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February 12, 2016
Direct debit installment agreements (DDIA) give taxpayers a convenient way to make payments on their installments while eliminating the need for checks or paper forms and IRS resources to process the payments each month. Revising DDIA procedures to automatically add new liabilities to existing DDIAs could increase revenue collection and reduce taxpayer burden. Taxpayers are required to remain in tax compliance as a condition of entering into an installment agreement, and systemic processes exist to default an installment agreement if a taxpayer incurs and fails to pay a new tax liability. These defaults may occur even if the taxpayer would have preferred adding the new liability to the installment agreement. The Treasury Inspector General for Tax Administration (TIGTA) initiated an audit to determine whether the systemic default of DDIAs due to new tax liabilities causes unnecessary burden on taxpayers and the IRS or improves taxpayer compliance. DDIAs provide benefits for both the taxpayer and the IRS. Taxpayers benefit from establishing DDIAs because they do not have to manually write a check and mail it in order to fulfill their obligations. The IRS benefits because taxpayer payments can be posted faster and do not require IRS employee involvement. In addition, taxpayers who enter into DDIAs are less likely to default on their agreement compared with taxpayers who enter into traditional installment agreements. In order to maintain a DDIA, taxpayers must pay any new tax liability when due or the DDIA will systemically default. When defaulted, the IRS stops automatic collection from the taxpayer’s financial accounts. TIGTA found that when DDIA defaults are due to a new tax liability, most taxpayers want to include the new balance due into their existing DDIA. In addition, the IRS has a procedure that eliminates the need to default the DDIA if a taxpayer incurs a new tax liability, but it is only used when taxpayers request it. As a result, systemic DDIA defaults increased taxpayer burden because taxpayers incurred additional interest on their unpaid balances. In addition, revenue collection was suspended until the DDIAs were restructured, and some DDIAs were not reestablished. TIGTA recommended that the IRS: (1) consider establishing systemic programming to allow DDIA taxpayers who incur a new unpaid tax liability to absorb the new liability into the current agreement without stopping the automatic payment in qualifying situations; (2) in the interim, provide taxpayers with information as to how they can avoid a default of their DDIA in the event of a new unpaid liability on Form 9465, Installment Agreement Request, and Form 433-D, Installment Agreement; and (3) for taxpayers who cannot absorb their liabilities in existing DDIAs, establish procedures so that direct debit payments do not stop while the DDIA is suspended and the IRS actively addresses the new balance due. IRS management agreed that systemically adding a new tax liability to an existing DDIA could save time and collect additional revenue, but did not commit to ensuring that qualifying new liabilities would be absorbed into existing DDIAs or discontinuing the practice of stopping automatic collection when the DDIA is suspended due to a new liability. Management did agree to provide taxpayers with more information on how to avoid default. For the complete audit report go to http://www.treasury.gov/tigta/aud itreports/2016reports/201630011fr.pdf.
In Robert Leon Martin (T.C. Memo. 2016-15) the Tax Court held that the taxpayer had unreported gambling income. The taxpayer received a Form 1099-MISC reporting $1,000 of winnings. The taxpayer claimed that was below the reporting threshold. The Court noted that even if the amount won was below the threshold that had to be reported on an information return (because the wagers were on slot machines where the threshold was $1,200) it was taxable income. In a second issue, the Court held that the taxpayer could not deduct the penalty tax associated with the early withdrawal of funds from an IRA. The Court noted it was not the same as a penalty for early withdrawal of funds from a bank (which would be deductible), but a federal tax and federal taxes are specifically not deductible (Sec. 275).
Tip of the Day
Stockholder debt . . . If you're a stockholder in a corporation and the corporation cancels or forgives your debt to it, the canceled debt is considered a constructive distribution. Depending on the facts, that may be taxable income. If you cancel a debt owed to you by the corporation, you generally do not realize income. The canceled debt is considered as a contribution to the capital of the corporation equal to the amount of debt principal that you canceled.
February 11, 2016
Victims of the severe storms, tornadoes, straight-line winds and flooding that took place beginning on Dec. 26, 2015, in parts of Arkansas may qualify for tax relief from the IRS. The President has declared that a major disaster exists in the State of Arkansas. The IRS announced that affected taxpayers in Arkansas will receive tax relief. Individuals who reside or have a business in Benton, Carroll, Crawford, Faulkner, Jackson, Jefferson, Lee, Little River, Perry, Sebastian, and Sevier Counties may qualify for tax relief. The declaration permits the IRS to postpone certain deadlines for taxpayers who reside or have a business in the disaster area. For instance, certain deadlines falling on or after Dec. 26, and on or before May 16, 2016, have been postponed to May 16, 2016. This includes 2015 income tax returns normally due on April 18. It also includes the Jan. 15 and April 18 deadlines for making quarterly estimated tax payments. A variety of business tax deadlines are also affected including the Feb. 1 and May 2 deadlines for quarterly payroll and excise tax returns and the special March 1 deadline for farmers and fishermen who choose to forgo making estimated tax payments. In addition, the IRS is waiving the failure-to-deposit penalties for employment and excise tax deposits due on or after Dec.26, as long as the deposits were made by Jan. 11, 2016. If an affected taxpayer receives a late filing or late payment penalty notice from the IRS that has an original or extended filing, payment or deposit due date that falls within the postponement period, the taxpayer should call the telephone number on the notice to have the IRS abate the penalty. The IRS automatically identifies taxpayers located in the covered disaster area and applies automatic filing and payment relief. But affected taxpayers who reside or have a business located outside the covered disaster area must call the IRS disaster hotline at 866-562-5227 to request this tax relief. Taxpayers may claim the disaster loss on their 2014 or 2015 returns. Affected taxpayers claiming the disaster loss on a 2014 return should put the Disaster Designation "Arkansas, Severe Storms, Tornadoes, Straight-line Winds, and Flooding" at the top of the form so that the IRS can expedite the processing of the refund. For more information go to IRS.gov.
Traditionally, the Tuesday after Presidents Day is the busiest day of the year for phone calls. The IRS will staff the toll-free lines on Saturday, February 13 and Monday, February 15, the Presidents Day holiday in an effort to answer more taxpayer calls. The hours of operations are 9 a.m. to 5 p.m. local time on Saturday and 7 a.m. to 7 p.m. local time on Monday. But on IRS.gov , taxpayers can, among many things, check the status of their refund, request a copy of their tax transcript or get an answer to their tax questions around the clock. "The entire week of the Presidents Day holiday marks a peak time for the IRS," said IRS Commissioner John Koskinen. "We're keeping our phones open over part of the holiday weekend to manage the increased demand." The easiest and fastest way to check on a refund is to go to IRS.gov.
