I. Introduction

A. Types of Audits

·  Audit - FG finds people who owe more than what they paid, service focuses its attention on those who typically cheat

·  Correspondence audit – done through the mail

o  Letter wants tax itself, interest accrued, and penalties if any

·  Field audit – agent comes to your home and moves in

o  Interested in wide range to issues

o  KIM: Burden of proof on TP usually

·  Office audit – revenue agent’s office

o  Tend to be more specific in wanting information

B. Kinds of Courts

·  Tax Court: Most important of the Three

o  Taxpayer commences action in court for re-determination of a deficiency w/o first paying the asserted deficiency

o  Most sophisticated on tax issues, only hears tax cases

o  No jury and only one judge

·  Federal District Court - Can have jury trials here

o  Has jurisdiction in any case against US regardless of amount

o  R: Have to first pay the amount owed to file suit

·  United States Court of Federal Claims

o  Jurisdiction over all federal tax claims regardless of amount

o  No venue requirements, no juries

o  No deficiency cases, only can hear refund cases

C. Sources of Rules

·  Constitution: 16thA FG ability to tax income of citizens

·  Congress: creates statutory provisions – Code §§’s

·  Executive: Department of Treasury

o  Regulations proposed and sent out for public notice and comment, respond and then go to admin process of issuing

·  Revenue Procedures: IRS puts out certain procedures to follow

o  Court treatment: Sometimes given persuasive weight because it may be a long standing interpretation OR NO weight at all

o  IRS puts out a line in the sand, as a litigation tactic

·  Private Letter rulings – IRS gives personal specific rulings to those who request information about taking certain tax action

o  Decision is binding on TP – decision locks in the tax treatment

D. Accounting Principles – what years does gross income get reported

·  Cash Method – work when paid

o  IF you are a cash method TP, THEN the year of actual receipt

o  Corollary: Constructive receipt – counts, used for anti-abuse

·  Accrual Method – rolling billing

o  IF you are an accrual method, when there is a right to receive

E. Tax Formula

·  Gross Income

o  Determine if amounts are included or entitled to exclusion

o  Presumption that if item met income definition then included

·  Above the Line Deductions

o  Approved Deductions listed in §62, if not listed its BTL

§  Most trade/business types are above the line

§  Most personal are below the line

§  Investments can go either way

o  Deduction presumption work opposite way, unless you can find a specific deduction you cannot deduct the value

·  Adjusted Gross Income

o  Gross income – ATL Deductions

·  Below the Line Deductions/Standard Deduction

o  §63 Standard Deduction

o  §151 – all TP’s entitled to personal exemption

·  Taxable Income

o  AGI – BTL deductions

·  Tax Rate

o  Applied to Ordinary Income

o  Applied to Capital Gains

II. Gross income

A. Definition of Income – defined abstractly, exclusions -> specific provisions

·  §61 GR: Gross income means all income from whatever source derived including (list of items, not exclusive list)

o  R: Exclusions can include statutory, judicial, and administrative decisions

·  Glenshaw Glass - punitive damages constituted gross income

o  Three prong test to determine gross income

§  Undeniable accession to wealth

§  Clearly realized

ú  I: Look for realization event

§  Dominion – TP has to have it

ú  No restrictions on its use

·  N: Statutory scheme: income from all sources is taxed unless the TP can point to an express exemption

B. Income realized in any form

·  Forms of Gross income Reg. § 1.61-1(a) – gross income may be realized in any form, whether money, property, or services

o  §1.61-2(a)(1) Compensation for services including fees, commissions, and similar items

·  Barter Clubs – trade services amongst its members rather than engage in cash transactions

o  H: Still gross income even if you cut out the cash element of the transaction

·  Fair Market Value of Property/Services Reg. § 1.61-2(d)(1)

o  IF services are paid for in property/services THEN the FMV of the property/services is the measure of compensation

o  IF the services rendered at a stipulated price, such price will be presumed to be the FMV of the compensation received in the absence of evidence to the contrary

o  §20.2031-1(b) FMV = price a willing buyer would pay a willing seller with neither a compulsion to buy or sell and both having knowledge of relevant facts

