Prof. William H. Byrnes

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

Supreme Court: ERISA Fiduciaries Must Monitor All Plan Investments Even if Some Investment Options Are Adequate

The U.S. Supreme Court (USSC) recently held that an ERISA fiduciary has a duty to monitor each plan investment option—and can be held liable for a failure to monitor even if some plan investment options are adequate. Hughes v. Northwestern University has garnered significant attention in recent months. Finally, the USSC issued a unanimous opinion holding that ERISA fiduciaries have an ongoing duty to monitor investments and improve imprudent investments. The opinion reversed the 7th Circuit’s holding that this responsibility was satisfied if the plan offered an adequate array of investment choices. Instead, fiduciaries can be held liable if they fail to monitor all investments and remove any imprudent investments from the plan’s menu of investment choices. In other words, identifying well-designed options doesn’t relieve the plan sponsor of liability with respect to poor options and the ERISA fiduciary has a duty to protect participant-employees from making poor investment choices. For more information on issues pertaining to fiduciary liability, visit Tax Facts Online. Read More

Have Your Clients Checked Their Beneficiary Designations Lately?

Updating a plan’s beneficiary designations might seem like a simple process–and it often is. However, it’s a process that’s often overlooked. Clients who participate in ERISA plans should be reminded that they’re required to complete their beneficiary designations in writing, using the procedures and forms established by the specific plan, in order for those designations to become effective. Often, survivors can be surprised by the beneficiary designated by the plan—and may even try to argue that the decedent’s will should govern who receives the account funds. Clients should remember that wills and state intestate laws do not govern who receives plan funds. The only consideration will be who the account owner has designated under plan procedures. It’s important to carefully evaluate the plan’s policies, however—because some plans have exceptions in place to, for example, automatically revoke a beneficiary designation upon divorce. For more information on the importance of checking beneficiary designations and updating on major life events, visit Tax Facts Online. Read More

IRS Modifies Interest Rates for Use in Determining Substantially Equal Periodic Payments

Substantially equal periodic payments (SEPPs) are exempt from the 10% early distribution penalty that applies to traditional retirement account distributions prior to age 59½. However, a SEPP must remain in place for the longer of (1) five years or (2) the date the recipient reaches age 59½. If the SEPP is ended or modified prior to that time, the 10% penalty applies (plus interest). The SEPP payment is calculated based on one of three different options. Two of those options are calculated using an interest rate that’s typically based on the federal mid-term rate in effect for the months prior to the start of the SEPP schedule (the rate cannot typically exceed 120% of the federal mid-term rate). In recent years, that rate has been extremely low. Now, the IRS has released guidance providing that payment schedules beginning in 2022 and thereafter are permitted to use an interest rate that is as high as 5%. This change provides an opportunity for plan participants to use the SEPP option and receive a higher payment (clients with existing SEPPs are not permitted to modify their interest rate). Further, clients with existing SEPPs who use the RMD distribution method (which doesn’t rely on an interest rate) can switch to the new IRS life expectancy tables without “modifying” the SEPP (in fact, they are required to switch beginning in 2023). For more information on SEPPs, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of 2021 legislative and regulatory updates, and the impact on 2022 client planning, as well as other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, operating budget of $9.6 billion (FY2022) and capital budget of $1.9 billion, is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

IRS Provides Relief for In-Service Pension Distributions to Help Businesses Rehire Post-COVID

The IRS has updated its FAQs to provide relief for business owners looking to rehire in the wake of the COVID-19 pandemic. Some workers chose to take an early retirement during the height of the pandemic and may have begun receiving distributions from pension plans.  Under the first question, the IRS addressed a situation where a pension did not provide for in-service distributions and began paying benefits to a participant who experienced a bona fide retirement. If the plan sponsor rehires the participant because of unforeseen hiring needs, that individual’s prior retirement will still be treated as a “bona fide retirement”. According to the IRS, a rehire due to unforeseen circumstances that do not reflect any prearrangement to rehire the individual will not cause the individual’s prior retirement to no longer be considered a bona fide retirement under the plan. The IRS has also clarified that a qualified pension can allow individuals to begin in-service distributions if the individual has either attained age 59½ or the plan’s normal retirement age.  However, distributions prior to age 59½can lead to imposition of a 10 percent penalty unless an exception applies.  For more information on pre-retirement distributions from qualified plans, visit Tax Facts Online. Read More

