Prof. William H. Byrnes

Robert Bloink, J.D., LL.M.

Biden’s Tax Proposals: Two Surprises for Clients Impacting Last Year and 2021 

President Biden’s tax proposals contain two major tax surprises. First, Biden’s tax plans would make any capital gains tax hike retroactive to April 28, 2020. That means clients who have engaged in tax planning strategies to avoid higher rates might wind up subject to the higher rates regardless if this provision makes its way into the final proposal. Second, not only would the stepped-up basis rules be repealed, but taxpayers who inherit property would be required to recognize gain at the time of death—even if the individual doesn’t immediately sell the inherited property. In other words, the property could be immediately subject to both the estate tax and income or capital gains tax. Life insurance proceeds that will remain tax-free under the current proposals will be more valuable than ever in order to cover the tax payments. Click here to get a more in-depth expert analysis of the latest tax proposals. Read More Look in your Tax Facts Online app for our continuing analysis of the impact on your clients from proposed and enacted tax law changes of 2021, especially in the forthcoming reconciliation bill.

Biden’s Tax Proposals: The Biden Administration released its 2021 ‘Green Book’ of legislative tax proposals for Congress to consider.[1] The proposals as published include the following most salient items for clients:

• Raise the corporate income tax rate from 21 to 28 percent effective for 2022.
• Impose a 15 percent minimum tax on book earnings of large corporations.
• Determining global minimum tax inclusion and residual U.S. tax liability on a jurisdiction-by-jurisdiction basis would be a stronger deterrent to profit.
• Disallow deductions attributable to exempt income, and limit inversions.
• Repeal the deduction for foreign-derived intangible income (FDII).
• Replace the base erosion anti-abuse tax (BEAT) with the stopping harmful inversions and ending low-tax developments (SHIELD) rule.
• Limit foreign tax credits from sales of hybrid entities.
• Restrict deductions of excessive interest of members of financial reporting groups for disproportionate borrowing in the United States.
• Reform taxation of foreign fossil fuel income.
• Eliminate fossil fuel tax preferences.
• Extend and enhance renewable and alternative energy incentives.
• Increase the top marginal income tax rate for high earners.
• Reform the taxation of capital income.
• Tax carried (profits) interests as ordinary income.
• Repeal deferral of gain from like-kind exchanges.
• Make permanent excess business loss limitation of noncorporate taxpayers.
• Address taxpayer noncompliance with listed transactions (tax shelters).

Regarding the Biden administration’s proposed changes to the minimum tax applicable to U.S. shareholders of controlled foreign corproations (known as “GILTI”), the following three aspects are most impactful for clients:

• The U.S. shareholder’s entire net CFC tested income will be subject to U.S. tax. The qualified business asset investment (QBAI) exemption that allows 10 percent of the adjusted basis of QBAI to be exempt from GILTI would be repealed.
• The IRC section 250 deduction of 50 percent of the global minimum tax inclusion would be reduced to 25 percent, thereby generally increasing the U.S. effective tax rate under the global minimum tax to 21 percent under the proposed U.S. corporate income tax rate of 28 percent.
• The “global averaging” method for calculating a U.S. shareholder’s global minimum tax would be replaced with a “jurisdiction-by-jurisdiction” calculation. Under the new standard, a U.S. shareholder’s global minimum tax inclusion and, by extension, residual U.S. tax on such inclusion, would be determined separately for each foreign jurisdiction in which its CFCs have operations. As a result, a separate foreign tax credit limitation would be required for each foreign jurisdiction. A similar jurisdiction-by-jurisdiction approach would also apply with respect to a U.S. taxpayer’s foreign branch income. These changes mean that foreign taxes paid to higher-taxed jurisdictions will no longer reduce the residual U.S. tax paid on income earned in lower-taxed foreign jurisdictions.

The Biden proposal would repeal the Base Erosion and Anti-Abuse Tax (BEAT), replacing it with a new rule disallowing deductions to domestic corporations or branches by reference to low-taxed income of entities that are members of the same financial reporting group (including a member that is the common foreign parent, in the case of a foreign-parented controlled group). Specifically, under this new Stopping Harmful Inversions and Ending Low-Tax Developments (SHIELD) tax regime, a deduction (whether related or unrelated party deductions) would be disallowed to a domestic corporation or branch, in whole or in part, by reference to all gross payments that are made (or deemed made) to low-taxed members, which is any financial reporting group member whose income is subject to (or deemed subject to) an effective tax rate that is below a designated minimum tax rate. The proposal to repeal BEAT and replace it with SHIELD would be effective from 2023.

