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SECTION 1. PURPOSE
Sections 1.6049-4(b)(5) and 1.6049-8 of the Income Tax Regulations, as revised by TD 9584, require the reporting of certain deposit interest paid to nonresident alien individuals on or after January 1, 2013. The purpose of this revenue procedure is to list, in Section 3, the countries with which the United States has in effect an income tax or other convention or bilateral agreement relating to the exchange of information within the meaning of section 6103(k)(4) pursuant to which the United States agrees to provide, as well as receive, information and under which the competent authority is the Secretary of the Treasury or his delegate, as described in §1.6049-8(a). As discussed in the preamble to the regulations, even when such an agreement exists, the Internal Revenue Service (IRS) is not compelled to exchange information, including information collected pursuant to the regulations, if there is concern regarding the use of the information or other factors exist that would make exchange inappropriate. This revenue procedure also identifies in Section 4 the countries with which the Treasury Department and the IRS have determined that it is appropriate to have an automatic exchange relationship with respect to the information collected under the regulations. This revenue procedure will be updated as appropriate.
SECTION 2. BACKGROUND
The regulations provide that in the case of reportable interest aggregating $10 or more paid to a nonresident alien individual (as defined in section 7701(b)(1)(B) of the Internal Revenue Code), the payor shall make an information return on Form 1042-S for the calendar year in which the interest is paid. Reportable interest is interest described in section 871(i)(2)(A) that relates to a deposit maintained at an office within the United States, and that is paid to a nonresident alien individual who is a resident of a country identified, in an applicable revenue procedure (see §601.601(d)(2) of this chapter) as of December 31 prior to the calendar year in which the interest is paid, as a country with which the United States has in effect an income tax or other convention or bilateral agreement relating to the exchange of information within the meaning of section 6103(k)(4) pursuant to which United States agrees to provide, as well as receive, information and under which the competent authority is the Secretary of the Treasury or his delegate. This revenue procedure constitutes the revenue procedure referenced in§1.6049-8(a) and will be updated by subsequent revenue procedures as appropriate.
SECTION 3. COUNTRIES OF RESIDENCE WITH RESPECT TO WHICH THE REPORTING REQUIREMENT APPLIES
The following are countries with which the United States has in effect an income tax or other convention or bilateral agreement relating to the exchange of tax information within the meaning of section 6103(k)(4) pursuant to which the United States agrees to provide, as well as receive, information and under which the competent authority is the Secretary of the Treasury or his delegate:
Antigua & Barbuda
British Virgin Islands
Isle of Man
Netherlands island territories: Bonaire, Curacao, Saba, St. Eustatius and St. Maarten (Dutch part)
Trinidad and Tobago
SECTION 4. COUNTRIES WITH WHICH TREASURY AND THE IRS HAVE DETERMINED THAT AUTOMATIC EXCHANGE OF DEPOSIT INTEREST INFORMATION IS APPROPRIATE
The following list identifies the countries with which the automatic exchange of the information collected under §§1.6049-4(b)(5) and 1.6049-8 has been determined by the Treasury Department and the IRS to be appropriate:
SECTION 5. EFFECTIVE DATE
This revenue procedure is effective for interest paid on or after January 1, 2013.
SECTION 6. DRAFTING INFORMATION
The principal author of this revenue procedure is Kathryn T. Holman of the Office of Chief Counsel International (International). For further information regarding this revenue procedure contact Kathryn T. Holman on (202) 622-3840 (not a toll free call).
KROUPA, Judge: This collection review matter is before the Court on the parties' cross-motions for summary judgment filed pursuant to Rule 121(a). 1 [*2] Petitioners' Federal tax troubles stem from the criminal conduct of their former bookkeeper. Petitioners submitted an offer-in-compromise (OIC) of $10,000 2 to resolve deficiencies of $69,309 plus interest on the grounds that the OIC promoted effective tax administration (ETA OIC). Respondent rejected the ETA OIC and issued a determination notice sustaining a final notice of intent to levy (proposed levy action).See sec. 6330(d)(1).
Respondent contends that he acted within his discretion when he rejected the ETA OIC. Petitioners contend that respondent was obligated to accept the ETA OIC as a matter of law. Petitioners alternatively contend that we should remand the matter because respondent failed to adequately consider the ETA OIC on public policy and equity grounds. We conclude that respondent has yet to adequately consider the ETA OIC on those grounds. We will therefore deny the cross-motions for summary judgment without prejudice and remand the matter for respondent to consider the ETA OIC on public policy and equity grounds.
The Commissioner may determine that an OIC would promote effective tax administration when collection in full would create economic hardship. See sec. 301.7122-1(b)(3)(i), (iii), Proced. & Admin. Regs. If collection would not cause economic hardship, the Commissioner may still compromise a tax liability to promote effective tax administration when the taxpayer identifies compelling public policy or equity considerations. See sec. 301.7122-1(b)(3)(ii), Proced. & Admin. Regs.
Petitioners do not challenge the liabilities or their ability to satisfy them. Respondent determined, and petitioners acknowledge, that the ETA OIC did not meet the economic hardship standard.See sec. 301.6343-1, Proced. & Admin. Regs. Thus, the cross-motions focus on the rejection of the ETA OIC under only public policy and equity considerations. See sec. 301.7122-1(b)(3)(ii), Proced. & Admin. Regs.
[*10] The Commissioner will accept an OIC for public policy or equity reasons only if the taxpayer demonstrates that “exceptional circumstances” exist and meets three requirements. Sec. 301.7122-1(b)(3)(ii), (c)(3)(ii), Proced. & Admin. Regs.; Internal Revenue Manual (IRM) pt. 22.214.171.124.2(4) (Sept. 23, 2008). First, the taxpayer must have remained in compliance since incurring the liability and must not have an overall compliance history that weighs against compromise. IRM pt. 126.96.36.199.2(4). Second, the taxpayer must also show he or she acted reasonably and responsibly in incurring the liability. Id. Third, the Commissioner must also determine that other taxpayers would view the compromise as fair and equitable. Id. The Commissioner must base his determination on all facts and circumstances. Sec. 301.7122-1(c)(1), Proced. & Admin. Regs.
b. Petitioners' Motion for Summary Judgment
We now turn to petitioners' arguments in support of their summary judgment motion. First, petitioners claim that they satisfied the requirements as a matter of law for respondent to accept the ETA OIC. See IRM pt. 188.8.131.52.2. We disagree. It is undeniable that Ms. Sanak perpetrated a fraud against petitioners. The Commissioner maintains, however, wide discretion when evaluating an OIC and determining whether a taxpayer demonstrated exceptional circumstances. The record does not establish as a matter of law that respondent was obligated to accept the ETA OIC.
[*13] Next, petitioners argue that respondent abused his discretion when the SO rejected the ETA OIC without forwarding it to respondent's NEH-ETA group. 5 See id. pt. 184.108.40.206.2(1). Again, we disagree. The Appeals officer maintains discretion to accept an OIC that promotes effective tax administration and forward only those OICs to the NEH-ETA group. Id. The IRM does not require the Appeals officer to forward every OIC based on public policy or equity grounds to the NEH-ETA group. Thus, the Appeals officer could have rejected the ETA OIC without forwarding it to the NEH-ETA group. See id. pt. 220.127.116.11.1 (Jan. 6, 2009).
Last, petitioners contend that the matter should be remanded for further consideration because respondent did not adequately consider the ETA OIC. We agree. Notwithstanding respondent's wide discretion, he still must review the issues petitioners raised during the hearing. The undeveloped record demonstrates that respondent has not fully considered the ETA OIC as required. The record does not allow for meaningful review. See Hoyle v. Commissioner, 131 T.C. 197, 205 (2008). Thus, we will deny the cross-motions for summary judgment without prejudice and remand the matter for further consideration.
[*14] We have considered all arguments made in reaching our decision, and, to the extent not mentioned, we conclude that they are moot, irrelevant, or without merit.
To reflect the foregoing,
An appropriate order will be issued.
