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IRS announces new whistleblower guidelines

In 2006, Congress overhauled the rules that reward individuals who give the IRS information about tax evasion. The IRS recently posted guidelines for the investigation and processing of “whistleblower claims” on its web site. The guidelines explain when the IRS will pay or deny a whistleblower’s claim and reiterate that the whistleblower process is confidential.

Financial awards

There are two types of awards for whistleblowers. If the tax evasion exceeds $2 million, and a few other qualifications are met, the IRS will pay 15 percent to 30 percent of the amount collected. If the tax evasion is by an individual, his or her annual gross income must be more than $200,000. The IRS also has an award program for other whistleblowers - generally those who do not meet the dollar thresholds of $2 million in dispute or cases involving individual taxpayers with gross income of less than $200,000. The awards made through this program are less, with a maximum award of 15 percent up to $10 million. In addition, the awards are discretionary on the part of the IRS. These awards are also handled by the IRS Whistleblower Office.

The IRS explained that it takes all relevant factors, including the value of the information furnished in relation to the facts developed by the investigation of the violation, into account in determining if an award will be paid, and if so, the amount of the award. The guidance describes various scenarios when a whistleblower may receive an award.

Example. Alex identifies specific facts relating to an issue with respect to a taxpayer as well as a specific Tax Code section or specific legal theory associated with those facts. However, the IRS ultimately collects proceeds based on a different Tax Code section or different legal theory. Nevertheless, Alex will be entitled to an award based on the entirety of those collected proceeds.

Denials

The IRS will deny a whistleblower claim if the information does not result in the detection of an underpayment of taxes or the collection of proceeds. Claims are paid from collected proceeds. The IRS explained that this generally means that a payment will not be made until there is a final determination of tax liability (including taxes, penalties, interest, additions to tax, and additional amounts) owed to the IRS and these amounts have been collected by the IRS.

Confidentiality

The IRS has promised to protect the confidentiality of all whistleblowers. In some cases, however, the IRS explained that it may not be possible to pursue the investigation or examination without revealing the whistleblower’s identity. The IRS will inform the whistleblower before deciding whether to proceed in such cases.

AMT ALERT

The fate of the alternative minimum tax (AMT) for 2010 is still looming.  If nothing changes, the number of taxpayers subject to the AMT is expected to rise from 4 million in 2009 to 27 million in 2010.

The exemption amount is scheduled to decrease dramatically – from $46,000 to $33,750 for single and from $70,950 to $45,000 for married taxpayers filing jointly.  This means that if your income and deductions are exactly the same for 2010 as they were for 2009, your AMT could increase significantly and you could find yourself writing a check to the government for an additional $7000 more. 

Individuals must compute their income taxes under two systems—the regular tax system and the AMT system—and pay the higher of the two amounts. When introduced many years ago, the AMT targeted and normally only applied to high-income taxpayers who, in Congress’ opinion, benefited too much from certain tax breaks. Today, however, virtually no taxpayer can ignore the AMT. Therefore, the first step in tax planning is to assess your exposure to AMT. Tax planning for AMT is often dramatically different than planning for regular tax. In fact, it’s sometimes backwards.   

Who is at the highest risk for AMT? Many taxpayers can fall into AMT, but those who deduct a significant amount of state and local taxes or miscellaneous itemized deductions (like unreimbursed employee business expenses) or claim multiple dependents are especially vulnerable. Those who recognize a large capital gain or exercise incentive stock options during the year are also vulnerable. If you suspect AMT might be an issue, please contact us so we can plan accordingly.

To help you see where you are with respect to the AMT, look at line 45 on your 2009 Form 1040 and Form 6251 in your tax return.  At GBA we are proactive and calculate the AMT for each and every taxpayer.

 

 

July 2010 tax compliance calendar

 As an individual or business, it is your responsibility to be aware of and to meet your tax filing/reporting deadlines. This calendar summarizes important tax reporting and filing data for individuals, businesses and other taxpayers for the month of July 2010.

July 2

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 26-29.

July 8

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 30.

July 8

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 1-2.

July 9

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 3-6.

July 12

Employees who work for tips. Employees who received $20 or more in tips during June must report them to their employer using Form 4070.

July 14

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 7-9.

July 15

Monthly depositors. Monthly depositors must deposit employment taxes for payments in June.

