September 03, 2019 Issue: Fall 2019

As We Go To E-Press – A Few Items from the Editors of the EBC Newsletter

As is the custom, the editors have identified a few recent items worthy of mention but perhaps not extensive discourse.  That does not mean these developments are unimportant but rather that they are, to a large degree, self-explanatory or both too important and too new to address fully.  It is also the case for those in “Well, what about . . . .?” mode that our criteria for inclusion are relatively loose and we make no effort to track every development across the spectrum of concerns covered by JCEB in real time.  We are, however, very interested in what interests you, so please let us know what we left out and whether you know someone who might be interested in developing the omitted item for later article treatment.  In that spirit we offer the following for consideration:

Oops—McEnroe v CIR. Summary Opinion 2019-21 (August 20, 2019).

The McEnroes took out a loan from Mr. McEnroe’s New York City Employee Retirement System account to fund college tuition with the loan repaid by payroll deduction. The grass looked greener and Mr. McEnroe left city employment. Payroll deduction stops. Four months later, he concluded the grass was not greener and returned to city service and resumed payroll deductions on the loan repayment. What he did not do was bring the loan current by paying for the monthly payments missed while he was not in city service. Default is declared and a 1099 was issued for the entire loan balance as a deemed distribution. IRS then assessed additional tax based on the additional income resulting from the deemed distribution and assessed penalties and interest for good measure. On appeal, it became clear the McEnroes had not paid the installment payments for a period of six months, which is, of course longer that the one calendar quarter grace period permitted. Tax and penalty upheld.

The New IRS view of “Sub-regulatory Guidance” Chief Counsel’s Notice 2019-006 (Sep. 17, 2019)

Seventy years ago, English novelist Eric Arthur Blair, writing under a pseudonym, gave us a new word and defined it as follows: “Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them. Elsewhere in this issue one author acknowledges the challenge of defining sub-regulatory guidance and defaults to that which the term does not describe. That brings us to the Notice to Chief Counsel at Treasury and IRS about those agencies earlier issued Policy Statement on the Tax Regulatory Process (The Notice)  and the IRS Policy Statement itself:

[1] The editors acknowledge that for this issue the government editorial slot is unfilled and the views expressed should not be viewed as in any way endorsed by the Government Co-Chair of the Committee (and we added this footnote prior to Co-Chair review on our own initiative ). (he “Policy Statement”) In the Policy Statement, footnote one states:

For the purpose of this policy statement, “subregulatory guidance” means subregulatory guidance published in the Internal Revenue Bulletin. The following types of subregulatory guidance are published in the Internal Revenue Bulletin: revenue rulings, revenue procedures, notices, and announcements. This policy statement does not apply to regulations issued jointly with the Department of Health and Human Services and the Department of Labor under 26 U.S.C. § 9833.

The Policy Statement also announces that in litigation before the U.S. Tax Court, as a matter of policy, the IRS will not seek judicial deference under Auer v. Robbins, 519 U.S. 452 (1997) or Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to interpretations set forth only in sub-regulatory guidance. The limitation of the Policy Statement to the Tax Court is intriguing. The notice further refines the scope of the limitation by noting that arguments regarding the weight to be accorded by a court to IRS positions taken only in sub-regulatory guidance may continue to be made under other case authority, such as Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (weight given to agency’s interpretation proportional to power to persuade); Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978) (longstanding interpretation entitled to considerable weight); and Cottage Sav. Ass’n v. Commissioner, 499 U.S. 554, 562 (1991) (generally known administrative interpretation of statute ratified when Congress re-enacts the statute without change).

The Notice and the Policy Statement are themselves sub-regulatory guidance, of course.  The reader is also referred to the Notice describing the Policy Statement and the following passage:

. . . the policy statement provides that each future notice of intent to issue proposed tax regulations will state that if no proposed regulations or other guidance is released within 18 months after publication of such notice, taxpayers may continue to rely on the notice but, until additional guidance is issued, Treasury and the IRS will not assert a position adverse to the taxpayer based on the notice.

The Editors reaffirm their respect for colleagues at IRS and Treasury operating in a challenging environment.

Final 401(k) and 403(b) Plans Hardship Distribution rules released.

In sharp contrast to the sub-regulatory guidance discussion, IRS issues final rules on hardship distribution: