The Unique Alternative to the Big Four ® What To Do When You Miss a Filing Deadline David Holets and Randall Cathell TEI Florida Annual Conference May

The Unique Alternative to the Big Four®

What To Do When You Miss a Filing DeadlineDavid Holets and Randall Cathell

TEI Florida Annual Conference

May 1, 2015


Audit | Tax | Advisory | Risk | Performance © 2015 Crowe Horwath LLP 2

The information provided herein is educational in nature and is based on authorities that are subject to change. You should contact your tax adviser regarding application of the information provided to your specific facts and

circumstances.



Agenda

Late Filing – Tax Return Income Tax Refund Claims Information Reporting/Payroll

Late Filing – Extensions Late Filing – Elections

In General/9100 Relief Accounting Methods and Periods S Corporation Consolidated Return Elections Net Operating Loss Entity Classification

Late Filing – International General Entity Classification & Related Issues

Working With the IRS to Resolve Taxpayer Issues



Late Filing – Income Tax Returns

Statute Forms 1120, and 1120S

Due: 2 ½ months after year end (Mar. 15) Extended Due Date: 8 ½ months after year end (Sept. 15)

Form 1065 Due: 3 ½ months after year end (Apr. 15) Extended Due Date: 8 ½ months after year end (Sept. 15)




Statute Due date on Saturday, Sunday, or legal holiday

Due date is moved to next day which is not a Saturday, Sunday, or legal holiday Mailbox rule

Tax return is treated as filed on the date mailed if: Sent certified mail Sent through designated private delivery service

See IRS Notice 2001-62, 2001-2 CB 307, 9/17/2001

Electronic Filing Must be “accepted” by the IRS before midnight in the time zone of the taxpayer’s residence Rejected returns have a 10 day perfection period to correct errors Does not apply to payments made with the return If paper filing after an e-file is rejected, due date is later of regular return due date or 10

calendar days after the date of the rejection notice




Penalties Late Filing – IRC Sec. 6651(a)(1)

Base penalty - 5% of the net tax amount required to be shown on the return per month or fraction of a month late Increased to 15% for fraudulent failure to file Net tax – Tax due reduced by allowable credits and tax payments made on or before the due date of the

return (excluding extensions)

Maximum penalty per year is 25% Maximum of 75% for fraudulent failure to file

Reduced by the amount of the late payment penalty in any months both penalties apply Minimum penalty of $135 for income tax returns filed more than 60 days late Penalty period runs from due date of the return (including extensions) to the date IRS actually

receives the return Mailbox rule and Saturday/Sunday/holidays rule do not apply to late-filed returns

Filing of a substitute return does not stop the running of the failure to file penalty




Penalties Schedule K-1 Late Filing penalties for Forms 1065 and 1120S – IRC Secs. 6698, 6699

Failure to timely provide Schedules K-1 to IRS Base penalty - $195 multiplied by:

The number of persons who were partners/shareholders during the year; AND Each month or fraction of a month the penalty continues

Penalty period cannot exceed 12 months Penalty period runs from due date of the return (including extensions) to the date IRS actually





Penalties Failure to Furnish Correct Payee Statements – IRC Sec. 6722

Failure to timely provide correct Schedules K-1 to partners/shareholders Amount of penalty:

$30 if corrected within 30 days $60 if corrected by August 1 $100 for corrections after August 1 In cases of intentional disregard, $250 or, if greater, 10% of the aggregate amount of items to be reported

Maximum penalty: $1.5 million

Limits are lowered for earlier corrections and taxpayers with less than $5 million of gross receipts Maximum does not apply in cases of intentional disregard




Penalties Late Payment – IRC Sec. 6651(a)(2)

Base penalty – 0.5% of the late payment for each month (or fraction of a month) late Increases to 1% commencing with the first month that begins 10 days after a notice of levy is sent to the

taxpayer or the date notice and demand is given for immediate payment under the jeopardy assessment rules

Reduced to 0.25% for months during which an installment payment agreement is in effect if the tax return was timely filed

