Monday, August 31, 2009

Testimoney on IRS abuses

http://waysandmeans.house.gov/hearings.asp?formmode=view&id=7965

There are over 8,000 persons following this blog. Most are tied into the tax preparation industry. For those who have clients with difficult IRS experiences, have them upload those experiences to www.irsforum.org.

Also let me know if any of those reading this blog have an interest in working with me on the IRS tax lien and tax levy issues identified in my testimony.

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Rev. Proc 2009-35 Form 1042-S

Rev. Proc. 2009-35 , I.R.B. 2009-35, 265, August 31, 2009.





The IRS has announced updated specifications for electronically filing Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding. Rev. Proc. 2009-35 must be used to prepare information returns filed in the 2010 calendar year. Most of the changes for 2009 forms filed in 2010 are editorial in nature, and are made throughout the publication. In addition, several telephone numbers supplied for contact purposes have been changed, the formula for determining U.S. Federal Tax Withheld was changed and a taxpayer's file size was limited to 899,999 records. The procedure will be reproduced as the current version of Publication 1187, Specifications for Filing Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding, Electronically or Magnetically. Rev. Proc. 2008-44, I.R.B. 2008-30, 187, is superseded.




NOTE:

Following is a list of related instructions and forms for filing Form 1042-S Electronically:


Ÿ Current paper Instructions for Form 1042-S



Ÿ Form 4419 --Application for Filing Information Returns Electronically (FIRE)



Ÿ Form 8508 --Request for Waiver From Filing Information Returns Electronically



Ÿ Form 8809 --Application for Extension of Time To File Information Returns



Ÿ Publication 515 --Withholding of Tax on Nonresident Aliens and Foreign Entities (for general information and explanation of tax law associated with Form 1042-S)



Ÿ Publication 901 --U.S. Tax Treaties


The Internal Revenue Service (IRS), Enterprise Computing Center at Martinsburg (ECC-MTB) encourages filers to make copies of the blank forms in the back of this publication for future use. These forms can also be obtained by calling 1-800-TAX-FORM (1-800-829-3676). You can also download forms and publications from the IRS Web Site at www.irs.gov.

IMPORTANT NOTES:

Electronic filing will be the ONLY acceptable method for filing Form 1042-S at IRS/ECC-MTB. IRS/ECC-MTB offers an Internet connection at http://fire.irs.gov for electronic filing. The Filing Information Returns Electronically (FIRE) System will be down the week of December 22, 2009 through January 4, 2010 for upgrading. It is not operational during this time for submissions. In addition, the FIRE System may be down every Wednesday 3:00 a.m. to 5:00 a.m. EST for maintenance.

The Form 4419 is subject to review before the approval to transmit electronically is granted and may require additional documentation at the request of the IRS. If a determination is made concerning the validity of the documents transmitted electronically, IRS has the authority to revoke the Transmitter Control Code (TCC) and terminate the release of the files.

Rev. Proc. 2009-35




TABLE OF CONTENTS





Part A. General


SEC. 1. PURPOSE

SEC. 2. NATURE OF CHANGES --CURRENT YEAR (TAX YEAR 2009)

SEC. 3. WHERE TO FILE AND HOW TO CONTACT THE IRS, ENTERPRISE COMPUTING CENTER AT MARTINSBURG

SEC. 4. FILING AND RETENTION REQUIREMENTS

SEC. 5. VENDOR LIST --PUBLICATION 1582

SEC. 6. FORM 4419, APPLICATION FOR FILING INFORMATION RETURNS ELECTRONICALLY (FIRE)

SEC. 7. DUE DATES

SEC. 8. VALIDATION OF INFORMATION RETURNS AT IRS SERVICE CENTER

SEC. 9. AMENDED RETURNS

SEC. 10. TAXPAYER IDENTIFICATION NUMBER (TIN)

SEC. 11. EFFECT ON PAPER RETURNS AND STATEMENTS TO RECIPIENTS

SEC. 12. PENALTIES ASSOCIATED WITH INFORMATION RETURNS

SEC. 13. DEFINITION OF TERMS

SEC. 14. STATE ABBREVIATIONS




Part B. Electronic Filing Specifications


SEC. 1. GENERAL

SEC. 2. ELECTRONIC FILING APPROVAL PROCEDURE

SEC. 3. TEST FILES

SEC. 4. ELECTRONIC SUBMISSIONS

SEC. 5. PIN REQUIREMENTS

SEC. 6. ELECTRONIC FILING SPECIFICATIONS

SEC. 7. CONNECTING TO THE FIRE SYSTEM

SEC. 8. COMMON SUBMISSION PROBLEMS AND QUESTIONS




Part C. Record Format Specifications and Record Layouts


SEC. 1. TRANSMITTER "T" RECORD

SEC. 2. WITHHOLDING AGENT "W" RECORD

SEC. 3. RECIPIENT "Q" RECORD

SEC. 4. RECONCILIATION "C" RECORD

SEC. 5. END OF TRANSMISSION "F" RECORD




Part D. Extensions of Time and Waivers


SEC. 1. GENERAL --EXTENSIONS

SEC. 2. SPECIFICATIONS FOR FILING EXTENSIONS OF TIME ELECTRONICALLY

SEC. 3. RECORD LAYOUT --EXTENSION OF TIME

SEC. 4. EXTENSION OF TIME FOR RECIPIENT COPIES OF INFORMATION RETURNS

SEC. 5. FORM 8508, REQUEST FOR WAIVER FROM FILING INFORMATION RETURNS ELECTRONICALLY

Use this Revenue Procedure to prepare Tax Year 2009 and prior year information returns for submission to Internal Revenue Service (IRS) electronically.

This Revenue Procedure is not revised every year. Updates will be printed as needed in the Internal Revenue Bulletin. General Instructions for Form 1042-S are revised every year. Be sure to consult current instructions when preparing Form 1042-S.




Part A. General


Revenue Procedures are generally revised annually to reflect legislative and form changes. Comments concerning this Revenue Procedure, or suggestions for making it more helpful, can be addressed to:

Internal Revenue Service
Enterprise Computing Center --Martinsburg
Attn: Information Reporting Program
230 Murall Drive
Kearneysville, WV 25430



Sec. 1. Purpose

.01 The purpose of this Revenue Procedure is to provide the specifications for filing Form 1042-S with IRS/ECC-MTB electronically through the FIRE (Filing Information Returns Electronically) System. This Revenue Procedure must be used to prepare current and prior year information returns filed beginning January 1, 2010, and received by IRS/ECC-MTB by December 31, 2010.

.02 Generally, the box names on the paper Form 1042-S correspond with the fields used to file electronically; however, if discrepancies occur, the instructions in this Revenue Procedure govern.

.03 This Revenue Procedure supersedes Rev. Proc. 2008-44 published as Publication 1187, Specifications for Filing Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding, Electronically.

.04 Refer to Part A, Sec.13, for definitions of terms used in this publication.

.05 Specifications for filing Forms W-2, Wage and Tax Statements, electronically are available from the Social Security Administration (SSA) only. Filers can call 1-800-SSA-6270 to obtain the telephone number of the SSA Employer Service Liaison Officer for their area.

.06 IRS/ECC-MTB does not process Forms W-2. Forms W-2 must be sent to SSA. IRS/ECC-MTB does, however, process waiver requests (Form 8508) and extension of time to file requests (Form 8809) for Forms W-2 and requests for an extension of time to provide the employee copies of Forms W-2.

.07 Every withholding agent (defined in Section 13) must file an information return on Form 1042-S to report amounts paid during the preceding calendar year that is U.S. sourced income. See Publication 515 for additional guidance on what is considered U.S. sourced income. You must file a Form 1042-S even if you did not withhold tax because the income was exempt from tax under a U.S. tax treaty or the Code, including the exemption for income that is effectively connected with the conduct of a trade or business in the United States, or you released the tax withheld to the recipient. Amounts paid to bona fide residents of U.S. possessions and territories are not subject to reporting on Form 1042-S if the beneficial owner of the income is a U.S. citizen, national, or resident alien.

Caution: If you are required to file Form 1042-S, you must also file Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons. See Form 1042 for more information.

.08 The following Revenue Procedures and publications provide more detailed filing procedures for certain information returns:


(a) Paper Instructions for Form 1042-S.



(b) Publication 1179, General Rules and Specifications for Substitute Forms 1096, 1098, 1099, 3921, 3922, 5498, 8935, W-2G and 1042-S.



(c) Publication 1239, Specifications for Filing Form 8027, Employer's Annual Information Return of Tip Income and Allocated Tips, Electronically.



(d) Publication 1220, Specifications for Filing Forms 1098, 1099, 3921, 3922, 5498, 8935 and W-2G, Electronically.



(e) Publication 3609, Filing Information Returns Electronically (FIRE).



(f) Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons.




Sec. 2. Nature of Changes --Current Year (Tax Year 2009)

Editorial changes have been made throughout this publication. Please read the entire publication carefully.

.01 The following telephone number changes:


Toll-free fax number 877-477-0572



International fax number 304-579-4105



TDD Number 304-579-4827 (Telecommunications Device for the Deaf)


.02 The formula for determining U.S. Federal Tax Withheld located in Part A, Section 8 .09 was modified.

.03 Your file size cannot exceed 899,999 records.

.04 Amended transactions must reflect an Amended Code Indicator in position 810 of the W and Q Records. See Part A, Section 9 for details.



Sec. 3. Where To File and How to Contact the IRS, Enterprise Computing Center at Martinsburg

.01 All information returns filed electronically are processed at IRS/ECC-MTB. General inquiries concerning the filing of 1042-S Forms should be sent to the following address:

IRS-Enterprise Computing Center --Martinsburg
Attn: 1042-S Reporting
230 Murall Drive
Kearneysville, WV 25430

.02 All requests for an extension of time to file information returns with IRS/ECC-MTB or to the recipients, and requests for undue hardship waivers filed on Form 8508, are sent to the following address:

IRS-Enterprise Computing Center --Martinsburg
Information Reporting Program
Attn: Extension of Time Coordinator
240 Murall Drive
Kearneysville, WV 25430

.03 The telephone numbers for electronic filing inquiries are:

Information Reporting Program Customer Service Section
TOLL-FREE 1-866-455-7438 or
Outside the U.S. 304-263-8700
email at mccirp@irs.gov

304-579-4827 --TDD
(Telecommunication Device for the Deaf)

Fax Machine
Toll-free within the U.S. --877-477-0572
Outside the U.S. --304-579-4105
Electronic Filing --FIRE System
http://fire.irs.gov

TO OBTAIN FORMS:
1-800-TAX-FORM (1-800-829-3676)

www.irs.gov --IRS Web Site access to forms and publications.

.04 Current paper Instructions for Form 1042-S have been included in the Publication 1187 for your convenience. The Form 1042-T is used only to transmit Copy A of paper Forms 1042-S. If filing paper returns, follow the mailing instructions on Form 1042-T and submit the paper returns to the Ogden Service Center, P.O. Box 409101, Ogden, UT 84409.

.05 Requests for paper Form 1042-S should be made by calling the IRS toll-free number 1-800-TAX-FORM (1-800-829-3676) or via the IRS Web Site at www.irs.gov.

.06 Questions pertaining to electronic filing of Forms W-2 must be directed to the Social Security Administration (SSA). Filers can call 1-800-772-6270 to obtain the telephone number of the SSA Employer Service Liaison Officer for their area.

.07 Filers should not contact IRS/ECC-MTB if they have received a penalty notice and need additional information or are requesting an abatement of the penalty. A penalty notice contains an IRS representative's name and/or telephone number for contact purposes; or, the filer may be instructed to respond in writing to the address provided. IRS/ECC-MTB does not issue penalty notices and does not have the authority to abate penalties. For penalty information, refer to the Penalty section of this publication or current paper Instructions for Form 1042-S.

.08 A taxpayer or authorized representative may request a copy of a tax return, including Form W-2 filed with a return, by submitting Form 4506, Request for Copy of Tax Return, to IRS. This form may be obtained by calling 1-800-TAX-FORM (1-800-829-3676). For any questions regarding this form, call 215-516-2000 and select option 1. This is not a toll-free number.

.09 Electronic Products and Support Services, Information Reporting Branch, Customer Service Section (IRB/CSS), answers electronic, paper filing, and tax law questions from the payer community relating to the correct preparation and filing of business information returns (Forms 1096, 1098, 1099, 5498, 8027, and W-2G). IRB/CSS also answers questions relating to the electronic filing of Forms 1042-S. Call toll-free 1-866-455-7438 for specific information on 1042-S filing.

Note: The Customer Service Section does not answer tax law questions concerning the requirements for withholding of tax on payments of U.S. source income to foreign persons under Chapter 3 of the IR Code. If you need such assistance, you may call 215-516-2000 and select option 1 (not a toll-free number) or write to: Philadelphia Internal Revenue Service, International Section, P.O. Box 920, Bensalem, PA 19020-8518.

Inquiries dealing with backup withholding and reasonable cause requirements due to missing and incorrect taxpayer identification numbers are also addressed by IRB/CSS. Assistance is available year-round to payers, transmitters, and employers nationwide, Monday through Friday, 8:30 a.m. to 4:30 p.m. Eastern Standard Time, by calling toll-free 1-866-455-7438 or via e-mail at mccirp@irs.gov. Do not include SSNs or EINs on e-mails since this is not a secure line. The Telecommunications Device for the Deaf ( TDD) toll number is 304-579-4827. Call as soon as questions arise to avoid the busy filing seasons. Recipients of information returns (payees) should continue to contact 1-800-829-1040 with any questions on how to report the information returns data on their tax returns.



Sec. 4. Filing and Retention Requirements

.01 The regulations under section 6011(e)(2)(A) of the Internal Revenue Code provide that any person, including a corporation, partnership, individual, estate, and trust, who is required to file 250 or more information returns must file such returns electronically. Withholding agents who meet the threshold of 250 or more Forms 1042-S are required to submit their information electronically.

Note: Even though filers with less than 250 information returns are not required to submit the information returns electronically and may submit them on paper, IRS/ECC-MTB encourages filers to transmit those information returns electronically.

.02 These requirements apply separately to both originals and amended records filed electronically.

.03 All filing requirements that follow apply individually to each reporting entity as defined by its separate Taxpayer Identification Number (TIN), [Social Security Number (SSN), Employer Identification Number (EIN), Individual Taxpayer Identification Number (ITIN), or Qualified Intermediary Employer Identification Number (QI-EIN), Withholding Foreign Partnership Employer Identification Number (WP-EIN), Withholding Foreign Trust Employer Identification Number (WT-EIN)]. For example, if a corporation with several branches or locations uses the same EIN, the corporation must aggregate the total volume of returns to be filed for that EIN and apply the filing requirements to each type of return accordingly.

.04 The above requirements do not apply if the filer establishes hardship (see Part D, Sec. 5).

.05 Current and prior year data must be submitted in separate electronic transmissions. Each tax year must be a separate electronic file.

.06 Filers who have prepared their information returns in advance of the due date should submit this information to IRS/ECC-MTB no earlier than January 1 of the year the return is due.

.07 Do not report duplicate information. If a filer submits returns electronically, identical paper documents must not be filed. Duplicate filing will result in penalty notices being sent to recipients.

.08 Withholding agents should retain a copy of the information returns filed with IRS/ECC-MTB or have the ability to reconstruct the data for at least 3 years from the due date of the returns.



Sec. 5. Vendor List --Publication 1582

.01 IRS/ECC-MTB prepares a list of vendors who support electronic filing. Publication 1582, Information Returns Vendor List, contains the names of service bureaus that will produce or submit files for electronic filing. It also contains the names of vendors who provide software packages for payers who wish to produce electronic files on their own computer systems. This list is compiled as a courtesy and in no way implies IRS/ECC-MTB approval or endorsement.

.02 If filers engage a service bureau to prepare files on their behalf, the filers must not also report this data, as it will create a duplicate filing situation which may cause penalty notices to be generated.

.03 The Vendor List, Publication 1582, is updated periodically. The most recent revision is available on the IRS website at www.irs.gov. For an additional list of software providers, log on to www.irs.gov and go to the Approved IRS e-file for Business Providers link.

.04 A vendor, who offers a software package, or has the capability to electronically file information returns for customers, and who would like to be included in Publication 1582 must submit a letter or e-mail to IRS/ECC-MTB. The request should include:


(a) Company name



(b) Address (include city, state, and ZIP code)



(c) Telephone and FAX number (include area code)



(d) E-mail address



(e) Contact person



(f) Website



(g) Type(s) of service provided (e.g., service bureau and/or software)



(h) Method of filing (only electronic filing is acceptable)



(i) Type(s) of return(s)




Sec. 6. Form 4419, Application for Filing Information Returns Electronically (FIRE)

.01 Transmitters are required to submit Form 4419, Application for Filing Information Returns Electronically (FIRE), to request authorization to file information returns with IRS/ECC-MTB. A single Form 4419 may be filed. IRS/ECC-MTB encourages transmitters who file for multiple withholding agents or qualified intermediaries to submit one application and to use the assigned Transmitter Control Code (TCC) for all. The Form 4419 is subject to review before the approval to transmit electronically is granted and may require additional documentation at the request of the IRS. If a determination is made concerning the validity of the documents transmitted electronically, IRS has the authority to revoke the Transmitter Control Code (TCC) and terminate the release of files.

Note: EXCEPTIONS --An additional Form 4419 is required for filing Forms 1098, 1099, 3921, 3922, 5498, and W-2G and Form 8027, Employer's Annual Information Return of Tip Income and Allocated Tips. See back of Form 4419 for detailed instructions.

.02 Electronically filed returns may not be submitted to IRS/ECC-MTB until the application has been approved. Please read the instructions on the back of Form 4419 carefully. A Form 4419 is included in the Publication 1187 for the filer's use. This form may be photocopied. Additional forms may be obtained by calling 1-800-TAX-FORM (1-800-829-3676). The form is also available at www.irs.gov.

.03 Upon approval, a five-character alpha/numeric Transmitter Control Code (TCC) beginning with the digits "22" will be assigned and included in an approval letter. The TCC must be coded in the Transmitter "T" Record. If a transmitter uses more than one TCC to file, each TCC must be reported on a separate electronic transmission. Please make sure you submit your electronic files using the correct TCC.

.04 If any of the information (name, TIN or address) on the Form 4419 changes, please notify IRS/ECC-MTB in writing so the IRS/ECC-MTB database can be updated. The transmitter should include the TCC in all correspondence.

.05 Form 4419 may be submitted anytime during the year; however, it must be submitted to IRS/ECC-MTB at least 30 days before the due date of the return(s) for current year processing. This will allow IRS/ECC-MTB the minimum amount of time necessary to process and respond to applications. Form 4419 may be faxed to IRS/ECC-MTB toll-free within the U.S. at 877-477-0572; from outside the U.S. at 304-579-4105 (not toll-free.) In the event that computer equipment or software is not compatible with IRS/ECC-MTB, a waiver may be requested to file returns on paper documents.

.06 IRS/ECC-MTB encourages a transmitter who files for multiple withholding agents to submit one application and to use the assigned TCC for all withholding agents.

.07 If a withholding agent's files are prepared by a service bureau, it may not be necessary for the withholding agent to submit an application to obtain a TCC. Some service bureaus will produce files, code their own TCC on the file, and send it to IRS/ECC-MTB for the withholding agent. Other service bureaus will prepare electronic files for the withholding agent to submit directly to IRS/ECC-MTB. These service bureaus may require the withholding agent to obtain a TCC to be coded in the Transmitter "T" Record. Withholding agents should contact their service bureaus for further information.

.08 Once a transmitter is approved to file electronically, it is not necessary to reapply each year unless:


(a) The withholding agent has discontinued filing electronically for two consecutive years; the withholding agent's TCC may have been reassigned by IRS/ECC-MTB. Withholding agents who are aware that the TCC assigned will no longer be used are requested to notify IRS/ECC-MTB so these numbers may be reassigned; or



(b) The withholding agent's electronic files were transmitted in the past by a service bureau using the service bureau's TCC, but now the withholding agent has computer equipment compatible with that of IRS/ECC-MTB and wishes to prepare his or her own files. The withholding agent must request a TCC by filing Form 4419.


.09 One Form 4419 may be submitted per TIN. Multiple TCCs will only be issued to withholding agents with multiple TINs. Only one TCC will be issued per TIN unless the filer has checked the application for the following forms in addition to the Form 1042-S: Forms 1098, 1099, 3921, 3922, 5498, W-2G, and/or 8027. A separate TCC will be assigned for these forms.

.10 Approval to file does not imply endorsement by IRS/ECC-MTB of any computer software or of the quality of tax preparation services provided by a service bureau or software vendor.



Sec.7. Due Dates

.01 The due dates for filing paper returns with IRS also applies to electronic filing of Form 1042-S which is on a calendar year basis.

.02 Form 1042-S filed electronically must be submitted to IRS/ECC-MTB on or before March 15.

.03 If any due date falls on a Saturday, Sunday or legal holiday, the return or statement is considered timely if filed or furnished on the next day that is not a Saturday, Sunday, or legal holiday.

.04 Statements to recipients must be postmarked on or before March 15.



Sec. 8. Validation of Information Returns at IRS Service Center

.01 The accuracy of data reported on Form 1042-S will now be reviewed and validated at the IRS Service Center. All fields indicated as "Required" in the record layouts in Part C must contain valid information. If the Service identifies an error, you will be notified and required to provide correct information.

.02 Know your recipient! See Notice 2006-35, 2006-1 C.B. 708 for know-your-customer rules.

.03 The tax rate entered must be a valid tax rate based on the Internal Revenue Code or on a valid treaty article. The valid treaty rate is based on the recipient's country of residence for tax purposes. The rate selected must be justified by the appropriate treaty. A valid Tax Rate Table can be found in the Instructions for Forms 1042-S.

.04 The Gross Income amount field must reflect pretax income. The Gross Income amount is the total income paid before any deduction of tax at source.

.05 If a qualified intermediary, withholding foreign partnership, or withholding foreign trust is acting as such, either as a withholding agent or as a recipient, the TIN reported must be a QI-EIN, WP-EIN, or WT-EIN and must begin with "98". See definition of QI in Part A, Section 13 or in the paper Instructions for Form 1042-S.

.06 Country Codes used must be valid codes taken from the Country Code Table. Generally, the use of "OC" or "UC" will generate an error condition. If a recipient is claiming treaty benefits, the Country Code can never be "OC" or "UC".

.07 If a recipient is an "UNKNOWN RECIPIENT" or "WITHHOLDING RATE POOL", no address should be present. These are the only two situations where a street address is not required.

.08 A U.S. TIN for a recipient is now generally required, particularly for most treaty benefits. The exceptions are very limited and are listed in Publication 515 and the current paper Instructions for Form 1042-S.

.09 Apply the following formula to determine U.S. Federal Tax Withheld (field positions 359-370 of the "Q" Record). Applying the formulas will determine what the correct amount of withholding should be. If you withheld differently you must enter the amount you actually withheld. The U.S. Federal Tax Withheld amount must be added to Withholding by Other Agents (field positions 371-382) and the total of the two fields will be reflected in the Total Withholding Credit (field positions 383-394). Also you must ensure the appropriate indicator is reflected in position 761 (U.S. Federal Tax Withheld Indicator). All field positions described below are in the "Q" Record.




Income Codes (15-19) All other Income Codes

Gross Income Paid (6-17) Gross Income Paid (6-17)

- Withholding Allowance (18-29) X Tax Rate (42-45)

= Net Income Amount (30-41) = U.S. Federal Tax Withheld (359-370)

X Tax Rate (42-45)

= U.S. Federal Tax Withheld (359-370)




.10 The following is how to correctly report an Unknown Recipient. All entries are in the Recipient "Q" Record.


(a) Tax Rate (positions 42-45) must be 3000.



(b) Exemption Code (positions 46-47) is 00.



(c) Recipient Code (positions 92-93) is 20.



(d) Recipient's Name Line-1 (positions 94-133) must have "UNKNOWN" or "UNKNOWN RECIPIENT"



(e) Recipient's Name Line-2 (positions 134-173) must be blank.



(f) Recipient's address (positions 214-337) must be blank.



(g) Recipient's Country Code (positions 338-339) is UC.


.11 When making a payment to an international organization (e.g., United Nations) or a tax-exempt organization under IRC 501(a), use Country Code "OC". Use "UC" only when you have an "Unknown Recipient".

.12 When using Exemption Code 4, the Recipient Country of Residence Code for Tax Purposes MUST be a VALID treaty country (e.g. if tax resident of Northern Ireland use United Kingdom). Do not use Exemption Code 4 unless a reduction or exemption of tax is based on a treaty claim.

.13 Generally, payments under Income Codes 06 and 08 are not exempt from withholding, however, certain exceptions apply. See the current paper Instructions for Form 1042-S.

.14 If income is from gambling winnings (Income Code 28) or is not specified (Income Code 50), the tax rate must generally be 30%. This type of income is only exempt from withholding at source if the exemption is based on a tax treaty. These treaties are listed in Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities.

.15 If Income Code 20 (Earnings as Artist or Athlete) is used, the Recipient Code must be 09. Do not use Recipient Code 01 (Individual), 02 (Corporation), or 03 (Partnership). Generally, the tax rate cannot be reduced even if a treaty may apply.

.16 When paying scholarship and fellowship grants (Income Code 15), the Recipient's Country of Residence for Tax Purposes must be identified and cannot be "OC" or "UC". Grants that are exempt under Code Section 117 are no longer required to be reported on Form 1042-S.

Note: Grants that are exempt under Code 117 include only amounts provided for tuition, fees, books, and supplies to a qualified student. Amounts provided for room and board can only be exempted under a tax treaty and must be reported on Form 1042-S whether exempt from tax or not.

.17 If a student is receiving compensation (Income Code 19) or a teacher or a researcher is receiving compensation (Income Code 18), all or part of which is exempted from tax under a tax treaty, the Country of Residence for Tax Purposes must be identified and cannot be "OC" or "UC".



Sec. 9. Amended Returns

.01 If you filed a Form 1042-S with the IRS and later discovered an error on the filing, you must send an amended 1042-S as soon as possible.

Note: If any information you correct on Form(s) 1042-S changes the information previously reported on Form 1042, you must also correct the Form 1042 by filing an amended return.

.02 The electronic filing requirement of information returns of 250 or more applies separately to both original and amended returns.




If a withholding agent has 100 Forms 1042-S to be amended, they can
be filed on paper because they fall under the 250 threshold.
However, if the withholding agent has 300 Forms 1042-S to be
amended, they must be filed electronically because they exceed the
250 threshold. If for some reason a withholding agent cannot file
the 300 amended returns electronically, to avoid penalties, a
request for a waiver must be submitted before filing on paper. If a
waiver is approved for original documents, any amended returns for
EXAMPLE the same type of return will be covered under this waiver.




.03 Amended returns should be filed as soon as possible. Amended returns filed after August 1 may be subject to the maximum penalty of $50 per return. Amended returns filed by August 1 may be subject to a lesser penalty. For information on penalties, refer to the Penalty section of the current paper Instructions for Form 1042-S. However, if a withholding agent discovers errors after August 1, the withholding agent is still required to file amended returns or be subject to a penalty for intentional disregard of the filing requirements. If a record is incorrect, all fields on that record must be completed with the correct information. Submit amended returns only for the returns filed in error. Do not submit the entire file. Furnish amended statements to recipients as soon as possible.

Note: Do not include original returns and amended returns on the same electronic file.

.04 If filers discover that certain information returns were omitted on their original file, they must not code these documents as amended returns. The file must be coded and submitted as an original file.

.05 Prior year data, original and amended, must be filed according to the requirements of this Revenue Procedure. If submitting prior year amended returns, use the record format for the current year and submit in separate transmission. However, use the actual year designation of the amended return in Field Positions 2-5 of the "T" Record. A separate electronic transmission must be made for each tax year.

.06 In general, filers should submit amended returns for returns filed within the last 3 calendar years.

.07 All paper returns, whether original or amended, must be filed with IRS, Ogden Service Center, P.O. Box 409101, Ogden, UT 84409.

.08 The "Q" Record provides a 20-position field (positions 72-91) for the recipient's account number assigned by the withholding agent. This number will help identify the appropriate incorrect return if more than one return is filed for a particular payee. This number should appear on the initial return and on the amended return in order to identify and process the amended return properly. Do not enter a TIN in this field.

.09 The record sequence for filing amended returns is the same as for original returns.

.10 Following is a chart showing the steps to be taken for amending Form 1042-S:




____________________________________________________________________________________
Guidelines for Filing Amended Returns Electronically

____________________________________________________________________________________
One transaction is required to make the following corrections properly.

____________________________________________________________________________________
Error Made on the Original Return How To File the Amended Return

____________________________________________________________________________________
ERROR TYPE 1 CORRECTION

1. Original return was filed with one or A. Prepare a new file. The first record
more of the following errors: on the file will be the Transmitter "T"
(a) Incorrect money amount Record.
(b) Incorrect codes and/or check boxes B. Make a separate "W" Record for each
(c) Incorrect address withholding agent being reported with a
(d) Form 1042-S submitted in error - Return Type Indicator of "1" (1 =
should not have been submitted Amended) in field position 2. Enter a "G"
Note 1: If the 1042-S was submitted in (Amended Return Indicator) in position
error then all fields must be exactly the 810.
same as the original record except that C. The Recipient "Q" Records must show
all money amounts will be zero. the correct record information with a
Return Type Indicator of "1" for amended
in field position 2. ( See Note 1.) Enter
a "G" (Amended Return Indicator) in
position 810.
D. Prepare a separate Reconciliation "C"
Record for each withholding agent ("W"
Record) being reported summarizing the
preceding amended "Q" Records.
E. The last record on the file will be
the End of Transmission "F" Record.

____________________________________________________________________________________






File layout one step corrections





__________________________________________________________________________________
Transmitter Amended coded Amended Amended Reconciliation End of
"T" Record Withholding coded coded "C" Record Transmission
Agent "W" Recipient Recipient "F" Record
Record "Q" Record "Q" Record

__________________________________________________________________________________






____________________________________________________________________________________
Guidelines for Filing Amended Returns Electronically

____________________________________________________________________________________
Two (2) separate transactions (files) are required to make the following
corrections properly. Follow the directions for both Transactions 1 and 2. DO NOT
use the two step correction process to correct money amounts.

____________________________________________________________________________________
Error Made on the Original Return How To File the Amended Return

____________________________________________________________________________________
ERROR TYPE 2 CORRECTION

1. Original "Q" Records were filed with Transaction 1: Identify incorrect
one or more of the following errors: returns.
(a) No Recipient TIN (SSN, EIN, ITIN, A. Prepare a new file. The first record
QI-EIN) on the file will be the Transmitter "T"
(b) Incorrect Recipient TIN Record.
(c) Incorrect Recipient name B. Make a separate "W" Record for each
(d) Incorrect Recipient name and address withholding agent being reported. The
Note 2: The Record Sequence Number will information in the "W" Record will be
be different since this is a counter exactly the same as it was in the
number and is unique to each file. original submission except for the Return
Type Indicator of "1" (1 = Amended) in
field position 2 and the Amended Return
Indicator in position 810 must be a "G".
( See Note 2.)
C. The Recipient "Q" Records must contain
exactly the same information as submitted
previously, except, insert the Amended
Return Indicator Code of "1" in Field
Position 2 of the "Q" Records, and enter
"0" (zeros) in all payment amounts. You
must enter the Return Type Indicator of 1
in position 2 and the Amended Return
Indicator of "G" in position 810 of all
"Q" records. (See Note 2.)
D. Prepare a separate Reconciliation "C"
Record for each withholding agent being
reported summarizing the preceding "Q"
records.
E. Continue with Transaction 2 to
complete the correction.
*See Note 3.

Note 3: Step 1 and Step 2 can be included Transaction 2: Report the correct
in the same electronic file. information.
If you submit separate files for Step 1 A. Make a separate "W" Record for each
and Step 2 each file must have a complete withholding agent being reported. The
set of "T, W, Q, C and F" records. Return Type Indicator must be "1" in
position 2. The Amended Indicator of "C"
must be entered in position 810.
B. The Recipient "Q" Records must show
the correct information. The Return Type
Indicator in position 2 must be "1" and
the Amended Return Indicator must be "C".

D. Prepare a separate Reconciliation "C"
Record for each withholding agent being
reported summarizing the preceding Q
records.
E. The last record on the file will be
the End of Transmission "F" Record.

____________________________________________________________________________________






File layouts two step corrections





__________________________________________________________________________________
Transmitter "T" Amended coded Amended Amended Amended Reconciliation
Record Withholding coded coded coded "C" Record
Agent "W" Recipient Recipient Recipient
Record "Q" Record "Q" Record "Q" Record

__________________________________________________________________________________






__________________________________________________________________________________
Withholding Recipient "Q" Recipient Recipient Reconciliation End of
Agent "W" Record "Q" Record "Q" Record "C" Record Transmission
Record "F" Record

__________________________________________________________________________________



.11 When correcting the Withholding Agent "W" Record follow the two step correction process. When the "W" Record is being corrected, then every Recipient "Q" Record reported under that incorrect "W" record must be amended by zero filling all the amount fields as described in the Transaction 1 step.

.12 For information on when an amended Form 1042 is required, refer to the current Form 1042 Instructions.



Sec. 10. Taxpayer Identification Number (TIN)

.01 Section 6109 of the Internal Revenue Code establishes the general requirements under which a person is required to furnish a U. S. TIN to the person obligated to file the information return.

.02 The Withholding Agent must provide its EIN, QI-EIN, WP-EIN or WT-EIN as appropriate, in the "W" Record and "T" Record, if the Withholding Agent is also the transmitter.

.03 A recipient U. S. TIN (SSN, ITIN, EIN, QI-EIN, WP-EIN, WT-EIN) must be provided on every "Q" Record when:


(a) Tax rate is less than 30% (See the current paper Instructions for Form 1042-S for exceptions)



(b) Income is effectively connected with the conduct of a trade or business in the United States



(c) Recipient claims tax treaty benefits (generally)



(d) Recipient is a Qualified Intermediary



(e) An NRA individual is claiming exemption from withholding on independent personal services



(f) Other situations may apply, see Publication 515


.04 In the event the recipient does not have a U.S. TIN, the withholding agent should advise the recipient to take the necessary steps to apply for one.

.05 The recipient's U.S. TIN and name combination are used to associate information returns reported to IRS/ECC-MTB with corresponding information on recipients' tax returns. It is imperative that correct U.S. Taxpayer Identification Numbers (TINs) for recipients be provided to IRS/ECC-MTB. Do not enter hyphens or alpha characters. Entering all zeros, ones, twos, etc., will have the effect of an incorrect TIN.

.06 The withholding agent and recipient names with associated TINs should be consistent with the names and TINs used on other tax returns.

Note: A withholding agent must have a valid EIN, QI-EIN, WP-EIN, and/or WT-EIN. It is no longer valid for a withholding agent to use SSNs and ITINs.



Sec. 11. Effect on Paper Returns and Statements to Recipients

.01 Electronic reporting of Form 1042-S eliminates the need to submit paper documents to the IRS. CAUTION: Do not send Copy A of the paper forms to IRS for any forms filed electronically. This will result in duplicate filing.

.02 Withholding agents are responsible for providing statements to the recipients as outlined in the current paper Instructions for Form 1042-S. Refer to those instructions for filing Form 1042-S on paper with the IRS and furnishing statements to recipients.

.03 Statements to recipients should be clear and legible. If the official IRS form is not used, the filer must adhere to the specifications and guidelines in Publication 1179, General Rules and Specifications for Substitute Forms 1096, 1098, 1099, 3921, 3922, 5498, 8935, W-2G and 1042-S.

.04 The address for filing paper Forms 1042-S and Form 1042 is: Ogden Service Center, P.O. Box 409101, Ogden, UT 84409. Do NOT send paper Forms 1042-S or 1042 to IRS/ECC-MTB.



Sec. 12. Penalties Associated With Information Returns

.01 The following penalties generally apply to the person required to file information returns. The penalties apply to electronic filers as well as to paper filers.

.02 Failure To File Correct Information Returns by the Due Date ( Section 6721). If you fail to file a correct information return by the due date and you cannot show reasonable cause, you may be subject to a penalty. The penalty applies if, you fail to file timely, if you fail to include all information required to be shown on a return, or if you include incorrect information on a return. The penalty also applies if you file on paper when you were required to file electronically, you report an incorrect TIN or fail to report a TIN, or you fail to file paper forms that are machine readable.

The amount of the penalty is based on when you file the correct information return. The penalty is:


Ÿ $15 per information return if you correctly file within 30 days of the due date of the return (See Part A, Sec. 7 .02); maximum penalty $75,000 per year ($25,000 for small businesses).



Ÿ $30 per information return if you correctly file more than 30 days after the due date but by August 1; maximum penalty $150,000 per year ($50,000 for small businesses).



Ÿ $50 per information return if you file after August 1 or you do not file required information returns; maximum penalty $250,000 per year ($100,000 for small businesses).


.03 A late filing penalty may be assessed for a replacement file which is not transmitted by the required date. See Part B, Sec. 4 .05, for more information on replacement files.

.04 Intentional disregard of filing requirements. If failure to file a correct information return is due to intentional disregard of the filing or correct information requirements, the penalty is at least $100 per information return with no maximum penalty.

.05 Failure To Furnish Correct Payee Statements ( Section 6722). For information regarding penalties which may apply to failure to furnish correct payee statements, see Instructions for Form 1042-S.



Sec. 13. Definition of Terms




Element Description

Amended Return An amended return is an information return submitted by
the transmitter to amend an information return that was
previously submitted to and processed by IRS/ECC-MTB, but
contained erroneous information.

Beneficial Owner The beneficial owner of income is, generally, the person
who is required under U.S. tax principles to include the
income in gross income on a tax return. For additional
information and special conditions see Definitions in the
current paper Instructions for Form 1042-S.

Employer Identification A nine-digit number assigned by IRS for Federal tax
Number (EIN) reporting purposes.

Electronic Filing Submission of information returns electronically via the
Internet. See Part B of this publication for specific
information on electronic filing.

File For purposes of this Revenue Procedure, a file consists of
one Transmitter "T" Record at the beginning of the file, a
Withholding Agent "W" Record, followed by the Recipient
"Q" Record (s), a Reconciliation "C" Record summarizing
the number of preceding "Q" Records and total of preceding
money fields. Follow with any additional "W", "Q", and "C"
Record sequences as needed. The last record on the file
will be the End of Transmission "F" Record. Nothing should
be reported after the End of Transmission "F" Record.

Filer Person (may be withholding agent and/or transmitter)
submitting information returns to IRS.

Filing Year The calendar year in which the information returns are
being submitted to IRS.

Flow-Through Entity A flow-through entity is a foreign partnership (other than
a withholding foreign partnership) or a foreign simple or
grantor trust (other than a withholding foreign trust).
For any payments for which a reduced rate of withholding
under an income tax treaty is claimed, any entity is
considered to be a flow-through entity if it is considered
to be fiscally transparent under IRC Section 894 with
respect to the payment by an interest holder's
jurisdiction.

Foreign Person A foreign person includes a nonresident alien individual,
a foreign corporation, a foreign partnership, a foreign
trust, a foreign estate, and any other person who is not a
U.S. person. The term also includes a foreign branch or
office of a U.S. financial institution or U.S. clearing
organization, if the foreign branch is a Qualified
Intermediary. Generally, a payment to a U.S. branch of a
foreign institution is a payment to a foreign person.

