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"A thumb goes up, a car goes by…" Tax extenders remain a top contender for "hitching a ride" on November’s must-pass government funding bill.

Wolters Kluwer recently sat down with Jennifer Acuña, Principal, Federal Legislative and Regulatory Services, KPMG LLP, in Washington, D.C. to discuss over 30 temporary tax provisions known as "tax extenders," which have expired or will soon expire spanning from 2017 to 2019. Before joining KPMG, Acuña served as chief tax counsel for the Senate Finance Committee (SFC), and was previously tax counsel for the House Ways and Means Committee.

New Tax Extenders Climate on Capitol Hill
"There is an interesting dynamic going on with tax extenders on Capitol Hill. In the past, extenders were viewed as a priority item, and that has changed," Acuña said.

Generally, tax extenders have been viewed on Capitol Hill as a consistently bipartisan annual or biannual year-end legislative initiative. However, the fate of tax extenders is more uncertain than it has been in the past – in part because it is not clear yet whether there will be an opportunity for any further tax legislation to become law this year, Acuña observed.

Funding Bill Likely Driver for Tax Package
Lawmakers are revving up negotiations as Congress races against this year’s dwindling legislative calendar to reach an agreement on fiscal year (FY) 2020 appropriations. Government funding is scheduled to expire on November 21.

Given the political climate on Capitol Hill and Congress’s limited time left on the legislative calendar, a stand-alone tax package is considered unlikely to make its way through both chambers successfully. That said, November’s "must-pass" government funding bill could be the legislative vehicle for dozens of expired or soon-to-be expired tax extenders, as well as for any other tax provisions that may crop up during lawmakers’ negotiations.

SFC Chair Chuck Grassley, R-Iowa, and ranking member Ron Wyden, D-Ore., introduced their bipartisan Tax Extenders and Disaster Relief bill (Sen. 617) earlier this year. Subsequently, House Ways and Means Committee Chairman Richard Neal, D-Mass., introduced his version of a similarly named tax extenders bill (HR 3301). However, Neal’s bill—which proposes undoing certain provisions related to estate taxes under 2017 tax reform as a "pay for"—was immediately deemed a nonstarter by Senate Republicans.

Notably, Acuña observed that House Democrats may be viewing their tax extenders bill as an opening offer, providing leverage for a larger tax policy negotiation. "In today’s climate it seems that some of the signaling that’s taking place is that House Democrats are trying to position tax extenders as a Republican priority to build up leverage for a larger tax policy negotiation," Acuña said. "Once you have a tax title on a big bill, there is no limit as to which tax provisions could actually be included in the bill," she added.

Larger Tax Package Could Emerge
In that vein, there has been talk among lawmakers that a larger, catch-all tax package could emerge from these negotiations. Any tax package that is unveiled in the coming weeks must have significant bipartisan support to make it to the president’s desk. That said, amidst the new climate surrounding tax extenders on Capitol Hill. several lawmakers have alluded that bipartisan negotiations could result in any number of tax provisions being added to the anticipated tax package, including technical corrections to the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

Staking Ground on Extenders
"Right now, what is happening is that parties are staking their ground," Acuña said. While Neal’s bill was largely seen on Capitol Hill as an opening bid to these negotiations, "no one opens with their best offer," Acuña said. However, "there is common ground with respect to tax extenders," she added.

Additionally, Acuña noted that these temporary tax provisions benefit a broad range of constituents. "They have been extended historically without fail for a reason. And it is because there has typically been general bipartisan support for extenders; there is a little bit of something for everyone" she said.

However, as for which tax extenders will be renewed this year, as well as retroactively or all together forgotten, Grassley recently indicated that all eligible provisions will likely make the cut. "I would expect that as of right now, if there is an extenders package there won’t be anything left out," Grassley told reporters.

When asked if Grassley was likely referring to all expired or soon-to-be expired tax incentives spanning from 2017 to 2019, Acuña told Wolters Kluwer "that would seem to be the case." While discussing the possibility of yet another temporary extension, Acuña noted that it is hard to make policy calls on a temporary tax extenders package.

"If you want a drama free negotiation on temporary extensions, it’s a clean date change. It is easier – you do not have a policy debate," she said. "If there is an opportunity for a tax title to be attached to a larger bill this year, it is infinitely harder to include changes that some Members of Congress will not like than it is to just do what has been done in the past and kick the can down the road by temporarily extending everything."

In looking ahead, deciding which temporary tax provisions get the axe is a policy call that is unlikely to be made this year and will not easily be done on a bipartisan basis, according to Acuña.