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[1] General Explanations of the Administration’s Fiscal Year 2022 Revenue Proposals, Dept of Treas (May 2021). Available at https://home.treasury.gov/policy-issues/tax-policy/revenue-proposal (last visited August 1, 2021).

U.S. Agrees to Global Minimum Corporate Tax and a Share the U.S. (Tax) Wealth with 180 Other Countries

On June 5, 2021, the G7 Finance Ministers & Central Bank Governors released a communiqué that the Biden Administration fully supports and is seeking to expand (see U.S. Whitehouse release) with concrete actions for a deeper multilateral economic cooperation that includes the OECD’s Pillar One and Pillar Two proposals. The communiqué presented the following actions:

• The G7 agreed that beneficial ownership registries are an effective tool to tackle illicit finance. In this regard, each of the G7 countries including the U.S. (see below) is implementing and strengthening registries of company beneficial ownership information to provide timely, direct and efficient access for law enforcement and competent authorities to adequate, accurate and up-to-date information, including through central registries. The G7 further noted that beneficial ownership information should be publicly available where possible.
• The G7 committed to provide additional expertise and funding to support the FATF’s regional bodies (“FSRB’s”) peer assessment programs by at least US$17 million and 46 assessors over 2021-24 because global implementation of the FATF Standards for combatting money laundering, terrorist financing and proliferation financing remains uneven.
• The G7 reaffirmed its collective developed country goal to mobilize US$100 billion annually for developing countries from public and private sources, in the context of meaningful mitigation actions and transparency on implementation of developing countries’ climate change adaptation and mitigation efforts.
• committed to that market countries will be awarded taxing rights on at least 20 percent of profit exceeding a 10 percent margin for large multinational enterprises. In exchange, the G7 stated that it would seek removal of all Digital Services Taxes and other relevant similar measures on all companies.  
• Regarding Pillar Two, the G7, including the U.S. specifically, committed to a global minimum tax of at least 15 percent on a country-by-country basis. The G7 stated that an agreement would be reached at the July meeting of G20 Finance Ministers and Central Bank Governors.

OECD Countries’ Average Tax Due on Employment Income is 34.6%

In 2020, the OECD average of personal income tax and total employee and employer social security contributions (the ‘tax wedge’) on employment incomes for the single worker earning the average wage was 34.6 percent, a decrease of 0.39 percentage points from 2019 reflecting the impact of the COVID-19 crisis on both wages and labor tax systems.[1] The OECD average tax wedge for the one-earner couple with two children also substantially decreased, declining by 1.15 percentage points to 24.4 percent in 2020.

The OECD average tax wedge decreased for the single worker in 2020, due to falls in 29 out of the 37 OECD countries. The decrease was derived for the most part from lower income taxes, linked in part to lower nominal average wages in 16 countries, and in part to policy changes, including tax and benefit measures introduced in response to the COVID-19 pandemic. In Austria, a marginal tax rate within the income tax schedule was reduced; in Lithuania, the tax-exempt amount was increased; in Canada, the decline in the tax wedge resulted from a one-time special payment through the Goods and Services Tax credit that was delivered on April 9, 2020; in the United States, the decrease in the tax wedge was mainly due to the Economic Impact Payment (EIP) that was part of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act). Seven OECD countries experienced an increase in the tax wedge for the single worker earning the average wage in 2020. The increases in the tax wedge were even smaller than the decreases observed and did not exceed half a percentage point in any country. In all but one country (Korea), they occurred primarily due to wage growth.

European Commission proposes to extend the EU state aid regime to third party countries (i.e. the U.S.) The European Commission has proposed expanding its state aid rules to foreign countries’ actions to address distortions of trade & investment caused by foreign subsidies.[2]  The EU Commission investigated in 2020 whether those subsidies granted by non-EU governments to companies active in the EU may have a distortive effect on the Single Market.[3] Through the subsidy provisions laid down in Free Trade Agreements, the EU is seeking to achieve a level playing field between all companies that operate within the Single Market. Subsidy provisions vary from FTA to FTA and they are adjusted to the trade relationship with the third country in question. Whereas some bilateral agreements seek approximation with the EU State aid acquis with enhanced enforcement mechanisms (e.g. independent state aid authority, recovery, unilateral measures, etc.), other bilateral agreements provide for the prohibition of the most distortive type of subsidies as well as more limited enforcement mechanisms, like transparency, consultations, and a dispute settlement mechanism.