Gross Income Gross income includes income from all sources, except
certain items expressly excluded by statute. Gross income
is the starting point for computing adjusted gross income
and taxable income.

Individual Taxpayer A nine-digit number issued by IRS to individuals who are
Identification Number required to have a U.S. taxpayer identification number for
(ITIN) tax purposes but are not eligible to obtain a Social
Security Number (SSN). ITIN may be used for tax purposes
only.

Information Return The vehicle for withholding agents to submit required tax
information about a recipient to IRS. For this Revenue
Procedure, it is information about a foreign person's U.S.
source income subject to withholding, and the information
return is Form 1042-S.

Intermediary An intermediary is a person who acts as a custodian,
broker, nominee, or otherwise as an agent for another
person, regardless of whether that other person is the
beneficial owner of the amount paid, a flow-through
entity, or another intermediary.

Nonqualified A Nonqualified Intermediary is a foreign intermediary who
Intermediary (NQI) is not a U.S. person and that is not a Qualified
Intermediary.

Payer A payer is the person for whom the withholding agent acts
as a paying agent pursuant to an agreement whereby the
withholding agent agrees to withhold and report a payment.

Presumption Rules The presumption rules are those rules prescribed under
Chapter 3 and Chapter 61 of the Internal Revenue Code that
a withholding agent must follow to determine the status of
a beneficial owner as a U.S. or foreign person when it
cannot reliably associate a payment with valid
documentation.

Pro-Rata Basis Reporting If the withholding agent has agreed that an NQI may
provide information allocating a payment to its account
holders under the provisions of
Regulations section 1.1441-1(e)(3)(iv)(D), and the NQI
fails to allocate the payment in a withholding rate pool
to the specific recipients in the pool, the withholding
agent must file a Form 1042-S for each recipient on a
pro-rata basis.

Qualified Intermediary A Qualified Intermediary is a foreign intermediary who is
(QI) a party to a withholding agreement with the IRS, in which
it agrees to comply with the relevant terms of Chapters 3
and 61 of the Internal Revenue Code and is in a country
with approved know-your-customer rules. See
Notice 2006-35.

Qualified Intermediary A nine-digit number assigned by IRS to a QI for Federal
Employer Identification tax reporting purposes. A QI-EIN is only to be used when a
QI is acting as a qualified intermediary.

Recipient Person (nonresident alien individual, fiduciary, foreign
partnership, foreign corporation, Qualified Intermediary,
Withholding Rate Pool, or other foreign entity) who
receives payments from a withholding agent as a beneficial
owner or as a qualified intermediary acting on behalf of a
beneficial owner. A non-qualified intermediary cannot be a
recipient.

Replacement File A replacement file is an information return file sent by
the filer at the request of IRS/ECC-MTB because of certain
errors encountered while processing the filer's original
submission.

Service Bureau Person or organization with whom the withholding agent has
a contract to prepare and/or submit information return
files to IRS/ECC-MTB. A parent company submitting data for
a subsidiary is not considered a service bureau.

Social Security Number A nine-digit number assigned by Social Security
(SSN) Administration to an individual for wage and tax reporting
purposes.

Special Character Any character that is not a numeric, an alpha, or a blank.

Taxpayer Identification Refers to either an Employer Identification Number (EIN),
Number (TIN) Social Security Number (SSN), Individual Taxpayer
Identification Number (ITIN), or a Qualified Intermediary
Employer Identification Number (QI-EIN).

Tax Year The year in which payments were made by a withholding
agent to a recipient.

Transmitter Refers to the person or organization submitting file(s)
electronically. The transmitter may be the payer, agent of
the payer, or withholding agent.

Transmitter Control Code A five-character alpha/numeric number assigned by
(TCC) IRS/ECC-MTB to the transmitter prior to filing
electronically. An application Form 4419 must be filed
with IRS/ECC-MTB to receive this number. This number is
inserted in the Transmitter "T" Record (field positions
190-194) of the file and must be present before the file
can be processed. Transmitter Control Codes assigned to
1042-S filers will always begin with "22".

Unknown Recipient For this Revenue Procedure, an unknown recipient is a
recipient for whom no documentation has been received by a
withholding agent or intermediary or for which
documentation received cannot be reliably associated. This
includes incomplete documentation. An unknown recipient is
always subject to withholding at the maximum applicable
rate. No reduction of or exemption from tax may be applied
under any circumstances.

Vendor Vendors include service bureaus that produce information
return files on electronic files for withholding agents.
Vendors also include companies that provide software for
those who wish to produce their own electronic files.

Withholding Agent Any person, U.S. or foreign, who has control, receipt, or
custody of an amount subject to withholding or who can
disburse or make payments of an amount subject to
withholding. The withholding agent may be an individual,
corporation, partnership, trust, association, or any other
entity. The term withholding agent also includes, but is
not limited to, a qualified intermediary, a nonqualified
intermediary, a withholding foreign partnership, a
withholding foreign trust, a flow-through entity, a U.S.
branch of a foreign insurance company or foreign bank that
is treated as a U.S. person, and an authorized foreign
agent. A person may be a withholding agent under U.S. law
even if there is no requirement to withhold from a payment
or even if another person has already withheld the
required amount from a payment.

Withholding Foreign A foreign partnership or trust that has entered into a
Partnership (WP) or withholding or Withholding Foreign Trust agreement with
Withholding Foreign the IRS in which it agrees to assume primary withholding
Trust (WT) responsibility for all payments that are made to it for
its partners, beneficiaries, or owners.






Sec. 14. State Abbreviations

.01 The following state and U.S. territory abbreviations are to be used when developing the state code portion of address fields. This table provides state and territory abbreviations.




State Code State Code State Code

No. Mariana
Alabama AL Kansas KS Islands MP

Alaska AK Kentucky KY Ohio OH

American Samoa AS Louisiana LA Oklahoma OK

Arizona AZ Maine ME Oregon OR

Arkansas AR Maryland MD Pennsylvania PA

California CA Massachusetts MA Puerto Rico PR

Colorado CO Michigan MI Rhode Island RI

Connecticut CT Minnesota MN South Carolina SC

Delaware DE Mississippi MS South Dakota SD

District of
Columbia DC Missouri MO Tennessee TN

Federated States
of Micronesia FM Montana MT Texas TX

Florida FL Nebraska NE Utah UT

Georgia GA Nevada NV Vermont VT

Guam GU New Hampshire NH Virginia VA

U.S. Virgin
Hawaii HI New Jersey NJ Islands VI

Idaho ID New Mexico NM Washington WA

Illinois IL New York NY West Virginia WV

Indiana IN North Carolina NC Wisconsin WI

Iowa IA North Dakota ND Wyoming WY

___________________________________________________________________________________



.02 When reporting APO/FPO addresses use the following format:

EXAMPLE:




Recipient Name PVT Willard J. Doe

Mailing Address Company F, PSC Box 100

167 Infantry REGT

Recipient City APO (or FPO)

Recipient State AE, AA, or AP *

Recipient ZIP Code 098010100

* AE is the designation for ZIPs beginning with 090-098, AA for ZIP 340, and AP for
ZIPs 962-966.







Part B. Electronic Filing Specifications


Note: The FIRE System DOES NOT provide fill-in forms, except for Form 8809, Application for Extension of Time to File Information Returns. Filers must program files according to the Record Layout Specifications contained in this publication. For a list of software providers, log on to www.irs.gov and go to the Approved IRS e-file for Business Providers link. Also, see Part A, Sec. 5 .03.



Sec. 1. General

.01 Electronic filing of Form 1042-S (originals, amended and replacement files) is a reporting method for filers submitting 250 or more 1042-S Forms. Payers who are under the filing threshold requirement, are encouraged to file electronically.

.02 All electronic filing of information returns are received at IRS/ECC-MTB via the FIRE (Filing Information Returns Electronically) System. To connect to the FIRE System, point your browser to http://fire.irs.gov. The system is designed to support the electronic filing of information returns only.

.03 For files submitted on the FIRE System, it is the responsibility of the filer to check the status of your file within 5 business days to verify the results of your transmission. IRS/ECC-MTB will no longer mail error reports to filers for files that are bad. Information about the errors including the number of errors, a description and the first occurrence will be provided on the FIRE System. If additional information is needed to understand the errors, the filer can call toll free 1-866-455-7438 or outside the U.S. at 304-263-8700.

.04 The electronic filing of information returns is not affiliated with any other IRS electronic filing programs. Filers must obtain separate approval to participate in each of them. Only inquiries concerning electronic filing of information returns should be directed to IRS/ECC-MTB.

.05 Files submitted to IRS/ECC-MTB electronically must be in standard ASCII code. Do not send paper forms with the same information as electronically submitted files. This would create duplicate reporting resulting in penalty notices. See Part C, Record Format Specifications and Record Layouts.

.06 Form 8809, Application for Extension of Time to File Information Returns, is available as a fill-in form via the FIRE System. If you do not already have a User ID and password refer to Section 7. At the Main Menu, click "Extension of Time Request" and then click "Fill-in Extension Form". This option is only used to request an automatic 30-day extension and must be completed by the due date of the return for each payer requesting an extension. Print the approval page for you records. Refer to Part D for additional details.



Sec. 2. Electronic Filing Approval Procedure

.01 Filers must obtain, or already have, a Transmitter Control Code (TCC) assigned prior to submitting files electronically. Refer to Part A, Sec. 6, for information on how to obtain a TCC.

.02 Once a TCC is obtained, electronic filers assign their own user ID, password and PIN (Personal Identification Number) and do not need prior or special approval. See Part B, Sec. 5, for more information on the PIN.

.03 If a filer is submitting files for more than one TCC, it is not necessary to create a separate logon and password for each TCC.

.04 For all passwords, it is the user's responsibility to remember the password and not allow the password to be compromised. Passwords are user assigned and must consist of 8 alpha/numerics characters containing at least 1 uppercase, 1 lowercase, and 1 numeric. FIRE will require you to change your password periodically. Users can change their passwords at any time from the Main Menu. Prior passwords cannot be used. However, filers who forget their password or PIN, can call at toll-free 1-866-455-7438 or outside the U.S. at 304-263-8700 for assistance.



Sec. 3. Test Files

.01 Filers are not required to submit a test file; however, the submission of a test file is encouraged for all new electronic filers to test hardware and software. If filers wish to submit an electronic test file, it must be submitted to IRS/ECC-MTB no earlier than November 1 of the current year, and no later than February 15, of the filing year.

.02 IRS/ECC-MTB strongly encourages all electronic filers to submit a test. The test file must consist of a sample of each type of record:


(a) Transmitter "T" Record



(b) Withholding Agent "W" Record



(c) Multiple Recipient "Q" Records (at least 11 recommended)



(d) Reconciliation "C" Record



(e) End of Transmission "F" Record


.03 Use the Test Indicator "TEST" (upper case) in Field Positions 195-198 of the "T" Record to show this is a test file.

.04 IRS/ECC-MTB will check the file to ensure it meets the specifications of this Revenue Procedure. For current filers, sending a test file will provide the opportunity to ensure their software reflects all required programming changes. Filers are reminded that not all validity, consistency, or math error tests will be conducted.

.05 Filers who encounter problems while transmitting the electronic test file can contact IRS/ECC-MTB toll-free at 1-866-455-7438 or outside the U.S. at 304-263-8700 for assistance.

.06 Within 2-3 days after your file has been sent, you will be notified via e-mail as to the acceptability of your file if you provide a valid e-mail address on the "Verify Your Filing Information" screen. If you are using e-mail filtering software, configure your software to accept e-mail from fire@irs.gov and irs.e-helpmail@irs.gov. If the file is bad or you have not received an e-mail, within 5 days, the filer must return to http://fire.irs.gov to determine what the errors are in the file by clicking on CHECK FILE STATUS.



Sec. 4. Electronic Submissions

.01 Electronically filed information may be submitted to IRS/ECC-MTB 24 hours a day, 7 days a week. Technical assistance will be available Monday through Friday between 8:30 a.m. and 4:30 p.m. Eastern Standard Time by calling toll-free at 1-866-455-7438 or outside the U.S. at 304-263-8700.

.02 The FIRE System will be down during the week of December 22, 2009 through January 4, 2010. This allows IRS/ECC-MTB to update its system to reflect current year changes.

.03 Your file size cannot exceed 899,999 records. If you are sending files larger than 10,000 records electronically, data compression is encouraged. WinZip and PKZip are the only acceptable compression packages. IRS/ECC-MTB cannot accept self-extracting zip files or compressed files containing multiple files. The time required to transmit information returns electronically will vary depending upon the type of connection to the Internet and if data compression is used. The time required to transmit a file can be reduced by as much as 95 percent by using compression.

.04 Transmitters may create files using self assigned files name(s). Files submitted electronically will be assigned a new unique file name by the FIRE System. The filename assigned by the FIRE System will consist of submission type (TEST, ORIG [original], AMEN [amended return], and REPL [replacement]), the filer's TCC and a four-digit number sequence. The sequence number will be incremented for every file sent. For example, if it is your first original file for the calendar year and your TCC is 22000, the IRS assigned filename would be ORIG.22000.0001. Record the filename. This information will be needed by IRS/ECC-MTB to identify the file, if assistance is required.

.05 If a file was submitted timely and is bad, the filer will have up to 60 days from the day the file was transmitted to transmit an acceptable file. If an acceptable file is not received within 60 days, the payer could be subject to late filing penalties.

.06 The following definitions have been provided to help distinguish between an amended return and a replacement:


Ÿ An amended return is an information return submitted by the transmitter to correct an information return that was previously submitted to and processed by IRS/ECC-MTB, but contained erroneous information. (See Note.)


Note: Amended returns should only be submitted for records that have been submitted incorrectly, not the entire file.


Ÿ A replacement is an information return file sent by the filer because the CHECK FILE STATUS option on the FIRE System indicated the original/amended file was bad. After the necessary changes have been made, the file must be transmitted through the FIRE System. ( See Note.)


Note: Filers should never transmit anything to IRS/ECC-MTB as a "Replacement" file unless the CHECK FILE STATUS option on the FIRE System indicates the file is bad.

.07 The TCC in the Transmitter "T" Record must be the TCC used to transmit the file; otherwise, the file will be considered an error.



Sec. 5. PIN Requirements

.01 User will be prompted to create a PIN consisting of 10 numerics when establishing their initial logon name.

.02 The PIN is required each time an ORIGINAL, AMENDED, or REPLACEMENT file is sent electronically and serves as permission to release the file. It is not needed for a TEST file. An authorized agent/transmitter may enter their PIN, however, the Withholding Agent is responsible for the accuracy of the returns. The payer will be liable for penalties for failure to comply with filing requirements. If you forget your PIN, please call toll-free at 1-866-455-7438 or outside the U.S. at 304-263-8700 for assistance.



Sec. 6. Electronic Filing Specifications

.01 The FIRE System is designed exclusively for the filing of Forms 1042-S, 1098, 1099, 5498, 8027, and W-2G.

.02 A transmitter must have a TCC (see Part A, Sec. 6) before a file can be transmitted.

.03 Within 5 days, the results of the electronic transmission will be e-mailed to you if you provided an accurate e-mail address on the "Verify Your Filing Information" screen. If you are using e-mail filtering software, configure your software to accept e-mail from fire@irs.gov and irs.e-helpmail@irs.gov. If the e-mail indicates that your file is bad, you must log into the FIRE System and go to the CHECK FILE STATUS area of the FIRE System to determine what the errors are in your file.



Sec. 7. Connecting to the FIRE System

.01 Point your browser to http://fire.irs.gov to connect to the FIRE System.

.02 Before connecting, have your TCC and TIN available.

.03 Your browser must support SSL 128-bit encryption.

.04 FIRE Internet Security Technical Standards are:

HTTP 1.1 Specification (http://www.w3.org/Protocols/rfc2616/rfc2616.txt)

SSL 3.0 or TLS 1.0. SSL and TLS are implemented using SHA and RSA 1024 bits during the asymmetric handshake.

SSL 3.0 Specifications (http://wp/netscape.com/eng/ssl3)

TLS 1.0 Specifications (http://www.ief.org/rfc/rfc2246.txt)

The filer can use one of the following encryption algorithms, listed in order of priority, using SSL or TLS:

* AES 256-bit (FIPS-197)

*AES 128-bit (FIPS-197)

TDES 168-bit (FIPS-46-3)

** RC4 128-bit

First time connection to The FIRE System (If you have logged on previously, skip to Subsequent Connections to the FIRE System.)


Click "Create New Account".



Fill out the registration form and click "Submit".



Enter your User ID (most users logon with their first and last name).



Enter and verify your password (the password is user assigned and must be 8 alpha/numerics,



containing at least 1 uppercase, 1 lowercase and 1 numeric). FIRE may require you to change the password once a year.



Click "Create".



If you receive the message "Account Created", click "OK".



Enter and verify your 10-digit self-assigned PIN (Personal Identification Number).



Click "Submit".



If you receive the message "Your PIN has been successfully created!", click "OK".



Read the bulletin(s) and/or click "Click here to continue".




Subsequent connections to the FIRE System


Click "Log On".



Enter your User ID (most users logon with their first and last name).



Enter your password (the password is user assigned and is case sensitive).




Uploading your file to the FIRE System


At Menu Options:



Click "Send Information Returns"



Enter your TCC:



Enter your TIN:



Click "Submit".



The system will then display the company name, address, city, state, ZIP Code, telephone number, contact and e-mail address. This information will be used to e-mail the transmitter regarding this transmission. Please verify that your e-mail address is correct. Update as appropriate and/or Click "Accept".



Click one of the following:



Original File



Amended File



Test File (This option will only be available November 1 through February 15.)



Replacement File (Click on the file to be replaced.)



Enter your 10-digit PIN.



Click "Submit".



Click "Browse" to locate the file and open it.



Click "Upload".




Uploading your file to the FIRE System

When the upload is complete, the screen will display the total bytes received and tell you the name of the file you just uploaded. Record this information.


If you have more files to upload for that TCC:



Click "File Another?"; otherwise,



Click "Main Menu".


If you do not receive an e-mail in 5 business days or your e-mail indicates the file is bad, log back into the FIRE System and click on CHECK FILE STATUS to view the results of your file.



Checking your FILE STATUS


At the Main Menu:



Click "Check File Status".



Enter your TCC:



Enter your TIN:



Click "Search".



If "Results" indicate:



"Good, Not Released" and you agree with the "Count of Payees", you are finished with this file. The file will automatically be released after 10 calendar days unless you contact us within this timeframe.



"Good, Released" --File has been released to our mainline processing.



"Bad" --Correct the errors and timely resubmit the file as a "replacement".



"Not yet processed" --File has been received, but we do not have results available yet. Please check back in a few days.



Click on the desired file for a detailed report of your transmission.



When you are finished, click on Main Menu.



Click "Log Out"



Close your Web Browser.




Sec. 8. Common Submission Problems and Questions

.01 Publication 1187 is a format document, not a tax law document. Therefore, this publication cannot provide for all possible reporting situations. For any given record entry, it is the responsibility of the filer to make sure that the relevant tax law is applied to the record entry being made.



FORMAT ERRORS



1. Incorrect TIN indicator in the "W" Record.

Be careful that the correct TIN Indicator is used. A U.S. withholding agent always has an EIN. Only a foreign withholding agent that has entered into a Qualified Intermediary agreement with the IRS can have a QI-EIN. If the withholding agent is a foreign company, then a foreign address must be entered in the withholding agent address fields.



2. Blank or invalid information in the Withholding Agent's name and address fields.

The IRS error correction process requires that the "W" Record be checked for validity before the "Q" Record can be corrected. Please ensure that the withholding agent's Name, EIN, Street Address, City and State or Country is present along with the appropriate Postal or ZIP Code. Withholding Agent's Name Line-1 must contain the withholding agent's name.



3. Missing Recipient TIN in the "Q" Record.

A Recipient TIN must be present in order to allow a reduction or exemption from withholding at the 30% tax rate. The only major exceptions to this rule involve payments of portfolio interest, dividends, and certain royalty payments. If the recipient doesn't have a TIN, one must be applied for and provided to the withholding agent before a reduction or exemption of withholding is allowed.



4. Invalid recipient name and address information.

The recipient name entered in Recipient's Name Line-1 must be the same name shown on the withholding certification document provided to and retained by the withholding agent. Recipient's Street Line-1 should only show the official street address. Use Recipient's Street Line-2 for additional internal distribution information such as mail stop numbers or attention information. Follow the instructions for entry of foreign postal codes, cities and countries. Do not input all information in the City field. Use the appropriate fields and codes.



5. Incorrect use of Recipient Code 20 (Unknown Recipient).

This Recipient Code may be used only if no withholding certification document has been provided to and retained by the withholding agent, or the withholding certification document provided to and retained has been determined by the withholding agent to be incomplete or otherwise unreliable. If Recipient Code 20 is used then Recipient Name Line-1 must contain the words "UNKNOWN RECIPIENT" and the other name and address fields must be blank.



6. Incorrect use of Recipient Code 20 and the Tax Rate and U. S. Tax Withheld fields.

If Recipient Code 20 is used, the Tax Rate and the U.S. Tax Withheld must always be 30%. Exemption Code 04 (treaty exemption) CANNOT BE USED.



7. Incorrect use of Country Codes in the "Q" Record.

There are 3 places in the "Q" Record where country information must be entered. Generally, the information entered in these three fields should be consistent. The country list in the Instructions for Form 1042-S is comprehensive. Do not use any code that isn't on the list. Read the instructions for Form 1042-S regarding the use of "OC" and "UC". Do not use these two codes under any circumstance other than those specifically indicated in the Instruction for Form 1042-S.



8. Incorrect reporting of Tax Rates in the "Q" Record.

A valid Tax Rate Table can be found in the Instructions for Forms 1042-S. Please refer to table and only use the tax rates listed. "Blended rates" are not allowed. If a tax rate for a given recipient changes during the year, two "Q" Records must be submitted.



9. Total amounts reported in the "C" Record do not equal the total amounts reported in the "Q" Records.

The total Gross Income and Total Withholding Credit reported in the "Q" Record must equal the Total Gross Income and Total Withholding Credit reported in the corresponding "C" Record.



10. The following are other major errors associated with electronic filing:

a. Invalid characters. The only valid characters are those characters listed in Note 3 at the beginning of the T, W and Q Records.

b. Q Record Positions 383-394 (Total Withholding Credit) must equal the amounts in Positions 359-370 (U.S. Tax Withheld) and Positions 371-382 (Withholding By Other Agents).

c. C Record Positions 31-45 must reflect the aggregate of the preceding Q records positions 383-394 (Total Withholding Credit).

d. Q Record Positions 42-45 (Tax Rate) must reflect a valid tax rate.

e. Q Record Positions 46-47 (Exemption Code) must reflect a valid code and the exemption code must be compatible with the tax rate. For example, if you enter a zero tax (0000) rate in positions 42-45 you must enter the appropriate exemption code of 01-09 in positions 46-47.



NON-FORMAT ERRORS



1. SPAM filters are not set to receive e-mail from fire@irs.gov and irs.e-helpmail@irs.gov.

If you want to receive e-mails concerning your files, processing results, reminders and notices, set your SPAM filter to receive e-mail from fire@irs.gov and irs.e-helpmail@irs.gov.



2. Incorrect e-mail provided.

When the "Verify Your Filing Information" screen is displayed, make sure your correct e-mail is displayed. If not, please update with the correct e-mail.



3. Transmitter does not check the FIRE System to determine why the file is bad.

The results of your file transfer are posted to the FIRE System within five business days. If the correct e-mail address was provided on the "Verify Your Filing Information" screen when the file was sent, an e-mail will be sent regarding your FILE STATUS. If the results in the e-mail indicate "Good, Released" and you agree with the "Count of Payees", then you are finished with this file. If you have any other results, please follow the instructions in the Check File Status option. If the file contains errors, you can get an online listing of the errors. Date received and number of payee records are also displayed. If the file is good, but you do not want the file processed, you must contact IRS/ECC-MTB within 10 calendar days from the transmission of your file.



4. Transmitter uses the TCC assigned for filing 1098, 1099, 5498 or W-2G Forms.

Use your Form 1042-S TCC which begins with "22" to transmit your 1042-S file, otherwise, it will be automatically considered an error.



5. Incorrect file is not replaced timely.

If we have advised you that your file is bad, correct the file and timely resubmit as a replacement. You must submit a good replacement files within 60 days of the submission date of the original file.



6. Transmitter compresses several files into one.

Only compress one file at a time. For example, if you have 10 uncompressed files to send, compress each file separately and send 10 separate compressed files.



7. Transmitter sends a file and CHECK FILE STATUS indicates that the file is good, but the transmitter wants to send a replacement or amended file to replace the original/amended/replacement file.

Once a file has been transmitted, you cannot send a replacement file unless CHECK FILE STATUS indicates the file is bad (5 business days after file was transmitted). If you do not want us to process the file, you must first contact us toll-free at 1-866-455-7438 or outside the U.S. at 304-263-8700 to see if this is possible.



8. Transmitter sends an original file that is good, and then sends an amended file for the entire file even though there are only a few changes.

The amended file, containing the proper coding, should only contain the records needing correction, not the entire file.



9. File is formatted as EBCDIC.

All files submitted electronically must be in standard ASCII code.



10. Transmitter has one TCC number, but is filing for multiple companies, which TIN should be used when logging into the system to send the file?

When sending the file electronically, you will need to enter the TIN of the company assigned to the TCC. When you upload the file, it will contain the TINs for the other companies that you are filing for. This is the information that will be passed forward.



11. Transmitter sent the wrong file, what should be done?

Call us as soon as possible toll-free at 1-866-455-7438 or outside the U.S. at 304-263-8700. We may be able to stop the file before it has been processed. Please do not send a replacement for a file that is marked as a good file.




Part C. Record Format Specifications and Record Layouts




Sec. 1. Transmitter "T" Record

.01 This record identifies the entity preparing and transmitting the file. The transmitter and the withholding agent may be the same, but they need not be.

.02 The first record of a file MUST be a Transmitter "T" Record. The "T" Record must appear on each electronic file; otherwise, a replacement file may be requested.

.03 The "T" Record is a fixed length of 820 positions.

.04 All alpha characters entered in the "T" Record must be upper case.

Note 1: For all fields marked "Required", the transmitter must provide the information described under Description and Remarks. If required fields are not completed in accordance with these instructions, IRS will contact you to request a replacement file. For those fields not marked Required, a transmitter must allow for the field, but may be instructed to enter blanks or zeroes in the indicated field position(s) and for the indicated length. All records have a fixed length of 820 positions.

Note 2: A copy of the current paper Instructions for Form 1042-S for this revision of the Publication 1187 is included at the end of this publication. These instructions should be used for the proper coding of each field in this record where applicable. The instructions are updated each year as required. Since Publication 1187 may not be revised every year, be sure to use the most current instructions for Form 1042-S.

Note 3: The only valid characters for electronic filing are alpha, numeric, blank, ampersand (&), hyphen (-), comma (,), apostrophe('), forward slash (/), pound sign (#), period (.), and the percent (%). Only the percent [% (used as "in care of")] is valid in the first position. Do not use special characters that are unique to a language other than English. Inclusion of any characters other than those identified as valid in the instructions will result in a "Bad File" status.




___________________________________________________________________________________
Record Name: Transmitter "T" Record

___________________________________________________________________________________
Field
Positions Field Title Length Description and Remarks

___________________________________________________________________________________
1 Record Type 1 Required. Enter "T".

___________________________________________________________________________________
2-5 Tax Year 4 Required. Enter year for which income and
withholding are being reported.

___________________________________________________________________________________
6-14 Transmitter's 9 Required. Enter the Taxpayer Identification
Taxpayer Number of the Transmitter. This can be a
Identification Employer Identification Number (EIN),
Number (TIN) Qualified Intermediary Number (QI-EIN),
Withholding Partnership (WP-EIN), or a
Withholding Trust (WT-EIN). DO NOT ENTER
blanks, hyphens or alpha characters.

___________________________________________________________________________________
15-54 Transmitter's 40 Required. Enter name of transmitter of
Name file. Abbreviate if necessary to fit
40-character limit. Omit punctuation if
possible. Left-justify and blank fill.

Note: Do not use special characters in names or addresses that are unique to a
language other than English. For example: å = A, = A, ü = U, Ø = O, n = N, etc.

___________________________________________________________________________________
55-94 Transmitter's 40 Required. Enter full mailing address of the
Address transmitter. This will include number,
street, and apartment or suite number (P.O.
Box can be used if mail is not delivered to
street address). Abbreviate as needed to
fit 40-character limit. Omit punctuation if
possible. Left-justify and blank fill.

___________________________________________________________________________________
95-114 City 20 Required. Enter the city or town (or other
locality name) of transmitter. If
applicable, enter APO or FPO only.
Left-justify and blank fill.

___________________________________________________________________________________
115-116 State Code 2 Required if U.S. Transmitter. Enter only
the two-alpha State Code. DO NOT spell out
the state name. See State Code Table Part
A, Sec. 13. Left-justify.

___________________________________________________________________________________
117-118 Province Code 2 Required if Foreign Country Code is "CA"
(Canada). Enter only the two-alpha
character Province Code as shown in the
Province Code table. DO NOT spell out the
Province Name. If foreign country other
than Canada, blank fill.

Province Code Province

AB Alberta

BC British Columbia

MB Manitoba

NB New Brunswick

NL Newfoundland & Labrador

NS Nova Scotia

NT Northwest Territories

NU Nunavut

ON Ontario

PE Prince Edward Island

QC Quebec

SK Saskatchewan

YT Yukon Territory

___________________________________________________________________________________
119-120 Country Code 2 Required if Foreign Transmitter. If Country
Code is present, State Code field MUST be
blank. Enter only the two-alpha Country
Code from the Country Code table. DO NOT
spell out the Country Name.

Note: COUNTRY CODES: The list of country codes provided in the current paper
Instructions for Form 1042-S includes all internationally recognized country codes
and must be used to ensure the proper coding of the Country Code field. This list
is updated each year as required. Do not enter U.S. in the Country Code field.

___________________________________________________________________________________
121-129 Postal or ZIP 9 Required. Enter up to nine numeric
Code characters for all U.S. addresses
(including territories, possessions and
APO/FPO). For foreign addresses enter the
alpha/numeric foreign postal code, if
applicable. Enter this code in the left
most position and blank fill the remaining
positions. Left-justify.

___________________________________________________________________________________
130-169 Contact Name 40 Required. Enter the name of the person to
contact if any questions should arise with
the transmission. Left-justify.

___________________________________________________________________________________
170-189 Contact 20 Required. Enter the contact person's
Telephone telephone number, and extension, if
Number applicable. If foreign, provide appropriate
codes for overseas calls. Left-justify.

___________________________________________________________________________________
190-194 Transmitter 5 Required. Enter the five-character
Control Code alpha/numeric TCC assigned ONLY for Form
(TCC) 1042-S reporting. (The first two numbers
will always be 22.) All alpha characters
must be upper case.

___________________________________________________________________________________
195-198 Test Indicator 4 Required if this is a test file. Enter the
word "TEST". Otherwise, enter blanks.

___________________________________________________________________________________
199 Prior Year 1 Required. Enter a "P" only if reporting
Indicator prior year data; otherwise, enter blank. Do
not enter a "P" for current year
information.

___________________________________________________________________________________
200-810 Reserved 611 Enter blanks.

___________________________________________________________________________________
811-818 Record 8 Required. Enter the number of the record as
Sequence it appears within your file. The record
Number sequence number for the "T" record will
always be "1" (one), since it is the first
record on your file and you can have only
one "T" record in a file. Each record,
thereafter, must be incremented by one in
ascending numerical sequence, i.e., 2, 3,
4, etc. Right-justify numbers with leading
zeroes in the field. For example, the "T"
record sequence number would appear as
"00000001" in the field, the first "W"
record would be "00000002", the first "Q"
record, "00000003", the second "Q" record,
"00000004" and so on until you reach the
final record of the file, the "F" record.

___________________________________________________________________________________
819-820 Blank or 2 Enter blanks or carriage return line feed
Carriage (CR/LF) characters.
Return Line
Feed

___________________________________________________________________________________






Transmitter "T" Record Layout





____________________________________________________________________________________________________
Record Type Tax Year Transmitter's Transmitter Transmitter City State Code Province
TIN Name Address Code

____________________________________________________________________________________________________
1 2-5 6-14 15-54 55-94 95-114 115-116 117-118

____________________________________________________________________________________________________






____________________________________________________________________________________________________
Country Postal or Contact Contact TCC Test Prior Reserved Record Blank or
Code ZIP Code Name Telephone Indicator Year Sequence Carriage
Number Indicator Number Return
Line Feed

____________________________________________________________________________________________________
119-120 121-129 130-169 170-189 190-194 195-198 199 200-810 811-818 819-820

____________________________________________________________________________________________________





Sec. 2. Withholding Agent "W" Record

.01 The "W" Record identifies the Withholding Agent.

.02 Enter a "W" Record after the initial "T" Record on the file, followed by the Recipient "Q" Records, and a Reconciliation "C" Record. Do not report for a withholding agent if there are no corresponding Recipient "Q" records.

.03 Several "W" Records for different Withholding Agents may appear on the same Transmitter's File.

.04 Each "W" Record is a fixed length of 820 positions.

.05 All alpha characters entered in the "W" Record must be uppercase.

Note 1: For all fields marked "Required", the transmitter must provide the information described under Description and Remarks. If required fields are not completed in accordance with these instructions, your file may not process correctly. For those fields not marked "Required", a transmitter must allow for the field, but may be instructed to enter blanks or zeroes in the indicated field position(s) and for the indicated length. All records have a fixed length of 820 positions.

Note 2: A copy of the current paper Instructions for Form 1042-S for this revision of the Publication 1187 is included at the end of this publication. These instructions should be used for the proper coding of each field in this record where applicable. The list of country codes in the instructions includes all recognized country codes and MUST be used for coding. The instructions are updated each year as required. Since Publication 1187 may not be revised every year, be sure to use the most current instructions.

Note 3: The only valid characters for electronic filing are alpha, numeric, blank, ampersand (&), hyphen (-), comma (,), apostrophe('), forward slash (/), pound sign (#), period (.), and the percent (%). Only the percent [% (used as "in care of")] is valid in the first position. Do not use special characters that are unique to a language other than English. Inclusion of any characters other than those identified as valid in the instructions will result in a "Bad File" status.




___________________________________________________________________________________
Record Name: Withholding Agent "W" Record

___________________________________________________________________________________
Field
Positions Field Title Length Description and Remarks

___________________________________________________________________________________
1 Record Type 1 Required. Enter "W".

___________________________________________________________________________________
2 Return Type 1 Required. Enter the one position value below
Indicator to identify whether the record is Original
or Amended. If submitting a replacement
file, use the same indicator as the file
being replaced (e.g., if you are replacing
an amended file the indicator would be 1).
Do not enter a blank or alpha character.

Acceptable Values are:

l0 (Zero) = Original

l 1 = Amended

___________________________________________________________________________________
3 Pro Rata 1 Required. Enter the one position value below
Basis to identify if reporting on a Pro Rata
Reporting Basis.

Acceptable Values are:

l0 (Zero) = Not Pro Rata

l1 = Pro Rata Basis Reporting

___________________________________________________________________________________
4-12 Withholding 9 Required. Enter the nine-digit Employer
Agent's EIN Identification Number of the Withholding
Agent. Do NOT enter blanks, hyphens or alpha
characters. An EIN consisting of all the
same digits (e.g., 111111111) is not
acceptable. Do NOT enter the recipient's TIN
in this field.

Note: See current paper Instructions for Form 1042-S to determine when a Qualified
Intermediary, Withholding Foreign Partnership, or Withholding Foreign Trust must
provide its QI-EIN, WP-EIN or WT-EIN in this field.

___________________________________________________________________________________
13 Withholding 1 Required. Enter the Withholding Agent's EIN
indicator from the following values:

Agent's EIN

Indicator l 0 = EIN

l 1 = QI-EIN, WP-EIN, WT-EIN

l 2 = NQI-EIN

Note: Use EIN indicator 1 only if the Withholding Agent's EIN begins with "98" AND
the Withholding Agent, Withholding Trust or Withholding Partnership has entered
into a withholding agreement with the IRS.

___________________________________________________________________________________
14-53 Withholding 40 Required. Enter the Withholding Agent's Name
Agent's as established when filing for the EIN or
Name Line-1 QI-EIN which appears in position 4-12 of the
"W" Record. Left-justify and blank fill.

Note: Do not use special characters in names or addresses that are unique to a
language other than English. For example: å = A, = A, ü = U, Ø = O, n = N, etc.

___________________________________________________________________________________
54-93 Withholding 40 Enter supplementary withholding agent's name
Agent's information; otherwise, enter blanks. Use
Name Line-2 this line for additional names (e.g.,
partners or joint owners), for trade names,
stage names, aliases or titles. Also use
this line for "care of" or "via".
Left-justify and blank fill. See Note 3 at
the beginning of the "W" Record.

___________________________________________________________________________________
94-133 Withholding 40 See above.
Agent's
Name Line-3

___________________________________________________________________________________
134-173 Withholding 40 Required. Enter the mailing address of the
Agent's withholding agent. Street address should
Street include number, street, and apartment or
Line-1 suite number (or P.O. Box if mail is not
delivered to street address). Abbreviate as
needed. Left-justify and blank fill.

___________________________________________________________________________________
174-213 Withholding 40 Enter supplementary withholding agent street
Agent's address information. Otherwise, blank fill.
Street
Line-2

___________________________________________________________________________________
214-253 Withholding 40 Required. Enter the city or town (or other
Agent's locality name). Enter APO or FPO only if
City applicable. Do not enter a foreign postal
code in the city field. Left-justify and
blank fill.

___________________________________________________________________________________
254-255 Withholding 2 Required if Withholding Agent has a U.S.
Agent's address. Enter the two-character State Code
State Code abbreviation. If not a U.S. state, territory
or APO/FPO identifiers, blank fill. Do not
use any of the two character Country Codes
in the State Code Field.

Note: If the withholding agent has a U.S. address, leave the country code in
positions 258-259 blank.

___________________________________________________________________________________
256-257 Withholding 2 Required if Foreign Country Code is "CA"
Agent's (Canada). Enter only the two-alpha character
Province Province Code as shown in the Province Code
Code Table. See "T" record positions 117-118 for
Province Code Table. DO NOT spell out the
Province Name. If foreign country other than
Canada, blank fill.

___________________________________________________________________________________
258-259 Withholding 2 Required if QI or NQI or other foreign
Agent's withholding agent. Enter only the two-alpha
Country Country Code from the Country Code Table. DO
Code NOT spell out the Country Name.

Note: COUNTRY CODES: The list of country codes provided in the current paper
Instructions for Form 1042-S includes all internationally recognized country codes
and MUST be used to ensure the proper coding of the Country Code field. This list
is updated each year as required. Do not enter U.S. in the Country Code field.

___________________________________________________________________________________
260-268 Postal or 9 Required. Enter up to nine numeric
ZIP Code characters for all U.S. addresses (including
territories, possessions and APO/FPO). For
foreign addresses enter the alpha/numeric
foreign postal code, if applicable. Enter
this code in the left most position and
blank fill the remaining positions.
Left-justify.

___________________________________________________________________________________
269-272 Tax Year 4 Required. Enter the four-digit year of the
current tax year unless you entered a "P" in
the Prior Year Indicator Field of the "T"
Record. All recipient "Q" Records must
report payments for this year only.
Different tax years may not appear on the
same file.

