Individual tax update

By David R. Baldwin, CPA; Katherine Bowles, CPA; Robert Caplan, CPA; Mary Kay Foss, CPA; Shannon Hudson, CPA; David H. Kirk, CPA/PFS; Dana McCartney, CPA; and Darren Neuschwander, CPA



  • The American Rescue Plan Act, P.L. 117-2, made significant changes to the child tax credit for 2021, including the amount of the credit and the phaseout levels for it.
  • With respect to the Paycheck Protection Program (PPP), the IRS issued guidance that allows expenses paid with 2020 PPP loans to be deducted on 2021 tax returns under certain conditions.
  • Cases involving the theft loss deduction highlight that taxpayers need to prove all the requirements for a theft loss, including that a theft occurred under the law of the state in which the theft occurred.
  • The IRS issued final regulations regarding the rules for rollovers of qualified plan loan offset (QPLO) amounts from qualified employer plans to address changes made by the law known as the Tax Cuts and Jobs Act (TCJA).
  • In June, the U.S. Supreme Court held that Texas and several other states lacked standing to sue over the constitutionality of the Sec. 5000A mandate that requires individuals to obtain minimum essential health coverage.
  • Other recent cases have dealt with early distributions from retirement accounts, passive activity losses, hobby losses, substantiation requirements related to net operating losses, and other topics.

This semiannual update surveys recent federal tax developments involving individuals. It summarizes notable cases, rulings, and guidance on a variety of topics issued during the six months ending June 2021 and discusses certain provisions of coronavirus relief legislation. The update was written by members of the AICPA Individual & Self-Employed Tax Technical Resource Panel. The items are arranged in Code section order.

As it does each year, the IRS issued updates in Rev. Procs. 2021-1, 2021-2, and 2021-3.1 The first is the revised procedure for issuing letter rulings, the second is the revised procedure for furnishing technical advice, and the third updates the list of matters on which the IRS will not issue letter rulings or determination letters. With respect to the third revenue procedure, some prior "no rule" tax sections have been deleted, and the major addition is that no rulings ordinarily will be issued on whether a taxpayer or relevant passthrough entity is engaged in a specified service trade or business for purposes of Sec. 199A.

Sec. 24: Child tax credit

In Rev. Proc. 2021-23,2 the IRS updated the child tax credit limits to reflect the changes made by the American Rescue Plan Act (ARPA).3 ARPA increased the child tax credit and provided for advance payments of the credit. Under ARPA, the credit is fully refundable for 2021, and 17-year-olds are eligible as qualifying children.

ARPA increased the amount of the credit to $3,000 per child ($3,600 for children under 6). The increased credit amount phases out for taxpayers with incomes over $150,000 for married taxpayers filing jointly, $112,500 for heads of household, and $75,000 for others, reducing the expanded portion of the credit by $50 for each $1,000 of income over those limits.

Sec. 31: Tax withheld on wages

In Vento,4 the Ninth Circuit affirmed a Tax Court decision that three sisters were not entitled to foreign tax credits for taxes paid to the U.S. Virgin Islands. They had originally reported themselves as citizens of the U.S. Virgin Islands and not the United States and did not file U.S. tax returns.

Sec. 61: Gross income defined

Taxation of fringe benefits — employer-provided vehicle: In Notice 2021-7, the IRS issued guidance to allow the use of vehicle cents-per-mile instead of automobile lease valuation rules to determine the value of an employee's personal use of employer-provided automobiles due to the COVID-19 pandemic. The effective date is March 13, 2020, and the vehicle cents-per-mile method is only allowed where the automobile's fair market value (FMV) does not exceed $50,400. Starting in 2021, employers and employees may revert to lease valuation or continue to use the vehicle cents-per-mile rule.

Cryptoasset transactions: A Chief Counsel Advice5 determined that bitcoin cash received as a result of a bitcoin hard fork did constitute receipt and therefore recognition of gross income as determined in Rev. Rul. 2019-24. The FMV of the cryptoasset received through a hard fork is included in a taxpayer's gross income at the time the taxpayer obtains dominion and control over the new cryptoasset.

