Prose by Tax Pros - Another Article by Hale E. Sheppard

The tax press has focused recently on captive insurance, conservation easements, Employee Retention Credits, and other “hot” topics. However, international tax enforcement in general, and big penalties for unfiled FBARs in particular, are still key issues. Several cases, largely unnoticed, have held that the IRS can extend the period for assessing FBAR penalties, even though the initial deadline expired. Another case ruled that FBAR penalties are “fines” for constitutional purposes, such that courts can reduce them if they are “excessive.” This article examines disparate rules about extensions of assessment-periods, relevant IRS guidance, and new cases centered on these critical topics. 

Battles over Employee Retention Credit (“ERC”) claims are turning more serious now, with many audits, administrative appeals, and cases getting underway. Taxpayers hoping to prevail against the IRS or Department of Justice need to have a deep understanding of legislative, substantive, procedural, and strategic ERC issues. Understandably, loads of taxpayers are having trouble keeping up with evolving matters in the ERC world. This article, the latest in a long series, discusses five new items that might have escaped the attention of taxpayers.

Complying with international information-reporting duties is difficult; the rules are complex, dense, and obscure. Things get even more complicated when it comes to people who are residents, for tax purposes, of both the United States and another country. These so-called “dual residents” have special disclosure rules, the violation of which can trigger taxes, penalties, extended assessment periods, and more. This article explores information-reporting obligations, traditional IRS enforcement actions, and recent cases and IRS guidance featuring contradictory rulings involving dual residents.

When people think about tax enforcement, they rarely consider the IRS attacking payroll companies based on benefits they claimed for their clients, but this is happening with the Employee Retention Credit (“ERC”). What makes this more interesting is that the IRS is attacking both payroll companies and their clients thanks to their joint liability in certain situations. This reality sets the stage for primary battles against the IRS, accompanied by secondary clashes between payroll companies and their clients. The finger pointing has already started, and it will no doubt intensify as ERC enforcement escalates. This article analyzes four recent sources of IRS guidance about which parties will be on the hook when ERC claims get disallowed.

Congress introduced the Employee Retention Credit (“ERC”) more than four years ago, but serious enforcement actions are just now getting underway. The IRS, as one part of its comprehensive strategy, has been implementing a multi-step plan designed to convince taxpayers to willingly return ERC payments that they did not deserve in the first place. This article, the latest in a series, analyzes the evolution of ERC benefits by Congress, the no-win situation facing the IRS initially, and some of the steps taken that the IRS has taken thus far to reduce the number of taxpayers it must pursue, including the introduction of its second voluntary disclosure program.

Taxpayers who engage in tax fraud face serious consequences, including steep penalties, endless assessment-periods, prolonged trials, reputational damage, and more. Mere allegations of fraud by the IRS can trigger these types of damaging outcomes. Cynics often argue that this is precisely the reason the IRS sometimes claims that fraud occurred in the first place. Fortunately for taxpayers, while alleging fraud is relatively easy, proving it can be hard for the IRS. Two recent Tax Court cases, analyzed in this article, demonstrate this reality. 

Things constantly evolve when it comes to U.S. tax and information-reporting duties for foreign trusts. A major challenge for taxpayers is keeping up with all the changes because they derive from different sources, in different contexts, at different times. In an effort to clarify and update matters, this article offers a summary of foreign trust rules, followed by a chronological review of the latest enforcement actions, relief measures, cases, regulations, and more.

Are taxpayers who acquire Private Placement Life Insurance (“PPLI”) doing something wrong? Certain politicians and academics think so. They argue that taxpayers who have the financial ability to purchase PPLI are somehow “abusing” the system. This article explains the general tax rules favoring life insurance policyholders and their beneficiaries, recent reports and cases putting PPLI in a bad light, and three recent proposals urging legislative changes by Congress and/or increased enforcement by the Internal Revenue Service.

Congress instructed the IRS to publish guidance on specific, limited issues related to the Employee Retention Credit (“ERC”). The IRS did so, first issuing regulations about its ability to recapture “erroneous refunds,” followed by additional regulations about its authority to grab related interest payments. These new rules, if they withstand scrutiny, will enhance the IRS's enforcement capabilities. This article, the latest in a long series, explores four major ERC laws, two sets of regulations recently introduced by the IRS, various assessment periods applicable to ERC claims, and how they all interrelate.

Enforcement actions regarding Employee Retention Credit (“ERC”) claims are on the uptick. An important question is how long the IRS and the Department of Justice have to carry out their missions. The normal rules on timing are straightforward, but things get complicated when one considers exceptions, special rules for particular quarters, potential changes contemplated by Congress, and a novel decision by a Court of Appeals that has received little attention. This article, the latest in a long series on ERC issues, explores the key timing issues, old and new, in the context of ERC disputes.

Many taxpayers parting ways with the United States must file Form 8854 (Initial and Annual Expatriation Statement). Failure to do so is problematic because it can expose taxpayers to the notorious “exit tax.” Few people have seemed to notice, but significant changes might be on the way. This article analyzes worldwide obligations of U.S. individual taxpayers, exit taxes, foundations for Form 8854 filing duties, legislative proposals for increased enforcement, a recent case invalidating the IRS document that introduced Form 8854, and IRS actions in other contexts where the courts have shot down administrative guidance.

The IRS tries to gather as much information and documentation as possible when conducting an audit.  It attempts to get the data directly from the taxpayer, but it often turns to other sources, too. This is called making third-party contacts. The IRS has been criticized over the years for giving insufficient warnings to taxpayers before starting third-party contacts, and Congress took notice. It enacted a law creating safeguards against inappropriate third-party contacts and later strengthened it. Now, the IRS has issued proposed regulations that severely undercut historical taxpayer protections. This article analyzes the filing and record-keeping duties of taxpayers, information-gathering tools of the IRS, and changes in protections for taxpayers and third-parties over the years.

Conservation easement disputes have lasted nearly a decade and the end is far for clear. What is apparent, though, is that the IRS is now eager conclude as many cases as possible, and fast. Why? The IRS might be concerned about losing a major case on valuation issues, which could unleash many taxpayer victories in later cases. Another possibility is that the IRS wants to clear its massive inventory of existing SCET cases. Yet another motive might be that battling sophisticated taxpayers in high-dollar, complex, document-intensive cases takes a serious toll on the IRS. The true reasons for the IRS's desire to resolve conservation easement cases now is not particularly important; what matters is understanding the relevant settlement programs and their nuances. This article, which expands on several of my earlier ones, compares and contrasts three different IRS programs.

What began as an initiative to help businesses keep workers on the payroll during the COVID crisis has become a quagmire. The processing of new employee retention credit (“ERC”) claims is on hold, guidance is often dense and retroactive, legislation is in limbo, and audits and investigations are starting in earnest. Convinced that billions of dollars in ERC claims were improper, the government has initiated several actions. This article, another in a long series by the author, explores recent administrative, legislative and executive actions to address ERC issues.

Most people are somewhat confused about Employee Retention Credit (“ERC”) issues. This is logical given the massive amount of information, much of it inaccurate, released by various sources over the past four years. Among the aspects that escape most people are the enforcement actions taken by the IRS. Understanding these is critical because taxpayers and other parties that might end up in the IRS's crosshairs cannot effectively defend themselves if they do not know what their adversary is doing. This article, another in a long series, explores the major enforcement tactics used by the IRS thus far in challenging what it considers improper ERC claims.

Employers generally are required to withhold, deposit, and remit taxes on wages paid to their employees. They are obligated to file various returns with the IRS documenting their actions, too. Many employers hire a third-party payer (“TPP”) to handle these duties. Things often go smoothly, but issues can arise when situations get complicated. One example is when an employer files an Employee Retention Credit (“ERC”) claim through its TPP, the IRS allows it, and then it starts looking for persons to audit. This article, the latest in a long series, explains the various ERC laws and analyzes the four main sources of IRS guidance thus far about liability for tax underpayments and penalties resulting from improper ERC claims.

The IRS has focused on several different transactions in recent years, but its indignation now centers on certain positions taken by taxpayers in connection with Charitable Remainder Annuity Trusts (“CRATs”). This article describes a growing list of IRS efforts to stop what it deems abusive transactions involving CRATs.  These include a legal memo, an injunction lawsuit, two Tax Court battles, a Dirty Dozen listing, and, most recently, regulations proposing to categorize items as “listed transactions.”

In its effort to win conservation easement cases, the IRS has trotted out lots of different arguments over the years. Some were rejected by the Tax Court upon arrival, others gradually disappeared as taxpayers improved pre-donation documentation to avoid “technical” flaws, and a few still exist. One of the lingering challenges centers on the character of the property on which an easement is placed. This argument has been dubbed the “inventory issue,” and the IRS is now raising it frequently. These efforts have resulted in three recent Tax Court victories for the IRS. This article examines concepts in easement disputes, key participants, legal support for the “inventory issue,” and three pivotal cases thus far.