Tip of the Day
Charitable organization scams . . . The best scam is one that preys on an individual's desires. In a charitable scam the perpetrators are relying on an individual's desire to help others or by shaming them into contributing. There are several ways to get scammed. The first is with a completely fake charity, often with a name similar to one you'll recognize as legitimate. The funds are usually solicited by a phone call or e- mail. If you really want to give, get the charity's federal identification number (EIN) and look up the charity at EO Select Check at IRS.gov. If they won't provide their ID, move on quickly. With a fake charity you'll be out your money, there's no charitable contribution, and no tax deduction. The second way to get scammed is to donate to a charity where most of the money is spent on employee salaries and fund raising. It's not unusual for some legitimate charities to spend only 25% of the funds raised on their charitable purpose. This one is harder to avoid. You'll have to do some digging. There are several web sites that rate charities. The best approach is to spend the time to do your research and find one or more charities you want to support and stick to them. Another point. Always pay by check or credit card and don't provide any personal information, even to legitimate charities.
February 10, 2016
As a result of severe storms, tornadoes, straight-line winds, and flooding during the period of December 23 to 31, 2015, the president determined that certain areas in Alabama are eligible for assistance from the government. Taxpayers in the counties of Autauga, Barbour, Blount, Bullock, Butler, Chambers, Cherokee, Clay, Cleburne, Coffee, Colbert, Conecuh, Covington, Crenshaw, Cullman, Dale, DeKalb, Elmore, Escambia, Fayette, Franklin, Geneva, Henry, Houston, Jackson, Lamar, Lawrence, Lee, Lowndes, Macon, Marion, Marshall, Monroe, Perry, Pike, Russell, St. Clair, Walker and Winston who sustained losses related to the disaster may deduct the losses on their 2014 or 2015 returns.
Valuation issues often give rise to disputes between the IRS and taxpayers. That was the issue in a Tax Court case (T.C. Memo. 2014-79). But neither side was happy with the Court's decision. The case involved a conservation easement donated by the taxpayer. The IRS did not agree with the Court's decision as to the highest and best use of the property used to determine the valuation and the taxpayer believed the property should secure a higher (by several million dollars) valuation. The case was appealed and became Palmer Ranch Holdings Ltd. et al. (U.S. Court of Appeals, Eleventh Circuit). The Court of Appeals sided with the Tax Court in finding the highest and best use, but not with the accompanying valuation. The Court found the Tax Court's valuation faulty because it used an old appraisal, not in evidence modified by monthly appreciation rates, not comparable sale. The Court affirmed in part, reversed in part, and remanded the case to the Tax Court for further proceedings.
Tip of the Day
Cancellation of corporate debt . . . If you are a shareholder in a corporation and you cancel a debt owed to you by the corporation, you generally do not realize income. This is because the canceled debt is considered as a contribution to the capital of the corporation equal to the amount of debt principal that you canceled.
February 9, 2016
Certain areas in Washington are eligible for assistance from the federal government as a result of a severe winter storm, straight-line winds, flooding, landslides, mudslides and a tornado during the period of December 1 to 14, 2015. As a result, taxpayers in the counties of Clallam, Clark, Cowlitz, Grays Harbor, Jefferson, Lewis, Mason, Pacific, Skamania and Wahkiakum who sustained losses attributable to the disaster may deduct the losses on their 2014 or 2015 federal income tax returns.
Sec. 7605 prohibits the IRS from inspecting a taxpayer's records when auditing a tax liability for a given year when the agency has already inspected the records in auditing the taxpayer's liability for the same tax year. In Titan International, Inc. (U.S. Court of Appeals, Seventh Circuit) the IRS sought the same tax records for a 2010 audit that it requested for a 2009 audit. The Court noted that the IRS's administrative summons sought the same records, but for a net operating loss carryforward to 2010. The Court held that because the IRS summoned the 2009 records in connection with an audit of the taxpayer's 2010 return, not its 2009 return, Sec. 7605(b) imposed no barrier to the request.
Tip of the Day
Starting distributions from retirement plans . . . You generally must begin to receive distributions from your qualified retirement plan by April 1 of the year that follows the later of the calendar year in which you reach age 70-1/2, or the calendar year in which you retire from employment with the employer maintaining the plan. If you're a more than 5% owner of the business maintaining the plan, the second exception doesn't apply. You must begin taking distributions in the year you reach 70- 1/2.
February 8, 2016
If an employee uses a company car for personal purposes the business must include the value in the employee's W-2 in order to take a full business deduction. One of the ways to value the auto usage is the cents-per-mile valuation (i.d., the standard mileage amount). But that can only be used if the fair market value of the vehicle is below a certain dollar amount. In Notice 2016-12 (IRB 2016-6) the IRS reported the threshold for 2016--$15,900 for a passenger auto and $17,700 for a truck or van. If the fleet-average valuation rule is applicable is $21,200 for an auto and $23,100 for a truck or van.
The Protecting Americans from Tax Hikes Act (PATH), enacted in December 2015 indexes for inflation the deductible amount for educator's expenses, qualified transportation fringes and the Section 179 expense option. Rev. Proc. 2016-14 reported that for 2016 there are no changes in the first two amounts. For 2016 the phaseout of the Sec. 179 expense option begins at $2,010,000 (an increase of $10,000); the amount that can be deducted is unchanged.
Tip of the Day
Military service and tax breaks . . . The IRS provides a number of tax breaks to military personnel. They range from deadline extensions to the exclusion of certain pay for those in the military in a combat zone. To get an idea of the benefits, get IRS Publication 3, Armed Forces' Tax Guide. If you're using a professional preparer be sure to tell him or her about your military status.
February 5, 2016
The IRS sustained a hardware failure in the modernized e-file (MeF) system on Wednesday (February 3rd) afternoon. The system was reported to be up in late afternoon on Thursday (4th) and is fully operational. The failure meant that returns could not be filed electronically and a number of taxpayer and tax practitioner tools were not available. The IRS does not anticipate that the failure will delay refunds and e-file providers should continue submitting returns.