DOL Updates Temporary Enforcement Policy on Prohibited Transaction Rules for Investment Advice Fiduciaries

The Department of Labor (DOL) once again updated its temporary enforcement policy for investment advice fiduciaries to allow firms and advisors more time to comply with new prohibited transaction exemption (PTE) 2020-02. The PTE was set to become fully effective as of December 20, 2021.  Recognizing that allowing the temporary enforcement policy to expire next month would create practical difficulties for financial institutions, the DOL extended the policy through January 31, 2022. As a result, the DOL will not pursue prohibited transactions claims against investment advice fiduciaries who are working in good faith to comply with the impartial conduct standards under PTE 2020-02.  It will also not treat these fiduciaries as violating the prohibited transaction rules during this period. The DOL will not enforce the “specific documentation” and disclosure requirements for rollovers under PTE 2020-02 through June 20, 2022.  Aside from the rollover exception, all other requirements will be subject to full enforcement as of February 1, 2022. For more information on PTE 2020-02 and the new investment advice fiduciary standard, visit Tax Facts Online. Read More

Retirement Proposals Dropped From Framework Legislation

As negotiations over the framework spending legislation stalled last week, Congress took an unexpected turn and dropped all retirement proposals from the spending package. That includes proposals to require certain employers to enroll employees automatically in retirement savings programs and the increased credits for small businesses who adopt a retirement plan or auto-enrollment provision for the first time. All provisions that would close the “backdoor” to Roth IRAs for high earners were also dropped from the proposal, as were the changes that would impose contribution limits on high-income taxpayers with large IRA balances. The earlier proposal would have also changed the Saver’s Credit by turning it into a government-sponsored matching contribution. For more information on the current Roth conversion rules that allow higher income taxpayers to indirectly fund a Roth account, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of 2021 legislative and regulatory updates, and the impact on 2022 client planning, as well as other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

IRS Updates Frequently Asked Question (FAQ) Process

The IRS announced updates to its processes and policies for frequently asked questions (FAQs) and has provided guidance on the rules for implementing penalties for taxpayers who rely on FAQs.  FAQs often provide important interpretive guidance for taxpayers attempting to understand how new legislation will be implemented. However, the FAQs are updated frequently and without warning. Going forward, FAQs will be announced in a news release and posted to IRS.gov in a fact sheet. Prior versions of the fact sheet FAQs will now be dated and maintained on IRS.gov so that taxpayers can find the version they relied upon. The IRS also released a statement clarifying that if a taxpayer relies on FAQs in good faith and that reliance is reasonable, the taxpayer has a reasonable cause defense against any accuracy-related penalties and negligence penalties if it turns out that the FAQs were not a correct interpretation of the law given the facts.  However, the law itself will continue to control in the taxpayer’s case (not the FAQs). In the wake of the COVID-19 pandemic, IRS FAQs were often the only interpretive materials available.  For examples of how FAQs have functioned to guide taxpayers in interpreting legislation,, visit Tax Facts Online. Read More

Give Your Withholding a Fourth-Quarter Checkup

While it seems hard to believe, the 2021 tax year is almost at an end. The IRS recently reminded taxpayers that the fourth quarter is always a good time for a withholding checkup. Taxpayers still have time to adjust their withholding to withhold additional amounts (or make an estimated tax payment) to avoid a surprise tax bill in April. For 2021, there are a number of new tax provisions that should be considered when examining withholding choices, including COVID-19 tax relief, natural disaster relief and issues created by moving to another state due to a pandemic-related work-from-home policy. As always, issues such as marriage, divorce or having a child will impact the amount employees should have withheld from their paychecks. The IRS offers a tax withholding estimator that can be helpful. Clients who had an unexpected tax bill for the 2020 tax year can use this tool to ensure they’ve paid accurately in 2021 and avoid surprises come April. For more information on tax withholding obligations, visit Tax Facts Online. Read More

