Ed Zollars' Tax Update Podcast

Another taxpayer found out well after filing his return with less than stellar results from his trading activities that there had been an option to file an election under §475(f) to use mark to market accounting which also converts the transactions from short term capital gain/loss to ordinary gain/loss.  Since the taxpayer had over $90,000 in net losses.The materials can be downloaded at http://www.edzollars.com/2008-09-29_LateElection.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

This is a "travel" podcast of sorts this week--the materials were prepared on a Southwest Airlines 737 flying from Phoenix to Baltimore, and recorded in the Hotel Roanoke in Roanoke, Virginia.  This week's topic doesn't deal with any of that--rather it deals with the issue of a CPA that got "creative" in planning with himself and his clients, and in his case he finds the Tax Court isn't amused.  The case is Baisden v. Commissioner, TC Memo 2008-215 where a CPA attempted to get around the self-employment tax by paying "royalties" from his sole proprietorship to himself.  The case doesn't deal with that issue (he had conceded that matter by then) but rather deals with whether he was subject to the fraud penalty.The materials are available for download at http://www.edzollars.com/2008-09-22_Fraud.pdf .The podcast is sponsored by Leimberg Information Services at http://www.leimbergservices.com .

We look this week at a difference in application of IRC §162(k) between the Ninth Circuit Court of Appeals and the United States Tax Court given the Tax Court's decision in Ralston Purina v. Commissioner, 131 TC No. 4 that dealt with the taxpayer's attempt to claim a deduction for dividends paid to participants in its ESOP when it had to redeem certain stock from the ESOP to pay out terminated participants in that plan.The materials can be downloaded from http://www.edzollars.com/2008-09-15_ESOP.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

The Ninth Circuit Court of Appeals this week affirmed the Tax Court's decision in the case of Johanson and Melzig v. Commissioner, TC Memo 2006-105 involving alimony.  In its original decision, the Tax Court expressed exasperation at having to yet again decide an issue the parties could have resolved in the decree itself-whether the payments would cease on the death of the recipient spouse as required by §71(b) for the payments to be treated as alimony.  Yet again, the recipient claimed the payments would not and the payor claimed they would, and the Tax Court had to then divine how a California state court would have ruled under California law.The materials can be found at http://www.edzollars.com/2008-09-08_Alimony.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

Accounting issues we often run into involve the differences between tax and GAAP treatment of items, and this week we look at one such case involving the time for recognizing an expense.  In this case, the matter involved rebates and we look at a Chief Counsel Memorandum (ILM 200834019) outlining the IRS's view on why the taxpayer in this case could not recognize the expense related to rebates at the time a sale was made.  Materials for this week's podcast can be downloaded at http://www.edzollars.com/2008-09-01_Rebates.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

We review the requirements found in the regulations for obtaining the required support for a tax position, concentrating on the methods outlined in Reg. §1.6662-4(d) in the definition of "substantial authority" which are cross referenced multiple times when considering other levels of authority.The materials can be downloaded from http://www.edzollars.com/2008-08-25_Penalty.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

This week we look at the Recent United States Court of Federal Claims decision in Fisher, Trustee v. United States, 2008 TNT 154-7 where the court sided with the taxpayer and held that the proper treatment of amounts received in lieu of shares in the demutualization of Sun Life were to be treated under the open transaction doctrine rather than treated as a sale of shares with a zero basis.The materials can be found at http://www.edzollars.com/2008-08-18_OpenTrans.pdf .The podcast is sponsored by Leimberg Information Services, on the web at http://www.leimbergservices.com .

The IRS issued new proposed regulations to explain the reduction of the NOL substitute in an S corporation setting when cancellation of debt is excluded from the S corporation's income under Section 108.  While the regulations are in proposed form only, the "deemed NOL" rules have existed in the IRC since 2002, and Section 108 is likely to be an issue for S corporations who face economic challenges.The materials for this podcast can be found at http://www.edzollars.com/2008-08-04_108andS.pdf .The podcast is sponsored by Leimberg Information Services, located at http://www.leimbergservices.com .

This podcast is the sequel to a November 2006 podcast on the same case--that of Kadillak v. Commissioner where an individual who was caught by the "dot bomb" crash of the technology stock of his former employer attempted to mitigate the damage caused by his ISO exercise and 83(b) election made at the height of the craze.  A year later, Mr. Kadillak was no longer employed by the organization, the stock price had tanked, and when he sold the stock that he didn't have to surrender got stuck with a $3,000 per year AMT capital loss deduction (probably for lifetime) to "offset" a large prior year AMT liability.This week the Ninth Circuit ruled on the case and, unfortunately for Mr. Kadillak, agreed with the Tax Court's decision.  We look at the Section 83(b) election, it's downside risk that Mr. Kadillak obtained "up close and personal" experience with and some general observations on counseling clients about the "what if" problem when they are sure they know what the future will hold.The materials are available at

