the federal tax alert - nstp · able plan under section 62(c) and the applicable regula-tions. the...

NATIONAL SOCIETY OF TAX PROFESSIONALSTHE FEDERAL TAX ALERT

In The news

EXPENSES PAID OR INCURRED FOR LODGING WHEN NOT TRAVELING AWAY FROM HOME:

On October 1, 2014, the Internal Revenue Service issued final regulations relating to the deductibility of expenses for lodging when an individual is not traveling away from home (local lodging).

Under the general rule in §1.162-31(a) of the proposed regulations, local lodging expenses for an individual are personal, living, or family expenses that are nondeduct-ible by the individual under section 262(a). Depending on the facts and circum-stances, however, local lodging expenses may be deductible under section 162 as ordinary and necessary business expenses. Section 1.162-31(b) of the proposed regulations provides a safe harbor, pursuant to which local lodging expenses that meet certain criteria are treated as ordinary and necessary business expenses of an individual. Local lodging expenses that meet either the facts and circumstances test of paragraph (a) or the safe harbor requirements of para-graph (b) are deductible by an individual if incurred directly. Alternatively, if the expenses are incurred by an employer on behalf of an employee, the value of the local lodging may be excludible from the income

October 2014

EXPENSES PAID OR INCURRED FOR LODGING WHEN NOT TRAVELING AWAY FROM HOME:

In The news

RIGHTS AND RESPONSIBILITIES OF PRACTITIONERS IN CIRCULAR 230 DISCIPLINARY CASES:

PracTIce ManageMenT Page 5

MORE CIRCULAR 230 UPDATESPracTIce ManageMenT Page 6

TAX CONSIDERATIONS FOR SAME-SEX MARRIAGES

FroM The hoTlIne Page 7

A TIMELY TIP FROM ENNIS T. PEA

eTceTera Page 8

STAFF BIOSeTceTera Page 8

Comments? Contact the editors at [email protected] for any comments regarding the articles in the FTA

of the employee as a working condition fringe under section 132(a) and (d). To the extent an employer reimburses an employee for local lodging expenses, the reimbursement may be excludible from the employee’s gross income if the expense allowance arrangement satisfies the requirements of an account-able plan under section 62(c) and the applicable regula-tions. The expenses are also deductible by the employer as ordinary and necessary business expenses. These regulations apply to expenses paid or incurred on or after October 1, 2014. Taxpayers may apply these regulations to expenses paid or incurred in taxable years ending before October 1, 2014, for which the period of limitation on credit or refund under section 6511 has not expired.

§ 1.162-32 Expenses paid or incurred for lodging when not traveling away from home, has been added as follows:

(a) In general. Expenses paid or incurred for lodging of an individual who is not traveling away from home (local lodging) generally are personal, living, or family expenses that are nondeduct-ible by the individual under section 262(a). Under certain circumstances, however, local lodging expenses may be deductible under section 162(a) as ordinary and necessary expenses paid or incurred in connection with carrying on a taxpayer’s trade or business, including

a trade or business as an employee. Whether local lodging expenses are paid or incurred in carrying on a taxpayer’s trade or business is determined under all the facts and circumstances. One factor is whether the taxpayer incurs an expense because of a bona fide condition or requirement of employment imposed by the taxpayer’s employer. Expenses paid or incurred for local lodging that is lavish or extravagant under the circumstances or that primarily provides an individual with a social or personal benefit are not incurred in carrying on a taxpayer’s trade or business.Show citation box

(b) Safe harbor for local lodging at business meet-ings and conferences. An individual’s local lodging expenses will be treated as ordinary and necessary busi-ness expenses if—

(1) The lodging is necessary for the individual to partici-pate fully in or be available for a bona fide business meeting, conference, training activity, or other business function;

(2) The lodging is for a period that does not exceed five calendar days and does not recur more frequently than once per calendar quarter;

(3) If the individual is an employee, the employee’s employer requires the employee to remain at the activity or function overnight; and

[email protected] Page 1The FeDeral TaX alerT ocToBer 2014

THE FEDERAL TAX ALERT OCTOBER 2014 [email protected]

From The edITor

As I write this many of my friends and colleagues are again burning the midnight oil trying to beat the October 15th extension deadline for individual income tax returns. We keep asking ourselves how we can do this differently next year. Do we need to fire these clients who bring in their tax information so late? Are we not communicating clearly with our clients that in order to prepare timely and accurate returns we need sufficient time to schedule our work? And the timeless question – who runs our practice, our clients or us? We say that we enjoy being self-employed so that we can schedule our own work and have autonomy. When in actuality we do not have one boss but many bosses, as we are accountable and answer to every client we have. This is the time to review our client base and determine which clients we can do without. Recall the 80 – 20 Pareto principle; 80% of our challenges come from 20% of our clients. So start with the 20% of your problem clients first when sending out those termination letters.

Did you try to call our Hotline over the last chaotic days before the October 15th deadline? The use of the NSTP Hotline during the first two weeks in October was unprecedented. In response to member calls to the office we opened the Hotline additional days, added an additional person to staff the Hotline and a third person to respond to the numerous messages left by members. We encourage our members to use the Hotline and we are thrilled with your response. We responded with the additional hours and services when management became aware of the increase in call volume. Do not hesitate to contact the NSTP office when there is a concern with NSTP services. We have the ability to respond to your concerns when the need is brought to our attention. Thank you for your membership with the NSTP.

Now that we are putting the 2014 tax filing season to bed, we start to think ahead to the 2015 tax filing season. It will not be long now that our software companies will start sending out preliminary program disks containing organizers and tax planning tools. Clients will start to need year-end tax planning appointments to project their 2014 tax liabilities and determine what planning strategies are available to them to minimize their tax bill. Or maybe they are all out of opportunities and just need to plan for the tax bill to come. This is the time to touch base with those clients who have need of additional tax planning, life changes that may need to be considered, or a quick check-up of their potential tax liability.

We need to take time to get ready for the holidays, clean up the files from the past tax season and set up our offices for the new tax season to come. And this is the time to review our staffing needs, staff training, and what new positions need to be staffed for tax season. NSTP, in partnership with FastForward Academy and local universities, is piloting a mentorship program with our members and local students. Under this new program we will be working with students and local accounting firms to provide internship programs for accounting students. Additional information will be released as the program is developed.