The European Commission proposed May 5, 2021, a new instrument to address the potentially distortive effects of foreign subsidies in its internal market. The new instrument aims at closing the regulatory gap in the internal market whereby subsidies granted by non-EU governments currently go largely unchecked, while subsidies granted by the Member States are subject to state aid scrutiny. EU rules on competition, public procurement, and trade defense instruments play an important role in ensuring fair conditions for companies operating in the EU market. But none of these tools applies to foreign subsidies which provide their recipients with an unfair advantage when acquiring EU companies, participating in public procurements in the EU, or engaging in other commercial activities in the EU. Such foreign subsidies can take different forms, such as zero-interest loans and other below-cost financings, unlimited State guarantees, zero-tax agreements, or direct financial grants.

Under the proposed Regulation, the Commission will have the power to investigate financial contributions granted by public authorities of a non-EU country that benefit companies engaging in an economic activity in the EU and redress their distortive effects, as relevant.

In this context, the proposed Regulation introduces three tools, two notification-based and a general market investigation tool.

1. A notification-based tool to investigate concentrations involving a financial contribution by a non-EU government, where the EU turnover of the company to be acquired (or of at least one of the merging parties) is €500 million or more and the foreign financial contribution is at least €50 million.
2. A notification-based tool to investigate bids in public procurementsinvolving a financial contribution by a non-EU government where the estimated value of the procurement is €250 million or more.
3. A tool to investigate all other market situations and smaller concentrations and public procurement procedures which the Commission can start on its own initiative (ex-officio) and may request ad-hoc notifications.

With respect to the two notification-based tools, the acquirer or bidder will have to notify ex-ante any financial contribution received from a non-EU government in relation to concentrations or public procurements meeting the thresholds. Pending the Commission’s review, the concentration in question cannot be completed and the investigated bidder cannot be awarded the contract. Binding deadlines are established for the Commission’s decision.

Under the proposed Regulation, where a company does not comply with the obligation to notify a subsidized concentration or a financial contribution in procurements meeting the thresholds, the Commission may impose fines and review the transaction as if it had been notified. The general market investigation tool, on the other hand, will enable the Commission to investigate other types of market situations, such as greenfield investments or concentrations and procurements below the thresholds, when it suspects that a foreign subsidy may be involved. In these instances, the Commission will be able to start investigations on its own initiative (ex-officio) and may request ad-hoc notifications. Based on the feedback received on the White Paper, the enforcement of the Regulation will lie exclusively with the Commission to ensure its uniform application across the EU.[4]

If the Commission establishes that a foreign subsidy exists and that it is distortive, it will where warranted consider the possible positive effects of the foreign subsidy and balance these effects with the negative effects brought about by the distortion. When the negative effects outweigh the positive effects, the Commission will have the power to impose redressive measures or accept commitments from the companies concerned that remedy the distortion. With respect to the redressive measures and commitments, the proposed Regulation includes a range of structural or behavioral remedies, such as the divestment of certain assets or the prohibition of certain market behavior. In case of notified transactions, the Commission will also have the power to prohibit the subsidized acquisition or the award of the public procurement contract to the subsidized bidder.

The European Parliament and the Member States will now discuss the Commission’s proposal in the context of the ordinary legislative procedure with a view of adopting a final text of the Regulation.

Estimating Offshore Wealth and International Tax Evasion.[5] A European Commission 2019 report on global offshore wealth estimated USD 7.8 trillion in 2016 (EUR 7.5 trillion) or 10.4 percent of global GDP, a considerable amount. The EU share is valued at USD 1.6 trillion (EUR 1.5 trillion), or 9.7 percent of GDP. The corresponding EU estimated revenue lost to international tax evasion is EUR 46 billion in 2016 (0.32 percent of GDP). Another important finding is that the increase in global offshore wealth is primarily driven by non-OECD countries, with an estimated contribution in dollar terms growing from US$ 1.1 trillion in 2001 to US$ 4.6 trillion in 2016. Among non-OECD economies, the surge of China is especially strong, with a 21-fold increase of offshore wealth held by Chinese residents over the period (from US$ 90 billion in 2001 to US$ 1.9 trillion in 2016).[6]