At some point during most audits, taxpayers will ponder whether, or to what extent, they should “cooperate” with the IRS. They also might ask what, exactly, cooperation means in a particular situation. These are critical questions to which many taxpayers lack clear answers, and this type of unawareness can lead to bad decisions. This article describes duties associated with foreign accounts, standards for reducing penalties, a new case in which taxpayers were stuck with higher sanctions because they failed to fully cooperate during a voluntary disclosure program, and other contexts in which cooperation has a significant effect on IRS disputes.

Fighting over when owners of limited partnerships must pay self-employment taxes has lasted nearly five decades. This struggle is attributable to several things, including the absence of applicable regulations, rapid evolution of business entities, and more. Uncertainty has caused taxpayers to claim disparate tax positions and triggered several big-dollar cases. This article, just one in a series, explores the relevant rules, a long list of arguments advanced by taxpayers and the IRS in two pending cases, and the recent Tax Court ruling that it must apply a “functional test” to determine whether a partner in a limited partnership meets the relevant exemption.

The IRS has a limited period to enforce the rules, and taxpayers hope to go unnoticed until that opportunity has passed. Timing issues do not disappear, though, simply because taxpayers get selected for audit or approach the IRS pro-actively. Indeed, they might become more important than ever, because many interactions with the IRS involve extensions of assessment-periods, some voluntary, others compulsory. This article analyzes the divergent and surprising rules applicable to taxes, on one hand, and FBAR penalties, on the other.

The IRS recently launched its second major effort to dispense with cases involving what it calls syndicated conservation easement transactions. In order for partnerships and their partners to make intelligent decisions, they first need to understand the context. This includes the types of challenges the IRS raises in easement disputes, the terms of the initial settlement introduced back in 2020, the terms of the current settlement launched in 2024, and the types of partnerships to which the current settlement might appeal. This article covers those topics and more.

International tax disputes often create important guidance, some obvious, some not. Aroeste v. United States is a great example. That case involves the mundane issue of FBAR penalties, but it presents exciting and novel issues, too. It makes noteworthy rulings about whether dual residents can seek FBAR protection from tax treaties, whether late filing of certain information returns prevents taxpayers from claiming beneficial tax positions, and whether taxpayers must follow rules issued by way of a Notice instead of a regulation. This article, the second in a series, explores these important issues and others generated by the case.

Everyone knows that IRS is struggling to timely process and audit Employee Retention Credit (“ERC”) claims. What many people do not realize, though, is that the Tax Court issued a decision in January 2024 that might affect timing issues. This article, another in a series, discusses ERC guidance, the three-year and five-year assessment periods under current law, key Tax Court cases addressing the impact of fraud by return preparers on assessment periods of taxpayers, the broad definition of preparers, and potential effects on well-intentioned taxpayers filing improper ERC claims

The IRS is trying various methods to halt what it considers improper Employee Retention Credit (“ERC”) claims, including penalty threats. Browbeating taxpayers with potential penalties is standard stuff, but it becomes particularly interesting in the ERC context, where the IRS's ability to carry out its warnings is questionable. This article, the latest in a series, describes the evolving ERC guidance, highlights the recurrent themes of “complexity” and taxpayer “victimization,” reviews relevant penalty-mitigation standards, and suggests that taxpayers considering their next move need to determine how much weight IRS penalty threats really deserve.

This article, the latest in a long series, describes the ERC legislation, relevant administrative guidance, evolution of the regulations addressing “transactions with contractual protection,” effects of reportable transaction status on employers and advisors, and more.

Lots of taxpayers are thinking about Employee Retention Credit (“ERC”) matters these days. Most are focused on employment tax issues, but they should be considering related tax issues, too. Specifically, they might analyze how the potential reduction or elimination of ERC amounts will affect income tax returns, when such events will occur, and what should be done in the meantime. This article, another in a series by the author, explains the relevant laws, relationship between ERCs and income taxes, timing issues, and filing “protective” amended returns as a solution.

The Employee Retention Credit (“ERC”) is a polarizing tax benefit, but there are a few things on which most everyone can seem to agree. First, guidance regarding the ERC is dense and complicated. Second, ERCs often involve big money, for employers who obtain them, professionals who assist in procuring them, and others. Third, parties working toward the mutual goal of submitting proper ERC claims sign agreements, the terms of which are sometimes subject to different interpretations. These three realities have converged to trigger disputes, with the IRS, and among various parties. This article, the latest in a long list, examines these early clashes.