___________________________________________________________________________________
273-317 Withholding 45 Required. Enter the name of the person IRS
Agent can contact if questions arise concerning
Contact this filing. Left-justify and blank fill the
Name remaining positions.

___________________________________________________________________________________
318-362 Withholding 45 Required. Enter the title of the contact
Agent's person or the dept. which can handle
Department inquiries concerning this filing.
Title Left-justify and blank fill the remaining
positions.

___________________________________________________________________________________
363-382 Contact 20 Required. Enter the telephone number of a
Telephone person to contact regarding electronic
Number and files. Omit hyphens. If no extension is
Extension available, left-justify and fill unused
positions with blanks. If foreign, provide
appropriate codes for overseas call.

___________________________________________________________________________________
383 Final 1 Required. Enter the one position value below
Return to indicate whether you will be filing Forms
Indicator 1042-S in the future.

l 0 (Zero) = will be filing

l 1 = will not be filing

___________________________________________________________________________________
384-809 Reserved 426 Enter blanks.

___________________________________________________________________________________
810 Amended 1 Required for amended returns only. Enter the
Return appropriate code:
Indicator

Code Definition

G If this is a one-step
transaction amended return
or the first of a two-step
transaction amended return

C If this is the second
transaction of a two-step
transaction amended return

Blank If this is not a return
being submitted to amend
information already
processed by IRS

Note: Amended C and G coded records must be reported using separate Payer "W"
Records. Refer to Part A, Sec. 9, for specific instructions on how to file amended
returns.

Non-coded records cannot be submitted in an Amended file.

___________________________________________________________________________________
811-818 Record 8 Required. Enter the number of the record as
Sequence it appears within your file. The record
Number sequence number for the "T" record will
always be "1" (one), since it is the first
record on your file and you can have only
one "T" record in a file. Each record,
thereafter, must be incremented by one in
ascending numerical sequence, i.e., 2, 3, 4,
etc. Right-justify numbers with leading
zeroes in the field. For example, the "T"
record sequence number would appear as
"00000001" in the field, the first "W"
record would be "00000002", the first "Q"
record, "00000003", the second "Q" record,
"00000004" and so on until you reach the
final record of the file, the "F" record.

___________________________________________________________________________________
819-820 Blank or 2 Enter blanks or carriage return line feed
Carriage (CR/LF) characters.
Return Line
Feed

___________________________________________________________________________________





Withholding Agent "W" Record Layout




_________________________________________________________________________________
Record Return Pro Rata Withholding Withholding Withholding Withholding
Type Type Basis Agent's EIN Agent's EIN Agent's Agent's
Indicator Reporting Indicator Name Line-1 Name Line-2

_________________________________________________________________________________
1 2 3 4-12 13 14-53 54-93

_________________________________________________________________________________






____________________________________________________________________________________________________
Withholding Withholding Withholding Withholding Withholding Withholding Withholding
Agent's Name Agent's Agent's Street Agent's City Agent's State Agent's Agent's
Line-3 Street Line-2 Code Province Code Country Code
Line-1

____________________________________________________________________________________________________
94-133 134-173 174-213 214-253 254-255 256-257 258-259

____________________________________________________________________________________________________






__________________________________________________________________________________
Postal or Tax Year Withholding Withholding Contact Final Return
ZIP Code Agent Contact Agent's Telephone Indicator
Name Department Number and
Title Extension

__________________________________________________________________________________
260-268 269-272 273-317 318-362 363-382 383

__________________________________________________________________________________






____________________________________________________________________________________
Reserved Amended Return Record Sequence Blank or Carriage
Indicator Number Return Line Feed

____________________________________________________________________________________
384-809 810 811-818 819-820

____________________________________________________________________________________





Sec. 3. Recipient "Q" Record

.01 The "Q" Record contains name and address information for the Recipient of Income, Non-Qualified Intermediary or Flow-Through Entity if appropriate, Payer, and all data concerning the income paid and tax withheld that is required to be reported under U.S. law. Each Recipient "Q" Record is treated as if it were a separate Form 1042-S.

.02 Since the "Q" Record is restricted to one type of income, one type of exemption code, and one tax rate, under certain circum-stances it may be necessary to submit more than one "Q" Record for the same recipient. Failure to provide multiple Recipient "Q" Records when necessary may generate math computation errors during processing. This will result in IRS contacting you for correct information.

.03 Following are some of the circumstances when more than one "Q" Record for a recipient would be required:


(a) Different types of income. For example, Recipient X derived income from Capital Gains (Income Code 09) and Industrial Royalties (Income Code 10). A separate "Q" Record must be reported for each Income Code. Each "Q" Record must reflect the Gross Income Paid and any U.S. Federal Taxes withheld by you or any other withholding agent pertaining to that Income Code.



(b) Change in Country Code during the year. For example, the Withholding Agent received notification via Form W-8BEN that the recipient's country of residence for tax purposes changed from country X to country Y. A separate "Q" Record must be reported for each Country Code providing Gross Income Paid, Tax Rate, any U.S. Federal Tax Withheld by you or any other withholding agent and Exemption Code, if any. The amounts reported must be based on each country.



(c) Change in a country's tax treaty rate during the year. For example, effective April 1, country X changes its tax treaty rate from 10% to 20%. A separate "Q" Record must be reported for each of the tax rates. Provide the Gross Income Paid, Tax Rate, and any U.S. Federal Tax Withheld by you or any other withholding agent under each tax rate.


.04 All recipient "Q" Records for a particular Withholding Agent must be written after the corresponding Withholding Agent "W" Record, followed by a Reconciliation "C" Record, and before the "W" Record for another Withholding Agent begins.

.05 All alpha characters entered in the "Q" Record must be upper case.

.06 The "Q" Record is a fixed length of 820 positions.

.07 Report income and tax withheld in whole dollars only. Round up or down as appropriate. To round off amounts to the nearest whole dollar, drop amounts under 50 cents and increase to the next whole dollar amounts of 50 to 99 cents. If you have to add two or more amounts to figure the amount to be reported, include cents when adding and only round off the total figure to be reported. DO NOT enter cents.

Note 1: For all fields marked "Required", the transmitter must provide the information described under Description and Remarks. If required fields are not completed in accordance with these instructions, IRS will contact you to request a replace-ment file. For those fields not marked "Required", a transmitter must allow for the field, but may be instructed to enter blanks or zeroes in the indicated field position(s) and for the indicated length. All records have a fixed length of 820 positions.

Note 2: A copy of the current paper Instructions for Form 1042-S for this revision of the Publication 1187 is included at the end of this publication. These instructions should be used for the proper coding of each field in this record where applicable. The list of country codes in the instructions includes all recognized country codes and MUST be used for coding. The instructions are updated each year as required. Since Publication 1187 may not be revised every year, be sure to use the most current instructions.

Note 3: The only valid characters for electronic filing are alpha, numeric, blank, ampersand (&), hyphen (-), comma (,), apostrophe ('), forward slash (/), pound sign (#), period (.), and the percent (%). Only the percent [% (used as "in care of")] is valid in the first position. Do not use special characters that are unique to a language other than English. Inclusion of any characters other than those identified as valid in the instructions will result in a "Bad File" status.




__________________________________________________________________________________
Record Name: Recipient "Q" Record

__________________________________________________________________________________
Field
Positions Field Title Length Description and Remarks

__________________________________________________________________________________
1 Record Type 1 Required. Enter "Q".

__________________________________________________________________________________
2 Return Type 1 Required. Enter the one position value below
Indicator to identify whether the record is Original or
Amended. If submitting a replacement file,
use the same indicator as the file being
replaced (e.g., if you are replacing an
amended file the indicator would be 1). Must
be the same value as in the "W" Record.
Values are:

l 0 = Original
(Zero)

l 1 = Amended

__________________________________________________________________________________
3 Pro Rata 1 Required. Enter the one position value below
Basis to identify whether reporting Pro Rata Basis.
Reporting Must be the same value as in the "W" Record.
Values are:

l 0 = Not Pro Rata
(Zero)

l 1 = Pro Rata Basis Reporting

__________________________________________________________________________________
4-5 Income Code 2 Required. Enter the two-position value
EXACTLY as it appears from the income code
table. The Income Code must accurately
reflect the type of income paid. DO NOT enter
blanks or 00 (zeroes).

Note: Refer to the current paper Instructions for Form 1042-S for more
information.

__________________________________________________________________________________
6-17 Gross 12 Required. Enter the gross income amount in
Income whole dollars only, rounding to the nearest
dollar ( do not enter cents). For example,
report $600.75 as 000000000601. An income
amount of zero cannot be shown. Numeric only,
right-justify and zero fill.

Note: Do not report negative amounts in any amount field.

__________________________________________________________________________________
18-29 Withholding 12 Used with Income Codes 15 through 19 ONLY.
Allowance Enter the withholding allowance amount in
whole dollars only, rounding to the nearest
dollar ( do not enter cents). Numeric only,
right-justify and zero fill. Otherwise, enter
blanks.

__________________________________________________________________________________
30-41 Net Income 12 Required if Dollar Amount is Entered in
Withholding Allowance Field. Enter the net
income in whole dollars only, rounding to the
nearest dollar ( do not enter cents). An
amount other than zero must be shown. Numeric
only, right-justify and zero fill. Otherwise,
enter blanks.

__________________________________________________________________________________
42-45 Tax Rate 4 Required. Enter the correct Tax Rate
applicable to the income in gross income
field or net income field, as appropriate.
Enter the Tax Rate as a 2-digit whole number
and 2-digit decimal (e.g., Enter 27.50 % as
2750, 15% as 1500 or 7% as 0700). See Note
below.

Note: The correct Tax Rate must be entered, even if withholding was at a lesser
rate. See the current paper Instructions for Form 1042-S.

__________________________________________________________________________________
46-47 Exemption 2 Required. Read Carefully.
Code

l If the tax rate entered is 0%, enter
the appropriate exemption code "01"
through "09" from the current paper
Instructions for Form 1042-S.

l If the tax rate entered is 1% through
30%, enter "00".

l If the tax rate entered is greater
than 30%, blank fill. DO NOT enter
"00".

See the current paper Instructions for Form
1042-S for circumstances under which
Exemption Code "99" must be used.

Note: If an incorrect amount of tax was withheld, report the amount that was
actually withheld and use the correct tax rate in field positions 42-45.

__________________________________________________________________________________
48-49 Recipient's 2 Required. Enter the two-character Country
Country of Code for which the recipient is a resident
Residence for tax purposes and on which the tax treaty
Code for benefits are based, whether or not you are
Tax applying a tax treaty benefit to this
Purposes payment. The rate of tax withheld is
determined by this code.

Note: Do not enter U.S. in the Country Code field. Enter "OC" (other country)
only when the country of residence does not appear on the list or the payment is
made to an international organization. If you are making a payment to a QI or QI
withholding rate pool, enter the country code of the QI.

__________________________________________________________________________________
50-59 Reserved 10 Enter blanks

__________________________________________________________________________________
60-71 Amount 12 This field should be completed only if:
Repaid

l You repaid a recipient an amount that
was over-withheld and you are going
to reimburse yourself by reducing, by
the amount of tax actually repaid,
the amount of any deposit made for a
payment period in the calendar year
following calendar year of
withholding. Otherwise, enter zeros.

__________________________________________________________________________________
72-91 Recipient 20 Enter the account number assigned by the
Account withholding agent to the recipient. Do not
Number enter the recipient's U.S. or foreign TIN. If
account numbers are NOT assigned, then blank
fill. This field may contain numeric, alpha
characters, blanks or hyphens. Left-justify
and blank fill.

__________________________________________________________________________________
92-93 Recipient 2 Required. Enter the appropriate Recipient
Code Code. Refer to the list of appropriate codes
in the current paper Instructions for Form
1042-S. No other codes or values are valid.

Note: If recipient code "20" is used then Recipient's Name Line-1 must be
"UNKNOWN" or "UNKNOWN RECIPIENT" and Recipient's Name Lines 2 and 3 must be
BLANK. The tax rate must be 30%.

__________________________________________________________________________________
94-133 Recipient's 40 Required. Provide the complete name of the
Name Line-1 recipient. If the recipient has a U.S. TIN,
enter the name as established when applying
for the TIN. If recipient code "20" is used
then "UNKNOWN" or "UNKNOWN RECIPIENT" must be
entered and Recipient's Name Lines 2 and 3
must be blank. See current paper Instructions
for Form 1042-S for specifics on "UNKNOWN
RECIPIENT" and "WITHHOLDING RATE POOL". See
Note 3 at the beginning of the "Q" Record.

Note 1: A Non-Qualified Intermediary (NQI) can NEVER be entered as the recipient.

__________________________________________________________________________________
Note 2: Do not use special characters in names or addresses that are unique to a
language other than English. For example: å = A, = A, ü = U, Ø = O, n = N, etc.

__________________________________________________________________________________
134-173 Recipient's 40 Enter supplementary recipient name
Name Line-2 information including titles; otherwise,
enter blanks. Use this line for additional
names (e.g., partners or joint owners), for
trade names, stage names, aliases or titles.
Also use this line for "care of", "Attn." or
"via". See Note 3 at the beginning of the "Q"
Record.

__________________________________________________________________________________
174-213 Recipient's 40 See above.
Name Line-3

__________________________________________________________________________________
214-253 Recipient's 40 Required. Enter the mailing address of the
Street recipient. Street address should include
Line-1 number, street, apartment, or suite number
(or P.O. Box if mail is not delivered to
street address). Abbreviate as needed.
Left-justify and blank fill. See Note 3 at
the beginning of the "Q" Record.

__________________________________________________________________________________
254-293 Recipient's 40 Enter supplementary recipient street address
Street information. If a P.O. Box is used in
Line-2 addition to a street address enter it here;
otherwise, left-justify and blank fill.

__________________________________________________________________________________
294-333 Recipient's 40 Required. Enter the city or town (or other
City locality name). Enter APO or FPO only, if
applicable. Do not enter a foreign postal
code in the city field. Left-justify and
blank fill.

__________________________________________________________________________________
334-335 Recipient's 2 Required if U.S. address. Enter the
State two-character State Code abbreviation. If no
U.S. state, territory or APO/FPO identifier
is applicable then blank fill. Do not use any
of the two character Country Codes in the
State Code Field.

Note: If the recipient has a U.S. address, leave the province code in positions
336-337 and country code in positions 338-339 blank.

__________________________________________________________________________________
336-337 Recipient's 2 Required if Recipient Country Code in
Province positions 338-339 is "CA". Enter only the
Code two-alpha character Province Code as shown in
the Province Code Table. See "T" record
positions 117-118 for Province Code Table. DO
NOT spell out the Province Name. If foreign
country other than Canada, blank fill.

__________________________________________________________________________________
338-339 Recipient's 2 Required if the recipient has a foreign
Country address. Enter the two-character Country Code
Code abbreviation.

Note 1: If the state code is entered in positions 334-335, leave this field
blank.

Note 2: COUNTRY CODES: The list of country codes provided in the current paper
Instructions for Form 1042-S includes all internationally recognized country
codes and MUST be used to ensure the proper coding of the Country Code field.
This list is updated each year as required. If you are making a payment to a QI,
enter the country code of the QI.

Note 3: Enter "UC" (unknown country) only if the payment is to an unknown
recipient.

__________________________________________________________________________________
340-348 Postal or 9 Required. Enter up to nine numeric characters
ZIP Code for all U.S. addresses (including
territories, possessions and APO/FPO). For
foreign addresses enter the alpha/numeric
foreign postal code, if applicable. Enter
this code in the left most position and blank
fill the remaining positions. Left-justify.

__________________________________________________________________________________
349-357 Recipient's 9 Enter the recipient's nine-digit U.S.
U.S. TIN Taxpayer Identification Number (TIN). DO NOT
enter hyphens, alpha characters or TINS
consisting of all the same digits (e.g.,
111111111 or 999999999) as these are not
valid TINs. If TIN is not required under
regulations, blank fill.

Note: U.S. TINs are now required for most recipients. See current paper
Instructions for Form 1042-S.

__________________________________________________________________________________
358 Recipient's 1 Required. Enter the recipient's U.S. TIN type
U.S. TIN indicator from the following values:
Type

l 0 = No TIN required
(Zero)

l 1 = SSN/ITIN

l 2 = EIN

l 3 = QI-EIN, WP-EIN, WT-EIN

See current paper Instructions for Form
1042-S for when a TIN is not required.

Note: Use EIN indicator 3 only if the Withholding Agent's EIN begins with "98"
AND the Withholding Agent, Withholding Trust or Withholding Partnership has
entered into a withholding agreement with the IRS.

__________________________________________________________________________________
359-370 U.S. Tax 12 Required. Enter the U.S. Federal tax withheld
Withheld by you. Enter the amount in whole dollars,
rounding to the nearest dollar (do not enter
cents). For example, report $600.25 as
000000000600. Numeric only, right-justify and
zero fill. If there was no withholding, zero
fill.

__________________________________________________________________________________
371-382 Withholding 12 Required. If you are a withholding agent
By Other reporting Form 1042-S information that has
Agents already been subject to withholding by
another withholding agent, enter the amount
withheld by the other agent. Enter the amount
in whole dollars, rounding to the nearest
dollar (do not enter cents). For example,
report $600.25 as 000000000600. Numeric only,
right-justify and zero fill. If there was no
withholding, zero fill.

__________________________________________________________________________________
383-394 Total 12 Required. Enter the aggregate amount of U.S.
Withholding Federal tax withheld by you and any other
Credit withholding agent in whole dollars, rounding
to the nearest dollar ( do not enter cents).
For example, report $600.25 as 000000000600.
Numeric only, right-justify and zero fill. If
there was no withholding, zero fill.

Note: If the Total Withholding Credit, (aggregate amounts of U.S. Federal Tax
Withheld and Withholding By Other Agents) was either under or over reported, see
Field Positions 761 of the "Q" Record.

__________________________________________________________________________________
395-400 Reserved 6 Enter blanks.

__________________________________________________________________________________
401-440 NQI/FLW-THR/PTP40 Provide the complete name of the NQI/FLW-THR
Name Line-1 or PTP Entity. It is very important that the
complete name of the NQI/FLW-THR or PTP
entity be provided. Left-justify and blank
fill. See Note 3 at the beginning of the "Q"
Record.

Note 1: If you are a nominee that is the withholding agent under
Code Section 1446, enter the Publicly Traded Partnership's (PTP) name and other
information in the NQI/FLW-THR fields; positions 401-666.

Note 2: All NQI/FLW-THR fields are REQUIRED if the NQI/FLW-THR entity is involved
in the payment structure WITH THE EXCEPTION OF THE NQI/FLW-THR TIN.

__________________________________________________________________________________
441-480 NQI/FLW-THR/PTP40 Enter supplementary information; otherwise,
Name Line-2 enter blanks. Use this line for additional
names (e.g., partners or joint owners), for
trade names, stage names, aliases or titles.
Also use this line for "care of" or "via".
See Note 3 at the beginning of the "Q"
Record.

__________________________________________________________________________________
481-520 NQI/FLW-THR/PTP40 See above.
Name Line-3

__________________________________________________________________________________
521-522 Reserved 2 Enter blanks.

__________________________________________________________________________________
523-562 NQI/FLW-THR/PTP40 Enter the mailing address of the NQI/FLW-THR
Street or PTP entity. Street address should include
Line-1 number, street, apartment, or suite number
(or P.O. Box if mail is not delivered to
street address). Abbreviate as needed.
Left-justify and blank fill.

__________________________________________________________________________________
563-602 NQI/FLW-THR/PTP40 Enter supplementary NQI/FLW-THR or PTP entity
Street street address information; otherwise, blank
Line-2 fill.

__________________________________________________________________________________
603-642 NQI/FLW-THR/PTP40 Enter the city or town (or other locality
City name). Left-justify and blank fill.

__________________________________________________________________________________
643-644 NQI/FLW 2 Enter the two-alpha character state code (see
THR/PTP table Part A, Sec. 13). If a state code or
State Code APO/FPO is not applicable then blank fill.

__________________________________________________________________________________
645-646 NQI/FLW-THR/PTP2 Enter the two-alpha character Province Code
Province abbreviation, if applicable. See "T" Record
Code positions 117-118.

__________________________________________________________________________________
647-648 NQI/FLW-THR/PTP2 Enter the two-character Country Code
Country abbreviation, where the NQI/FLW-THR or PTP is
Code located. Enter blanks if the NQI/FLW-THR or
PTP has a U.S. address.

__________________________________________________________________________________
649-657 NQI/FLW-THR/PTP9 Enter the alpha/numeric foreign postal code
Postal Code or U.S. ZIP Code for all U.S. addresses
or ZIP Code including territories, possessions and
APO/FPO. Enter the code in the left most
position and blank fill the remaining
positions.

__________________________________________________________________________________
658-666 NQI/FLW-THR/PTP9 Enter the NQI/FLW-THR or PTP nine-digit U.S.
U.S. TIN Taxpayer Identification Number (TIN), if any.
Do NOT enter hyphens or alpha characters.

__________________________________________________________________________________
667-706 Payer's 40 Enter the name of the Payer of Income if
Name different from the Withholding Agent.
Abbreviate as needed. If Withholding Agent
and Payer are the same, blank fill.

__________________________________________________________________________________
707-715 Payer's 9 Enter the Payer's U.S. Taxpayer
U.S. TIN Identification Number if there is an entry in
the Payer Name Field; otherwise, leave blank.

__________________________________________________________________________________
716-727 State 12 If State Tax has been withheld, enter that
Income Tax amount, in whole dollars (do not enter
Withheld cents). Right-justify and zero fill. If no
entry, zero fill.

Note: This amount is not included in the U.S. Federal Tax fields.

__________________________________________________________________________________
728-737 Payer's 10 Enter the employer's state I.D. number if
State Tax assigned by the state. Otherwise,
Number left-justify and blank fill.

__________________________________________________________________________________
738-739 Payer's 2 Enter the two-character State Code
State Code abbreviation.

__________________________________________________________________________________
740-760 Special 21 This field may be used for the filer's own
Data purposes, (e.g., Do Not Mail). If this field
Entries is not used, enter blanks.

__________________________________________________________________________________
761 U.S. 1 Required. Indicate if the U.S. Federal tax
Federal Tax withheld was correct or incorrect using the
Withheld following values:
Indicator

l 0 = Correctly reported

l 1 = Over withheld

l 2 = Under withheld

Note 1: Please refer to Total Withholding Credit positions 383-394.

__________________________________________________________________________________
762-783 Recipient's 22 Enter the recipient's identifying number. Use
Foreign Tax only characters listed in Note 3 at the
I.D. Number beginning of the "Q" Record. Left-justify and
blank fill.

__________________________________________________________________________________
784-809 Reserved 27 Enter blanks.

__________________________________________________________________________________
810 Amended 1 Required for amended returns only. Enter the
Return appropriate code:
Indicator

Code Definition


______________________________________________
G If this is a one-step transaction
amended return or the first of a
two-step transaction amended return

C If this is the second transaction of
a two-step transaction amended return

Blank If this is not a return being
submitted to amend information
already processed by IRS

Note: Amended C and G coded records must be reported using separate Payer "W"
Records. Refer to Part A, Sec. 9, for specific instructions on how to file
amended returns.

Non-coded records cannot be submitted in Amended files.

__________________________________________________________________________________
811-818 Record 8 Required. Enter the number of the record as
Sequence it appears within your file. The record
Number sequence number for the "T" record will
always be "1" (one), since it is the first
record on your file and you can have only one
"T" record in a file. Each record,
thereafter, must be incremented by one in
ascending numerical sequence, i.e., 2, 3, 4,
etc. Right-justify numbers with leading
zeroes in the field. For example, the "T"
record sequence number would appear as
"00000001" in the field, the first "W" record
would be "00000002", the first "Q" record,
"00000003", the second "Q" record, "00000004"
and so on until you reach the final record of
the file, the "F" record.

__________________________________________________________________________________
819-820 Blank or 2 Enter blanks or carriage return line feed
Carriage (CR/LF) characters.
Return Line
Feed

__________________________________________________________________________________






Recipient "Q" Record Layout





____________________________________________________________________________________________________
Record Return Pro Rata Income Gross Withholding Net Tax Rate Exemption
Type Type Basis Code Income Income Code
Indicator Reporting Allowance

____________________________________________________________________________________________________
1 2 3 4-5 6-17 18-29 30-41 42-45 46-47

____________________________________________________________________________________________________






____________________________________________________________________________________________________
Recipient's Reserved Amount Recipient Recipient Recipient's Recipient's Recipient's
Country of Repaid Account Code
Residence Number Name Line-1 Name Line-2 Name Line-3
Code for Tax
Purposes

____________________________________________________________________________________________________
48-49 50-59 60-71 72-91 92-93 94-133 134-173 174-213

____________________________________________________________________________________________________






___________________________________________________________________________________
Recipient's Recipient'sRecipient'sRecipient'sRecipient'sRecipient'sPostal or Recipient's
Street Street
Line-1 Line-2 City State Province Country ZIP Code U.S. TIN
Code Code

___________________________________________________________________________________
214-253 254-293 294-333 334-335 336-337 338-339 340-348 349-357

___________________________________________________________________________________






____________________________________________________________________________________________________
Recipient's U.S. Withholding Total Reserved NQI/FLW- NQI/FLW- NQI/FLW-
U.S. TIN Federal Withholding THR/PTP THR/PTP THR/PTP
Type Tax By Other Name Line-1 Name Line-2 Name Line-3
Withheld Agents Credit

____________________________________________________________________________________________________
358 359-370 371-382 383-394 395-400 401-440 441-480 481-520

____________________________________________________________________________________________________






__________________________________________________________________________________
Reserved NQI/FLW- NQI/FLW- NQI/FLW-THR NQI/FLW- NQI/FLW-
THR/PTP THR/PTP /PTP THR/PTP THR/PTP
Street Street City State Code Province
Line-1 Line-2 Code

__________________________________________________________________________________
521-522 523-562 563-602 603-642 643-644 645-646

__________________________________________________________________________________






__________________________________________________________________________________
NQI/FLW-THR/PTP NQI/FLW-THR/PTPNQI/FLW-THR/PTP Payer's Payer's State Income
Country Code Name U.S.
Postal Code U.S. TIN TIN Tax Withheld
or ZIP
Code

__________________________________________________________________________________
647-648 649-657 658-666 667-706 707-715 716-727

__________________________________________________________________________________






_____________________________________________________________________________________
Payer's State Payer's State Special U.S. Federal Tax Recipient's
Tax Number Code Data Entries Foreign
Withheld Tax I.D. Number
Indicator

_____________________________________________________________________________________
728-737 738-739 740-760 761 762-783

_____________________________________________________________________________________






____________________________________________________________________________________
Reserved Amended Return Record Sequence Blank or Carriage
Indicator Number Return
Line Feed

____________________________________________________________________________________
784-809 810 811-818 819-820

____________________________________________________________________________________





Sec. 4. Reconciliation "C" Record

.01 The "C" Record is a fixed record length of 820 positions and all positions listed are required. The "C" Record is a summary of the number of "Q" Records for each Withholding Agent, Gross Amount Paid, and Total Withholding Credit.

.02 This record will be written after the last "Q" Record filed for a given withholding agent. For each "W" Record and group of "Q" Records on the file, there must be a corresponding "C" Record.

.03 All alpha characters entered in the "C" Record must be upper case.

.04 The "C" Record is a fixed length of 820 positions.




____________________________________________________________________________________
Record Name: Reconciliation "C" Record

____________________________________________________________________________________
Field Field Title Length Description and Remarks
Positions

____________________________________________________________________________________
1 Record Type 1 Required. Enter "C".

____________________________________________________________________________________
2-9 Total "Q" 8 Required. Enter the total number of "Q" Records
Records for this withholding agent. Right-justify and
zero fill. Do not enter all zeros. For example,
53 "Q" records are entered as 00000053. See
Part A, Sec. 4, Filing and Retention
Requirements.

____________________________________________________________________________________
10-15 Blank 6 Enter blanks.

____________________________________________________________________________________
16-30 Total Gross 15 Required. Enter the total gross income amount
Amount Paid in whole dollars ( do not enter cents.) For
example report $600.00 as 000000000000600. An
income amount other than zero must be shown.
Right-justify and zero fill.

____________________________________________________________________________________
31-45 Total 15 Required. Enter the total aggregate amount of
Withholding tax withheld by you and any other withholding
Credit agent. This is the aggregate total amounts from
the fields U.S. Federal Tax Withheld and
Withholding By Other Agents. Enter the amount
in whole dollars ( do not enter cents.) For
example report $600.00 as 000000000000600.
Right-justify and zero fill.

____________________________________________________________________________________
46-810 Reserved 765 Enter blanks.

____________________________________________________________________________________
811-818 Record Sequence 8 Required. Enter the number of the record as it
Number appears within your file. The record sequence
number for the "T" record will always be "1"
(one), since it is the first record on your
file and you can have only one "T" record in a
file. Each record, thereafter, must be
incremented by one in ascending numerical
sequence, i.e., 2, 3, 4, etc. Right-justify
numbers with leading zeroes in the field. For
example, the "T" record sequence number would
appear as "00000001" in the field, the first
"W" record would be "00000002", the first "Q"
record, "00000003", the second "Q" record,
"00000004" and so on until you reach the final
record of the file, the "F" record.

____________________________________________________________________________________
819-820 Blank or 2 Enter blanks or carriage return line feed
Carriage Return (CR/LF) characters.
Line Feed

____________________________________________________________________________________






Reconciliation "C" Record Layout





________________________________________________________________________________
Record Total Blank Total Total Reserved Record Blank or
Type "Q" Gross Withholding Sequence Carriage
Records Amount Number Return Line
Paid Credit
Feed

________________________________________________________________________________
1 2-9 10-15 16-30 31-45 46-810 811-818 819-820

________________________________________________________________________________





Sec. 5. End of Transmission "F" Record

.01 The "F" Record is a fixed record length of 820 positions and all positions listed are required. The "F" Record is a summary of the number of withholding agents in the entire file.

.02 This record will be written after the last "C" Record of the entire file. End the file with an End of Transmission "F" Record. No data will be read after the "F" Record. Only a "C" Record may precede the "F" Record.

.03 All alpha characters entered in the "F" Record must be upper case.

.04 The "F" Record is a fixed length of 820 positions.




____________________________________________________________________________________
Record Name: End of Transmission "F" Record

____________________________________________________________________________________
Field Field Title Length Description and Remarks
Positions

____________________________________________________________________________________
1 Record Type 1 Required. Enter "F".

____________________________________________________________________________________
2-4 Withholding 3 Required. Enter the total number of withholding
Agent Count agents on this file. This count must be the
same as the total number of "W" records.
Right-justify and zero fill.

____________________________________________________________________________________
5-810 Reserved 806 Enter blanks.

____________________________________________________________________________________
811-818 Record Sequence 8 Required. Enter the number of the record as it
Number appears within your file. The record sequence
number for the "T" record will always be "1"
(one), since it is the first record on your
file and you can have only one "T" record in a
file. Each record, thereafter, must be
incremented by one in ascending numerical
sequence, i.e., 2, 3, 4, etc. Right-justify
numbers with leading zeroes in the field. For
example, the "T" record sequence number would
appear as "00000001" in the field, the first
"W" record would be "00000002", the first "Q"
record, "00000003", the second "Q" record,
"00000004" and so on until you reach the final
record of the file, the "F" record.

____________________________________________________________________________________
819-820 Blank or 2 Enter blanks or carriage return line feed
Carriage Return (CR/LF) characters.
Line Feed

____________________________________________________________________________________






End of Transmission "F" Record Layout





_____________________________________________________________________________________
Record Type Withholding Reserved Record Sequence Blank or
Agent Number Carriage
Count Return
Line Feed

_____________________________________________________________________________________
1 2-4 5-810 811-818 819-820

_____________________________________________________________________________________






Part D. Extensions of Time and Waivers




Sec. 1. General - Extensions

.01 An extension of time to file may be requested for Form 1042-S.

.02 Submit Form 8809, Application for Extension of Time To File Information Returns, to IRS/ECC-MTB at the address listed in .09 of this section. This form may be used to request an extension of time to file Form 1042-S submitted on paper or electronically to the IRS. Use a separate Form 8809 for each method of filing information returns you intend to use, i.e. paper or electronic.

.03 The fill-in Form 8809 may be completed online via the FIRE System. (See Part B, Sec. 7, for instructions on connecting to the FIRE System.) At the Main Menu, click "Extension of Time Request" and then click "Fill-in Extension Form". This option is only used to request an automatic 30-day extension. If you are requesting an additional extension, you must submit a paper Form 8809. Requests for an additional extension of time to file information returns are not automatically granted. Requests for additional time are granted only in cases of extreme hardship or catastrophic event. The IRS will send only a letter of explanation approving or denying your additional extension request. (Refer to .12 of this Section.)

.04 To be considered, an extension request must be postmarked, transmitted or completed online by the due date of the returns; otherwise, the request will be denied. (See Part A, Sec. 7.) If requesting an extension of time to file several types of forms, use one Form 8809; however, Form 8809 or file must be postmarked no later than the earliest due date. For example, if requesting an extension of time to file both Forms 1099-INT and 1042-S, submit Form 8809 on or before February 28, 2009.

.05 As soon as it is apparent that a 30-day extension of time to file is needed, an extension request should be submitted. It may take up to 30 days for IRS/ECC-MTB to respond to an extension request. IRS/ECC-MTB does not begin processing extension requests until January. Extensions completed online via the FIRE System receive instant results.

.06 Under certain circumstances, a request for an extension of time may be denied. When a denial letter is received, any additional or necessary information may be resubmitted within 20 days.

.07 Requesting an extension of time for multiple withholding agents (10 or less) may be done by completing the online fill-in form via the FIRE System or by mailing Form 8809 and attaching a list of the withholding agent names and associated TINs (EIN or SSN). Each withholding agent must be completed online or included in the listing to ensure an extension is recorded for all withholding agents. Form 8809 may be computer-generated or photocopied. Be sure to use the most recently updated version and include all pertinent information.

Note: IRS encourages the withholding agent/transmitter community to utilize the online fill-in form in lieu of the paper Form 8809.

.08 Withholding agents/transmitters requesting an extension of time to file for 10 or more payers are required to submit the extension online via the fill-in form or in a file electronically (see Sec. 3, for the record layout).

.09 All requests for an extension of time filed on Form 8809 should be sent using the following address:


IRS-Enterprise Computing Center at Martinsburg



Information Reporting Program



Attn: Extension of Time Coordinator



240 Murall Drive



Kearneysville, WV 25430


Note: Due to the large volume of mail received by IRS/ECC-MTB and the time factor involved in processing Extension of Time (EOT) requests, it is imperative that the attention line be present on all envelopes or packages containing Form 8809.

.10 Requests for extensions of time to file postmarked by the United States Postal Service on or before the due date of the returns, and delivered by United States mail to IRS/ECC-MTB after the due date, are treated as timely under the "timely mailing as timely filing" rule. A similar rule applies to designated private delivery services (PDSs). Notice 97-26, 1997-1 C.B. 413, provides rules for determining the date that is treated as the postmark date. For items delivered by a non-designated Private Delivery Service (PDS), the actual date of receipt by IRS/ECC-MTB will be used as the filing date. For items delivered by a designated PDS, but through a type of service not designated in Notice 2004-83, 2004-2 C.B. 1030 the actual date of receipt by IRS/ECC-MTB will be used as the filing date. The timely mailing rule also applies to furnishing statements to recipients and participants.

.11 Transmitters requesting an extension of time for multiple withholding agents will receive one approval letter, accompanied by a list of withholding agents covered under that approval.

.12 If an additional extension of time is needed, a second Form 8809 or file must be filed by the initial extended due date. Check line 7 on the form to indicate that an additional extension is being requested. A second 30-day extension will be approved only in cases of extreme hardship or catastrophic event. If requesting a second 30-day extension of time, submit the information return files as soon as prepared. Do not wait for IRS/ECC-MTB's response to your second extension request.

.13 If an extension request is approved, be sure to keep the approval letter in your files. DO NOT send the approval letter or copy of the approval letter to IRS/ECC-MTB or to the Ogden Service Center where the paper Forms 1042-S are filed.

.14 Request an extension for only one tax year.

.15 A signature is not required when requesting a 30 day extension. If a second 30 day extension is requested the Form 8809 must be signed.

.16 Failure to properly complete and sign Form 8809 may cause delays in processing the request or result in a denial. Carefully read and follow the instructions on the back of Form 8809.

.17 Form 8809 may be obtained by calling 1-800-TAX-FORM (1-800-829-3676). The form is also available at www.irs.gov.



Sec. 2. Specifications for Filing Extensions of Time Electronically

.01 The specifications in Sec. 3 include the required 200-byte record layout for extensions of time to file requests submitted electronically. Also included are the instructions for the information that is to be entered in the record. Filers are advised to read this section in its entirety to ensure proper filing.

.02 If a filer does not have an IRS/ECC-MTB assigned Transmitter Control Code (TCC), Form 4419, Application for Filing Information Returns Electronically, must be submitted to obtain a TCC. This number must be used to submit an extension request electronically. (See Part A, Sec. 6.)

.03 For extension requests filed via an electronic file, the transmitter must fax Form 8809 or send an e-mail through the FIRE System ( fire@irs.gov and irs.e-helpmail@irs.gov) the same day as the transmission. The e-mail should contain the same information as the Form 8809 in order to mail a response, check the record count and form types in the file. The e-mail option is only used to request the automatic 30-day extension. If you are requesting an additional extension, you must fax a signed Form 8809 the same day as the transmission. Be sure to include the reason an additional extension is needed.

.04 Transmitters submitting an extension of time via an electronic file should not submit a list of withholding agents names and TINs with Form 8809 or e-mail this information since this information is included on the electronic file. However, Line 6 of Form 8809 must be completed or the total number of records on the extension file must be included within the e-mail. The fill-in Form 8809 cannot be used in lieu of the paper Form 8809 for electronic files.

.05 Do not submit extension requests filed electronically before January 3.



Sec. 3. Record Layout --Extension of Time

.01 Positions 6 through 188 of the following record should contain information about the withholding agent for whom the extension of time to file is being requested. Do not enter transmitter information in these fields. Only one TCC may be present in a file.




___________________________________________________________________________________
Record Layout for Extension of Time

___________________________________________________________________________________
Field
Positions Field Title LengthDescription and Remarks

___________________________________________________________________________________
1-5 Transmitter 5 Required. Enter the five-digit Transmitter
Control Code Control Code (TCC) issued by IRS. Only one TCC
per file is acceptable.

___________________________________________________________________________________
6-14 Withholding 9 Required. Must be the valid nine-digit TIN
Agent's TIN assigned to the withholding agent. Do not enter
blanks, hyphens or alpha characters. All zeros,
ones, twos, etc., will have the effect of an
incorrect TIN. For foreign entities that are not
required to have a TIN, this field may be blank;
however, the Foreign Entity Indicator, position
187, must be set to "X."

___________________________________________________________________________________
15-54 Withholding 40 Required. Enter the name of the withholding agent
Agent's Name whose TIN appears in positions 6-14. Left-justify
information and fill unused positions with
blanks.

___________________________________________________________________________________
55-94 Second 40 If additional space is needed, this field may be
Withholding used to continue name line information (e.g., c/o
Agent's Name First National Bank); otherwise, left-justify and
enter blanks.

___________________________________________________________________________________
95-134 Withholding 40 Required. Enter the withholding agent's address.
Agent's Address Street address should include number, street,
apartment or suite number (or PO Box if mail is
not delivered to a street address).