How Much is U.S. Tax Evasion? Closing the Tax Gap: Lost Revenue from Non-Compliance and the Role of Offshore Tax Evasion.[7] On May 11, 2021, the Treasury Inspector General For Tax Administration (TIGTA) stated that individual

taxpayers are responsible for $245 billion of the underreporting tax gap, the largest share. TIGTA identified 314,586 business taxpayers with $335.5 billion in Form 1099-K income that appeared to have a filing obligation but were not identified as nonfilers by the IRS. The problem is that the IRS cannot use third-party information returns, such as Form 1099-K data, to identify business nonfilers and create cases if the taxpayers’ accounts are coded as not having an open filing requirement, or no tax account exists because the business has never filed a tax return. TIGTA recommended that the IRS fund and implement a programming revision to its process that identifies these types of business taxpayers.

Tax Gap studies have found that self-employed individuals underreported their net income by 64 percent (based on the average for TYs 2008 through 2010), which is up from 57 percent in the TY 2001 estimate. The law did not require third-party settlement organizations to issue Form 1099-K, Payment Card, and Third Party Network Transactions, unless those transacting business earn at least $20,000 and engage in at least 200 transactions annually. TIGTA judgmentally selected eight P2P payment applications and found that these companies appear not to meet the current definition of a third-party settlement organization, and therefore are not required to file Form 1099-K. However, three P2P companies filed 950,965 Forms 1099-K involving $198.6 billion of payments in TY 2017, which included amounts below the reporting thresholds. The IRS did not always take compliance actions on nonfilers of tax returns and underreporters related to P2P payments even when information reporting was available. In total, 169,711 taxpayers potentially did not report up to $29 billion of payments received per Form 1099-K documents issued to them by three P2P payment application companies. Section 9674 of the American Rescue Plan Act changed the exception for de minimis payments by third-party settlement organizations, reducing the exception threshold to $600 annually so that these organizations are subject to the same reporting requirements as other businesses.

TIGTA reported in 2018 that after eight years and spending at least $380 million on IRS systems and efforts to establish international agreements across the globe, the IRS had taken virtually no compliance actions to meaningfully enforce the Foreign Account Tax Compliance Act (FATCA). Withholding agents are required to file Forms 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding, to report on an individual taxpayer basis the income and withholding for each foreign person. For Tax Year 2017, the IRS received 6.3 million Forms 1042-S from 49,618 withholding agents. TIGTA reported that IRS processes did not identify 1,919 withholding agents with reporting discrepancies totaling more than $182.7 million. Its review identified 366 withholding agents that claimed $506 million more in credits for tax withheld than was reported on Forms 1042-S.

The Foreign Investment in Real Property Tax Act of 198036 (FIRPTA) imposes an income tax on foreign persons selling U.S. real property interests. Buyers are required to withhold a percentage of the anticipated taxes due on the amount realized from the sale. A foreign seller of U.S. property can claim a credit for the tax withheld by the buyer. If the seller’s tax liability is less than the amount of tax withheld, the seller gets a refund of the difference. TIGTA reported that the IRS’s reconciliation processes do not effectively identify and address FIRPTA reporting and payment noncompliance.

TIGTA identified 2,988 buyers with discrepancies of more than $688 million between the withholding reported on Forms 8288-A, Statement of Withholding on Dispositions by Foreign Persons of U.S. Real Property Interests, filed during Processing Year 2017, and the withholding assessed to the buyer’s tax account. Extensive data inaccuracies in the FIRPTA database, incorrect and unclear guidelines and employee errors contributed to these discrepancies. The IRS also has not established processes to use Form 1099-S, Proceeds from Real Estate Transactions, to identify buyers that do not report and pay FIRPTA withholdings. TIGTA’s analysis of Forms 1099-S for TY 2017 identified approximately $22 million in FIRPTA withholding that was not reported and paid to the IRS. Finally, employee errors resulted in 1,835 foreign individuals potentially receiving more than $60 million in FIRPTA withholding credits than they were entitled.