Paycheck Protection Program loan; deduction of eligible expenses: The IRS established a safe harbor6 that allows taxpayers that received Paycheck Protection Plan (PPP) loans to deduct in the subsequent tax year eligible expenses. Thus, in instances where taxpayers filed their 2020 tax returns before Dec. 27, 2020 (i.e., before the enactment of the Consolidated Appropriations Act, 2021,7 which allows for the deduction of eligible expenses paid or incurred in 2020), taxpayers may now claim the eligible expenses on the tax return immediately following the year in which the eligible expenses occurred. Prior to this safe harbor, a deduction would have only been possible on amended 2020 returns or by requesting an administrative adjustment.

Taxpayers wishing to use the safe harbor must make a valid election attached to the return claiming the deductions. Section 3.04 of Rev. Proc. 2021-20 contains all information necessary for making the election.

Sec. 72: Annuities; certain proceeds of endowment and life insurance contracts

10% additional tax on early retirement SEP-IRA plan distributions: In Ball,8 the Tax Court upheld the IRS's determination that the petitioner was liable for both a tax deficiency and an accuracy-related penalty when he instructed the custodian of his SEP-IRA to make two distributions into the checking account of his single-member limited liability company (LLC). The taxpayer was under age 59½ when he completed the traditional IRA withdrawal request form, as required by the SEP-IRA custodian, and checked the box indicating that the withdrawal was an early distribution with no known exception to being taxable.

The distributions, once deposited into the LLC's checking account, were immediately wired to make two separate LLC investments in the name of the taxpayer's LLC. The taxpayer received a Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., for both distributions, reporting them as taxable and subject to distribution code 1, an early distribution with no known exception to being taxable. When completing his tax return, however, the taxpayer failed to include the income and corresponding tax.

The taxpayer argued that the distributions from the LLC's SEP-IRA to the LLC's checking account and then immediately into new investments on behalf of the LLC demonstrated the taxpayer was acting as a mere facilitator in a "conduit agency arrangement." The IRS argued, and the Tax Court agreed, the financial institution holding the SEP-IRA had no knowledge the distributions were being made and the taxpayer had control over the LLC's bank account. The taxpayer argued that the funds were deposited into the LLC's bank account and not his own checking account, therefore excluding them from his gross income. The IRS disagreed, as did the Tax Court, and found that a single-member LLC is a disregarded entity and treated as if the funds had been deposited into the taxpayer's personal checking account.

The Tax Court ruled in favor of the IRS and assessed the tax liability, the additional 10% tax on early distributions under Sec. 72(t), and the accuracy-related penalty under Secs. 6662(a) and (b)(2).

Beneficiary of disabled employee: In IRS Letter Ruling 202111009, the IRS responded to a taxpayer who was the beneficiary of a disabled employee who received a tax-free pension before death. Amounts paid representing a continuation of the employee's disability payments (not based on length of service) are excludable by the beneficiary per this ruling. However, excess benefits related to the employee's age, length of service, and contributions would be taxable.

Supervisory approval for Sec. 72(t) additional tax: The taxpayer in Grajales9 argued that the 10% "exaction" on her early pension withdrawal was not valid because a penalty requires supervisory approval under Sec. 6751(b)(1). The IRS contended that the amount is not a penalty, addition to tax, or additional amount but is in fact a tax and therefore not subject to the supervisory approval requirement. The Tax Court agreed.

A similar issue was raised in Woll.10 The taxpayers received a Form CP 2000 generated by the IRS Automated Under-Reporter Program (AUR) and contended that there was no supervisory approval. The court cited Grajales in ruling that the 10% additional tax did not require approval.

Rollover to an IRA: In Catania,11 the taxpayer retired at age 55 and rolled over his retirement benefits to an IRA. When he made a withdrawal two years later, he owed the 10% additional tax. The Sec. 72(t)(2)(A)(v) exception only applies to qualified plan distributions.

Form 4852: A unique use of Form 4852, Substitute for Form W-2, Wage and Tax Statement, is found in Harriss.12 This form is used when Forms W-2, Wage and Tax Statement, or 1099-R are not received by a taxpayer. The taxpayer used the form to indicate that W-2 income and Form 1099-R distributions were zero. In Tax Court, he pleaded the Fifth Amendment rather than giving an explanation for his actions. The court held that the distribution from the retirement account was taxable income and was subject to the Sec. 72(t) additional tax.