Reminder: No Extension for ACA Reporting for 2021

In prior years, the IRS has permitted transition relief and extended the deadline for providing Form 1095-C to individuals from February to March.  (Typically, the due date to furnish the Forms 1095-B and 1095-C to requisite individuals is extended from February 1 to March 1).  This year, there is no extension, so businesses must provide individuals with Forms 1095-B or 1095-C by January 31, 2022.  Form 1094-C and Form 1095-C that must be provided to the IRS are typically not subject to the extension.  The employer must furnish these filings to the IRS by February 28, 2022 if the filing is on paper and March 31, 2022 if the employer is filing electronically.  Under current law, employers that submit 250 or more of the same form must use electronic filing systems.  However, the IRS has proposed a new rule that would require nearly all employers to file electronically (lowering the threshold to 100 forms in 2022 and ten forms starting in 2023).  Employers would also be required to aggregate all forms that they have submitted.  For more information, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of 2021 legislative and regulatory updates, and the impact on 2022 client planning, as well as other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

Notice 2021-58 Clarifies Timeline for Making COBRA Premium Payments Under COVID-19 Relief Laws

In May 2020, the DOL and IRS extended certain COBRA timelines so that plans were required to disregard the period beginning March 1, 2020 and ending the earlier of (1) one year from the date relief became available or (2) 60 days after the end of the COVID-19 national emergency (the “outbreak period”). To date, the end of the outbreak period has not been announced.  Last week, the IRS released Notice 2021-58 to provide clarity about the disregarded period and deadlines for COBRA premium payments. Namely, the Notice provides that the tolling periods are to run concurrently. The Notice also provided transition relief so that the COBRA eligible individual cannot be required to make an initial premium payment before November 1, 2021, as long as the individual made the initial premium payment within one year and 45 days after the date of the COBRA election. Generally, with respect to the initial payment, the individual has one year and 45 days after the date of the election to make the payment if the election was made within the typical 60-day deadline. For elections made after that 60-day timeframe, the individual has one year and 105 days from the date the COBRA notice was provided (to reflect the one-year suspension of the 60-day election period and the 45-day grace payment period). For more information on the COBRA payment periods, visit Tax Facts Online. Read More

Social Security Administration Announces 2022 Cost-of-Living Adjustments for Benefit Recipients

The Social Security Administration has announced the cost of living adjustments (COLA) applicable for 2022, including a 5.9 percent increase in monthly benefits paid to Social Security recipients (the COLA increase for 2021 was 1.3 percent). Social Security “COLA” adjustments are tied to the consumer price index each year. Based on the 5.9 percent increase, the SSA also announced that the annual Social Security earnings cap will be increased from $142,800 to $147,000 for 2021. This means that in 2022, each taxpayer’s first $147,000 in earnings will be subject to Social Security taxes. Social Security and SSI recipients should expect to receive information about their new benefit amount by mail beginning in early December (and can find their COLA notice online through their Social Security accounts at www.socialsecurity.gov/myaccount). For more information on the Social Security tax, visit Tax Facts Online. Read More

Asking for Vaccination Status? Remember, Different Laws Apply to Employees Versus Job Applicants

Small business employers can now be confident that they’re legally able to ask employees about vaccination status to protect worker safety.  However, those same clients should remember that different rules apply during the hiring process.  While the specific vaccine issue hasn’t been litigated, under existing law, potential employers are not permitted to ask a potential employee about any medical information during the hiring process under the ADA (employers shouldn’t worry about job applicants who volunteer information about their vaccination status, but they shouldn’t request the information). Even asking about vaccination status could prompt the job applicant to offer other medical information that the employer isn’t permitted to consider during the application process (for example, if it turns out the applicant isn’t vaccinated because of chemotherapy treatments). Once the individual has been offered a conditional employment opportunity, however, the employer is then permitted to ask questions about medical issues, assuming the same information is requested from all individuals receiving the job offer and the information isn’t used to discriminate. For more information on the tax credit for vaccine-related time off work, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of 2021 legislative and regulatory updates, and the impact on 2022 client planning, as well as other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

Establishing a Retirement Plan?  Don’t Forget Small Business Tax Breaks

Recent legislation has focused small business clients’ attention on retirement plans and their obligations to employees.  Some states already sponsor “auto IRAs” for workers without access to an employer-sponsored retirement plan. The Build Back Better Act would require employers who do not sponsor a retirement plan to automatically enroll employees in either an IRA or a 401(k)-type plan beginning in 2023. The “SECURE Act 2.0” also contains provisions designed to encourage more small businesses to offer retirement plans. Small business clients who are exploring their options in advance of government action should be reminded about valuable tax incentives designed to encourage workplace retirement savings options. The SECURE Act increased the tax credit for retirement plan startup costs so that employers can receive a $250 tax credit for every non-highly compensated employee (up to a maximum of $5,000 per year). The tax credit is available for up to three years and can be applied toward the administrative costs of maintaining the plan (and to participant education). Employers can also receive a $500 tax credit per year (for up to three years) if they add an auto-enrollment feature. For new plans, both tax credits are available. For more information on these tax credits, visit Tax Facts Online. Read More

