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Legislative Update and long awaited Tres and IRS Priority Guidance Plan - Pat Soldano

Government Shutdown Averted at the 11th Hour; McCarthy Ousted from Speakership. On Sept. 30, Congress passed a 45-day continuing resolution (CR) with strong bipartisan support to fund the government until Nov. 17, averting a shutdown. The bill includes $16 billion in disaster relief funding, though it lacks any funding for Ukraine. The aversion effort was spearheaded by then-Speaker of the House Kevin McCarthy (R-CA), who bucked hardline Republicans in pushing the CR forward. Democrats expressed concerns about the elimination of funding for Ukraine in the CR. However, Senate Republicans who support a new tranche of funding for Ukraine believe they will have a better chance at moving that through Congress next month.

IRS Chief Counsel Nominee Fields Republican Concerns. On Sept. 28, the Senate Finance Committee held a hearing considering several nominations, including that of Marjorie A. Rollinson to be chief counsel for the Internal Revenue Service (IRS) and assistant general counsel in the Department of the Treasury. Rollinson was most recently a deputy director of national tax at Ernst & Young (EY) and previously served a stint at the IRS as the associate chief counsel (international). Rollinson’s nomination comes at a time when the IRS and the Treasury Department are under fire for alleged regulatory overreach that does not reflect congressional intent. The most controversial rulemaking has been in response to guidance issued on the energy-tax credits in the Inflation Reduction Act (Pub. L. 117-169 ). In response to a line of questioning from Finance Committee Ranking Member Mike Crapo (R-ID), who asked whether it was appropriate for the IRS to issue guidance that is inconsistent with statute, Rollinson was noncommittal to the assertion that the IRS was engaging in such activity, stating that the current role of the IRS is to interpret statute “within the parameters of the law” and that the Office of Chief Counsel would ensure that they would “advise fully” on proper interpretation of the law for guidance purposes.

Smith, Schweikert Release Letter to IRS Demanding Action on ERTC. On Oct. 3, House Ways and Means Committee Chair Jason Smith (R-MO) and Oversight Subcommittee Chair David Schweikert (R-AZ) sent a letter  to IRS Commissioner Daniel Werfel expressing ongoing concerns over the agency’s implementation of the Employee Retention Tax Credit (ERTC) and its recent decision to temporarily halt the processing of ERTC claims. The letter states that the moratorium will exacerbate an already-large backlog of outstanding claims and delay legitimate claimants from receiving payments. The letter also states that the IRS has not yet developed a plan to both combat fraud and improve efficiency during the moratorium, stating “it remains to be seen what changes will be made … to improve vetting measures for fraudulent claims while also making the processing time more efficient to lessen the backlog.” The letter requests that the IRS respond by Oct. 17 to inquiries regarding the current ERTC claims backlog, the agency’s plan to quicken processing times, and the fraud prevention measures the IRS will employ to combat ERTC fraud.

IRS Releases 2023-24 Priority Guidance Plan. On Sept. 29, the Department of the Treasury and Internal Revenue Service (IRS) released the 2023-24 Priority Guidance Plan  (PGP), which lists 237 guidance projects that the Treasury Department and the IRS aim to address by June 30, 2024. The PGP provides insight into issues the Treasury Department and the IRS have identified as important, often at the behest of taxpayers and practitioners for clarity on particular issues within the tax code, which the Treasury Department and the IRS intend to pursue during the year. The PGP is used as a workflow document to prioritize the tax issues to be addressed through regulations, revenue rulings, notices, revenue procedures and other published administrative guidance. The current plan includes projects to implement the Inflation Reduction Act (IRA) energy provisions, which are a top priority of the Biden administration, along with new projects on international and corporate tax issues, including the IRA’s corporate alternative minimum tax and stock buyback excise tax. The plan also includes new projects relating to pass-through businesses, including guidance on the exception from Self-Employed Contributions Act (SECA) taxes applicable to certain limited partners and a project relating to the section 199A 20% deduction for pass-through business owners.

About Brownstein Hyatt Farber Schreck
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