July 16

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 10-13.

July 21

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 14-16.

July 23

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 17-20.

July 28

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 21-23.

July 30

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates July 24-27.

FAQ: Can I deduct the costs incurred doing charitable work?

 
Q. I spend 20 hours every week cooking meals and delivering them to an organization that feeds the hungry and homeless. Am I entitled to a deduction for my time and the food I pay for out of my own money?A. Generally, if you do volunteer work for a charity, you are not entitled to deduct the cost of services you perform for the charity. However, if in connection with the volunteer work you incur out-of-pocket expenses, you may be entitled to deduct some of those expenses.

Qualifying expenses

If the amounts that you pay for food and other supplies used in the preparation and packaging of the meals are not reimbursed by the charity, generally you may deduct these expenses as contributions to the charity.

In addition, if the amounts that you pay to travel by car or other means to deliver the meals are not reimbursed by the charity, and you derive no personal benefit from the travel, the expenses are deductible. Qualifying expenses include gasoline for your car and fares for taxis or public transportation.

Special mileage rate

If you drive your own vehicle to deliver the meals, you can use a special IRS mileage rate to calculate charitable contribution deductions involving use of your car. This special rate is 14 cents per mile, which is statutorily set.

Other expenses

Other out-of-pocket expenses incurred in connection with services you provide to a charity that are deductible include costs related to uniforms, travel, meals, and lodging. Sometimes, expenses incurred while serving as a charity’s delegate to a convention may be deducted.

Keep receipts

If you take a deduction for out-of-pocket expenses you incurred incident to your performance of services for a charity, it is important to have receipts to document expenses. It is also a good idea to get a written acknowledgement from the charity for the services you provide.

 

Brace yourself for a sea change in the tax law

 
A number of tax law changes are making their way through Congress, and many more on the way. These changes will affect both individual and business taxpayers alike. In 2010, it is expected that Congress will address the federal estate tax, and is currently working on small business and jobs “relief,” as well as an extension of popular, but temporary tax incentives that expired at the end of 2009. This article provides a brief overview of what taxpayers can expect this year.Individual and business tax extendersCongress continues to debate the extension of a number of tax incentives for individuals and businesses that expired at the end of 2009. The tax breaks would be extended retroactively for one year, through December 31, 2010. A number of popular energy tax incentives and charitable deductions would be extended too. Among the individual incentives that would be extended are the popular additional standard deduction for real property taxes, the state and local sales tax deduction, and the higher education tuition deduction, as well as the teacher’s classroom expense deduction.

For business taxpayers, some of the tax incentives to be extended include the research tax credit, New Markets Tax Credit, differential pay credit, and the 15-year recovery period under the Modified Accelerated Cost Recovery System (MACRS) for qualified leasehold improvements, and qualified restaurant and retail improvement property.

A host of charitable and energy tax incentives would also be extended through 2010. The charitable extenders include the ability to make a charitable IRA contribution of up to $100,000 for individuals age 70 1/2 and older, and the tax deductions for contributions of real property, food inventory, computer and book inventory to public schools, and S corporation charitable contribution deductions.

Small business tax relief/”jobs” bill

The House has twice passed a package of small business tax incentives. The bills includes three major incentives for small business: (1) a 100 percent exclusion of gain from the sale of qualified small business stock, (2) an enhanced deduction for start-up expenses, and (3) penalty relief for taxpayers that failed to disclose transactions with the potential for tax evasion. The Small Business Jobs Tax Relief Act of 2010, passed by the House in June, would increase the exclusion for qualified small business stock sold by an individual from 75 percent to 100 percent for stock acquired after March 15, 2010 and before January 1, 2012.

Increased start-up expenses. The bill increases the deduction for qualified start-up expenses from $5,000 to $20,000. It also increases to $75,000 the threshold amount by which the $20,000 deduction would be reduced.

Decreased Code Sec. 6707A penalties. The legislation would also provide for lower penalties under Code Sec. 6707A for taxpayers who fail to disclose “reportable transactions” in which they participate. This change is intended to help ameliorate the impact of the penalty on small businesses, which can currently reach a maximum of $200,000 for businesses failing to report listed transactions and $50,000 for failing to report reportable transactions. Many businesses have been assessed these penalties for engaging in transactions they did not know were tax shelters.