___________________________________________________________________________________
135-174 Withholding 40 Required. Enter withholding agent's city, town,
Agent's City or post office.

Note: For foreign addresses, filers may use the payer city, state, and ZIP Code as
a continuous 51-position field. Enter information in the following order: city,
province or state, postal code, and the name of the country.

___________________________________________________________________________________
175-176 Withholding 2 Required. Enter the withholding agent's valid
Agent's State U.S. Postal Service state abbreviation. (Refer to
Part A, Sec. 13.)

___________________________________________________________________________________
177-185 Withholding 9 Required. Enter withholding agent's ZIP Code. If
Agent's ZIP Code using a five-digit ZIP Code, left-justify
information and fill unused positions with
blanks.

___________________________________________________________________________________
186 Document 1 Required. Enter the appropriate document code
Indicator that indicates the form for which you are
requesting an extension of time.

Code Document


__________________________________________________
4 1042-S

___________________________________________________________________________________
187 Foreign Entity 1 Enter "X" if the withholding agent is a foreign
Indicator entity. Note: A foreign entity is not required to
have a TIN.

___________________________________________________________________________________
188 Recipient 1 Enter "X" if the extension request is to furnish
Request statements to the recipients of the information
Indicator return.
Note: A separate file is required for this type
of extension request. A file must either contain
all blanks or all X's in this field.

___________________________________________________________________________________
189-198 Blank 10 Enter blanks.

___________________________________________________________________________________
199-200 Blank 2 Enter blanks or carriage return/line feed (CR/LF)
characters.

___________________________________________________________________________________






Extension of Time Record Layout





__________________________________________________________________________________
Second Withholding
Transmitter Withholding Withholding Withholding Agent's Withholding
Control Code Agent's TIN Agent's Name Agent's Name Address Agent's City

__________________________________________________________________________________
1-5 6-14 15-54 55-94 95-134 135-174

__________________________________________________________________________________






_______________________________________________________________________________
Withholding

Withholding Agent's Foreign Recipient
Agent's ZIP Document Entity Request Blank or
State Code Indicator Indicator Indicator Blank CR/LF

_______________________________________________________________________________
175-176 177-185 186 187 188 189-198 199-200

_______________________________________________________________________________





Sec. 4. Extension of Time for Recipient Copies of Information Returns

.01 Request an extension of time to furnish the statements to recipients of Form 1042-S by submitting a letter to IRS/ECC-MTB at the address listed in Part D, Sec 1.09. The letter should contain the following information:

(a) Withholding Agent's name

(b) TIN

(c) Address

(d) Type of return

(e) Specify that the extension request is to provide statements to recipients

(f) Reason for delay

(g) Signature of withholding agent or duly authorized person.

.02 Requests for an extension of time to furnish statements to recipients of Form 1042-S are not automatically approved; however, if approved, generally an extension will allow a maximum of 30 additional days from the due date. The request must be postmarked by the date on which the statements are due to the recipients.

.03 Generally, only the withholding agent may sign the letter requesting the extension for recipient copies. A transmitter must have a contractual agreement with the withholding agents to submit extension requests on their behalf. This should be stated in your letter of request for recipient copy extensions. If you are requesting an extension for multiple withholding agents electronically, you must use the format specifications in Sec. 3.

.04 Requests for a recipient extension of time to file for more than 10 withholding agents are required to be submitted electronically. (See Sec. 3, for record layout.)

.05 The fill-in Form 8809 extension option cannot be used to request an extension to furnish statements to recipients.



Sec. 5. Form 8508, Request for Waiver From Filing Information Returns Electronically

.01 If a withholding agent is required to file electronically but fails to do so and does not have an approved waiver on record, the withholding agent will be subject to a penalty of $50 per return in excess of 250 unless reasonable cause is established. (For penalty information, refer to the Penalty Section of the General Instructions for Form 1042-S.)

.02 If withholding agents are required to file original or amended returns electronically, but such filing would create an undue hardship, they may request a waiver from these filing requirements by submitting Form 8508, Request for Waiver From Filing Information Returns Electronically, to IRS/ECC-MTB. Form 8508 can be obtained on the IRS Website at www.irs.gov or by calling toll-free 1-800-829-3676.

.03 Even though a withholding agent may submit as many as 249 amended returns on paper, IRS/ECC-MTB encourages electronic filing of amended returns. Once the 250 threshold has been met, filers are required to submit any returns of 250 or more electronically. However, if a waiver for original documents is approved, any amended returns for the same type of returns will be covered under this waiver.

.04 Generally, only the withholding agent may sign Form 8508. A transmitter may sign if given power of attorney; however, a letter signed by the payer stating this fact must be attached to Form 8508.

.05 A transmitter must submit a separate Form 8508 for each withholding agent. Do not submit a list of withholding agents.

.06 All information requested on Form 8508 must be provided to IRS/ECC-MTB for the request to be processed.

.07 The waiver, if approved, will provide exemption from the electronic filing requirement for the current tax year only. Withholding agents may not apply for a waiver for more than one tax year.

.08 Form 8508 may be photocopied or computer-generated as long as it contains all the information requested on the original form.

.09 Filers are encouraged to submit Form 8508 to IRS/ECC-MTB at least 45 days before the due date of the returns. Generally, IRS/ECC-MTB does not process waiver requests until January. Waiver requests received prior to January are processed on a first come, first served basis.

.10 All requests for a waiver should be sent using the following address:


IRS-Enterprise Computing Center - Martinsburg



Information Reporting Program



240 Murall Drive



Kearneysville, WV 25430


.11 Waivers are evaluated on a case-by-case basis and are approved or denied based on criteria set forth in the regulations under section 6011(e) of the Internal Revenue Code. The transmitter must allow a minimum of 30 days for IRS/ECC-MTB to respond to a waiver request.

.12 If a waiver request is approved, be sure to keep the approval letter in your files. DO NOT send a copy of the approved waiver to the Ogden Service Center.

.13 An approved waiver only applies to the requirement for filing Form 1042-S electronically. The withholding agent must timely file information returns on the official IRS paper forms or an acceptable substitute form with the Ogden Service Center.

* IRS intends to start offering this sometime during the period of this publication. If you plan to use it, please contact us to see if it is available.

** IRS intends to drop this non-FIPS algorithm during the period of this publication after the Service starts offering AES.


NON: RCB02 REVPROC2009-35 http://tax.cchgroup.com/network&JA=LK&fNoSplash=Y&&LKQ=GUID%3Abb2d4e72-e084-3211-8bf0-41195ae55bb5&KT=L&fNoLFN=TRUE& RCB02 #1855 [RULINGS RULINK CBLINK ]

Friday, August 28, 2009

Accounting Method Automatic consent Rev. Proc.

August 28, 2009

Administrative, Procedural, and Miscellaneous

26 C.F.R. 601.204 Changes in accounting periods and in methods of accounting

( Also Part I, §§ 118 , 162, 167, 168, 263A, 446, 451; 461, 471, 472, 481, 904, 953; 1.118-2, 1.162-3, 1.162-4, 1.446-1, 1.446-5, 1.461-1, 1.471-2)

Rev. Proc. 2009-39



SECTION 1. PURPOSE

This revenue procedure amplifies, clarifies, and modifies Rev. Proc. 2008-52 , 2008-2 C.B. 587, which provides procedures for taxpayers within the scope of that revenue procedure to obtain automatic consent for the changes in method of accounting described in its APPENDIX. This revenue procedure also modifies and clarifies Rev. Proc. 97-27 , 1997-1 C.B. 680, as amplified and modified by Rev. Proc. 2002-19 , 2002-1 C.B. 696, as amplified and clarified by Rev. Proc. 2002-54 , 2002-2 C.B. 432, and as modified by Rev. Proc. 2007-67 , 2007-2 C.B. 1072, which provides the general procedures for obtaining the advance consent of the Commissioner of Internal Revenue to change a method of accounting.



SECTION 2. CHANGES TO REV. PROC. 2008-52

.01 Change to section 2.05 , Method change with a § 481(a) adjustment. Section 2.05(1) of Rev. Proc. 2008-52 is clarified to read as follows:

(1) Need for adjustment . Section 481(a) requires those adjustments necessary to prevent amounts from being duplicated or omitted to be taken into account when the taxpayer's taxable income is computed under a method of accounting different from the method used to compute taxable income for the preceding taxable year. When there is a change in method of accounting to which § 481(a) is applied, income for the taxable year preceding the year of change must be determined under the method of accounting that was then employed, and income for the year of change and the following taxable years must be determined under the new method of accounting as if the new method had always been used. The § 481(a) adjustment is computed notwithstanding that the period of limitations on assessment and collection of tax may have closed on the years (closed years) in which the events giving rise to the need for an adjustment occurred. See Superior Coach of Fla., Inc. v. Commissioner , 80 T.C. 895, 912 (1983). In computing the net § 481(a) adjustment, a taxpayer must take into account all relevant accounts. For example, the § 481(a) adjustment for a change in the proper time for deducting salary bonuses under § 461 should reflect any necessary adjustments for amounts of salary bonuses capitalized to inventory under § 263A .
Example . A taxpayer that is not required to use inventories uses the overall cash receipts and disbursements method and changes to an overall accrual method. The taxpayer has $120,000 of income earned but not yet received (accounts receivable) and $100,000 of expenses incurred but not yet paid (accounts payable) as of the end of the taxable year preceding the year of change. A positive § 481(a) adjustment of $20,000 ($120,000 accounts receivable less $100,000 accounts payable) is required as a result of the change.

.02 Changes to section 3.08 , Definition of "under examination. "

(1) Change to section 3.08(1)(a) . Section 3.08(1)(a) of Rev. Proc. 2008-52 is modified to read as follows:

(1) In general .

(a) Except as provided in sections 3 .08(2), (3), (4), (5) and (6) of this revenue procedure, an examination of a taxpayer with respect to a federal income tax return begins on the date the taxpayer is contacted in any manner by a representative of the Internal Revenue Service (Service) for the purpose of scheduling any type of examination of the return. An examination ends:

* * *

(2) New sections 3 .08(4), 3.08(5) and 3.08(6) . Section 3.08 of Rev. Proc. 2008-52 is modified by adding new sections 3 .08(4) and 3.08(5) and is clarified by adding a new section 3.08(6) to read as follows:

(4) Certain foreign corporations . A foreign corporation that is not required to file a federal income tax return is under examination if any of its controlling domestic shareholders, as defined in § 6.02(3)(b) of this revenue procedure, is under examination for a taxable year(s) in which it was a United States shareholder of the foreign corporation. For purposes of this revenue procedure, a foreign corporation is no longer under examination when the controlling domestic shareholders are no longer under examination, as defined in section 3.08 of this revenue procedure.

(5) Taxpayer before Joint Committee on Taxation . If an examination of a taxpayer involves a refund or credit in excess of the statutory sum that is subject to review by the Joint Committee on Taxation pursuant to § 6405 , then, for purposes of this revenue procedure, the taxpayer is under examination while the taxpayer has a refund or credit under review by the Joint Committee on Taxation and continues to be under examination until Joint Committee on Taxation review procedures and any necessary follow-up are complete. See Rev. Proc. 2005-32 , 2005-1 C.B. 1206.

If a taxpayer files an application while the taxpayer is before the Joint Committee on Taxation, the taxpayer must provide a copy of the application to the Joint Committee on Taxation at the same time it files a copy of the application with the national office and provides a copy to the examining agent. The Joint Committee on Taxation copy of the application is to be sent to the following address: 1111 Constitution Avenue, NW, Room 3565, Washington, D.C. 20224.

(6) Taxpayer in Compliance Assurance Process . For purposes of this revenue procedure, a taxpayer participating in the Compliance Assurance Process (CAP) is considered to be under examination as of the date the taxpayer executes the Memorandum of Understanding for the CAP.

.03 Change to section 3.09 , Definition of "issue under consideration ." Section 3.09 of Rev. Proc. 2008-52 is modified by adding a new section 3.09(4) at the end of section 3.09 to read as follows:

(4) Certain foreign corporations . In the case of a controlled foreign corporation (CFC) as defined in § 953(c)(1)(B) or § 957 or a noncontrolled section 902 corporation as defined in § 904(d)(2)(E) (10/50 corporation), a foreign corporation's method of accounting for an item is an issue under consideration if any of the corporation's controlling domestic shareholders receives notification described in section 3.09(1) , (2) or (3) that the treatment of a distribution or deemed distribution from the foreign corporation, or the amount of its earnings and profits or foreign taxes deemed paid, is an issue under consideration.

.04 Change to section 4.02 , Scope "Inapplicability" . Section 4.02(1) of Rev. Proc. 2008-52 is modified and section 4.02(4) of Rev. Proc. 2008-52 is clarified to read as follows:

(1) Under examination . If, on the date the taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) would otherwise file a copy of the application with the national office, the taxpayer is under examination (as provided in section 3.08 of this revenue procedure), except as provided in sections 6 .03(2) (90-day window), 6.03(3) (120-day window), 6.03(4) (consent of director), 6.03(5) (changes lacking audit protection), and 6.03(6) (issue pending) of this revenue procedure;

* * *

(4) Section 381(a) transaction . Except as otherwise provided in this section 4.02(4) or in final regulations issued under § 381 , if the taxpayer engages in a transaction to which § 381(a) applies within the proposed taxable year of change (determined without regard to any potential closing of the year under § 381(b)(1) ):

* * *

.05 Changes to section 5 , TERMS AND CONDITIONS OF CHANGE, and section 6 , GENERAL APPLICATION PROCEDURES .

(1) Changes to sections 5 .06(4) and 6.02(3)(b) . Section 5.06(4) of Rev. Proc. 2008-52 is clarified by deleting the reference to the temporary regulations under § 1.964-1T(c)(3) and inserting reference to the final regulations under §§ 1.964-1(c)(3) . Section 6.02(3)(b) is clarified by deleting the references to the temporary regulations under §§ 1.964-1T(c)(3) and 1.964-1T(c)(5) and inserting references to the final regulations under §§ 1.964-1(c)(3) and 1.964-1(c)(5), respectively.

(2) Changes to sections 6 .02(1)(b), 6.02(11), 6.03, 6.04 and 6.05 of Rev. Proc. 2008-52 . Sections 6 .02(1)(b) of Rev. Proc. 2008-52 is clarified and sections 6 .02(11), 6.03, 6.04 and 6.05 of Rev. Proc. 2008-52 are modified to read as follows:

.02 Filing requirements .

(1) Applications .

* * *

(b) Separate applications .

(i) In general . Ordinarily, a taxpayer must submit a separate application for each change in method of accounting.

(ii) Single application for two or more changes . In some cases, the provisions of this revenue procedure or other guidance published in the IRB applicable to particular changes in method of accounting may require or allow a taxpayer to file a single application for two or more concurrent changes. See, for example, section 14.03 of the APPENDIX of this revenue procedure.

When the taxpayer is required or allowed to file a single Form 3115 for two or more concurrent changes, the taxpayer must attach to the single Form 3115 the information required by Part II, line 12, and Part IV, line 25 (including the amount of any § 481(a) adjustment), of Form 3115 for each change in method of accounting included on that single Form 3115. Also attach an explanation for any other line(s) on the single Form 3115 where the taxpayer's answer is different for any of the concurrent changes to which the single Form 3115 relates.

* * *

(11) Additional copies required .

(a) Scope restrictions waived for taxpayer under examination . If (i) one or more of the scope limitation provisions of section 4.02 of this revenue procedure would otherwise preclude a taxpayer from making a change under this revenue procedure, but (ii) the scope limitation provisions of section 4.02 of this revenue procedure do not apply to the change sought by the taxpayer (see, for example section 2.01 of the APPENDIX of this revenue procedure), and (iii) the taxpayer is under examination (as provided in section 3.08 of this revenue procedure) on the date it files the copy of its application with the national office, then the taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the examining agent(s) at the same time that it files a copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

(b) Taxpayer before an appeals office or a federal court and issue not under consideration . If a taxpayer that is otherwise within the scope of this revenue procedure (or if section 6.02(3)(b) of this revenue procedure applies, any controlling domestic shareholder of a CFC or 10/50 corporation) is before an appeals office or a federal court and the present method to be changed is not an issue under consideration by the appeals office or the federal court on the date the copy of its application is filed with the national office, then the taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the appeals officer(s) or counsel(s) for the government, as applicable, at the same time that it files a copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the appeals officer(s) or counsel(s) for the government, as applicable.

.03 Taxpayer under examination .

(1) In general . Except as otherwise provided in the APPENDIX of this revenue procedure (see, for example, section 2.01 of the APPENDIX of this revenue procedure), a taxpayer that is under examination (as provided in section 3.08 of this revenue procedure) may file an application to change a method of accounting under section 6 of this revenue procedure only if the taxpayer is within the provisions of section 6.03(2) (90-day window), 6.03(3) (120-day window), 6.03(4) (consent of director), 6.03(5) (changes lacking audit protection), or 6.03(6) (issue pending) of this revenue procedure. A taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) that files an application beyond the time periods provided in the 90-day and 120-day windows is not eligible for the automatic extension of time and will not be granted an extension of time to file under § 301.9100 , except in unusual and compelling circumstances.

(2) 90-day window period .

(a) A taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) may file a copy of the application with the national office to change a method of accounting under this revenue procedure during the first 90-days of any taxable year (the 90-day window) if the taxpayer has (or in the case of a taxpayer that is a CFC or 10/50 corporation, all of its controlling domestic shareholders that are under examination have) been under examination for at least 12 consecutive months as of the first day of the taxable year. This 90-day window is not available if the method of accounting the taxpayer is changing is an issue under consideration at the time the taxpayer (or designated shareholder) would otherwise file the copy of the application or an issue the examining agent(s) has placed in suspense at the time the taxpayer (or designated shareholder) would otherwise file the copy of the application. The 90-day window also is not available while the taxpayer (or any controlling domestic shareholder of a CFC or 10/50 corporation) has a refund or credit under review by the Joint Committee on Taxation (including any necessary follow-up).

(b) A taxpayer changing a method of accounting under this 90-day window (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the examining agent(s) at the same time it files the copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

(3) 120-day window period .

(a) A taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) may file a copy of the application with the national office to change a method of accounting under this revenue procedure during the 120-day period following the date an examination of the taxpayer (or in the case of a taxpayer that is a CFC or 10/50 corporation, of each of its controlling domestic shareholders that were under examination) ends (the 120-day window), regardless of whether a subsequent examination has commenced. This 120-day window is not available if the method of accounting the taxpayer is changing is an issue under consideration at the time the taxpayer (or designated shareholder) would otherwise file a copy of the application or an issue the examining agent(s) has placed in suspense at the time the taxpayer (or designated shareholder) would otherwise file a copy of the application. The 120-day window also is not available while the taxpayer (or a controlling domestic shareholder of a CFC or 10/50 corporation) has a refund or credit under review by the Joint Committee on Taxation (including any necessary follow-up).

(b) A taxpayer changing a method of accounting under this 120-day window (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the examining agent(s) for any examination that is in process at the same time it files the copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

(4) Consent of director .

(a) A taxpayer under examination may change its method of accounting under this revenue procedure if the director consents to the filing of the application. The director will consent to the filing of the application unless, in the opinion of the director, the method of accounting to be changed would ordinarily be included as an item of adjustment in the year(s) for which the taxpayer is under examination. For example, the director will consent to the filing of an application to change from a clearly permissible method of accounting, or from an impermissible method of accounting where the impermissible method was adopted subsequent to the years under examination. The director's consent is limited to the director's consent to file the application and does not constitute the director's agreement to, or approval of, the requested change in method of accounting. The question of whether the method of accounting from which the taxpayer is changing is permissible or was adopted subsequent to the years under examination may be referred to the national office as a request for technical advice under the provisions of Rev. Proc. 2009-2 (or any successor). This section 6.03(4) does not apply to a taxpayer while the taxpayer (or any controlling domestic shareholder of a CFC or 10/50 corporation) has a refund or credit under review by the Joint Committee on Taxation (including any necessary follow-up).

(b) A taxpayer changing a method of accounting under this revenue procedure with the consent of the director (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must attach to the copy of the application filed with the national office a statement from the director consenting to the filing of the application. In addition, the taxpayer (or designated shareholder) must attach to its original application attached to its timely filed original federal income tax return a statement certifying that it has obtained the written consent of the director to the filing of the application and that the taxpayer (or designated shareholder) will maintain a copy of such consent available for inspection. The taxpayer (or designated shareholder) must provide a copy of the application to the director at the same time it files a copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

(5) Changes lacking audit protection .

(a) A taxpayer under examination may change its method of accounting under this revenue procedure if the description of the change in the APPENDIX of this revenue procedure provides that the change is not subject to the audit protection provisions of section 7 of this revenue procedure.

(b) A taxpayer changing a method of accounting under this section 6.03(5) (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the examining agent(s) for any examination that is in process and, if the taxpayer (or any controlling domestic shareholder of a CFC or 10/50 corporation) has a refund or credit under review by the Joint Committee on Taxation (including any follow-up), to the Joint Committee on Taxation, at the same time it files the copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

(6) Issue Pending .

(a) A taxpayer that is under examination with respect to any income tax issue may request to change a method of accounting if the method of accounting to be changed is an issue pending for any taxable year under examination. However, the audit protection provisions of section 7 of this revenue procedure do not apply to a taxpayer changing its method of accounting under this section 6.03(6) . For purposes of this section 6.03(6) , an issue is pending for a taxable year under examination if the Service has given the taxpayer (or if section 6.02(3)(b) of this revenue procedure applies, any controlling domestic shareholders of a CFC or 10/50 corporation) written notification indicating an adjustment is being made or will be proposed with respect to the taxpayer's method of accounting. The notification by the Service may result from an inquiry by the Joint Committee on Taxation. This notification normally will occur after the Service or the Joint Committee on Taxation has gathered information sufficient to determine that an adjustment is appropriate and justified, although the exact amount of the adjustment may not yet be determined.

(b) A taxpayer that requests to change a method of accounting under this section 6.03(6) (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the examining agent(s), and if the taxpayer (or any controlling domestic shareholder of a CFC or 10/50 corporation) has a refund or credit under review by the Joint Committee on Taxation (including any necessary follow-up), to the Joint Committee on Taxation, at the same time it files a copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the examining agent(s).

.04 Taxpayer before an appeals office . A taxpayer otherwise within the scope of this revenue procedure that is before an appeals office with respect to any income tax issue (or if section 6.02(3)(b) of this revenue procedure applies, a CFC or 10/50 corporation with a controlling domestic shareholder that is before an appeals office with respect to any income tax issue) may request a change in method of accounting. However, the audit protection provisions of section 7 of this revenue procedure do not apply if the method of accounting to be changed is an issue under consideration by the appeals office. A taxpayer that requests to change a method of accounting under this section 6.04 (or if section 6.02(3)(b) of this revenue procedure applies, the designated shareholder) must provide a copy of the application to the appeals officer at the time it files a copy of the application with the national office. The application must contain the name(s) and telephone number(s) of the appeals officer(s).

.05 Taxpayer before a federal court . A taxpayer otherwise within the scope of this revenue procedure that is before a federal court with respect to any income tax issue (or if section 6.02(3)(b) of this revenue procedure applies, a CFC or 10/50 corporation with a controlling domestic shareholder that is before a federal court with respect to any income tax issue) may request a change in method of accounting. However, the audit protection provisions of section 7 of this revenue procedure do not apply if the method of accounting to be changed is an issue under consideration by the federal court. A taxpayer (or designated shareholder) that requests to change a method of accounting under this section 6.05 must provide a copy of the application to the counsel(s) for the government at the time it files a copy of the original application with the national office. The application must contain the name(s) and telephone number(s) of the counsel(s) for the government.

.06 Change to section 13 , EFFECT ON OTHER DOCUMENTS . Rev. Proc. 2008-52 is clarified by inserting a new paragraph at the end to read as follows:

Rev. Proc. 2008-18 , 2008-1 C.B. 573, is modified, and, as modified, is superseded.

.07 New section 3.05 of the APPENDIX, Materials and supplies . Section 3 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 3.05 to read as follows:

.05 Materials and supplies .

(1) Description of change .

(a) Applicability . This change applies to a taxpayer that wants to change its method of accounting for materials and supplies on hand to the method of treating the cost of materials and supplies as a deferred expense to be taken into account in the taxable year in which they are actually consumed and used in operation, consistent with § 1.162-3 .

(b) Inapplicability . This change does not apply to a taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 3.05 of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable).

(2) Amounts taken into account . Applicable provisions of the Code, regulations, and other guidance published in the IRB prescribe the manner in which a liability that has been incurred is taken into account. For example, for a taxpayer with inventories, certain indirect material costs must be included in inventory costs and may be recovered through the cost of goods sold. See § 1.263A-1(e)(3)(ii)(E) . A taxpayer may not rely on the provisions of section 3.05 of this APPENDIX to take a current deduction.

(3) Concurrent automatic change . A taxpayer that wants to make both this change and a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable) for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(4) Proposed regulations . The Department of the Treasury has published proposed regulations that address the definition and treatment of materials and supplies under § 162 . See Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 73 FR 12838-01 (March 10, 2008), 2008-1 C.B. 871. The proposed regulations are not effective until publication of a Treasury decision adopting them as final regulations in the Federal Register. Thus, taxpayers may not change a method of accounting in reliance upon the rules contained in the proposed regulations until the rules are published as final regulations in the Federal Register. If final regulations are adopted with positions that are inconsistent with the method of accounting implemented by the taxpayer under section 3.05 of this APPENDIX, that method will no longer be regarded as proper. In such event, the taxpayer will be required to follow any instructions in the final regulations or other guidance published in the IRB concerning methods of accounting for materials and supplies for future taxable years.

(5) Designated automatic accounting method change number . The designated automatic accounting method change number for a change in method of accounting under section 3.05 of this APPENDIX is "143." See section 6.02(4) of this revenue procedure.

(6) Contact information . For further information regarding a change under this section, contact Justin G. Meeks at 202-622-5020 (not a toll-free call).

.08 New section 3.06 of the APPENDIX, Repair and maintenance costs . Section 3 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 3.06 to read as follows:

.06 Repair and maintenance costs .

(1) Description of change .

(a) Applicability . This change applies to a taxpayer that wants to change its method of accounting from capitalizing under § 263(a) costs paid or incurred to repair and maintain tangible property (including network assets) to treating the repair and maintenance costs as ordinary and necessary business expenses under § 162 and § 1.162-4 . This change also applies to a taxpayer that wants to change the unit of property it uses to determine the deductibility of repair and maintenance costs to a unit of property that is permissible under applicable legal authority.

(b) Inapplicability . This change does not apply to:

(i) A taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 3.06 of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable);

(ii) A taxpayer that wants to change its method of accounting for dispositions of depreciable property, including a change in the unit of property used for such dispositions (but see sections 6 .24 and 6.25 of this APPENDIX); or

(iii) Any property subject to the repair allowance under § 1.167(a)-11(d)(2) (including expenditures incurred after December 31, 1980, for the repair, maintenance, rehabilitation, or improvement of property placed in service before January 1, 1981).

(2) Manner of making change . A taxpayer making this change must attach to its Form 3115 a statement with the following:

(a) A detailed description of the types of tangible property to which this change applies;

(b) A detailed description of the types of repair and maintenance costs to which this change applies;

(c) If the taxpayer is changing any unit of property determination, a detailed description of the unit(s) of property under its present method of accounting for determining the deductibility of repair and maintenance costs and a detailed description of the unit(s) of property it will use under its proposed method of determining the deductibility of repair and maintenance costs, together with a description of the legal authority supporting the taxpayer's proposed unit(s) of property for determining the deductibility of repair and maintenance costs;

(d) The following statements regarding the costs to which this change applies:

(i) "The taxpayer represents that the repair and maintenance costs are incurred to keep the taxpayer's property in ordinarily efficient operating condition."

(ii) "The taxpayer represents that the repair and maintenance costs do not materially increase the value or substantially prolong the useful life of any unit of property compared to the value or useful life of the property before the general wear or tear or particular event that led to the repairs or maintenance."

(iii) "The taxpayer represents that the repair and maintenance costs do not adapt any unit of property to a new or different use."

(iv) "The taxpayer represents that the repair and maintenance costs do not include costs to replace any unit of property or any major components or substantial structural parts of any unit of property."

(v) "The taxpayer represents that the repair and maintenance costs are not incurred as part of a plan of rehabilitation, modernization, or improvement to any unit of property."

(vi) "The taxpayer represents that the repair and maintenance costs do not result from any prior owner's use of any unit of property."

(3) Additional copy of Form 3115 required . A taxpayer changing its method of accounting under section 3.06 of this APPENDIX must, in addition to the timely duplicate filing requirements in section 6.02(3) of Rev. Proc. 2008-52 , send a copy of its completed Form 3115 (including attachments) to the following address on the date the taxpayer files a copy of the Form 3115 with the national office: Internal Revenue Service, 1973 North Rulon White Blvd., Mail Stop 4917, Ogden, UT 84404.

(4) Amounts taken into account . Applicable provisions of the Code, regulations, and other guidance published in the IRB prescribe the manner in which a liability that has been incurred is taken into account. For example, for a taxpayer with inventories, certain repair and maintenance costs must be included in inventory costs and may be recovered through the cost of goods sold. See § 1.263A-1(e)(3)(ii)(E) . A taxpayer may not rely on the provisions of section 3.06 of this APPENDIX to take a current deduction.

(5) No ruling on unit of property . The consent granted under this revenue procedure for this change is not a determination by the Commissioner that the taxpayer is using the appropriate unit of property in determining the deductibility of repair and maintenance costs and does not create any presumption that the proposed unit of property is permissible. The director will ascertain whether the taxpayer's determination of its unit of property is correct.

(6) Concurrent automatic change . A taxpayer that wants to make both this change and a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable) for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(7) Proposed regulations . The Department of the Treasury has published proposed regulations that address the application of §§ 162 and 263 to expenditures paid or incurred to repair, maintain, or improve tangible property. See Guidance Regarding Deduction and Capitalization of Expenditures Related to Tangible Property, 73 FR 12838-01 (March 10, 2008), 2008-1 C.B. 871. The proposed regulations are not effective until publication of a Treasury decision adopting them as final regulations in the Federal Register. Thus, taxpayers may not change a method of accounting in reliance upon the rules contained in the proposed regulations until the rules are published as final regulations in the Federal Register. If final regulations are adopted with positions that are inconsistent with the method of accounting implemented by the taxpayer under section 3.06 of this APPENDIX, that method will no longer be regarded as proper. In such event, the taxpayer will be required to follow any instructions in the final regulations or other guidance published in the IRB concerning methods of accounting for the repair, maintenance, or improvement of tangible property for future taxable years.

(8) Designated automatic accounting method change number . The designated automatic accounting method change number for a change in method of accounting under section 3.06 of this APPENDIX is "144." See section 6.02(4) of this revenue procedure.

(9) Contact information . For further information regarding a change under this section, contact Mon Lam at 202-622-4950 (not a toll-free call).

.09 New section 6.23 of the APPENDIX, Tenant construction allowances . Section 6 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 6.23 to read as follows:

.23 Tenant construction allowances .

(1) Description of change and scope .

(a) Applicability . This change applies to a taxpayer that wants to change its method of accounting for tenant construction allowances:

(i) from improperly treating the taxpayer as having a depreciable interest in the property subject to the tenant construction allowances for federal income tax purposes to properly treating the taxpayer as not having a depreciable interest in such property for federal income tax purposes; or

(ii) from improperly treating the taxpayer as not having a depreciable interest in the property subject to the tenant construction allowances for federal income tax purposes to properly treating the taxpayer as having a depreciable interest in such property for federal income tax purposes.

(b) Inapplicability . This change does not apply to:

(i) any tenant construction allowance that qualifies under § 110 ;

(ii) any portion of a tenant construction allowance that is not expended on depreciable property; or

(iii) any amount expended for depreciable property in excess of the tenant construction allowance.

(2) Definition . For purposes of section 6.23 of this APPENDIX, the term "tenant construction allowance(s)" means any amount received by a lessee from a lessor to construct, acquire, or improve property for use by the lessee pursuant to a lease.

(3) Manner of making the change .

(a) The change in method of accounting under section 6.23 of this APPENDIX is made using a cut-off method and only applies to leases entered into on or after the beginning of the year of change. See section 2.06 of this revenue procedure.

(b) If a taxpayer wants to change its method of accounting for tenant construction allowances under existing leases, the taxpayer must file a Form 3115 with the Commissioner in accordance with the requirements of § 1.446-1(e)(3)(i) and Rev. Proc. 97-27 . A change involving tenant construction allowances under existing leases will require a § 481(a) adjustment. Consent to change a method of accounting for tenant construction allowances under existing leases is granted only if the taxpayer's treatment of the property subject to the tenant construction allowances is consistent with the treatment of such property by the counterparty for federal income tax purposes. The following information must be submitted with a Form 3115 submitted under Rev. Proc. 97-27 :

(i) If a lessee is filing the Form 3115, the lessee must submit with the Form 3115: (A) a statement that provides the amount of the tenant construction allowance received by the lessee, the amount of such tenant construction allowance expended by the lessee on property, and the name of the lessor that provided the tenant construction allowance; and (B) a representation, signed under penalties of perjury, from such lessor that provides the amount of the tenant construction allowance provided to the lessee and an explanation as to how the lessor is treating the property subject to such tenant construction allowance for federal income tax purposes. If the lessor capitalized the tenant construction allowance (or any portion thereof) provided to the lessee and depreciated the property subject to such tenant construction allowance, the representation must also include the amount that was capitalized by the lessor, the Internal Revenue Code section under which the property is depreciated by the lessor, and the life over which the property is depreciated by the lessor.

(ii) If a lessor is filing the Form 3115, the lessor must submit with the Form 3115: (A) a statement that provides the amount of the tenant construction allowance provided to a lessee and the name of the lessee that received such tenant construction allowance; and (B) a representation, signed under penalties of perjury, from such lessee that provides the amount of the tenant construction allowance received from the lessor, the amount of such tenant construction allowance recognized as gross income by the lessee, the amount of the tenant construction allowance expended by the lessee on property, and an explanation as to how the lessee is treating the property subject to the tenant construction allowance for federal income tax purposes. If the lessee capitalized the tenant construction allowance (or any portion thereof) received from the lessor and depreciated the property subject to such tenant construction allowance, the representation must also include the amount that was capitalized by the lessee, the Internal Revenue Code section under which the property is depreciated by the lessee, and the life over which the property is depreciated by the lessee.

(4) No audit protection . A taxpayer does not receive audit protection under section 7 of this revenue procedure in connection with this change.

(5) Designated automatic accounting method change number . The designated automatic accounting method change number for a change under section 6.23 of this APPENDIX is "145." See section 6.02(4) of this revenue procedure.

(6) Contact information . For further information regarding a change under this section, contact Ruba Nasrallah at 202-622-4930 (not a toll-free call).

.10 New section 6.24 of the APPENDIX, Dispositions of structural components of a building ( section 168 ) . Section 6 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 6.24 to read as follows:

.24 Dispositions of structural components of a building ( section 168 ) .

(1) Description of change .

(a) Applicability . This change applies to a taxpayer that wants to change to a unit of property that is permissible under applicable legal authority for determining when the taxpayer has disposed of a building (as defined in § 1.48-1(e)(1) , except as otherwise provided under any other applicable provision of the Code or regulations relating to depreciation or amortization (for example, § 1400I(f)(3) )) and its structural components (as defined in § 1.48-1(e)(2)) for depreciation purposes. This change also will affect the determination of gain or loss from the disposition of the building (including its structural components).

(b) Inapplicability . This change does not apply to:

(i) a taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 6.24 of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable);

(ii) any property that is not depreciated under § 168 under the taxpayer's present and proposed methods of accounting;

(iii) any section 1245 property or depreciable land improvement (but see section 6.25 of this APPENDIX for making this change);

(iv) any leasehold improvement, whether made by the lessor or the lessee (unless the taxpayer leased land and constructed a building on such leased land, and such building (including its structural components) is the leasehold improvement and is the unit of property under the taxpayer's proposed method of accounting under section 6.24 of this APPENDIX);

(v) any property disposed of by the taxpayer in a transaction to which a nonrecognition section of the Code applies (for example, § 1031 , transactions subject to § 168(i)(7) );

(vi) any property subject to a general asset account election under § 168(i)(4) and the regulations thereunder;

(vii) any building with multiple condominium or cooperative units (unless each condominium or cooperative unit is the unit of property under the taxpayer's proposed method of accounting under section 6.24 of this APPENDIX); or

(viii) any multiple buildings (including their structural components) that are treated as a single building (single unit of property) under the taxpayer's present method of accounting or will be treated as a single building (single unit of property) under the taxpayer's proposed method of accounting.

(2) Manner of making change . A taxpayer making this change must attach to its Form 3115 a statement with the following:

(a) A detailed description of the types of property to which this change applies;

(b) A detailed description of the unit of property under the taxpayer's present and proposed methods of accounting for determining when the building (including its structural components) is disposed of by the taxpayer for depreciation purposes (when depreciation ends);

(c) A detailed description of how the taxpayer determined the unit of property under its present method of accounting for determining when the building (including its structural components) is disposed of by the taxpayer for depreciation purposes and will determine the unit of property under its proposed method of accounting for determining when the building (including its structural components) is disposed of by the taxpayer for depreciation purposes. If this proposed unit of property is not each building (including its structural components) (except as provided in section 6.24(1)(b)(vii) of this APPENDIX regarding condominium or cooperative units), also provide the legal authority supporting the taxpayer's proposed unit of property for determining when the building (including its structural components) is disposed of by the taxpayer for depreciation purposes; and

(d) A statement as to whether the taxpayer's proposed unit of property for determining when the building (including its structural components) is disposed of by the taxpayer for depreciation purposes is the same as the taxpayer's present unit of property for determining when the building (including its structural components) is placed in service by the taxpayer (when depreciation begins). If not, also provide the unit of property for determining when the building (including its structural components) is placed in service by the taxpayer and explain why the taxpayer is using a different unit of property for determining when the building (including its structural components) is placed in service.

(3) Additional copy of Form 3115 required . A taxpayer changing its method of accounting under section 6.24 of this APPENDIX must, in addition to the timely duplicate filing requirements in section 6.02(3) of Rev. Proc. 2008-52 , send a copy of its completed Form 3115 (including attachments) to the following address on the date the taxpayer files a copy of the Form 3115 with the national office: Internal Revenue Service, 1973 North Rulon White Blvd., Mail Stop 4917, Ogden, UT 84404

(4) No ruling on unit of property . The consent granted under this revenue procedure for this change is not a determination by the Commissioner that the taxpayer is using the appropriate unit of property for determining when the building (including its structural components) is placed in service or disposed of by the taxpayer for depreciation purposes and does not create any presumption that the proposed unit of property is permissible for depreciation purposes. The director will ascertain whether the taxpayer's determination of its unit of property for depreciation purposes is correct.

(5) Concurrent automatic change.

(a) A taxpayer that wants to make both this change and a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable) for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(b) A taxpayer that wants to make both this change and a change under section 6.25 of this APPENDIX for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(6) Designated automatic accounting method change number . The designated automatic accounting method change number for a change in method of accounting under section 6.24 of this APPENDIX is "146." See section 6.02(4) of this revenue procedure.

(7) Contact information . For further information regarding a change under this section, contact Charles Magee at 202-622-4930 (not a toll-free call).

