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The Real Estate Trade or Business Exception from IRC Section 163(j)

By Yoram Keinan
The CPA Journal
August 2019 Edition

The scope of the exception for taxpayers engaged in a real estate trade or business from the harsh consequences of Internal Revenue Code (IRC) section 163(j) remains uncertain, even in the aftermath of the issuance of proposed regulations under that section. In particular, the scope and definition of what constitutes “real estate trade or business” remains unclear, and the reference to the same definition under IRC section 469 [which is unrelated to section 163(j)] is equally unhelpful. This article lists several activities that have been previously treated by courts and the IRS as “real estate trade or business” under section 469, and thus should equally apply to section 163(j).

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Bryan C. Skarlatos quoted in "IRS to Cryptocurrency Owners: Come Clean, or Else!", The Wall Street Journal

The Wall Street Journal quoted Kostelanetz & Fink LLP partner Bryan Skarlatos in their recent article on the Internal Revenue Service’s crackdown on Americans who have not reported income from cryptocurrencies. On his advice to clients who may have made money from crypto, Mr. Skarlatos said, “I tell them, ‘It’s time to put your running shoes on.’ You must get to the IRS before they find you, especially if you got a letter.”

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Six Kostelanetz & Fink Attorneys Recognized in 26th Edition of The Best Lawyers in America©

NEW YORK (August 15, 2019) — Kostelanetz & Fink is pleased to announce that The Best Lawyers in America has recognized six of its attorneys in its 2020 edition. The Best Lawyers in America (2020 edition), released August 15, 2019, recognizes the firm’s attorneys in the areas of Litigation and Controversy – Tax, Tax Law, Commercial Litigation, and Criminal Defense: White Collar. The annual list is based on a peer review process and reflects the consensus opinion of leading lawyers about the professional abilities of their peers within the same geographical regions and practice areas, according to the Best Lawyers website.  

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Marital Privileges

By Caroline Rule
The Journal of the Section of Litigation
Vol. 45 No. 4 Summer 2019

Marriage is perplexing, and the marital privileges even more so. Contradictory views determine when they apply and what they protect. In many states, statutes, rather than case law, govern, but federal law leaves it to the courts, which sometimes results in conflicting decisions among the circuits.

There are two quite different and separate safeguards for spouses. One is the confidential marital communications privilege, which, with some exceptions, allows a spouse to refuse to testify about, or produce documents evidencing, any confidential communication made during a marriage and allows the other spouse to prevent that testimony or document production.

The other privilege is the adverse spousal witness privilege, which applies in criminal proceedings and allows one spouse to refuse to testify against the other spouse. This privilege belongs only to the non-defendant spouse, however. Unless the defendant can invoke the confidential marital communications privilege, she cannot prevent her spouse from testifying against her if he decides to do so. This form of the privilege applies only while the marriage exists. And numerous states have repealed the adverse spousal witness privilege entirely.

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Michael Sardar presented "The Updated IRS Voluntary Disclosure Practice" at The Long Island University Tax Controversy Forum

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Bryan Skarlatos quoted in "IRS Leadership Shuffle Continues With New Division Chiefs", TaxNotes

The IRS has selected two longtime agency executives, Eric Hylton and Tamera Ripperda, to take over as heads of the Small Business/Self-Employed Division and the Tax-Exempt and Government Entities Division, respectively.

Current SB/SE Deputy Commissioner Ripperda will replace TE/GE Commissioner Sunita Lough, who will take over as deputy commissioner of services and enforcement starting September 1. IRS Criminal Investigation Deputy Chief Hylton will then become head of SB/SE, according to an IRS release.

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Tax Controversy Corner: The Internal Revenue Code Injunction Statutes

By Megan L. Brackney
Journal of Passthrough Entities
May - June 2019 Edition

Under the injunction statutes in the Internal Revenue Code, the U.S. government has broad discretion to seek—and the federal courts to order—the injunction of the preparation of false or fraudulent returns, as well as the aiding and abetting of false tax returns, and the promotion of abusive tax shelters. This power includes enjoining persons and businesses from engaging in specific conduct, and other equitable remedies, such as requiring preparers and promoters to turn over their clients’ identities, notify their clients of the injunction, and disgorgement of fees. The injunction statutes provide a powerful civil enforcement tool for the Department of Justice and the IRS. In many ways, the injunction action is a much worse consequence for a tax promoter or preparer than civil penalties because the action is part of the public record (unlike the results of a preparer or promoter audit, which would be subject to taxpayer confidentiality under Code Sec. 6103), and the court may shut down the preparer’s practice altogether. This column discusses the injunction statutes and two recent cases filed against alleged tax shelter promoters.

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Prominent Tax Attorney Robert Russell Joins Kostelanetz & Fink as Counsel in D.C. Office

NEW YORK AND WASHINGTON (July 29, 2019) – Kostelanetz & Fink, LLP is pleased to announce that it is expanding its Washington, D.C. office by bringing on Robert Russell, a prominent domestic and international tax planning and controversy attorney with broad experience in government enforcement and tax policy developed during his tenures with the Internal Revenue Service, U.S. Department of Treasury Office of Tax Policy, and Joint Committee on Taxation.  Mr. Russell’s arrival, the latest in a handful of recent additions to the D.C. office, enhances Kostelanetz & Fink’s already impressive tax controversy and tax planning practice.  

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Bryan Skarlatos Quoted in "IRS Sends Warning Letter to 10,000 Crypto Speculators," Mish Talk

Some cryptocurrency holders are now disclosing past tax lapses to avoid potential criminal prosecution.

Bryan Skarlatos, a lawyer with Kostelanetz & Fink with several such cases, reminds cryptocurrency investors of the IRS’s success in piercing the veil of Swiss bank secrecy. Since 2009, more than 56,000 Americans who hid money in offshore accounts have paid more than $11 billion to resolve tax issues.

"Digital currency holders shouldn’t think they can hide from the IRS," he says.

Smaller investors are also feeling heat. Many traded during last year’s price spike, and tax preparers are now asking clients routinely about cryptocurrency sales. They aren’t supposed to sign returns with unreported income.

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Caroline D. Ciraolo moderated a panel titled "Ethical Pitfalls and How to Avoid Them When Representing Clients in IRS Collections and Audits," at the University of San Diego School of Law - RJS LAW Tax Controversy Institute 2019

The Institute is the premier tax controversy event in San Diego. The region's top tax attorneys, CPAs, and law/business school professors discussed topics including passthrough planning, Wayfair, ethical pitfalls to avoid in practice, and employee classification issues in California.

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