In a special podcast, we look at the just passed American Home Rescue and Foreclosure Prevention Act of 2008, taking a detailed look at a few tax provisions in that bill of interest.  We look at the new, refundable first time homeowners credit, the property tax deduction for nonitemizers and the soon to start restrictions on the ability to get a full Section 121 exclusion if a property has not always been used as a principal residence that will apply to usage after January 1, 2009.Note that this presentation is based on a brief review of the provisions that I've just completed based on what I believe to be the version of the bill that passed--but be sure to confirm these details, as well as watch for the required IRS guidance on a number of these matters.The materials are available for download at http://www.edzollars.com/2008-07-28_Housing.pdf .The podcast is sponsored by Leimberg Information Servicees, located on the web at http://www.leimbergservices.com .

In the past year we've talked a lot about the preparer standards and tax return positions.  This week, in the case of Wadsworth v. Commissioner, TC Memo 2008-171, we see a real world situation where a tax professional decided a position was not one that he could accept and what happened when the client decided to find another person who would take the requested position.  As you might expect, the taxpayers don't fare well in the eyes of the court when they attempt to claim reliance on the advice of the professional that did sign off on the position.The materials for this week are available at http://www.edzollars.com/2008-07-28_Preparer_Shop.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

I gave a presentation at the offices of the Arizona Society of CPAs on the use of virtual machines to deal with the transition from Windows XP to Vista in a tax practice.  This podcast is based on that presentation, and it will be fairly useful to actually have the materials in front of you as you listen to this one.  The materials are at http://www.edzollars.com/Virtual_Machine.pdf.The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com.

The IRS issued new temporary regulations that deal with start-up and corporate and partnership organization costs.  Interestingly enough, the new regulations now create an automatic election to expense/amortize all such costs, and treat problems related to the identification of costs or the proper year to begin amortization as accounting method issues.The materials are located online at http://www.edzollars.com/2008-07-14_Section_195.pdf .The podcast is sponsored by Leimberg Information Services, located at http://www.leimbergservices.com .

The IRS this week issued some relatively unsurprising guidance on the treatment of life insurance and an S corporation's accumulated adjustments account, so this week we'll look at the more general issues of the relevance (and lack of relevance) of AAA for an S corporation and its shareholders, and how the item is computed.The materials are available at http://www.edzollars.com/2008-07-07_AAA.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

The IRS has issued new guidance in the form of a series of questions and answers related to Health Savings Account in Notice 2008-59.  This podcast goes over the various items covered in this notice, and some of the planning and design opportunities available under this notice.Written materials for this podcast can be downloaded from http://www.edzollars.com/2008-06-30_HSA_Guidance.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

This is part two of a series of two podcasts on the proposed regulations for preparer penalties released recently.  .The materials are at http://edzollars.com/2008-06-23_Penalty.pdf .The podcast is sponsored by Leimberg Information Services, on the web at http://www.leimbergservices.com .

This is the first of what will be a series of two podcasts on the proposed regulations for preparer penalties released here recently.  Considering the length of the regulations and podcast, the first hour is in this file to listen to and digest, with part two to be posted later in the week.The materials are at http://edzollars.com/2008-06-23_Penalty.pdf .The podcast is sponsored by Leimberg Information Services, on the web at http://www.leimbergservices.com .

Securing our client's data is the responsibility of all of those in tax practice. This past week I gave a presentation at the Arizona Society of CPA's Financial Planning Conference on this matter, and that presentation serves as the basis for this week's podcast.The slides used for this presentation are available at http://www.edzollars.com/2008-06-16_Knocking.pdf .The podcast is sponsored by Leimberg Information Services, located at http://www.leimbergservices.com .

This week we look at the step transaction doctrine and where the line is drawn when we deal with the application of the step transaction doctrine in the formation of a family limited partnership.  The IRS attempted to use their victory in the Senda case to get the same result in the case we'll look at this week, Holman v. Commissioner, 130 TC No. 12.  But in an opinion that reminds of the importance of the facts of the specific case in question, the Tax Court refused to take that step. Materials for this week's podcast can be downloaded from http://edzollars.com/2008_06_09_Holman.pdf .The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com .

This week we look at a Court of Claims case that deals with an IRS examination and the imposition of the fraud penalty--a penalty the Court of Claims found was not justified.  The case is the one of Gagliardi v. United States, 2008 TNT 98-20, and is instructive both in the outline of the law, as well as allowing us to consider the ways an examination like this could spin out of control and result in a taxpayer being assessed the fraud penalty in a case like this.The materials can be downloaded from http://www.edzollars.com/2008-06-02_FraudandtheDentist.pdf.The podcast is being uploaded a bit early this week since I'll be traveling Saturday to New Orleans for the AICPA's Spring Tax Division meeting held there Monday and Tuesday.  The podcast is sponsored by Leimberg Information Services, located on the web at http://www.leimbergservices.com.