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224
SMALL BUSINESS/SELF-EMPLOYED DIVISION
February 10, 2014
Control Number: SBSE-05-0214-0007
Expiration: February 10, 2015
Impacted: IRM 5.11.1
MEMORANDUM FOR DIRECTORS, FIELD COLLECTION AREA OPERATIONS DIRECTOR, ADVISORY AND INSOLVENCY
FROM: Dretha Barham /s/ Dretha Barham
Director, Collection Policy
SUBJECT: Interim Guidance Memorandum for Federal Contractor Levies Issued by Field Collection
The purpose of this memorandum is to provide guidance for Field Collection revenue officers about federal contractor levies (referred to as FEDCON levies) and related Collection Due Process (CDP) issues. Please ensure this information is distributed to all affected employees within your organization.
The Small Business Jobs Act of 2010 amended IRC section 6330(f) and (h), to permit the IRS to issue any levy on a taxpayer prior to providing them with their Collection Due Process (CDP) notice and hearing if the taxpayer is a federal contractor. In addition, FEDCON levies may be served during a timely requested pre- or post-levy CDP hearing or judicial review of such hearing to collect liabilities for all outstanding balance due periods including periods that are the subject of the hearing.
Federal contractors are any person or entity who currently has a contract with the federal government to sell or lease property, goods or services. This does not include a taxpayer who was in the past a federal contractor but currently is not involved in any contractual relationship with the federal government. A contract is a mutually binding legal relationship obligating a person or entity to furnish property, goods, or services and the federal executive agency to pay for those property, goods, or services. Attached are guidelines for FEDCON levy and CDP issues for status 26 cases.
Field Collection (FC) revenue officers may begin to issue FEDCON levies in ICS on the issuance date of this memorandum to collect any IMF or BMF liability, for which the IRC 6331(d), Notice of Intent to Levy (CP 504 notice) period has expired, if the taxpayer is a federal contractor.
See the following attachments for additional information on Federal Contractor Levies issued by Field Collection:
IRM 5.11.1 and 5.7.9 will be updated to incorporate these guidelines. If you have any questions, please contact me, or a member of your staff may contact Kathleen Morton, Senior Program Analyst or James Maslanka, Senior Program Analyst. Territory personnel should direct any questions, through their management staff, to the appropriate Area contact.
cc: Director, Enterprise Collection Strategy
Director, Field Collection
Attachment 1, Guidance to be included in IRM 5.7.9, Federal Contractors
Decision Point: How to Recognize a Federal Contractor for FEDCON Levy Purposes:
If there is an unreversed TC 971 AC 647, also known as a Federal Contractor Indicator (FCI), on the taxpayer's Master File (MF) record, and the taxpayer has a current federal contract consider the taxpayer a federal contractor. See IRM 18.104.22.168.1, Federal Contractor Indicator (FCI). Often, this indicator is systemically input based on a Form 8596, Information Return for Federal Contracts , filed with the IRS. The indicator may also be manually input. If you determine during a case investigation that a taxpayer is a federal contractor and has been awarded a contract, request input of the TC 971 AC 647.
Conditions, which support a RO finding that a taxpayer is a federal contractor subject to FEDCON levy, include:
Manual Input of TC 971 AC 647 (FCI):
Revenue officers should request input of TC 971 AC 647 (FCI) if the case investigation reflects that a taxpayer is currently in a contractual relationship with the federal government and:
Exception: TC 971 AC 647 should not be input for Medicare providers/suppliers. This is because these providers/suppliers are not federal contractors under IRC section 6330.
Use the Form 4844 template in ICS to request input of the FCI. The input requires an entry in the field for “contract end date.” If the contract end date is known, request input of that date. If the contract end date is not known, select a date 1 year from the input request date. Conduct further research to ascertain the correct end date.
Note: There is no requirement that an unreversed TC 971 AC 647 be present on an account before a FEDCON levy is issued but the taxpayer must currently be a federal contractor when the levy is initiated. Request input prior to issuing levy.
