Vol. 30 No. 1 - Fall 2010

Three Once and Future Issues

Charlene Luke

Ten years is a long time in the world of tax; after all, few (if any) would have predicted this year’s estate tax conundrum ten years ago. In this short column, I will restrict myself to commenting about a handful of tax issues. ...

From the Chair

Charles H. Egerton

At the May 2010 meeting of the Tax Section in Washington, DC, I had the opportunity to make a few comments at a dinner honoring our first time attendees. This is a relatively new event that Section leadership initiated for each of our three yearly meetings in order to help our members who are attending a Tax Section Meeting for the first time to feel welcome. The complimentary dinners, which generally commence with an icebreaker cocktail reception followed by dinner, introduce the attendees to a number of their colleagues from around the country, acquaint them with how our meetings operate, and help them get the most out of the meeting. ...

Interview: Steven A. Musher

Jasper L. Cummings, Jr.; Alan J.J. Swirski

Steve Musher is IRS Associate Chief Counsel (International).

Temporary Regulations on NOL Carrybacks for Taxpayers Filing Consolidated Returns

Andrew Reiter and Michael G. Lapidus

On June 22, 2010, the Service issued temporary and final regulations (T.D. 9490; REG-151605-09) which provide guidance to consolidated groups and implement the extended net operating loss (NOL) carryback rules of section 172(b)(1)(H). ...

Limitation by Regulation: Heads the Service Wins, Tails the Taxpayer Loses?

Leandra Lederman, Stephen W. Mazza

When an Internal Revenue Code section does not contain an express deadline, or contains a limitation period that is at least arguably ambiguous in scope, the Treasury Department may promulgate regulations to fill the gap. A couple of recent cases, Lantz v. Commissioner, 132 T.C. 131 (2009) (reviewed by the court), rev’d and remanded, 607 F.3d 479 (7th Cir. 2010), and Intermountain Ins. Serv. of Vail, LLC v. Commissioner, 134 T.C. No. 11 (2010), 2010 WL 1838297, provide an interesting contrast because, in one, the Treasury imposed a deadline on a taxpayer benefit, where none existed in the statute, and, in the other, the Treasury tried to expand the scope of an extended statute of limitations on assessment. ...

Why Retirement Is Preferable to Death: Taxes

Alyssa A. DiRusso

Those choosing between enjoying an extended retirement and submitting to an earlier death may be inclined to choose retirement—for tax purposes. The potential tax-free transfer window of 2010 aside, the gross uncertainty of the federal estate tax system makes dying rich a very complicated endeavor. The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) has been creating headaches for estate planners for nearly a decade, but the migraine has peaked this year. ...

Social Security Spouse and Survivor Benefits 101: Practical Primer Part II (Or Another Reason to Put a Ring on It)

Francine J. Lipman, James E. Williamson

As the country and courts continue to debate the importance of marriage in a variety of contexts, when determining Social Security benefits it is clear that marriage matters. Marriage matters for Social Security benefits planning because of meaningful spouse and survivor benefits. Given the broad and deep devastation of a record recession on retirement and saving accounts, including the continuing demise of defined benefit plans with joint and survivor benefits protection, Social Security benefits, generally, and spouse and survivor benefits, specifically, have become and will continue to be a more significant percentage of retirees’ income. ...

401(k) Follies: A Proposal to Reinvigorate the United States Annuity Market

Paul M. Secunda

One does not need to do anything but look around to see that the United States population is aging at an alarming pace. With the aging of America, more emphasis has been placed on retirement security. The three-legged stool of retire-ment security—personal savings, Social Security, and private pension accounts—is increasingly dependent on the private pension leg. This is because personal savings rates in the United States are near or at an all-time low, and Social Security, even if we assume it will remain solvent, merely provides a fraction of what most people need to live comfortably in retirement. ...

Durable Power of Attorney, Health Care Power of Attorney, and Advance Directives

Don R. Castleman

Any discussion of retirement planning should address the situation that arises once we can no longer make decisions in our own behalf and someone else must do so for us. If we do not make provision for those circumstances while we are still competent to do so, it becomes necessary for the courts to do it and the costs and complications are significant. We can avoid those complications and costs with three relatively simple instruments: durable power of attorney; health care power of attorney; and advance directive (or “living will”). ...

Wish-List for the Federal Tax System in the Year 2020

Joseph M. Dodge

Twenty-twenty is fine for hindsight, but not for foresight. The only prediction I shall hazard is that few, if any, of the items on my wish-list below will be enacted. The organizing theme of my wish-list for the Year 2020 is that the individual federal income tax be intelligible as a tax based on ability to pay and as simple as possible. Distinctions without a differ-ence should be abolished. ...

Tax Bites Makes Movies for Tax Lawyers

Gail Levin Richmond

Perhaps you’ve been too busy to go to the movies. Perhaps none of the titles or plots sounded appealing. Perhaps you need to spend your spare time accumulating CLE credits. Whatever the reason, consider it gone. Hollywood wants you back so much that the powers-that-be asked Tax Bites for help. Our response was simple: remake popular old films using new titles and plots. The new titles appear below. The plots are up to you—Tax Bites will publish creative submissions in a future issue. ...

The Supreme Court’s Federal Tax Jurisprudence (By Jasper L. Cummings, Jr.)

Peter L. Faber

Jasper L. Cummings, Jr., an experienced tax practitioner and former Service official, has written an excellent analysis of the Supreme Court’s federal tax jurisprudence. Having reviewed over 900 Supreme Court opinions focusing on federal tax matters, Mr. Cummings concludes that the Supreme Court has had a significant impact on the development of the tax law although its opinions have often been misinterpreted. ...

ABA Section of Taxation CLE Calendar

A calendar of upcoming CLE opportunities.

Boxscore

Submissions and comments on government regulations, administrative rulings, ABA policy and blanket authorities.