New limits on GRATs. To pay for the small business tax incentives, the bill places new limits on grantor retained annuity trusts (GRATs), a popular estate and gift planning vehicle. GRATs would be required to have a minimum 10-year term, carry a remainder interest with a value greater than zero, and prohibit any decreases in annuity payments during the GRAT’s term. The new limits would be imposed for transfers after the date of enactment.

3.8 percent tax Medicare tax on investment income

The health care reform package (the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010) imposes a new 3.8 percent Medicare contribution tax on the investment income of higher-income individuals. The tax will apply to the lesser of net investment income or modified adjusted gross income above $200,000 for individuals and $250,000 for joint filers and surviving spouses, and $125,000 for married couples filing joint returns.

Although the tax will not take effect until 2013, it is important for individuals who will be affected by the tax to start examining ways to lessen the impact now.   Net investment income includes interest, dividends annuities, royalties, rents, and other gross income attributable to passive activities. Gain from the sale of property not used in an active business (for example, your personal residence) and income from the investment of working capital are also treated as investment income. The tax won’t apply, however, to nontaxable income such as tax exempt interest, or to veterans’ benefits. An individual’s capital gains income will be subject to the tax. This includes gain from the sale of a principal residence, unless the gain is excluded from income.

A significant exception to the 3.8 percent Medicare tax applies for distributions from qualified plans, 401(k) plans, tax-sheltered annuities, individual retirement accounts (IRAs), and eligible 457 plans. These will not be subject to the tax.

Interplay with other tax changes. In addition to the 3.8 percent Medicare tax, taxpayers also face other tax increases taking effect in 2011. The top two marginal income tax rates for individuals will rise from 33 and 35 percent to 36 and 39.6 percent, respectively. The maximum tax rate on long-term capital gains is set to increase from 15 to 20 percent. Dividends, which are currently capped at the 15 percent long-term capital gains tax rate, will be taxed at ordinary income tax rates.

Estate tax fix

The federal estate tax does not apply to decedents dying after December 31, 2009 and before January 1, 2011. Also, beginning in 2010, the stepped up basis at death rules are replaced with modified carryover basis at death rules applicable to estates holding assets with unrealized capital gains of more than $1.3 million. In December 2009, the House passed the Permanent Estate Tax Relief Act, which would permanently extend the top federal estate tax rate of 45 percent with a $3.5 million exclusion ($7 million for married couples). The Senate, however, has failed to take up the House bill. Some action this year is expected. The estate tax will revert to a 55 percent tax rate beginning in 2011. Proposals in Congress range from setting the exemption level at $5 million for individuals and reducing the tax rate to 35 percent.

 

 

Common IRA contribution and distribution mistakes

 Individual retirement accounts (IRAs) — both traditional and Roth IRAs — are among the most popular retirement savings vehicles today. Protecting the value of your IRA (and other retirement accounts) is incredibly important. While some factors affecting the value of your retirement savings may be out of your control, there are many things within your control that can help you safeguard the wealth of those accounts and further their growth. This article addresses common mistakes regarding IRA distributions and contributions, and how to avoid them.

A recent report by the Treasury Inspector General for Tax Administration, which oversees IRS activities through investigative programs, reports that an increasing number of taxpayers are not complying with IRA contribution and distribution requirements. Mistakes include, among other things, making excess contributions that are left uncorrected or failing to take required minimum distributions from their IRAs.

Making excess contributions

Knowing the maximum amount that you can contribute to your IRA is imperative to avoid negative tax consequences. A 6-percent excise tax applies to any excess contribution made to a traditional or Roth IRA. In 2010, individuals can contribute up to $5,000 to both traditional and Roth IRAs. Individuals age 50 or older can also make “catch-up” contributions of up to $1,000 to their IRA in 2010 as well.

If you withdraw the excess contribution amount on or before the due date (including extensions) for filing your federal tax return for the year, you will not be treated as having made an excess contribution and the 6-percent excise tax will not be imposed. You must also withdraw any earnings on the contributions as well.