The President determined that certain areas in Washington are eligible for disaster assistance as a result of severe storms, straight-line winds, flooding, landslides and mudslides during the period of November 12 to 21, 2015. Taxpayers in the counties of Chelan, Clallam, Garfield, Island, Jefferson, Kittitas, Lewis, Lincoln, Mason, Pend Oreille, Skamania, Snohomish, Spokane, Stevens, Wahkiakum and Whitman who sustained losses attributable to the disaster may deduct the losses on their 2014 or 2015 federal income tax returns.
Tip of the Day
Calculating employees for Affordable Care Act requirements . . . Under the Affordable Care Act, employers with 50 or more full-time equivalent employees are applicable large employers and will need to file an annual information return reporting whether and what health insurance they offered employees. In addition, they are subject to the Employer Shared Responsibility provisions. Under the Act:
February 4, 2016
The IRS, the states and the tax industry have taken new steps for 2016 to protect you and help reduce the risk of identity theft affecting your tax returns this filing season. As a result you may find some changes if you file your own return electronically. On federal returns you may have to change your password. Some states are requesting your driver's license number. In addition, you may be locked out of your software if you make too many attempts to enter a password. For more information go to How New Identity Security Changes May Affect Taxpayers for 2016 at the IRS Web site.
The IRS has released Form 8971, Information Regarding Beneficiaries Acquiring Property From a Decedent, and the accompanying instructions. The form provides information on the valuation of assets in the estate and a copy of the valuation must be provided to the beneficiaries. An executor of an estate or other person(s) required to file Form 706 or Form 706-NA under Sections 6018(a) and 6018(b) or a qualified heir required to file Form 706-A under Section 2032A, if the return is filed after July 2015, and whether or not that form is filed timely, is required to file Form 8971 with attached Schedule(s) A with the IRS and to provide each beneficiary listed on the Form 8971 with that beneficiary’s Schedule A. Form 8971 must be filed with the IRS within 30 days of filing Form 706 or 706-NA and Schedule A must be provided to the beneficiary within the same period. There are substantial penalties (on the number of beneficiaries) for failure to file based.
Tip of the Day
Domicile . . . Deciding which state return to file is generally easy, even if you moved last year. For example, you've in Massachusetts for the last 5 years but your spouse took a new job in New York (assume you're a free-lance programmer). You sold your home on August 31 and moved into an apartment in Albany, NY and began work at the new job the next day. You were a resident of Massachusetts until August 31. Your income for the first eight months of 2015 should be reported on a part-year resident Massachusetts return; your income for the remaining four months should be reported on a part-year New York return. Sometimes it's not as clear cut. Assume your spouse switched jobs but you continued to live in Massachusetts while she commuted to Albany for the last four months of 2015. In that case you'd probably file as Massachusetts resident for the full year and as a New York nonresident for the last four months. If you moved to Albany, that is, definitely abandoned your home in Massachusetts, but didn't sell your it, most likely you're a New York resident for the last four months. But Massachusetts may try to claim you as a resident too. In that case it can depend on additional facts and circumstances. And, if you've got homes and work in both states, it will depend on where you spend the majority of the year. Here you'll need a log to prove how many days you spent in each state.
February 3, 2016
The IRS has issued proposed regulations (REG-125761-14) that modify the nondiscrimination requirements applicable to certain retirement plans that provide additional benefits to a grandfathered group of employees following certain changes in the coverage of a defined benefit plan or a defined benefit plan formula. The proposed regulations also make certain other changes to the nondiscrimination rules that are not limited to these plans. These regulations would affect participants in, beneficiaries of, employers maintaining, and administrators of tax-qualified retirement plans.
In re: Earl Douglas Addison, Debtor. (U.S. District Court, W.D. Virginia, Abingdon Div.) was an appeal from an order of the bankruptcy court holding that the government violated the Bankruptcy Code's automatic stay provision when it withheld the debtor's federal income tax refunds. The government withheld those funds in an effort to satisfy a non-tax debt owed by the debtor to the United States Department of Agriculture ("USDA"), and argues that it was empowered to do so by the Treasury Offset Program. The Court noted that as the bankruptcy court acknowledged, this is a difficult issue. Courts are split as to whether such an offset is appropriate in the face of the automatic stay of the Bankruptcy Code. While arguments can be made in favor of both outcomes, the Court found that the bankruptcy court correctly decided this issue, that is, holding that the refund was the property of the bankruptcy estate. The Court affirmed the bankruptcy court's decision.
Tip of the Day
Picking the right filing status . . . Often it's easy. You're single and have no children. there's only one choice, single. Or you're married, with or without children. Chances are that married, filing jointly will result in the lowest taxes--but not always. There are circumstances where, married, filing separate will save taxes. If you're using tax software to prepare your return (or using a professional), running a second scenario as married, filing separate is usually fairly simple. And running the calculations both ways is the only safe way to determine the best filing status. Head of household status can be used if you're not married but paid more than half the cost of keeping up a home for yourself and a qualifying person, such as your son or daughter. This is advantageous because the tax rates are lower. The last option is qualifying widow(er) with dependent child. This status may be applicable if your spouse died during 2013 or 2014 and you have a dependent child. Determining your status can get tricky. Are you sure you're not married for tax purposes. Check the definitions in the instructions or IRS Publication 17.
February 2, 2016
Notice 2016-16 (IRB 2016-7)provides guidance on mid- year changes to a safe harbor plan under Secs. 401(k) and 401(m) of the Code. The notice provides that a mid- year change either to a safe harbor plan or to a plan's safe harbor notice does not violate the safe harbor rules merely because it is a mid-year change, provided that applicable notice and election opportunity conditions are satisfied and the mid-year change is not a prohibited mid-year change, as described in the notice. In addition, the notice requests comments on additional guidance that may be needed, in particular with respect to mid-year changes to safe harbor plans in cases in which a plan sponsor is involved in a merger or acquisition.
