and Embezzler, Pleads Guilty to tax Evasion

NEWPORT BEACH November 23, 2019 -- James Roy McDaniel, 66, who pleaded guilty before United States District Judge S. James Otero to one count of tax evasion, is scheduled to be sentenced on February 3, 2020. At sentencing, McDaniel could receive a statutory maximum sentence of five years imprisonment.  Because this is his second criminal tax offense his chances of receiving a higher sentence are increased.

McDaniel was a licensed California attorney for more than two decades, until he pleaded guilty in late 2004 to one felony count of subscribing to a false income tax return. In 2005, McDaniel was sentenced to three years in federal prison for that crime, and he surrendered his license to practice law in California. In that case, McDaniel’s failure to report income resulted in a tax loss of $677,368 to the federal government, according to court documents. McDaniel’s additional income was the result of his embezzlement of over $1.6 million from two prominent families he represented as an attorney. McDaniel served time in state prison for the embezzlement.

The IRS subsequently assessed McDaniel more than $1.4 million in taxes, interest and penalties for the tax years 1997 through 2001, court papers state. According to the signed plea agreement, McDaniel willfully attempted to evade paying his debt to the IRS by creating two shell companies – Davis Bell Consulting LLC and James Roy Consulting LLC – where he directed payments for tax and estate planning consulting work he performed after being released from prison.

During a scheme that allegedly ran from May 2008 until December 2012, McDaniel attempted to mislead federal tax authorities and conceal his income by directing other people to sign documents identifying themselves as the sole managing members of the shell companies. As part of the scheme, McDaniel directed them to open bank accounts where he deposited checks for his tax and estate planning work.

McDaniel continued to earn income for tax and estate planning consulting work during each of calendar years 2008 to 2018, but willfully failed to report his income, and willfully failed to file tax returns with the IRS for tax years 2011 to 2018.  McDaniel admits that from 2012 through 2017, he received taxable income of at least $527,944, and subsequently owes unpaid taxes of $184,126, in addition to the $1.4 million previously assessed.

Commentator's suggest this may not be your typical tax crimes case.   The typical tax crime offender is a one-time offender and is not charged again after serving his time.  This is because they presumably  learned their lesson and will not commit tax crimes again. However, in this case, McDaniel seriously thumbed his nose at the government following his first conviction by purposefully failing to file tax returns and pay taxes for a period of approximately 8 years.  Moreover, McDaniel's arguably engaged in the illegal practice of law and violated the public trust by preparing estate plans for clients without an active law license. For these reasons, it makes sense why the government would proceed against McDaniel's a second time.

Wilson Tax Law Group, APLC is an Orange County law firm specializing in Federal and State tax audits, internal compliance, FBAR, offshore bank account disclosures, and criminal tax, including appeals, trials, and collections. The Los Angeles and San Francisco Daily Journals have named Wilson Tax Law Group, APLC as one of the “Top 20 Boutique Firms in California”.

Newport Beach Main Office
1401 Dove Street Suite 630
Newport Beach, CA 92660
949.397.2292

Yorba Linda Branch Office
18281 Lemon Drive
Yorba Linda, CA 92886
714.463.4430

https://wilsontaxlaw.com

Fareedeh Wilson
Press Relations
Wilson Tax Law Group, APLC
Newport Beach, California
949-397-2292