To Pay For or Not to Pay For
As for tax extenders’ cost, the issue of pay-fors has not generally been a longwinded discussion among lawmakers. "In the past, there have been very short-lived debates on whether to pay for them," Acuña said, adding that extenders generally have not been paid for. "It is hard to find a way to raise the kind of money needed to pay for a tax extenders bill that would be politically palatable for both sides of the aisle."

However, cost can be a leading issue when Congress creates these tax breaks on a temporary rather than permanent basis, Acuña explained. "In theory, everyone might agree that a tax incentive is excellent tax policy, but because of revenue constraints, Congress will not or cannot pay for it on a permanent basis—and that is usually where Congress lands in this temporary tax policy pickle."

Additionally, Acuna highlighted that many of the individual tax cuts under the TCJA were enacted temporarily through 2025 due to budgetary reasons. "A lot of the TCJA provisions gave life to new expiring provisions," Acuña noted. Likening the TCJA’s individual provisions to the long list of tax extenders currently awaiting possible renewal, Acuña noted that tax policy is not usually made temporary "because the members viewed the underlying tax policy as unsound but because of other constraints."

The End for Tax Extenders?
Many Republican and Democratic lawmakers’ have called for an end to tax extenders, citing to the annual year-end dash to renew temporary tax provisions as bad tax policy overall. Indeed, five taskforces comprised of bipartisan SFC members recently reviewed these tax extenders and largely agreed that temporary tax policy in general is less than ideal. While many House lawmakers on both sides of the aisle, in this Congress and those before it, have agreed that enacting permanent tax invectives is better policy than doing so temporarily, actually getting there remains a challenge, even if just procedurally.

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The IRS has issued a revenue procedure with a safe harbor that allows certain interests in rental real estate to be treated as a trade or business for purposes of the Code Sec. 199A qualified business income (QBI) deduction. The safe harbor is intended to lessen taxpayer uncertainty on whether a rental real estate interest qualifies as a trade or business for the QBI deduction, including the application of the aggregation rules in Reg. §1.199A-4.

QBI Deduction and Rental Real Estate
Under Code Sec. 199A, certain noncorporate taxpayers can deduct up to 20 percent of the taxpayer’s QBI from each of the taxpayer's qualified trades or businesses, including those operated through a partnership, S corporation, or sole proprietorship. Certain relevant passthrough entities (RPEs) (partnerships, S corporations, trust funds) calculate the deduction and pass it along to their owners or beneficiaries. A qualified trade or business is generally any trade or business under Code Sec. 162, but not a specified service trade or business (SSTB) or a trade or business of performing services as an employee.

Rental or licensing of tangible or intangible property (i.e., rental activity) that is not a Code Sec. 162 trade or business is still treated as a trade or business for the QBI deduction if the property is rented or licensed to a trade or business conducted by the individual or a RPE which is commonly controlled under Reg. §1.199A-4 ( Reg. §1.199A-1(b)(14)).

Earlier this year, the IRS released a proposed revenue procedure with a safe harbor for treating a rental real estate enterprise as a trade or business under Code Sec. 199A ( Notice 2019-7, I.R.B. 2019-9, 740). The IRS has issued the new revenue procedure after considering public comments on Notice 2019-7.

Rental Real Estate Enterprise
The new safe harbor applies to a "rental real estate enterprise." This is an interest in real property held for the production of rents, and may consist of an interest in a single property or interests in multiple properties. The taxpayer or RPE must hold each interest directly or through a disregarded entity, and may either:

treat each interest in similar property held for the production of rents as a separate rental real estate enterprise; or
treat interests in all similar properties held for the production of rents as a single rental real estate enterprise.

Properties are similar if they are part of the same rental real estate category: either residential or commercial. Commercial real estate held for the production of rents can only be part of the same enterprise with other commercial real estate. Residential properties can only be part of the same enterprise with other residential properties.

A taxpayer or RPE that treats interests in similar properties as a single rental real estate enterprise must continue to treat interests in all similar properties, including newly acquired properties, as a single rental real estate enterprise if it continues to rely on the safe harbor. However, a taxpayer or RPE that chooses to treat its interest in each residential or commercial property as a separate rental real estate enterprise can choose to treat its interests in all similar commercial or all similar residential properties as a single rental real estate enterprise in a future year.

An interest in mixed-use property—a single building that combines residential and commercial units—can be treated as a single rental real estate enterprise, or bifurcated into separate residential and commercial interests. A mixed-use property interest that is treated as a single rental real estate enterprise cannot be treated as part of the same enterprise as other residential, commercial, or mixed-use property.