C. Realization, Imputed Income, Bargain Purchases

·  Realization Events: Matter of Timing

o  Unrealized total gain may fluctuate from time to time as the property’s value changes, but that total will be treated as income only on realization

o  GR: We do not tax mere accession to wealth when it is appreciation of property value

§  §1.1001-1(a) In property cases, realization requires a conversion into cash or other property…a Disposition

·  Imputed Income: Self performing services for self or family/friends

o  GR: Imputed income is not taxed although the Code contains no specific exclusion to that effect

o  Two categories: imputed income from services and imputed income from property

§  Performing services for one’s family => Not treated as income

§  Performing services for self => not treated as income

§  Living in self-owned property => Not treated as income

o  N: Tax policy of favoring home ownership

§  163 Interest, §164 Property tax deduction, 121 Exclusion of Gain on Sale of Principal Residence

§  BUT, §1.61-8(a) Rents and Royalties are Gross Income

·  Bargain Purchase: Purchased product for less than FMV

o  Policy – unworkable to have IRS look behind every deal to see if there was a taxable bargain

o  BUT, IF property transferred as compensation for services in an amount less than FMV, THEN FMV – Amount Paid = gross income. Reg. § 1.61-2(d)(2)(i)

§  Usually relation to employment compensation for services rendered is a clue but fringe benefits complicates the issue

o  N: DO Not confuse realization requirement with compensatory bargain purchases. Reg. § 1.61-2(d)(2)(i)

§  Its gross income not now, but when she realizes it by selling it later

o  T: When value is known and purchase for less than FMV

D. Cases applying Gross Income

Roco - TP had a qui tam payment from FG; gross income

·  R: no specific § for exclusion means TP cannot exclude it

·  §6662 – Penalty: TP substantially understates income by 20%

o  Could be excused in GF shown, there was none here

Cesarini: TP’s found money in used piano; filed seeking a refund

·  §1.61-14 governs this, treasure trove is reportable

·  I: Accession to wealth took place - When money was found

McCann: Employer paid for employee to go on seminar

·  I: Whether the services rendered are gross income

·  TP: Attended training seminars; mixed with fellow employees

·  GP: Employees are not required to attend, attendance is awarded to those who meet performance goals

·  R: IF it is not for the purpose of the employer then it is gross income, value to employee must be regarded as income

o  T: Did employer expect to get more work out of them or any benefits from the trip

Old Colony: Company decided to pay TP income tax liability

·  IF someone pays tax obligation for a TP then that becomes gross income.

o  Pyramiding the gross income is required by regulations

·  By doing this for employers who pay employees tax liability equals out to those who just paid the employee and make him pay the tax

III. Gains from Dealings in Property

·  Gain: § 61(a)(3) gross income includes “gains derived from dealings in property.”

·  N: No realization while property is being held

o  Realization event is the sale or transfer of property

·  §1.61-6(a): Gain = Amount Realized – Un-recovered Cost/Other Basis for the Property Sold/Exchanged

o  §1001(a): Gain = Amount Realized – Adjusted Basis

o  §1001(b): Amount Realized = Sum of $$$ received + FMV of the property received

o  §1011 Adjusted Basis shall be §1012 Cost adjusted by §1016

o  §1012 Cost Basis: Basis of property = Cost of Property

§  Cost of real property shall not include any amount w/r to real property taxes, which are imposed on TP

o  §1016 Requires TP to adjust basis in property to reflect any recovery of TP investment or any additional investment made in the property

§  Ex: Increasing adjusted basis in property

ú  Paying additional money for add-on to house

§  Ex: Lowering Adjusted basis in property

ú  Using insurance proceeds from damage to house to not repair home but go on vacation

·  Recovery of Capital Concept

o  TP has right to recover tax-free investment (capital) in property before being charged with income from a disposition in property

o  §1012 Cost basis and §1016 Adjusted Basis provide a measure of the capital TP is entitled to recover Tax-free

o  Basis is critical to determining the gain/loss realized by TP on disposition of the property