Expatriates are required to file Form 8854, Initial and Annual Expatriation Statement, to certify that they have followed all Federal tax laws during the five years preceding the year of expatriation.[8] However, TIGTA found that the IRS database of expatriates was incomplete for 16,798 expatriates who did not file Form 8854. In addition, TIGTA found instances of potential non-filing, underreporting of income, and/or payment compliance issues by expatriates. From a sample of 26 expatriates who did not file a Form 8854, five had potential unreported income over $6 million. From a sample of 61 expatriates who filed a Form 8854, 15 had potential unreported income over $17 million. Lastly, TIGTA also found that expatriates with high net worth appear to not be paying their exit tax.

All individuals who expatriate are published in the Federal Register quarterly, a requirement established by IRC section 6039G.[9]

American Families Plan Tax Compliance Agenda. The Biden administration proposed an increase in the IRS budget by $80 billion over the next decade, approximately 10 percent annually. The IRS would have these additional resources to invest in large fixed costs like modernizing information technology, improving data analytic approaches, and hiring and training agents dedicated to complex enforcement activities.[10] The administration reported that audit coverage for large corporations was cut in half since 2010 for companies with $20 billion or more in assets, from 98 percent in FY 2010 to around 50 percent currently. During the past 10-year period, the administration found that global high wealth examinations have taken roughly two years on average to complete and have averaged around 284 hours per return. Partnerships audits averages around 333 hours per return.

National Bureau Of Economic Research Working Paper 2021.[11] The authors of an NBER report using IRS audit data estimated that 36 percent of federal income taxes unpaid are owed by the top percent of incomes and that collecting the unpaid federal income tax from this one percent would increase federal revenues by about $175 billion annually. The authors estimate that 21 percent of the income of these earners is unreported of which 6 percentage points correspond to undetected sophisticated evasion. High-income people are then more likely to adopt positions in the “gray area” between legal avoidance and evasion, the team concluded. Under-reporting of Schedule C income comprises 50 percent of all evasion detected, the authors found.[12]

National Taxpayer Advocate Fiscal Year 2022 Report. The National Taxpayer Advocate in her Fiscal Year 2022 report to Congress[13] recognized the importance of international information return (IIR) penalties in fostering voluntary tax compliance. However, the IRS’ systemic assessment of these penalties often produces excessively large penalties disproportionate to any underlying income tax liability. The IRS assesses IIR penalties on returns it considers to be filed late, but more than 55 percent of systemically assessed IRC §§ 6038 and 6038A penalties are abated because the returns were timely because reasonable cause relief was granted, or in situations where the failure-to-file penalty on the related Form 1120 or Form 1065 filing is abated under the First Time Abatement (FTA) provisions or the return has no tax due. Taxpayers and the IRS expend significant time, energy, and money addressing penalties that the IRS should not have assessed. Thus, these systemic assessments are ineffective in promoting taxpayer compliance and do not promote equity and fairness.

Because the penalties are immediately assessed, taxpayers’ recourse is to rely on IRS discretion to grant a reasonable cause abatement of the penalties, request a Collection Due Process proceeding, or pay the assessed penalty and file suit in district court or the Court of Federal Claims seeking a refund. One means of proactively addressing this disadvantage to taxpayers is to send preassessment correspondence, giving potentially impacted taxpayers the opportunity to explain why the IRS should not assess the penalty. This approach would educate taxpayers and minimize the inefficient and burdensome practice of first assessing and then abating these penalties. Further, it would contribute to tax equity by placing the IRS in a better position to distinguish between good-faith mistakes and intentional tax noncompliance.

The Taxpayer Advocate recommended that the IRS send taxpayers a proposed penalty notice to allow them to provide mitigating evidence such as reasonable cause; if timely filed, proof of timely filing; or application of the FTA administrative relief. The Taxpayer Advocate also recommended that the IRS provide taxpayers 60 days to respond to proposed penalty notices and give IRS employees time to review and consider reasonable cause relief, FTA relief, or the issue of timeliness. Finally, the Taxpayer Advocate continues to call for the IRS to reinstitute a penalty-free voluntary disclosure program, similar to the former FAQ 18 of the 2012 Offshore Voluntary Disclosure Program, in which taxpayers will be encouraged to come forward, file delinquent information returns, and be compliant for future years. Specifically address those taxpayers who do not have other tax liabilities besides penalties associated with the missing IIRs, are not under examination, and have not been contacted for the delinquent IIRs.