Reminder: Conditions of New DOL Fiduciary PTE Becomes Fully Effective December 21

The DOL’s new prohibited transaction exemption (PTE) 2020-02 becomes fully effective December 21. Advisors who satisfy the “five prong test” must determine whether their recommendation would create a conflict of interest (for example, most IRAs would result in a prohibited transaction because of the compensation earned). The new PTE provides an exception for certain conflicted advice if the terms of the PTE are satisfied. To date, the DOL has only required a good faith compliance effort from firms and advisors that satisfy the impartial conduct standards. Effective December 21, the rule will be fully effective, meaning that fiduciaries must acknowledge fiduciary status and provide conflicts and services disclosures–and the firm must implement written policies and procedures to ensure compliance with the impartial conduct standards. For certain types of rollover transactions, advisors will also have to provide a written statement outlining the specific reasons why the rollover transaction is in the best interest of the participant or IRA holder. The new fiduciary PTE applies in the case of rollover transactions if the advice is provided in the context of an ongoing relationship or as the beginning of a future relationship between the client and advisor. For more information on PTE 2020-02, visit Tax Facts Online. Read More

Focus on Reasonable Accommodation for Employers Implementing Return-to-Work Policies

In the midst of the ongoing COVID-19 pandemic, employers are more focused than ever on the issue of what constitutes reasonable accommodation for disabilities or religious beliefs in the workplace. As employers re-open workspaces and bring employees back to work, many are facing requests for COVID-19-related “reasonable accommodation” that they’ve never handled before. A recent 10th Circuit case (Brown v. Austin) illustrates a key point: a work-from-home or modified schedule is not a “reasonable” accommodation if the employee is unable to perform essential job functions as a result. The case illustrates the general rule that reasonable accommodation is only required if it doesn’t present an undue hardship for the employer. Employers today should ensure that the essential job functions required of each role are well-documented–remembering that it’s important to evaluate whether the accommodation would truly prevent the employee from performing those job functions. For more information on employers’ options on return to work, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

IRS Releases Regulations Allowing for Recapture of Erroneous COVID-19 Tax Credits

Early in 2020, the IRS created procedures to allow employers to quickly take advantage of the FFCRA and CARES Act tax credits.  Now, the IRS has released temporary regulations that allow the IRS to recapture any of the tax credits credited to an employer in excess of the amount that the employer was actually entitled to receive.  The regulations provide that any amount of the credits for qualified leave wages, credits for qualified health plan expenses under sections 3131(d) and 3132(d), and any amount of the employee retention credit that were erroneously paid or credited to the employer can be recaptured.  Those incorrect tax credits will be treated as underpayments of  taxes and may be administratively assessed and collected in the same manner as the taxes. The temporary regulations also provide that the calculation of any credits erroneously claimed must take into account any amounts that were advanced to the employer under the processes established in 2020.  For more information on the employee retention tax credit, visit Tax Facts Online. Read More

Federal Court Sides With DOL on Form 5500 Statute of Limitations Issue

Recently, in Walsh v. Bowers, the Department of Labor (DOL) convinced a federal court to extend the statute of limitations for a fiduciary breach claim by relying on a Supreme Court interpretation of the “actual knowledge” standard.  Typically, the ERISA statute of limitations that applies for DOL investigations is the earlier of (A) six years after (1) the date of the last action that was a part of the breach or (2) if the case involves an omission, the last date on which the fiduciary could have cured the breach or (B) three years after the earliest date that the plaintiff had actual knowledge of the breach.  Typically, the DOL should have the relevant information in order to have actual knowledge of a breach when a plan files Form 5500 containing that information.  However, the DOL argued that a recent Supreme Court decision interpreting the definition of “actual knowledge” to mean actual knowledge should apply.  Relying on that case, the court allowed the DOL additional time because the DOL had yet to review the Form 5500 in question.  For more information on the current standard for investment advice fiduciaries, visit Tax Facts Online. Read More