.11 New section 6.25 of the APPENDIX, Dispositions of tangible depreciable assets (other than a building or its structural components) ( section 168 ) . Section 6 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 6.25 to read as follows:

.25 Dispositions of tangible depreciable assets (other than a building or its structural components) ( section 168 ) .

(1) Description of change .

(a) Applicability . This change applies to a taxpayer that wants to change to a unit of property that is permissible under applicable legal authority for determining when the taxpayer has disposed of a section 1245 property or a depreciable land improvement for depreciation purposes. This change also will affect the determination of gain or loss from the disposition of the section 1245 property or the depreciable land improvement.

(b) Inapplicability . This change does not apply to:

(i) a taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 6.25 of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable);

(ii) any property that is not depreciated under § 168 under the taxpayer's present and proposed methods of accounting;

(iii) any building (including its structural components) (but see section 6.24 of this APPENDIX for making this change);

(iv) any leasehold improvement, whether made by the lessor or the lessee (unless each leasehold improvement is the unit of property under the taxpayer's proposed method of accounting under section 6.25 of this APPENDIX);

(v) any property disposed of by the taxpayer in a transaction to which a nonrecognition section of the Code applies (for example, § 1031 , transactions subject to § 168(i)(7) );

(vi) any property subject to a general asset account election under § 168(i)(4) and the regulations thereunder;

(vii) any property subject to a mass asset account election under former § 168(d)(2)(A) ; or

(viii) any property subject to the repair allowance under § 1.167(a)-11(d)(2) (including expenditures incurred after December 31, 1980, for the repair, maintenance, rehabilitation, or improvement of property placed in service before January 1, 1981).

(2) Manner of making change . A taxpayer making this change must attach to its Form 3115 a statement with the following:

(a) A detailed description of the types of property to which this change applies;

(b) A detailed description of the unit of property under the taxpayer's present and proposed methods of accounting for determining when the property is disposed of by the taxpayer for depreciation purposes (when depreciation ends);

(c) A detailed description of how the taxpayer determined the unit of property under its present method of accounting for determining when the property is disposed of by the taxpayer for depreciation purposes and will determine the unit of property under its proposed method of accounting for determining when the property is disposed of by the taxpayer for depreciation purposes. If this proposed unit of property is not determined using only the functional interdependence standard ( see , e.g. , Armstrong World Industries, Inc. v. Commissioner , T.C. Memo. 1991-326, aff'd , 974 F.2d 422 (3 rd Cir. 1992); Hawaiian Independent Refinery, Inc. v. United States , 697 F.2d 1063, 1069 (Fed. Cir. 1983)), also provide the legal authority supporting the taxpayer's proposed unit of property for determining when the property is disposed of by the taxpayer for depreciation purposes; and

(d) A statement as to whether the taxpayer's proposed unit of property for determining when the property is disposed of by the taxpayer for depreciation purposes is the same as the taxpayer's present unit of property for determining when the property is placed in service by the taxpayer (when depreciation begins). If not, also provide the unit of property for determining when the property is placed in service by the taxpayer and explain why the taxpayer is using a different unit of property for determining when the property is placed in service.

(3) Additional copy of Form 3115 required . A taxpayer changing its method of accounting under section 6.25 of this APPENDIX must, in addition to the timely duplicate filing requirements in section 6.02(3) of Rev. Proc. 2008-52 , send a copy of its completed Form 3115 (including attachments) to the following address on the date the taxpayer files a copy of the Form 3115 with the national office: Internal Revenue Service, 1973 North Rulon White Blvd., Mail Stop 4917, Ogden, UT 84404.

(4) No ruling on unit of property . The consent granted under this revenue procedure for this change is not a determination by the Commissioner that the taxpayer is using the appropriate unit of property for determining when the property is placed in service or disposed of by the taxpayer for depreciation purposes and does not create any presumption that the proposed unit of property is permissible for depreciation purposes. The director will ascertain whether the taxpayer's determination of its unit of property for depreciation purposes is correct.

(5) Concurrent automatic change .

(a) A taxpayer that wants to make both this change and a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable) for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(b) A taxpayer that wants to make both this change and a change under section 6.24 of this APPENDIX for the same year of change should file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

(6) Designated automatic accounting method change number . The designated automatic accounting method change number for a change in method of accounting under section 6.25 of this APPENDIX is "147." See section 6.02(4) of this revenue procedure.

(7) Contact information . For further information regarding a change under this section, contact Charles Magee at 202-622-4930 (not a toll-free call).

.12 Changes to section 11.01 of the APPENDIX, Certain uniform capitalization (UNICAP) methods used by resellers and reseller-producers .

(1) Section 11.01(1)(a) of the APPENDIX, Applicability .

(a) Section 11.01(1)(a)(vi) of the APPENDIX . Section 11.01(1)(a)(vi) of the APPENDIX is modified to apply to a reseller-producer and is also clarified to read as follows:

(vi) a reseller or reseller-producer that wants to change to a UNICAP method (or methods) specifically described in the regulations and includes any necessary changes in the identification of costs subject to § 263A that will be accounted for using the new method in any taxable year, other than the first taxable year, that it does not qualify as a small reseller. However, this does not include a change for purposes of recharacterizing "section 471 costs" as "additional § 263A costs" (or vice versa ) under the simplified resale method; or

(b) New section 11.01(1)(a)(vii) of the APPENIDX . Section 11.01(1)(a) of the APPENDIX is modified by adding a new section 11.01(1)(a)(vii) to read as follows:

(vii) a reseller or reseller-producer that wants to change from not capitalizing a cost subject to § 263A to capitalizing that cost, if the reseller or reseller-producer is otherwise already using a UNICAP method (or methods) specifically described in the regulations.

(2) Section 11.01(1)(b)(ii) of the APPENDIX . Section 11.01(1)(b)(ii) of the APPENDIX is clarified to read as follows:

(ii) Historic absorption ratio . This change does not apply to a taxpayer that wants to make an historic absorption ratio election under §§ 1.263A-2(b)(4) or 1.263A-3(d)(4), or to a taxpayer that wants to revoke an election to use the historic absorption ratio with the simplified resale method (see § 1.263A-3(d)(4)(iii)(B)) , including a taxpayer using the simplified resale method with an historic absorption ratio that wants to change to a UNICAP method specifically described in the regulations that does not include the historic absorption ratio. However, this change applies to a small reseller that wants to change from the historic absorption ratio with the simplified resale method to a permissible non-UNICAP inventory capitalization method under section 11.01(1)(a)(i) of this APPENDIX.

(3) Section 11.01(1)(c) of the APPENDIX . Section 11.01(1)(c) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(c) Scope limitation inapplicable . The scope limitation of § 4.02(7) of this revenue procedure does not apply to the changes described in §§ 11.01(1)(a)(i) and (ii) of the APPENDIX of this revenue procedure.

(4) Section 11.01(2) , Definitions . Section 11.01(2)(g) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(g) "A UNICAP method specifically described in the regulations" includes the 90-10 de minimis rule to allocate a mixed service department's costs to resale activities ( § 1.263A-1(g)(4)(ii)) , the 1/3-2/3 rule to allocate labor costs of personnel to purchasing activities ( § 1.263A-3(c)(3)(ii)(A)) , the 90-10 de minimis rule to allocate a dual-function storage facility's costs to property acquired for resale ( § 1.263A-3(c)(5)(iii)(C)) , the specific identification method ( § 1.263A-1(f)(2)) , the burden rate method ( § 1.263A-1(f)(3)) , the standard cost method ( § 1.263A-1(f)(3)) , the direct reallocation method ( § 1.263A-1(g)(4)(iii)(A)) , the step-allocation method ( § 1.263A-1(g)(4)(iii)(B)) , the simplified service cost method ( § 1.263A-1(h)) (with a labor-based allocation ratio), and the simplified resale method without the historic absorption ratio election ( § 1.263A-3(d)) , but does not include any other reasonable allocation method within the meaning of § 1.263A-1(f)(4) .

.13 Changes to section 11.02 of the APPENDIX, Certain uniform capitalization (UNICAP) methods used by producers and reseller-producers .

(1) Section 11.02(1)(a) of the APPENDIX . Section 11.02(1)(a) of the APPENDIX is modified by adding a new second sentence and is also clarified to read as follows:

(a) Applicability . This change applies to a producer (as defined in section 11.01(2)(d) of this APPENDIX) or a reseller-producer (as defined in section 11.01(2)(e) of this APPENDIX) that wants to change to a UNICAP method (or methods) specifically described in the regulations, including any necessary changes in the identification of costs subject to § 263A that will be accounted for using the new method. This change also includes a change from not capitalizing a cost subject to § 263A to capitalizing that cost for a producer or a reseller-producer that is otherwise already using a UNICAP method (or methods) specifically described in the regulations. However, this change does not include a change for purposes of recharacterizing "section 471 costs" as "additional § 263A costs" (or vice versa ) under the simplified production method.

(2) Section 11.02(1)(b) of the APPENDIX . Section 11.02(1)(b) of the APPENDIX is clarified to read as follows:

(b) Inapplicability . This change does not apply to a producer or reseller-producer that wants to revoke an election to use the historic absorption ratio with the simplified production method ( see § 1.263A-2(b)(4)(iii)(B)) , including a taxpayer using the simplified production method with an historic absorption ratio changing to a UNICAP method specifically described in the regulations that does not include the historic absorption ratio. This change also does not apply to a taxpayer that wants to use either the simplified service cost method or the simplified production method for self-constructed assets under §§ 1.263A-1(h)(2)(i)(D) and 1.263A-2(b)(2)(i)(D). Also, this change does not apply to a producer or reseller-producer that wants to change its method of accounting for interest capitalization.

.14 Change to section 14.01 of the APPENDIX, Change in overall method from the cash method to an accrual method .

(1) Change to section 14.01(1)(a) of the APPENDIX . The second paragraph of section 14.01(1)(a) of the APPENDIX is clarified to read as follows:

* * *

If the year of change is the first taxable year the taxpayer is required by § 448 to change from the cash method (the first § 448 year) and the taxpayer qualifies to make this change under the automatic consent procedures of § 1.448-1(g) and (h)(2) as well as this revenue procedure, the taxpayer may make the change under this revenue procedure provided the taxpayer complies with the provisions of § 1.448-1(h)(2) and the requirements of this revenue procedure. For a hospital, defined in § 1.448-1(g)(2)(ii)(B) , that makes the change for the first § 448 year under the provisions of this revenue procedure, see § 1.448-1(g)(2)(ii) for the applicable § 481(a) adjustment period. If a taxpayer does not change from the cash method for the first § 448 year under the provisions of this revenue procedure, the taxpayer must make the change under the provisions of § 1.448-1(g) and (h)(2).

(2) Change to section 14.01(1)(b) of the APPENDIX, Inapplicability . Section 14.01(1)(b) is clarified by inserting a new section 14.01(1)(b)(viii) to read as follows:

(viii) a taxpayer making a change from a hybrid method of accounting to an overall accrual method of accounting. For purposes of section 14.01 of this APPENDIX, a hybrid method of accounting is a combination of the cash and accrual methods under which one or more items of income or expense are reported on the cash method and one or more items of income or expense are reported on an accrual method.

(3) Change to section 14.01(2) of the APPENDIX, Scope limitations inapplicable . Section 14.01(2) of the APPENDIX is modified to read as follows:

(2) Scope limitation inapplicable . If the year of change is the first taxable year the taxpayer is required by § 448 to change from the cash method (first § 448 year), the scope limitation in section 4.02(6) of this revenue procedure does not apply to a change in method of accounting request made under section 14.01 of this APPENDIX. For all other changes in method of accounting requests made under section 14.01 of this APPENDIX, any prior change to the overall cash method under the provisions of Rev. Proc. 2001-10 , 2001-1 C.B. 272, or Rev. Proc. 2002-28 , 2002-1 C.B. 815, is disregarded for purposes of section 4.02(6) of this revenue procedure.

.15 Change to section 14.14 of the APPENDIX, Nonshareholder contributions to capital under § 118 . Section 14.14 of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

.14 Nonshareholder contributions to capital under § 118 .

(1) Description of change .

(a) Water and sewerage disposal utilities .

(i) This change applies to a regulated public utility described in § 118(c) that wants to change its method of accounting for payments received from customers as customer connection fees, which are not contributions to the capital of the regulated public utility within the meaning of § 118(c) , from excluding the payments from gross income as nontaxable contributions to capital under § 118 to including the payments in gross income under § 61 . See Rev. Rul. 2008-30 , 2008-1 C.B. 1156.

(ii) This change applies to a regulated public utility described in § 118(c) that wants to change its method of accounting for payments or property received that are contributions in aid of construction under § 118(c) and § 1.118-2 and that meet the requirements of §§ 118(c)(1)(B) and 118(c)(1)(C) from including the payments or the fair market value of the property in gross income under § 61 to excluding the payments or the fair market value of the property from income as nontaxable contributions to capital under § 118(a) .

(b) Other payments or property received . This change applies to a taxpayer that wants to change its method of accounting for payments or property received (other than the payments received by a public utility described in § 118(c) that are addressed in section 14.14(1)(a)(i) of this APPENDIX) that do not constitute contributions to the capital of the taxpayer within the meaning of § 118 and the regulations thereunder, from excluding the payments or the fair market value of the property from gross income as nontaxable contributions to capital under § 118 to including the payments or the fair market value of the property in gross income under § 61 .

(2) Additional requirement . In addition to the other filing requirements of this revenue procedure, a taxpayer that is making a change described in § 14.14(1)(a)(i) or (1)(b) must complete Schedule E of Form 3115 for the depreciable property to which the change relates.

(3) Designated automatic accounting method change number . The designated automatic accounting method change number for a change under section 14.14 of this APPENDIX is "129." See section 6.02(4) of this revenue procedure.

(4) Contact information . For further information regarding a change under this section, contact David H. McDonnell at 202-622-3040 (not a toll-free call).

.16 New section 14.15 of the APPENDIX, Debt issuance costs . Section 14 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 14.15 to read as follows:

.15 Debt issuance costs .

(1) Description of change . This change applies to a taxpayer that wants to change its method of accounting for capitalized debt issuance costs to comply with § 1.446-5 , which provides rules for allocating the costs over the term of the debt.

(2) Designated automatic accounting method change number . The designated automatic accounting method change number for a change under section 14.15 of this APPENDIX is "148." See section 6.02(4) of this revenue procedure.

(3) Contact information . For further information regarding a change under this section, contact Sonja Kotlica at 202-622-3950 (not a toll-free number).

.17 Change to section 15.07 of the APPENDIX, Advance payments . Sections 15 .07(1) and (3) of the APPENDIX of Rev. Proc. 2008-52 are modified and section 15.07(2) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(1) Description of change . This change applies to a taxpayer using or changing to an overall accrual method of accounting that receives advance payments, as defined in Rev. Proc. 2004-34 , 2004-1 C.B. 991, and wants to use either the full inclusion or deferral method, as described in Rev. Proc. 2004-34 . See also Announcement 2004-48 , 2004-1 C.B. 998. This change includes a change by a taxpayer that changes the way it recognizes advance payments in revenues in its applicable financial statement (AFS) and wants to change its method of accounting to use its new AFS in determining the extent to which advance payments are included in gross income under Rev. Proc. 2004-34 . For example, a taxpayer that changes its AFS from one deferral method to a different deferral method must change its method of accounting under this revenue procedure (if otherwise eligible) to use that different deferral method for tax purposes under Rev. Proc. 2004-34 .

(2) Manner of making change . In lieu of providing the information and documentation required by line 1 of Schedule B of the Dec. 2003 version of Form 3115, a taxpayer changing to the deferral method must: (i) state whether the taxpayer uses an applicable financial statement and, if so, identify the type; (ii) describe the basis used for deferral (that is, the method the taxpayer uses in its applicable financial statement or how the taxpayer determines amounts earned, as applicable); and (iii) if the taxpayer makes an allocation to which section 5.02(4)(c) of Rev. Proc. 2004-34 applies, include a statement that the allocation method is based on payments the taxpayer regularly receives for an item or items it regularly provides separately. See Rev. Proc. 2004-34 and Announcement 2004-48 .

(3) Concurrent automatic change to an overall accrual method . A taxpayer that wants to make both a change to the deferral method under section 15.07 of this APPENDIX and a change to an overall accrual method under section 14.01 of this APPENDIX for the same year of change must file a single Form 3115 for both changes and enter the designated automatic accounting method change numbers for both changes on the appropriate line on that Form 3115.

.18 Change to section 15.10 of the APPENDIX, Retainages . Section 15.10(1)(a) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(a) Applicability . This change applies to an accrual method taxpayer that wants to change its method of accounting for treating retainages to a method consistent with the holding in Rev. Rul. 69-314 , 1969-1 C.B. 139. A taxpayer changing its method of accounting for retainages under section 15.10 of this APPENDIX must treat all retainages (receivables and payables) in the same manner.

.19 Change to section 19.01(1) of the APPENDIX, Self-insured employee medical benefits . Section 19.01(1)(a)(i) of the APPENDIX of Rev. Proc. 2008-52 is amplified and clarified to read as follows:

(i) Applicability . This change applies to an accrual method taxpayer that wants to change its method of accounting for self-insured liabilities (including any amounts not covered by insurance, such as a "deductible" amount under an insurance policy) relating to employee medical expenses (including liabilities resulting from medical services provided to retirees and to employees who have filed claims under a workers' compensation act) that are not paid from a welfare benefit fund within the meaning of § 419(e) to a method as follows:

* * *

.20 Change to section 19.01(2) of the APPENDIX, Bonuses . Section 19.01(2)(a) of the APPENDIX of Rev. Proc. 2008-52 is amplified and clarified to read as follows:

(a) Description of change .

(i) Applicability . This change applies to an accrual method taxpayer that wants to change its method of accounting to treat bonuses as incurred in the taxable year in which all events have occurred that establish the fact of the liability to pay a bonus and the amount of the liability can be determined with reasonable accuracy ( see § 1.446-1(c)(1)(ii)) . Specifically, a taxpayer may change its method of accounting under section 19.01(2) of this APPENDIX to one of the following methods:

(A) If all the events that establish the fact of the liability to pay a bonus have occurred by the end of the taxable year in which the related services are provided, the taxpayer will treat the bonus liability as incurred in that taxable year. See Rev. Rul. 55-446 , 1955-2 C.B. 531, as modified by Rev. Rul. 61-127 , 1961-2 C.B. 36.

(B) If all the events that establish the fact of the liability to pay a bonus occur in the taxable year subsequent to the taxable year in which the related services are provided, the taxpayer will treat the bonus liability as incurred in such subsequent taxable year.

(ii) Inapplicability . This change does not apply:

(A) if the bonus is not received by the employee by the 15 th day of the 3 rd calendar month after the end of the taxable year in which the related services are provided; or

(B) to a taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 19.01(2) of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable).

.21 Change to section 19.01(3) of the APPENDIX, Vacation pay . Section 19.01(3)(a) of the APPENDIX of Rev. Proc. 2008-52 is amplified and clarified to read as follows:

(a) Description of change .

(i) Applicability . This change applies to an accrual method taxpayer that wants to change its method of accounting to treat vacation pay as incurred in the taxable year in which all events have occurred that establish the fact of the liability to pay vacation pay and the amount of the liability can be determined with reasonable accuracy ( see § 1.446-1(c)(1)(ii)) . Specifically, a taxpayer may change its method of accounting under section 19.01(3) of this APPENDIX to one of the following methods:

(A) If all the events that establish the fact of the liability to pay vacation pay have occurred by the end of the taxable year in which the related services are provided, the taxpayer will treat the vacation pay liability as incurred in that taxable year. A taxpayer may change to this method of accounting only if the vacation pay vests in that taxable year.

(B) If all the events that establish the fact of the liability to pay vacation pay occur in the taxable year subsequent to the taxable year in which the related services are provided, the taxpayer will treat the vacation pay liability as incurred in such subsequent taxable year.

(ii) Inapplicability . This change does not apply:

(A) if the vacation pay is not received by the employee by the 15 th day of the 3 rd calendar month after the end of the table year in which the related services are provided.

(B) to a taxpayer that is required under § 263A and the regulations thereunder to capitalize the costs with respect to which the taxpayer wants to change its method of accounting under section 19.01(3) of this APPENDIX if the taxpayer is not capitalizing these costs, unless the taxpayer concurrently changes its method to capitalize these costs in conjunction with a change to a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable).

.22 Changes to section 19.03 of the APPENDIX, Timing of incurring liabilities under a workers' compensation act, tort, breach of contract, or violation of law .

(1) Section 19.03(1)(a) of the APPENDIX . Section 19.03(1)(a) of the APPENDIX of Rev. Proc. 2008-52 is amplified and clarified to read as follows:

(a) Applicability . This change applies to an accrual method taxpayer that wants to change its method of accounting for self-insured liabilities (including any amounts not covered by insurance, such as a "deductible" amount under an insurance policy) arising under any workers' compensation act or out of any tort, breach of contract, or violation of law, to treating the liability for the workers' compensation, tort, breach of contract, or violation of law as being incurred in the taxable year in which all the events have occurred that establish the fact of the liability, the amount of the liability can be determined with reasonable accuracy, and payment is made to the person to which the liability is owed. See § 461 and § 1.461-4(g)(1) and (2). If the taxpayer has self-insured liabilities resulting from medical services provided to employees who have filed claims under a workers compensation act, the taxpayer may change its method of accounting for those liabilities under section 19.01(1) of this APPENDIX.

(2) Section 19.03(3) of the APPENDIX . Section 19.03(3) of the APPENDIX of Rev. Proc. 2008-52 is amplified and clarified to read as follows:

(3) Concurrent automatic changes . A taxpayer that wants to make both this change and change to either a method provided in section 19.01(1) of this APPENDIX for self-insured employee medical expenses or a UNICAP method under section 11.01 or 11.02 of this APPENDIX (as applicable) for the same year of change should file a single Form 3115 and enter the designated automatic accounting method change number for each change on the appropriate line on that Form 3115.

.23 New section 19.08 of the APPENDIX, Ratable accrual of real property taxes . Section 19 of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 19.08 to read as follows:

.08 Ratable accrual of real property taxes .

(1) Description of change . This change applies to an accrual method taxpayer that wants to change its method of accounting for real property taxes to the method described in § 461(c) and § 1.461-1(c)(1) (ratable accrual election). This change applies to real property taxes that relate to a definite period of time. This change does not apply to a taxpayer's first taxable year in which the taxpayer incurs real property taxes, in which case the change is made using the provisions of § 1.461-1(c)(3)(i) .

(2) Manner of making change and designated automatic accounting method change number .

(a) This change is made on a cut-off basis and applies only to real property taxes accrued on or after the beginning of the year of change. Any real property taxes accrued prior to the year of change are accounted for under the taxpayer's former method of accounting. See § 1.461-1(c)(6) , Examples (2) - (5) . See also section 2.06 of this revenue procedure for more information regarding a cut-off basis. Accordingly, a § 481(a) adjustment is neither permitted nor required.

(b) In accordance with § 1.446-1(e)(3)(ii) , the requirement of § 1.446-1(e)(3)(i) to file an application on Form 3115 is waived and a statement in lieu of the Form 3115 is authorized for this change. The taxpayer's request (Form 3115 or statement) to make the change under this section of the APPENDIX must include all of the following:

(i) the designated automatic accounting method change number for this change, which is "149";

(ii) the taxpayer's name and employer identification (or social security number in the case of an individual);

(iii) the year of change (both the beginning and ending dates); and

(iv) the information described in § 1.461-1(c)(3)(ii)(a) through (f).

(c) The consent granted under this revenue procedure satisfies the consent required under § 461(c)(2)(B) and § 1.461-1(c)(3)(ii) .

(3) Contact information . For further information regarding a change under this section, contact Daniel Cassano at 202-622-7900 (not a toll-free call).

.24 Change to section 20 of the APPENDIX, Rent .

(1) Heading of section 20.01 of the APPENDIX . The heading of section 20.01 of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

.01 Change from an improper method of inclusion of rental income or expense to inclusion in accordance with the rent allocation .

(2) Section 20.01(1)(a) of the APPENDIX . Section 20.01(1)(a) of the APPENDIX of Rev. Proc. 2008-52 is modified by deleting section 20.01(1)(a)(ii) , and renumbering section 20.01(1)(a)(iii) as section 20.01(1)(a)(ii) .

(3) Section 20.01(3) of the APPENDIX . Section 20.01(3) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(3) Audit protection limited . Audit protection under section 7 of this revenue procedure does not apply to this change for any § 467 rental agreement determined by the Commissioner to be a disqualified leaseback or long-term agreement described in § 1.467-3(b) .

.25 Change to section 21.01 of the APPENDIX, Cash discounts . Section 21.01(3) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(3) Computation of § 481(a) adjustment for changes to gross invoice method . In the case of a taxpayer changing from the net invoice method to the gross invoice method, a positive adjustment is required to prevent omissions arising from the fact that the net invoice method did not report income upon timely payment for some or all of the goods that remain in inventory, and a negative adjustment is required to prevent duplications arising from the fact that the net invoice method included the invoice price, adjusted for the cash discounts, of some or all goods in cost of goods sold and the discount will be earned by payment in a subsequent taxable year. The net § 481(a) adjustment can be computed by deducting the "Available Discount" at the beginning of the year of change from the "Applicable Discount" at the beginning of the year of change. The Available Discount is equal to the difference between the accounts payable balance under the gross invoice method and the net invoice method. The Applicable Discount is equal to the difference between the beginning inventory value under the gross invoice method and the net invoice method.

Example . Taxpayer's accounts payable balance at the beginning of the year of change was $980 under the net invoice method and $1,000 under the gross invoice method. Taxpayer's inventory value was $2,955 under the net invoice method and $3,000 under the gross invoice method. The Applicable Discount is $45 ($3,000 - $2,955) and the Available Discount is $20 ($1,000 - $980). Thus, Taxpayer's net § 481(a) adjustment is a positive $25 ($45 - $20).

.26 Change to section 21.05 of the APPENDIX, Impermissible methods of identification and valuation . Section 21.05(1) of the APPENDIX of Rev. Proc. 2008-52 is modified to add a new section 21.05(1)(c) to read as follows:

(c) changing from a method that is not in accordance with § 1.471-2(c) for determining the value of "subnormal" goods.

.27 Change to section 21.11 of the APPENDIX, Permissible methods of identification and valuation . Section 21.11(1) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(1) Description of change .

(a) Applicability . This change applies to a taxpayer that wants to change from one permissible method of identifying and valuing inventories to another permissible method of identifying and valuing inventories. For example, a taxpayer using first-in, first out (FIFO) as its inventory-identification method may change its inventory-valuation method from cost to cost or market, whichever is lower (LCM). (Note, however, a real estate developer may not value land at LCM because land is not inventoriable property under § 1.471-1 . Also, a taxpayer who meets the definition of a "dealer in securities" under both § 1.471-5 and § 475 is required to account for securities, as defined in § 475 , under § 475 and may not use the rules described in § 1.471-5 for those securities.) Furthermore, a taxpayer may change to a permissible method of valuing "subnormal" goods under § 1.471-2(c) .

However, this change does not apply to any change described in another section of the APPENDIX of this revenue procedure or in other guidance published in the IRB, or to any changes within the last-in, first-out (LIFO) inventory method. For example, this change does not apply to a taxpayer that wants to change to a rolling-average method ( see section 21.14 of this APPENDIX).

(b) Permissible method defined . For purposes of this change, a permissible method is an inventory method (identification or valuation, or both) specifically permitted by the Code, the regulations, a decision of the United States Supreme Court, a revenue ruling, a revenue procedure, or other guidance published in the IRB for inventories. However, an otherwise permissible inventory method is not permissible under this section of the APPENDIX of this revenue procedure for a specific taxpayer if that taxpayer is prohibited from using that method or if that taxpayer is required to use a different method.

.28 New section 22.01(6) of the APPENDIX, Change from the LIFO inventory method . Sections 22 .01(6) and 22.01(7) of the APPENDIX of Rev. Proc. 2008-52 are renumbered 22.01(7) and 22.01(8), respectively. Section 22.01 of the APPENDIX is clarified by adding a new section 22.01(6) to read as follows:

(6) Pool split and partial termination . If a taxpayer must remove goods from a pool because those goods are not within the scope of that pool ( for example , removing resale goods from a manufacturing pool), and if the taxpayer wants to change from the LIFO inventory method for those removed goods, the taxpayer may split the pool pursuant to section 22.10 of this APPENDIX and then may change from the LIFO method pursuant to section 22.01 of this APPENDIX. See section 22.10(2) of this APPENDIX. The taxpayer must file a separate Form 3115 for each such change.

.29 Changes to section 22.07 of the APPENDIX, Changes within the inventory price index computation (IPIC) method .

(1) Changes to section 22.07(1) .

(a) Change to section 22.07(1)(f) . Section 22.07(1)(f) of the APPENDIX is modified to read as follows:

(f) change the assignment of one or more inventory items to BLS categories under either Table 3 (Consumer Price Index for All Urban Consumers (CPI-U): U.S. City average, detailed expenditure categories) of the monthly CPI Detailed Report or Table 6 (Producer price indexes and percent changes for commodity groupings and individual items, not seasonally adjusted) of the monthly PPI Detailed Report. See § 1.472-8(e)(3)(iii)(C) for principles concerning the assignment of inventory items to BLS categories under the IPIC method. As part of this change, a taxpayer may separate a reassigned item from an inappropriate pool and combine the reassigned item with items in an appropriate pool. See § 1.472-8(g)(2) for principles concerning the manner of combining and separating dollar-value pools;

(b) New section 22.07(1)(h) . Section 22.07(1) of the APPENDIX of Rev. Proc. 2008-52 is modified by adding a new section 22.07(1)(h) at the end of section 22.07(1) to read as follows:

(h) change from using preliminary BLS price indexes to using final BLS price indexes to compute an inventory price index, or vice versa . See § 1.472-8(e)(3)(iii)(D)(2) for principles concerning the selection of BLS price indexes under the IPIC method.

(2) New section 22.07(2) . Sections 22 .07(2), 22.07(3) and 22.07(4) of the APPENDIX of Rev. Proc. 2008-52 are renumbered 22.07(3), 22.07(4) and 22.07(5), respectively. Section 22.07 of the APPENDIX is modified by adding a new section 22.07(2) to read as follows:

(2) Certain scope limitation inapplicable . The scope limitation in section 4.02(7) of this revenue procedure does not apply to the changes described in sections 22 .07(1)(d) and (g) of this APPENDIX.

.30 Changes to section 22.10 of the APPENDIX, Changes to dollar-value pools of manufacturers .

(1) Change to section 22.10(1)(b) . Section 22.10(1)(b) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(b) wants to change from using multiple pools described in § 1.472-8(b)(3) to using natural business unit (NBU) pools described in § 1.472-8(b)(1) , or vice versa ; or

(2) Change to section 22.10(2) . Section 22.10(2) of the APPENDIX of Rev. Proc. 2008-52 is clarified to read as follows:

(2) Manner of making change . This change is made on a cut-off basis and applies only to the computation of ending inventories after the beginning of the year of change. See section 2.06 of this revenue procedure for more information regarding a cut-off basis. Accordingly, a § 481(a) adjustment is neither permitted nor required. A taxpayer that changes its method of pooling pursuant to section 22.10 of this APPENDIX must combine or separate pools as required by § 1.472-8(g) . If a taxpayer splits a pool into two or more permissible pools pursuant to section 22.10 of this APPENDIX, which must be implemented on a cut-off basis, the taxpayer then may file a separate Form 3115 to change from the LIFO inventory method for one or more of the resulting pools pursuant to section 22.01 of this APPENDIX, which must be implemented with a § 481(a) adjustment.

.31 Change to section 28.01 of the APPENDIX, Transactions involving computer programs . Section 28.01 of the APPENDIX of Rev. Proc. 2008-52 is modified to delete the current text as obsolete, and to substitute the following:

.01 Reserved .

.32 Change in contact name information .

(1) Section 11.01 of the APPENDIX, Certain uniform capitalization (UNICAP) methods used by resellers and reseller-producers . Section 11.01(7) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(7) Contact information . For further information regarding a change under this section, contact Kari Fisher or W. Thomas McElroy, Jr. at 202-622-4970 (not a toll-free call).

(2) Section 11.02 of the APPENDIX, Certain uniform capitalization (UNICAP) methods used by producers and reseller-producers . Section 11.02(5) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(5) Contact information . For further information regarding a change under this section, contact Kari Fisher or W. Thomas McElroy, Jr. at 202-622-4970 (not a toll-free call).

(3) Section 11.03 of the APPENDIX, Change to no longer capitalize research and experimental expenditures under § 263A . Section 11.03(5) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(5) Contact information . For further information regarding a change under this section, contact Kari Fisher or W. Thomas McElroy, Jr. at 202-622-4970 (not a toll-free call).

(4) Section 14.01 of the APPENDIX, Change in overall method from the cash method to an accrual method . Section 14.01(8) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(8) Contact information . For further information regarding a change under this section, contact Kari Fisher at 202-622-4970 (not a toll-free call).

(5) Section 14.03 of the APPENDIX, Taxpayers changing to overall cash method . Section 14.03(7) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(7) Contact information . For further information regarding a change under this section, contact W. Thomas McElroy, Jr. at 202-622-4970 (not a toll-free call).

(6) Section14.07 of the APPENDIX, Deduction of incentive payments to health care providers . Section 14.07(4) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(4) Contact information . For further information regarding a change under this section, contact Kay Hossofsky at 202-622-3970 (not a toll-free call).

(7) S ection 14.12 of the APPENDIX, Change to overall cash/hybrid method for certain banks . Section 14.12(7) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(7) Contact information . For further information regarding a change under this section, contact David B. Silber at 202-622-3930 (not a toll-free call).

(8) Section 15.05 of the APPENDIX, Credit card annual fees . Section 15.05(4) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(4) Contact information . For further information regarding a change under this section, contact Jon Silver at 202-622-3930 (not a toll-free call).

(9) Section 15.06 of the APPENDIX, Credit card late fees . Section 15.06(5) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(5) Contact information . For further information regarding a change under this section, contact Jon Silver at 202-622-3930 (not a toll-free call).

(10) Section 15.08 , Credit card cash advance fees . Section 15.08(5) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(5) Contact information . For further information regarding a change under this section, contact Jon Silver at 202-622-3930 (not a toll-free call).

(11) Change to section 24.01 , Changing from the § 585 reserve method to the § 166 specific charge-off method . Section 24.01(6) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(6) Contact information . For further information regarding a change under this section, contact David B. Silber at 202-622-3930 or Laura Fields at 202-622-3050 (not a toll-free call).

(12) Section 25.01 , Safe harbor method of accounting for premium acquisition expenses . Section 25.01(4) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(4) Contact information . For further information regarding a change under this section, contact Kay Hossofsky at 202-622-3970 (not a toll-free call).

(13) Change to section 26.01 of the APPENDIX, Composite method for discounting unpaid losses . Section 26.01(3) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(3) Contact information . For further information regarding a change under this section, contact Kay Hossofsky at 202-622-3970 (not a toll-free call).

(14) Change to section 27.01 of the APPENDIX, REMIC inducement fees . Section 27.01(4) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(4) Contact information . For further information regarding a change under this section, contact John W. Rogers III at 202-622-4695 (not a toll-free call).

(15) Section 29.01 of the APPENDIX, Change in functional currency . Section 29.01(4) . Section 29.01(4) of the APPENDIX of Rev. Proc. 2008-52 is modified to read as follows:

(4) Contact information . For further information regarding a change under this section, contact Sheila Ramaswamy at 202-622-3870 (not a toll-free call).

(16) APPENDIX Contact List . The APPENDIX Contact List is modified for the following sections to read as follows:


Designated
APPENDIX Automatic
Section Accounting Telephone
Number Change Number Contact Name Number Office

3.05 143 Justin G. Meeks 202-622-5020 IT&A

3.06 144 Mon Lam 202-622-4950 IT&A

6.23 145 Ruba Nasrallah 202-622-4930 IT&A

6.24 146 Charles Magee 202-622-4930 IT&A

6.25 147 Charles Magee 202-622-4930 IT&A

11.01 22 Kari Fisher 202-622-4970 IT&A

W. Thomas
McElroy, Jr. 202-622-4970 IT&A

11.02 23 Kari Fisher 202-622-4970 IT&A

W. Thomas
McElroy, Jr. 202-622-4970 IT&A

11.03 24 Kari Fisher 202-622-4970 IT&A

W. Thomas
McElroy, Jr. 202-622-4970 IT&A

14.01 122, 123 Kari Fisher 202-622-4970 IT&A

W. Thomas
14.03 32, 33 McElroy, Jr. 202-622-4970 IT&A

14.07 90 Kay Hossofsky 202-622-3970 FI&P

14.12 127 David B. Silber 202-622-3930 FI&P

David H.
14.14 129 McDonnell 202-622-3040 P&SI

14.15 148 Sonja Kotlica 202-622-3950 FI&P

15.05 80, 81 Jon Silver 202-622-3930 FI&P

15.06 82 Jon Silver 202-622-3930 FI&P

15.08 94 Jon Silver 202-622-3930 FI&P

19.08 149 Daniel Cassano 202-622-7900 IT&A

24.01 66 David B. Silber 202-622-3930 FI&P

Laura Fields 202-622-3050 P&SI

25.01 67 Kay Hossofsky 202-622-3970 FI&P

26.01 68 Kay Hossofsky 202-622-3970 FI&P

John W. Rogers,
27.01 79 III 202-622-4695 FI&P

29.01 70 Sheila Ramaswamy 202-622-3870 INTL



The APPENDIX Contact List is also modified to delete APPENDIX Section Number 28.01.



SECTION 3. CHANGES TO REV. PROC. 97-27

.01 Section 3.07 of Rev. Proc. 97-27 is modified by adding new section 3.07(3) and is clarified by adding a new section 3.07(4) to read as follows:

(3) Taxpayer before Joint Committee on Taxation . If an examination of a taxpayer involves a refund or credit in excess of the statutory sum that is subject to review by the Joint Committee on Taxation pursuant to § 6405 , then, for purposes of this revenue procedure, the taxpayer is under examination while the taxpayer has a refund or credit under review by the Joint Committee on Taxation and continues to be under examination until Joint Committee on Taxation review procedures and any necessary follow-up are complete. See Rev. Proc. 2005-32 , 2005-1 C.B. 1206.

Sections 6 .01(2), (3) and (4) of this revenue procedure (90-day window, 120-day window, consent of the director) do not apply to a taxpayer while the taxpayer has a refund or credit under review by the Joint Committee on Taxation (including any follow-up).

Further, for purposes of section 6.01(5) (issue pending), an issue is pending for a taxable year under examination if the Service has given the taxpayer written notification indicating an adjustment is being made or will be proposed with respect to the taxpayer's method of accounting. The notification by the Service may result from an inquiry by the Joint Committee on Taxation. This notification normally will occur after the Service or the Joint Committee on Taxation has gathered information sufficient to determine that an adjustment is appropriate and justified, although the exact amount of the adjustment may not yet be determined. If a taxpayer files a Form 3115 while the taxpayer is before the Joint Committee on Taxation, the taxpayer must provide a copy of the Form 3115 to the Joint Committee on Taxation at the same time it files the original Form 3115 with the national office. The Joint Committee on Taxation copy of the Form 3115 is to be sent to the following address: 1111 Constitution Avenue, NW, Room 3565, Washington, D.C. 20224.

(4) Taxpayer in Compliance Assurance Process . For purposes of this revenue procedure, a taxpayer participating in the Compliance Assurance Process (CAP) is considered to be under examination as of the date the taxpayer executes the Memorandum of Understanding for the CAP.