Things are dynamic when it comes to the Employee Retention Credit (“ERC”). Among the most recent events is the introduction of the Voluntary Disclosure Program, which is designed for taxpayers that previously filed ERCs claims, got paid, later questioned their eligibility, and now want to give the money back with minimal financial downsides. This article, the latest in an ongoing series, compares methods used by the IRS in addressing conservation easement donations and ERCs, and then presents some questions to consider.

Congress took action to help taxpayers economically suffering because of COVID, including creating the Employee Retention Credit (“ERC”). The number of claims filed, amounts sought, and grounds for relief far surpassed what was expected. These and other factors led to problems, among them the IRS's struggle to administer the ERC program. The IRS has experienced challenges separating the wheat from the chaff, so to speak. Therefore, following its standard playbook, the IRS has introduced both carrots and sticks, the effectiveness of which is yet to be seen. This article, the latest in a long series, summarizes the ERC laws and explores the IRS's enforcement methods so far.

Congress took steps to protect American businesses and workers during the COVID pandemic, such as creating the Employee Retention Credit (“ERC”). The IRS, tasked with implementing the ERC, issued various types of guidance. It now relies on such guidance in reviewing, and frequently denying, ERC claims. This is particularly true when it comes to taxpayers seeking ERCs on grounds that their businesses were suspended because of a governmental order. This article, the latest in a growing list, summarizes the main laws and analyzes multiple IRS sources regarding how to treat ERC claims based on governmental orders.

Most battles over “syndicated” conservation easements focus on the partnerships that made the donations. This is logical because they took the key actions, claimed the tax deductions, and then allocated them to the partners. A recent case, Glade Creek Partner, shows that the IRS is looking at other parties, too. These include the original landowners, who contribute the property on which the easement is later donated. Why would the IRS scrutinize original landowners? How long they held the property and for what purpose directly affect the size of the charitable tax deduction. This article explains the easement donation process, significance of property characterization, and three-round battle in Glade Creek Partner. This article observes that, in its efforts to reduce tax deductions from easements, the IRS is now looking to original landowners to determine whether the relevant property is both “long-term” and “capital gain” in nature.

Gifting can be rewarding, but it can also generate problems with the IRS. The applicable tax and information-reporting rules are complicated when foreign persons are involved. The IRS has attempted to capitalize on this reality in two recent cases, asserting large penalties against a U.S. individual receiving a gift from a foreign relative, and seeking significant gift taxes and penalties from another U.S. individual making a gift to a foreign relative. Although the IRS lost in both instances, these types of challenges serve as a warning to taxpayers to better understand international tax compliance matters, as well as potential downsides associated with participating in IRS disclosure programs.

Taxpayers often lack the time or patience to read an entire court decision. This is understandable, but it leads to problems. When taxpayers focus only on headlines, they tend to overlook important rulings that might be helpful to themselves and others. This is precisely what has happened with a recent conservation easement dispute, Mill Road 36 Henry. The ultimate outcome was not good for the taxpayer in that case, but those who persevered discovered that the Tax Court made six rulings favorable to all taxpayers involved in conservation easement disputes. This article explores the main rules concerning easement donations, key facts in Mill Road 36 Henry, and the obscure rulings advantageous to taxpayers.

Enforcement actions against alleged promotors of abusive transactions and taxpayers who participate in them are firmly linked. Therefore, effectively defending against IRS challenges requires an understanding of the overlapping rules, standards, and procedures. Many taxpayers are myopic, thinking solely about how certain events will affect them personally and immediately. This is understandable, but it rarely achieves the best overall result when it comes to multi-faceted disputes with the IRS.This article explains unique aspects of promoter penalties, various actions the IRS takes in promoter investigations, effects of such measures on taxpayers, recent events suggesting that investigations might surge in the near future, and thoughts about the best path forward in the current environment.

If people have learned anything from the recent disputes over conservation easement donations, it is that IRS has a playbook. It involves announcing that the main problem is excessive valuation, followed by attacking essentially everything but what the donation is worth. The IRS often concludes that taxpayers should get a tax deduction of $0, and steep penalties apply. The IRS has already experienced problems using this strategy in the easement context, and things might get harder if it plods ahead in the same manner when it comes to art donations. This article explains the general rules for donating artwork, recent IRS announcement about “promotions” of improper donation schemes, and hurdles that the IRS might encounter if it insists on applying the economic substance doctrine, alleging that art donations are worth $0, or badgering recipients of such donations.