Withdrawal for restitution: A former CPA in Wenk13 was late in filing his 2016 return because he was imprisoned for bank fraud. As part of a plea agreement, his entire retirement account was applied as restitution. He did not report the withdrawal or associated penalty because he did not receive any funds. The Tax Court held he owed tax and the Sec. 72(t) additional tax on the withdrawal of more than $100,000.

Sec. 85: Unemployment compensation

Unemployment benefits — special rule for 2020: The IRS announced14 it would take steps, starting in May 2021, to recalculate taxes and automatically issue refunds to those taxpayers who received unemployment benefits in 2020 and filed their returns prior to March 11, 2021, when legislation was passed allowing taxpayers who earned less than $150,000 in modified adjusted gross income to exclude unemployment compensation up to $20,400 if married filing jointly and $10,200 for all other eligible taxpayers.15 The IRS indicated there is no need for these taxpayers to file an amended return and that it will automatically recalculate and refund taxes where applicable.

Sec. 108: Income from discharge of indebtedness

In an action on decision,16 the IRS announced that it will not acquiesce to the holding in Schieber.17 In that case, the Tax Court held that an interest in a defined benefit pension plan is not an asset for purposes of applying the insolvency exclusion in Sec. 108.

Sec. 162: Trade or business expenses

The Tax Court agreed with the IRS that the taxpayer in Costello18 was not "engaged in carrying on any trade or business" for her farming activity but rather was still in the initial research-and-development stage of her activity. During 2012 and 2013, the taxpayer reported overall farming-related net losses. In 2012, she planted a "test crop" of peppers but was unsuccessful, as insects destroyed the crops. During the trial, the taxpayer acknowledged that expenses incurred with growing the crops were "pre-opening, experimental R&D expenses." Additionally, during 2012, the taxpayer purchased cattle to raise on the property but was unsuccessful due to the property's lack of vegetation to feed the cattle; thus, she sold the cattle in 2013. The court concluded the expenses incurred were startup expenses, which "prohibits a current deduction."

Sec. 165: Losses

The Tax Court dealt with three cases where the taxpayers alleged a theft loss without following the requirements set forth in Sec. 165 and the law of the state where the "theft" occurred.

Investment loss: In Baum,19 the taxpayers claimed a deduction for a theft loss for an investment in stock of a closely held corporation that went bankrupt. The court disallowed the deduction because the alleged theft did not qualify as a theft under state law, and the taxpayers were unable to prove there was no reasonable prospect of recovery for the loss in the year they claimed the theft occurred.

Substantiation: Another taxpayer was not able to sustain a claimed theft loss in Torres.20 During 2016, the taxpayer's former business partner was handling finances for the taxpayer's S corporation business while the taxpayer was ill and unable to read. The taxpayer and the corporation sued the business partner in 2018 claiming misappropriation of funds, which the taxpayer alleged that he had discovered in 2017. While the lawsuit was still pending, he amended the 2016 Form 1120-S, U.S. Income Tax Return for an S Corporation, for the S corporation to include the claimed theft of over $160,000 as a theft loss deduction. The taxpayer then amended his 2016 personal return to reflect a flowthrough of the deduction.

The Tax Court disallowed the deduction, agreeing with the IRS that the taxpayer had not proved that a theft had occurred under state law. Further, the court found that he was not entitled to a deduction in 2016 because he had not proved that he had no reasonable prospect for recovery of the loss in 2016 and, consequently, he had not proved that he sustained a loss for that year.

Marital assets: The Tax Court held that a taxpayer could not deduct a theft loss related to the failure of her former spouse to transfer marital property to her. In Bruno,21 the taxpayer alleged a number of complicated facts implicating her ex-husband, his mother, and his new wife in hiding assets that were owed to her. The court indicated that the situation did not meet the definition of theft under state law (Connecticut) and she had not sustained a theft of any amount in the year claimed or in any of the other years at issue in the case.