.02 Certain Foreign Corporations . With respect to a foreign corporation that is not required to file a federal income tax return, sections 3 .07 (definition of under examination), 3.08 (definition of issue under consideration), 4.02(2) (scope, inapplicability when under examination), 6 (under examination, or before an appeals office a federal court), 7 ( section 481(a) adjustment period), and 8.08 (signature requirements) of Rev. Proc. 97-27 , as amplified and modified by Rev. Proc. 2002-19 , are clarified and modified in the same manner as the comparable provisions of sections 3 .08, 3.09, 4.02(1), 5.06, 6.02(3)(b) (applies to the Form 3115 filed under Rev. Proc. 97-27 ), 6.02(3)(c)(ii), 6.02(5), 6.02(10), 6.02(11), 6.03, 6.04 and 6.05 of Rev. Proc. 2008-52 , as modified by sections, 2.02(2) (relating to certain foreign corporations), 2.03, 2.04 and 2.05(2) of this revenue procedure

.03 Change "district director" to "director."

(1) Section 3 of Rev. Proc. 97-27 is modified by adding a new section 3.10 to read as follows:

.10 Director . The term "director" has the same meaning as this term has in Rev. Proc. 2009-1 , 2009-1 I.R.B. 1 (or any successor).

(2) Rev. Proc. 97-27 is clarified by replacing the term "district director" wherever it appears with the term "director."



SECTION 4. EFFECT ON OTHER DOCUMENTS

.01 Rev. Proc. 2008-52 is amplified, clarified, and modified.

.02 Rev. Proc. 97-27 is clarified and modified.

.03 Rev. Proc. 2005-63 , 2005-2 C.B. 491, is modified to provide that taxpayers within the scope of Rev. Proc. 2008-52 , that desire to make the change in method of accounting described in § 1.461-1(c) must follow the procedures in Rev. Proc. 2008-52 instead of the procedures in the regulations and Rev. Proc. 2005-63 .



SECTION 5. EFFECTIVE DATE

.01 In general .

(a) Rev. Proc. 2008-52 . Except as provided in section 5.02 of this revenue procedure, this revenue procedure is effective for applications filed under Rev. Proc. 2008-52 on or after August 27, 2009, for a year of change ending on or after December 31, 2008.

(b) Rev. Proc. 97-27 . This revenue procedure is effective for Forms 3115 filed under Rev. Proc. 97-27 , as amplified and modified by Rev. Proc. 2002-19 , as amplified and clarified by Rev. Proc. 2002-54 , and as modified by Rev. Proc. 2007-67 , filed on or after August 27, 2009, for a year of change ending on or after August 27, 2009.

.02 Transition rules .

(1) No application filed by August 27, 2009 . For a year of change ending on or after December 31, 2008, and on or before July 31, 2009, a taxpayer may choose not to apply the following sections of this revenue procedure: 2.07; 2.08; 2.09; 2.10; 2.11; 2.12(1)(a); 2.12(1)(b); 2.12(3); 2.12(4); 2.13(1); 2.14(3); 2.16; 2.17 ( section 15.07(1) of the APPENDIX of Rev. Proc. 2008-52 , without regard to section 15.07(3) of the APPENDIX, as modified by this revenue procedure); 2.18; 2.19; 2.20; 2.21; 2.22; 2.23; 2.24; 2.26; 2.29(1)(a); 2.29(1)(b); 2.29(2).

For a taxpayer filing an application under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, and choosing not to apply sections 2 .12(3), 2.17 ( section 15.07(1) of the APPENDIX of Rev. Proc. 2008-52 , without applying section 15.07(3) of the APPENDIX, as modified by this revenue procedure), and 2.18 of this revenue procedure (transition application), the timely duplicate filing requirement of section 6.02(3)(a) of Rev. Proc. 2008-52 is modified to require the copy of the application to be submitted to the national office on or before September 15, 2009. A taxpayer filing such a transition application under this section 5.02(1) must otherwise be eligible to make the change under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, and should write on the top of page 1 of the national office copy of the application "FILED UNDER SECTION 5.02(1) OF REV. PROC. 2009-39."

(2) Form 3115 filed under Rev. Proc. 97-27 . If before August 27, 2009, a taxpayer within the scope of Rev. Proc. 97-27 timely filed a Form 3115 under Rev. Proc. 97-27 for a year of change ending on or after December 31, 2008, requesting consent for a change in method of accounting described in the APPENDIX of Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, and the Form 3115 is pending with the national office on August 27, 2009, the taxpayer may choose to convert the Form 3115 to make the change under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, but without regard to the modifications to the non-APPENDIX sections of Rev. Proc. 2008-52 in sections 2 .02 (adding new sections 3 .08(4) and 3.08(5) of Rev. Proc. 2008-52 ), 2.03 (adding new section 3.09 of Rev. Proc. 2008-52 ), 2.04 (modifying section 4.02(1) of Rev. Proc. 2008-52 ), and 2.05(2) (modifying sections 6 .02(11), 6.03, 6.04 and 6.05 of Rev. Proc. 2008-52 ) of this revenue procedure (these modifications apply to certain foreign corporations and taxpayers before the Joint Committee on Taxation), if the taxpayer is otherwise eligible under the APPENDIX of Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure. The taxpayer must notify the national office of its intent to convert the Form 3115 under this section 5.02(2) prior to the later of October 26, 2009, or the issuance of a letter ruling granting or denying consent for the change filed under Rev. Proc. 97-27 . If the taxpayer timely notifies the national office that it will convert the Form 3115 under this section 5.02(2) , the national office will return the Form 3115 to the taxpayer to make the necessary modifications to comply with the applicable provisions of Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, and will refund the user fee submitted with the Form 3115.

A taxpayer may convert a Form 3115 that is returned to the taxpayer under this section 5.02(2) to an application under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, if the taxpayer resubmits the Form 3115 with the necessary modifications, along with a copy of the national office letter sent with the returned Form 3115, to the national office within 30 calendar days after the date of the Service's letter returning the Form 3115 to the taxpayer. For purposes of the timely duplicate filing requirement in section 6.02(3) of Rev. Proc. 2008-52 , the national office copy of the Form 3115 will be considered filed as of the date the taxpayer originally filed the Form 3115 under Rev. Proc. 97-27 .

A Form 3115 filed under Rev. Proc. 97-27 that is pending with the national office on August 27, 2009, will be disregarded for purposes of the prior 5 year change rules in sections 4 .02(6) and (7) of Rev. Proc. 2008-52 , in the following circumstances:

(a) the taxpayer converts the Form 3115 under this section 5.02(2) ; or

(b) the taxpayer withdraws the Form 3115 and files an application under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure, for the same change in method of accounting for a year of change ending on or before December 31, 2009.

(3) Option to amend an application filed under Rev. Proc. 2008-52 before August 27, 2009 . If before August 27, 2009, a taxpayer properly filed an application under Rev. Proc. 2008-52 for a year of change that is the taxpayer's first taxable year ending on or after December 31, 2008, the taxpayer may choose to file an amended application for that year of change under Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure (amended application) if, within 6 months from the due date of the federal income tax return for the year of change (excluding any extension), the taxpayer (i) files an original or amended return using the new method of accounting pursuant to Rev. Proc. 2008-52 , as amplified, clarified, and modified by this revenue procedure; (ii) attaches the original amended application filed under this revenue procedure to its original or amended return for the year of change; (iii) writes on the top of page 1 of the national office copy of the amended application "FILED UNDER SECTION 5.02(3) OF REV. PROC. 2009-39"; and (iv) sends the national office copy of the amended application to the following address no later than the date the original amended application is filed with the original or amended return: Internal Revenue Service, P.O. Box 14095, Benjamin Franklin Station, Washington, DC 20044, Attention: CC:ITA:B8.

A Form 3115 filed under Rev. Proc 2008-52 prior to August 27, 2009 for a taxable year ending on or after December 31, 2008, that is amended under this section 5.02(3) will be disregarded for purposes of the prior 5 year change rules in sections 4 .02(6) and (7) of Rev. Proc. 2008-52 .



SECTION 6. PAPERWORK REDUCTION ACT

The collection of information contained in this revenue procedure has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control numbers 1545-1551 and 1545-1541. Responses to this collection of information are necessary and will be used to determine whether the taxpayer properly changed to a permitted method of accounting. The estimated annual frequency of responses is on occasion. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.

The collections of information in this revenue procedure are in sections 2 .02, 2.05, 2.08, 2.09, 2.10, 2.11, 2.23, 3.01, and 3.02. The likely respondents are the following: individuals, farms, business or other for-profit institutions, nonprofit institutions, and small businesses or organizations.

Section 2.02 , 2.05, 2.08, 2.09, 2.10, 2.11 and 2.23 will increase the estimated number of responses and burden hours for the control number 1545-1551. The estimated annual burden per respondent/recordkeeper for control number 1545-1551 varies from 1/6 hour to 8 1/2 hours, depending on individual circumstances, with an estimated average of 1 1/4 hours. The estimated number of respondents is 14,065. The estimated total annual reporting and/or recordkeeping burden for control number 1545-1551 is 15,191.85 hours.

Section 2.09 , 3.01 and 3.02 will increase the estimated number of responses and burden hours for the control number 1545-1541. The estimated annual burden for control number 1545-1541 per respondent/recordkeeper varies from 1/6 hour to 5 hours, depending on individual circumstances, with an estimated average of 3 1/4 hours. The estimated number of respondents is 3,075. The estimated total annual reporting and/or recordkeeping burden for control number 1545-1541 is 9,745.5 hours.



DRAFTING INFORMATION

The principal author of this revenue procedure is Karla M. Meola of the Office of Chief Counsel (Income Tax & Accounting). For further information concerning this revenue procedure, please contact Ms. Meola at (202) 622-4930.

Wednesday, August 26, 2009

7206 return preparer fraud - Ratfield appeal fails

[Under section 7206 an individual was properly convicted of aiding and assisting in the preparation of false tax returns, preparing and filing false tax returns, and impeding the IRS in its due administration of the federal tax laws. IRS agents were properly allowed to remain in the courtroom during the trial after the individual invoked the rule of sequestration because they aided the orderly presentation of the case, which they could not have done without hearing the evidence introduced during the course of the trial. Evidence showing that prior to the commencement of the trial, the court held one of the individual's clients in civil contempt for violating an order to provide documents to the IRS, did not unfairly prejudice the individual. The jury indicated that the individual only impeded the IRS by filing tax returns stating zero income and zero taxes due and owing. Finally, governmental witnesses' testimonies concerning the individual's conduct and tax protestor theories were relevant to the jury's determination regarding whether he had acted in good faith. None of the witnesses actually stated that the individual was a tax protestor.

United States of America, Plaintiff-Appellee v. Louis Wayne Ratfield, Defendant-Appellant. 2009-2 USTC ¶50,592

U.S. Court of Appeals, 11th Circuit; 07-13537, August 18, 2009.

..
Before: Edmondson, Black and Siler, Circuit Judges.

Before EDMONDSON, BLACK and SILER, * Circuit Judges.

PER CURIAM: Louis Wayne Ratfield appeals his conviction for preparing and filing false tax returns, specifically, (1) aiding and assisting in the preparation of false federal tax returns for trusts and estates (IRS Form 1041), in violation of 26 U.S.C. § 7206(2) (Counts 1-20); (2) aiding and assisting in the preparation of false individual and joint federal tax returns (IRS Form 1040), in violation of 26 U.S.C. § 7206(2) (Counts 21-42); (3) filing false federal income tax returns in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2 (Counts 43-45); (4) impeding the Internal Revenue Service in violation of 26 U.S.C. § 7212(a) (Count 46); and (5) willfully and knowingly disobeying and resisting the lawful orders issued by a United States District Judge for the Southern District of Florida during proceedings held in United States v. Louis W. Ratfield and LWR Financial Services Trust, Case No. 01-cv-8816, by committing acts that he knew to have been enjoined, or by failing to perform acts that he had been ordered to perform, in violation of 18 U.S.C. § 401(3) (Counts 47-56). 1 A jury returned a verdict convicting Ratfield on all counts of the indictment except for Count 50. 2

We have had oral argument in this case and the parties are intimately familiar with the facts, so we will not extensively review the facts. Ratfield raises three issues on appeal: (1) whether the district court abused its discretion by allowing IRS revenue agent-witnesses to remain in the courtroom during the trial after Ratfield invoked the rule of sequestration; (2) whether the district court abused its discretion by admitting evidence showing that six years before Ratfield's trial commenced, the district court held one of Ratfield's clients in civil contempt for violating an order to provide documents to the IRS; and (3) whether the district court abused its discretion by admitting testimony from IRS agents that Ratfield was a tax protester, that his arguments were frivolous, and that trusts he set up were abusive and a sham. We address these arguments in turn.


I.


Ratfield argues the district court abused its discretion by allowing two IRS agents to remain in the courtroom after Ratfield invoked the sequestration rule, Fed. R. Evid. 615.

Rule 615 provides, in relevant part, "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses." Nevertheless, the rule "does not authorize exclusion of ... an officer or employee of a party which is not a natural person designated as its representative by its attorney, or [] a person whose presence is shown by a party to be essential to the presentation of the party's cause." A decision regarding who will be excused from the rule of sequestration is within the trial judge's discretion and will be reversed only upon a clear showing of abuse of discretion. United States v. Alvarado, 647 F.2d 537, 540 (5th Cir. Unit A June 1981) 3 (finding the trial court did not abuse its discretion in excusing two drug enforcement agent-witnesses from sequestration requirements).

The district court did not abuse its discretion in deciding to allow the two IRS agents to remain in the courtroom during trial. Agent Grimes testified as a fact witness, an expert witness regarding trusts and taxation, and as a summary witness regarding Ratfield's evolving theories of the taxation of common law trusts. Agent Grimes' testimony aided the jury in understanding the significance of Ratfield's statements, the testimony of the other revenue agents, and the testimony of Ratfield's clients. Her testimony also permitted the other revenue agents to testify primarily as fact witness and avoid repetitive testimony regarding tax laws. Agent Grimes summarized Ratfield's evolving theories regarding the taxation of common law trusts, based on the testimony of other witnesses and documents introduced into evidence. 4 She could not have done so had she not heard the evidence introduced during the course of the trial.

Agent Lottman testified about his calculation of Ratfield's taxable income and also as a summary witness regarding the total tax loss to the Government. 5 There was little, if any, overlap in the testimony of Agents Grimes and Lottman because they focused on different aspects of the case. Consequently, we find unpersuasive Ratfield's contention they tailored their testimony to bolster each other or the testimony of the eleven other IRS agents, who testified regarding their audits of Ratfield's clients and their individual dealings with Ratfield.

The jury was able to view and assess the credibility of these witnesses. The district court's decision to allow Agent Grimes and Agent Lottman to remain in the courtroom aided the orderly presentation of the case. There were adequate grounds to permit both IRS agents to remain in the courtroom, so we find no abuse of discretion in excusing them from the sequestration rule.


II.


Ratfield argues the district judge abused his discretion by allowing the jury to hear evidence that he had previously decided the issues against the defendant's position in a prior, related case. According to Ratfield, the introduction of this evidence, which concerned one of the Government's witnesses, was so prejudicial as to make the trial unfair. Additionally, he argues the attempt at a curative instruction was insufficient to cure the prejudice.

District court rulings on the admissibility of evidence are reviewed for a clear abuse of discretion. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). In determining whether the district court erred in failing to exclude relevant evidence under Fed. R. Evid. 403, we give deference to the discretion of the district judge, looking "at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact." United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989).

Ratfield fails to show how he was unfairly prejudiced by Frederick Crawford's testimony, which was only relevant to Count 46, impeding the IRS in violation of 26 U.S.C. § 7212(a). During trial, the Government introduced court documents, which had been signed by Judge Hurley six years earlier, that included (1) an order to Crawford, one of the Government's witnesses in Ratfield's case, to produce documents to the IRS, (2) an order to show cause related to the order to produce documents, and (3) an order incarcerating the witness for failure to comply. Ratfield argues Crawford and the Government purposefully mentioned the judge by name numerous times during the testimony to prejudice Ratfield. After Ratfield objected, Judge Hurley instructed the jury that they should not take it as any indication of what he thinks their verdict should be in the case. The judge then instructed the jury as follows:
Ladies and gentlemen, as you can imagine, there are lots of things that come before The Court. This is the first time I realized that I had any prior involvement dealing with Mr. Crawford and Mr. Crawford's relationship with Mr. Ratfield.

I want to make sure the jury understands that they cannot in any way take that as indicating that I have any view at all in terms of what the verdict should be as to Mr. Ratfield or whether the Government has proof in terms of Mr. Ratfield's situation.

The only thing I was looking at obviously with Mr. Crawford is the statute that requires people to turn over books and records, and if they have the ability to do it and don't do it, the Court has what is called civil contempt power which effectively says to someone, if you don't turn it over, you will be held in jail until you do turn it over. It is a coercion to say to somebody you have the key to the jail cell yourself, you get out by turning over the records if you have them.

I want to be very clear. I want to really emphasize to the jury they should not in any way, number one, consider that I have any view at all on the merits in terms of the charges against Mr. Ratfield. I assure you I do not. Those are matters for you, the jury, to decide. The fact that there is some prior proceeding that was related principally to Mr. Crawford as he indicated to us.

There is no reason to conclude the jury did not follow the district court's instructions and consider Crawford's evidence only with respect to Count 46 and not with regard to the criminal contempt charges. 6 Moreover, the jury indicated on the special verdict form, that the only manner in which Ratfield impeded the IRS was by filing tax returns stating zero income and zero taxes due and owing. Therefore, the district court did not abuse its discretion in admitting the evidence.


IIII.


Ratfield argues he was unfairly prejudiced when numerous IRS agents were permitted to testify that he was a tax protester, that his arguments were frivolous, and the trusts he set up were abusive and a sham. Ratfield also contends the prejudice was compounded when the judge instructed the jury that he was allowing the testimony about Ratfield being a tax protester because the good faith defense is not available to someone making tax protester arguments.

In determining whether the district court erred in failing to exclude relevant evidence under Rule 403, we give deference to the discretion of the district judge, looking at the evidence in a light most favorable to its admission, and will reverse only upon a clear showing of abuse of discretion. Elkins, 885 F.2d at 784; Brannan, 562 F.3d at 1306.

The district court did not abuse its discretion in allowing the IRS agents' testimony. At trial, the ultimate issue the jury decided with respect to the charges relating to the filing of false tax returns (Counts 1-46) was whether Ratfield acted in good faith. Contrary to Ratfield's claims, none of the Government's witnesses testified Ratfield was actually a tax protester. The record shows that Dr. Olson, one of Ratfield's clients, testified that he asked Ratfield if he wanted to go down the path of what looked like being a tax protester. Agent Grimes testified the arguments Ratfield made to the IRS were "protester type arguments."

Likewise, none of the witnesses opined that Ratfield's arguments were frivolous in the sense that he did not have a good faith belief in them. Instead, they testified they treated his arguments as frivolous, which meant they were not required to provide a point-by-point refutation to his theories on income taxation or his challenges to their authority to conduct audits.

Agent Grimes explained that the IRS defined an "abusive trust" as a trust set up to avoid taxes. The other agents accurately applied the terms "sham" and "abusive" in that manner in their testimony. The IRS agents testified that, based upon their training and experience as revenue agents, they recognized the trusts Ratfield had set up for his clients were abusive because the person who controlled the trust was also the beneficiary. Moreover, the evidence was overwhelming that Ratfield set up the trusts so that he and his clients could reduce or eliminate their income tax payments.

The only issue was whether Ratfield acted in good faith. The district court gave a comprehensive instruction on the good faith defense and specifically instructed the jury:
Let me tell you, I've said before that in this tax area, the Government must prove that someone acted willfully.

When the issue of good faith has been raised, that requires the Government to prove that the person did not have a good faith subjective belief that they were following the law or that, to show that they misunderstood the law.

Now, I've explained this before. The reason for this in the one area of the law is that Congress recognizes that the tax laws are complex, so if somebody has a good faith belief that they are not violating the law, even though their position may seem really quite extraordinary, if they hold that in good faith, if they really believe that, that is a complete defense.

Now, I'm allowing this testimony about tax protest in because that good faith defense is not available if what someone is really doing is just acting as a tax protester.

In other words, the theory of the good faith defense is that somebody intends to follow the tax laws, but they just misunderstand them, and they in good faith believe what they are doing is not a violation of the law.

If somebody is really against paying tax at all, and they are just making up language, that good faith doesn't apply.

But I want to be sure that the jury understands these issues are issues for the jury to decide. They are factual issues.

And in allowing the agent to testify about this concept, I am not in any way suggesting that you need to accept these categorizations.

It is for the jury to make those ultimate determinations as to whether the Government has or has not proven that Mr. Ratfield did not have a good faith belief, and again, it will be for the jury to decide whether this tax protester issue is in place in this case or not.

Based on our review of the record, the Government's witnesses did not opine whether Ratfield acted in good faith. The witnesses' testimony concerned Ratfield's conduct, his evolving theories on the IRS's authority to tax and the taxation of trusts and the fact that they advised him his theories lacked any support in the law. This testimony was relevant to the jury's determination whether Ratfield acted in good faith. Ratfield's argument he was unfairly prejudiced by the IRS agents' testimony and the jury instruction on the good faith defense is without merit. We conclude the district court did not abuse its discretion.

AFFIRMED.

* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

1 On March 15, 2007, the district court granted the Government's motion to dismiss Counts 16, 21, 27, 29 and 36 of the indictment with prejudice.

2 The jury failed to indicate a verdict for Count 50 on the verdict form, so it was dismissed with prejudice.

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

4 In tax evasion cases, courts permit IRS agents to testify as summary witnesses. See, e.g., United States v. Stierhoff, 549 F.3d 19, 28 (1st Cir. 2008) ( "We hold, therefore, that in a tax evasion case, a summary witness may be permitted to summarize and analyze the facts of record as long as the witness does not directly address the ultimate question of whether the accused did in fact intend to evade federal income taxes."); United States v. Gold, 743 F.2d 800, 817 (11th Cir. 1984) ( "[T]his court has expressly approved the use of expert legal testimony in a case where an IRS agent merely stated his opinion as an accountant with regard to the tax consequences of a transaction, and did not attempt to assume the role of the court.") (internal quotation omitted).

5 Ratfield also argues the district court erred by allowing Agent Lottman to testify as to the ultimate issue in the case, which Ratfield describes as whether he impeded the IRS from determining the correct tax due. Ratfield complains the admission of Lottman's expert opinions was unduly prejudicial, violating Fed. R. Evid. 403, and Lottman should not have been allowed to tell the jury what verdict to reach. This claim was not raised in the district court, thus it is subject to plain error review. See Fed. R. Crim. P. 52(b); United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998).

The jury was instructed that the ultimate issue in Count 46 was whether Ratfield had specifically intended to impede and obstruct the IRS by, inter alia, having his clients file tax returns and other documents that he knew to be false and frivolous. The district court instructed the jury that in order to find Ratfield guilty of Count 46, it would have to find beyond a reasonable doubt that Ratfield knowingly endeavored to obstruct or impede the IRS and that he did so corruptly. A review of the record shows Agent Lottman did not offer any testimony regarding his opinion about what Ratfield intended, so he did not invade the jury's province as fact-finder.

6 At trial, the evidence was overwhelming that Ratfield violated the preliminary and permanent injunctions.

Evidence. --Fraud and False Statements: Evidence

Defendant's records, voluntarily produced to revenue agents in investigation of his income tax liability, were not suppressible as evidence in proving assistance in the preparation of fraudulent returns for others. There was no evidence that the records were obtained by misrepresentation.

J.P. Dupont, DC, 59-1 USTC ¶9204, 169 FSupp 572.

Motion to suppress evidence of wilfully preparing false returns was denied.

L.H. Kupper, DC, 60-1 USTC ¶9235, 179 FSupp 264.

E.G. Austin, DC, 63-1 USTC ¶9157, 209 FSupp 101.

A motion by defendant to suppress as evidence papers seized by IRS inspectors was granted where the warrant for his arrest on a complaint charging him with making false statements was unlawful, the arrest itself was unlawful, and the search and seizure were unreasonable.

L.M. Bayley, DC, 65-2 USTC ¶9610.

All materials seized by the IRS under a defective search warrant were suppressed and the defendants' convictions (one convicted of willfully subscribing to a false corporate return, the other convicted of aiding in preparation of a false return, and both convicted of conspiracy) were reversed. The warrant used to seize corporate records authorized an unlawful general search of the business premises and thus the warrant was impermissibly general in scope. Total suppression was required since no portion of the warrant was particularized.

J.B. Cardwell, CA-9, 82-2 USTC ¶9470, 680 F2d 75.

A bingo hall operator's conviction for filing a false tax return was reversed because it was based on evidence obtained in violation of his Fourth Amendment rights against unreasonable search and seizure. The evidence was seized pursuant to a search warrant for records pertaining to the taxpayer's illegal gambling activities, but was unrelated to his bingo operation; instead, it revealed his failure to report income during a year that preceded his involvement in any gambling operation. The government's argument that the warrant covered the records at issue because they established the taxpayer's overall financial condition, showed that a charitable organization functioned as his alter ego, and demonstrated that his bingo operation was permeated by fraud was rejected as overbroad. The government also failed to prove that the inevitable discovery doctrine exempted the records from the exclusionary rule since it failed to show that it would have uncovered the records during its civil investigation of the taxpayer.

D. Ford, CA-6, 99-2 USTC ¶50,724, 184 F3d 566.

The IRS was entitled to retain copies of financial documents that it had seized from a chiropractic office pursuant to a valid search warrant, but it could not retain similar documents that had been seized from the taxpayer's residence because the seizure was not authorized by a warrant. A co-tenant's permission was inadequate because the taxpayer retained full authority over the records and did not relinquish any authority or control to him.

J.L. Marvin, CA-8, 85-2 USTC ¶9858.

The testimony of the taxpayer's wife was sufficient to establish probable cause to seize records relating to his car rental business that were used as evidence to convict him of tax evasion and fraud. The wife's statements to IRS agents did not constitute testimony to which the privilege against adverse spousal testimony applied nor did the privilege for confidential marital communication apply because the wife did not inform the IRS of any communicative utterance by the taxpayer.

A.M. Lefkowitz, CA-9, 80-2 USTC ¶9722.

The taxpayer's motion to suppress evidence obtained from him by an IRS agent who failed to state the criminal nature of the investigation was dismissed since the taxpayer was properly given his Miranda warnings and the information was voluntarily given without any fraud or deceit by the agent.

D.C. Potter, DC, 75-1 USTC ¶9328, 385 FSupp 681.

In a prosecution for falsely claiming automobile expense deductions on a taxpayer's returns for 1956-1958, it was error to admit returns for earlier years as evidence of wilfulness where it was not claimed that the prior returns violated the law. The court also erred in precluding the defendant from introducing his copies of the W-2 forms filed with his returns and in not permitting him to prove that statements made by a witness for the prosecution and allegedly in the possession of the government were in existence.

A.J. Accardo, CA-7, 62-1 USTC ¶9170, 298 F2d 133.

Evidence of federal income tax fraud was admissible even though derived from inadmissible evidence of a nontax offense. That evidence had been seized during the course of an illegal search by county officials five months before the alleged fraud was perpetrated. The derivative evidence was cleansed of taint by the lapse of time. Moreover, exclusion of the evidence of tax fraud would not have achieved "substantial deterrence" of unlawful conduct by law enforcement officers since, under the facts, the local authorities could not have foreseen this prosecution at the time of the defendant's arrest.

T.A. Paepke, CA-7, 77-1 USTC ¶9302, 550 F2d 385. After remand, unreported District Court decision was aff'd in unreported CA-7 opinion, 7/12/79.

On the trial of an individual charged with wilfully and knowingly assisting salesmen in preparing false income tax returns by advising them that they did not have to report commissions, the trial court erred in refusing to require the salesmen to deliver to the defendant reports of Internal Revenue Service agents making adjustments to their income.

J.F. Hull, CA-5, 63-2 USTC ¶9821, 324 F2d 817.

Evidence that a certified public accountant who prepared salesmen's returns deducted expenses, which should have been capitalized, was not sufficient to prove willful violation of the law. However, evidence that he advised the salesmen not to report commissions was a violation.

J.F. Hull, CA-5, 66-1 USTC ¶9259, 356 F2d 919.

It was not error to refuse to admit evidence of income tax overpayment. Although this evidence might have aided the defendant's defense that he relied on his accountant in good faith, it could have had no impact on the case as a whole because the evidence suggested that he withheld relevant data from the accountant.

L.E. Johnson, CA-5, 77-2 USTC ¶9622, 558 F2d 744.

Even assuming that certain documentary evidence was exculpatory, its production during (instead of before) the trial did not result in an unfair trial. The jury considered the evidence in arriving at its verdict and there would have been no point in ordering a new trial during which a different jury would have to consider the same evidence.

J. Kaplan, CA-3, 77-1 USTC ¶9441, 554 F2d 577.

Certain invoices and cancelled checks admitted to prove that the defendant had failed to report gross income from his business, which were allegedly obtained through the use of information taken from illegally seized records, should not have been suppressed as "fruit" of the illegal seizure.

A.B. Carsello, CA-7, 78-2 USTC ¶9580, 578 F2d 199. Cert. denied, 11/27/78.

The evidence was sufficient to support the jury's conclusion that the defendant was a party in a scheme to conceal corporate income, which fact was the basis of the criminal actions. The fact that the defendant did not sign or file the corporate returns was not material.

A. Maius, CA-6, 67-2 USTC ¶9521, 378 F2d 716. Cert. denied, 389 US 905.

A 1961 income tax return was admissible as evidence in a trial involving the willful making of fraudulent returns in 1963-1965 as it was intended to show a pattern of overstatement of deductions. It was also proper to admit as evidence a 1965 income item that was reported in the taxpayer's 1964 return, admission being only to show knowledge and willfulness.

C. Bishop, CA-9, 73-2 USTC ¶9674, 485 F2d 248.

The taxpayer's conviction on two counts involving false statements in an offer to compromise his civil tax liability was reversed. The trial court had erroneously received in evidence an exhibit offered by the government wherein the taxpayer admitted a prior felony conviction for tax fraud, which had no connection with the charge that he had made false statements and could only be prejudicial since he had not elected to take the stand.

A.S. Birns, CA-6, 68-1 USTC ¶9365, 395 F2d 943.

The trial court did not err by admitting evidence of other related income tax crimes, since the evidence helped to establish the taxpayer's intent and also the other elements of the crime of willfully aiding and advising in the preparation of false and fraudulent tax returns.

L.V. Amos, CA-8, 74-1 USTC ¶9447, 496 F2d 1269.

A taxpayer's conviction for claiming false estimated tax payments on his return, with the aid of IRS employees, was affirmed. The manner in which the IRS gathered evidence (from the IRS employees and taxpayer's accountant) was not a ground for reversal.

D. Lopez, CA-2, 70-1 USTC ¶9115, 420 F2d 313. Decision remanded on another issue, CA-2, 70-2 USTC ¶9488, 428 F2d 1135.

Taxpayer's conviction for willfully and knowingly aiding and assisting in the fraudulent preparation of tax returns was upheld. Evidence of an IRS agent's return preparation procedures was properly excluded. Also, taxpayer's noncriminal activity was properly excluded as being irrelevant.

W.P. Dobbs, CA-5, 75-1 USTC ¶9210, 506 F2d 445.

The government should have produced, at trial, its audits of the defendant in response to a defense request. The case was remanded for the trial judge to inspect the contents of the audit.

G.F. Brown, CA-5, 78-2 USTC ¶9550, 574 F2d 1274. Cert. denied, 439 US 1118.

The evidence was not sufficient to show that a defendant was involved in a conspiracy to conceal the name of the winner of a twin double at a racetrack and to prepare a false Form 1099. However, the fact that the government did not offer proof of the conspiracy's existence at regular intervals during the period charged did not preclude another defendant's conviction.

T. Cantone, CA-2, 70-1 USTC ¶9394, 426 F2d 902.

Taxpayer's conviction for conspiring to conceal the fact that he was the actual winner of horse races for purposes of reporting his winnings on Form 1099 was upheld.

The appellate court, in affirming taxpayer's conviction for making and subscribing to false income tax returns, held that the District Court did not err by not requiring the government to introduce evidence of all items which the jury might find to be an allowable reduction of his income.

R.H. Lawhon, CA-5, 74-2 USTC ¶9634, 499 F2d 352.

During a criminal prosecution of a return preparer, it was not reversible error to introduce into evidence a chart summarizing the testimony of the preparer's clients. Although the chart contained inadmissible portions, the fact that the jury did not unduly rely upon it was shown by that body's acquittal of the preparer on five of the thirteen items with which the chart dealt.

W.R. Conlin, CA-2, 77-1 USTC ¶9291, 551 F2d 534. Cert. denied, 434 US 831.

Falsified information on taxpayer's return indicating that sums had been deposited with the Federal Reserve bank was material, even though the IRS relies primarily on information supplied it by the bank.

H.M. Romanow, CA-1, 75-1 USTC ¶9153, 509 F2d 26.

The lower court did not err in admitting testimony of the taxpayer's failure to file tax returns for the six years preceding 1968, since such evidence was relevant to the issue of willfulness, which must be proved whether the offense charged is failure to file or false filing.

K.L. Snow, CA-9, 76-1 USTC ¶9227, 529 F2d 224. Cert. denied, 429 US 821.

The taxpayer's conviction for filing false federal tax returns was reversed because the trial judge erred in excluding the taxpayer's testimony concerning allegedly inconsistent statements made by a government witness.

W.E. McLaughlin, CA-9, 82-1 USTC ¶9105, 663 F2d 949.

The Government's failure to disclose certain exculpatory evidence that the accountant's employee was responsible for the preparation of the false returns of two of the prosecution's witnesses until near the close of the presentation of the defense did not warrant an automatic reversal. The suppression of such evidence was not complete, but merely late, and was not prejudicial because the judge offered the defendant a continuance. Moreover, the evidence would not have been helpful because the jury was already aware of this fact from the testimony of these two witnesses at trial.

O.H. Miller, CA-9, 76-1 USTC ¶9228, 529 F2d 1125. Cert. denied, 426 US 924.

The evidence was sufficient to sustain the conviction under the net worth method of calculating income as applied by the Commissioner; the evidence was sufficient to show willfulness on the part of the taxpayer to evade taxes; and the trial court did not commit prejudicial error when it permitted an IRS agent to testify that the taxpayer had been previously investigated for possible tax fraud in connection with his returns for 1958 and 1959 since it was made clear that no criminal liability ever attached.

M. Stone, CA-8, 76-1 USTC ¶9310, 531 F2d 939. Cert. denied, 429 US 824.

The U.S. Supreme Court remanded a case involving the government's failure to produce certain material in its possession when requested to do so by the defendant's attorney. The case was remanded for reconsideration in light of a decision in a nontax case ( Agurs, 427 US 97).

J.M. McCrane, Jr., SCt, 76-2 USTC ¶9517, 427 US 909, vacating and rem'g CA-3, 76-1 USTC ¶9147, 527 F2d 906.

On remand, the Third Circuit again held that the government should have produced the evidence in its possession. The defendant's request for material that could be used to impeach prosecution witnesses, including, but not limited to, any standards used by the government in declining prosecution of similar cases, was sufficiently specific under Agurs.

J.M. McCrane, Jr., CA-3, 77-1 USTC ¶9376, 547 F2d 204.

Motion for a new trial on the grounds of newly discovered evidence was denied. The evidence, had it been disclosed to the defendant promptly, would not have affected the outcome of the case.

J.M. McCrane, Jr., CA-3, 78-2 USTC ¶9600.

The appellate court held that handwriting exemplars, taken from two prosecution witnesses during taxpayer's trial for willfully and knowingly filing a false tax return at the request of the prosecution and outside the presence of the court, the jury, and defense counsel, for examination by the Government's expert, were properly admitted into evidence since neither witness was on trial, and defense counsel had an opportunity to cross-examine each individual concerning the circumstances in which he made the exemplars.

V.M. Pastore, CA-2, 76-2 USTC ¶9513, 537 F2d 675.

It was not error to admit into evidence documents that the defendant had turned over to the government in compliance with a subpoena issued pursuant to a grand jury investigation of other persons. He had waived his privilege against self-incrimination by complying with the subpoena. Nor did admission of the documents violate the secrecy of grand jury proceedings.

J.E. Penrod, CA-4, 79-2 USTC ¶9728, 609 F2d 1092. Cert. denied, 446 US 917, 100 SCt 1850.

Out-of-court declarations made by one defendant in a false statements case were properly introduced against the other defendant. The statements were not hearsay because they were offered to prove their falsity rather than their truth.

R.L. Fox, CA-5, 80-1 USTC ¶9337, 613 F2d 99.

Tape-recorded statements of a partner which were not given "under an oath subject to the penalty of perjury" were hearsay. The prejudice resulting from the use of the hearsay at trial to support the government's conviction of the partnership's accountant was not harmless when balanced against "the marginal evidence developed by the government." The use of the hearsay evidence supporting a partner's conviction on two counts also was not harmless error for the same reason; however, the prejudice resulting from his conviction on a third count was harmless when balanced against overwhelming evidence that he had received unreported partnership payments.

D.E. Day, CA-6, 86-1 USTC ¶9394.

A former IRS agent and his brother were properly convicted of a number of offenses, including filing false returns. Exemplars of the former agent's handwriting were properly authenticated. Statements of one conspirator that implicated the other were properly admitted. Admission of the former agent's returns to show acquisition of wealth was not enough, in and of itself, to mandate reversal.

F. Mangan, CA-2, 78-1 USTC ¶9349, 575 F2d 32.

A false return conviction was affirmed. Willfulness was established by the defendant's use of false names and his surreptitious use of cash. It was not improper to admit testimony of a prosecution witness who had testified differently in the past or to deny a motion for severance. Notebooks seized at the defendant's gas station were properly admitted.

F.W. Holladay, CA-5, 78-1 USTC ¶9218, 566 F2d 1018.

A false return conviction was affirmed. Failure to report substantial amounts of gross livestock receipts on Schedule F, Form 1040, rendered the return materially false. Truthful reporting is required on the schedule even though it was not expressly promulgated by any regulation. Nor did government implications of underpayment of taxes alter the rule that tax liability is immaterial to false returns prosecutions.

M.A. Taylor, CA-5, 78-1 USTC ¶9474, 574 F2d 232. Cert. denied, 99 SCt 251.

A corporate vice president, who reported as "ordinary business losses" on Schedule C his losses in connection with numerous stock option and commodity futures transactions, was properly convicted on two counts of willfully making and subscribing false federal income tax returns. The evidence established the false characterization of his trading activity and business name on Schedule C, which suggested that the vice president knew that accurate descriptions would trigger inspection and ultimate disallowance of the ordinary loss deductions by the IRS. The evidence also established that the vice president's education and professional experience suggested an extraordinary sophistication with respect to tax matters, and he reported trading losses in prior and subsequent years as "capital losses" and caused his father to so report his losses from similar activity.

P.H. Diamond, CA-4, 86-1 USTC ¶9356, 788 F2d 1025.

A labor union official was properly convicted of filing a false return. The evidence given by an accomplice was not inherently implausible. Alleged government misconduct could not vitiate the conviction; it was acceptable to pay informant fees to the accomplice, it was irrelevant that the government submitted evidence to the jury related to items of unreported income in excess of the limitation imposed by the court and the defendant was not harmed by the late disclosure of exculpatory material. The lower court did not err in denying his request for a special verdict. The jury instructions adequately defined a gift and were sufficient even though they did not state that the offense could not have been willful if the defendant believed that the items in question were gifts to him.