·  N: §61(a)(7) Dividends are gross income

o  Just like rent and interest earned – earnings on or profit from one’s investment

o  Basis not adjusted to reflect payment of dividend

A. Tax Cost Basis: When property is given over as payment

·  reporting the amount of compensation income upon receipt of land, the basis of the land is the fair market value of the services rendered

·  §1.61-2(d)(2)(i): IF property is transferred by an employer to an employee/IC as compensation for services, for an amount less then FMV,

o  THEN compensation (gross income) = Amount Paid for the property – FMV at time of transfer.

o  Gain/loss from subsequent sale of such property, Basis = Amount Paid for the property + Amount of such difference included in gross income

·  Exceptions: stock options (§1.61-15) and others see §421

·  Ex: A owes B $50k. A gives property (FMV of $50k) to B.

o  B has $50k of income (compensation for services whether $$/property)

o  B later sells land for $60K, A has realized gain of $10k

§  Having reported $50k already as income, means B has §1012 Cost Basis of $50k, thus AR – Cost = Gain

o  The reporting of the $50k of compensation income on the land constitutes a Tax Cost Basis

·  Ex: What if FMV of land is $60k, A owes B $50k, and A pays B $10k for the land

o  Not to be confused with bargain purchase:

§  Nature of parties’ relationship and the circumstances of the land transfer means that what one might view as a bargain purchase is really paying for services

o  §1.61-2(d)(2)(i): Basis = Amount paid + Amount of such difference included in gross income, Basis is $60k

§  Gross income is $50K, Amount paid - FMV

B. Impact of Liabilities

·  Impact on Basis: Recourse/Non-recourse/Seller’s loan

o  GR: Recourse liabilities incurred by a TP in the acquisition of property are included in the TP’s basis in that property

o  Due to of the obligation to re-pay, TP is entitled to include the amount of the loan in computing basis in property; the loan under §1012 is part of the TP’s cost of the property

o  N: Beneficial to TP’s acquiring depreciable assets, b/c depreciation deductions are computed w/r to basis in property

o  R: TP may not increase basis when debt is paid

·  Impact on Amount Realized: Cash, Assuming TP liability

o  GR: Recourse liabilities of a Seller, assumed by a purchaser, are included in the Seller’s Amount realized

o  §1.1001-2(a)(1): Corollary to inclusion of liabilities in basis is the inclusion in amount realized of those liabilities of the TP assumed by the purchaser

C. Basis of Property Acquired in a Taxable Exchange

·  GR: Cost Basis of Property Acquired in Taxable Exchange is the fair market value of the property received in the exchange

·  Ex: Property swap between K and P

o  K adjusted basis of $150k and P - $50k. Property was $450k

o  Was there any gain? Gain = amount realized – adjusted basis

§  K gain: $450k - $150k = $300k

§  P gain: $450k – $50k = $400k

o  Was there a realization event? Yes.

o  1001: Gain = FMV + cash – adjusted basis.

o  But what is her basis in the property received? What was her cost of the new property? Cost was $450k. Under 1012, her cost was the FMV of the property received

D. Caselaw

Philly Park – When property is exchange for property in a taxable exchange the TP is taxed on the difference between the adjusted basis of the property given in exchange and the FMV of the property received in exchange

·  To not follow this would result in allowing the TP a stepped up basis, without paying a tax

·  What if you cannot valuate the FMV of the property received

o  IF you can’t measure the court will assume it the same value of the FMV of the property given

Woodson - Borrowing $$$ against property that you already own and using property as collateral

·  Not a realization transaction, its a financing transaction, effect of which will be taken into account but it will not change basis

IV. Effect of Obligation to Repay

A. Loans – Not gross income, though no Code section says this

·  Does not represent an accession to wealth, loan proceeds are accompanied by an equal and off-setting liability

o  Borrower has an obligation to repay the loan as income

o  Obligation negates treatment of a loan as income

·  R: Repayment of a loan does not constitute gross income

o  Repayment is not a deductible expense

o  Lender has no income when a loan is repaid

·  I: Not every loan is fully repaid, Failure to pay -> tax consequences

·  R: Determination of whether a transfer of funds constitutes a loan is a question of fact