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IRS releases 2000 guidelines for "adequate disclosure".

If Sec. 6662 applies to any portion of a tax underpayment that must be shown on a return, an amount equal to 20% of the portion of the underpayment to which the section applies is added to the tax. (The penalty rate is 40% for certain gross valuation misstatements.) Under Sec. 6662(b)(2), Sec. 6662 applies to the portion of an underpayment attributable to a substantial understatement of income tax.

Sec. 6662(d)(1) provides that there is a substantial understatement of income tax if the understatement exceeds the greater of 10% of the tax that must be shown on the return for the tax year or $5,000 ($10,000 for a corporation other than an S corporation or a personal holding company). Sec. 6662(d)(2) defines an understatement as the excess tax that must be shown on the return for the tax year over the amount of the tax shown on the return, reduced by any rebate (within the meaning of Sec. 6211(b)(2)).

For an item not attributable to a tax shelter, Sec. 6662(d)(2)(B)(ii) provides that the understatement must be reduced by the portion of the understatement attributable to any item for which the relevant facts affecting the item's tax treatment are adequately disclosed on the return or on a statement attached to the return, and there is a reasonable basis for the tax treatment of such item by the taxpayer.

In general, this revenue procedure provides guidance in determining when disclosure is adequate for Sec. 6662(d) purposes. The taxpayer must furnish all required information in accordance with the applicable forms and instructions, and the money amounts entered on these forms must be verifiable.

Procedure

Additional disclosure of facts relevant to (or positions taken on) issues involving any of the items set forth below is unnecessary for reducing any income tax understatement under Sec. 6662(d), provided that the forms and attachments are completed in a clear manner and in accordance with their instructions. The money amounts entered on the forms must be verifiable, and the information on the return must be disclosed in the manner described below. A number is verifiable if, on audit, the taxpayer can demonstrate its origin (even if the number is not ultimately accepted by the IRS) and can show good faith in entering that number on the applicable form.

1. Form 1040, Schedule A, Itemized Deductions:

a. Medical and dental expenses: Complete lines 1 through 4, supplying all required information.

b. Taxes: Complete lines 5 through 9, supplying all required information. Line 8 must list each type of tax and the amount paid.

c. Interest expense: Complete lines 10 through 14, supplying all required information. This section does not apply to (1) amounts disallowed under Sec. 163(d), unless Form 4952, Investment Interest Expense Deduction, is completed, or (2) amounts disallowed under Sec. 265.

d. Contributions: Complete lines 15 through 18, supplying all required information. Merely entering the donation amount on Schedule A, however, will not constitute adequate disclosure if a taxpayer receives a substantial benefit from the donation shown. If a contribution of property other than cash is made and the amount claimed as a deduction exceeds $500, a properly completed Form 8283, Noncash Charitable Contributions, must be attached to the return. This section will not apply to any contribution of $250 or more, unless the contemporaneous written acknowledgment requirement of Sec. 170(f)(8) is satisfied.

e. Casualty and theft losses: Complete Form 4684, Casualties and Thefts, and attach it to the return. Each item or article for which a casualty or theft loss is claimed must be listed on Form 4684.

2. Certain trade or business expenses (including the following six expenses as they relate to the rental of property):

a. Casualty and theft losses: The procedure outlined above must be followed.

b. Legal expenses: The amount claimed must be stated. This section does not apply, however, to amounts properly characterized as capital expenditures, personal expenses or nondeductible lobbying or political expenditures, including amounts that are required to be (or that are) amortized over a period of years.

c. Specific bad debt charge-off: The amount written off must be stated.

d. Reasonableness of officers' compensation: Form 1120, Schedule E, Compensation of Officers, must be completed when required by its instructions. The time devoted to business must be expressed as a percentage as opposed to "part" or "as needed." This section does not apply to "golden parachute" payments, as defined under Sec. 280G. This section will not apply to the extent that remuneration paid or incurred exceeds the $1 million-employee-remuneration limitation, if applicable.

e. Repair expenses: The amount claimed must be stated. This section does not apply, however, to any repair expenses properly characterized as capital expenditures or personal expenses.

f. Taxes (other than foreign taxes): The amount claimed must be stated.

3. Form 1120, Schedule M-1, Reconciliation of Income (Loss) per Books With Income per Return, provided:

a. The amount of the deviation from the financial books and records is not the result of a computation that includes the netting of items; and

b. The information provided may reasonably be expected to apprise the Service of the nature of the potential controversy concerning the item's tax treatment.

4. Foreign tax items:

a. International boycott transactions: Transactions disclosed on Form 5713, International Boycott Report.

b. Treaty-based return position: Transactions and amounts under Sec. 6114 or Sec. 7701(b), as disclosed on Form 8833, Treaty-Based Return Position Disclosure.

5. Other:

a. Moving expenses: Complete Form 3903, Moving Expenses, and attach it to the return.

b. Employee business expenses: Complete Form 2106, Employee Business Expenses, or Form 2106-EZ, Unreimbursed Employee Business Expenses, and attach it to the return. This section does not apply to club dues or to travel expenses for any nonemployee accompanying the taxpayer on a trip.

c. Fuels credit: Complete Form 4136, Credit for Federal Tax Paid on Fuels, and attach it to the return.

d. Investment credit: Complete Form 3468, Investment Credit, and attach it to the return.

REV. PROC. 2001-11, IRB 2001-2

REFLECTIONS: The completion of Schedule M (Form 5471), Transactions Between Controlled Foreign Corporation and Shareholders or Other Related Persons, lines 19 and 20, and Form 5472, Part IV, Monetary Transactions Between Reporting Corporations and Foreign Related Party, lines 7 and 18, will no longer be adequate disclosure for purposes of reducing the Sec. 6662(d) income tax understatement and avoiding the Sec. 6694(a) preparer penalty.

Rev. Proc. 2001-11 applies to any return filed on 2000 tax forms for a tax year beginning in 2000, and to any return filed on 2000 tax forms in 2001 for short tax years beginning in 2001.
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Article Details
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Title Annotation:tax underpayments
Author:Fiore, Nicholas J.
Publication:The Tax Adviser
Geographic Code:1USA
Date:Mar 1, 2001
Words:1117
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