Maximum penalty of 25% Based on lesser of tax shown on the return as filed or the amount of tax required to be shown

on the tax return Penalty period runs from due date of the return (excluding extensions) to the date IRS actually


Filing of a substitute return does stop the running of the failure to pay penalty




Remedies Proof of timely filing

Certified mail receipt or permitted private delivery service receipt Alternative proof of mailing – Estate of Wood v. Commissioner, 909 F.2d 1155

First time abate IRM Sec. 20.1.1.3.6.1

Can apply to both failure to file and failure to pay penalty Requires clean compliance history for at least three prior years

No “significant” penalties assessed Can request smaller relief amounts via Practitioner Priority line

Larger amounts require written request for relief

Small partnerships – Rev. Proc. 84-35 relief Only available to partnerships, not S corporations Requirements:

Partnership must have 10 or fewer partners Partners can only be individuals other than a nonresident alien, a C corporation, or an estate of a deceased

partner Partners must have full reported partnership taxable income on timely filed tax returns




Remedies Reasonable cause

Can apply to failure to pay and failure to file penalties Failure to file – reasonable cause is established:

“If the taxpayer exercised ordinary business care and prudence and was nevertheless unable to file the return within the prescribed time” – Treas. Reg. Sec. 301.6651-1(c)(1)

Failure to pay – reasonable cause is established: If “the taxpayer has made a satisfactory showing that he exercised ordinary business care and prudence in

providing for the payment of his tax liability and was nevertheless either unable to pay the tax or would suffer an undue hardship…if he paid on the due date” – Treas. Reg. Sec. 301.6651-1(c)(1)

Reliance on tax professional not generally allowed as reasonable cause for late filing penalty relief




What can I do if I know a tax return / payment will be late, but I can’t do anything about it?

File an extension request and pay in as much as possible

File an estimated return based on best information available at the time Consider whether necessary to establish time-sensitive elections If a return includes a Form 5471, remember that a $10,000 penalty will apply for each late filed

Form 5471 (in addition to Forms 5472, 8858, 8865, and 926) Consider whether information provided will be sufficient to be considered a complete tax return Consider disclosing and issues on Form 8275 / 8275-R

File nothing and wait for a notice Work with IRS proactively as soon as notice is received Consider establishing an installment agreement



Late Filing – Refund Claims

Statute Statue of limitations on claims for refund – IRC Section 6511:

Later of: 3 years from the time the tax return was filed; OR 2 years from the time the tax was paid

Mailbox rule applies Saturday/Sunday/legal holiday rule also applies NOTE: If a claim is filed where there is no overpayment of tax, the mailbox and the

Saturday/Sunday/legal holiday rules do not apply Special rule for net operating loss carrybacks:

3 years from the period which ends 3 years after the time prescribed by law for filing the loss year return (including extensions)




Statute Statue of limitations on claims for refund – IRC Section 6511 (cont.):

Special rule where taxpayer and IRS agree to extension of time for assessment purposes: 6 months after the expiration of the agreed extension

Special rule for bad debts and worthless securities: 3 year statute is replaced by a 7 year statute where a carryback claim is created by worthlessness of a debt

under IRC Secs. 166 or 832(c) or worthlessness of a security under IRC Sec. 165(g)

Special rule for foreign tax credits under Sec. 901: 3 year statute of limitations is replaced with a 10 year statute of limitations, IRC Sec 6511(d)(3) Per CCA 201204008, the ability to amend returns more than 3 years back is limited to situations where the

taxpayer claimed deductions for foreign taxes and not foreign tax credits. This ruling is not without controversy.