December 31 Deadline for Maximizing QOZ Tax Deferral Benefits

December 31, 2021 is the final day for taxpayers to invest in a qualified opportunity zone (QOZ) and maximize the federal tax deferral benefit of these investments.  Taxpayers who invest capital gains according to the QOZ rules are not subject to immediate taxation on the gain.  Capital gains taxes are deferred (and federal income taxes are not required to be paid) until the end of 2026, or upon the individual’s disposition of the qualified opportunity fund (QOF) interest.  When the taxpayer eventually recognizes that gain, if the taxpayer has held the interest for at least five years, 10 percent of the federal income tax liability is eliminated (taxpayers who invested earlier can eliminate an additional 5 percent).  If the taxpayer holds the interest for at least 10 years, the increase in value is not subject to federal income tax when the interest is sold.  In order to hold the interest for the required five-year period, the taxpayer must purchase the interest no later than December 31, 2021.  For more information on the opportunity zone rules, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

$1.2 Trillion Infrastructure Act to be signed by Biden

The 2,702-page bi-partisan “Infrastructure Investment and Jobs Act of 2021” has been passed by the House and sent to Biden for signature into law. The Act contains approximately $550 billion of new project spending and carries over an additional $650 billion from previously funded projects for a total of over $1.2 trillion in infrastructure spending that will begin in 2021 and most end in 2026.

But the Infrastructure Act 2021 contains many energy provisions and excise taxes as well as fees that will impact all segments of the energy industry. These provisions include billions of dollars for the industry for expenditure and incentives for carbon capture; clean hydrogen R&D; nuclear; among others. By example, $500,000,000 is provided for clean hydrogen technology R&D (see page 1550 at section 40314). The excise taxes and fees include the extensions of the highway-related taxes, superfund excise taxes, and customs user fees.

The major tax reform provisions addressing estate and gift tax, capital gains, carried interests, real estate exchanges, retirement plans, and high-income earners have been reserved to the forthcoming yet-to-be-agreed/released Democratic reconciliation bill. However, the Infrastructure Investment and Jobs Act of 2021 contains some new tax provisions including:

• Sec. 80501. Modification of automatic extension of certain deadlines in the case of taxpayers affected by Federally declared disasters.
• Sec. 80502. Modifications of rules for postponing certain acts by reason of service in combat zone or contingency operation.
• Sec. 80503. Tolling of time for filing a petition with the tax court.
• Sec. 80504. Authority to postpone certain tax deadlines by reason of significant fires.
• Sec. 80601. Modification of tax treatment of contributions to the capital of a corporation.
• Sec. 80602. Extension of interest rate stabilization.
• Sec. 80603. Information reporting for brokers and digital assets.
• Sec. 80604. Termination of employee retention credit for employers subject to closure due to COVID–19.

The automatic extension for certain tax deadlines for Federally declared disasters addresses the situation of multiple declarations relating to a disaster area which are issued within a 60-day period. A separate 60-day period shall be determined with respect to each such declaration pursuant to the bill’s language.

The Infrastructure Act 2021 contains hundreds of not-obvious federal grants and contract opportunities for business. By example of one provision related to education and training of workers, section 401513 includes $10 million dollars for FY2022 for government grants of 50 percent of the cost to provide ‘career skills training’ to identify and involve in training programs target populations of individuals who would benefit from training and be actively involved in activities relating to energy efficiency and renewable energy industries; and the ability to help individuals achieve economic self-sufficiency. The program students must concurrently receive classroom instruction and on-the-job training for the purpose of obtaining an industry-related certification to install energy-efficient buildings.

The Act amends the reporting by brokers to include as of 2023 cryptocurrencies. I.R.C. Section 6045(c)(1) is amended to include within the term “broker” any person who (for consideration) is responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person. The Infrastructure Act 2021 amends the information required to be provided the IRS by the broker in the case of securities transactions. A ‘covered security’ is amended to include any ‘digital asset’.

(D) DIGITAL ASSET. The term ‘digital asset’ means any digital representation of value which is recorded on a cryptographically secured distributed ledger or any similar technology as specified by the Secretary. Any broker, with respect to any transfer (which is not part of a sale or exchange executed by such broker) during a calendar year of a covered security which is a digital asset from an account maintained by such broker to an account which is not maintained by, or an address not associated with, a person that such broker knows or has reason to know is also a broker, shall make a return for such calendar year showing the information otherwise required to be furnished with respect to transfers.