D.E. Shelton, CA-9, 79-1 USTC ¶9189, 588 F2d 1248.

A conviction for aiding in the preparation of false returns was remanded so that the trial judge could decide whether a report made by a special agent, which the trial judge had refused to order produced, would show that a substantial number of the returns prepared by the defendant contained no error. This report might have had a bearing on the critical issues of motivation and intent.

D. Sternstein, CA-2, 79-1 USTC ¶9338, 596 F2d 528.

After the remand, the appellate court affirmed the trial judge's finding that the probative value of the report was negligible at best.

D. Sternstein, CA-2, 79-2 USTC ¶9626, 605 F2d 672.

The convictions of a manager of a cooperative and its accountant for conspiracy and for wilfully subscribing false and fraudulent corporate income tax returns were affirmed. Personal income tax returns of the officer were relevant to the conspiracy count and were properly admitted in evidence. Rulings at trial curtailing cross-examination of an IRS agent, refusal to give jury instructions offered by the defendants governing taxation of loans from a corporation to an officer and comments by the trial court on the evidence did not preclude the defendants from presenting their theory of defense to the jury. The trial court did not err in not inspecting a file containing a memorandum prepared by IRS counsel in camera since defense counsel accepted the prosecution's assurance that the file did not contain material subject to discovery.

J.E. White, CA-8, 82-1 USTC ¶9220, 671 F2d 1126.

No basis existed for excluding evidence relating to the proposed and final amendments of Reg. §1.612-3(b)(3) from the trial of a group of individuals on tax fraud charges because prosecution for violation of the regulation was not necessary to establish criminal fraud under the indictment. Evidence concerning the regulation, the defendants' understanding of it, and their alleged actions to circumvent its effects may be relevant in the trial.

R. Osserman, DC, 82-1 USTC ¶9315.

The trial court did not commit reversible error in excluding evidence relating to bias during the cross-examination of a government witness. Although the taxpayer was precluded from asking about a specific incident, he was permitted to cross-examine the witness extensively regarding his possible motives in testifying favorably for the government. Moreover, the jury was in possession of sufficient information to assess the witness's possible bias. In addition, the trial court did not err in refusing to admit into evidence, for impeachment purposes, copies of a civil action brought against the witness. The documents did not contradict the witness's testimony. Furthermore, the trial court did not err in admitting and relying on the government's sentencing memorandum and affidavit.

F.P. Tracey, CA-1, 82-1 USTC ¶9325. Cert. denied, 105 SCt 787.

The taxpayer's conviction for willfully filing false corporate income tax returns was affirmed. The evidence was sufficient to establish that he willfully omitted substantial amounts of income from the returns. A denial of a proposed jury instruction was not error. The taxpayer's conviction for obstruction of justice, based on evidence of intimidation and threats of force against former employees to prevent their communication with IRS investigators, was affirmed.

R.C. Thetford, CA-5, 82-1 USTC ¶9393, 676 F2d 170.

The fact that the taxpayer's name was signed to the tax returns was prima facie evidence in prosecution for income tax violations that he actually signed them.

V. Carrodeguas, CA-11, 85-2 USTC ¶9567.

A taxpayer's conviction for understating his income and the income of his deceased aunt's estate for the purposes of preparing her income tax return was upheld. Documents belonging to the law firm engaged by the taxpayer to prepare the return and testimony of its employees was properly admitted. The information given to the attorneys by the taxpayer was transferred to the firm for the purpose of preparing a tax return and was not protected by the attorney/client privilege.

D.H. Windfelder, CA-7, 86-1 USTC ¶9402.

A tax shelter promoter's conviction on charges of willfully filing and assisting others in filing false returns was upheld where the appellate court rejected allegations of error regarding jury instructions and the admission into evidence of certain statements.

W.J. Kelley, CA-7, 89-1 USTC ¶9132, 864 F2d 569.

Suppression of evidence on collateral estoppel grounds was unwarranted. The lower court barred evidence that the taxpayer owned certain stock accounts or committed tax law violations because he had been acquitted of tax evasion. The appellate court held that the taxpayer did not prove that the jury in the first trial decided the issues in his favor.

I.P. Citron, CA-2, 88-2 USTC ¶9552.

A mayor who failed to report the receipt of income from a constituent was properly convicted of filing false tax returns. The evidence indicated that the mayor knew that the constituent was not making a loan or a campaign contribution. Given the large amount of unreported income in comparison to his reported income, the jury could infer that the mayor intended to violate the tax laws and had not made an honest mistake.

W.R. Tucker, III, CA-9, 98-1 USTC ¶50,147, 133 F3d 1208.

Evidence of a public official's zoning and political activities on behalf of a developer that paid the official for consulting services was properly admitted.

J. Howard, CA-11, 88-2 USTC ¶9522.

A statement by a husband in a previous affidavit that was inconsistent with his testimony supporting false claims at a trial for willfully aiding and assisting in the preparation of false and fraudulent income tax returns was admissible under the hearsay rule only to establish the credibility of the witness and could not be used as substantive evidence. An accountant's testimony of a conversation he had with the defendant in which the defendant offered to backdate documents for another taxpayer was admissible under the recent admission of a party exception to the hearsay rule. Additionally, the offer to commit a similar crime was itself a similar act and was relevant as to the issue of willfulness.

N. Micke, CA-7, 88-2 USTC ¶9553.

Perjury convictions were overturned against married taxpayers who were charged with making false federal income tax returns. The government had failed to prove the materiality of allegedly false testimony given by the wife in the course of a deposition in connection with her sex discrimination suit against a federal agency.

A.B. Adams, CA-6, 89-2 USTC ¶9438, 870 F2d 1140.

Conviction for preparing false tax returns was upheld. Materiality of false information on returns was a matter of law left to the court. Proceeding in the taxpayer's brief absence with part of the trial was proper since the government's case was strong and trial transcripts were made available to the taxpayer. Evidence of convictions for passing bad checks was properly admitted since dishonesty and false statements were elements of the convictions. Finally, the government's harsh closing argument did not constitute plain error due to its strong case.

S.E. Rogers, CA-4, 88-2 USTC ¶9538.

A trial judge properly refused to admit the expert testimony of a CPA in a criminal tax fraud case because the charge was not that the returns were filled out improperly, but that the returns contained misstatements of fact of which the accountant had no knowledge. Further, there was sufficient evidence to support the conviction since it was up to the jury to decide whether to accept the testimony as to the taxpayer's limited ability to read and his capacity to understand the returns.

E.K. Dorotich, CA-9, 90-1 USTC ¶50,202, 900 F2d 192.

A taxpayer's conviction for filing false individual and corporate returns was upheld. The jury had ample evidence to sustain the three counts, which involved gambling debts that were paid as "commissions" from the taxpayer's wholly owned corporation and the unreported constructive dividends that the taxpayer received from his corporation. Statements that the taxpayer made to an IRS agent, which were obtained by the agent in violation of IRS manual guidelines, were not obtained through "fraud, trickery and deceit." Finally, evidence of the taxpayer's alleged dealings with bookmakers was relevant because it showed a continuing course of conduct, was not directed at the taxpayer's character, and was not prejudicial.

E.R. Knight, CA-5, 90-1 USTC ¶50,246, 898 F2d 436.

The due process clause did not require the suppression of currency seized at the Canadian border, even though the taxpayers alleged that they did not know they were required to report the currency upon leaving the United States. Thus, other evidence obtained as a result of the seizure was not suppressed.

B. Romano, DC N.Y., 89-2 USTC ¶9653. Rev'd and rem'd on other issues, CA-2, 91-2 USTC ¶50,471.

See, also, related cases at ¶41,333.210.

Evidence of transfers between corporations wholly owned by the taxpayer demonstrated that the taxpayer engaged in transactions for the purpose of evading income tax and were admissible to show intent to commit the crime of filing a false income tax return.

L.R. Mews, CA-7, 91-1 USTC ¶50,044, 923 F2d 67.

A taxpayer was properly convicted of aiding and assisting in the preparation or presentation of false documents where he willfully caused false statements to be included in Form 1099-B, Proceeds from Broker and Barter Exchange Transactions. A motion for judgment of acquittal on the grounds of insufficient evidence was properly denied. Certain bank transactions, currency reports and tax returns were properly allowed into evidence. Evidence of an acquittal on a criminal charge involving state securities' laws was properly excluded. Finally, the issue of materiality of alleged false statements was properly submitted to the jury because it was submitted at the request of the taxpayer.

R.S. Cutler, CA-10, 92-1 USTC ¶50,062, 948 F2d 691.

An individual's conviction for aiding in the preparation of false income tax returns was affirmed. The district court properly denied his motions for a new trial and reconsideration because his claims that the prosecution used perjured or erroneous testimony were speculative and unsupported by the evidence. Moreover, any use of false testimony by the government was unknowing and the defendant was unable to establish that barring such testimony would probably result in an acquittal on retrial.

T.W. Tierney, CA-8, 91-2 USTC ¶50,509.

The convictions of individual taxpayers for filing false corporate returns, aiding and assisting in the preparation of false corporate returns, and conspiracy were upheld. The trial court did not abuse its discretion by admitting daily sales sheets as properly authenticated business records because the sales sheets were delivered by the defendants' attorney pursuant to a subpoena and were identified by government witnesses.

C.W. Lawrence, Jr., CA-7, 91-2 USTC ¶50,522.

An individual's conviction for filing false tax and information returns was upheld. At trial, the taxpayer failed to properly preserve the issue of whether the evidence was sufficient to support the jury's findings. Even if the issue had been properly preserved, the evidence was sufficient to permit a reasonable trier of fact to convict the taxpayer. After the taxpayer's wages and truck were seized for nonpayment of taxes, he sent letters demanding payments from a former employer, a co-worker and several IRS agents. Additionally, the taxpayer admitted that he intentionally filed false Form 1096 and Form 1099 information returns.

M.G. Kuball, CA-9, 92-2 USTC ¶50,501, 976 F2d 529.

Sufficient evidence supported an individual's conviction for willfully filing false income tax forms. Based on the individual's issuance of Forms 1099 to several IRS employees showing payments that he never made, it was reasonable for a jury to conclude that he voluntarily and intentionally violated the law and, thus, acted willfully. In addition, the false statements were material since they involved income and the computation of tax and the IRS was forced to implement special procedures to intercept the false filings.

K.H. Winchell, CA-10, 97-2 USTC ¶50,890, 129 F3d 1093.

In proving that the taxpayer filed a false return, the IRS was not required to establish that it was a joint return, as described in the indictment. Further, the variance between proof of the taxpayer's unsigned return and indictment allegations of willful tax evasion and filing of a false return was not material. Since the taxpayer was aware of the charges against her and of the particular evidence that supported those charges, she was not prejudiced by use of this evidence.

S.N. Robinson, CA-5, 92-2 USTC ¶50,565, 974 F2d 575.

A doctor was properly convicted of willfully filing or assisting in filing false tax returns because evidence on the improper deduction of depreciation on a car did not constitute a constructive amendment of the indictment or a prejudicial variance. The evidence was properly admitted because it went directly to the issue of whether a physician understated his total income and did not prove facts that were materially different from those alleged in the indictment or modify essential elements of the charged offense.

M.K. Tandon, CA-6, 97-1 USTC ¶50,373, 111 F3d 482.

An architect's conviction for filing a false return was affirmed. Evidence presented in the case, including the books and testimony of the taxpayer's bookkeeper and accountant, was sufficient to satisfy the reasonable doubt standard. Amounts posted in the taxpayer's books and records as professional legal fees were actually used by the taxpayer for an investment in a horse partnership. Although the taxpayer contended that the conviction should have been upheld only if the evidence inexorably supported an inference of guilt, this higher standard of proof is applicable in cases involving embezzlement, not in cases alleging the filing of false returns.

J.G. Crozier, CA-2, 93-1 USTC ¶50,219, 987 F2d 893.

The taxpayer's motion to suppress statements made to IRS agents in the course of their civil and criminal investigations of the taxpayer was denied. The taxpayer's contention that an IRS agent assured his accountant that no criminal charges would be filed was unsupported.

L.A. Robinson, DC Miss., 93-1 USTC ¶50,213, 811 FSupp 1174.

A tax preparer's conviction for aiding and abetting the preparation of false returns was remanded so that the trial judge could redetermine whether prior year tax returns filed by the government's taxpayer witnesses were material to his defense. In denying the preparer's request for production, the trial court improperly imposed a "heavy burden" standard of materiality. First, similar treatment of a similar issue in a prior year, as to which the tax preparer played no role, might suggest that the falsify originated with the taxpayer rather than the preparer. Second, if a taxpayer testifies that he supplied the return preparer with accurate information, prior returns are a potential device for impeachment. Finally, such erroneous nondisclosure as to any taxpayer upon which the conviction was based might have undermined the government's entire case.

C.N. Lloyd, Jr., CA-D.C., 93-1 USTC ¶50,317, 992 F2d 348.

A federal district court had jurisdiction over an individual who was prosecuted for making false statements and attempting to interfere with the administration of the IRS. His claim that, as a natural born citizen of Montana, he was a nonresident alien exempt from the tax laws lacked merit. Further, sufficient evidence supported his conviction. His admission that he filed a false return was not excused by his genuine belief that the tax laws did not apply to him and that filing a false return would prompt an investigation which would thwart an overthrow of the government.

L.T. Hanson, CA-9, 94-1 USTC ¶50,075, 2 F3d 942.

An office manager's conviction for filing a fraudulent return was upheld because sufficient evidence of her consistent pattern of underreporting large amounts of income supported the inference of willful behavior. Additionally, the trial court did not abuse its discretion in allowing an IRS revenue agent to testify as an expert in the calculation of income and taxes.

E.A. Pratt Stokes, CA-5, 93-2 USTC ¶50,545, 998 F2d 279.

A trial court did not commit reversible error by excluding certain testimony proffered by married taxpayers who were ultimately convicted of filing incomplete income tax returns. The trial court erred in treating a third party's testimony on whether the husband possessed the requisite guilty state of mind as inadmissible hearsay because it was offered only to demonstrate its effect on his state of mind, as opposed to proving the truth of the matter asserted. However, such error was harmless because the evidence of guilt with respect to the husband was overwhelming and did not deprive him of the ability to put on a defense. The trial court's error was also harmless with respect to the wife because it did not affect her ability to present a defense.

L.D. Hanson, CA-7, 93-2 USTC ¶50,558.

A construction equipment dealer's conviction for tax fraud was upheld even though the government cross-examined him about his alleged bank fraud. Since the dealer placed his credibility in issue when he chose to testify, the government was entitled to cross-examine the dealer on his alleged bank fraud in an attempt to impeach him through evidence of specific instances of dishonesty that would tend to prove untruthfulness.

M.A. Chevalier, CA-7, 93-2 USTC ¶50,581.

Evidence presented by the government against two real estate construction business owners convicted of filing and subscribing false income tax returns was sufficient to establish guilt beyond a reasonable doubt. Although most of the evidence was circumstantial and subject to differing interpretations, a reasonable jury could have found the individuals guilty.

J.D. Morris, CA-11, 94-1 USTC ¶50,234, 20 F3d 1111.

The trial court did not abuse its discretion when it admitted a transcript of a taped interview between a dentist and his former wife's attorney into evidence at the dentist's trial for willful failure to pay taxes and filing a false income tax return. The taxpayer's statements were not hearsay, the transcript was adequately authenticated through testimony of the transcriber and the attorney, and the best evidence rule was not violated because the original tape had been erased. Finally, the government did not offer false evidence because the dentist's disagreement with an IRS agent's characterization of certain amounts as income did not convert the agent's testimony into a falsehood.

W.L. Workinger, CA-9, 96-2 USTC ¶50,402, 90 F3d 1409.

An attorney was properly convicted of conspiracy for attempting to hide his client's business income from the IRS, and the client was properly convicted of conspiracy and filing false tax returns. A pretrial ruling barring the client from introducing evidence of business deductions unless he established that he knew he was entitled to claim them before the returns were filed was not erroneous since the amount of taxes owed was irrelevant to the tax fraud. Other claimed errors with respect to prosecutor's comments and jury instructions did not warrant reversal of the convictions.

J.C. Minneman, CA-7, 98-1 USTC ¶50,347, 143 F3d 274. Cert. denied, 3/8/99.

Sole stockholders who made personal car payments using unreported business income were properly convicted of willfully filing false income tax returns for three tax years. The district court correctly permitted an IRS agent to give expert opinion testimony that was limited to factual determinations regarding the process by which summaries of invoices, sales tickets, and checks were compiled.

J.P. Proctor, CA-10 (unpublished opinion), 98-2 USTC ¶50,884, aff'g an unreported District Court decision.

The conviction and sentence of a former judge and compulsive gambler for filing false tax returns was upheld. The trial court did not abuse its discretion in excluding expert testimony regarding compulsive gambling, expert testimony on tax and accounting laws or testimony concerning the reasonableness of the taxpayer's belief that he could net out gambling wins and losses.

W.L. Scholl, CA-9, 99-1 USTC ¶50,230, 166 F3d 964.

Search warrants issued in connection with an IRS investigation of an individual who marketed a book promoting the evasion of taxes were sufficiently specific. The warrants limited the search to documentary evidence related to violations of the Code concerning possible conspiracy to evade taxes. The fact that the warrant failed to name the taxpayer or his wife was not fatal to its validity since it only had to identify the place to be searched and the targets of seizure.

D.L. Leveto, DC Pa., 2000-1 USTC ¶50,278. Aff'd on another issue, CA-3, 2001-2 USTC ¶50,536, 258 F3d 156.

Evidence that a taxpayer voluntarily provided to an IRS agent during a civil investigation was properly admitted in the taxpayer's subsequent trial for criminal tax fraud. The taxpayer alleged that the IRS agent in charge of the civil investigation violated the Internal Revenue Manual by continuing the investigation after she had evidence of criminal fraud. Although the agent had information that the taxpayer used her corporation to pay her personal expenses, she did not have evidence indicating that the taxpayer acted with criminal intent.

I.L. McKee, CA-6, 99-2 USTC ¶50,867, 192 F3d 535.

Evidence relating to willfulness that was uncovered pursuant to a search warrant authorizing the seizure of bank records was properly admitted against an accountant who was convicted of filing a false return. Although the warrant may have been insufficiently specific, it was executed by an IRS agent who acted on a good-faith belief that it was valid. Moreover, he was intimately involved in the investigation of the taxpayer prior to the execution of the warrant and in the preparation of an affidavit in support of the warrant, which gave him obvious knowledge of the crimes that were under investigation.

A.L. Guidry, CA-10, 2000-1 USTC ¶50,118, 199 F3d 1150.

Evidence was properly admitted and excluded from a return preparer's trial for filing false returns and assisting in the preparation of false returns. A revenue agent's testimony that the false information she provided was material to the computation of tax liability was admissible because it merely assisted the jury in understanding the facts. Documents that her mother voluntarily surrendered to an IRS agent were also admissible absent a showing that the agent made any misrepresentations to obtain them. Evidence that her husband once forced his former wife to sign a false return was properly excluded. While the husband may have forced her into the return preparation business and appropriated her proceeds, there was no evidence that he forced her to prepare any of the returns at issue.

B.K. Scarberry, CA-10 (unpublished opinion), 2000-1 USTC ¶50,272, 208 F3d 228.

Married taxpayers who filed tax returns on which they claimed that their wages constituted nontaxable compensation were properly convicted of filing false returns. The trial court's admission into evidence of the couple's tax return bearing the stamp "Frivolous Tax Penalty Assessed" was harmless error because it was more probable than not that the evidence did not materially affect the verdict.

B.R. Rosco, CA-9 (unpublished opinion), 2000-1 USTC ¶50,355, 215 F3d 1335. Aff'g an unreported District Court decision.

Evidence indicating that a taxpayer was not a partner in a company supported his conviction for filing a false tax return. The taxpayer argued that he was a partner and any funds he received from the company were nontaxable partnership distributions. However, evidence indicated that the taxpayer was never a partner, and partnership returns that identified the taxpayer as a partner had a tax avoidance motive and lacked economic substance.

L.L. Worman, CA-10 (unpublished opinion), 2000-1 USTC ¶50,359, 210 F3d 391. Aff'g an unreported District Court decision.

The president of a steel cutting company that failed to report advances that it received from a purchaser of scrap metal was properly convicted of signing false corporate returns. Evidence regarding unreported advances received by the corporation during a prior tax year and the evasion of the cash transaction reporting requirement was properly admitted because it was relevant to the issue of willfulness.

L. Ristovski, CA-6 (unpublished opinion), 2000-1 USTC ¶50,409, 211 F3d 1271. Aff'g an unreported District Court decision.

Insufficient evidence existed to support a conviction against a co-conspirator for assisting in the preparation of false returns for a business in connection with a tax evasion scheme. He did not prepare the returns and his mere association with the business was inadequate to establish a violation of Code Sec. 7206.

T.C. Gaskill, CA-9 (unpublished opinion), 2000-2 USTC ¶50,702, 232 F3d 897. Rev'g and rem'g in part an unreported District Court decision.

A motion to suppress documents and statements taxpayers gave to an IRS Agent in the course of a civil investigation that were subsequently used to convict them in criminal fraud proceedings was properly denied. There was no evidence that the agent improperly failed to refer the matter for criminal investigation or otherwise cease the civil investigation once there were firm indications of fraud. Moreover, the agent was not in uniform, and was unarmed and unaccompanied at the time he interviewed the taxpayers. Thus, they were not disadvantaged or under pressure to answer his questions.

K.P. Kontny, CA-7, 2001-1 USTC ¶50,197, 238 F3d 815. Cert. denied, 5/14/2001.

The appellate court rejected taxpayer's argument that the trial court's exclusion of a tax expert's testimony concerning her ignorance of the law constituted an abuse of discretion. The expert was consulted only for trial and had no involvement in the taxpayer's preparation of her return. Thus, he could not have offered testimony as to her confusion or good faith in failing to report rental income.

S.F. Rosales, CA-9 (unpublished opinion), 2001-1 USTC ¶50,397, 7 FedAppx 766, aff'g an unreported District Court decision.

Convictions for conspiracy to defraud the government were upheld against sibling owners and managers of a family construction business who attempted to pay employees significant overtime wages off-payroll without withholding taxes, skimmed cash from their business, and failed to report income. The taxpayers signed paychecks, reviewed them, made changes and advised employees of the benefit of making purported pre-tax mortgage payments.

J.A. Gambone, Sr., CA-3, 2003-1 USTC ¶50,162, 314 F3d 163.

Evidence was sufficient for a jury to find that the signatures on the false returns belonged to the taxpayer and to support his conviction of conspiracy to defraud the government and filing false personal and corporate tax returns.

G. Rhodis, CA-2 (unpublished opinion), 2003-1 USTC ¶50,197, 58 FedAppx 855, aff'g in part and rem'g in part an unreported District Court decision.

A trial court did not abuse its discretion in admitting evidence in a tax fraud proceeding that showed how a taxpayer handled the proceeds from the sale of his home in a manner designed to deceive the IRS. The evidence, which demonstrated an intent to defraud the government, was relevant, did not cause unfair prejudice to the taxpayer, and did not affect his substantial rights.

F.F. Paul, CA-6 (unpublished opinion), 2003-1 USTC ¶50,222, 57 FedAppx 597, aff'g, per curiam, an unreported District Court decision.

An individual's conviction for preparing or assisting in the preparation and presentation of fraudulent tax returns was upheld. The trial court's decisions on the admissibility of evidence, as well as its denial of a motion for a mistrial, were not abuses of discretion, as the court did not act "arbitrarily or irrationally." Furthermore, requests for particular jury instructions were either properly denied, or their denial was not reversible error.

W.A. Montes, CA-4 (unpublished opinion), 2003-1 USTC ¶50,274, 57 FedAppx 569, aff'g, per curiam, an unreported District Court decision.

Evidence presented by the government against an individual was sufficient to sustain a jury's verdict to convict him of conspiracy to defraud the government and two counts of aiding and assisting in the preparation or presentation of false income tax returns. Based on the testimony of the individual and several of his clients, it was reasonable for the jury to find that the tax preparer converted ordinary personal expenditures into tax deductible business expenses.

D.S. Fletcher, CA-8, 2003-1 USTC ¶50,283, 322 F3d 508.

A federal district court properly convicted a tax preparer of procuring the presentation of tax returns containing false statements by fraudulently inflating taxpayers' deductions. The preparer's appeal asserted that there was insufficient evidence to support six of his convictions. However, the weight of the evidence, including the testimony of witnesses for whom he had prepared returns, was sufficient to support a finding of the preparer's guilt.

W.M. Hayes, CA-4, 2003-1 USTC ¶50,312, 322 F3d 792 .

Sufficient evidence existed to find that an individual taxpayer willfully filed false returns for two tax years. During the years in issue, the taxpayer accepted and cashed checks from two corporations owned and controlled by her father, claiming the proceeds as "wages" on her tax returns, even though she had done no work for the two companies. Based on the evidence presented by the government, the jury reasonably could have found that the taxpayer knew of her obligation to accurately report income, she knew that the money she was receiving from the companies was not "wages", and she repeatedly attempted to cover up the truth about her relationship with the businesses.

L.A. Boulerice, CA-1, 2003-1 USTC ¶50,392, 325 F3d 75.

Two individuals' convictions for aiding and abetting in the fraudulent preparation of tax returns were upheld. Evidence of a settlement agreement between the IRS and the individuals, which disallowed 80 percent of the deductions that the IRS claimed to be fraudulent, was properly excluded. The evidence's probative value was substantially outweighed by the danger of confusion its introduction would have caused.

B.F. Manko, CA-2 (unpublished opinion), 2003-1 USTC ¶50,461, 63 FedAppx 570, aff'g an unpublished District Court decision.

Any error was harmless in the face of overwhelming evidence against the taxpayer.

W.N. Jackson, CA-2 (unpublished opinion), 2003-1 USTC ¶50,478, 65 FedAppx 754, aff'g an unreported District Court decision.

Tax shelter promoters willfully aided clients in filing false or fraudulent tax returns in violation of Code Sec. 7206(2). The promoters charged hundreds of clients to set up and manage trusts known as Unincorporated Business Organizations (UBOs), which purportedly avoided taxes on income streamed into them. The government sufficiently proved the three elements of a Code Sec. 7206 violation.

D.L. Smith, CA-9, 2005-2 USTC ¶50,565, 424 F3d 992.

Evidence that a tax return preparer agreed to pay 60 penalties for understating tax liability for multiple tax years was admissible in a criminal trial, in which the tax return preparer was charged with aiding the preparation and presentation of false tax returns. The imposition and payment of the penalties was material to the criminal case, was reasonably proximate to the criminal indictment and the circumstances surrounding the imposition of the penalties was sufficient to prove the prior bad acts. Likewise, evidence of a civil judgment against the tax preparer obtained by clients was admissible because it formed the factual setting of the crime in issue.

R.E. Reiss, DC Minn., 2005-2 USTC ¶50,538.

The Fourth Amendment rights of two brothers were not violated when notebooks containing accounting information were searched; thus, their request to suppress the contents of the notebooks as evidence of tax fraud and evasion was correctly denied. They had no expectation of privacy in the notebooks after the notebooks were given to a police officer for fingerprinting during a burglary investigation. They voluntarily allowed a police officer to take the notebooks in their entirety and hold them for several days and did not place any limitations on access to the notebooks. Further, one of the brothers permitted an officer who had knowledge of an IRS investigation of them to make copies of the notebooks. He did not keep the contents to himself, separate the notebook covers or secure the contents of the notebook so that only the covers could be accessed.

Y.B. Yang, CA-7, 2007-1 USTC ¶50,395, 478 F3d 832.

Evidence of prior bad acts was properly admitted during a tax return preparer's criminal trial on charges of aiding and assisting in the preparation of false federal income tax returns. The evidence possessed significant probative value.

R.E. Reiss, CA-8 (unpublished opinion), 2007-2 USTC ¶50,532, 230 FedAppx 629, aff'g, per curiam, an unreported DC Minn. decision.

Evidence provided by an individual to an IRS agent during a civil audit of his federal income tax returns that subsequently resulted in his indictment for tax evasion was not suppressed. He failed to prove that the IRS agent induced his compliance through false promises that his cooperation would result solely in a civil tax assessment and that the case would conclude after he turned over the requested records. The IRS agent never stated that he would not be prosecuted if he cooperated. Also, the agent never promised that she would not refer his case to the Criminal Investigation Division, but maintained that any decision was dependent upon a review and final determination.

J.F. Greve, CA-7, 2007-2 USTC ¶50,547, 490 F3d 566.

The president of a tax preparation business was properly convicted for aiding and abetting the filing of false tax returns and conspiring to defraud the government. The evidence at trial established that the individual, not his alleged co-conspirator, was exclusively responsible for electronically filing returns for his business and for printing refund checks for his clients. He prepared his clients' fraudulent tax returns by reporting non-existent income from another business entity, thereby increasing their earned income tax credit. Moreover, the individual consciously made attempts to conceal his conduct by making cash payments to his clients.

M. Okonkwo, CA-11 (unpublished opinion), 2007-2 USTC ¶50,624, aff'g, per curiam, an unreported DC Ala. decision.

An individual's conviction for failing to report his income received from gambling winnings and filing false income tax returns was proper. The trial court did not abuse its discretion in allowing the IRS agent to submit rebuttal evidence that detailed transactions which the taxpayer's accountant had not taken into account in determining the taxpayer's net gambling income. Since the accountant's calculations and conclusions were not fairly and adequately presented in the defendant's case-in-chief, the IRS agent's critique of that report was properly offered in rebuttal to disprove the accuracy of the accountant's calculations.

C.J. Bland, CA-6 (unpublished opinion), 2007-2 USTC ¶50,731, aff'g an unreported DC Ky. decision.

The government presented sufficient evidence to support an individual's conviction for filing false returns. The government provided his original tax returns, which stated his income, and the Forms 1040X that he later filed showing his adjusted gross income as zero. He knew his argument that domestic income of American citizens is not taxable under the Internal Revenue Code was invalid and that the amended returns he filed based on that argument were false.

C.T. Clayton, CA-5, 2007-2 USTC ¶50,775, 506 F3d 405, aff'g, per curiam, an unreported DC Texas decision.

An individual's conviction and sentence for aiding and assisting in the filing of a false income tax return was vacated and remanded for a new trial. The district court wrongfully excluded the expert testimony of the individual's psychiatrist, who offered evidence on the effect of the individual's mental disorder on his ability to form the intent to evade the tax laws. The testimony was highly probative because it would have materially assisted the jury in determining whether the individual committed a voluntary, intentional violation of a known legal duty.

L. Cohen, CA-9, 2008-1 USTC ¶50,111, 510 F3d 1114.

A federal district court properly convicted and sentenced an individual for filing false individual income tax returns because he failed to report income diverted from his company to pay off his gambling debts. The district court did not abuse its discretion when it did not admit expert psychiatric evidence and the testimony of a forensic accountant that the individual claimed would have demonstrated that he was a pathological gambler and would have rebutted the government's evidence characterizing his transactions as diversions or misappropriations. The court found that the expert evidence and testimonies were irrelevant and lacked probative value with respect to the question whether the individual possessed the specific intent to willfully file a false tax return. Moreover, the evidence, if admitted, would have confused the jury.

S.K, Hayez, CA-4 (unpublished opinion), 2008-1 USTC ¶50,137, aff'g an unreported DC N.C. decision.

The winner of a reality television show failed to establish that he was improperly convicted and sentenced for filing false tax returns. Neither he nor his witnesses proffered any testimony or produced any evidence that demonstrated his belief that he had no legal duty to pay taxes on his winnings. The trial court also properly restricted the testimony of a witness for the individual regarding the competency of the accountants who had prepared his returns since it was irrelevant to the individual's intent.

R. Hatch, CA-1, 2008-1 USTC ¶50,166, 514 F3d 145.

An individual's conviction and sentence for preparing false and fraudulent tax returns was proper. There was sufficient evidence for the jury to find that the tax returns at issue were materially false. Evidence of flight was properly admitted because of his failure to appear in court for at least one scheduled hearing. Further, the testimony of the individual's attorney on his prior willingness to plead guilty was properly admitted since the individual had explicitly waived his right to the attorney-client privilege on that issue.

P.A. Triumph, CA-2 (unpublished opinion), 2008-1 USTC ¶50,197, aff'g an unreported DC Conn.decision .

An individual's conviction for willfully assisting the filing of a false tax return was proper. A tax return was properly admitted into evidence to establish the existence of an improperly claimed deduction. Moreover, the individual had the opportunity to confront the witness who testified against him and there was sufficient evidence to support the jury's finding that the return was false.

H.S.H. Wong, CA-9 (unpublished opinion), 2008-1 USTC ¶50,205, aff'g an unreported DC Nev. decision.

An individual was properly convicted and sentenced for willfully aiding and assisting in the preparation and presentation of false tax returns. The evidence presented at trial supported her conviction because, even though the IRS was contacted and asked to disregard it, the individual had prepared a false tax return. Moreover, the individual did not dispute her involvement in the preparation of the fraudulent return.

L.A. Borden, CA-11 (unpublished opinion), 2008-1 USTC ¶50,227, aff'g, per curiam, DC Fla., 2007-1 USTC ¶50,490.

An individual was properly convicted and sentenced for making false statements and for willfully attempting to evade taxes. The evidence at trial demonstrated that the individual submitted documents purporting to be tax forms showing zero income despite receiving significant income for the tax years at issue and had signed those forms under penalty of perjury.

B.M. Parker, CA-4 (unpublished opinion), 2008-1 USTC ¶50,276, aff'g, per curiam, an unreported DC Texas decision.

A tax preparer was properly convicted and sentenced for willfully preparing false or fraudulent income tax returns. The evidence at trial clearly established that the individual willfully prepared returns containing materially false statements. Further, the court's instruction to the jury was not in error and did not affect the jury's verdict.

G.D. Goosby, CA-6, 2008-1 USTC ¶50,331.

A district court did not abuse its discretion when it admitted an IRS agent's testimony concerning the deductibility of certain expenses and the inaccuracy of some tax returns. The testimony did not improperly render legal conclusions about the facts of the case. Instead, the testimony expressed an opinion regarding the proper tax consequences of a transaction; thus, it was admissible expert evidence.

R.N. Bedford, CA-10, 2008-2 USTC ¶50,511.

Testimony by a client of a return preparer that the preparer had assisted in the preparation of her returns on which false business mileage deductions appeared was sufficient to establish the elements of the crime of willfully preparing false tax returns. The fact that the false deductions appeared on Schedule C, rather than on Schedule A and Form 2106, which were identified in the indictment, had no effect. The indictment also referred to "accompanying schedules" and that language covered the client's Schedule C. Further, the preparer was not entitled to a new trial on the ground that the IRS expert witness's testimony was false. The testimony was correct and, thus, could not have caused any prejudice.

U. Kamalu, CA-4, 2008-2 USTC ¶50,648.

An individual was properly convicted of filing a false income tax return because the evidence was sufficient to find that the individual willfully filed tax returns that he did not believe were true and correct as to every material matter. Since the individual was a successful small business owner who kept careful records and reviewed his tax returns, the jury could reasonably infer that the individual had knowledge of the documents that he signed in furtherance of his stated intent to reduce tax liability.

S.F. Creasia, CA-9, 2008-2 USTC ¶50,666.

An individual who personally prepared amended income tax returns containing false information for her clients was properly convicted of willfully aiding and assisting in the preparation of false and fraudulent income tax returns. Substantial evidence was presented from which a reasonable-minded jury could have found the defendant guilty beyond a reasonable doubt. The government's evidence established that the individual prepared the amended returns reporting inflated deductions, contributions and credits, thereby wrongly entitling her clients to become eligible for additional refunds. The individual's argument that the erroneous amounts were the result of a computer glitch was rejected. The individual had education, training and experience in the preparation of amended tax returns, knew that the deductions were false and willfully provided the inaccurate numbers.

A. Tinder, DC Iowa, 2008-2 USTC ¶50,684.

An individual's conviction on two counts of filing false income tax returns was vacated as to one count, but affirmed as to another. The indictment was insufficient to support the individual's conviction on one count because it alleged that the individual filed a false amended tax return based on the false statements contained in a schedule attached to his original return. However, the schedule, which formed an integral part of the original return, was not an integral part of the amended return. By signing the jurat on the amended return, the individual swore to the veracity of only the amended return. However, the government's evidence supported the individual's conviction on the other count.

J.D. Adams, CA-5, 2009-1 USTC ¶50,241.

The conviction of a pastor for fraudulent evasion of personal income taxes was proper. The government's evidence at trial established that the individual willfully filed tax returns in which he knowingly and significantly under-reported his income.

G.L. Clarke, CA-11, 2009-1 USTC ¶50,295.

The evidence in an individual's trial for failure to file a tax return established that he voluntarily and intentionally violated his tax reporting obligations. He had been repeatedly informed of his tax obligations and the correct method of reporting his income. The admission of transcripts from a previous criminal trial for failure to file returns was not erroneous. Since his defense was that he was unaware of any obligation to report his earnings as income, the government was entitled to introduce the transcripts, which possessed significant probative value, as evidence that he acted willfully and with knowledge of the tax laws and his reporting obligations. Therefore, he was not entitled to a new trial or a judgment of acquittal.

R. Menner, DC Va., 2009-1 USTC ¶50,305.

A couple was properly convicted and sentenced for aiding and abetting the filing of false tax returns. The couple's motion for acquittal was properly denied because the government's evidence was sufficient to sustain the guilty verdict. The trial court did not direct a guilty verdict and properly instructed the jury as to the couple's good faith defense and their reliance on the advice of an attorney, accountant or other tax expert. Third-party tax losses were properly considered at sentencing because the husband's advice to third parties was relevant conduct forming part of a related common scheme or plan. The trial court also did not impermissibly consider hearsay evidence when attributing the third-party tax losses to the individual because the testimony met the required indicia of reliability.

J. Aldridge, CA-8, 2009-1 USTC ¶50,326.

An investment advisor was properly convicted and sentenced for willful tax evasion, subscribing false tax returns, willfully failing to file timely personal income tax returns and pay taxes, and obstructing and impeding the IRS's investigation into his assets. The evidence established that he had a substantial tax debt, his returns falsely claimed entitlement to deduct net operating loss despite being informed of the disallowance of the loss, and he engaged in affirmative acts of evasion by concealing the existence of two corporate entities that were set up to avoid lawful seizure of his assets and establishing stock accounts for his children, into which he redirected his income subsequent to receiving the deficiency notice.

R. Josephberg, CA-2, 2009-1 USTC ¶50,346.

The conviction of a company's president and sole owner for filing false tax returns was upheld because the government established that the owner willfully and knowingly signed the company's tax returns, which contained deductions for payments made to non-existent subcontractors. The government showed that the owner helped create the subcontractors and their invoices and made out checks to the non-existent subcontractors that were cashed every week by the company's superintendent.

R.J. Presbitero, CA-7, 2009-2 USTC ¶50,458.

An individual was properly convicted and sentenced for aiding and assisting in the filing of false tax returns. Admission of testimonial hearsay evidence, which relied on charts and summarizing data of the national tax return statistics, was not an abuse of discretion. The evidence was relevant because it showed that the average charitable contribution on tax returns prepared by the individual and the percentage of such returns that resulted in refunds were much higher than the national average. Further, the individual's personal tax returns were admissible under the public records exception to the hearsay rule.