Safe Harbor Requirements
The safe harbor determination must be made annually. For a rental real estate enterprise to qualify for the safe harbor, all of the following requirements must be met during the tax year:

Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise. If an enterprise has more than one property, the requirement can be met if income and expense information statements for each property are maintained and then consolidated.
For rental real estate enterprises in existence for less than four years, 250 or more hours of rental services are performed per year. For rental real estate enterprises in existence for at least four years, 250 or more hours of rental services are performed per year in any three of the five consecutive tax years that end with the tax year.
The taxpayer maintains contemporaneous records (including time reports, logs, or similar documents) on the hours of all services performed, a description of all services performed, the dates when the services were performed, and who performed the services. For services performed by employees or independent contractors, the taxpayer may provide a description of the rental services, the amount of time generally spent performing the services, and the time, wage, or payment records for the employee or independent contractor. Records must be made available for inspection at the IRS's request. (The contemporaneous records requirement does not apply to tax years that begin before January 1, 2020.)
For each tax year for which it relies on the safe harbor, the taxpayer or RPE must attach a statement to a timely filed original return (or an amended return for the 2018 tax year only) that includes: (i) a description (including the address and rental category) of all rental real estate properties in each rental real estate enterprise; (ii) a description (including the address and rental category) of rental real estate properties acquired and disposed of during the tax year; and (iii) a representation that the requirements of Rev. Proc. 2019-38 have been satisfied.

"Rental services" include, but are not limited to:

advertising to rent or lease the real estate;
negotiating and executing leases;
verifying information contained in prospective tenant applications;
collecting rent;
daily operation, maintenance, and repair of the property, including purchasing materials and
supplies;
managing the real estate; and
supervising employees and independent contractors.

Rental services does not include:

financial or investment management activities, such as arranging financing;
procuring property;
studying and reviewing financial statements or reports on operations;
improving property under Reg. §1.263(a)-3(d); or
time spent traveling to and from the real estate.

If an enterprise fails to satisfy the safe harbor requirements, it can still be treated as a trade or business for the QBI deduction if it otherwise meets the trade or business definition in Reg. §1.199A-1(b)(14).

Property Excluded From Safe Harbor
The safe harbor does not apply to:

real estate used by the taxpayer (including an owner or beneficiary of an RPE) as a residence under Code Sec. 280A(d);
real estate rented or leased under a triple net lease, which includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to pay for maintenance activities for a property in addition to rent and utilities;
real estate rented to a trade or business conducted by a taxpayer or an RPE that is commonly controlled under Reg. §1.199A-4(b)(1)(i); or
the entire rental real estate interest, if any portion of it is treated as an SSTB under Reg. §1.199A-5(c)(2).

Effective Date
The safe harbor applies to tax years ending after December 31, 2017. However, taxpayers and RPEs can rely on the prior safe harbor in Notice 2019-7 for the 2018 tax year.

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The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency.

The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency. Under the cryptocurrency guidance:

a taxpayer does not have gross income from a "hard fork" of the taxpayer's cryptocurrency if the taxpayer does not receive units of a new cryptocurrency; and
a taxpayer has ordinary income as a result of an "airdrop" of a new cryptocurrency following a hard fork if the taxpayer receives units of the new cryptocurrency.

The IRS has posted the FAQs on its website ( https://www.irs.gov/individuals/international-taxpayers/frequently-asked-questions-on-virtual-currency-transactions).

Virtual Currency and Cryptocurrency
Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account, and a store of value other than a representation of the U.S. dollar or a foreign currency.

Cryptocurrency is a type of virtual currency that uses cryptography to secure transactions that are digitally recorded on a distributed ledger, such as a blockchain. Distributed ledger technology uses independent digital systems to record, share, and synchronize transactions, the details of which are recorded in multiple places at the same time with no central data store or administration functionality.

Hard Forks and Air Drops
A hard fork occurs when a cryptocurrency on a distributed ledger undergoes a protocol change resulting in a permanent diversion from the legacy or existing distributed ledger. A hard fork may result in the creation of a new cryptocurrency on a new distributed ledger in addition to the legacy cryptocurrency on the legacy distributed ledger. Following a hard fork, transactions involving the new cryptocurrency are recorded on the new distributed ledger, and transactions involving the legacy cryptocurrency continue to be recorded on the legacy distributed ledger.

An airdrop is a means of distributing units of a cryptocurrency to the distributed ledger addresses of multiple taxpayers. A hard fork followed by an airdrop results in the distribution of units of the new cryptocurrency to addresses containing the legacy cryptocurrency. Note, however, that a hard fork is not always followed by an airdrop.

Cryptocurrency from an airdrop generally is received on the date and at the time it is recorded on the distributed ledger. However, a taxpayer may constructively receive cryptocurrency prior to the airdrop being recorded on the distributed ledger. A taxpayer does not have receipt of cryptocurrency when the airdrop is recorded on the distributed ledger if the taxpayer is not able to exercise dominion and control over the cryptocurrency.

