mbtw 10-14 final

Issue Number 10 CCHGroup.com March 6, 2014

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Inside this Issue

Tax Reform Proposals From White House, Congress ....................109

2014 Inflation-Adjusted Vehicle Depreciation Dollar Limits Released ................................110

Additional Transition Rules For Accounting Changes Under MACRS/GAA Repair Regs ...........111

IRS Issues Final Regs On Forfeiture Under Code Sec. 83 ........111 IRS Issues Final Form 8960, NII Tax, Instructions ........................112

Tax Court Nixes Noncustodial Parents Claim For Dependency Deduction ................ 113

Tax Court Denies Capital Gain Treatment For Qui Tam Award .........113 CRS Highlights Itemized Deductions Across Income Groups .....................114

IRS Updates Filing Season Statistics ..............................114

Partnerships Transfer Of State Tax Credits Was A Disguised Sale ..........115

Tax Briefs .........................................115 OPR Reports Increase In Number Of Cases .............................116 Practitioners Corner: IRS Preps For Affordable Care Acts Individual Mandate ................117

Washington Report ...........................118

Compliance Calendar ......................120

Tax Reform Proposals Released From White House, Congress; Next Steps UncertainFY 2015 Budget Proposals, Tax Reform

Act of 2014

Shortly before President Obama unveiled his proposed fiscal year (FY) 2015 federal budget on March 4, House Ways and Means Chair Dave Camp, R-Mich., introduced a sweeping tax reform bill. While President Obama did not call for such a mammoth overhaul of the Tax Code as Camp did, the Presi-dent did include many tax proposals in his budget, affecting individuals, businesses and tax administration.

CCH Take Away. All the tax reform proposals keep the con-versation moving forward, Don Susswein, principal, Washington National Tax Office, McGladrey, told CCH. In Camps bill, two greatly affected groups are taxpay-ers in high-tax states, who would be impacted by elimination of the deduction for state and local taxes, and corporations, which would benefit from a corporate tax cut, but one that would be partially paid for by higher taxes on small and mid-size businesses that are generally structured as pass-through entities, Susswein observed.

Comment. Both the President and Camp quickly took to social media to promote their propos-als. At a news conference, House Speaker John Boehner, R-Ohio, indicated it was unlikely Camps bill would come before the House for a vote. GOP support for many

of the Presidents proposals re-mains even less likely before mid-term elections.

Obamas proposalsAs in past budgets, President Obama pro-posed tax incentives for manufacturing, research, energy, and job creation. The President called for Congress to make permanent the research tax credit and expand incentives for employers to hire veterans. Carried interest would taxed as ordinary income and payroll taxes would be extended to cover distributions from certain pass-through entities engaged in a professional service business.

President Obama signaled a willingness to reduce the corporate tax rate but would require the elimination of some business incentives, particularly tax preferences for fossil fuels, in exchange. The President also proposed a number of international and insurance taxation reforms.

For individuals, President Obama pro-posed to enhance the earned income credit (EIC) for individuals without children and noncustodial parents, and make permanent the American Opportunity Tax Credit. The President also proposed to reduce the value of certain tax expenditures for higher income individuals.

Camps billCamps bill would replace the current seven individual income tax rate brackets (10, 15, 25, 28, 33, 35, and 39.6 percent) with three rates: 10, 25 and 35 percent. In

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Reference KeyFED references are to Standard Federal Tax ReporterUSTC references are to U.S. Tax CasesCCH Dec references are to Tax Court ReportsTRC references are to Tax Research Consultant

addition, many incentives for individuals would be repealed, including the state and local tax deduction, the itemized deduc-tion for medical expenses, the adoption credit, deduction for alimony payments, the deduction for higher education tuition,

and residential energy credits. A few in-centives would be enhanced, such as the child tax credit.

Comment. Two popular in-dividual incentivesthe home mortgage interest deduction and the charitable contribution deduc-tionwould survive under Camps plan but in modified form.

Camps bill would gradually reduce the corporate tax rate to 25 percent. Few targeted business tax incentives would survive. Camps plan eliminates the Work Opportunity Tax Credit, many energy-related incentives, the rules for like-kind exchanges, and more. However, Code Sec. 179 small business expensing would be enhanced. The research tax credit would be retained but modified.

On the international front, under the Camp bill, the current treatment of taxing U.S. corporations on the foreign earnings of their foreign subsidiaries when the earn-ings are distributed would be replaced with a dividend-exemption system. Camps bill also modifies the foreign tax credit system.