A.T. Stefani, CA-9, 2009-2 USTC ¶50,474.

A federal district court properly convicted an individual of filing a false tax return. A rational jury could reasonably conclude that the individual knew how much money his law practice made and that he misreported that figure on his returns willfully and with specific intent to violate the law. The individual kept a running log of the financial status of each case; therefore, he was well aware of his law firm's finances. Considering the significant disparity between the income reported by the individual and the actual income earned through his law practice, the jury was entitled to disbelieve his excuse that he relied on his hired assistant and accountant to file accurate returns and signed the returns without reading them.

S.H. Thomas, CA-5, 2009-2 USTC ¶50,510.

An individual convicted of filing false tax returns in violation of Code Sec. 7206(1) was not entitled to a new trial or judgment of acquittal because the government's evidence was sufficient to sustain a guilty verdict. The evidence established that the individual received funds that she did not report as income on her tax returns and that the individual signed her tax return knowing that it did not accurately reflect her income. Testimony that the individual made false representations regarding investments was properly introduced. The evidence was relevant to show that the individual willfully failed to include reportable income on her tax returns and was not shown to be prejudicial.

M. Mendoza, DC Ill., 2009-2 USTC ¶50,547.

An individual was properly convicted of willfully aiding and assisting the preparation of false and fraudulent tax returns. The government established that he actually prepared the fraudulent returns and was aware of their falsity. Documentary evidence, testimony of experts in fingerprint identification and electronically filed tax returns traceable to him were sufficient proof of the individual's willful participation in the preparation of the fraudulent returns. Evidence relating to the IRS's taxpayer audits and the taxpayers' subsequent amended returns and agreed deficiencies was properly admitted. The evidence was relevant and probative of the material falsity of the returns prepared by him, and its admission was not an abuse of discretion.

W. Clark, Jr., CA-5, 2009-2 USTC ¶50,539.

Labels:

Tuesday, August 25, 2009

not forgiveness of indebtedness

re Stephen M. Zilka, Debtor. Eric Bononi, Trustee of the Bankruptcy Estate of Stephen Zilka, Movant v. Bayer Employees Fed. Credit Union, Respondent.

U.S. Bankruptcy Court, West. Dist. Pa.; 05-25205-MBM, July 16, 2009.


A creditor corporation's filing of Forms 1099-C, Cancellation of Debt, in response to its charging off of the outstanding indebtedness of loans to a debtor, was not the legal equivalent of, or a discharge of, the indebtedness, and did not serve as a discharge from further liability on any of its claims. Issuance of a Form 1099-C is not an admission by a creditor that it has discharged its debt. The sole purpose of issuing and filing a Form 1099-C is to satisfy an IRS information reporting requirement; it does not constitute a contractual agreement not to sue or a contractual renunciation of rights against a debtor. Permitting a corporation that had issued Forms 1099-C, Cancellation of Debt, to a debtor without dischariging the indebtedness to enforce its claims was not inequitable because the corporation did not necessarily take tax deductions with respect to such claims. Furthermore, even if it had benefited from such prior deductions, they would be automatically reversed when the corporation received a recovery from the debtor's bankruptcy estate.




MEMORANDUM OPINION


MCCULLOUGH, United State Bankruptcy Judge: Eric Bononi, the Chapter 7 Trustee for Stephen M. Zilka, the instant debtor (hereafter "the Trustee"), moves to confirm the balances that are due on proofs of claim 1 - 4 that have been filed by Bayer Heritage Federal Credit Union (hereafter "Bayer"). Bayer joins in the foregoing motion of the Trustee (hereafter "the Trustee's Motion to Confirm Balances"), while Mr. Zilka (hereafter "the Debtor") opposes such motion. 1 If the Court grants the Trustee's Motion to Confirm Balances, then Bayer's Claims 1 - 4 shall be allowed as unsecured claims, and shall share in a distribution from the Debtor's bankruptcy estate, in the following amounts: Claim 1 - $4,810.10; Claim 2 - $4,997.19; Claim 3 - $10,178.45; Claim 4 - $9,909.31. For the reasons that are set forth below, and subsequent to a hearing on the matter that was held on March 3, 2009, the Court shall grant the Trustee's Motion to Confirm Balances. Therefore, Bayer's Claims 1 - 4 shall be allowed, and shall share in a distribution from the Debtor's bankruptcy estate, in the amounts set forth above.




STATEMENT OF FACTS


The Debtor commenced the instant bankruptcy case on April 25, 2005. During the course of such bankruptcy case, a personal injury claim of the Debtor was settled for an amount sufficient to pay all unsecured claims of the Debtor's bankruptcy estate. Among such unsecured claims are Bayer's Claims 1 - 4, which claims the Trustee (and Bayer as well) seeks to have allowed, and then paid by the Debtor's bankruptcy estate, in the amounts set forth above. Each of Bayer's four claims was incurred by virtue of money that Bayer lent to the Debtor (or lent to the Debtor's ex-spouse, for which loans the Debtor indisputably was jointly liable thereon).

The Debtor opposes the Trustee's Motion to Confirm Balances, contending that each of such claims of Bayer should be disallowed on the ground that each such claim was fully discharged outside of bankruptcy. The basis for the Debtor's position that each of Bayer's four claims was fully discharged outside of bankruptcy is that, with respect to each of Bayer's four claims, Bayer issued to the Debtor (a) an account statement - apparently nothing more than a typical quarterly account statement - indicating that the outstanding loan balance was $0.00 because such loan had been charged off (hereafter "the Account Statements"), and (b) an Internal Revenue Service (IRS) Form 1099-C, "Cancellation of Debt" (hereafter "Form(s) 1099-C").

The Account Statements are attached as exhibits to several documents that have been filed with the Court by each of the parties. The Account Statements reveal that Bayer charged off (a) the outstanding balances on the loans that constitute Bayer's Claims 1 and 3 on April 29, 2005, or just four days subsequent to when the instant bankruptcy case was commenced, and (b) the outstanding balances on the loans that constitute Bayer's Claims 2 and 4 on October 29, 2004, or almost six months prior to when the instant bankruptcy case was commenced.

The parties agree that Forms 1099-C were issued by Bayer to the Debtor for Bayer's Claims 1 and 3 on April 29, 2005 (i.e., four days subsequent to when the instant bankruptcy case was commenced). Bayer says nothing regarding when the Forms 1099-C were issued regarding its Claims 2 and 4, while the Debtor contends that it received such forms at some point pre-petition.




DISCUSSION


As an initial matter, the Court holds, as a matter of law, that when a lender issues an account statement to its borrower indicating that an outstanding loan balance equals $0.00 because such loan has been charged off, such "is not the legal equivalent of forgiving [- i.e., discharging liability on -] a debt." Discover Bank v. Worsham, 176 P.3d 366, 368 (Okla.Civ.App. 2007) ("notation on Cardholder's August 30, 2002 statement which reads: 'Internal charge off' of $8,823.48 resulting in a zero balance ... [only] reflects Discover's accounting procedure for removing the account from active status"); Unifund CCR Partners v. Urban, 2005 WL 3624541 at 1 (Conn.Super.Ct. 2005) (same); Mitchell Bank v. Schanke, 676 N.W.2d 849, 854 n.7 (Wis. 2004) ("A 'write off' does not mean that the institution has forgiven the debt or that the debt is not still owing"); Central Home Trust Co. of Elizabeth v. Lippincott, 392 So.2d 931, 933 (Fla.Dist.Ct.App. 1980) (same). Applying the foregoing statement of the law to the instant matter, the Court must quickly reject the Debtor's position that (a) Bayer discharged the Debtor from liability on each of Bayer's four claims simply by virtue of Bayer's issuance of the Account Statements, and/or (b) Bayer's issuance of the Account Statements proves the occurrence of such a discharge. Having so ruled, the Debtor is left with but one remaining argument, namely that Bayer's four claims were fully discharged outside of bankruptcy because of, or as evidenced by, Bayer's issuance to the Debtor of the Forms 1099-C.

26 U.S.C. § 6050P(a) provides, in pertinent part, that "[a]ny applicable entity which discharges ... the indebtedness of any person during any calendar year shall make a return ... setting forth ... the name, address, and TIN of each person whose indebtedness was discharged ...[, as well as] the date of the discharge and the amount of the indebtedness discharged." 26 U.S.C. § 6050P(a)(1)-(2) (West 2007). The information return just referred to shall be a Form 1099-C, which return must be filed with the Internal Revenue Service. See 26 C.F.R. § 1.6050P-1(a)(1) (West 2009). Every applicable entity which makes such a return must also "furnish to each person whose name is required to be set forth in such return a written statement showing ... the name and address of the [applicable] entity ..., and ... the information required to be shown on the return with respect to such person." 26 U.S.C. § 6050P(d)(1)-(2) (West 2007). The written statement just referred to can be copy B of the Form 1099-C. See 26 C.F.R. § 1.6050P-1(f)(2) (West 2009). 26 C.F.R. § 1.6050P-1(a)(1) also provides that:


Solely for purposes of the reporting requirements of section 6050P and this section, a discharge of indebtedness is deemed to have occurred ... if and only if there has occurred an identifiable event described in paragraph (b)(2) of this section, whether or not an actual discharge of indebtedness has occurred on or before the date on which the identifiable event has occurred.


26 C.F.R. § 1.6050P-1(a)(1). 26 C.F.R. § 1.6050P-1(b)(2) sets forth eight identifiable events that can trigger the filing and issuance of a Form 1099-C, among which are "(A) [a] discharge of indebtedness under title 11 of the United States Code (bankruptcy)," and "(G) [a] discharge of indebtedness pursuant to a decision by the creditor, or the application of a defined policy of the creditor, to discontinue collection activity and discharge debt." 26 C.F.R. § 1.6050P-1(b)(2)(i) (West 2009).

The Debtor contends that the identifiable event that triggered Bayer's issuance of each of the four Forms 1099-C to him must have been the latter of the two just listed above - i.e., a discharge of indebtedness of each of Bayer's four claims pursuant to a decision by Bayer, or the application of a defined policy of Bayer, to discontinue collection activity and discharge such claims. The Debtor contends as much because he maintains that none of the remaining seven identifiable events listed in 26 C.F.R. § 1.6050P-1(b)(2)(i) could have possibly triggered Bayer's issuance of any of the four Forms 1099-C.

Bayer contends that it issued Forms 1099-C regarding its Claims 1 and 3 in response to the Debtor's commencement of the instant bankruptcy case; Bayer says nothing regarding why it issued similar forms regarding its Claims 2 and 4. The Debtor maintains that Bayer did not issue Forms 1099-C regarding its Claims 1 and 3 in response to the Debtor's commencement of the instant bankruptcy case because (a) such forms were issued on April 29, 2005, which date was just four days after the instant case was commenced, and by which date, according to the Debtor, it was very unlikely that Bayer had even received notice of such commencement, and (b) the commencement of a bankruptcy case does not even constitute one of the eight triggering events listed in 26 C.F.R. § 1.6050P-1(b)(2)(i). The Debtor is correct that a bankruptcy discharge, rather than the mere commencement of a bankruptcy case, constitutes one of the aforementioned triggering events; such observation, of course, does not preclude the possibility, as Bayer, in fact, argues, that it mistakenly issued the Forms 1099-C regarding Claims 1 and 3 in response to the Debtor's commencement of the instant bankruptcy case. In any event, the Court will give the Debtor the benefit of its position that the true reason for Bayer's issuance of the Forms 1099-C regarding Claims 1 and 3 was not in response to the Debtor's commencement of the instant bankruptcy case.

As the Court understands it, the Debtor makes two discrete arguments as to why Bayer's issuance to the Debtor of the four Forms 1099-C operated to fully discharge each of Bayer's four claims to which such Forms 1099-C pertain. First, the Court understands the Debtor to argue that, because the event that triggered the issuance of each of the Forms 1099-C must have been a discharge of indebtedness of each of Bayer's four claims pursuant to a decision by Bayer, or the application of a defined policy of Bayer, to discontinue collection activity and discharge such claims, Bayer's issuance of such Forms 1099-C essentially constitutes an admission by Bayer that it - and thus proves that Bayer - discharged the Debtor from further liability on each of Bayer's four claims. Second, the Court understands the Debtor to argue that Bayer's issuance of the Forms 1099-C itself operated to legally discharge the Debtor from further liability on each of Bayer's four claims. For several reasons set forth below, the Court must reject both of the Debtor's foregoing arguments.

First, "[t]he Internal Revenue Service[, which regulatory agency is the one that promulgated 26 C.F.R. § 1.6050P-1, and whose interpretation of the same is thus entitled to great deference, see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 104 S.Ct. 2778, 2782-2783, 81 L.Ed.2d 694 (U.S. 1984),] does not view a Form 1099-C as an admission by the creditor that it has discharged the debt and can no longer pursue collection [thereon]." I.R.S. Info. Ltr. 2005-0207, 2005 WL 3561135 (Dec. 30, 2005) (nextto-last paragraph, construing 26 C.F.R. § 1.6050P-1(a)); see also I.R.S. Info. Ltr. 2005-0208, 2005 WL 3561136 ( Dec. 30, 2005) (Q & A #5, 26 U.S.C. "Section 6050P and the regulations do not prohibit collection activity after a creditor reports by filing a Form 1099-C"); Sims v. Commissioner, T.C. Summ.Op. 2002-76, 2002 WL 1825373 at 2 (T.C. 2002) (evidence that Form 1099-C was issued does not establish that petitioner's debt was ever discharged); Debt Buyers' Association v. Snow, 481 F.Supp.2d 1, 13-14 (D.D.C. 2006) (the status of a debt described on a Form 1099-C is not falsely represented if, when providing such Form 1099-C to a debtor, a creditor attaches thereto a notice that such creditor plans to continue debt collection activities with respect to such described debt). Therefore, regardless of the reason why Bayer issued the four Forms 1099-C, Bayer's issuance of such forms constitutes neither an admission by Bayer that it, nor consequently demonstrates that Bayer, discharged the Debtor from further liability on any of Bayer's four claims.

Second, that a Form 1099-C does not constitute an admission by the creditor that it has discharged the debt and can no longer pursue collection thereon is consistent with the fact that Forms 1099-C are sometimes filed and issued in error, ultimately prompting the filing and issuance of corrected Forms 1099-C. In the instant matter, Bayer obviously filed and issued the four Forms 1099-C regarding the Debtor in response to its charging off of the outstanding indebtedness of the four loans to the Debtor that constitute Bayer's Claims 1 - 4; such is evidenced by the fact that the date of such charge off, as set forth in the Account Statements, coincides with the date that the Forms 1099-C were issued. Such charge off of indebtedness, however, and as set forth above, neither is the legal equivalent of, nor constitutes, the discharge of such indebtedness; therefore, Bayer filed and issued the four Forms 1099-C regarding the Debtor in error, which error can be corrected by the filing and issuance of corrected Forms 1099-C. That Forms 1099-C can be corrected would be impossible were it the case that the filing and issuance of a Form 1099-C constitutes an admission by the creditor that it has discharged the debt and can no longer pursue collection thereon. Thus, Bayer's issuance of the Forms 1099-C does not serve to demonstrate that Bayer discharged the Debtor from further liability on any of Bayer's four claims.

Third, Bayer's issuance of the Forms 1099-C did not itself operate to legally discharge the Debtor from further liability on each of Bayer's four claims. That is because Forms 1099-C, as a matter of law, do not themselves operate to legally discharge debtors from liability on those claims that are described in such Forms 1099-C. See Owens v. Commissioner, 67 F.App'x 253, 2003 WL 21196200 at 3 (5th Cir. 2003) (issuance and filing of Form 1099-C does not constitute actual cancellation of the loan); Leonard v. Old National Bank Corp., 837 N.E.2d 543, 545-546 (Ind.Ct.App. 2005) (filing a Form 1099-C is merely an informational filing with the I.R.S., done to report an event that has already happened, and thus does not operate to cancel debt itself); Sims, T.C. Summ.Op. 2002-76, 2002 WL 1825373 at 2 (Form 1099-C does not establish that petitioner's debt was ever discharged, which necessarily means that such form did not operate to cancel such debt); Debt Buyers' Association, 481 F.Supp.2d at 13-14 (a creditor can attach to a Form 1099-C a notice that such creditor plans to continue debt collection activities with respect to a debt described in such Form 1099-C, which necessarily means that such form did not operate to cancel such debt).

Fourth, that a Form 1099-C does not itself operate to legally discharge a debtor from liability on the claim(s) that are described in such Form 1099-C is also compelled by an application to such form of 13 Pa.C.S.A. § 3604(a), 2 Pennsylvania's Uniform Commercial Code provision regarding the methods of discharging an instrument such as, for instance, a promissory note (like those given by the Debtor, or for which the Debtor is liable thereon). The Court so holds because (a) the sole purpose behind filing and issuing a Form 1099-C is to satisfy an I.R.S. information reporting requirement regarding an event that has already happened, see Leonard, 837 N.E.2d at 545-546, (b) such sole purpose is a far cry from a purpose of discharging the obligation that is the subject of the Form 1099-C, which purpose/intent must accompany any voluntary act that would operate to discharge such obligation under 13 Pa.C.S.A. § 3604(a)(1), see 2 James J. White & Robert S. Summers, Uniform Commercial Code § 16-13 at 147 (5th ed. 2008) ("Section 3-604 makes it clear that surrender of an instrument[, for instance,] acts as a discharge only if the instrument is surrendered with the intention of discharging it"), and (c) a Form 1099-C, as just set forth, only serves to report (strictly for tax purposes) information regarding an event that has already happened, which reporting of information cannot possibly be stretched or strained to also constitute a present contractual agreement not to sue, or a present contractual renunciation of rights against, a debtor, as is called for under 13 Pa.C.S.A. § 3604(a)(2). 3

Fifth, the Court is aware of several cases that hold that, if a creditor issues a Form 1099-C to a debtor who then relies on the same and pays income tax as a result thereof (income tax on income due to discharge of indebtedness), then such creditor cannot enforce the debt described in such Form 1099-C unless such creditor issues a corrected Form 1099-C reporting that no discharge of debt actually occurred. See In re Crosby, 261 B.R. 470, 474-475 & 477 (Bankr.D.Kan. 2001); Franklin Credit, 812 A.2d at 62-63. These courts seem to justify their decisions on the basis that, because the debtor has been prejudiced by the issuance of the original Form 1099-C, it would be inequitable to permit enforcement of the debt in question until the debtor obtains corresponding income tax relief by way of the receipt of a corrected Form 1099-C. See Crosby, 261 B.R. at 474-475 & 477; Franklin Credit, 812 A.2d at 62-63. In the instant matter, the Court deals with such "tax relief" issue simply enough; the Court will, as part of its accompanying order, and as an exercise of its discretion, direct that Bayer forthwith file with the I.R.S. and issue to the Debtor four corrected Forms 1099-C that pertain to each of its four respective claims that are to be allowed herein. 4 By virtue of Bayer's issuance of corrected Forms 1099-C, the Debtor will have the requisite documentation that he needs to obtain the income tax relief 5 that so concerned the courts in Crosby and Franklin Credit. 6 The Court is aware that the Debtor also advances another argument as to why it would be inequitable to allow Bayer to enforce its four claims, namely that Bayer has already benefitted by the income tax deductions that it would have taken as a result of discharging the debts that constitute its four claims. Such argument is unavailing, however, because (a) Bayer, as set forth above, did not, by charging off the debts that constitute its four claims, discharge (i.e., forgive) such debts, which means that Bayer also did not necessarily take any tax deductions with respect to such claims, and (b) even if, and to the extent that, Bayer has taken such prior income tax deductions, the same would then automatically be reversed if, and when, Bayer receives any recovery from the Debtor's bankruptcy estate regarding its four claims (i.e., Bayer's recovery by way of continued collection efforts) - such would be the case because, upon receipt of such recovery, the same would constitute fully taxable income to Bayer.

Finally, but yet significantly, the Court holds that, even if, for whatever reason, the Debtor were correct that the Account Statements and/or the Forms 1099-C operated to legally discharge the Debtor, or evidenced that the Debtor had been discharged, from liability on the debts described therein (i.e., Bayer's four claims), such would not be helpful with respect to the Debtor's opposition to either the allowance of Bayer's Claims 1 and 3 or the payment of such claims by the Debtor's bankruptcy estate. That is because the dates of the Forms 1099-C regarding, and the dates upon which occurred the chargeoffs of, Bayer's Claims 1 and 3 are April 29, 2005, which date is four days subsequent to when the instant bankruptcy case was commenced. The significance of such chronology, for several reasons, is substantial. First, with respect to the allowance of Bayer's Claims 1 and 3, such claims must be allowed pursuant to 11 U.S.C. § 502(b)(1), as a matter of law, if such claims were enforceable against the Debtor and the Debtor's property pre-petition, that is prior to April 25, 2005, when the instant bankruptcy case was commenced. See In re Strangis, 67 B.R. 243, 246 (Bankr.D.Minn. 1986) ("Proper focus of the language regarding disallowance of a claim [under § 502(b)(1)], is on prepetition enforceability, not post-petition enforceability"). Applying the foregoing statement of the law to Bayer's Claims 1 and 3, such claims must be allowed in full because the Debtor does not contend that they were unenforceable on or prior to April 25, 2005; instead, the Debtor merely contends that they became unenforceable four days later on April 29, 2005. 7 Second, with respect to the payment of Bayer's Claims 1 and 3 by the Debtor's bankruptcy estate, such claims must be paid by such bankruptcy estate, as a matter of law, unless they have been satisfied by someone else. See Id. at 245-246 ("it must be shown that the creditor was made whole by the settl[ement] ... to sustain an objection to payment of the filed claim by the [debtor's bankruptcy] estate, based on satisfaction). The foregoing is true because (a) the Debtor's "bankruptcy estate is an entity wholly separate from the [D]ebtor, and estate property[, as of the bankruptcy petition filing date,] is not the [D]ebtor's property," Id. at 246, (b) Bayer's Claims 1 and 3, which as just set forth are allowed in full, must be allowed as of the Debtor's bankruptcy petition filing date, that is April 25, 2005, see 11 U.S.C. § 502(b) (West 2009) (bankruptcy court shall determine claim "as of the date of the filing of the petition"), (c) Bayer consequently possesses - in addition to its claims against the Debtor personally - claims directly against the Debtor's bankruptcy estate (and against property of such estate) as of April 25, 2005, in the form of Bayer's Claims 1 and 3, and (d) even if the Debtor was discharged from personal liability with respect to Bayer's Claims 1 and 3 on April 29, 2005, such discharge did not also operate to discharge the Debtor's bankruptcy estate from liability on such claims. Applying the foregoing statement of the law to Bayer's Claims 1 and 3, such claims must be paid in full by the Debtor's bankruptcy estate because they have not been satisfied, even in part, by anyone, including the Debtor; because they have not been so satisfied, such claims remain due and owing from the Debtor's bankruptcy estate.




CONCLUSION


For all of the foregoing reasons, the Court shall grant the Trustee's Motion to Confirm Balances. Therefore, Bayer's Claims 1 - 4 shall be allowed, and shall share in a distribution from - that is, they shall be paid by - the Debtor's bankruptcy estate, in the following amounts: Claim 1 - $4,810.10; Claim 2 - $4,997.19; Claim 3 - $10,178.45; Claim 4 - $9,909.31. Additionally, Bayer shall forthwith file with the I.R.S. and issue to the Debtor four corrected Forms 1099-C that pertain to each of its four respective claims that are to be allowed herein.


BY THE COURT



/s/



M. BRUCE McCULLOUGH,



U.S. Bankruptcy Judge





ORDER OF COURT


AND NOW, this 16th day of July, 2009, for the reasons set forth in the accompanying Memorandum Opinion of the same date; and subsequent to notice and a hearing on the matter that was held on March 3, 2009, it is hereby ORDERED, ADJUDGED, AND DECREED that:


(a) the motion of Eric Bononi, the Chapter 7 Trustee for Stephen M. Zilka, the instant debtor (hereafter "the Debtor"), to confirm the balances that are due on proofs of claim 1 - 4 (hereafter "Claims 1 - 4") that have been filed by Bayer Heritage Federal Credit Union (hereafter "Bayer") is GRANTED;



(b) Bayer's Claims 1 - 4 are ALLOWED in the following amounts: Claim 1 - $4,810.10; Claim 2 - $4,997.19; Claim 3 - $10,178.45; Claim 4 - $9,909.31;



(c) Bayer's Claims 1 - 4 are to share in a distribution from - that is, they are to be paid by - the Debtor's bankruptcy estate; and



(d) Bayer shall forthwith file with the I.R.S. and issue to the Debtor four corrected Forms 1099-C that pertain to each of its four respective claims that are allowed herein.


1 The Court notes that the Debtor entitles his response to the Trustee's motion an objection to claim. However, the Debtor had previously objected to Bayer's claims, which objection to claim was dealt with by an Order of Court dated December 9, 2008 (Docket No. 74, entered 12/10/08). Because such court order did not finally dispose of Bayer's Claims 1 - 4, the Trustee's Motion to Confirm Balances can be viewed as essentially nothing more than a continuation of the Debtor's prior objection to claim. However, the Debtor's present response is nothing more than that; it is not a brand new objection to claim. Therefore, the Debtor's response need not be dealt with separately, and there is no need for a separate hearing to be held on the same.

2 13 Pa.C.S.A. § 3604(a) provides as follows:

(a) Methods of discharge. - A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument:

(1) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation or cancellation of the instrument, cancellation or striking out of the party's signature or the addition of words to the instrument indicating discharge; or

(2) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.

13 Pa.C.S.A. § 3604(a) (Purdon's 2009).

3 A Connecticut state court held in Franklin Credit Management Corp. v. Nicholas, 812 A.2d 51 (Conn.App.Ct. 2002), that a Form 1099-C could constitute a signed writing under Connecticut's version of Uniform Commercial Code § 3-604(a)(2). See Id. at 60-62. However, the Franklin Credit court was not faced with the issue of whether, and thus did not rule that, a Form 1099-C can also constitute a present agreement not to sue, or a present renunciation of rights against, a debtor, within the meaning of Uniform Commercial Code § 3-604(a)(2). Nevertheless, out of an abundance of caution, and for the reasons set forth in the text herein immediately preceding the instant footnote, this Court declares that it respectfully disagrees with the Franklin Credit court if, and to the extent that, the Franklin Credit court held that a Form 1099-C can constitute a present agreement not to sue, or a present renunciation of rights against, a debtor, within the meaning of Uniform Commercial Code § 3-604(a)(2).

4 The corrected Forms 1099-C to be filed and issued by Bayer shall report that no discharge of debt occurred with respect to any of Bayer's four claims. Thus, such Forms 1099-C should reveal a discharge of debt relative to each of Bayer's four claims equal to $0.00.

5 The Debtor maintains that he has been prejudiced by Bayer's issuance of the four Forms 1099-C because, as a result of having received such forms, the Debtor alleges that he then paid income tax on the income from corresponding discharge of indebtedness. The Court is uncertain, however, whether the Debtor was so prejudiced - or, for that matter, was prejudiced in any way - because (a) the Court is only aware that the Debtor reported such taxable income, in the tax year 2004, with respect to Bayer's Claim 4 in the amount of $9,909, see Debtor's 2004 Federal Income Tax Return, line 21 (which return is attached to the Debtor's bankruptcy schedules), (b) the entirety of the Debtor's 2004 federal income tax due is listed on the Debtor's Bankruptcy Schedule E as an outstanding debt as of April 25, 2005 (when the instant case was commenced), and (c) the Court is thus unaware that the Debtor has ever actually paid any income tax as a result of his receipt of the Forms 1099-C. In any event, the income tax relief afforded by the issuance of corrected Forms 1099-C will operate to undo any prejudicial income tax consequences that the Debtor might have suffered as a result of his receipt of the Forms 1099-C.

6 If, and to the extent that, this Court's resolution of the "tax relief" issue is irreconcilable with the decisions in Crosby and Franklin Credit, this Court respectfully disagrees with those decisions.

7 Post-petition extinguishment of a debt, for whatever reason, can certainly provide a reason for objection to the payment of such debt by a debtor's bankruptcy estate. See Strangis, 67 B.R. at 246 n.1. "However, denial of payment, based on ... [such extinguishment], of a properly filed claim is different from its disallowance; and, the language of § 502(b)(1) addresses the latter, not the former." Id.


NON: UST02 2009-2USTCP50589 http://tax.cchgroup.com/network&JA=LK&fNoSplash=Y&&LKQ=GUID%3A9bb1d097-4ca0-341e-a9f8-3a3678f7a096&KT=L&fNoLFN=TRUE& UST02 #6012 [CASES ]



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Monday, August 24, 2009

Return Preparer Forum

IRS News Release IR-2009-74 , August 17, 2009.

[ Code Sec. 7701]


Tax return preparers: Standards. --

The IRS will hold its second in a series of public forums to discuss standards for paid tax return preparers on September 2 at the IRS headquarters in Washington, D.C. The forum focuses on government agencies, and will feature a panel that includes representatives from the Treasury Inspector General for Tax Administration (TIGTA) the U.S. Governmental Accountability Office (GAO), and the states of California, Maryland, Oregon and New York. Persons who are interested in attending should confirm attendance by sending an e-mail message to CL.NPL.Communications@irs.gov.




The Internal Revenue Service announced the second in a series of public forums will be held on Wednesday, Sept. 2, in Washington, D.C., and feature a panel of federal and state officials, moderated by IRS Commissioner Doug Shulman.

The panel will include representatives from the Treasury Inspector General for Tax Administration (TIGTA) and the U.S. Governmental Accountability Office (GAO). Representatives from the states of California, Maryland, Oregon and New York will also participate on the panel.

Shulman announced a far-reaching review of paid preparers on June 4 to produce a comprehensive set of recommendations by the end of this year to boost taxpayer compliance and strengthen industry standards.

"This is the next important step in our open dialogue with interested parties in this effort," Shulman said. "I'm very pleased with the quality of the feedback we've received so far. I'm confident these forums will ensure that all ideas are on the table when it's time to form our recommendations."

The forum will convene at 9 a.m. ET in the IRS Headquarters at 1111 Constitution Ave. NW, Washington, DC 20224. Anyone interested in attending should confirm attendance by sending an e-mail message to CL.NPL.Communications@irs.gov.

The first public forum was held on July 30 in Washington, D.C., and featured a panel of consumer groups and another panel of tax professional organizations. A third forum will be held in Chicago on Sept. 30 featuring independent return preparers and software industry representatives.

The IRS issued Notice 2009-60 on July 24 as an added call for public comments to ensure that all interested individuals and entities have the opportunity to contribute ideas.

Written comments must be received by Aug. 31, 2009. They should be submitted to CCPA:LPD:PR ( Notice 2009-60), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, D.C. 20044.

Comments may also be e-mailed to Notice.Comments@irscounsel.treas.gov. Please include "Notice 2009-60" in the subject line of any e-mail messages. More details can be found in the notice.



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COMMENT:

I believe the standards under consideration are those requiring registration, CLE but not anything tecyhnical.

Any strong opinions on that subject can be uploaded here.

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Friday, August 21, 2009

Refund used to address 6672 issue

A good way to get the IRS to address a substantive issue is to file a timely claim for refund - as in the Reppert case.

Joseph D. Reppert, Plaintiff v. Internal Service Revenue, Defendants.

U.S. District Court, Mid. Dist. Fla., Fort Myers Div.; 2:08-cv-230 FtM-29DNF, August 11, 2009.


The government was not entitled to summary judgment with respect to a corporate officer's action for a refund of trust fund recovery penalties assessed against him under Code Sec. 6672 because a genuine issue of material fact existed as to whether the individual was a responsible person for purposes of collecting, accounting for, and paying over trust fund employment taxes and whether he willfully failed to pay the delinquent taxes. There was uncertainty with respect to the individual's actual authority over the corporation's financial matters, despite his designation. Furthermore, evidence existed in support of his contention that he lacked authority to pay the corporation's taxes.







OPINION AND ORDER


STEELE, United States District Judge: This matter comes before the Court on defendant's Dispositive Motion for Summary Judgment (Doc. #59) filed on June 30, 2009. Plaintiff filed a Response in Opposition (Doc. #63) on July 22, 2009. The matter is now ripe for review.

Defendant Internal Revenue Service (defendant or IRS) assessed civil tax penalties against plaintiff Joseph D. Reppert (plaintiff or Reppert) for federal payroll taxes that were withheld from the paychecks of employees of Fort Myers Beach Marina, Inc. but not paid over to the United States as required by law. The IRS asserted that Reppert was a "responsible person," within the meaning of 26 U.S.C. § 6672, who wilfully failed to comply with statutory duties regarding employment taxes. Plaintiff was assessed penalties for the quarters ending December 31, 2002, March 31, 2003, and June 30, 2003. Plaintiff paid the penalties, then filed a claim for refund with the IRS, arguing that he had no authority to decide whether to pay taxes under 26 U.S.C. § 6672, the failure to pay was not willful, that others with company authority had instructed plaintiff not to pay the taxes without prior approval, and that these others had promised that plaintiff would not be held personally liable for the withholding of taxes. The claim for refund was denied by the IRS.

Plaintiff then filed an Original Complaint (Doc. #1) against the Internal Revenue Service 1 seeking a refund for the $2,653.83, $2,743.30, and $2,743.30 in penalties, an injunction, attorney's fees, and costs. The IRS filed an Answer and Counterclaim (Doc. #25), asserting that Reppert was a person required to collect, truthfully account for and/or pay trust fund employment taxes, but who willfully failed to collect, truthfully account for and/or pay for the tax periods ending December 31, 2002, March 31, 2003, and June 30, 2003. (Doc. #59-2, Exh. 1, ¶ 2.) The outstanding balance of the trust fund portion of the unpaid federal employment taxes is $24,196.19, plus interest and statutory additions, as permitted by law and after application of credits. ( Id. at ¶¶ 8, 10.) The IRS now seeks summary judgment on both plaintiff's Complaint and its Counterclaim. Plaintiff asserts that he is not a responsible person as it relates to the taxes and that he did not act willfully in failing to pay the taxes due.




I.


Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004).

To avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). If there is a conflict in the evidence, the non-moving party's evidence is to be believed and all reasonable inferences must be drawn in favor of the non-moving party. Shotz v. City of Plantation, Fl., 344 F.3d 1161, 1164 (11th Cir. 2003).




II.


When taxes are due, the amount collected or withheld for payment is to be held in trust for the United States. 26 U.S.C. § 7501(a). Under Title 26, United States Code, Section 6672(a),


Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over... .


Liability is imposed only on a (1) "responsible person" who (2) willfully fails to perform a duty to collect, account, or 2 pay over taxes. Thosteson v. United States, 331 F.3d 1294, 1298-99 (11th Cir. 2003), cert. denied, 540 U.S. 1105 (2004); Thibodeau v. United States, 828 F.2d 1499, 1503 (11th Cir. 1987); Mazo v. United States, 591 F.2d 1151, 1153 (5th Cir. 1979). 3 Plaintiff argues that he meets neither requirement, while the IRS argues that he satisfies both.

A "person" within the meaning of the statute "includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." 26 U.S.C. § 6671(b). "Responsibility is a matter of status, duty, and authority, not knowledge." Thibodeau, 828 F.2d at 1503 (quoting Mazo, 591 F.2d at 1156). "Indicia of responsibility includes the holding of corporate office, control over financial affairs, the authority to disburse corporate funds, stock ownership, and the ability to hire and fire employees. It is undisputed that more than one person may be a responsible officer of the corporation under § 6672." Thibodeau, 828 F.2d at 1503 (citing Roth v. United States, 779 F.2d 1567, 1571 (11th Cir. 1986)). Because the funds are trust funds of the United States, a "responsible person" can be found liable for failure to pay withheld funds despite receiving instruction not to pay by a CEO or owner. Roth, 779 F.2d at 1571-72 (citing Howard v. United States, 711 F.2d 729, 734-35 (5th Cir. 1983); Thibodeau, 828 F.2d at 1504.

If it is established that Reppert is a responsible person, the burden shifts to plaintiff to prove lack of willfulness. George, 819 F.2d at 1011. Willful is "a voluntary, conscious, and intentional act." Mazo, 591 F.2d at 1154 (citations omitted). Willfulness is shown if a responsible person prefers other creditors to the government, or shows a "reckless disregard of a known or obvious risk that trust funds may not be remitted to the government such as by failing to investigate or to correct mismanagement after being notified that withholding taxes have not been duly remitted." George, 819 F.2d at 1011-12 (citation omitted).

The Court rejects the government's argument that whether one is required to collect, truthfully account for, or pay payroll taxes within the meaning of § 6672(a) is a question of state law. (Doc. #63, p. 3.) Federal law controls this area. The Court agrees with plaintiff that there are disputed issues of material facts as to plaintiff's actual authority over financial matters, despite his title, which renders summary judgment inappropriate. Plaintiff testified that he had no authority to pay the tax bills, or most other bills, and there is evidence supporting this position. While there is also much evidence to the contrary, at this stage of the proceedings the Court must view the evidence in the light most favorable to plaintiff.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

Defendant's Dispositive Motion for Summary Judgment (Doc. #59) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 11th day of August, 2009.

1 On December 17, 2008, the Court granted the United States of America's Unopposed Motion to Sever (Doc. #51), and dismissed Count II against the individual defendants without prejudice to proceeding in a separate case. See Doc. #53. Therefore only Count I against the IRS remains.

2 While the statute is in the conjunctive, the Supreme Court has interpreted the three obligations in the disjunctive. Slodov v. United States, 436 U.S. 238, 250 (1978)(defining responsible person as one who performs any one of the three functions). See George v. United States, 819 F.2d 1008, 1011 n.3 (11th Cir. 1987).

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

Thursday, August 20, 2009

Whose income is it?

That is a big issue: is income of the company or the individual? Obviously that issue needs documentation that was abscent in this case.`Would you rely on a client's statement on that issue if you were the return preparer? This issue could arise in any case.

Joshua A. Van Ryswyk v. Commissioner.

Dkt. No. 5607-08 , TC Memo. 2009-189, August 19, 2009.

[Appealable, barring stipulation to the contrary, to CA-8. --CCH.]

[ Code Sec. 61]
Income: Commissions: Compensation for services. --
In the absence of credible evidence, an individual who received commissions for selling financial products was taxable on the amounts received and could not avoid tax by claiming the commissions actually belonged to his S corporation. The testimony of the taxpayer and his foster brother was discounted as it was in material respects questionable, conclusory, uncorroborated, or self-serving. The testimony that the commissions belonged to the S corporation owned by the taxpayer and his foster brother was not convincing, and no other evidence of their claimed agreement to that effect was produced. --CCH.


[ Code Sec. 162]
Deductions: Trade or business expenses. --
In the absence of credible evidence, a taxpayer who received commissions for selling financial products was taxable on the amounts received and could not avoid tax by claiming the commissions actually belonged to his S corporation. Given that neither the existence of an agreement between the taxpayer and the corporation nor the fact of any payment was proven, the taxpayer could not deduct the entire commission as having been paid to the corporation. The taxpayer also did not prove that he had paid the expenses claimed on the corporation's return for the year at issue, so he could not deduct those expenses. --CCH.


[ Code Sec. 6651]
Civil penalties: Failure to file penalty: Reasonable cause. --
The taxpayer's arguments that his failure to file a return was excused by the failure of his S corporation to provide him with a timely Schedule K-1 or by the fact that he did not believe he owed any tax were rejected. In the absence o