Nina Tross, MBA, EAPaul La Monaca, CPA, MST

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Employer’s trade or business. Some employees attending the training are traveling away from home and some employees are not traveling away from home. Employer requires all employees attending the training to remain at the hotel overnight for the bona fide purpose of facilitating the training. Employer pays the costs of the lodging at the hotel directly to the hotel and does not treat the value as compensation to the employees.

(ii) Because the training is longer than five calendar days, the safe harbor in paragraph (b) of this section does not apply. However, the value of the lodging may be excluded from income if the facts and circumstances test in paragraph (a) of this section is satisfied.

(iii) The training is a bona fide condi-tion or requirement of employment and Employer has a noncompensatory business purpose for paying the lodging expenses. Employer is not paying the expenses primarily to provide a social or personal benefit to the employees, and the lodging Employer provides is not lavish or extravagant. If the employees who are not traveling away from home had paid for their own lodging, the expenses would have been deductible by the employees under section 162(a) as ordinary and necessary business expenses. Therefore, the value of the lodging is excluded from the employees’ income as a working condition fringe under section 132(a) and (d).

(iv) Employer may deduct the lodging expenses, including lodging for employees who are not traveling away from home, as ordinary and necessary business expenses under section a162(a).

EXAMPLE #2:

(i) The facts are the same as in Example 1, except that the employees pay the cost of their lodging at the hotel directly to the hotel, Employer reimburses the employees for the cost of the lodging, and Employer does not treat the reim-bursement as compensation to the employees.

(ii) Because the training is longer than five calendar days, the safe harbor in paragraph (b) of this section does not apply. However, the reimbursement of the expenses for the lodging may be excluded from income if the facts and

tiation) for deductibility of the expense and for exclusion from income of the value of the lodging as a working condi-tion fringe or of reimbursements under an accountable plan.

EXAMPLE #1:

(i) Employer conducts a seven-day training session for its employees at a hotel near Employer’s main office. The training is directly connected with

(4) The lodging is not lavish or extrava-gant under the circumstances and does not provide any significant element of personal pleasure, recreation, or benefit.

(c) Examples. The provisions of the facts and circumstances test of para-graph (a) of this section are illustrated by the following examples. In each example the employer and the employees meet all other requirements (such as substan-

From The nsTP BoArd PresIdenT

Earlier this year, the IRS lost the “Loving” case. They could have appealed, but they choose not to do that because of the time required. Everyone in the tax industry breathed a sigh of relief, but I think it is going to be to no avail. The IRS desires to require some type of certification for anyone who prepares and files tax returns. They introduced the AFSP (Annual Filing Season Program), which at this time is voluntary, but they will work to make it a requirement. It is your Presidents understanding that they are developing legislation to do just that for the 2015 Congress.

Your NSTP educational team has developed the AFTR (Annual Federal Tax Refresher) course for you to take voluntarily. When you pass the exam that accompanies the AFTR then the IRS will include you on the website to be available in January 2015 of all tax preparers who have received the AFSP – Record of Completion. Tax practitioners will be listed by state and city. The NSTP course will soon be in a webinar format. It is presently being taught in scheduled classes. Check the NSTP website to see when it is being presented in a city near you. You will be able to get a jump on what I think will soon be a requirement.

If you intend to make the tax business your profession you should be prepared to represent your clients before any IRS office or representative. I personally enjoy doing representation for clients more than preparing returns. You will need to be a CPA or an EA in order to do this. A CPA can only represent clients in the states where they are credentialed. An EA can represent a client before any IRS office any place in the world. I have had the pleasure of representing clients in England, Germany, Canada and France. Yes, the IRS has representatives in all of the United States embassies around the world. Chief Counsel is another place you can represent clients. The opportunities are endless. Your NSTP Director of Education has scheduled the EA Boot Camp to prepare you for the exam. We plan to have it in a webinar format in the near future.

The EA Bootcamp is being offered in Las Vegas and can be taken all in one week or you can take only Part 2 over three days. If the tax business is going to be your profession for the rest of your life you should prepare to give your clients the full value for their money. Representation work also generates larger clients, which brings in more money. Your business should be treated as the most valuable asset you own if this is your profession.

Bill Horn, NSTP President


the lodging primarily provides a personal benefit to Employee. Therefore, the value of the lodging is includible in Employee’s gross income as additional compensa-tion.

(iii) Employer may deduct the lodging expenses as ordinary and necessary business expenses under section 162(a) and § 1.162-25T.

EXAMPLE #6:

(i) Employer requires an employee to be “on duty” each night to respond quickly to emergencies that may occur outside of normal working hours. Employees who work daytime hours each serve a “duty shift” once each month in addition to their normal work schedule. Emergencies that require the duty shift employee to respond occur regularly. Employer has no sleeping facilities on its business premises and pays for a hotel room nearby where the duty shift employee stays until called to respond to an emergency.

(ii) Because an employee’s expenses for lodging while on the duty shift occur more frequently than once per calendar quarter, the safe harbor in paragraph (b) of this section does not apply. However, the value of the lodging may be excluded from income if the facts and circum-stances test in paragraph (a) of this section is satisfied.

(iii) The duty shift is a bona fide condi-tion or requirement of employment and Employer has a noncompensatory business purpose for paying the lodging expenses. Employer is not providing the lodging to duty shift employees primarily to provide a social or personal benefit to the employees and the lodging Employer provides is not lavish or extravagant. If the employees had paid for their lodging, the expenses would have been deductible by the employees under section 162(a) as ordinary and neces-sary business expenses. Therefore, the value of the lodging is excluded from the employees’ income as a working condi-tion fringe.

(iv) Employer may deduct the lodging expenses as ordinary and necessary business expenses under section 162(a).

(d) Effective/applicability date. This section applies to expenses paid or incurred on or after October 1, 2014.

lodging, the expenses would have been deductible by the employees under section 162(a) as ordinary and neces-sary business expenses. Therefore, the value of the lodging is excluded from the employees’ income as a working condi-tion fringe.

(iv) Employer may deduct the expenses for lodging the employees at the hotel as ordinary and necessary business expenses under section 162(a).

EXAMPLE #4:

i) Employer hires Employee, who currently resides 500 miles from Employ-er’s business premises. Employer pays for temporary lodging for Employee near Employer’s business premises while Employee searches for a residence.