Tax ProposalsContinued from page 109

IRS Issues 2014 Inflation-Adjusted Vehicle Depreciation Dollar Limits Rev. Proc. 2014-21

The IRS has released the inflation-adjusted limitations on deprecia-tion deductions for business-use passenger automobiles, light trucks, and vans first placed in service during calendar year 2014. The depreciation limits for passenger vehicles are identi-cal to the limits for 2013 (apart from the first year limit, which no longer includes first-year bonus depreciation). The depreciation limits on trucks and vans have increased by $100 for each of the first three years.

CCH Take Away. Congress has not extended bonus depreciation to the 2014 tax year in the case of passenger vehicles. This means that although several of the limits have been adjusted upward for inflation, the total amount a tax-payer may deduct for a vehicle placed in service during 2014 is effectively $8,000 lower than for a vehicle placed in service during 2013, unless Congress provides retroactive relief this year.

Comment. CCH, a part of Wolt-ers Kluwer, correctly projected the 2014 depreciation base-amount limits on automobiles, trucks and

vans first put into use in 2014. See the November 27, 2013 issue of this newsletter for details.

BackgroundCode Sec. 280F(a) imposes dollar limita-tions on the depreciation deduction for the year the taxpayer places the vehicle in ser-vice in its business, and for each succeeding year. Under Code Sec. 280F(d)(7), the IRS adjusts for inflation the amounts allowable for depreciation deductions. In Rev. Proc. 2014-21, the IRS has provided deprecia-tion limits for passenger automobiles, light trucks and vans.

Passenger automobilesThe maximum depreciation limits under Code Sec. 280F for passenger automobiles first placed in service during the 2014 cal-endar year are:

$3,160 for the first tax year; $5,100 for the second tax year; $3,050 for the third tax year; and $1,875 for each succeeding tax year.

Trucks and vansThe maximum depreciation limits under Code Sec. 280F for trucks and vans first placed in service during the 2014 calendar year are:

$3,460 for the first tax year; $5,500 for the second tax year; $3,350 for the third tax year; and $1,975 for each succeeding tax year.

Comment. Sport Utility Ve-hicles (SUVs) and pickup trucks with a gross vehicle weight rating (GVWR) in excess of 6,000 pounds continue to be exempt from the luxury vehicle depreciation caps based on a loophole in the operative definition. Congress in 2004 placed a $25,000 limit on Code Sec. 179 expensing of heavy SUVs but has not extended it to Code Sec. 280F.

LeasesLease payments for vehicles used for busi-ness or investment purposes are deductible in proportion to the vehicles business use. However, lessees must include a certain amount in income during the year that the vehicle is leased, to partially offset the amounts by the lease payments exceed the luxury automobile limits. Rev. Proc. 2014-21 includes tables that identify the income inclusion amounts for passenger automo-biles, trucks and vans with lease terms that begin in calendar year 2014.

References: FED 46,274; TRC DEPR: 3,504.05.

Federal Tax Weekly

FEDERAL TAX WEEKLY, 2014 No. 10. FEDERAL TAX WEEKLY is also published as part of CCH Tax Research Consultant by CCH, a part of Wolters Kluwer, 4025 W. Peterson Avenue, Chicago, IL 60646-6085. Editorial and Publication Office, 1015 15th St., NW, Washington, DC 20005. 2014 CCH Incorporated. All Rights Reserved.

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IRS Provides Additional Transition Rules For Accounting Method Changes Under MACRS/GAA Repair Regs Rev. Proc. 2014-17

The IRS has issued revised proce-dures providing automatic consent to taxpayers to change their ac-counting methods under 2011 temporary regs (TD 9564) and 2013 proposed regs (NPRM REG-110732-13) on the disposi-tion of tangible property. Rev. Proc. 2014-17 modifies and supersedes Rev. Proc. 2012-20, effective February 28, 2014.

CCH Take Away. Rev. Proc. 2014-17 applies to changes under the temporary and proposed regu-lations, but only for taxpayers who apply those regulations for 2012 or 2013, Sara Logan, director, Washington National Tax Services, PricewaterhouseCoopers LLP, told CCH. The final disposition regula-tions, when issued, will be retroac-tive to January 1, 2014, Logan said.

Comment. The IRS will issue revised procedures after it issues the final disposition regulations; these will be simpler, George Ma-nousos, partner, PricewaterhouseC-oopers, told CCH. The IRS may also need to issue procedures for making 2012 changes, because the deadline for timely filing a Form 3115 for 2012 changes has passed, Manousos said.

General rulesThe 2011 temporary regs applied to the treatment of capitalized amounts when the taxpayer disposed of the property. In 2013, the IRS reproposed the regs on the disposition of tangible property. Taxpayers now have a choice to apply the temporary or proposed regs or to maintain their existing accounting practices for 2012 and 2013.