Not contributing enough

On the opposite end of the spectrum, you may be contributing too little to your IRA. Although your financial and personal situation will dictate how much you contribute to your IRA each year, and whether you are able to contribute the maximum amount, there are benefits to making the maximum contribution. Contributing the maximum amount means larger tax-free or tax-deferred growth opportunity for your dollars, and a higher - expectedly - account value upon retirement. Moreover, contributing more to your traditional IRA means a larger tax deduction come April 15. Thus, failing to contribute the maximum allowable amount means you may be missing out on tax deductions in addition to tax-deferred, or tax-free earnings.

Not taking your RMDs

Required minimum distributions (RMDs) are minimum amounts that a traditional IRA account owner must withdraw annually beginning with the year that he or she reaches age 70 1/2. The RMD rules also apply to 401(k) plans, Roth 401(k)s, 403(b) plans, 457(b) plans, SIMPLE IRAs, and SEP IRAs. However, Roth IRAs are not subject to RMD rules (beneficiaries of Roth IRAs must take RMDs, however).

If you fail to take a RMD, or fail to take the correct amount for the year, the IRS imposes a 50 percent penalty tax on the difference between the actual amount you withdrew and the amount that was required. This is a stiff penalty to pay. A specific formula is used to compute annual RMDs, based on your current age, the amount in your IRA as of a certain date, and your life expectancy. Generally, RMDs are calculated for each account (if more than one) by dividing the prior December 31st balance of the IRA (or other retirement account) by a life expectancy factor that the IRS publishes in Tables in IRS Publication 590, which can be found on the agency’s website.

Note. RMDs were suspended for the 2009 tax year, in order to help retirement plans hit by the economic downturn. However, individuals must begin taking RMDs again in 2010 and thereafter.

Failing to rollover IRA funds within 60-days

If you receive funds from an IRA and want to roll over the money to another, you have only 60 days to complete the rollover in order to escape paying taxes on transaction. In general, failing to complete a rollover from one IRA to another within the 60-day window has significant tax ramifications. If the funds are not rolled over within this timeframe, the amount is considered taxable income, subject to ordinary income tax rates. And, if you are younger than age 59 1/2, you will pay an additional 10 percent tax. The distribution may also have state income tax consequences as well. (Note: Rollovers from traditional IRAs to Roth IRAs are taxable, regardless of whether they are completed within 60 days). If you have the option, make a direct rollover or transfer. A direct, trustee-to-trustee transfer involves your funds being directly rolled over from one financial institution to the other, avoiding the 60-day requirement since you never directly receive the money.

Also, you can generally only make a tax-free rollover of amounts distributed to you from IRAs only once in 12-month period. As such, you can not make another rollover from the same IRA to another IRA (or from a different IRA to the same IRA) for one year without the amount being subject to tax. And, individuals age 70 1/2 or older cannot rollover any RMD amounts. Make sure that if you must take an RMD for the year, you withdraw the amount prior to rolling over the IRA. Make Roth IRA contributions after age 70 1/2

If you continue earning income after reaching age 70 1/2, you can continue contributing to your Roth IRA, on top of not having any RMD requirement. Therefore, you continue to accumulate tax-free savings. If you have earned income, and your financial and personal situation allows, consider continuing contributions to your Roth, building up tax-free money when you withdraw the funds.

Failing to name an IRA beneficiary

Don’t make the mistake of neglecting to name a beneficiary for your IRA. IRAs do not pass by will, but rather pass under the terms of an IRA Beneficiary Designation Form. If you have not named a beneficiary of your IRA, such as your spouse or child(ren), the “default” beneficiary usually is the account holder’s estate. Where there is no named beneficiary, distributions from the IRA must then generally be made as a lump sum or within five years after the owner’s death.

When you designate your child(ren) as the IRA beneficiary, the rules regarding distributions differ from those that govern IRAs held by a surviving spouse beneficiary. Non-spouse IRA beneficiaries must generally begin taking required distributions over their life expectancy or within five years after the IRA owner’s death. Although taking required distributions, the undistributed IRA assets continue to grow in a tax-deferred manner. On the other hand, a surviving spouse beneficiary may elect to treat the IRA as his or her own, or take minimum distributions as a non-spouse beneficiary would.

Distributions from inherited IRAs are taxable to the recipient as ordinary income. Generally, the income tax rate tends to be higher when an IRA is paid to the estate instead of an individual beneficiary.