(ii) Employer is paying the temporary lodging expense primarily to provide a personal benefit to Employee by providing housing while Employee searches for a residence. Employer incurs the expense only as additional compensation and not for a noncompen-satory business purpose. If Employee paid the temporary lodging expense, the expense would not be an ordinary and necessary employee business expense under section 162(a) because the lodging primarily provides a personal benefit to Employee. Therefore, the value of the lodging is includible in Employee’s gross income as additional compensation.

(iii) Employer may deduct the lodging expenses as ordinary and necessary business expenses under section 162(a) and § 1.162-25T.

EXAMPLE #5:

(i) Employee normally travels two hours each way between her home and her office. Employee is working on a project that requires Employee to work late hours. Employer provides Employee with lodging at a hotel near the office.

(ii) Employer is paying the temporary lodging expense primarily to provide a personal benefit to Employee by relieving her of the daily commute to her residence. Employer incurs the expense only as additional compensation and not for a noncompensatory business purpose. If Employee paid the temporary lodging expense, the expense would not be an ordinary and necessary business expense under section 162(a) because

circumstances test in paragraph (a) of this section is satisfied.Show citation box

(iii) The training is a bona fide condi-tion or requirement of employment and Employer is reimbursing the lodging expenses for a noncompensatory busi-ness purpose and not primarily to provide a social or personal benefit to the employees and the lodging Employer provides is not lavish or extravagant. The employees incur the expenses in performing services for the employer. If Employer had not reimbursed the employees who are not traveling away from home for the cost of the lodging, the expenses would have been deduct-ible by the employees under section 162(a) as ordinary and necessary busi-ness expenses. Therefore, the reimburse-ments to the employees are made under an accountable plan and are excluded from the employees’ gross income.

(iv) Employer may deduct the lodging expense reimbursements, including reimbursements for employees who are not traveling away from home, as ordi-nary and necessary business expenses under section 162(a).

EXAMPLE #3:

(i) Employer is a professional sports team. Employer requires its employees (for example, players and coaches) to stay at a local hotel the night before a home game to conduct last minute training and ensure the physical preparedness of the players. Employer pays the lodging expenses directly to the hotel and does not treat the value as compensation to the employees.

(ii) Because the overnight stays occur more than once per calendar quarter, the safe harbor in paragraph (b) of this section does not apply. However, the value of the lodging may be excluded from income if the facts and circum-stances test in paragraph (a) of this section is satisfied.

(iii) The overnight stays are a bona fide condition or requirement of employment and Employer has a noncompensatory business purpose for paying the lodging expenses. Employer is not paying the lodging expenses primarily to provide a social or personal benefit to the employees and the lodging Employer provides is not lavish or extravagant. If the employees had paid for their own


accountants, enrolled agents, enrolled actuaries, enrolled retirement plan agents and registered return preparers are subject to the rules of Circular 230, Regulations Governing Practice before the Internal Revenue Service. These practitioners are subject to discipline under Circular 230 for failing to comply with these rules. Appraisers and any person who gets paid to prepare all, or a substantial portion, of a document relating to a taxpayer’s tax liabilities for submission to the IRS are also subject to discipline under Circular 230 for failing to comply with the rules. See Circular 230, Section 10.3 – Who may practice; Circular 230, Section 10.8 – Return preparation and application of rules to other individuals; Circular 230, Section 10.50 – Sanctions; Circular 230, Section 10.51 – Incompetence and disreputable conduct; and Circular 230, Section 10.60) - Institution of proceeding.

The Office of Professional Responsi-bility (OPR) has exclusive authority for all matters related to practitioner discipline, including disciplinary proceedings and sanctions. See Circular 230, Section 10.1 - Offices. OPR is committed to processing referrals and conducting investigations in a timely and fair manner. The investi-gative process and disciplinary proceed-ings follow established due process guidelines designed to ensure that practitioners receive notice of the allega-tions against them and an opportunity to present their side of the story at multiple stages.

Receipt and Review of Complaints: OPR receives referrals about practitioners from a variety of sources. The majority of referrals come directly from IRS field personnel, such as Revenue Agents, Revenue Officers, Special Agents and Appeals/Settlement Officers. OPR also receives referrals from other government agencies, such as the Treasury Inspector General for Tax Administration (TIGTA), the Department of Justice and state licensing authorities. An OPR manager reviews all referrals when they arrive in OPR. If it appears that a violation of Circular 230 has occurred, the manager will assign the case to an attorney or paralegal for communication with the referred individual and for further inves-tigation.

Right to Representation: During an

dards of practice for tax professionals in a fair and equitable manner.”

The objective of the OPR is:

“OPR’s vision, mission, strategic goals and objectives support effective tax administration by ensuring all tax practitioners, tax preparers, and other third parties in the tax system adhere to professional standards and follow the law.

OPR’s goals include the following: (1) Increase awareness and understanding of Circular 230 and OPR through outreach activities, (2) Apply the principles of due process to the investigation, analysis, enforcement and litigation of Circular 230 cases and (3) Build, train and moti-vate a cohesive OPR team.

OPR’s organizational structure includes three major segments: Office of the Director, Legal Analysis Branch, and Operations and Management Branch.”

OPR is committed to:

• Independent, fair and equitable treat-ment of all tax practitioners consistent with our Title 31 authority and principles of due process.

• Rendering fair and independent determinations regarding alleged misconduct in violation of Circular 230, Regulations Governing Practice before the Internal Revenue Service.

• Educating/maintaining tax profes-sionals’ knowledge of relevant Circular 230 provisions.

• Providing guidance and feedback to field/agency sources regarding essential referral criteria for each relevant Circular 230 provision.

• Strengthening partnerships with other parts of the IRS and with external practitioner organizations.

• Developing procedures that ensure timely case resolution.

• Developing policies and regulations that ensure fair and equitable disposi-tion of Circular 230 cases.

• Developing and implementing proac-tive strategies for identifying violations of Circular 230.

Who is subject to discipline under Circular 230? Attorneys, certified public

However, taxpayers may apply these regulations to local lodging expenses that are paid or incurred in taxable years for which the period of limitation on credit or refund under section 6511 has not expired.

