2013 cch basic principles ch02
DESCRIPTION
TRANSCRIPT
Chapter 2
Tax Research, Practice, and Procedure
©2012 CCH. All Rights Reserved.4025 W. Peterson Ave.Chicago, IL 60646-60851 800 248 3248www.CCHGroup.com
CCH Federal Taxation Basic Principles 2 of 32
Chapter 2 Exhibits
1. Classification of Materials
2. Judicial Authority
3. Five-Step Research Method
4. Research Sources for Legislative Authority
5. Research Sources for Administrative Authority
6. Research Sources for Judicial Authority
7. Commercial Publishers of Comprehensive Services
8. Commercial Publishers of Judicial Decisions
9. Commercial Publishers of Current Developments
Chapter 2, Exhibit Contents A
CCH Federal Taxation Basic Principles 3 of 32
10. Organization of the IRS
11. IRS Communications
12. Examination of Returns
13. Appeals Administrative Process
14. Taxpayer Bill of Rights
15. Choice of Tax Forum
16. Penalties
Chapter 2, Exhibit Contents B
Chapter 2 Exhibits
CCH Federal Taxation Basic Principles 4 of 32
Classification of Materials Primary or “authoritative”
Internal Revenue Code (statutory authority) Treasury Regulations (administrative authority) Internal Revenue Service Rulings (administrative authority) Judicial Authority
Secondary or “reference” Looseleaf tax reference services Periodicals Textbooks Treatises Published papers from tax institutes Symposia Newsletters
Chapter 2, Exhibit 1
CCH Federal Taxation Basic Principles
SOURCES OF INFORMATIONSOURCES OF INFORMATION
INTERNAL REVENUE CODE TREASURY REGULATIONS REVENUE RULINGS AND REVENUE
PROCEDURES PRIVATE LETTER RULINGS JUDICIAL SOURCES OF THE TAX LAW
INTERNAL REVENUE CODE
The code is compiled and published in the United States Code (U.S.C.) under Title 26.
TREASURY REGULATIONS
Section 7805 of the IRC grants authority for the commissioner of the IRS to prescribe rules and regulations for the enforcement of the IRC.
The regulations interpret the Code. They are arranged in the same sequence. Regulations are, however, prefixed by a number which designates the type of tax or administrative, procedural or definitional matter to which they relate.
REVENUE RULINGS AND REVENUE PROCEDURES
Revenue Rulings provide interpretation of the tax law. They do not, however, have the same legal weight as do the regulations and usually deal with more restricted problems.
Revenue Procedures deal with internal management practices and procedures of the IRS.
PRIVATE LETTER RULINGS
Letter rulings are issued upon a taxpayer's request and describe how the IRS will treat a proposed transaction for tax purposes.
The IRS limits the issuance of individual letter rulings to restricted, preannounced areas of taxation.
The IRS will not rule in areas when they involve fact oriented situations.
JUDICIAL SOURCES OF THE TAX LAW
Cases involving Federal tax litigation may be brought in either the U.S. Tax Court, Federal District Court or Claims Court.
However, in order to petition the Federal District Court or the Claims Court, the taxpayer must first pay the tax and file a claim for refund. Such refund would have to be denied by the IRS and a statutory notice of claim disallowance issued.
CCH Federal Taxation Basic Principles 11 of 32
Judicial Authority
The three courts of original jurisdiction are: U.S. Tax Court U.S. District Court U.S. Court of Federal Claims
Chapter 2, Exhibit 2a
CCH Federal Taxation Basic Principles 12 of 32
The appellate courts are: U.S. Circuit Courts of Appeals U.S. Court of Appeals for the Federal Circuit U.S. Supreme Court
Chapter 2, Exhibit 2b
Judicial Authority
CCH Federal Taxation Basic Principles 13 of 32
Five-Step Research Method
1. Gather the facts and identify the tax issues.
2. Locate and study the primary and secondary authorities relevant to the enumerated tax issues.
3. Update and evaluate the weight of the various authorities.
4. Re-examine various facets of the research.
5. Arrive at conclusions; communicate these conclusions to the client.
Chapter 2, Exhibit 3
CCH Federal Taxation Basic Principles 14 of 32
Authoritative Documents
Research Source
Authorship Binding Persuasive
16th Amendment Constitution Congress
Internal Revenue Code
CCH, RIA, and West tax services
Congress
Chapter 2, Exhibit 4a
Research Sources for Legislative Authority
CCH Federal Taxation Basic Principles 15 of 32
Authoritative
Documents
Research Source Authorship Binding Persuasive
Tax Treaties(to render mutual assistance between the U.S. and foreign countries in tax enforcement and to avoid double taxation.)