Remedies Mitigation provisions – IRC Secs. 1311-1314 Legal doctrine of equitable recoupment Taxpayer unable to manage financial affairs due to disability – IRC Sec. 6511(h) Relief due to Presidentially declared disaster areas – IRC Sec. 7508A



Late Filing – Information Reporting/Payroll

Statute Forms W-2/W-3

Recipient Copies Due: January 31 30 day extension is available, but is not automatic. There is no standard form Forms are considered “furnished” if properly addressed and mailed by the due date

IRS Copies Due: Feb. 28 if paper filing, Mar. 31 if e-filing 30 day extension is available by filing Form 8809 Timely filing rules identical to business returns




Statute Forms 1099

Recipient Copies Due: Jan. 31, except Forms 1099-B, 1099-S, and 1099-MISC (for box 8 or box 14 payments only) are due

Feb. 15 30 day extension is available, but is not automatic. There is no standard form Forms are considered “furnished” if properly addressed and mailed by the due date

IRS Copies Due: Feb. 28 if paper filing, Mar. 31 if e-filing 30 day extension is available by filing Form 8809 Timely filing rules identical to business returns




Statute Forms 1042-S – Withholding Tax Return for US Source Income of Foreign Persons

Recipient Copies Due: March 15 Extension available – not automatic Forms are considered “furnished” if properly addressed and mailed by the due date

IRS Copies Due: March 15 30 day extension is available – file Form 8809 Timely filing rules identical to business returns




Statute Forms 1042 – Withholding Tax Return for US Source Income of Foreign Persons

Due: March 15 Extended due date of September 15 by filing Form 7004 Timely filing rules identical to business returns Form 1042 filings are always on calendar year basis, regardless of taxpayer year end




Penalties Failure to File Correct Information Returns – IRC Sec. 6721

Failure to timely provide correct returns to IRS Amount of penalty:

$30 if corrected within 30 days $60 if corrected by August 1 $100 for corrections after August 1 In cases of intentional disregard, $250 or, if greater, 10% of the aggregate amount

of items to be reported Maximum penalty:

$1.5 million Limits are lowered for earlier corrections and taxpayers with less than $5

million of gross receipts Maximum does not apply in cases of intentional disregard




Penalties Failure to Furnish Correct Payee Statement – IRC Sec. 6722

Same as Forms 1065/1120S




Penalties Form 1042

Late payment– identical to Forms 1120/et al. Late filing – identical to Forms 1120/et al.




Remedies See Business returns Additional options for relief

Inconsequential errors or omissions, but such errors never include error in: a TIN; a payee’s surname; or any money amounts

De minimis rule: Forms must be filed by original due date Corrections must be filed by August 1 Penalty will not apply to the greater of 10 information returns or one-half of 1% of the total

number of information returns required to be filed during the calendar year



Late Filing - Extensions

Due by original due date for tax or information reporting return Mailbox rule applies Saturday/Sunday/legal holidays rule applies

Extension to file is not an extension to pay. However, note exception for income tax returns where at least 90% of the amount due

is paid by the due date of a timely extended return and the balance is paid with a timely filed return.

Taxpayers can request payment plan for late payments Online Payment Agreement Application

Available to businesses who owe $25,000 or less in combined tax, penalties, and interest and have filed all required returns.

http://www.irs.gov/Individuals/Online-Payment-Agreement-Application Installment Agreement

Outside of the simplified method above, businesses must generally establish an installment agreement directly with an IRS Revenue Officer seeking payment

http://www.irs.gov/Individuals/Online-Payment-Agreement-Application

http://www.irs.gov/Individuals/Online-Payment-Agreement-Application




Remedies Provide certified mail or approved private delivery service receipt Provide timely e-filing acknowledgement and acceptance Provide additional facts supporting that it is more likely than not a valid, timely request

for an automatic extension was filed IRM Sec. 20.1.2.1.3.1.1 Examples:

Taxpayer can provide evidence that state tax return extensions required to be filed on the same date were also filed

Taxpayer provides documentation of postmark date other than certified mail receipt substantially prior to original return due date




Is an extension of time to file valid if the amount of tax shown on the extension is significantly understated and/or sufficient payment was not made with the extension? Notice 93-22 – IRS relaxed requirement to pay tax due in full with individual extension

Form 4868 Late payment penalty continues to apply Late filing penalty will not apply Continues to require taxpayer to make a reasonable estimate of income

See C. Anson Garrett, TC Memo 1994-70 – extension was not made in good faith where the taxpayer estimated 0 tax liability, but had enough information to make a “reasonable estimate” of income from an installment sale obligation