Reversing the TC 971 AC 647 :
A systemic process posts reversals of the FCI to the Master File once a year for BMF accounts (January) and twice a year for IMF accounts (January and June) based on the expiration of the contract end date. TC 972 AC 647 is posted when the FCI indicator is reversed. Reversals may also be manually input at any time by requesting input of TC 972 AC 647.
A manual reversal would be appropriate if you determine that the taxpayer federal contract has been completed or the end date has expired. For example:
Federal Payment Levy Program (FPLP) Considerations/FPLP Block:
FPLP incorporated the post-levy CDP FEDCON levy process starting in January 2012. See IRM 22.214.171.124.3.4(4), Levy Service Process , for more information about those cases. FPLP systemically identifies accounts with unreversed FCI annotations, including those accounts in stats 22, 24 and 26. This automated levy program may issue FEDCON levies on cases that are in ACS, the Queue and in RO inventories.
Generally it may be more effective to allow FPLP to levy the federal payment source under the provisions of IRC 6331(h)(3) rather than using a paper levy under the provisions of IRC 6331(a) because, in federal contractor cases, levies under IRC 6331(a) are not likely to be of continuing effect. FPLP would be the more effective method since IRC section 6331(h)(3) allows for continuous levy of up to one hundred percent (100%) of any specified payment due to a vendor of property, goods or services sold or leased to the Federal government
Even if FPLP remains in place, consider using a paper FEDCON levy to reach other sources.
If you contemplate using the FPLP block see IRM 126.96.36.199, Releasing Levies , for guidance about when levy release is appropriate. Document the ICS case history with the reasons when an FPLP block is requested. Current procedures require GM approval of FPLP block requests. See IRM 188.8.131.52.6(1 ) Blocking or Releasing FPLP Levy.
Collection Statute Considerations:
When taxpayers file a timely request for CDP hearing, the collection statute is suspended on the periods that are the subject of the CDP even if FEDCON levy action continues for those periods.
Attachment 2, Guidance to be included in IRM 5.11.1, Background, Pre-Levy Actions, Restrictions on Levy & Post-Levy Actions
Post-Levy Action - Federal Contractor Levy
(1) This section contains guidance on post-levy actions for Stat 26 federal contractor levy cases in Field Collection.
Levy Authority Amended
The Small Business Jobs Act of 2010 (SBJA) section 2104, amended IRC section 6330(f) and (h)(2) to allow the collection due process (CDP) notice and hearing to occur post-levy with respect to “federal contractor levies.” This term is defined in section 6330(h)(2) as “…any levy if the person whose property is subject to levy is a Federal contractor.”
Federal Contractor Levy
(1) IRC section 6330(h)(2) describes a federal contractor (FEDCON) Levy, as any levy if the person whose property is subject to levy is a Federal contractor. When a FEDCON levy is served, the taxpayer will be given post-levy CDP rights. The taxpayer may seek Tax Court judicial review of the determination resulting from the post-levy hearing.
(2) Federal contractors are any person or entity who currently has a contract with the federal government to sell or lease property, goods or services. This does not include a taxpayer who was in the past a federal contractor but currently is not involved in any contractual relationship with the federal government. A contract is a mutually binding legal relationship obligating the person or entity to furnish property, goods, or services and the federal executive agency to pay for those property, goods, or services.
(3) Our computer systems identify some federal contractor cases on the Individual Master File (IMF) and the Business Master File (BMF). Indicators that a person or entity is a federal contractor may include the following:
Note: Revenue officers can also identify federal contractor cases. See Attachment 1, Identification and General Instructions for FEDCON Levy. This information will be included in IRM 5.7.9.
Note: The TC 971 AC 062 DLN positions 11 and 12 are also designated with a ‘03’ in the payment position for Medicare payments, and positions 7, 8 &9 will show the federal agency code of ‘0306’ for HHS Medicare match, which are not FEDCON eligible.
(4) Only the federal contractor may be listed on the FEDCON levy. For federal payments other than Social Security or RRB benefit payments, a FEDCON levy may be issued to any payment source on all BMF tax modules and IMF tax modules if the entity is identified as a Federal contractor with an unreversed TC 971 AC 647 posted on the entity. For BMF tax modules do not include or list the general partners and members of a LLC on the FEDCON levy. For IMF tax modules only include the spouse identified as the federal contractor on filing status 2, married filing joint modules.