The reporting requirement goes into effect on January 1, 2023.

Need to Know on Offering Benefits to Employees Who Aren’t “Actively At Work”

Many employers continued to allow employees to participate in employee benefit programs while the employee was not actually working during the COVID-19 pandemic.  While many employees have now returned to work, in some areas rolling shutdowns may continue to impact the employer’s ability to retain employees on a continuous basis.  It can be risky to allow employees to remain on an employer’s health insurance benefit plan while not actively at work.  In many cases, fully insured plans have “actively at work” clauses that apply in determining the employee’s eligibility for benefits.  Employees typically can continue to participate for up to three months after ceasing work (to comply with FMLA time limits).  For employers with self-insured health plans, stop loss coverage may not apply to cover claims if the employee is not actively working.  Small business clients should check their plans and establish a policy on how employees who are not actively at work will be treated for benefit purposes.  For more information on self-insured plans, visit Tax Facts Online. Read More

Considering a COVID-19 Vaccine Health Surcharge?  How High Can it Be?

Employers subject to the ACA employer mandate should be mindful that the health coverage must continue to be “affordable” even if the employer opts to impose a COVID-19 vaccine surcharge (there is currently no exception for vaccines).  In 2021, health insurance is affordable if the employee’s contribution does not exceed 9.83 percent (9.61 percent in 2022) of household income (three safe harbors exist for purposes of determining “household income”).  Further, total surcharges generally cannot exceed 30 percent of the cost of the employee’s health insurance premiums (considering the cost of self-only coverage) under a HIPAA rule on incentives for employees who participate in wellness programs.  In the end, the amount of the allowable surcharge can vary by employer and employee, considering the cost of employer-sponsored health insurance, the employee’s compensation and the amount of the health insurance premiums that the employer chooses to subsidize.  For more information on vaccine-related incentives, visit Tax Facts Online. Read More

Paying Employees in Cryptocurrency?  Don’t Forget Employment Taxes

The IRS released a reminder last week for business clients who opt to pay employees in cryptocurrency.   Employers who choose to pay wages in cryptocurrency should remember that their choice of payment method is immaterial when it comes to calculating employment taxes.  Employment taxes must be paid on the fair market value of cryptocurrency paid as wages, measured using U.S. dollars on the date the employee receives the payment.  The fair market value is subject to FICA, FUTA and federal income tax withholding–and must be reported on the employee’s Form W-2.  Wages paid in cryptocurrency may also be reportable for state income tax purposes.  Employers are liable for these wages, so it’s important that small business clients who opt to pay employees in increasingly popular virtual currency be aware of their withholding and reporting obligations.  For more information on cryptocurrency paid as wages, visit Tax Facts Online. Read More

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

Colleges and universities across the country have leveraged sports to bring in revenue, attract attention, boost enrollment, and raise money from alumni. That profitable enterprise relies on “amateur” student athletes who compete under horizontal restraints that restrict how the schools may compensate them for their play. The National Collegiate
Athletic Association (NCAA) issues and enforces these rules, which restrict compensation for student-athletes in various ways. These rules depress compensation for at least some student-athletes below what a competitive market would yield.

Against this backdrop, current and former student-athletes brought this antitrust lawsuit challenging the NCAA’s restrictions on compensation. Specifically, they alleged that the NCAA’s rules violate §1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.”

The Supreme Court upheld, in a unanimous decision of all nine Justices, the District Court’s injunction against the NCAA. The injunction allows the NCAA to maintain rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. BUT the injunction stops as unlawful NCAA rules limiting the education-related benefits schools may make available to student-athletes.

Regarding today’s Supreme Court decision (entire 45-page opinion is available here), first it was expected by industry analysts and court watchers after the Court’s oral arguments March 31, 2021 with a foretelling Q&A session. We are already preparing Tax Facts Intelligence and Q&A for the books/app for financial advisors to leverage the new athletics marketplace and revenue streams and best represent their clients. I know of financial advisory firms that as of Tuesday will be hanging up a ‘sports agent financial advisor shingle’ and trolling SEC high schools, especially Texas, recruiting for tomorrow’s top collegiate athletes to sign up the talent.