Congress realized that taxpayers desperately needed financial help during the COVID crisis, so it created the Paycheck Protection Program and the Employee Retention Credit. Taxpayers that got dual relief are beginning to understand that enforcement actions, timeframes, and consequences differ for each. This article, the latest in a multi-part series, explains the fundamentals of these benefits, interplay between the two, and distinct mechanisms used to recoup benefits that were improperly issued to taxpayers.

For lovers of tax controversy, disputes between taxpayers and the IRS over Malta pension plans should be legendary. In short, taxpayers followed the letter of the law (i.e., the specific terms of the US-Malta treaty), the IRS detested the result, and now the IRS is implementing aggressive measures, including some that supposedly have retroactive effect. This article explores general U.S. tax treatment of foreign retirement plans, key concepts of the treaty, positions claimed by U.S. taxpayers, initial enforcement actions by the IRS, significance of the Competent Authority Arrangement, effect of the Proposed Regulations on various persons, and potential paths for taxpayers at this juncture.

Huge numbers of taxpayers have claimed Employee Retention Credits (“ERCs”) in the past few years. Some of them might know the substantive rules, but few of them likely understand the procedural nuances. This is a problem because a large percentage of clashes with the IRS ultimately turn on procedural issues. Taxpayers and their advisors are raising many procedural questions: Has the IRS created special procedural rules for ERC cases? How long does the IRS generally have to audit ERC claims? Do extended assessment-periods apply to claims for certain quarters? What examination techniques will the IRS use? What methods can taxpayers utilize if the IRS rejects or ignores their ERC claims? Which courts will have jurisdiction over ERC litigation? Can the interplay between employment taxes and income taxes cause taxpayers to get “whipsawed” by the IRS? This article, the latest in a multi-part series, explores these critical questions and others.

It is obvious that the IRS has been scrutinizing, and will continue to pursue, those that it considers “promoters” or “enablers” of improper employee retention credit (“ERC”) claims. What is not apparent, though, is the wide range of tools at the IRS's disposal and how they might affect not only the targets, but also the taxpayers who relied on them. This article, the latest in a series, summarizes the main ERC rules, clarifies how long ERC claims will continue, identifies imminent enforcement actions, and explores a long list of weapons that the IRS likely will use, some common, others obscure.

The deadlines for seeking Employee Retention Credits (“ERCs”) are fast approaching, large numbers of claims are being filed, and fears of widespread fraud abound. What is the solution? The IRS says pumping the proverbial brakes is the way to go. It recently imposed a “moratorium” of at least three months on processing future ERC claims. The IRS made several other important announcements, too. These include the start of “enhanced compliance reviews” on all ERC claims, a “special withdrawal option” for taxpayers with pending yet unpaid claims, and a future “settlement program” for taxpayers that previously received ERCs but did not really deserve them. This article, the latest in a multi-part series, explores these recent IRS actions, fitting them into the broader context of ERC events over the past three years and into the future.

Congress introduced the employee retention credit (“ERC”) back in March 2020, some taxpayers are still making ERC claims today, and others have the ability to do so until April 2025. These protracted solicitations have triggered questions about the validity of recent ones. Some ask, for example, why taxpayers with legitimate ERC claims did not file them right away, on their original employment tax returns. One reason is that the IRS did not issue certain guidance until months after Congress enacted the relevant laws. Another is that some of that guidance had retroactive effect. This meant that taxpayers had to file amended employment tax returns, sometimes months or years after the fact, in order to take advantage of favorable modifications to the ERC rules. This article, the latest in a multi-part series, analyzes changes over time that have led to the continuation of ERC claims.

There are thousands of blogs, articles, comments, advertisements, infomercials and more about the Employee Retention Credit (“ERC”). Regardless of their slant, all these items generally have one thing in common: a disturbing lack of substance. Everything in the ERC realm seems to have devolved into sound bites based on partial information, which is not helpful for taxpayers and advisors who are looking to truly understand the situation and make informed decisions. This article, which is the second in a multi-part series, tries to reverse this trend. It explains the reasons why Congress introduced the ERC, four laws and IRS guidance, periods during which taxpayers can still claim ERCs, initial problems detected by watchdogs, series of IRS warnings, training materials for audit personnel, consequences for taxpayers filing excessive claims, and extended assessments periods. In short, the goal of this article is to supply substance for taxpayers and advisors as the IRS implements enforcement actions.