(5) A FEDCON levy may have previously been issued by FPLP. A TC 971 AC 677 will post on the module with the literals “SAL, OTH” displayed in the Miscellaneous Field. This will generate a post-levy CDP notice CP 90C (or 297C) and post a TC 971 AC 069. The taxpayer is provided their CDP appeal rights after the levy. See IRM 184.108.40.206.3.3, FPLP Notice Process (TC 971 AC 069 or AC 169).
(6) The FEDCON (TC 971 AC 677) levy processes occur after the expiration of the 30-day notice required by IRC 6331(d). The issuance of the CP 504 meets the 30-day pre-levy requirement of IRC 6331(d)
Issuing Notice of Intent to Levy and Notice of Your Right to a Hearing in Field Collection FEDCON Case
(1) When warranted, the Service may exercise its discretion to issue a pre-levy CDP notice on modules eligible for FEDCON levy based upon the unique case factors.
Examples of unique case factors:
Note: The federal contractor exception in IRC 6330(f) applies to a FEDCON levy. Similar to a DETL levy, a FEDCON levy can be served during a timely requested pre or post-levy CDP hearing or judicial review of such hearing to collect tax liabilities (FEDCON tax periods) subject to the hearing. Prior to levying, you are required to determine if Appeals or Counsel has information that prohibits levy (OIC, IA etc.) or may affect the decision to levy. Follow the guidance in IRM 220.127.116.11.15(7) for contacting Appeals or Counsel. FEDCON levies may be issued for any levy source, not just federal payments.
(2) If the tax period meets the criteria for issuing a FEDCON levy and levy action is determined to be appropriate:
Note: This refers to the CP 504 notice or the “Status 58” notice. If the CP 504 notice was not issued, issue the pre-levy CDP notice, L1058. This meets the IRC 6331(d) and IRC 6330 requirement. FEDCON levy can only be issued 30 days after issuance of the L1058 per IRC 6331(d).
Note: When there is no TC 971 AC 069 on the module, ICS will block revenue officer issuance of the FEDCON unless the revenue officer answers yes when ICS prompts with the following: “Final Notice Delivery Date is not 30 days prior to levy. Is this a FEDCON levy? (Yes or No)?”
(3) Include Letter 1058-F, Post Levy Federal Contractor Collection Due Process with the taxpayer's copy of a FEDCON levy for post-levy CDP notices.
Caution: If the taxpayer was issued a pre-levy CDP notice (L1058) for the FEDCON tax period(s) being levied, do not issue a post-levy CDP notice (L1058-F).
(4) Both the post-levy or pre-levy CDP notice must be:
Note: Use registered mail only if the taxpayer is outside the United States. There is no international certified mail.
Note: Where L1058-F has been correctly sent to the taxpayer's last known address and another address is subsequently found, do not send an additional L1058-F, relating to the same tax liability, to the new address.
Note: If L1058-F is mistakenly sent to an address other than the last known address, immediately send a new L1058-F to the correct last known address.
(5) Include a copy of the levy, Publication 594, Publication 1660 and Form 12153 with the L1058-F.
(6) If the L1058-F is issued more than 10-days after issuing the FEDCON, document the reason in the ICS history.
(7) FEDCON post-levy hearing requests are processed similarly to other hearing requests. Refer to IRM 5.1.9 , Collection Appeal Rights , for guidance in processing hearing requests.
IRS Small Business and Self Employed (SB/SE) Division Memorandum: Interim Guidance Memorandum for Federal Contractor Levies Issued by Field Collection (SBSE-05-0214-0007)
Government Ruling: ADVANCE RELEASE Documents, IRS Small Business and Self Employed (SB/SE) Division Memorandum: Interim Guidance Memorandum for Federal Contractor Levies Issued by Field Collection (SBSE-05-0214-0007), (Feb. 18, 2014)
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