Roth IRA conversions

This year may be the first time you are eligible to convert your traditional IRA to a Roth. Beginning in 2010, any individual regardless of adjusted gross income (AGI) or filing status can take advantage of a Roth IRA conversion. Prior to 2010, the ability to convert a traditional IRA to a Roth was limited to individuals with AGIs of less than $100,000. Also, married individuals filing a separate return could not convert to a Roth IRA either. If you convert in 2010, you can elect to split (and defer) the tax you will owe on the conversion and pay half in 2011 and half in 2012.

The decision to convert to a Roth IRA depends on many factors, including the financial and tax consequences of the transaction. Sometimes, it may be wiser depending on your situation to stick with your traditional IRA, especially if you will pay more tax on the conversion than in the account, or you don’t have outside funds to pay for the conversion tax. Do the math carefully and talk with your tax advisor beforehand.

IRS updates FAQs on HIRE Act; provides details affidavit requirement and issues revised Form 941

The IRS has been busy issuing guidance on the provisions of the Hiring Incentives to Restore Employment (HIRE) Act, which temporarily suspends an employer’s 6.2 percent OASDI tax paid for covered employees, and also provides a new worker tax credit. The IRS has not only recently updated its online frequently asked questions (FAQs) on claiming the payroll tax forgiveness credit, the agency also issued a revised Form 941, Employer’s Quarterly Federal Tax Return, and instructions for claiming the this payroll tax exemption, applicable to qualified new hires in 2010. Further, the IRS’s updated FAQs provide more explanations of covered employees and the affidavit requirement.

Covered employees

In general, employers cannot hire a covered employee to replace another employee. The IRS’s revised instructions for Forms W-2, Wage and Tax Statement, and W-#, Transmittal of Wage and Tax Statements, provides an exception to this rule for covered employees hired to replace employees who voluntarily separated from employment or for cause (including downsizing).

Affidavit requirements

Covered employees must certify that they have been unemployed for the 60-day period immediately before beginning work or, alternatively, that they worked fewer than 40 hours for another employer during the 60-day period. The IRS issued Form W-11, Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit, in April. Thus, employees must attest to two basic statements on the Form W-11.

The IRS’s updated FAQs explain that employers must sign the affidavit before filing an employment tax return applying payroll tax forgiveness. If an employer obtains the signed affidavit from a qualified employee after paying wages to the employee, the employer can still apply the payroll tax exemption to determine its liability on these wages. Some cases, however, may require filing a corrected return for a prior quarter.

Updated Form 941

In late May, the IRS also posted a new version of Form 941, Employers Quarterly Federal Tax Return, and instructions, for claiming the payroll tax exemption. On the newly revised Form 941, employers will claim the exemption related to wages paid after March 31 on lines 6a through 6e. Employers will claim the exemption related to wages paid between March 19 and March 31 on lines 12C through 12e.

These lines ask the employer to report the number of qualified employees first paid exempt wages or tips during the quarter, the number of qualified employees who were paid exempt wages or tips during the quarter, and the amounts of wages and tips paid to qualified employees (which are multiplied by 0.062). The amounts are then subtracted from total Social Security and Medicare tax reported on line 5d.

The instructions also provide that employers cannot claim payroll tax forgiveness and the Work Opportunity Tax Credit (WOTC) for the same employee; employers must choose.

Audits of wealthy individuals trending upward, IRS Oversight Board reports

The IRS Oversight Board recently released its 2009 annual report to Congress. The report evaluates the IRS’s performance during the 2009 fiscal year (FY), enumerates strategic challenges affecting tax administration, and provides measures the agency’s performance during FY 2009. According to the Oversight Board’s report, audits of individuals with incomes above $1 million grew 29 percent in FY 2009 compared to FY 2008. However, the number of audits of wealthy individuals represented only 2.58 percent of all individual audits in FY 2009.

Audits

Individuals. In FY 2009, the IRS undertook 28,349 audits of individuals with incomes in excess of $1 million, according to the Oversight Board. In FY 2008, the number of audits of individuals with incomes above $1 million was 21,874. The difference between FY 2008 and FY 2009 represented a 29 percent increase, the Oversight Board reported.

In total, the IRS conducted 1,099,630 audits of individuals in FY 2009. The FY 2009 number of all individual audits was down slightly (-34,307) from FY 2008.

