Executive order directs Treasury to review IRS regulations

By Alistair M. Nevius, J.D.

Editor: Sally P. Schreiber, J.D.

President Donald Trump signed an executive order on April 21 directing the Treasury Department to review "significant" regulations that were issued in 2016 and 2017 to determine if the regulations cost too much, are too complex, or exceed the IRS's statutory authority (Presidential Executive Order on Identifying and Reducing Tax Regulatory Burdens (April 21, 2017)).

Speaking at the signing ceremony, the president described the executive order as beginning "the process of tax simplification." The executive order does not define "significant" but does specify that any earlier determination under Executive Order 12866 (Sept. 30, 1993) of whether a tax regulation is significant will not be controlling.

The Treasury secretary is directed to produce an interim report within 60 days that identifies all Treasury regulations issued on or after Jan. 1, 2016, that "impose an undue financial burden on" taxpayers, "add undue complexity to the Federal tax laws," or "exceed the statutory authority of the Internal Revenue Service." Within 150 days, the Treasury secretary is directed to submit to the president recommendations to "mitigate the burden imposed by regulations identified in the interim report."

The Treasury secretary and the director of the Office of Management and Budget are also told to review and reconsider the current system under which many Treasury regulations are exempt from the regulatory review process set forth in Executive Order 12866.

Various regulations proposed and/or finalized last year may be subject to the review, including regulations proposed in August that would prevent taxpayers from taking certain estate valuation discounts under Sec. 2704 (REG-163113-02). The controversial Sec. 385 regulations (T.D. 9790), implementing rules that would recharacterize certain transactions between related parties that are ostensibly debt as equity, curbing the practice of "earnings stripping," may also come under review.

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