Sec. 170: Charitable contributions and gifts

In Fakiris,22 the underlying issue was the validity of a charitable contribution deduction, but the circumstances also triggered a dispute as to how to calculate the gross-valuation-misstatement penalty. In this case, the court upheld the IRS's determination that no gift had been made upon the transfer of a theater since the LLC that managed the theater did not relinquish dominion and control over the theater and thus there was not a completed gift. Because of the determination that no gift had been made, the value of the property claimed to have been contributed was zero for the Sec. 6662 accuracy-related penalty.

In most valuation-misstatement calculations, the comparison is made between the value reported on the tax return and the actual value of the property as determined by the court. In this case, since the charitable contribution was determined to be a sham, the value of the property as determined by the court was zero for purposes of the comparison to the amount reported on the tax return. The Tax Court relied heavily on Woods, 571 U.S. 31 (2013), in which the Supreme Court concluded that the Sec. 6662(b)(3) accuracy-related penalty for valuation misstatements applies when the relevant transaction is disregarded for lack of economic substance and that, when the charitable contribution is a sham, the correct value of the contributed "property" is zero.

Sec. 172: Net operating loss deduction

In Martin,23 the Tax Court dealt with the substantiation requirements related to net operating losses (NOLs). The NOLs in question in this case arose in the years 1993-1997 and were offsetting income in 2009 and 2010. For the years in which the NOLs at issue were generated, NOLs could be carried back three years and then forward 15 years. As the court noted, the taxpayers bear the burden of substantiating NOLs by establishing their existence as well as the amount that can be carried over to the years at issue. Part of that substantiation is that a statement must be included in the tax return setting forth the amount of the NOL deduction claimed, including a detailed schedule showing how the taxpayer computed the NOL deduction.

The taxpayers provided their 1993 and 1994 tax returns to the court and, based upon the information in the returns, which did not include a detailed schedule related to the NOLs, the court determined that, at most, the taxpayers had an NOL of $782,584 in 1993 and $666,002 in 1992 or earlier. This meant that $1,448,586 of the NOL had expired in 2008 and was not available to offset income in 2009 or 2010. This left the Martins with a potential NOL of $257,125 for their 1994 tax return.

An additional part of the case considered by the court was that the Martins filed bankruptcy in 1998. Since NOLs can be used to offset income earned by a business during bankruptcy, including debt forgiveness income, the court surmised, due to the lack of evidence, that the $257,125 of loss available on the 1994 tax return was zeroed out in bankruptcy. The taxpayers provided bits and pieces, if anything, of their tax returns from 1997-2007, some of which seemed to show losses on Schedule C, Profit or Loss From Business, but with no documentation. The taxpayers argued that the NOLs should be allowed because they had survived previous IRS audits of their 2007-2008 and 2011-2012 tax returns. The court pointed out that each tax year stands on its own and that "[i]t is well settled that the [IRS's] failure to challenge a taxpayer's treatment of an item in one year is irrelevant in the determination of the proper treatment of a similar item in a different taxable year."24 Thus, given the lack of documentation, the court determined that no NOL was available for 2009 and 2010.

This case is a reminder of the importance of maintaining records beyond the usual statute of limitation when an NOL is generated in a tax year. It also is a reminder that each year, when carrying forward an NOL, the tax return should include a statement that shows the year the NOL was generated and the amount utilized in preceding years for which the NOL could be carried back (unless an election was made to only carry it forward). The statement should also report the amount utilized in any intervening year. The tracking of the NOL utilization and the expiration date is important to accurate return preparation and to meeting the burden of proof upon audit.

Sec. 183: Activities not engaged in for profit

Farming: In Whatley,25 a farming activity was deemed not to have a profit motive, with years of losses reported on Schedule F, Profit or Loss From Farming, from 2004 to 2008. The taxpayer had a successful career in the banking industry and, in 2006, founded his own bank, which operates in Alabama and Georgia. The taxpayer continued to serve as the bank's chairman, president, CEO, and largest individual shareholder, requiring him to work 70 hours a week.

In 2003, the taxpayer and his spouse purchased 156 acres that had formerly been used as a timber farm near his primary personal residence in Auburn, Ala. The taxpayer "intended" to use the property as a cattle farm "from day one." However, there were no cattle on the property until 2008, "right after he learned that the IRS was going to audit him."