Why not? That is how the market already works outside the USA for soccer (what everyone else calls football) and to a lesser extent baseball (albeit not nearly as popular as soccer so we hear much less about baseball camps for Dominican rising star 12 year old players like we hear about for the 12-year-old next Brazilian Pele). 

Interaction with social media followers is the currency of this new era for young athletes and can lead to a couple of hundred thousand during college for the star players, and even millions for the SEC Heisman level types. But, not having the ultimate talent and thus top sports ranking in a field does not also mean that an interactive social media following of millions cannot be created. The Russian tennis star Anna Kournikova, case in point, though she was just a little too early for the modern social media movement. Johnny Manziel, another case in point: had this decision been in place already and had he contracted a great wealth management advisor (thus great personal agent) with social media and promotional background, his life would have been very financially comfortable before his drug abuse ruined him in the pro league (talent or not aside). He certainly could have afforded a stint at the Betty Ford clinic to sober up and cleanout.

Via the advice of a great wealth manager, a personality can be leveraged into millions of dollars before the athlete graduates university, or at least hundreds of thousands.

It is clear from the unanimous ruling and the judges questioning and opinions that this is not a restrictive ruling. NCAA proponents are trying to spin that some restriction remains allowable like direct payments to players. But all it takes is one school that has money that wants to break into the big league to beat ‘Bama and LSU. Kind to think of it, I know that school… and don’t think Bama and LSU are just going to let that happen. Let real market competition begin!

An interesting question that I think will lead to much future litigation: How this ruling plays out throughout all sports regarding Title IX (such as a school spending money on men’s football, basketball, baseball, must by federal and state law also spend an equal amount on the equivalent sports for women). I am for market opportunity and thus I think it is an exciting proposition that opportunities will open up in all sports for athletes and wealth manager advisors alike (to negotiate the optimum financial rewards for the athletes).

Also, if athletic programs, such as golf or hockey, are forced to ‘come up’ with additional dollars to attract the star players to remain competitive, will the programs themselves start to think like SEC football (the most profitable league and sport) to generate additional income to meet the demands of staying or obtaining high ranking?  After all, whether it be academics or sports, it is all about ranking. Deans and Provosts rise and fall based on academic rankings. Coaches based on league rankings and national championships. Sports rankings and academic rankings have connections via alumni fundraising as of course voter university name/brand awareness and recognition. Basketball in particular through March madness has supported the academic rankings of universities though academic and sports ranking are not directly connected in voting and evaluation scoring, the indirect connection is undeniable.

This Supreme Court decision is great news for wealth managers / financial advisors who subscribe to Tax Facts because we are well-positioned to enter the new market of clientele representation created for the high school athlete seeking to share in the value that the athlete creates for a university and for the athlete through social media leveraged revenues. Understanding that “value”, generating more of it, and ‘sharing’ in the value is the bread and butter of a holistic wealth manager’s representation of athletes and entertainers.

Texas A&M already has education in this regard for our wealth management students and JDs who focus on such emerging artist/athlete/entertainer representation. We even have a law clinic for this emerging artists run by JD students supervised by my colleague that joined me at Texas A&M from our former law school in SoCal.

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20

Prof. William H. Byrnes

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

New IRS Guidance Nixes Tax-Free Exchange Treatment for Cryptocurrency Swaps.  New IRS guidance has confirmed that pre-2018 exchanges of Bitcoin, Ether and Litecoin do not qualify for Section 1031 exchange treatment.  Prior to 2018, taxpayers were permitted to defer capital gains taxes under Section 1031 for certain exchanges of personal property (1031 is now limited only to exchanges of real property).  The IRS’s rationale is that these were not exchanges of like-kind property and so were taxable even prior to tax reform.  The IRS found that Bitcoin and Ether each had special roles in cryptocurrency trading because if taxpayers wanted to trade in other types of virtual currency, they had to first exchange the other currency into or from Bitcoin or Ether.  Therefore, exchanges between Litecoin and Bitcoin/Ether did not qualify as “like kind”.  Further, the IRS identified differences in design, intended use and actual use of Bitcoin and Ether.  While this guidance currently only extends to exchanges involving Bitcoin, Ether and Litecoin, it is possible that the IRS could extend the rationale to other types of cryptocurrency.  Taxpayers who trade in cryptocurrency under current tax rules should remember that these trades are taxable events. For more information, visit Tax Facts Online. Read More

Related Questions:

7723. How does a taxpayer identify with bitcoin or other virtual currency are involved in a sale, exchange or other disposal of the virtual currency?