• Tax Treaties (CCH)• Worldwide Tax Treaty Library (Tax Analysts)• International Tax Treaties of All Nations (Oceana Publications)
Congress (overrides
Code if more
recent)
Chapter 2, Exhibit 4b
Research Sources for Legislative Authority
CCH Federal Taxation Basic Principles 16 of 32
Authoritative Documents
Research Source Authorship Binding Persuasive
Committee Reports (useful for determining Congressional intent when Code and Regs. are unclear)
Cumulative Bulletins [CB] (U.S.
Government.).
Internal Revenue Bulletin [IRB] if written within 6 months
House Ways and Means Committee Senate Finance Committee Joint Conference Committee
(no legal effect; only guidance)
Bluebook (interprets new legislation)
Bluebook (a government-issued, blue-covered book)
Joint Committee on Taxation
(no legal effect; only guidance)
Chapter 2, Exhibit 4c
Research Sources for Legislative Authority
CCH Federal Taxation Basic Principles 17 of 32
Authoritative Documents Research Sources Authorship Binding Persuasive
Final Regulations (Treasury Decisions)
Federal register (U.S. Government.) Tax services (CCH, RIA and West).
U.S. Treasury Department
Temporary Regulations
(issued without opportunity for public comment because timing is critical)
Federal Register (U.S. Government) Cumulative Bulletin (U.S. Government) Tax services (CCH, RIA, and West).
U.S. Treasury Department
(binding if < 3 years old)
(nonbinding if over 3 years old)
Proposed Regulations Federal Register (U.S. Government) Cumulative Bulletin (U.S. Government) Tax services (CCH, RIA, and West).
U.S. Treasury Department
(nonbinding preview of final Regs.)
Research Sources for Administrative Authority
Chapter 2, Exhibit 5a
CCH Federal Taxation Basic Principles 18 of 32
Authoritative Documents
Research Sources Authorship Binding Persuasive
Revenue Rulings (interprets tax laws)
Cumulative Bulletins (U.S. Government)
National office of IRS
(not approved by the Treasury)
Revenue Procedures (addresses internal procedures of IRS)
Cumulative Bulletins(U.S. Government)
National office of IRS
(not approved by the Treasury)
Letter Rulings (explains how IRS will treat a proposed transaction for tax purposes; issued to taxpayers)
IRS Letters Rulings Reports (CCH) Private Letter Rulings (RIA) Daily Tax Reports (BNA)Tax Analysts & Advocates, TAX NOTES
National office of IRS
(only precedent value is for the taxpayer addressed in letter)
Chapter 2, Exhibit 5b
Research Sources for Administrative Authority
CCH Federal Taxation Basic Principles 19 of 32
Authoritative Documents
Research Sources Authorship Binding Persuasive
Technical Advice Memoranda [TAMs] (addresses how IRS will treat a completed transaction for tax purposes; issued to District Office, hence “memorandum”)
IRS Position Reporter (CCH) Tax Notes (Tax Analysts) Internal Memoranda of the IRS (RIA)
National office of IRS
(only precedent value is for the taxpayer addressed in memo)
Determination Letters (mainly deal with pension plans and tax-exempt organizations)
Not published, but available by IRS for public inspection
District Director of IRS
(only precedent value is for the taxpayer addressed in letter)
Chapter 2, Exhibit 5c
Research Sources for Administrative Authority
CCH Federal Taxation Basic Principles 20 of 32
Research Sources for Judicial Authority
Authority Research Source Binding Persuasive
U.S. Supreme Court (4 of 9 justices needed to grant certiorari – often granted only when there is conflict among the appellate courts or where the tax issue is extremely important)
USTC (CCH) AFTR (RIA) S.Ct. Series (West) L.Ed. (Lawyer’s Co-op) U.S. Series (U.S. Government)
(highest judicial body)
Chapter 2, Exhibit 6a
CCH Federal Taxation Basic Principles 21 of 32
(binding to other tax
courts in same circuit)
CCH services RIA services U.S. Government Printing Office
U.S. Tax Court decisions – regular (deals with novel issues not previously resolved by TC; advance payment of tax not allowed)
(binding to
lower courts in same circuit)
USTC (CCH) AFTR (RIA) Federal 3d (West)
U.S. Court of Appeal decisions(hears appeals from any of the three lower courts; the Federal Circuit Appellate Court hears all appeals from the Court of Federal Claims)
Persuasive BindingResearch SourceAuthority
Chapter 2, Exhibit 6b
Research Sources for Judicial Authority
CCH Federal Taxation Basic Principles 22 of 32Chapter 2, Exhibit 6c
No precedent authority
Not publishedSmall Cases Division of Tax Court (informal hearing for disputes of $50,000 or less; appeals process not available)