The U.S. economy is humming along, a major disruption occurs, Congress introduces tax incentives to stabilize matters, the IRS provides guidance to implement them, some taxpayers exploit voids and ambiguities, and the IRS takes actions to halt perceived abuses. This is a timeless tale that has recently centered on the Employee Retention Credit (“ERC”). To understand the inevitable clashes, one must first appreciate the applicable rules. These are complicated, of course, deriving from several laws passed in rapid succession and administrative guidance issued on their heels. This article, the first in a multi-part series, explores the ERC rules from start to finish.

Many taxpayers desperately needed an economic injection from the government to survive massive problems caused by COVID. Needing financial benefits is one thing, but qualifying for them is another. When it came to eligibility for employee retention credits (“ERCs”), employers had to demonstrate several things, including that their total revenue dropped by a certain percentage or that a governmental mandate triggered a partial or full suspension of their business operations. The IRS is convinced that some employers are abusing the rules, relying on suspensions that did not reach the relevant thresholds. The article addresses this important issue, focusing on the impact of supply chain problems.

In life, things often are going great, until they are not. This is true in the tax world, too. Congress introduced the employee retention credit (“ERC”) in early 2020 to assist businesses struggling because of COVID. Things started positively, but they changed when the IRS began identifying significant numbers of aggressive or fraudulent claims. The IRS increased enforcement efforts. This scrutiny has already triggered finger pointing in various directions, with more on the way. This article explains the congressional and IRS guidance regarding ERCs, deadline for making claims, potential consequences facing taxpayers and advisors engaged in improper behavior, and obscure issues sparked by two recent ERC events events.

You start with the macro and then move to the micro, as time permits and need demands. This method is followed in many contexts, including taxes. Congress first introduced the employee retention credit (“ERC”) in early 2020, and then made several legislative tweaks thereafter. The IRS, likewise, issued multiple Notices over the years supplying more detail. Naturally, as time passes and unanticipated issues arise, the guidance becomes more focused, more granular. That is precisely the case with ERCs. This article summarizes the main ERC rules, prior guidance on whether governmental employers are eligible for ERCs, and a recent Chief Counsel Advice exploring the status of federal credit unions.

The IRS has argued that the existence of Tax Result Insurance might deprive an entity of partnership status, taxpayers cannot claim deductions for premiums paid, and purchasing coverage supposedly demonstrates that taxpayers lack reasonable cause for their positions, such that penalties apply. This article explains why certain taxpayers are acquiring insurance, two major types of coverage, several challenges the IRS is now raising, and why incipient IRS actions should concern all companies offering tax-related insurance and all taxpayers obtaining policies, not just those in the easement realm.

Taxpayers with Canadian retirement plans have long faced tricky issues when it comes to U.S. income taxes and information-reporting duties. As the situation evolved over time, the IRS issued several pieces of guidance that facilitated tax-deferral and decreased disclosure obligations. The IRS ultimately announced that it would grant automatic, retroactive and prospective, tax-deferral elections. Nonetheless, the IRS continues to challenge taxpayers who fall into non-compliance. This article explains the normal tax and reporting requirements for taxpayers with worldwide reach, special rules applicable to Canadian retirement plans, evolution of solutions offered by the IRS, and a recent Tax Court case highlighting all the key issues.

It appears that the IRS is on its way to stopping taxpayers from taking what it considers improper positions related to charitable remainder annuity trusts (“CRATs”). The IRS has prevailed in two recent cases, with the Tax Court rejecting all arguments raised by the taxpayers. Consequently, taxpayers with similar CRATs must make a critical decision. Should they hunker down and prepare to fight, or is pro-actively approaching the IRS a better option? This article supplies an overview of tax issues concerning CRATs, explains various actions taken by the IRS to halt what it deems abusive behavior, analyzes the relevant Tax Court decisions, and examines several options remaining for taxpayers with imminent CRAT problems.

The IRS has been using claims of “technical” problems as its primary weapon in attacking conservation easement donations. This often means identifying shortcomings with Deeds. In an effort to eliminate tax disputes centered on technicalities and get focused on valuation instead, groups have been asking the IRS to issue guidance for years. The IRS did not react until Congress recently forced it to do so. The IRS, pursuant to a congressional mandate, released Notice 2023-30. This article explains the main aspects of the new easement law, two relevant easement clauses, history of prior requests for a model Deed, and the narrow content of Notice 2023-30.