Comment. Rev. Proc. 2014-17 provides that the normal scope limitations that would prevent an automatic change (such as having changed the same item within the past five years, being under audit, or being in the last year of a trade or business) will not apply under Rev. Proc. 2014-17, Logan said.

Final Regs Decline To Expand Substantial Risk Of Forfeiture Under Code Sec. 83

TD 9659

The IRS issued final regs to clarify the meaning of a substantial risk of forfeiture (SRF) under Code Sec. 83. Despite comments expressing concern about the impact of the regs, the govern-ment claimed that the final regs did not narrow the circumstances treated as a SRF.

CCH Take Away. Property un-der Code Sec. 83 vests when it is no longer subject to an SRF. Thus, taxation of the property is deferred if it is subject to an SRF. Treasury and the IRS generally have limited the application of an SRF to cir-


Change of methodThe 2013 final regs apply to the deprecia-tion or amortization of leasehold improve-ments and to property depreciated under Code Sec. 168. The proposed disposition regs, when finalized, will modify the rules for general asset accounts and will provide rules for partial dispositions of MACRS (modified accelerated cost recovery sys-tem) property. Rev. Proc. 2014-17 applies to changes of any of these methods.

Taxpayers request a change of accounting method on Form 3115. Taxpayers that want to change their accounting for leasehold improvements can make the change for multiple assets on a single Form 3115, and can provide a single net Code Sec. 481(a) adjustment, or may provide a single positive adjustment and a single negative adjustment, for all the changes. Smaller taxpayers, with average annual gross re-ceipts of $10 million or less may submit a streamlined Form 3115.

GAA and partial disposition electionsThe temporary regs and Rev. Proc. 2012-20 allowed taxpayers to make late general asset account (GAA) elections or late elec-tions out of a GAA by filing a Form 3115. Rev. Proc. 2014-17 similarly treats the late GAA election as a change of accounting method for a limited period of time (2012-2013) and also allows taxpayers to undo GAA elections made under the temporary

regs by filing a Form 3115. Rev. Proc. 2014-17 also permits taxpayers to make a late partial disposition election by filing a Form 3115.

Normally, a positive Code Sec. 481(a) adjustment can be spread over four years. Rev. Proc. 2014-17 requires that some ad-justments, such as those from revoking a general asset account election, be included entirely in one year.

Comment. A partial disposition election can accomplish the same result as a general asset account election, but is a simpler procedure, Manousos said. Many taxpayers will revoke their GAA election because of the administrate ease of the new rules.

Comment. Under current law, taxpayers cannot write off the cost of property until it is fully disposed of, Logan said. The proposed partial disposition election allows taxpayers to write off the cost of a disposed property component (such as a building roof), she said. If such disposed property was included in a GAA via a retroactive GAA method change filed for the 2012 or 2013 year, then the taxpayer must include any Code Sec. 481 adjustment in one year under the provisions of Rev. Proc. 2014-17.

References: FED 46,277; TRC DEPR: 3,559.

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IRS Issues Final Instructions To Form 8960, Net Investment Income Tax, For 2013 Filers Form 8960, Net Investment Income

Tax, Final Instructions

The IRS has issued final instructions for Form 8960, Net Investment In-come TaxIndividuals, Estates and Trusts, for tax year 2013. The instructions are similar to the draft instructions but do include some useful changes.

CCH Take Away. The IRS seems to have confined the changes to those it considered now either essential or helpful to preparers of 2013 tax returns, Michael J. Grace, JD, Whiteford Taylor & Preston LLP, Washington, D.C., told CCH. That strikes me as an intelligently incremental approach because pre-parers are fully occupied working on returns for the 2013 tax year, the first year in which their clients may be subject to the NII Tax. The instructions likely will evolve and

be further refined as preparers and the IRS increasingly familiarize themselves with the NII tax.

NII tax developmentsThe net investment income (NII) tax first took effect for 2013. The IRS issued final regs (TD 9644) on the NII tax in December 2013. At the same time, the IRS issued new proposed reliance regs (NPRM REG-130843-13) on the calculation of the adjust-ment to NII gain or loss from the sale of a partnership or S corp interest.

The IRS released a draft version of Form 8960 in August 2013: a single page with 21 lines.

In early January 2014, the IRS issued draft instructions, based on the final and proposed reliance regs. The draft instruc-tions were 19 pages long, including several worksheets. In late January 2014, the IRS issued the final Form 8960; there were no changes from the draft form.