TCM (CCH) T.C. Memo (RIA)
U.S. Tax Court decisions—
Memorandum (deals with factual issues necessitating application of established principles of tax law; advance payment of tax not allowed)
Persuasive BindingResearch SourceAuthority
(binding to other tax
courts in same circuit)
Research Sources for Judicial Authority
CCH Federal Taxation Basic Principles 23 of 32
Authority Research Source Binding Persuasive
U.S. District Court(jury trial available for factual issues but not for legal issues)
USTC (CCH) AFTR (RIA) F. Supp. Series (West)
(binding to
courts in same district)
U.S. Court of FederalClaims (hears any claims against U.S. that is based onthe Constitution,an Act of Congress, or aRegulation of anyexecutive department)
USTC (CCH) AFTR (RIA) Federal Claims Reporter (West)
(binding to same court)
Chapter 2, Exhibit 6d
Research Sources for Judicial Authority
CCH Federal Taxation Basic Principles 24 of 32
Commercial Publishers of Comprehensive Services
Service Description
Standard Federal Tax Reporter (“Standard”), CCH
Comprehensive, self-contained reference service. 25 coordinated and cross-referenced loose-leaf volumes that provide comprehensive coverage of the income tax law. Compiles legislative, administrative, and judicial aspects of the income tax law, arranged in Code section order. Also contains weekly supplements concerning current legislative, administrative, or judicial changes in tax law.
United States Tax Reporter, RIA
Comprehensive, self-contained reference service. 18 coordinated loose-leaf volumes organized by Code sections and updated weekly. Similar to CCH. RIA is known for its willingness to take a stand on controversial issues not covered by legislation or tax law.
Federal Tax Service, CCH
Contains several volumes of compilation material organized by topic. The Code, Regulations, and Committee Reports are contained in separate volumes. The chapters are prepared by over 250 practitioners.
Chapter 2, Exhibit 7a
CCH Federal Taxation Basic Principles 25 of 32
Commercial Publishers of Comprehensive Services
Service Description
Federal Tax Coordinator, RIA
26-volume service organized by topic, rather than Code sections. Popular features include editorial explanations, illustrations, planning ideas, and warnings of potential tax traps.
Merten’s, Law of Federal Income Taxation, Thomson West
Useful complement to traditional reference services. In-depth discussions of general concepts of tax law. Often quoted in judicial decisions. Sometimes difficult reading due to its legalistic style. Also, updating is less frequent than most other services and not as accessible.
Tax Management Portfolios,BNA
Useful complement to traditional reference services. Each booklet ranges in length from 50 to 200 pages and deals exclusively with a special tax topic covering Code, Regulations, reference to primary authorities, and extensive editorial discussion, including numerous tax planning ideas. Problems of inconvenience may develop when there is no one portfolio squarely on point and the research effort requires reference to many portfolios. Updates are convenient though not extensive.
Chapter 2, Exhibit 7b
CCH Federal Taxation Basic Principles 26 of 32
Commercial Publishers of Comprehensive Services
Service Description
CCH ONLINE An electronic research service. Incorporates practitioner-oriented access methods to successfully located the desired tax information and to retrieve documents of special interest. Available in many different “libraries” addressing tax and nontax topics.
LEXIS/NEXIS, Reed Elsevier, Inc.
An electronic research service. LEXIS accesses federal statutes, regulations, IRS rulings, and judicial decisions. NEXIS contains the full text of over 500 publications.
WESTLAW, West Publishing Co.
An electronic research service. Provides much of the same data as Lexis. Available online or CD-ROM.
Chapter 2, Exhibit 7c
CCH Federal Taxation Basic Principles 27 of 32
Commercial Publishers of Judicial Decisions
Service Description
CCH Citator, CCH Two-volume, loose-leaf reference service. Contains alphabetical listing of Tax Court (formerly Board of Tax Appeals, “BTA”) and federal court decisions since 1913. Indicates a paragraph reference where each case is digested in the Compilation Volumes of the Standard Federal Tax Reporter. Each listing outlines the judicial history of a selected case beginning with the highest court to have ruled on that issue.