Gross Income
If the taxpayer did not receive units of new cryptocurrency from a hard fork, the taxpayer does not have an accession to wealth and does not have gross income as a result of the hard fork.

If the taxpayer receives units of new cryptocurrency from an airdrop following a hard fork, the taxpayer received a new asset. Therefore, the taxpayer has an accession to wealth and has ordinary income in the year in which the taxpayer receives the new cryptocurrency. The taxpayer includes in gross income the fair market value of the cryptocurrency received. The taxpayer’s basis in the new cryptocurrency is the amount of income recognized.

Schedule 1, Form 1040 for 2019
A draft of the 2019 Form 1040, Schedule 1, "Additional Income and Adjustments to Income," includes a question which asks: "At any time during 2019, did you receive, sell, send, exchange or otherwise acquire any financial interest in any virtual currency?" If an individual has engaged in any virtual currency transaction in 2019, he or she must check the “Yes” box next to the question.

If the taxpayer has disposed of any virtual currency that was held as a capital asset, he or she must use Form 8949 to figure the capital gain or loss and report it on Schedule D (Form 1040 or Form 1040-SR). If the taxpayer has received any virtual currency as compensation for services, or disposed of any virtual currency that he or she held for sale to customers in a trade or business, the taxpayer must report the income as he or she would report other income of the same type.

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A district court has dismissed a lawsuit filed by four states’ against the federal government, ruling that the $10,000 state and local taxes (SALT) federal deduction cap is not unconstitutionally coercive.

In 2018, New York, Connecticut, Maryland, and New Jersey filed suit against the IRS and Treasury alleging that the SALT cap violates the federalism principles that undergird the U.S. Constitution. Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York ruled on September 30 that the SALT cap is not an unconstitutional infringement of state power.

The states’ primary concern stemmed from the claim that the introduction of the SALT cap could impair each of the states’ ability to pursue its own preferred tax policies. However, the court noted that Congress lawfully enacted the SALT cap pursuant to its broad tax powers under Article I, section 8 and the Sixteenth Amendment, and that the cap, like any federal tax provision, will affect some taxpayers more than others and, by extension, will affect some states more than others. However, the cap, like every other feature of the federal tax code, is a part of the landscape of federal law with which states make their decisions as to how they will exercise their own sovereign tax powers, according to Oetken. Because the states failed to plausibly allege that the cap, more so than any other major federal initiative, meaningfully constrains this decision-making process, the district court had no basis for concluding that the SALT cap is unconstitutionally coercive.

Background
In 2017, President Trump signed into law sweeping tax reform legislation informally known as the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97), which made several substantial amendments to the federal tax code. Among other things, the TCJA placed an upper limit of $10,000 on the amount a taxpayer may deduct from their federal tax income to offset those sums they have paid toward certain state and local taxes (the "SALT cap"). As enacted, the SALT cap is scheduled to expire at the end of 2025.

Democrats on Capitol Hill Prepare to Move SALT Cap Repeal Bill
Meanwhile, Democratic lawmakers on Capitol Hill are preparing to move a SALT cap repeal bill when Congress returns from its two-week recess. Specifically, Rep. Bill Pascrell, D-N.J. has proposed repealing the SALT cap and raising the top income tax rate from 37 percent to 39.6 percent, where it previously sat. Additionally, Pascrell recently told reporters that House Democrats will likely propose a temporary repeal of the SALT cap as a "compromise."

At this time, however, any Democratic-backed measure to repeal or scale back the SALT cap is expected to fail in the Republican-controlled Senate.

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New final regulations that address the allocation of partnership liabilities for disguised sale purposes revert back to prior regulations. Under the final regulations:

a partner’s share of a recourse liability of the partnership equals the partner’s share of the liability under the rules of Code Sec. 752 and the related regulations; and
a partner’s share of a nonrecourse liability of the partnership is determined by applying the same percentage used to determine the partner’s share of the excess nonrecourse liability under Reg. §1.752-3(a)(3) ( Reg. §1.707-5(a)(2)).

Executive Order Triggers Reversion Back to Prior Disguised Sale Rules
In October 2016, the IRS issued final and temporary regulations (707 Temporary Regulations) under which a partnership would determine all partnership liabilities for disguised sales purposes—both recourse and nonrecourse—by applying the same percentage used to determine a partner’s share of excess nonrecourse liability under Reg. §1.752-3(a)(3) ( T.D. 9788).

In April 2017, the President issued Executive Order 13789 (E.O. 13789) on reducing tax regulatory burdens. In response, the IRS identified the final and temporary regulations in T.D. 9788 as implicating some of those regulatory burdens. In turn, in 2018 Proposed Regulations, the IRS proposed to withdraw the 707 Temporary Regulations and reinstate the regulations under Reg. §1.707-5(a)(2) described above. Now, the IRS has adopted the 2018 Proposed Regulations, thereby reinstating the Prior 707 rules.