Notice 2016-13 (IRB 2016-7) provides transition relief for Section 529 qualified tuition programs that timely file a 2015 Form 1099-Q, Payments From Qualified Education Programs (Under Sections 529 and 530), that does not reflect the repeal of the aggregation requirement under Section 529(c)(3)(D) applicable to distributions from qualified tuition programs. Section 302(b) of the Protecting Americans from Tax Hikes Act of 2015 (the PATH Act), enacted on December 18, 2015, as part of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), repealed section 529(c)(3)(D) effective for distributions made after December 31, 2014. In response to concerns expressed by section 529 qualified tuition programs about their inability to adjust their systems to retroactively accommodate the new method of calculating the earnings portion of a distribution before the due date of the 2015 Form 1099-Q, the IRS will not impose penalties under Section 6693 solely because of a reported earnings computation that does not reflect the repeal of section 529(c)(3)(D). This notice is limited to 2015 Forms 1099-Q. This notice also provides information regarding the other changes made to section 529 by the PATH Act.
Tip of the Day
Quid pro quo . . . You may not be able to deduct the full amount of a charitable contribution if you receive something in return. For example, you contribute $300 to the local museum. In return you and your spouse are entitled to dinner at the museum for a special exhibition opening for patrons. The cost of the dinner is $40 each. You can only deduct $220. That's true even if you decide not to go. There is an exception for certain low-cost items received by the donor The charity should inform you of the deductible amount if there's a difference between it and your contribution.
February 1, 2016
Mississippi storm victims will have until May 16, 2016, to file their returns and pay any taxes due, the IRS has announced. All workers assisting the relief activities who are affiliated with a recognized government or philanthropic organization also qualify for relief. Affected taxpayers in Benton, Coahoma, Marshall, Monroe, Panola, Prentiss, Quitman and Tippah counties will receive this and other special tax relief. Other locations in Mississippi and other states may be added in coming days, based on damage assessments by FEMA. The tax relief postpones various tax filing and payment deadlines that occurred starting on Dec. 23, 2015. As a result, affected individuals and businesses will have until May 16, 2016, to file their returns and pay any taxes due. This includes 2015 income tax returns normally due on April 18. It also includes the Jan. 15 and April 18 deadlines for making quarterly estimated tax payments. A variety of business tax deadlines are also affected including the Feb. 1 and May 2 deadlines for quarterly payroll and excise tax returns and the special March 1 deadline for farmers and fishermen who choose to forgo making estimated tax payments. In addition, the IRS is waiving late-deposit penalties for federal payroll and excise tax deposits normally due on or after Dec. 23 and before Jan. 7 if the deposits are made by Jan. 7, 2016. For additional information go to IRS Provides Tax Relief to Mississippi Storm Victims Tax Deadline Extended.
Tip of the Day
Basis in Roth distributions . . . The big advantage with Roth IRAs is that there's no tax on any distributed amount. But once property is distributed from a Roth a later sale can generate a gain or a loss. What's your basis in the property for computing the gain or loss? It's the fair market value on the date distributed out of the Roth. It's important to be able to substantiate your basis if you're audited by the IRS.
January 29, 2016
The Internal Revenue Service is reminding taxpayers that it issues 90 percent of refunds in less than 21 days. The best way to check the status of a refund is online through the Where’s my Refund? tool at IRS.gov or via the IRS2Go phone app. "Where’s My Refund?" has the most up to date information available about your refund. Taxpayers should use this tool rather than calling. Taxpayers can use "Where’s My Refund?" to start checking on the status of their return within 24 hours after IRS has received an e-filed return or four weeks after receipt of a mailed paper return. "Where’s My Refund?" has a tracker that displays progress through three stages: (1) Return Received, (2) Refund Approved and (3) Refund Sent.
In Rodney C. Niemann (T.C. Memo. 2016-11) the Tax Court denied the taxpayer a deduction for business travel where he only offered reconstructed logs that he prepared after receiving the notice of deficiency, The Court noted that reconstructed logs often fail to properly detail the business purpose of each expense. And the taxpayer didn't offer any other corroborating evidence aside from his own, albeit credible, testimony that his business required travel. The Court said Section 274 simply requires more specificity. The Court did side with the taxpayer with respect to the IRS's claim that the taxpayer did not substantiate a home office deduction. The Court noted the IRS raised that issue for the first time during the trial. The Court has often held that it won't consider issues that haven't been properly raised in the pleadings or by amendment to the pleadings. The Court said the potential for unfair prejudice was plain. The taxpayer had credibly testified that the IRS hadn't previously asked for substantiation. The Court declined to consider the issue.
Tip of the Day
1099s, W-2s due . . . Don't forget that the deadline for mailing 1099s and W-2s to recipients is February 1 (January 31 is a Sunday). The penalty for not filing 1099s is not insubstantial. And you must indicate on your business income tax return if you filed required 1099s. Generally, you don't have to file a 1099 for payments made to a corporation (C or S). But that exception doesn't apply to payments for health care (e.g., to a physician, physical therapist) or to an attorney. You'll know to send a 1099 to your accountant and the consulting firm that did work for you, but what about the auto repair shop that did work on the company truck? Or the electrician who installed the extra outlets in the office? Get the IRS instructions on Form 1099-MISC.
January 28, 2016
The IRS has issued proposed regulations (REG-147310-12) under Section 401(a) of the Code. These regulations would provide rules relating to the determination of whether the normal retirement age under a governmental plan (within the meaning of Section 414(d) of the Code) that is a pension plan satisfies the requirements of Section 401(a) and whether the payment of definitely determinable benefits that commence at the plan's normal retirement age satisfies these requirements.
In LG Kendrick, LLC (146 T.C. No. 2) the taxpayer was a single-member LLC that operated a franchise business. The IRS determined that the LLC had employees and had unpaid Federal employment taxes, i.e., unpaid withholding and Federal Insurance Contributions Act tax liabilities with respect to its Forms 941, for the last three quarters of 2009 and all four quarters of 2010 and unpaid Federal Unemployment Tax Act tax liabilities with respect to its Forms 940, for the 2009 and 2010 taxable years (collectively, periods at issue). After processing substitutes for returns and assessing the employment taxes for the periods at issue, the IRS mailed to the taxpayer a notice of the filing of a notice of Federal tax lien (NFTL) and a levy notice with respect to the periods at issue. the taxpayer timely requested and received a Sec. 6320/6330 hearing with the IRS Appeals Office. The Appeals Office subsequently issued two notices of determination sustaining the NFTL filing and the proposed levy for the periods at issue except the NFTL filing for the taxpayer's December 31, 2010, Form 941 liability, which the notices did not address. The taxpayer filed a petition disputing the Appeals Office's determinations. The Tax Court remanded this case on the IRS's motion, and the Appeals Office issued a supplemental notice of determination. The supplemental notice sustained the NFTL filing and the proposed levy for the periods at issue including the NFTL filing for the taxpayer's December 31, 2010, Form 941 liability. The Court held the original notices of determination did not embody a determination to sustain, and therefore were invalid with respect to, the NFTL filing for the taxpayer's December 31, 2010, Form 941 liability. The Court also held a supplemental notice of determination that sustains a collection action for a taxable period cannot form the basis for the Court's jurisdiction when the original notice of determination was invalid with respect to the collection action for that taxable period and the Court does not have jurisdiction to review the NFTL filing for the taxpayer's December 31, 2010, Form 941 liability. The Court further held the taxpayer was not entitled to challenge the underlying liabilities for the periods at issue over which the Court has jurisdiction. Finally, the Tax Court held the Appeals Office's determinations were sustained for the periods at issue over which the Court has jurisdiction.