Per the recommendation of his CPA, the taxpayer formed an LLC for the farming operation with him, his wife, and their children as owners. However, the title to the 156 acres was never transferred to the LLC. The only property owned by the LLC was 26 acres, purchased in 2004, contiguous to the existing 156 acres. The 26 acres came with a 2,600-square-foot home built in 2000 and a 5,000-square-foot barn. The farm operation had no employees, and all of the required farm-related maintenance activities were done by the taxpayer on the weekends, amounting to roughly 14 hours a week.

During 2004 through 2008, the farming operation reported an accumulated net loss of approximately $500,000. The operating expenses consisted mainly of noncash expenses from the depreciation of the residence and the barn on the property. The only income consisted of an annual Conservation Reserve Program payment of $2,841 for not currently harvesting the timber on the land.

Applying the nine factors provided by Regs. Sec. 1.183-2(b), the Tax Court found that the taxpayer's Schedule F business activity was not engaged in for profit. The most significant factors weighing against the taxpayer included:

  1. There was no formal business plan or separate financial books, records, or bank accounts. The taxpayer did not create a forest management plan until shortly after he was audited, four years after purchasing the property.
  2. There was no success in similar activities that had displayed a profit motive and no previous experience in running a farm operation, and the taxpayer had a consistent history of losses associated with farming activity.
  3. Personal pleasure was determined to be another primary reason for conducting this activity, as the court stated that the taxpayer "was simply spending his weekends at the farm and working on the land during the day."

Additionally, the court found that the taxpayer was not allowed a Schedule F depreciation deduction for the residence on the property because it was a "personal residence," a second home of the taxpayer.

Team roping: In Gallegos,26 the taxpayer failed to prove that his consistently unprofitable team-roping activity was engaged in for profit. The taxpayer had been successful in the insurance industry by starting a field marketing organization, where he received commissions from field agents who sold Medicare Advantage plans, earning net profits of $360,000 in 2009 and approximately $500,000 in both 2010 and 2011.

Despite his insurance success, the taxpayer had concerns about the future of this industry and decided to engage in the rodeo event referred to as "team roping" as a business in 2009. The taxpayer had been casually competing in team-roping events since 1989 and grew up on one of the largest ranches in New Mexico. From 2009 to 2011, the taxpayer reported an average net loss on Schedule C from his team roping of approximately $54,750. The taxpayer did not maintain a separate bank account for this activity, nor did he have a budget or a formal business plan. His "business plan" was simply to "get better at team roping by winning" competitions. The taxpayer also reported some of the team-roping expense as part of the separate Schedule C activity of the insurance business. The Tax Court pointed out, citing Shah,27 that taxpayers must file a separate Schedule C for each of their unrelated business activities and cannot combine two unrelated business activities "for the purpose of hiding a loss from" one of the activities.

In applying the nine factors set forth in Regs. Sec. 1.183-2, the Tax Court found that even though the taxpayer "showed considerable discipline and commitment" to his team-roping activity, the activity was not carried on in a businesslike manner because the taxpayer failed to maintain complete and accurate books and records, which made it "difficult" to "evaluate economic performance." Nor was a formal written business plan established. Referring to the taxpayer's business plan, the court found that " 'winning' team-roping competitions is more of a hope than a real business plan."

The taxpayer argued that his success in the insurance industry should meet the requirement of Regs. Sec. 1.183-2(b)(5). Unconvinced, the Tax Court responded that, while the taxpayer had shown a willingness to adapt in making his insurance business successful, he had not displayed the same willingness in his team-roping activity, stating that "his increased effort has led him only to lose money at a gallop instead of a trot."

Sec. 402: Taxability of beneficiary of employees' trust

Sec. 402(c)(3) final regulations: The IRS issued final regulations28 modifying the rules for rollovers of qualified plan loan offset (QPLO) amounts from qualified employer plans to address changes made by the law known as the Tax Cuts and Jobs Act (TCJA).29 The TCJA amended Sec. 402(c) to provide an extended rollover deadline for QPLO amounts. The amount of employee loans under Sec. 72(p) that are offset against retirement benefits of a terminating employee can be contributed to an IRA or new employer qualified plan by the extended due date of the employee's return for the year of the offset. The extended time period also applies to loans offset at the termination of a current employer's qualified plan.

