July 29, 2010
Based our recent post on the Sala decision here, we have had several comments inquiring about the varied application of penalties in the “tax shelter” cases. This is the first in a planned series of responses to those comments that will try to explain, iron out, or at least flag, some of the irregularities.
When looking at the application of penalties to “shelter” cases generally, procedural posture matters. A good example of this is Sala. Why did the 10th Circuit discussion in Sala omit penalties? Because it was a refund case in which the taxpayer appears to have filed a qualified amended return (“QAR”) prior to being “caught” by the IRS. See generally 26 C.F.R. § 1.6664-2(c)(2). There is a discussion of whether Sala’s amended return was qualified in the district court opinion and that ruling apparently was not a subject of the appeal. Sala v. United States, 552 F. Supp. 2d 1167, 1204 (D. Colo. 2008). Thus, in a refund suit posture, there may be procedural reasons why penalties are inapplicable.
The refund claim situation is contrasted for penalty purposes with either deficiency proceedings or TEFRA proceedings. In either of the latter, penalties cannot be abated by a QAR (at least as to the matter at issue) because the taxpayer must have a deficiency or adjustment (to income) in order to bring either action. See generally sections 6212 and 6225-6. Thus, in cases such as Gouveia v. Commissioner, T.C. Memo 2004-25 (2004), the Tax Court addressed (and imposed) penalties in a deficiency context. And, in Castle Harbor, the courts addressed (but did not impose) penalties in the context of a TEFRA proceeding. TIFD III-E Inc. v. United States, 2009 U.S. Dist. LEXIS 93853 (D. Conn 2009). (We previously discussed the pending appeal in Castle Harbour here.)
While there is nothing mysterious about the foregoing, the different routes tax cases take can often cause an illusion that there is inconsistency in the application of penalties when, in fact, the cases are just procedurally different. One other area in which this confusion is particularly common (and an area in which there is a bit of a dispute as to the correct application of the law) concerns whose behavior “counts” for purposes of the sections 6662 (reasonable basis) and 6664 (reasonable cause and good faith) defenses in the context of a TEFRA proceeding. We will address that issue in our next post on penalties.