Treasury and the IRS will continue to study the merits of the approach in the 707 Temporary Regulations and other approaches, including the final regulations, to determine which results in the most appropriate treatment of liabilities in the context of disguised sales.

Effective Dates
The final regulations apply to any transaction with respect to which all transfers occur on or after October 4, 2019, the date that the 707 Temporary Regulations expire. However, partnerships and their partners may apply the final regulations to any transaction where all transfers occur on or after January 3, 2017, the applicable date of the 707 Temporary Regulations.

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The IRS has released final regulation on the election to take a loss resulting from a federally declared disaster in the year preceding the disaster. The final regulations adopt proposed regulations substantially without change.

Disaster Defined
The regulations provide definitions of:

federally declared disaster;
federally declared disaster area;
disaster loss;
disaster year; and
preceding year.

Scope and Effect of Election
The election for a disaster loss attributable to a particular disaster applies to the entire loss sustained by the taxpayer from that disaster during the disaster year.

Making or Revoking Election
A taxpayer elects to deduct a disaster loss for the preceding year on:

an original federal income tax return for the preceding year; or
an amended federal income tax return for the preceding year.

The election is made in the manner specified by guidance issued pursuant to the regulations.

A taxpayer may not to take a disaster loss in the preceding year if the taxpayer claims a deduction (as a loss, as cost of goods sold, or otherwise) for the same loss for the disaster year.

If a taxpayer has claimed a deduction for a disaster loss for the disaster year and wants to elect the loss for the preceding year, the taxpayer must file an amended federal income tax return to remove the previously deducted loss on or before the date that the taxpayer makes the election for the preceding year loss.

If a taxpayer has claimed a deduction for a disaster loss for the preceding year and wants to revoke that election, the taxpayer must file an amended federal income tax return to remove the loss for the preceding year on or before the date the taxpayer files the federal income tax return or the amended federal income tax return for the disaster year that includes the loss.

Due Dates
The due date for making the election to deduct a disaster loss in the preceding year is six months after the due date for filing the taxpayer's federal income tax return for the disaster year (determined without regard to any extension of time to file).

Subject to the final regulation requirements, a taxpayer may revoke the election on or before the date that is 90 days after the due date for making the election.

Applicability Date
The final regulations apply to elections and revocations that are made on or after the date they are published in the Federal Register.

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Proposed regulations provide guidance on the potential tax consequences of replacing the London interbank offered rates (LIBORs) with a new reference rate in contracts and agreements.

On July 27, 2017, the U.K. Financial Conduct Authority announced that all currency and term variants of the LIBORs may be phased out after 2021. On March 5, 2018, the Alternative Reference Rates Committee (ARRC) established that the Secured Overnight Financing Rate (SOFR) would replace the LIBOR within the United States.

Tax Implications
Because the LIBORs are being phased out, existing debt instruments and derivatives must be amended. Parties will either amend debt instruments or contracts to replace references to the LIBOR with the SOFR (if in the United States). Alternatively, parties may alter debt instruments or contracts to replace the LIBOR-referencing fallback rate with another fallback rate upon the cessation of the LIBOR.

The ARRC has expressed several concerns to the IRS about the potential tax consequences associated with these contract amendments:

Modification of Terms of Debt and Non-Debt Instruments. Currently, there are no regulations under Code Sec. 1001 that address when a modification of a debt instrument, derivative, or other non-debt contract creates a realization event.
Transactions and Hedges. Amending the LIBOR-referencing debt instrument or hedge may cause a deemed termination of the hedge, which could lead to undesirable tax consequences.
Character of a One-Time Payment. Parties may need to agree to a one-time payment to address any differences between the LIBOR and the new rate, and it is unclear what the character of this payment would be.
Grandfathered Agreements. Certain debt and non-debt instruments that are exempt from specific laws due to their grandfathered status may lose that status if they are modified to reflect the elimination of the LIBOR.
OID and Qualified Floating Rates. The transition from the LIBOR to the SOFR (or other alternative rates) raises potential issues under the original issue discount (OID) rules.
REMICs. The modification of the terms of the regular interest rate in a real estate mortgage investment conduit (REMIC) to deal with the elimination of the LIBOR could preclude the interest from being a regular interest.
Interest in Foreign Corporations. The elimination of the LIBOR could prevent a foreign bank from taking advantage of the election under Reg. §1.882-5(d)(5)(ii)(B).