Just as with the proposed regulations, the final regulations provide Q&As regarding the provision and make it clear that loan defaults during employment do not qualify for this relief. The regulations apply to QPLO amounts treated as distributed on or after Jan. 1, 2021. However, as with the proposed regulations, taxpayers may apply the new regulations with respect to QPLO amounts treated as distributed on or after Aug. 20, 2020.

Sec. 408: Individual retirement accounts

In Clark,30 the Fifth Circuit upheld a federal district court ruling in Texas that an IRA could be garnished. The taxpayer contended that garnishment was improper under a law safeguarding "salary, wages, or other income" needed to comply with an order for child support. The court did a lengthy analysis of the meaning of "other income" and determined that the phrase only applies to money akin to salary and wages — meaning amounts received directly for labor such as "bonuses, tips, commissions, and fees" — and thus did not apply to money in a retirement account.

Sec. 461: Excess business losses

ARPA extended the Sec. 461(l) noncorporate loss limitation provision through tax years beginning before Jan. 1, 2027. The version included in the TCJA only covered tax years beginning before Jan. 1, 2026.

Sec. 469: Passive activity losses

It is common for CPAs to have clients who are successful professionals with a full-time career and who also engage in other entrepreneurial pursuits. When those pursuits are loss-generating businesses, the passive activity loss rules of Sec. 469 can often prevent them from getting a tax benefit in the current year of the loss. However, if certain facts and circumstances are met, the current-year loss may be deductible.

In Padda,31 for the years in question (2010-2012), a taxpayer and his wife worked full time as physicians and owned and operated a pain management clinic in St. Louis. During 2008-2012 they also opened five restaurants and a brewery in the St. Louis area with a 50% partner, with each restaurant and the brewery operating in a separate LLC. For the years 2010-2012, the taxpayers deducted on their Form 1040, U.S. Individual Income Tax Return, nonpassive losses totaling more than $3 million from these businesses. The IRS issued a notice of deficiency in 2016, asserting that these losses were passive under Sec. 469 and nondeductible in the years under examination.

The taxpayers did not have the required contemporaneous substantiation for their participation in these businesses, although they did have some records showing trips and time at the various locations. However, the taxpayers' counsel did get sworn testimony of 12 witnesses who supported the taxpayers' statements about being involved in the construction and operation on a daily basis over the years. The court found these witnesses credible and accepted the testimony.

Business losses can be deducted as nonpassive by establishing material participation in each year. There are seven tests in Temp. Regs. Sec. 1.469-5T(a), of which only one needs to be met. The fourth test, at paragraph (a)(4), is the "significant participation activity" test. A significant participation activity is a trade or business activity in which the individual participates for more than 100 hours during the year. The test is met if the person's aggregate participation in all significant participation activities during such year exceeds 500 hours.

For each of their nonmedical business activities for 2010-2012, the taxpayers' hours exceeded the 100-hour threshold required for an activity to be a significant participation activity. As each year the taxpayers had at least six of these at 100 hours, they exceeded the 500-hour threshold required by Temp. Regs. Sec. 1.469-5T(a)(4). The Tax Court therefore rejected the IRS's argument the restaurants and the brewery were passive activities and held that the losses from them were currently deductible.

Sec. 5000A: Requirement to maintain minimum essential coverage

Constitutionality of the individual mandate: In California v. Texas,32 the U.S. Supreme Court held that several states and other plaintiffs that had asked the federal courts to declare unconstitutional the Sec. 5000A individual mandate in the Patient Protection and Affordable Care Act (PPACA)33 did not have standing to sue because they could not show that they had suffered or would suffer an injury that was fairly traceable to the government's enforcement of Sec. 5000A. Because it held that the plaintiffs did not have standing and dismissed the case, the Court did not address the constitutionality of Sec. 5000A's mandate or the plaintiffs' argument that Sec. 5000A is not severable from the rest of PPACA.