Failure to follow either the law or the provisions of a pension plan can cause the plan to lose its qualification. In Family Chiropractic Sports Injury & Rehab Clinic, Inc. (T.C. Memo. 2016-10) the taxpayer challenged the IRS's final revocation letter determining that for its plan year ending June 30, 2003, and its subsequent plan years, the Family Chiropractic Sports Injury & Rehab Clinic, Inc. Employee Stock Ownership Plan (ESOP or plan) was not qualified under Section 401(a) and that the related trust was not exempt from taxation under Section 501(a). On brief the IRS limited its position to relying solely on the ESOP's qualification for its plan year ending June 30, 2010 (2010 plan year), and subsequent plan years. The issue before the Court was whether there was an abuse of discretion in the IRS's determination. To decide that question, the Court had to consider whether for its 2010 plan year and subsequent plan years the ESOP: (1) failed in operation to satisfy the antialienation requirements of Section 401(a)(13) and Section 1.401(a)-13 (b), Income Tax Regs. (when it transferred a participant's fully vested plan benefits) and (2) failed to follow its plan document in operation as required by Section 1.401-1(a)(2) and (b)(3), Income Tax Regs. (when it transferred a participant's fully vested plan benefits). The Court found no abuse of discretion by the IRS.
Tip of the Day
Disregarded entities . . . For most taxpayers that means a single member LLC. If you're the only owner in an LLC the IRS considers it a disregarded entity and, instead of reporting the income from a sole proprietorship on a separate return, you report it on Schedule C of your personal return. If the LLC's only activity is the holding of rental real estate, you report the income on your Schedule E of your 1040. Most, but not all states, follow the same rule. Check the rules for the states in which you do business. And check to make sure you don't have to file another form.
January 27, 2016
The IRS has posted two pages to its site dealing with identity theft. IRS Identity Theft Victim Assistance: How it Works and How New Identity Security Changes May Affect Taxpayers for 2016. They're a worthwhile read for everyone, even if you haven't been hit by identity theft yet.
The IRS has issued proposed amendments (REG-134122-15) to the regulation relating to the user fee for the special enrollment examination to become an enrolled agent. The charging of user fees is authorized by the Independent Offices Appropriations Act (IOAA) of 1952. This document also contains a notice of public hearing on this proposed regulation. The proposed regulation affects individuals taking the enrolled agent special enrollment examination. Under the proposed amendment, the user fee for taking the exam would increase to $99.
In 2004 the taxpayer, a German citizen, made an installment sale of his stock in a U.S. corporation, and in 2010, the year in issue, he received equal monthly payments pursuant to a promissory note executed in connection with the sale. He filed a late Form 1040NR, U.S. Nonresident Alien Income Tax Return, for 2010 claiming that the installment sale proceeds were exempt from taxation by virtue of the U.S.-Germany Tax Treaty. On Nov. 20, 2010, the taxpayer completed paperwork to formally abandon his lawful permanent resident (LPR) status. The IRS determined that he was liable for an income tax deficiency for 2010 attributable to the gain on his installment sale of stock. The IRS also determined that he was a "covered expatriate" who expatriated in 2010 and must recognize gain on the deemed sale of his installment obligation on the day before his expatriation under Sec. 877A. The IRS further determined that the taxpayer was liable for an accuracy-related penalty and a failure to file addition to tax. The taxpayer alleged that he was not liable for the installment sale proceeds because he was a German resident who expatriated on Dec. 31, 2009. The taxpayer moved for summary judgment, and the IRS cross-moved for partial summary judgment. The Tax Court held the taxpayer expatriated on Nov. 20, 2010, when he formally abandoned his status as an LPR and that he was liable for tax on gains attributable to the 11 monthly installment payments that were made during 2010 before his expatriation date. The Court also held he was liable for tax on gain from the deemed sale of his right to installment sale proceeds on the day before his expatriation date pursuant to Sec. 877A. (Gerd Topsnik, 146 T.C. No. 1)
Tip of the Day
Refinancing a rental or business property? . . . If you refinance your personal residence with a loan larger than the outstanding principal on the existing mortgage, interest on the excess is generally not deductible. There are some exceptions--if the money is used to improve the residence or it qualifies as a home equity loan ($100,000 or less). With rental or business property the same rules generally apply, but the home equity exception obviously isn't available. In the case of a rental, refinance for more than the existing loan and the interest on the excess is not deductible unless the excess funds are used in the rental activity. For a business, the interest is deductible if the excess funds are used by the business. However, in both cases, if the funds are diverted to personal use, the interest isn't deductible. The same rules generally hold for points paid on the refinancing.
January 26, 2016
Missouri storm victims will have until May 16, 2016 to file their returns and pay any taxes due, the IRS announced. All workers assisting the relief activities who are affiliated with a recognized government or philanthropic organization also qualify for relief. Following the disaster declaration for individual assistance issued by the Federal Emergency Management Agency (FEMA), the IRS said that affected taxpayers in Barry, Barton, Camden, Cape Girardeau, Cole, Crawford, Franklin, Gasconade, Greene, Hickory, Jasper, Jefferson, Laclede, Lawrence, Lincoln, Maries, McDonald, Morgan, Newton, Osage, Phelps, Polk, Pulaski, Scott, St. Charles, St. Francois, St. Louis, Ste. Genevieve, Stone, Taney, Texas, Webster and Wright counties will receive this and other special tax relief. Other locations in Missouri and other states may be added in coming days, based on damage assessments by FEMA. The tax relief postpones various tax filing and payment deadlines that occurred starting on Dec. 23, 2015. As a result, affected individuals and businesses will have until May 16, 2016 to file their returns and pay any taxes due. This includes 2015 income tax returns normally due on April 18. It also includes the Jan. 15 and April 18 deadlines for making quarterly estimated tax payments. A variety of business tax deadlines are also affected including the Feb. 1 and May 2 deadlines for quarterly payroll and excise tax returns and the special March 1 deadline for farmers and fishermen who choose to forgo making estimated tax payments. In addition, the IRS is waiving late-deposit penalties for federal payroll and excise tax deposits normally due on or after Dec. 23 and before Jan. 7 if the deposits are made by Jan. 7, 2016. For more information go to IRS Provides Tax Relief to Missouri Storm Victims.