Corporations. Audits of corporations with assets of more than $10 million also grew in FY 2009 compared to FY 2008, but at a slower rate than audits of individuals. The IRS undertook 9,406 audits of corporations with assets in excess of $10 million in FY 2009. That number rose to 9,536 audits of corporations with assets above $10 million in FY 2009. The growth rate in audits of corporations with assets of $10 million or more from FY 2008 and FY 2009 was 1.4 percent.

Tax administration

The Oversight Board warned that U.S. tax administration has two systemic weaknesses: the tax gap and archaic information technology. The tax gap, which is the difference between what taxpayers owe and what they actually pay, is estimated to be approximately $290 billion. The Board cautioned that this to be “unacceptably high.”

The Oversight Board also warned that the IRS relies on outdated technology. The agency uses obsolete automated systems for key operational and financial management functions, the Oversight Board reported. According to the Oversight Board, the IRS has made little progress in correcting these two weaknesses.

However, the Oversight Board found some changes. The IRS launched a return preparer oversight initiative earlier this year, which the Board predicted would increase compliance with the tax laws. The agency also has restructured its Customer Account Data Engine (CADE).

Customer service

The Oversight Board also added its voice to the recent chorus of criticism about poor customer service at the IRS. “For the past two years, the IRS toll-free telephone service has been characterized by constant resources and growing demand; the inevitable result of these two factors has been a decline in service levels,” the Oversight Board noted.

June 2010 tax compliance calendar

 

As an individual or business, it is your responsibility to be aware of and to meet your tax filing/reporting deadlines. This calendar summarizes important tax reporting and filing data for individuals, businesses and other taxpayers for the month of June 2010.

June 3

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates May 26-28.

June 4

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates May 29-June 1.

June 9

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 2-4.

June 10

Employees who work for tips. Employees who received $20 or more in tips during May must report them to their employer using Form 4070.

June 11

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 5-8.

June 15

Monthly depositors. Monthly depositors must deposit employment taxes for payments in May.

June 16

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 9-11.

June 18

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 12-15.

June 23

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 16-18.

June 25

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 19-22.

June 30

Employers. Semi-weekly depositors must deposit employment taxes for payroll dates June 23-25.

IRS allows exclusion for wrongful death payment, which included payment for emotional distress

The IRS recently determined, in a private letter ruling, that a survivor could exclude from income a payment received for the wrongful death of another. The payment was intended to provide compensation for wrongful death and personal injury, including a resulting claim for emotional distress.

Background

An individual was killed in an accident. The individual’s survivor successfully brought claims for wrongful death and intentional infliction of emotional distress. The survivor was awarded compensatory damages, prejudgment interest and punitive damages.

Subsequently, a government entity passed a law to provide compensation to the survivors of all the individuals who were killed in the accident. The law was intended to provide compensation for wrongful death and physical injury, including claims for emotional distress. The law voided all prior court judgments. The original payor of the damages transferred an amount to the government entity, which, in turn, would pay the survivors and all other claimants.

The survivor took a payment from the government entity. The survivor asked the IRS if the payment would be excluded from gross income under Code Sec. 104.

Exclusion

Generally, compensatory damages received by a taxpayer on account of personal physical injury or physical sickness are excluded from gross income while damages on account of emotional distress are not. Congress amended the Code Sec. 104 exclusion in the Small Business Job Protection Act of 1996. Among other things, the 1996 Small Business Act provides that the income exclusion is generally limited to amounts received on account of personal physical injuries or physical sickness. The 1996 Small Business Act further provides that even though emotional distress is not considered a physical injury or a physical sickness, damages not in excess of the amount paid for medical care for emotional distress are excluded from income.

Proposed regs

The IRS has issued proposed regs relating to the exclusion from gross income for amounts received on account of personal physical injuries or physical sickness. The proposed regs also provide that a taxpayer may exclude damages received for emotional distress attributable to a physical injury or physical sickness. Additionally, the proposed regs eliminate the requirement that injuries or sickness be based on tort or tort-type rights.

IRS analysis

The IRS determined that the survivor’s recovery, awarded by the government entity, would be for the wrongful death of the decedent. The wrongful death recovery would be received on account of a personal injury under Code Sec. 104(a)(2). Therefore, the recovery payment would be excluded from the taxpayer’s gross income.

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