Dishargeability in bankruptcy: In Szczyporski,34 the taxpayers were in a Chapter 13 bankruptcy proceeding. The plaintiffs argued that their pre-2019 shared-responsibility payment under Sec. 5000A was a penalty rather than a tax and thus not subject to priority under Section 507(a)(8) of the Bankruptcy Code. The court held, based on the Supreme Court's decision inNational Federation of Independent Business v. Sebelius,35 that the shared-responsibility payment was properly classified as a tax on income that was subject to priority.

In Juntoff,36 a bankruptcy case with similar facts, the bankruptcy court, noting that it disagreed with the decision in Szczyporski, held that the shared-responsibility payment was not an income tax because it was not measured on income or gross receipts. It further held that the shared-responsibility payment was not an excise tax because failing to purchase minimum essential coverage was not a transaction, and thus the payment was not a tax on a transaction. Accordingly, the court held that the shared-responsibility payment is not a tax entitled to priority treatment under Section 507(a)(8) of the Bankruptcy Code.


1Also revised were Rev. Procs. 2020-4, 2020-5, and 2020-7 for related topics.

2Revising Rev. Procs. 2020-45 and 2020-36.

3American Rescue Plan Act (ARPA), P.L. 117-2.

4Vento, 836 Fed. Appx. 607 (9th Cir. 2021).

5CCA 202114020 (4/9/2021).

6Rev. Proc. 2021-20

7Consolidated Appropriations Act, 2021, P.L. 116-260.

8Ball, T.C. Memo. 2020-152.

9Grajales, 156 T.C. No. 3 (2021).

10Woll, No. 7024-20 (Tax Ct. 4/29/21) (bench op.). 

11Catania, T.C. Memo. 2021-33.

12Harriss, T.C. Memo. 2021-31.

13Wenk, T.C. Summ. 2021-6.


15ARPA §9042.

16AOD 2021-01, 2021-15 I.R.B. 985.

17Schieber, T.C. Memo. 2017-32.

18Costello, T.C. Memo. 2021-9.

19Baum, T.C. Memo. 2021-46.

20Torres, T.C. Memo. 2021-66.

21Bruno, T.C. Memo. 2020-156.

22Fakiris, T.C. Memo. 2020-157.

23Martin, T.C. Memo. 2021-35.

24Little, 106 F.3d 1445 (9th Cir. 1997).

25Whatley, T.C. Memo. 2021-11.

26Gallegos, T.C. Memo. 2021-25.

27Shah, T.C. Memo. 2015-31.

28T.D. 9937.

29P.L. 115-97.

30Clark, 990 F.3d 404 (5th Cir. 2021). 

31Padda, T.C. Memo. 2020-154.

32California v. Texas, No. 19-840 (U.S. 6/17/21).

33Patient Protection and Affordable Care Act, P.L. 111-148.

34In re Szczyporski, No. 2:20-cv-03133 (E.D. Pa. 3/31/21), aff'g 617 B.R. 529 (Bankr. E.D. Pa. 6/23/20).

35National Federation of Independent Business v. Sebelius567 U.S. 519 (2012).

36In re Juntoff, No. 20-13035 (Bankr. N.D. Ohio 4/15/21).



David R. Baldwin, CPA, is a partner with Baldwin & Baldwin PLLC in Phoenix. Katherine Bowles, CPA, is a tax senior manager at Deloitte & Touche LLP in Costa Mesa, Calif. Robert Caplan is a CPA at Caplan & Wong CPAs LLC in San Mateo, Calif. Mary Kay Foss is a CPA in Walnut Creek, Calif. Shannon Hudson, CPA,MST, is a founding partner of Altair Group PLLC in Bedford, N.H. David H. Kirk, CPA/PFS, is a partner with Ernst & Young in Washington, D.C. Dana McCartney, CPA, is a partner with Maxwell Locke & Ritter LLP in Austin, Texas. Darren Neuschwander, CPA, is a managing member with Green, Neuschwander & Manning LLC, a virtual CPA firm with members across the country. Mr. Baldwin is the chair, Mr. Neuschwander is the vice chair, and the other authors are members of the AICPA Individual & Self-Employed Tax Technical Resource Panel. For more information about this article, contact


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