Rev. Proc. 2016-13 (IRB 2016-4) updates Rev. Proc. 2015-16 and identifies circumstances under which the disclosure on a taxpayer's income tax return with respect to an item or position is adequate for the purpose of reducing the understatement of income tax return under Sec. 6662(d) (accuracy-related penalty) and for the purpose of avoiding the tax return preparer penalty under Sec. 6694(a) (relating to understatements due to unreasonable positions). The revenue procedure does not apply with respect to any other penalty provisions. If this revenue procedure does not include an item, disclosure is adequate with respect to that item only if made on a properly completed Form 8275 or 8275-R attached to the return or a qualified amended return.
Tip of the Day
More than one sole proprietorship? . . . If you operate more than one sole proprietorship, you've got to file separate Schedule C's for each one. That's not always easy to ascertain. If you're operating an auto body shop out of the same location as your auto repair, that's probably a single business. But if you have an auto repair business and also own a marina, you should be filing two Schedule C's.
January 25, 2016
The IRS is urging all tax return preparers to get off to a clean start this January and perform a deep security scan of their computer drives and devices. Already in 2016, the IRS is seeing multiple email phishing scams targeting tax preparers. These scams are designed to steal sensitive information either the preparers’ passwords for IRS accounts or sensitive taxpayer data stored on computers.
The IRS Return Preparer Office has began sending PTIN (Preparer Tax Identification Number) expiration notices to tax professionals who have not renewed their PTINs. Notices will go to approximately 150,000 PTIN holders. The notice explains that the recipient’s PTIN has expired but can be renewed at any time. Until it is renewed, however, the practitioner should not be preparing returns.
The IRS is sending letters to tax preparers who (1) filed two or more tax year 2015 returns claiming the Earned Income Tax Credit without completing Form 8867, Paid Preparers’ EITC Checklist, and (2) who submitted questionable 2015 tax year returns claiming the EITC. These preparers may receive Letter 5364, Alert to EITC Return Preparers - Missing Form 8867 or Letter 4858, Alert to Return Preparers Related to EITC Claims. Both letters are informational at this point but remind tax preparers that they need to meet their due diligence requirements. A $505 penalty per return could be imposed if those requirements are not met. Preparers could also be subject to additional audits, possible suspension from the e-file program and other corrective actions. The IRS will continue to monitor the returns they prepare. The letters and other due diligence information can be viewed on the EITC Central page on IRS.gov.
Tip of the Day
Bear market and taxes . . . Are we in a new bear market? A correction? No one is sure, but there are some ways to take advantage of a drop in the market from a tax standpoint. One is to convert traditional IRA to a Roth. With the lower market you can convert more "shares" for less tax dollars. You don't want to convert an IRA that's holding fixed income investments or stock that hasn't declined with the market. You might consider holding out to see if the market drops more (talk to your investment advisor), but you do get a second chance here. If the market continues to fall you can reverse the action and "unconvert". You can then do a second conversion, but you'll have to wait 30 days. Discuss your options with your investment and tax advisor. You'll pay less taxes if you can do the conversion in a year when your income will be lower.
January 22, 2016
The Treasury Inspector General for Tax Administration (TIGTA) is urging taxpayers to remain on high alert and announced additional outreach efforts to prevent them from falling victim to criminals who impersonate IRS and Treasury employees this filing season. The phone fraud scam has become an epidemic, robbing taxpayers of millions of dollars of their money. TIGTA is making progress in its investigation of this scam, resulting in the successful prosecution of some individuals associated with it over the past year. TIGTA noted that over the summer, a ringleader was sentenced to more than 14 years in federal prison. However, this is still a matter of high investigative priority. TIGTA continues to receive reports of thousands of contacts every month in which individuals fraudulently claiming to be IRS officials make unsolicited calls and robocalls to taxpayers and demanding that they send them cash. For additional information, go to www.treasury.gov/tigta/press/press_tigta- 2016-01.htm.
In Wiley M. Elick DDS, Inc. (U.S. Court of Appeals, Ninth Circuit) the Court of Appeals sided with the Tax Court in finding in finding the filing of an amended petition 41 days prior to trial, after the discovery deadline, and after nearly two yearsd of litigation would have prejudiced the IRS. In addition, failure to timely file a tax return was not excused by reliance on an agent, since such reliance "cannot function as a substitute for compliance with an unambiguous statute". Finally, the Court sided with the Tax court in finding the management fees paid to a related corporation were not ordinary and necessary business expenses.
Tip of the Day
Refunds and rebates of real estate taxes . . . If you received a refund or rebate in 2015 of real estate taxes you paid in 2015, reduce your deduction on Schedule A by the amount of the refund or rebate. If you received a refund or rebate in 2015 of taxes you paid in an earlier year, don't reduce your deduction. Instead, include the refund or rebate in income on Form 1040, line 21 if you deducted the taxes in the earlier year and the deduction reduced your tax. If the deduction in that year produced a full benefit, include the entire amount in income. If you didn't itemize in the earlier year, you don't have to include the refund in income. If you got a partial benefit, see IRS Publication 525.
January 21, 2016
The IRS is advising authorized IRS e-file Providers must not submit electronic returns to the IRS prior to the receipt of all Forms W-2, W-2G, and 1099-R from the taxpayers. Authorized IRS e-file Providers must not submit electronic returns to the IRS prior to the receipt of all Forms W-2, W-2G, and 1099-R from the taxpayers. If taxpayers are unable to secure and provide a correct Form W-2, W-2G, or 1099-R, Providers may submit the electronic return only after securing Form 4852.