Expenses incurred in traveling away from home (which include transporta-tion expenses, meals, and lodging) and any other transportation expenses are not deductible unless they qualify as expenses deductible under section 162 (relating to trade or business expenses), section 170 (relating to charitable contri-butions), section 212 (relating to expenses for production of income), section 213 (relating to medical expenses), or section 217 (relating to moving expenses), and the regulations under those sections. The taxpayer’s costs of commuting to his place of business or employment are personal expenses and do not qualify as deductible expenses. For expenses paid or incurred before October 1, 2014, a taxpayer’s expenses for lodging when not traveling away from home (local lodging) are nondeductible personal expenses. However, taxpayers may deduct local lodging expenses that qualify under section 162 and are paidor incurred in taxable years for which the period of limi-tation on credit or refund under section 6511 has not expired. For expenses paid or incurred on or after October 1, 2014, a taxpayer’s local lodging expenses are personal expenses and are not deduct-ible unless they qualify as deductible expenses under section 162. Except as permitted under section 162 or 212, the costs of a taxpayer’s meals not incurred in traveling away from home are nonde-ductible personal expenses.

PrAcTIce mAnAgemenT

RIGHTS AND RESPONSIBILITIES OF PRACTITIONERS IN CIRCULAR 230 DISCIPLINARY CASES:

The Office of Professional Responsi-bility (OPR) is charged with the admin-istration of Circular 230, Regulations Governing Practice before the Internal Revenue Service. The vision of OPR is “To be the standard-bearer for integrity in tax practice.” Their published mission state-ment is to “Interpret and apply the stan-


appeal the Initial Decision and Order of the ALJ to the Department of the Trea-sury within 30 days of being served. A specially designated senior attorney (called “the Appellate Authority”) within The Department of Treasury’s Office of Chief Counsel reviews the appeals and accompanying briefs and renders the Final Agency Decision in the case. See Circular 230, Section 10.77 – Appeal of decision of Administrative Law Judge; and Circular 230, Section 10.78 – Deci-sion on review.

Filing Suit in U.S. Federal District Court: If you disagree with the Appellate Authority’s Final Agency Decision, you may file a complaint against the Director, OPR in U.S. Federal District Court in the district where you reside. The Adminis-trative Procedure Act contains provisions governing that proceeding. See 5 U.S.C. Sections 551-559, 702. The proceeding will not be a new trial. Rather, the district court will review the entire administra-tive record already in existence in the case to determine if the agency’s action against you was arbitrary, capricious, contrary to law or otherwise an abuse of discretion.

MORE CIRCULAR 230 UPDATES:Circular 230 and Form 4764, LB&I

(Large Business and International Divi-sion) Examination Plan-Guidance

OPR is publishing this guidance in response to field questions regarding the effect on Circular 230 and the Office of Professional Responsibility’s (“OPR”) jurisdiction over the corporate officers or employees identified in Section 1(b) of Form 4764, Communications Agreement, LB&I Examination Plan, for purposes of referrals for alleged Circular 230 miscon-duct. Circular 230 regulates represen-tation activity by “practitioners,” and others, meaning those who represent (advocate) or otherwise “practice” before the IRS. [1]

The LB&I Communications Agreement allows a corporate taxpayer to designate one or more employees to 1) discuss tax matters, 2) provide and receive informa-tion, or 3) receive and discuss adjust-ments (or some combination of these three). The LB&I Communications Agree-ment operates as an authorization to receive tax information, similar to Form

your violations of Circular 230. Possible options include censure, suspension or disbarment from practice before the IRS, or a monetary sanction. See Circular 230, Section 10.50 – Sanctions. Monetary sanctions may be applied to individuals or firms. Generally, OPR may not impose a sanction on you if you do not agree. Nevertheless, OPR does have discre-tion to reprimand you privately without Notice, or opportunity to be heard, if sufficient evidence exists that you have violated Circular 230.

Administrative Hearing: If OPR is unsuccessful in negotiating acceptable discipline with you, OPR will commence a proceeding by drafting a complaint, which is sent to the IRS Office of Chief Counsel, General Legal Services (GLS), for filing with an Administrative Law Judge (ALJ). The ALJ will come from another federal agency. GLS will serve you with the complaint, most often by regular and certified mail. You will have thirty (30) days to file an Answer. If you fail to answer, OPR will file a Motion for Default against you. You must answer in 30 days to preserve all your rights. Once you file an answer, the ALJ will set discovery, motion, and hearing dates for the case. The ALJ holds hearings in Washington, D.C, unless you request a location where a federal courthouse is located closer to your residence. Anyone authorized to practice before the IRS, or a licensed attorney, may represent you at the hearing. See Circular 230, Sections 10.60-10.76 – Rules applicable to Disci-plinary Proceedings.

Hearings before the ALJ generally involve a relaxed application of the Federal Rules of Evidence.

Both parties may present documen-tary evidence and testimony relevant to the issues raised in the case. Most hear-ings will last one day or less. The ALJ will issue an Initial Order and Decision, usually within 180 days of the conclusion of the hearing. The ALJ may: 1) confirm OPR’s position with respect to the Circular 230 violations and the appro-priate level of discipline; 2) reject OPR’s position entirely; 3) modify OPR’s posi-tion with respect either to the Circular 230 violations or the appropriate level of discipline.

Appeal from Administrative Decision: Both OPR and you have the right to

OPR investigation, you may choose to be represented by someone authorized to practice before the IRS. If you choose to have a representative during an OPR investigation into issues relating to your own tax compliance, your representative must file a Form 2848, Power of Attorney and Declaration of Representative. If your investigation relates to a conduct matter, your representative must provide a representation letter at first contact with OPR.

Notice of an Investigation: Whenever OPR receives a referral that describes a possible violation of Circular 230, OPR will mail a letter to your last known address on file with the IRS. The letter will describe the nature of the allegations and the specific provisions of Circular 230 that appear to have been violated. The letter will also include the name and contact information of the OPR attorney or paralegal assigned to the case.

Opportunity to Respond: You should respond promptly to any correspondence from OPR. You will have an opportunity to respond to the allegations and to provide evidence throughout the investigation. You may provide evidence when OPR initially contacts you and determines the case warrants additional investigation. You also may provide evidence after OPR informs you of its conclusion that the Circular 230 violations identified call into question your fitness to continue prac-ticing before the IRS. During the course of its investigation, OPR may request, in writing, additional information and/or documentation from you. Any failure to respond to such an inquiry is a separate violation of Circular 230, Section 10.20. Any letter from OPR staff will include a deadline by which a response from you will be required. If you are unable to meet the deadline, you must ensure that you or your representative communicates that to the OPR contact immediately.