Taxpayer was required to make a “bona fide and reasonable attempt to locate, gather, and consult information which will enable him to make a proper estimate of his tax liability”

IRS has not issued similar guidance for business and other returns However, see Steven J. Cannata, TC Memo 1990-502, in which tax preparer made a bona fide

and reasonable attempt to estimate the taxpayer’s liability, which was honored by the court



Late Filing – Elections in General

Many Federal tax elections are required to be filed with a timely filed original tax return Election to forgo bonus depreciation Election to forgo net operating loss carryback Alternative Simplified Research Credit election Section 280C election Election to ratably accrue real estate taxes




Remedies File superseding return

IRS generally permits a return filed before the original due date (excluding extensions) to be considered a superseding return

Return is treated as original return File an amended return

Generally requires specific ability to be corrected by an amended return under IRS guidance

Some elections may be corrected through an accounting method change Election to ratably accrue real estate taxes




Remedies 9100 relief

Treasury Regulations Sec. 301.9100-1 through -3 12-month automatic extensions

LIFO election 444 election 15-month rule for certain 501(c) ruling requests

6-month automatic extensions Regulatory and statutory election due at the due date of a timely filed tax

return Does not extend filing requirement beyond extended tax return due date

Private letter ruling requests Must demonstrate reasonable action and good faith Cannot prejudice the interests of the government



Late Filing – Accounting Methods and Periods

Statute Automatic change Form 3115, Application for Change in Accounting Method

Due: with timely filed tax return (including extensions) Copy must be filed with IRS National Office not later than the tax return is filed

Advance consent Form 3115 Due: by the last day of the year for which the change is to be effective

Copy of accepted method change must be attached to the return during the year for which the change is effective

Subsequent tax returns should not be filed using the requested method of accounting until acceptance is granted




Statute Automatic change Forms 1128, Application to Adopt, Change, or Retain a Tax Year

Due: by the due date of the return (including extensions) of the short period required to effect the change Copy must be filed with IRS National Office not later than the tax return is filed

Advance consent Forms 1128 Due: by the due date (not including extensions) of the Federal income tax return for the first

effective year In the case of a change of tax year, the first effective year is the short period required to

effect the change Copy of accepted method change must be attached to the return during the year for which

the change is effective




Remedies Generally limited – changes in accounting method generally not granted on a

retroactive basis Exceptions:

9100 relief: Generally not applicable to methods and periods unless dealing with a regulatory or statutory

election, a Section 444 taxable year election, a LIFO election Can qualify for automatic relief or private letter ruling relief depending on facts (see earlier

discussion) Private letter ruling

Can request extension of time to file Form 3115 IRS fee as of February 4, 2015: $9,100

May be subject to a separate user fee as well Can also request extension of time to file Form 1128 IRS fee as of February 4, 2015: $3,700

May be subject to a separate user fee as well



Late Filing – S Corporation

Statute Election due: Fifteenth day of the third month of the taxable year the election is to be

effective (March 15) Mailbox rule applies Saturday/Sunday/legal holiday rule applies

File a current, completed Form 2553 Board of directors approval is unnecessary

Properly report the year to be effective Note that S corporation is considered as starting at the earlier of when the corporation first had

shareholders, assets, or started doing business Also take care to elect a proper valid year

Acquire signed shareholder consent from all shareholders during the year of election on the date the election is to be made

Make all other required elections QSST, Q-sub, ESBT




Remedies Revenue Procedure 2013-30

Taxpayers granted automatic relief for late S elections, ESBT elections, QSST elections, and Qsub elections if they meet guidelines

Requirements: Corporation intended to be an S corporation as of a specific date; Corporation requests relief within 3 years and 75 days of election effective date; Failure to qualify was solely because the election was not timely filed, and The corporation had reasonable cause and acted with diligence to correct the issue

Relief is requested by: File late election form with all supporting documents

Late election forms must be signed by a corporate officer and all shareholders Shareholders must include statements that they have reported all income from the S corporation

consistent with the election Include all required representation from Rev. Proc. 2013-30

