Since the Court of Appeals for the Second Circuit decided J. Chai, there has been an explosion of litigation exploring the nuances of Code Sec. 6751(b)(1): "No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate." In Chai, the Second Circuit held that "the written-approval requirement of Section 6751(b)(1) is appropriately viewed as an element of a penalty claim, and therefore part of the IRS's prima facie penalty case."
Tax return preparation is not for the faint of heart. Return preparers are expected to understand and advise their clients on a myriad of ever-changing tax issues, from what type of entity will provide the best tax advantages for a business to which deductions have been created, expanded, or eliminated under the tax code. Clients expect their tax professionals to have all the answers to their tax-related questions and to be able to help them keep taxes as low as legitimately possible. To read the article in its entirety, click here.
Your client has been reading the news about deducting real estate losses and comes to you wanting to know: why didn’t you tell me about all the deductions I could have been taking for my rental real estate losses? And can I pay a lower tax rate on my gains? You explain to your client that it is much harder to deduct real estate losses than the current news makes it seem. But your client, who owns several businesses, only one of which is real estate, wants to know – how do I start taking advantage of this deduction? To read the article, click here.
The Sixth Amendment guarantees the right to conflict-free counsel in a criminal case. In addition to the obvious question of whether an attorney can represent co-defendants in a white-collar criminal case, there is the less obvious question of whether the attorney owes a professional duty to non-clients: the criminal defendant’s spouse and children. Whether an attorney owes a professional duty to a non-client, including the spouse of a client, depends on the state where the representation takes place. To read the article, click here.
In Estate of Marion Levine v. Commissioner, Docket No. 13370-13, the United States Tax Court issued a designated Order that granted the petitioner's motion to limit the scope of an IRS subpoena duces tecum served on petitioner's prior counsel. Attorneys from the Estate's first law firm of record completed the estate planning during the decedent's life, prepared and filed the estate tax return, defended an IRS examination, and, when the outcome of the examination wasn't favorable to the Estate, filed a petition in Tax Court after the Notice of Deficiency was issued in 2013. The original law firm's representation of the Estate continued through 2015, when new counsel entered an appearance on behalf of the Estate. To read this article, click here.
Supreme Court Justice Potter Stewart authored one of the most famous phrases in U.S. jurisprudence in describing his test for obscenity: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Although the courts have not been quite as candid in acknowledging their inability to articulate intelligible boundaries for criminal obstruction of the internal revenue laws, recent court opinions, prosecutorial policies, and charging decisions leave taxpayers and their advisors wondering if there are any articulable and objective limits on the omnibus clause of Code Sec. 7212(a), or whether the only standard is that prosecutors and courts claim to know obstruction when they see it. To read more click here.