Right to Submit Evidence: OPR encour-ages you to submit any evidence that will aid in resolving the issue as early as possible in the investigative stage. If the matter proceeds to an administra-tive hearing, the judge does not have to admit evidence that you try to produce at the last minute.

Negotiated Sanctions: OPR will attempt to negotiate any sanction it believes is warranted in connection with


our clients in navigating the new tax issues that any taxpayer faces when their life circumstances change. Following are six major areas that have been identi-fied as key consideration points for any couple contemplating marriage:

• Income taxes: The IRS says a same-sex couple should be treated like a traditional married couple for all federal income tax purposes if they’ve entered into a marriage in a state where such a marriage is legal. It doesn’t matter if the couple resides in a state where same-sex marriage is banned. If a couple chooses to do so, it can file an amended return for an open tax year, but they’re not obli-gated to do so. State law still continues to control for state income tax purposes.

• Estate and gift taxes: Under federal law, the unlimited marital deduction generally shelters transfers between spouses from estate and gift taxes. Because same-sex couples are now treated like traditional married couples, planning opportunities exist. For instance, documents such as wills and trusts may be revised to maximize the benefits of the federal estate tax exemp-tion, including using the portability provision for any remaining exemption of a deceased spouse. Naturally, state law controls concerning state death and inheritance taxes.

• Social Security benefits: Prior to the Windsor decision, a surviving spouse in a same-sex marriage wasn’t eligible to receive Social Security retirement benefits based on a deceased spouse’s earnings record. Now such a claim may be filed with the Social Security adminis-tration (SSA) if a couple was married in a state permitting same-sex marriages and the survivor resides in a state recognizing same-sex marriage. However, for the time being, the SSA says it will continue to follow state law on other claims.

• Qualified retirement accounts and IRAs: The rights and benefits for same-sex married couples now mirror those for traditional married couples if one spouse participates in a qualified retirement plan like a 401(k) plan – regardless of whether the employer is based in a state recognizing same-sex marriages. Thus, a surviving spouse in a same-sex marriage may benefit from favorable distribu-tion rules under the law. Similarly, rules benefitting a surviving spouse of an

or a substantial portion of a document for submission to the IRS with respect to a corporate taxpayer’s tax liabilities (31 CFR sec. 10.8(c); sec. 10.34(b)).

In any referral situation, a thorough and complete narrative m–ust be provided that describes the individual’s conduct and the alleged Circular 230 violation(s). This information assists OPR in beginning an investigation. Upon receipt of the Form 8484, OPR conducts an independent investigation of the facts and circumstances and determines whether, and to what extent, discipline may be necessary.

[1] Circular 230, § 10.2(a)(4) defines “practice” as “ALL matters connected with a presentation to the Internal Revenue Service…relating to a taxpay-er’s rights, privileges, or liabilities under laws or regulations ADMINISTERED by the Internal Revenue Service.” Practice includes preparing and/or filing docu-ments; corresponding and communi-cating with the IRS; giving written tax advice; and, representing a taxpayer at a conference, hearing or meeting. A bona fide officer or regular full-time employee of a corporation and a general partner or regular full-time employee of a partner-ship may represent the entity before the IRS but are subject to all the regulations contained in Circular 230 when they do so. See Cir. 230, § 10.7(c)(1)(iii), (iv) and (c)(2)(iii)

From The hoTlIne

TAX CONSIDERATIONS FOR SAME-SEX MARRIAGES:

On October 8th, the Supreme Court decision to not consider same-sex marriage cases from states where same-sex marriage is banned has paved the way for same-sex couples to marry in 30 states and the District of Columbia. While some states continue to resist the tacit ruling in place many states have already started the process to issue licenses to same-sex couples. The IRS guidance after the DOMA case is still in place, any marriage conducted where state law permits must be treated as married for federal tax filing status.

As tax professionals our role is to assist

8821, Tax Information Authorization. The LB&I Communications Agreement does NOT replace the Form 2848. When a corporate employee is merely providing or accepting information to, or from, the IRS, there is no representation activity or “practice” occurring and the Form 4764 will suffice. However, when the employee advocates, negotiates, disputes or does anything which goes beyond mere delivery of facts, general explanation, or acceptance of materials, the employee is engaged in representation activities (“practicing”) before the agency and the Form 4764 is not sufficient. In the LB&I context, this typically involves advo-cating or defending certain positions related to the corporation’s tax liability or adjustments proposed thereto.

If the corporation wants a specific employee (irrespective of title) to advo-cate, negotiate, or dispute issues with the IRS on behalf of the corporation, then a Form 2848, Power of Attorney, must be obtained from the corporation autho-rizing that representation. The Form 2848 must be signed by a duly elected officer or director of the corporation as identi-fied in the corporate articles or by-laws (typically, the same officer who signs the corporation’s tax returns and consents to extend the time for assessment of tax). “Vanity-titled” officers of a corporation are not legally authorized to execute the Form 2848 on behalf of the corporation. The IRS point of contact should request the Form 2848 from the appropriate corporate official when representation activities are about to, or have, begun. (See, LB&I Quarterly Newsletter, Issue 9-03, June 2011, pg 2).

IRS employees make referrals to OPR for alleged Circular 230 misconduct using Form 8484, Suspected Practi-tioner Misconduct Report for the Office of Professional Responsibility (rev. 12-2013). Form 8484 asks for evidence of the subject’s practice before the IRS for Circular 230 jurisdiction to be estab-lished. A Form 2848 submitted to the IRS is one source of evidence of practice for purposes of establishing Circular 230’s jurisdiction over the individual desig-nated on the Form 2848. Other forms of evidence of practice can include a tax opinion written for the corporation to support taking a position in its tax return (31 USC 330(d)), or conduct that involves the preparation for compensation of all


are used to substantiate income and expenses.

Backup withholding applies to most payments that are reported on Form 1099, including payments by broker and barter services. If the barter service is required to issue Form 1099-B, Proceeds From Broker and Barter Exchange Trans-actions, they are subject to backup withholding if the barter participant fails to provide their taxpayer identification number.