Include a reasonable cause statement on the late election form Must be signed under penalties of perjury

Write “FILED PURSUANT TO REV. PROC. 2013-30.” at the top of the late election form The late election may be included with an S corporation tax return or filed separately




Remedies 9100 Relief

Automatic 6-month extension provided from the due date of a return excluding extensions for regulatory or statutory elections

Granted where the due date of the election is the due date of the return or the due date including extensions provided the tax return was timely filed and the taxpayer takes “corrective action” Correction action generally includes filing an amended return including the election Return must include statement “FILED PURSUANT TO §301.9100-2” at the top

Private letter ruling For situations other than those described in Rev. Proc. 2013-30



Late Filing – Consolidated Return Election

Statute Due: Form 1122 must be attached to the initial timely filed consolidated return for each

subsidiary added to a consolidated group If the copy attached to the return is unsigned, a signed copy must be maintained in

corporate records



Late Filing – Consolidated Return Election

Remedies Rev. Proc. 2014-24 automatic relief

The affiliated group timely filed a consolidated return including Form 851, “Affiliations Schedule” or otherwise clearly indicated the filing of a consolidated return

The nonfiling subsidiary was not prevented from joining the filing for any reason other than a failure to file Form 1122

The nonfiling subsidiary did not file a separate return during the time included in the consolidated group

One of the following conditions is met: Form 1122 was not filed due to a mistake of law, mistake of fact, or inadvertence Form 1122 was not filed due to a mistake of law, mistake of fact, or inadvertence, provided the nonfiling

subsidiary was included as part of another member of the group (for example, as a disregarded entity of the member)

Form 1122 was not filed because the group believed the nonfiling subsidiary was taxable as a partnership, providing all of the subsidiary’s income was included in the consolidated return as part of the income and deductions of its partners

If Rev. Proc. 2014-24 does not apply, relief may be available by filing for a determination letter



Late Filing - International

Statute FinCEN Form 114 (FBAR)

Due: June 30 No extensions available Required to be filed electronically

Form 5471 – Controlled Foreign Corporations Due at the same time as the owning entity (including extensions)

Form 926 – Transfers to Foreign Corporations Required to be filed by each US person/entity who transfers property to a foreign corporation or

foreign partnership Due at the same time as the US return for the person/entity completing the transfer




Statute Form 5472 – Information Return of 25% Foreign-Owned US Corporation or Foreign

Corporation Engaged in a US Trade or Business Due with reporting corporation’s timely filed US tax return (including extensions)

Form 8865 – Foreign Partnerships Due with reporting entity’s federal income tax return (including extensions)

Form 8858 – Information Return with Respect to Foreign Disregarded Entities Due with reporting entity’s federal income tax return (including extensions)




Penalties FinCEN Form 114

Failure to file penalty - $10,000 – 31 U.S. Code Sec. 5321 Increased to the greater of $100,000 or 50% of the balance in the account required to be reported for willful

violations

Form 5471 Failure to furnish information within the time provided penalty - $10,000 – IRC Sec. 6038(b)

Applies to each Form 5471 which is not filed Increased by $10,000 for each 30-day period during which the failure continues if the failure continues more

than 90 days after the taxpayer is mail a notice of failure to file, up to $50,000

IRS may also reduce related foreign tax credits by 10% - IRC Sec. 6038(c) Form 926

Failure to furnish information within the time provided penalty – 10% of FMV of property at time of the exchange Penalty is limited to $100,000 unless the failure was due to intentional disregard




Penalties Form 5472

Failure to furnish information within the time provided penalty - $10,000 – IRC Sec. 6038A(d)(1) Applies to each Form 5472 which is not filed Increased by $10,000 for each 30-day period during which the failure continues if the failure continues more

than 90 days after the taxpayer is mail a notice of failure to file

Form 8865 Penalties identical to Form 5471

Form 8858 Penalties identical to Form 5471




Remedies Reasonable cause relief

Must demonstrate reasonable cause For Form 5471 et al, reasonable cause relief request must be included in a written statement

made under penalties of perjury For FinCEN Form 114, must also properly report account balances