Modification of Debt Instruments, Non-Debt Contracts
Under Proposed Reg. §1.1001-6(a), if the terms of a debt instrument or non-debt contract are modified to replace, or to provide a fallback to, an LIBOR-referencing rate and the modification does not change the fair market value, there is no gain or loss under Code Sec. 1001. These rules apply regardless of whether the modification occurs by an amendment to the terms of the instrument or agreement or by replacing the existing debt instrument or contract with a new one.

Furthermore, altering the debt instrument’s terms to replace the LIBOR with a qualified rate is not treated as a modification and does not result in a deemed exchange of the debt instrument under Reg. §1001-3. Likewise, an alteration to a debt instrument’s terms to include a qualified rate (see below) as a fallback to an LIBOR referencing rate is not treated as a modification and therefore does not result in an exchange of the debt instrument for purposes of Reg. §1.1001-3.

Qualified Rate
Proposed Reg. §1.1001-6(b) provides the rules for determining whether a rate is a qualified rate. To be a qualified rate, Proposed Reg. §1.1001-6(b)(2)(i) requires that the fair market value of the debt instrument or non-debt contract after the modifications must be substantially equivalent to the fair market value before that alteration or modification. The proposed regulations provide that the fair market value of a debt instrument or derivative may be determined by any reasonable valuation method, as long as that method is applied consistently and takes into account any one-time payment made in lieu of a spread adjustment.

The proposed regulations provide two safe harbors to address the fair market value requirements. The debt instrument or non-debt contract are considered equivalent in value after the modification if:

at the time of the modification, the historic average of the LIBOR-referencing rate is within 25 basis points of the historic average of the rate that replaces it; or
the parties to the debt instrument or non-debt contract are not related and, through bona fide, arm’s length negotiations, determine that the fair market value of modified instrument or contract is substantially equivalent to the fair market value prior to the modification.

Transactions and Hedges
Proposed Reg. §1.1001-6(c) clarifies that a taxpayer can alter the terms of a debt instrument or modify one or more of the other components of an integrated or hedged transaction to replace a rate referencing an IBOR with a qualified rate without affecting the tax treatment of either the underlying transaction or the hedge. However, the integrated or hedged transaction as modified must continue to qualify for integration.

One-Time Payment
Under Proposed Reg. §1.1001-6(d), the source and character of a one-time payment that is made in connection with a modification described above will be the same as the source and character that would otherwise apply to a payment made by a payor with respect to the debt instrument or non-debt contract that is altered or modified.

Grandfathered Agreements
Because Proposed Reg. §1.1001-6(a) prevents debt instruments and non-debt contracts from being treated as reissued following a deemed exchange under Code Sec. 1001, the debt instrument or contract would not lose its grandfathered status as a result of any modifications made in connection with the elimination of an LIBOR.

OID and Qualified Floating Rate
Proposed Reg. §1.1275-2(m) stipulates three special rules for determining the amount and accrual of OID in the case of a variable rate debt instrument that provides both for interest at an LIBOR-referencing qualified floating rate and for a fallback rate that is triggered when the LIBOR becomes unavailable or unreliable.

The LIBOR-referencing qualified floating rate and the fallback rate are treated as a single qualified floating rate for purposes of Reg. §1.1275-5.
The possibility that the relevant LIBOR will become unavailable or unreliable is treated as a remote contingency for purposes of Reg. §1.1275-2(h).
Occurrence of the event that triggers activation of the fallback rate is not treated as a change in circumstances.

REMIC Interests
Proposed Reg. §1.860G-1(e) permits an interest in a REMIC to retain its status as a regular interest despite certain alterations and contingencies.

Foreign Corporation Interests
The proposed regulations amend the election in Reg. §1.882-5(d)(5)(ii)(B) to allow a foreign corporation that is a bank to compute interest expense attributable to excess U.S.-connected liabilities using a yearly average SOFR in addition to the 30-day LIBOR. This amendment would allow the foreign corporation bank to make the election even after the LIBOR is phased out.

Applicability Date
The proposed regulations will apply to an alteration of the terms of a debt instrument or a modification to the terms of a non-debt contract that occurs on or after the date of publication of a Treasury Decision adopting those rules as final regulations in the Federal Register. A taxpayer may choose to apply the proposed regulations to alterations and modifications that occur before the regulations are finalized.

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People are buzzing about Roth Individual Retirement Accounts (IRAs). Unlike traditional IRAs, "qualified" distributions from a Roth IRA are tax-free, provided they are held for five years and are made after age 59 1/2, death or disability. You can establish a Roth IRA just as you would a traditional IRA. You can also convert assets in a traditional IRA to a Roth IRA.