When the barter transaction includes the exchange of a business service for a personal service, the general rules still apply. Only those expenses which are reasonable and ordinary are deduct-ible as a business expense. The service received for the business is classified as income to the business, and the corre-sponding personal service received in exchange is not a business expense but to be recorded as a personal expense to the business owner. Each barter transac-tion should be posted separately and reconciled just as any bank or credit card statement.

STAFF BIOS:Delta Johnson, Office Administrator:

Office Administrator Delta Johnson keeps the NSTP running like a well-oiled machine, taking a proactive approach in her support of trainers, members and the board of directors. Her goal is always to “Make our members happy!” Noted for her organizational and problem-solving strengths, she is adept at juggling and prioritizing the myriad of timetables essential to efficient association opera-tions.

Delta makes sure that the educational programs presented throughout the country have all the materials they need. Since assuming the office administrator role in 2012, she has brought the printing in house, saving money while increasing productivity. She and her team of five work together and with the board of directors toward organizational growth by bringing value to the members.

Many of the members may not know that Delta brought an amazing back-ground to her current role. She spent 23 years in the business community as a buyer for Nordstrom and later, the

company owner. At the same time, the fair market value of the lawn and mainte-nance services being provided is taxable to the attorney or his firm.

This type of transaction – bartering or trading - can prove to be useful when cash-flow problems would otherwise prevent a person’s ability to secure needed goods and/or services. And, while there is no exchange of cash or credit, the fair market value of the goods and/or services that have been exchanged are taxable to both parties and must be claimed as income on an individual or business’s income tax return.

Barter exchanges have their own unit of exchange, usually known as barter or trade dollars. Trade dollars or barter dollars are valued in U.S. currency for the purposes of information returns. Trade dollars allow barter to take place between parties when one party may not have a simultaneous need or desire for the goods or services of the other members. Barter exchanges act as the bookkeeper for keeping track of trade dollars that participants accumulate. Earning trade or barter dollars through a barter exchange is considered taxable income, just as if your product or service was sold for cash.

The Internet provides a new medium for the barter exchange industry. Pure Internet-based barter companies differ from traditional, organized trade exchanges in that they do not have a physical office. In modern Internet barter exchanges, there is an agreement or process in place to value goods and services exchanged, which is facilitated by the barter exchange for a fee. A barter exchange functions primarily as the organizer of a marketplace where members buy and sell products and services among themselves.

When considering record keeping requirements, barter and trade trans-actions should be treated just like any other financial transaction or exchange. Original cost of goods being bartered or traded, transaction dates, fair market value at the time of the transaction, and other pertinent details should be recorded to assist in the preparation of your income tax return and held for a period of 3 years in accordance with other documents and receipts which

IRA holder are extended to a surviving spouse in a same-sex marriage.

• Employee benefits: Employees may be eligible for employer-provided fringe benefits like health insurance. Previ-ously, if a health insurance plan covered a same-sex spouse of an employee, the employee spouse was taxed on the value of the coverage. Now the coverage is tax-free -- just like it is for spouses of tradi-tional marriages. Other rules involving fringe benefits involving employees in same-sex marriages are still evolving. If the employee choses to amend their tax return(s) to remove the taxable income from the employer-provided benefit, they must also change their tax filing status to married filing separate.

• Divorce: While it is definitely getting easier these days for same-sex couples to get married, the same is not necessarily true for divorce. It is especially compli-cated if a couple was married in another state permitting same-sex marriages but seek dissolution in a state where such marriages are not allowed. Again, the laws in this area are still evolving, so you can expect more developments in the near future.

eTceTerAA TIMELY TIP FROM ENNIS T. PEA

BARTERING AND TRADING? EACH TRANSACTION IS TAXABLE TO BOTH PARTIES

Sometimes, when the right opportu-nity presents itself, people are able to “pay” for goods and services that they need or want by trading goods that they own, or providing a service that they can perform in return. For example, a person who owns a lawn maintenance company may receive legal services from an attorney and “pay” for those services by providing an agreed upon amount of mowing and maintenance services at the attorney’s home or place of business. In this scenario, the fair market value of the legal services that are being provided is taxable to the lawn maintenance


values learning and is striving to help others be their very best.”

Rick Rambo:

Rick started working for NSTP in July 2014. He is an Oregon native and grew up in the Willamette Valley. Currently he resides in Woodland, WA with his wife, two sons and a daughter. His family is currently expecting their fourth child due in November.

Previous to NSTP, he started his career with a non-profit organization called the Oregon Farm Bureau Federation, located in Salem, OR. He was head of the membership department, served as database administrator, and processed accounts receivable. He received data-base certifications while working with the Farm Bureau, and knew he wanted to do more with computers. Rick moved on to a more IT specific position, and began working in the Columbia River Gorge as an IT Support Tech. He worked as a Support Tech and Computer Service Department manager for 5 years.

Being ready for another change, he accepted the position with NSTP. Though he is a new team member, he already feels a part of this close-knit team. He has been welcomed warmly from all staff, and looks forward to serving our members in the future. When not at work, he can be found spending time with his family, riding dirt bikes, enjoying the outdoors, and playing video games.

Kari Wegley:

Kari is the newest member of the NSTP team, starting in September 2014. Growing up in Montana, she now resides in Vancouver WA with her husband of 16 years, their two children, and wonderful puppies.

Kari started her career doing medical reception and data entry. It wasn’t long before she stopped working to stay at home and raise a family. As my two boys were growing older, now 15 and 10, Kari decided to step out of the stay-at-home mom role and head back to work. She’s learned to work well with many different customers as an independent direct sales consultant and the value of persistence as a Process Server. It’s been an exciting journey from sack lunches to “you’ve been served,” and now this next step as part of the NSTP team.

marketing team in the world headquar-ters of the Nautilus Group. Denise’s skills in proofreading, copy editing and copy writing add to her experience in website planning and design.

Denise enjoys working as a team player, and believes that the united efforts of people with varying skill sets will lead to excellence. Denise holds an MFA degree from the University of Oregon, is married and has two children, both grown.

Josh E. Koitzsch:

Joshua E Koitzsch is a Fine Arts and Graphic Design graduate from Clark College and is completing his Network Administrator degree; technology and the arts have always complemented each other. Josh served his country, from 2000-2004 in The United States Air Force as a helicopter mechanic, traveling the world experiencing exotic landscapes and cultures.