OVDP For applications after July 1, 2014 – see:

http://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers-2012-Revised

FAQ 17 has been deleted Previously provided an option to (easily) obtain relief from $10,000 penalty in certain circumstances IRS now indicates to use the late filing explanation field on FinCEN Form 114






Late Filing – Entity Classification – Form 8832

Statute Due: No more than 12 months before or 75 days after effective date Copy must be filed with IRS Service Center and also be attached to return for year of

election Some planning opportunities exist within the 75 day rule, and the late filing relief

provisions (but outside the scope of this presentation)




Remedies Rev. Proc. 2009-41 automatic relief

Business must have failed to achieve desired business classification solely because it failed to timely file Form 8832

Business must either: Not have filed a tax or information return for the first year of the election because

the due date has not passed; or Have filed all required federal returns consistent with the intended classification

Process: Filed 8832 with applicable service center within 3 years and 75 days of the

effective date Include a reasonable cause statement




Remedies Letter ruling request

For entities who do not meet Rev. Proc. 2009-41 guidance Must include following representation:

“All required U.S. tax and information returns of the entity (or, if the entity was not required to file any such returns under the desired classification, then all required U.S. tax and information returns of each affected person as defined in Section 4.02 of Rev. Proc. 2009-39) were filed timely or within 6 months of the due date of the respective return (excluding extensions) as if the entity classification election had been in effect on the requested date. No U.S. tax or information returns were filed inconsistently with those described in the prior sentence.“

IRS user fees will apply



Entity Classification - Default Rules

U.S. Rules vs. Foreign Rules

Corporate Default Rules - Domestic

Business entity organized under U.S. Federal or State statute as Incorporated, joint stock company, Insurance Company, owned by a foreign government, etc.

Treas. Reg. 301.7701-2(b)(1) through (7)

LLC treated as pass-through if no check the box (“CTB”) election is filed

Foreign Default Rules Per Se Corporations: “S.A.” for example Treas. Reg. 301.7701-2(b)(8) – listing of foreign corporate types SRL, SARL, Limitada – generally ok for CTB election Form 8832 Instructions



Entity Classification: US vs. Foreign Rules

Domestic Partnerships

Default Rule: Treas. Reg. 301.7701-2(c)(1)

“The term ‘partnership’ means a business entity that is not a corporation under [Reg. 301.7701-2(b)] and that has at least two members”

Foreign Partnerships

By default, only foreign entities organized as “General Partnerships” are treated as Foreign Partnerships. At least one member must have unlimited liability.

“Foreign LLCs” are not Foreign Partnerships by default. An election to treat an LLC as a Partnership is required for partnership / flow-through treatment. Treas. Reg. 301.7701-3(b)(2)(i)(B).

Analysis of foreign rules (by foreign practitioner) of “Limited Liability” may be required

In most cases, Form 8832 - Entity Classification Election is required (at least recommended) for flow-through treatment of foreign entities.



Single Member Entities

Domestic Disregarded Entity (“DRE”) – Default rule

Treas. Reg. 301.7701-3(b)(1)(ii) – Single Member LLC

Foreign Disregarded Entity (“FDRE”) – Default rule

FDRE status only if single owner has unlimited liability

Treas. Reg. 301.7701-3(b)(2)(i)(c)

May require analysis of foreign law by foreign practitioner

Again, in most cases, Form 8832 - Entity Classification Election is required (at least recommended) for flow-through treatment of foreign entities!



What is the result if Form 8832 was not filed timely?

Outbound Taxpayer – Conversion of Foreign Corp to FDRE:

Liquidation of foreign corporation, resulting in a taxable transaction for the U.S. owner.

Inbound Taxpayer – Conversion of US SMLLC to US Corp:

Late election may result in a deemed IRC Sec 351 transaction.