Nina Olson, the former Taxpayer Advocate, stated that of the current $441 billion gross tax gap estimate by IRS, some portion of the underreporting gap is attributable to errors made as a result of tax law complexity (unknowing noncompliance) and others are attributable to procedural complexity and barriers – for example, where taxpayers are eligible for a deduction or credit but cannot navigate the bureaucracy on their own and cannot afford representation, so they just give up (functional or characteristic noncompliance).[14] She stated that studies estimating the amount of unreported income by the highest-income taxpayers, and proposals to reduce the underreporting component of the tax gap by increased information reporting, along with the Commissioner’s guestimate that the annual tax gap could be as much as $1 trillion, have led policymakers, commentators, and the media to equate the tax gap with tax evasion. She cautioned that the ubiquitous usage of this phrase actually dilutes its meaning and impact because it allows very different types of noncompliance attributable to very different causes to be lumped together. She found that “framing noncompliance as tax evasion not only undermines compliance among the currently compliant, who will begin to feel naïve for complying, but it creates an environment in which tax agency personnel can feel justified in undermining if not outright ignoring taxpayer rights and protections.”

Nina Olson pointed out the IRS’ heavy emphasis on data-matching and rule-based systems, instead of pattern/network recognition algorithms that include feedback loops.[15] The IRS underutilizes financial account data it receives pursuant to FATCA because it cannot match much of it to existing returns. She also uncovered that many IRS systems have high false-positive and abatement rates. The National Taxpayer Advocate has reported that during the 2020 filing season, the IRS “refund fraud filters” selected 3.2 million returns of which approximately 66 percent were false positives. She concluded that the IRS requires a culture shift about how it approaches data and that the IRS must proactively use data to assist taxpayers, avoiding labeling taxpayer returns as “potentially fraudulent” before the IRS has conclusive evidence of fraud because most taxpayer error is not fraud. Regarding the Biden administration’s proposed changes to GILTI, the following three aspects are most impactful: The U.S. shareholder’s entire net CFC tested income will be subject to U.S. tax. The qualified business asset investment (QBAI) exemption that allows 10 percent of the adjusted basis of QBAI to be exempt from GILTI would be repealed.

The IRC section 250 deduction of 50 percent of the global minimum tax inclusion would be reduced to 25 percent, thereby generally increasing the U.S. effective tax rate under the global minimum tax to 21 percent under the proposed U.S. corporate income tax rate of 28 percent. The “global averaging” method for calculating a U.S. shareholder’s global minimum tax would be replaced with a “jurisdiction-by-jurisdiction” calculation. Under the new standard, a U.S. shareholder’s global minimum tax inclusion and, by extension, residual U.S. tax on such inclusion, would be determined separately for each foreign jurisdiction in which its CFCs have operations. As a result, a separate foreign tax credit limitation would be required for each foreign jurisdiction. A similar jurisdiction-by-jurisdiction approach would also apply with respect to a U.S. taxpayer’s foreign branch income. These changes mean that foreign taxes paid to higher-taxed jurisdictions will no longer reduce the residual U.S. tax paid on income earned in lower-taxed foreign jurisdictions.

The Biden proposal would repeal the Base Erosion and Anti-Abuse Tax (BEAT), replacing it with a new rule disallowing deductions to domestic corporations or branches by reference to the low-taxed income of entities that are members of the same financial reporting group (including a member that is the common foreign parent, in the case of a foreign-parented controlled group). Specifically, under the Stopping Harmful Inversions and Ending Low-Tax Developments (SHIELD) rule, a deduction (whether related or unrelated party deductions) would be disallowed to a domestic corporation or branch, in whole or in part, by reference to all gross payments that are made (or deemed made) to low-taxed members, which is any financial reporting group member whose income is subject to (or deemed subject to) an effective tax rate that is below a designated minimum tax rate. The proposal to repeal BEAT and replace with SHIELD would be effective from 2023.