Joshua started his career with NSTP September 13, 2013 as the IT specialist. Since starting with NSTP he has been instrumental in helping develop a new database, designing the NSTP website. It’s exciting working for an organiza-tion that utilizes my love of technology, arts and graphic design in a way that is beneficial to the organization and its members. Josh is looking forward to a long and rewarding career with NSTP.

Melody Thum:

When you call the office in Vancouver, the first voice you are likely to hear is that of Melody Thum. You may also recog-nize her voice if you call the tax hotline. Melody began her career with NSTP March 17, 2014.

Melody is a self-described “people person.” She has lived all over the country including, (but not limited to) Georgia, California and Florida. Now residing in Vancouver, Washington with her husband of 21 years, Robert, Melody has 3 beau-tiful daughters. Robyn is going to school in Bronxville, NY at Sarah Lawrence and is in her 2nd year. Missy is 18 and Erin is 13.

“I learned the importance of continuing education from my grandmother who learned a new word from the dictionary every day until she died”. It is that drive to continue learning that Melody enjoys about working at NSTP.” It is such a plea-sure to be a part of an organization that

May Company, generating more than $5 million in sales per year to earn multiple awards, including “Associate Buyer of the Year” and “Buyer of the Year.”

In her spare time, Delta enjoys gardening and swimming with her husband, especially now that her two children are grown.

Delta says, “NSTP has been a great opportunity for my personal and profes-sional growth. I feel honored to be serving in the capacity I have been afforded in this organization.”

Rosalia Vargas:

Rosalia currently resides in Vancouver, WA with her husband Cesar and eight year old daughter Laisha. Before coming to NSTP she worked at Reliable Credit Association Inc. for four years. While working at Reliable Credit she discov-ered her interest and love for numbers, persuading her to return to college and to pursue a career path of accounting. She is currently enrolled in a bachelor in accounting program at Warner Pacific College in Portland, Oregon. It is her desire to pursue a career as a Certificate Public Accountant or as an Auditor. Her favorite classes have been Payroll and Finance. Accounting is like a puzzle, fitting all the pieces together to create one big picture, using logic as the building stone.

She started her career with NSTP January 14, 2013 and feels very fortunate to have the opportunity to work with a company that values honesty, integrity and strong work ethics. Being exposed to the superior quality of educational material that NSTP provides has and will continue to help her in pursuing her degree and a career in the Accounting field. She believes strongly in NSTP and what it provides to their Members and hopes that one day she will be part of the Board of Directors and have a long continuing relationship.

Denise Weston:

Denise has a strong background in small business (both as an owner and in support positions) customer support, and data entry. One of Denise’s earliest jobs in Vancouver was as a receptionist in a small, local tax preparation office.

She has worked in the offices of major local corporations including Hannah Motor Company. Denise was on the


MARK YOUR CALENDAR: NSTP FALL UPDATE SEMINARS ARE COMING TO YOUR CITY

Check the listing for new cities being added this year. The Return Preparer Office has announced a new voluntary program focusing on education for the tax professional – the Annual Filing Season Program (AFSP). NSTP will be offering one and a half day seminars in selected cities to help you meet these new guidelines. The first day will

consist of the traditional 8-hour Fall Update Seminar which includes tax law and tax update continuing education hours. On the second day, NSTP will be offering two optional seminars: 2 hours of Ethics and a 2-hour session on

the Schedule C: Issues Facing the Tax Professional.

The goal of the NSTP Fall Update Seminar is to bring you the information needed to be ready for the upcoming tax season. This includes new legislation, changes in the tax code, and a reference guide for current year tax rates and income limitations. The topics to be included are the premium tax credit, shared responsibility payment, tax

extenders, and changes to the requirements for tax preparers. We look forward to seeing you all this fall.

Go to NSTP.org for the full schedule with hotel location, fees, and any special announcements. All NSTP seminars include coffee service and lunch in the registration fee.

November 2014:

November 3 – 4: Casper, WY

November 6 – 7: Denver, CO

November 10 – 11: Long Island, NY

November 11: Santa Fe, NM

November 12: Minneapolis, MN

November 12 – 13: Boston, MA Springfield, VA

November 13 – 14: Albuquerque, NM

November 14: Detroit, MI

November 17: Kansas City, MO

November 17 – 18: Carteret, NJ Phoenix, AZ

November 19: Des Moines, IA Tucson, AZ

November 20: Baltimore, MD

November 20 – 21: Cottonwood, AZ Charlotte, NC Tampa, FL

November 21: Omaha, NE

November 24 – 25: Chicago, IL Hartford, CT

December 2014:

December 1: Tulsa, OK

December 1 – 2: Atlanta, GA

December 3 – 4: Natchitoches, LA

December 5: Raleigh, NC

December 5 – 6: College Park, MD Pittsburgh, PA

December 8 – 9: Canton, OH Long Beach, CA Manchester, NH Seattle, WA Williamsburg, VA

December 10: San Jose, CA

December 10 – 11: Portland, OR

December 11 – 12: Atlantic City, NJ New York City, NY

December 12: Wilmington, NC

December 15: New Orleans, LA

December 15 – 16: Toms River, NJ

December 16: Austin, TX

December 16 – 17: Houston, TX

December 17 – 18: Ft. Lauderdale, FL

December 18 – 19: Dallas, TX Philadelphia, PA San Antonio, TX

December 19 – 20: Orlando, FL

January 2015:

January 5 – 6: Las Vegas, NV “Grand Event”

January 12 – 13: Cherry Hill, NJ


The Federal Tax Alert is published 10 times a year by the National Society of Tax Professionals.Mailing address: The Federal Tax Alert, 11700 NE 95th St., Suite 100 Vancouver, WA 98682. Telephone: 800-367-8130.

Opinions expressed in The Federal Tax Alert are those of the editors and contributors.Editors: Paul LaMonaca, CPA, MST; Nina Tross, MBA, EA Subscription Services: Delta Johnson

Niagara Falls Special Topics WorkshopDates: May 28 - 29, 2015

Hotel: Sheraton at the Falls in Niagara Falls, New York

Understanding the Challenging Tax Issues Facing the Sole ProprietorshipThis course will address issues regarding preparing the Schedule C and critical issues facing the tax professional in addressing sole proprietorships.

EthicsThis course covers Ethics in 2014 with focus on updated Circular 230. Issues covered include rules governing authority to practice, duties and restrictions related to practicing before the IRS, issues regarding fees and solicitation and standards for tax returns under Circular 230. Also included is a discussion on the status of the new AFSC program.