Before 2010, only taxpayers with adjusted gross income of $100,000 or less were eligible to convert their traditional IRA (provided they were not married taxpayers filing separate returns). Beginning in 2010, anyone can convert a traditional IRA to a Roth IRA, regardless of income level or filing status.

Comment: While you can only contribute a maximum of $5,000 to a Roth IRA for 2010 (plus a $1,000 catch-up contribution if you are over age 50), you can convert an unlimited amount from a traditional IRA.

Conversion is treated as a taxable distribution of assets from the traditional IRA to the IRA holder, although it is not subject to the 10 percent tax on early distributions. While paying taxes on conversion is undesirable, the advantages of holding assets in a Roth IRA usually outweigh this disadvantage, especially if you will not be retiring soon. Furthermore, if you convert assets in 2010, you have the option of including them in income in 2011 and 2012 (50 percent each year) instead of 2010.

Comment: Generally, this income-splitting would be advantageous to any taxpayer who does not expect a sharp increase in income in 2011 or 2012. A wildcard factor is that the lower income tax rates that have been in effect since 2001 will expire after 2010 and could increase in 2011.

There are four ways to convert a traditional IRA to a Roth IRA:

A rollover - you receive a distribution from a traditional IRA and roll it over to a Roth IRA within 60 days;
Trustee-to-trustee transfer - you direct the trustee of the traditional IRA to transfer an amount to the trustee of a Roth IRA;
Same-trustee transfer - the trustee of the traditional IRA transfers assets to a Roth IRA maintained by the same trustee; or
Redesignation - you designate a traditional IRA as a Roth IRA, instead of opening a new Roth account.

Comment: The account holder does not have to convert all of the assets in the traditional IRA.

Another advantage of converting assets from a traditional IRA to a Roth IRA is that you can change your mind and put the assets back into the traditional IRA. This is known as a recharacterization. You have until the due date, with extensions, for the return filed for the year of conversion. Thus, if you convert assets in 2010, you have until mid-October in 2011 to undo the conversion.

This ability to recharacterize the conversion allows you to use hindsight to check whether your assets declined in value after the conversion. Since you are paying taxes on the amount converted, a decline in asset value means that you paid taxes on phantom income that no longer exists. However, if you convert assets into multiple Roth IRAs, you can choose to recharacterize the assets in a Roth IRA that decreased in value, while maintaining the conversion for a Roth IRA's assets that appreciated in value.

The use of a Roth IRA can be a savvy investment, but whether to convert assets is not an easy decision. If you would like to explore your options, please contact this office.

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Yes, but only for a limited time. In late December 2009, Congress passed the 2010 Defense Appropriations Act (2010 Defense Act). The new law temporarily extends the eligibility period for COBRA premium assistance through February 28, 2010 and the duration of the subsidy for an additional six months (up to 15 months).

Yes, but only for a limited time. In late December 2009, Congress passed the 2010 Defense Appropriations Act (2010 Defense Act). The new law temporarily extends the eligibility period for COBRA premium assistance through February 28, 2010 and the duration of the subsidy for an additional six months (up to 15 months).

Reduced premiums

Individuals who are involuntarily separated from employment between September 1, 2008 and February 28, 2010 may be able to make reduced premium payments for COBRA continuation coverage. Instead of paying the full monthly premium, assistance eligible individuals pay 35 percent of the premium and their former employers pay the remaining 65 percent of the premium. The former employer is reimbursed by a payroll tax credit.

Extension

Originally, Congress set a December 31, 2009 deadline for eligibility for COBRA premium assistance. The 2010 Defense Act extended the deadline for eligibility to February 28, 2010. The 2010 Defense Act also extended the maximum period for receiving the subsidy an additional six months (from nine to 15 months).

In some cases, an individual may have exhausted his or her nine months of COBRA premium assistance before Congress approved the extension. The 2010 Defense Act provides an extended period for the retroactive payment of the individual's 35 percent payment. To continue coverage, the assistance eligible individual must pay the 35 percent of premium costs by February 17, 2010 or, if later, 30 days after notice of the extension is provided by their plan administrator.

In other cases, an individual may have exhausted his or her nine months of COBRA premium assistance and paid 100 percent of the COBRA premium for December. Individuals who paid the full COBRA premium in December are entitled to a refund under the 2010 Defense Act.

Automatic

Individuals who qualify for COBRA premium assistance are automatically eligible to pay reduced premiums for up to six more months for a total of 15 months. The individual must continue to be eligible for the subsidy. If he or she becomes eligible for other group health coverage (such as a spouse's plan) or Medicare the individual is no longer eligible for COBRA premium assistance.