In Jeffrey J. Evans (T.C. Memo. 2016-7) the taxpayer maintained that a loss from the foreclosure sale of a property he was developing was ordinary and the loss was sustained in 2008, resulting in an NOL carryover to 2009. Alternatively, the character of the loss was ordinary and the loss was sustained in 2009. The IRS's position was that the character of the loss from the foreclosure sale of the property was capital and the loss was sustained in 2008. The Court noted that under California law, a nonjudicial foreclosure sale generally constitutes a final adjudication of the rights of the debtor and the lender, and a debtor whose property is sold in a nonjudicial foreclosure sale has no right to redeem the foreclosed property. That meant the foreclosure and capital loss occurred in 2008, even though the taxpayer didn't receive his share of the proceeds from the sale until 2009. The Court examined the usual factors to determine if the property was a capital asset in the taxpayers' hands. The Court concluded that the taxpayer's personal real-estate- development activities did not constitute a trade or business for purposes of Section 1221(a)(1) and that the property was a capital asset. Consequently, the loss he incurred on the foreclosure sale of the property was a capital loss.
Tip of the Day
Expert forecasts . . . If you looked at the forecasts from experts two years ago we doubt if more than 1% would have predicted oil prices below $75 a barrel in January 2016. While we may be encountering a confluence of unusual circumstances, that's not the point. There will always be situations that no one could have foreseen. In business you might call it a random walk down Main Street. The new restaurant that is closed for two months because of a fire in the building next door. The basement flood caused by a water main break two blocks away. The ship that carried your new line of dresses sinks. There's almost no way to plan for these contingencies. Insurance may help, but the only real answer may be to maintain a cash cushion. Or in the case of a windfall--the restaurant that's closed is your competitor's--be able to take advantage of the situation. Again, that may require a cash cushion.
January 20, 2016
Notice 2016-09 (IRB 2015-06) extends the date by which social welfare organizations must notify the Internal Revenue Service of intent to operate under Section 501(c)(4), as required by new section 506, added to the Internal Revenue Code by the Protecting Americans from Tax Hikes Act of 2015. With respect to the separate process by which an organization may, at its option, request a determination that it qualifies for section 501(c)(4) tax-exempt status, the Notice states that organizations seeking IRS recognition of section 501(c)(4) status should continue using Form 1024, Application for Recognition of Exemption Under Section 501(a), until further guidance is issued and clarifies that the filing of Form 1024 will not relieve an organization of the requirement to submit the section 506 notification.
Tip of the Day
Wigs deductible? . . . You may be able to deduct a wig as a medical expense if purchased on the advice of a doctor for the mental health of a patient who has lost all of his or her hair from disease.
January 19, 2016
The IRS and Free File Alliance announced the launch of Free File with changes and updates for 2016, including more free state tax return options and easier Form W-2 imports. For 2016, there are 13 brand-name tax software providers making their federal tax return products available for free. Taxpayers whose adjusted gross income was $62,000 or less during 2015 are eligible for at least one, if not more, of the 13 tax software products. The income limitation is $2,000 higher than last year. Returns can be transmitted to the IRS beginning January 19, when the filing season officially begins. For taxpayers who earned more than $62,000, there’s Free File Fillable Forms, the electronic version of IRS paper forms. Free File Fillable Forms will be available on Jan. 19. You don’t have to be an expert on taxes. Free File software can help walk you through the steps and help you get it right, Free File is available only at IRS.gov/FreeFile. Some providers allow the preparation of state tax returns for free; some charge a fee. State tax return offers are at the discretion of the providers. For each month in 2015, taxpayers and everyone on their return must:
Most people will simply have to check a box to report health care coverage for the entire year.
Tip of the Day
Basis in inherited property . . . The general rule is that your basis in inherited property is equal to the fair market value of the property on the date of death of the decedent. While that's true a very high percentage of the time, there are a couple of exceptions. First, the executor can use an alterate valuation date. The alternate valuation date is used if the value of the property decreases after the date of death and is six months after death or when the property is disposed of, whichever is earlier. Second, the basis is different if you or your spouse gave the property to the decedent within one year before his or her death. For example, you own a property you purchased for $25,000 that's now worth $500,000. You can't avoid the capital gain rules by giving it to your mother who dies within a year and leaves the property to you. Finally, if the will doesn't leave you the property directly, but lets you purchase it (presumably at a discount), your basis will be the purchase price.
January 15, 2016
Notice 2016-05 (IRB 2016-06) provides rules for claimants to make one-time claims for the 2015 biodiesel mixture and alternative fuel excise tax credits that were retroactively extended by the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). It also provides guidance for claimants to claim the other retroactively extended credits for 2015, including the alternative fuel mixture excise tax credit.
Employee or independent contractor? That age-old question was the issue in Jorge Quintanilla (T.C. Memo. 2015-5). The taxpayer worked as a production assistant on commercials and was particularly skilled. During the two years at issue he worked on approximately 150 commercials, both in his own name and, to a much lesser degree, through an S corporation. In 20009 some jobs lasted a day, many just two or three days, few exceeded a week. The taxpayer worker as a driver, a hyphenate driver (a driver who can also do a second job such as build sets) or a set dresser who builds and/or paints sets, acts as foreman, etc. The taxpayer had two 40-foot containers with an extensive array of tools, not a few of which were very expensive. The taxpayer had a significant degree of control over the projects, working from sketches or a verbal description. While he worked for a number of companies on a even larger number of projects, he was usually paid from one of a few "payroll" companies. The Court noted that the taxpayer had a significant degree of control over his work, provided his own tools, could sustain a profit or loss in that he had to determine his costs before taking a job, while the production companies could fire him, but that right would seldom be exercised. Work that is part of the principal's regular business (such as a machinist working in a machine shop) indicates employee status, but here it was difficult to determine exactly who is the "principal"--the advertising agency or the production company. The Court also noted neither the taxpayer nor the companies he worked for intended an employee relationship. The IRS rejected the IRS's strongest argument, that the taxpayer was a union member. The Court noted he was in the union for the health insurance and to appear on the call board, although none of his jobs came through the call board. And workers were free to negotiate their own rates. The Court found the taxpayer was an independent contractor when he was not working through his S corporation.