Consequences of Tax Returns Filed Without Timely Form 8832 - Outbound

When FDRE or foreign partnership tax treatment is desired:

IRC Section 367-(a)(1) – Transfers of property from the United States – Gain is normally triggered

Failure to file IRS Form 5471 may result in a $10,000 penalty under IRC Sec 6038 for each occurrence. Statute of limitations may remain open until forms are filed.

Net operating losses of the foreign entity are disallowed on U.S. owners’ / partners’ federal and state tax returns.

May require multitude of amended returns and/or additional tax payable if losses were utilized



Consequences of Tax Returns Filed Without Timely Form 8832 - Outbound

Outbound Investment – Impact of late election filed when FDRE or foreign partnership treatment is desired:

Results in a deemed distribution of all assets and liabilities of existing foreign corp, and an immediate contribution of these assets and liabilities to the new FDRE / pship: Treas. Reg. 301.7701-3(g).

IRC Section 336(a) is applied to the corporation’s deemed liquidation.

IRC Sections 334(a) and 1001(a) are applied at the shareholder level.

Failure to file Forms 8858 and/or 8865 may in a $10,000 penalty under IRC Secs 6038 and 6046A for each occurrence.

Statute of limitations may remain open until filed.



Consequences of Tax Returns Filed Without Timely Form 8832 – Outbound, continued

Foreign Tax Credit Impacts:

U.S. Individual Shareholder – No FTC available on Form 1040

U.S. Partnership Shareholder – No FTC flowing to Form 1065. Amend K-1s!

U.S. Corporation – Indirect credit available if dividend is paid (or deemed paid) and Sec 78 gross up included in taxable income

FTCs related to withholding taxes incurred on dividends paid available in all cases, at least

Potential for dividend taxation on income from non-taxable distributions from the foreign partnership.



Consequences of Tax Returns Filed Without Timely Form 8832 – Inbound Investment

Foreign corporation establishes wholly-owned US SMLLC

Without entity classification election, foreign corp merely has a branch in the US via the LLC.

Thus, foreign corp is directly subject to IRS jurisdiction, and must file Form 1120-F (instead of domestic 1120 as otherwise envisioned)

Failure to timely file Form 1120-F subjects the foreign corporation to US income tax on gross income, excluding deductions.

See Reg Sec 1.882-4(a)(2): 18-month rule for timely filing Form 1120-F. Deductions are potentially subject to disallowance

Mixed results in court cases.



Working with the IRS to Resolve Issues

Business and Specialty Tax Line 1-800-829-4933 Open weekdays 7 AM to 7 PM local time Form 2848 or 8821 may be required depending on relationship to company Can check for availability of first time abate and, in some cases, grant it Can check if returns and/or extensions were erroneously posted to the wrong

account



Other Issues

IRS e-Services Can get immediate account transcripts when a 2848 or Form 8821 is on file Only available to registered tax professionals Business must generally request account transcripts either by phone or with Form

4506 or 4506-T Notice response

Timely respond to notices with requests for first time abate/reasonable cause relief Rejected relief requests can be elevated to IRS Appeals

Formal written protest must be filed in all employee plan, exempt organization, partnership, and S corporation issues without regard to dollar amount

Small case requests available if the total amount disputed is not more than $25,000



Crowe Horwath LLP is an independent member of Crowe Horwath International, a Swiss verein. Each member firm of Crowe Horwath International is a separate and independent legal entity. Crowe Horwath LLP and its affiliates are not responsible or liable for any acts or omissions of Crowe Horwath International or any other member of Crowe Horwath International and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horwath International or any other Crowe Horwath International member. Accountancy services in Kansas and North Carolina are rendered by Crowe Chizek LLP, which is not a member of Crowe Horwath International. © 2015 Crowe Horwath LLP

For more information, contact:

David Holets, CPA

Direct 317.706.2683

[email protected]

Randall Cathell, CPA

Direct 954.202.8636

[email protected]

mailto:[email protected]

mailto:[email protected]

Documents

The Unique Alternative to the Big Four ® What To Do When You Miss a Filing Deadline David Holets and Randall Cathell TEI Florida Annual Conference May