7725. What considerations apply when an employer pays employees or independent contractors using bitcoin or other virtual currency?

Related Questions:

559. What are the rules that allow 401(k) plan sponsors to include deferred annuities in target date funds (TDFs)?

561. Can a taxpayer combine a deferred income annuity (“longevity annuity”) with a traditional deferred annuity product?

New Challenge Posed to Federal Courts’ $10,000 Per-Year Limit on FBAR Penalties.  Several recent federal court decisions have confirmed that the total FBAR penalties that can be imposed on an individual should be limited to $10,000 per year, rather than $10,000 per financial account.  Now, a federal court in Georgia is once again hearing a similar case.  In 2018, the IRS assessed $120,000 in penalties for a three-year period for each of the foreign banks with which the taxpayer had a relationship that she failed to report via FBAR filing.  Federal courts in both Texas and California have confirmed that the IRS must limit penalties for a non-willful failure to file FBAR reports based on the year, not the number of the taxpayer’s foreign accounts.  In the current case, the taxpayer had also participated in an amnesty program where she paid back taxes on the accounts she held with banks in France, Lebanon and Monaco.  For more information on the FBAR filing requirements and penalties for noncompliance, visit Tax Facts Online. Read More

Related Questions:

980. What is the effect of a disposition of Canadian real property in respect of a U.S. citizen that is a Canadian resident for tax purposes?

981. What is the effect of a disposition of Canadian real property in respect of a U.S. individual that is not a Canadian resident for tax purposes?

IRS Extends Relief for Employee Donations of Unused Sick, Vacation & PTO.  The IRS has extended the relief provided in Notice 2020-46 to allow employees to continue to forgo, or “donate”, sick, vacation and personal leave because of the COVID-19 pandemic without adverse tax consequences through the end of the 2021 tax year.  After December 31, 2020 and before January 1, 2022, employers may make cash payments to Section 170(c) charitable organizations that provide relief to victims of the COVID-19 pandemic in exchange for sick, vacation or personal leave which their employees gave up.  Those amounts will not be treated as compensation and the employees will not be treated as receiving the value of the leave as income.  While taxable income will not be increased, employees cannot claim a charitable deduction for the leave donated to their employer. Employers, however, may deduct these cash payments as Section 162 business expenses or Section 170 charitable contributions if the employer otherwise meets the respective requirements of either section.  For more information on the deduction for charitable contributions, visit Tax Facts Online. Read More

Related Questions:

8540. What are the income percentage ceilings that limit the income tax deduction for charitable contributions?

8541. How does the income percentage ceilings calculated if charitable contributions of money are made to both public charities and private foundations in the same tax year?

Look in your Tax Facts Online app for our continuing analysis of this bill, the tax reform in the reconciliation bill, and other weekly intelligence.

Wealth & Risk Management Degree for Industry Professionals – learn about the graduate degree here: https://law.tamu.edu/distance-education

Texas A&M, an annual budget of $6.3 billion (FY2020), is the largest U.S. public university, one of only 60 accredited U.S. universities of the American Association of Universities (R1: Doctoral Universities – Highest Research Activity) and one of only 17 U.S. universities that hold the triple U.S. federal grant of Land, Sea, and Space! The law school has the #1 bar passage in Texas, and #1 for employment in Texas (and top 10 in U.S.)

• Ranked in top 20 public universities by Wall Street Journal / Times Higher Education (2020)
• #1 endowment for U.S. public universities, #7 overall
• #1 of U.S. public universities for a superior education at an affordable cost
• #1 for most CEOs employed by Fortune 500
• #1 employment outcome for law schools in Texas and in top 10 in the USA
• #1 bar passage in Texas
• Rank #11 by Money Best Colleges Report, 2021 and #5 in U.S. among public universities (Sources: U.S. Department of Education, Peterson’s, PayScale.com, Money/College Measures calculations)
• Texas A&M ranks #1 in Texas, #1 in the SEC, and #12 in the U.S. in Washington Monthly’s 2020 overall college rankings based on the quality of education, accessibility, graduation rates, student involvement, and research: see tx.ag/WashMonth20