Chapter 2, Exhibit 8a
CCH Federal Taxation Basic Principles 28 of 32
Commercial Publishers of Judicial Decisions
Service Description
Federal Tax Citator, RIA
Seven-volume citator service organized in a manner consistent with CCH Citator. Provides an alphabetical list of court cases followed by a descriptive legislative history of each case.
U.S. Tax Cases (USTC),CCH
Series of volumes that cover Supreme Court, Courts of Appeals, District Courts, and Court of Federal Claims cases since 1913.
Chapter 2, Exhibit 8b
CCH Federal Taxation Basic Principles 29 of 32
Commercial Publishers of Judicial Decisions
Service Description
American Federal Tax Reports (AFTR), RIA
Comparable to USTC above.
Tax Court Memorandum Decisions (TCM), CCH
Publishes memorandum decisions of the Tax Court.
TC Memorandum Decisions (TC Memo),RIA
Similar to TCM above.
Chapter 2, Exhibit 8c
CCH Federal Taxation Basic Principles 30 of 32
Commercial Publishers of Current Developments
DescriptionService
Monthly tax journal published by the AICPA.Tax Adviser
Monthly tax journal.Journal of Taxation
Weekly digests of new tax decisions.Tax Notes,Tax Analysts
Weekly highlights of latest tax developmentsWeekly Alert,RIA
Weekly highlights of latest tax developmentsStandard Federal Tax Reports, CCH
Chapter 2, Exhibit 9
CCH Federal Taxation Basic Principles 31 of 32
Organization of the IRS
The four Operating Divisions include: Wage and Investment Income Division Small Business and Self-Employed Division Large Business and International Division Tax-Exempt Organizations and Governmental Entities
Division
Chapter 2, Exhibit 10a
CCH Federal Taxation Basic Principles 32 of 32
Other units include: Criminal Investigation IRS Appeals Office National Taxpayer Advocate Office of Chief Counsel Office of Professional Responsibility Whistleblower Office Communications and Liaison Office of Privacy, Governmental Liaison and
Disclosure
Chapter 2, Exhibit 10b
Organization of the IRS
CCH Federal Taxation Basic Principles 33 of 32
IRS Communications
The IRS issues communications to individual taxpayers and IRS personnel in three primary ways:
Letter rulings Determination letters Technical advice memoranda
IRS Publications also address a variety of general and special topics of concern to taxpayers.
Chapter 2, Exhibit 11
CCH Federal Taxation Basic Principles 34 of 32
Examination of Returns Correspondence Examinations—These involve
relatively simple problems that can generally be resolved by mail.
District Office Examinations—These are conducted by a tax auditor either by correspondence or by interview.
Field Examinations—These are conducted by revenue agents and involve more complex issues.
Chapter 2, Exhibit 12
CCH Federal Taxation Basic Principles 35 of 32
Appeals Administrative Process
If the taxpayer and the agent do not agree, the taxpayer has several options:
Request a conference in the IRS Appeals Office File a petition in the Tax Court Wait for the 90-day period to expire, pay the
assessment, and start a refund suit in the District Court or the Court of Federal Claims
Chapter 2, Exhibit 13
CCH Federal Taxation Basic Principles 36 of 32
Taxpayer Bill of Rights
The Taxpayer Bill of Rights is divided into four major categories:
Taxpayer rights and IRS obligations Levy and lien provisions Proceedings by taxpayers Authority of the Tax Court
Chapter 2, Exhibit 14
CCH Federal Taxation Basic Principles 37 of 32
Choice of Tax Forum
Jurisdiction Payment of tax Jury trial Rules of evidence Expertise of judges
Publicity Legal precedent Factual precedent Statute of limitations Discovery
Factors to consider in deciding whether to litigate a case and where to litigate:
Chapter 2, Exhibit 15
CCH Federal Taxation Basic Principles 38 of 32
Penalties
Delinquency penalties Accuracy-related and
fraud penalties Negligence penalty Substantial
understatement of tax liability
Substantial valuation misstatement penalty
Substantial overstatement of pension liabilities
Estate of gift tax valuation understatements
Penalty for aiding understatement of tax liability
Civil fraud penalty Criminal fraud penalty Estimated taxes and
underpayment penalties Failure to make deposits of
taxes Tax preparer penalties
Chapter 2, Exhibit 16