Income limits

Higher-income individuals may qualify for COBRA premium assistance but find they have to repay it. If an individual's modified adjusted gross income for the tax year in which the premium assistance is received exceeds $145,000 (or $290,000 for married couples filing a joint return), the amount of the subsidy during the tax year must be repaid. For taxpayers with adjusted gross income between $125,000 and $145,000 (or $250,000 and $290,000 for married couples filing a joint return), the amount of the premium reduction that must be repaid is reduced proportionately.

Higher-income individuals may permanently waive the right to COBRA premium assistance. However, they may not later obtain the subsidy if their adjusted gross incomes end up below the limits. Our office can help you decide which option is best.

Possible extension

Many lawmakers in Congress support extending eligibility for COBRA premium assistance beyond February 28, 2010. In fact, the House of Representatives approved a bill in December extending eligibility through June 30, 2010. However, the Senate has yet to vote on the bill. Our office will keep you posted of developments.

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The first-time homebuyer tax credit has proven to be one of the most popular tax incentives in recent years. Until recently, the credit was generally limited to "first-time homebuyers." Although the full ($8,000) is still limited to "first-time" homebuyers, "long-time" homeowners of the same principal residence may be eligible for a reduced credit of $6,500. This new provision can give a boost to younger homeowners looking to trade up, or simply move on from their current home, as well as seniors looking to downsize.

The new "new homebuyer" tax credit

The homebuyer tax credit would have expired on November 30, 2009 had Congress not extended the credit. The new credit is extended to homes purchased before (1) May 1, 2010, or (2) July 1, 2010 if the taxpayer enters into a written binding contract before May 1, 2010 to close on the home before July 1, 2010. The credit amount remains at a maximum of $8,000, or 10 percent of the home's purchase price (whichever is less). However, the new law places a cap on the home's purchase price, which cannot exceed $800,000 in order to claim the credit. In addition, a modified credit is available for "repeat" homebuyers, discussed below.

Comment. The "first-time homebuyer credit" is somewhat of a misnomer. Under the original - and now extended - credit, you did not (and still do not) technically have to be purchasing your very first home to qualify for and take the credit. A first-time homebuyer for purposes of the $8,000 credit is a taxpayer who an individual (and spouse, if married) who had no present ownership interest in a principal residence during the three-year period ending on the date the home is purchased. This means that you could have previously owned a home as long as you have not had any ownership interest in a personal residence for at least the three years prior to purchasing the home for which you are claiming the credit.

Congress raises income limits

The homebuyer tax credit is also now available to a greater segment of the home-buying population. The new law has increased the income limits that phase out the credit, allowing higher income individuals and families to qualify.Phase-out of the credit begins under the new law at $125,000 modified adjusted gross income (AGI) for single taxpayers (up from $75,000) and at $225,000 for married taxpayers filing joint returns (up from $150,000). The phaseout range itself is $20,000, thereby reducing the credit to zero for individual taxpayers with modified AGI of more than $145,000 ($245,000 for married joint filers). The credit is reduced proportionately for taxpayers with modified AGIs between these amounts.

"Long-time" homeowners qualify for reduced $6,500 credit

A reduced homebuyer tax credit may be claimed by existing homeowners who have owned and lived in their home for a long period of time. The reduced tax credit, of up to $6,500, may benefit long-time homeowners who are ready to move up or simply move on from their current home. The tax credit is equal to 10 percent of the home's purchase price up to a maximum of $6,500. Purchases of homes priced above $800,000 are not eligible for the tax credit.

To qualify for the reduced $6,500 credit, you must be a "long-time resident" as defined by the law. For purposes of the credit, a "long-time resident" is defined as a person who has owned and resided in the same home for at least five consecutive years of the eight years prior to the purchase of the new residence. Importantly, for married taxpayers, the law tests the homeownership history of both the spouses.

If you are an existing, repeat homebuyer who qualifies for the reduced credit, you do not have to purchase a home that is more expensive than your previous home to qualify for the tax credit. There is no requirement that the new principal residence be a "move up" property; it can be less expense than your former home. However it must be your new "principal residence" in order to claim the credit. Moreover, a repeat homebuyer does not need to sell or otherwise dispose of his or her current residence to qualify for the $6,500, either, as long as your new home becomes your principal residence.

Example. Bob and Edith are married and are both eligible to claim the reduced $6,500 credit for existing "long-time residents." Their modified AGI is $240,000, which results in being $15,000 over the beginning of the phaseout for married taxpayers filing jointly. They will be able to claim a partial reduced homebuyer credit in the amount of $1,650 (15,000/$20,000 = 0.75; 1.0-0.75 = 0.25. $6,500 x 0.25 = $1,625).

While the homebuyer credit can be very valuable, it is also very complex. In addition to the provisions we have described, there are special rules for repayment, new documentation requirements, a purchase price cap, and more. Please contact our office for more details about the first-time homebuyer credit.

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