Cabo Special Topics WorkshopDates: May 5 - 7, 2015

Hotel: Marina Fiesta Resort and Spa in Cabo San Lucas, Mexico

Overview of the 2010 Health Care Act: Affordable Care Act (ACA)This presentation will give the tax professional another opportunity chance of understanding the Health Care Act of 2010. This course will review the issues faced during the 2014 filing season and will review the next level dealing with the mandate of having health insurance coverage and the issue of penalties and credits for individual taxpayers and small business owners.

Introduction to IRS Form 1041 Income Taxation of Estates and TrustsThe course will introduce the tax professional to the reporting requirements of income and deductions related to transactions at the entity level. It will answer the questions of when, why and who pays the tax. Discussion of the pass-through entity requirements will be reviewed along with the proper reporting on Schedule K-1. The class will include the controlling documents (Trust/Will) which tell the story of who the participants are and how the income and deductions are reported to those involved. It will discuss the steps necessary in preparing a proper Form 1041.

Introduction to Foreign Tax Issues Including ITIN IssuesThis course will look at the issues surrounding foreign income reporting such as when and how to report foreign income, as well as the appropriate forms to comply with the reporting of Foreign Bank and Financial Accounts (FBAR) and Foreign Account Tax Compliance Act (FATCA) requirements. During the course of this seminar we will also discuss the foreign earned income tax exclusion and the use of ITINs. Upon completion of the course, the participant will be able to determine when foreign earned income and transactions are required to be reported, to which reporting agency, and which form to use. The participant will be provided with guidelines for the foreign income tax exclusion and the updated procedures regarding the application for and use of ITINs.

Introduction to Foreign Tax Issues Including ITIN IssuesThis course will look at the issues surrounding foreign income reporting such as when and how to report foreign income, as well as the appropriate forms to comply with the reporting of Foreign Bank and Financial Accounts (FBAR) and Foreign Account Tax Compliance Act (FATCA) requirements. During the course of this seminar we will also discuss the foreign earned income tax exclusion and the use of ITINs. Upon completion of the course, the participant will be able to determine when foreign earned income and transactions are required to be reported, to which reporting agency, and which form to use. The participant will be provided with guidelines for the foreign income tax exclusion and the updated procedures regarding the application for and use of ITINs.

NSTP EA Boot CampDates: April 27 - May 1, 2015

Hotel: The Orleans Hotel & Casino Las Vegas, Nevada

NSTP

SAVE THE DATES!

Sign up and you will receive:☑ A comprehensive Enrolled Agent Review Course in print, online and PDF formats☑ Detailed handouts, notes, examples, and illustrations to follow the course step-by-step☑ Detailed study lessons and review questions to help you master each section of the exam☑ Proven exam taking tips, tricks and strategy guides with tips for passing each part of the exam☑ Top 150 questions per part—essential questions on topics that you will absolutely need to master and pass the exam☑ Interactive online review and practice questions with explanations and analysis☑ Final Review Cards—super summaries for each part of the exam and the perfect last minute memory-jogger to review immediately before the exam☑ Comprehensive study aids that summarize the tax law related to particular subject matter These aids will prove invaluable in last-minute reviews prior to the exam


THINGS TO DO IN WILLIAMSBURG: Visit the historic TriangleExperience three living-history museumsColonial Williamsburg's Revolutionary CityHistoric JamestowneJamestown SettlementYorktown Victory CenterYorktown National BattlefieldBusch Gardens Amusement Park

Embassy Suites Hotel Napa1075 California Blvd

Napa, California 94559Phone: (800) 362-2779

Holiday Inn Patriot3032 Richmond RoadWilliamsburg, VA 23185Phone: (757) 565-2600 FOR ADDITIONAL DETAILS OR TO REGISTER ONLINE PLEASE VISIT OUR WEBSITE AT

WWW.NSTP.ORG OR CALL US AT 1-(800) 367-8130

SPEND SOME TIME IN NAPA VALLEY:Balloons above the ValleyWine Country Tour ShuttleNapa Valley Wine TrainOxbow Public MarketThe Hess Collection Winery and Art MuseumNSTP-Sponsored Events

TAKE A TRIP TO THE HISTORIC TRIANGLE:Jamestown, Williamsburg and Yorktown are well-known for their role in the early development of colonial America. Learn first hand about the formation of our country by visiting the first permanent colony in North America. In addition, NSTP’s stellar instructors provide up-to-date, instructive seminars for up to 18 CE credits. You will also meet other tax professionals from all parts of the U.S.

MONDAY, JULY 20, 2015ETHICS SESSION: Ethical Issues Facing the Tax Professional with Emphasis on Circular 230

TUESDAY-WEDNESDAY JULY 21 - 22, 2015:SPECIAL TOPICS WORKSHOP: Nuts and Bolts of a Small Business’s Corporate and Partnership Tax Issues and Know-ing When to Make the Break from a Sole Proprietorship.

VISIT THE MAGNIFICIENT NAPA VALLEY:Join us in the legendary, enchanting Napa Valley, home to award-winning wineries, gourmet food, beautiful scenery and vineyards. Enjoy Napa’s scenic beauty, cutting edge culinary environment, first-rate lodging, arts community, spas, weather and hospitality or spending time in nearby Sonoma or San Francisco. You’ll be taking CE courses from NSTP’s foremost instructors, while meeting other tax professionals from around the country. A wine and culinary tour on Sunday is the perfect way to begin your stay.

MONDAY, JULY 20, 2015EXECUTIVE SESSION: What the Baby Boomer Needs to Know in Order to Maximize Social Security and Medicare Benefits: Traps, Opportunities and Surprises

WEDNESDAY, JUNE 25, 2015ETHICS SESSION: Ethical Issues Facing the Tax Professional with Emphasis on Circular 230

WEDNESDAY, JUNE 25, 2015EXECUTIVE SESSION: What the Baby Boomer Needs to Know in Order to Maximize Social Security and Medicare Benefits: Traps, Opportunities and Surprises

THURSDAY - FRIDAY, JUNE 25 - 26, 2015:SPECIAL TOPICS WORKSHOP: Nuts and Bolts of a Small Business’s Corporate and Partnership Tax Issues and Knowing When to Make the Break from a Sole Proprietorship

Wil

liamsburg

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