Tip of the Day
Convention expenses . . . You can generally deduct your travel expenses associated with attending a convention, but only if you can show your attendance benefits your business. That's generally easy to do, but you should keep the requirement in mind before attending if that tax deduction is important. Keep a diary and record who you met with and business discussed. You can't deduct expenses associated with a convention for investment, political or other purposes.
January 14, 2016
The Financial Crimes Enforcement Network (FinCEN) today issued Geographic Targeting Orders (GTO) that will temporarily require certain U.S. title insurance companies to identify the natural persons behind companies used to pay "all cash" for high-end residential real estate in the Borough of Manhattan in New York City, New York, and Miami-Dade County, Florida. For the complete press release go to www.fincen.gov/news_room/nr/pdf/20160113.
In Wayne Rebuck (T.C. Memo. 2016-3) the taxpayer asked the Tax Court to review the notice of determination issued to him with respect to the proposed levy on his property. He contended that the IRS abused its discretion in sustaining the proposed levy by refusing to consider his offer in compromise. The Court found that the taxpayer's offer did not address his criminal restitution. Guidelines governing an offer in compromise where a taxpayer has outstanding criminal restitution were contained in the Internal Revenue Manual which states that the IRS may consider an offer in compromise to pay additional taxes, penalties, and interest for the same tax periods for which restitution was ordered only if the defendant has paid or will pay as part of the offer the full amount of the restitution. The Court noted that if an Appeals officer follows all statutory and administrative guidelines and provides a reasoned and balanced decision, the Court will not reweigh the equities. The Court found the IRS did not abused its discretion in denying the offer in compromise.
Tip of the Day
Letter ruling costs . . . You can get an advance ruling from the IRS on the tax effects of a transaction by requesting a private letter ruling. Years ago such a ruling was free--but not today. The IRS fee starts at $2,200 for an individual with income less than $250,000 and can reach $28,300 for someone with income in excess of $1 million. And you may not be able to file the request without professional help. You may be able to use a CPA or Enrolled Agent, but in some cases you'll need a tax attorney.
January 13, 2016
Notice 2016-06 (IRB 2016-4) provides correction procedures for employers who paid benefits in excess of $130 per month in 2015 and wish to make corrections on their fourth quarter Form 941, as the Consolidated Appropriations Act, 2016 retroactively increased monthly transit benefit limit for 2015 from $130 per month to $250 per month. This notice provides a special correction procedure.
In Diane Blagaich (T.C. Memo. 2016-2) the taxpayer received property and cash from her boyfriend, which she did not report as income. Following their breakup, the boyfriend reported those transfers to the IRS on a Form 1099-MISC, Miscellaneous Income, as paid to the taxpayer. Subsequently, a State court found that she had fraudulently induced the boyfriend to pay her $400,000 and ordered her to repay that amount. The State court found that other cash and property were gifts, which the taxpayer did not have to return. The IRS increased her gross income by the amount reported on the Form 1099-MISC. The Tax Court held that the taxpayer's motion for summary adjudication that the IRS is collaterally estopped from litigating the State court's gift finding is denied because the taxpayer failed to demonstrate that the IRS was in privity with a party to the State court action. The Court also held that her motion for summary adjudication that the doctrine of rescission applies to eliminate from her gross income the $400,000 that she received and claims she repaid in a subsequent year is denied because she did not repay the $400,000 in the year of receipt, nor in that year did she recognize the liability under an existing and fixed obligation to repay it.
Tip of the Day
Receive dividends on insurance policies? . . . Insurance policy dividends the insurer keeps and uses to pay your premiums are not taxable. However, you must report as taxable interest income the interest that is paid or credited on dividends left with the insurance company.
January 12, 2016
The Joint Committee on Taxation has released an updated list of expiring tax provisions covering the years 2016 through 2025. You can view or download the list at www.jct.gov/publications.html.
The IRS has announced, due to an error, taxpayers are receiving Identity Protection (IP) PIN letters with an incorrect year listed. Tax professionals should be advised the IP PIN listed on the CP 01A Notice dated Jan. 4, 2016, is valid for use on all individual tax returns filed in 2016. The notice incorrectly indicates the IP PIN issued is to be used for filing the 2014 tax return when the number is actually to be used for the 2015 tax return. The IRS emphasizes the IP PIN listed on the CP 01A notice is valid for the 2015 returns. Tax professionals should use this PIN number for 2015 tax returns, which the IRS will begin accepting Jan. 19.
In Terry L. Wright et ux. (U.S. Court of Appeals, Sixth Circuit) the Court of Appeals reversed and remanded a Tax Court holding (T.C. Memo. 2014-175 and T.C. Memo. 2011-292). Section 1256 provides that an investor who holds certain types of derivatives at the close of the taxable year must "mark to market" those derivatives by treating them as having been sold for their fair market value on the last business day of the taxable year. A "foreign currency contract" is a "section 1256 contract" that an investor must mark to market at the end of the taxable year. Contending that a foreign currency option is within the definition of a "foreign currency contract" under Sec. 1256, the taxpayers claimed a large tax loss by marking to market a euro put option upon the taxpayers assignment of the option to a charity. The assignment of this option was part of a series of transfers of mutually offsetting foreign currency options that the taxpayers executed over a period of three days. These transactions appear to have allowed them to generate a large tax loss at minimal economic risk or out-of-pocket expense. The Tax Court rejected the taxpayers' attempt to generate a tax loss in this manner, holding that they could not recognize a loss upon assignment of the euro put option because the their option was not a "foreign currency contract" under Sec. 1256. While the Tax Court's disallowance of the taxpayers' claimed tax loss makes sense as a matter of tax policy, the plain language of the statute clearly provides that a foreign currency option can be a "foreign currency contract."
Tip of the Day
Life changes in 2015 . . . Whether you're doing your own return or going to a tax preparer, take a few minutes to think about what happened in your life last year. You'll remember to tell your adviser about your new daughter, but what about the fact that you were laid off and spent two months and $6,000 looking for a job? Your adviser may ask about job hunting expenses when he sees the two different W-2s, but there's no guarantee. Or there's a change in your dependents resulting from a divorce. Or you bought--or sold--or rented out--a vacation home. Take the time to make a list of the changes before starting your return or talking to your adviser.
Copyright 2015-2016 by A/N Group, Inc. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is distributed with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The information is not necessarily a complete summary of all materials on the subject. Copyright is not claimed on material from U.S. Government sources.--ISSN 1089-1536