Draft Schedules K-2 and K-3 released to enhance reporting of international tax matters for pass-through entities. The IRS released April 30, 2021, updated early drafts of new Schedules K-2 and K-3 for Forms 1065, 1120-S, and 8865 for tax year 2021 (filing season 2022).[17] The schedules are designed to provide greater clarity for partners and shareholders on how to compute their U.S. income tax liability with respect to items of international tax relevance, including claiming deductions and credits. The drafts of the schedules are intended to give a preview of the changes before final versions are released. The release of an early draft of the instructions for the schedules is planned for later in 2021. The redesigned forms and instructions will also give useful guidance to partnerships, S corporations and U.S persons who are required to file Form 8865 with respect to controlled foreign partnerships on how to provide international tax information. The updated forms will apply to any persons required to file Form 1065, 1120-S or 8865, but only if the entity for which the form is being filed has items of international tax relevance (generally foreign activities or foreign partners). The changes do not affect partnerships and S corporations with no items of international tax relevance. To promote compliance with adoption of Schedules K-2 and K-3 by affected pass-through entities and their partners and shareholders, the IRS intends to provide certain penalty relief for the 2021 tax year.

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[1] OECD (2021), Taxing Wages 2021, OECD Publishing, Paris, available at https://doi.org/10.1787/83a87978-en (last visited May 30, 2021).

[2] Proposal for a Regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market, SWD (2021) 99 final – SWD (2021) 100 final – SEC (2021) 182 final (May 5, 2021).

[3] Inception Impact Assessment of Commission proposal(s) for Regulation(s) of the European Parliament and the Council to address distortions caused by foreign subsidies in the internal market generally and in the specific cases of acquisitions and public procurement. Ref. Ares (2020) 5160372 (Oct 1, 2020).

[4] Commission Staff Working Document Impact Assessment, Accompanying the Proposal for a Regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market, COM (2021) 223 final – SEC (2021) 182 final – SWD (2021) 100 final (May 5, 2021).

[5] Estimating International Tax Evasion by Individuals – Final Report 2019, Taxation Papers, Working Paper No 76 – 2019, European Commission Directorate-General for Taxation and Customs Union (Sept 2019) at 9.

[6] Estimating International Tax Evasion by Individuals – Final Report 2019, Taxation Papers, Working Paper No 76 – 2019, European Commission Directorate-General for Taxation and Customs Union (Sept 2019) at 11.

[7] “Closing the Tax Gap: Lost Revenue from Non-Compliance and the Role of Offshore Tax Evasion”, Testimony Of The Honorable J. Russell George, Treasury Inspector General For Tax Administration, Committee On Finance Subcommittee On Taxation And IRS Oversight, United States Senate (May 11, 2021).

[8] Available at https://www.irs.gov/forms-pubs/about-form-8854 (last visited June 1, 2021).

[9] Quarterly Publication of Individuals, Who Have Chosen To Expatriate, 86 FR 22781 (April 29, 2021). Available quarterly at https://www.federalregister.gov/documents/2021/04/29/2021-08977/quarterly-publication-of-individuals-who-have-chosen-to-expatriate-as-required-by-section-6039g (last visited June 1, 2021).

[10] The American Families Plan Tax Compliance Agenda, Dept of Treas (May 2021).

[11] Tax Evasion at the Top of the Income Distribution: Theory and Evidence, John Guyton, Patrick Langetieg, Daniel Reck, Max Risch, and Gabriel Zucman, NBER Working Paper No. 28542, March 2021 at 3.

[12] Tax Evasion at the Top of the Income Distribution: Theory and Evidence, John Guyton, Patrick Langetieg, Daniel Reck, Max Risch, and Gabriel Zucman, NBER Working Paper No. 28542, March 2021 at 8.

[13] Objectives Report To Congress, National Taxpayer Advocate, Fiscal Year 2022 at p 45.

[14] Statement by Nina E. Olson, Executive Director, Center for Taxpayer Rights, Hearing on Closing the Tax Gap: Lost Revenue from Noncompliance and the Role of Offshore Tax Evasion, Subcommittee on Taxation and IRS Oversight Committee on Finance United States Senate (May 11, 2021) at 9.

[15] Statement by Nina E. Olson, Executive Director, Center for Taxpayer Rights, Hearing on Closing the Tax Gap: Lost Revenue from Noncompliance and the Role of Offshore Tax Evasion, Subcommittee on Taxation and IRS Oversight Committee on Finance United States Senate (May 11, 2021) at 10.

[16] General Explanations of the Administration’s Fiscal Year 2022 Revenue Proposals, Dept of Treas (May 2021). Available at https://home.treasury.gov/policy-issues/tax-policy/revenue-proposal (last visited June 1, 2021).

[17] The IRS published draft tax forms at https://apps.irs.gov/app/picklist/list/draftTaxForms.html (last visited June 1, 2021).

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