Final instructionsThe IRS has now issued final instruc-tions for Form 8960 for 2013. The final instructions are slightly longer and add various notes, tips and cautions. They also clarify and expand some discus-sions, such as the safe harbor for real estate professionals; the elections under Reg. 1.1411-10(g); income from an-nuities; and the treatment of capital loss carryovers on the Net Gains and Losses Worksheet.

The final regs maintain a reference to the 2013 proposed regs on adjusting capital loss carryforwards and retain the discus-sion on calculating net operating losses that can be deducted when computing the NII tax. Like the draft regs, the final regs do not provide additional guidance for determining whether an activity is a trade or business.

Reference: TRC INDIV: 69,150.

cumstances described in the statute and the legislative history.

BackgroundUnder Code Sec. 83, the value of property (less any amount paid) transferred in con-nection with the performance of services is included in the employees income when the property is not subject to an SRF. Code Sec. 83(c)(1) provides that property is subject to an SRF if the recipients rights to full enjoy-ment of the property are conditioned on the future performance of substantial services. The regs also treat a condition related to the purpose of the transfer as an SRF, where the possibility of forfeiting the property is substantial if the condition is not satisfied.

Final regsThe final regs clarify that:

Except as specifically provided in the Code and regs, an SRF may be

established only through a require-ment to perform substantial services or through a condition related to the purpose of the transfer;Whether a condition related to the purpose of the transfer is an SRF depends upon the likelihood that the forfeiture event will occur and the likelihood that the forfeiture will be enforced; andA transfer restriction, such as cer-tain restrictions in the Securities and Exchange Act of 1934 (Ex-change Act), is not an SRF unless specifically described in the Code and regs.

Comment. Thus, property is not subject to an SRF if, at the time of transfer, the facts and circum-stances demonstrate that the for-feiture is unlikely to be enforced.

Proposals rejectedA right to receive property in the future is not a transfer of property under Code

Sec. 83. Therefore, an involuntary sepa-ration from service without cause is not an SRF if property is not transferred until after the separation from service.

Comment. However, the ac-celeration of vesting upon an involuntary separation without cause (or upon death or disability) does not nullify the treatment of a substantial services requirement as an SRF.

The Tax Code and regs treat, as an SRF, a requirement to disgorge profits from a sale of stock within six months of the purchase of the property, as im-posed by Section 16(b) of the Exchange Act. However, the purchase of shares in a transaction subject to Section 16(b), followed by the exercise of a stock op-tion that is not subject to Section 16(b), does not defer taxation of gain from the stock option exercise. A revised example clarifies this conclusion.

References: FED 47,015; TRC COMPEN: 18,202.

ForfeitureContinued from page 111

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Court Order Insufficient To Support Noncustodial Parents Claim For Dependency DeductionSwint, 142 TC No. 6

A declaration in a court order was insufficient to support a taxpayers claim to the dependency exemp-tion deduction for his noncustodial child, the Tax Court has found. The declaration was unsigned and did not unconditionally provide that the custodial parent will not claim the child.

CCH Take Away. A custodial parent generally must sign a writ-ten declaration that he or she will not claim the child as a dependent. The custodial parent may use Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a statement conforming to the sub-stance of Form 8332.

BackgroundUnder a declaration that was part of a state court order from 1998, the taxpayer would be entitled to the dependency exemption deduc-tion and a child tax credit for the child as long as he remained current in his child support organization. However, neither the taxpayer nor his former spouse signed the declaration. The taxpayer claimed a dependency exemp-

tion deduction and a child tax credit on his 2009 return, which the IRS disallowed.

Courts analysisThe court first noted that under Reg. 1.152-4(e)(1)(ii), for tax years starting after July 2, 2008, a court order or decree or a separa-tion agreement may not serve as a written declaration for purposes of releasing the dependency exemption deduction by the custodial parent. However, Reg. 1.152-4(e)(5) provides a carve out to this rule. If a written declaration was executed in a tax year beginning on or before July 2, 2008, the IRS looks to the requirements for the form of a written declaration in effect at the time the written declaration was executed.

Here, the court found that there was no prohibition in 1998 on using a court order or decree or a separation agreement as a written declaration if the other require-ments for a written declaration were met. However, the declaration in the court order in this case failed to satisfy the signature requirement. Code Sec. 152(e)(2)(A) requires that the custodial parent sign a written declaration releasing the depen-dency exemption for his or her child to the noncustodial parent. A state court order,

unsigned by the custodial parent, does not meet this requirement, the court held.

Additionally, the taxpayers claim to the dependency deduction was contingent on his timely payment of child support. The court found that the declaration in the court order was conditional and insufficient. The court noted that in 1984 Congress removed the requirement for the noncustodial parent to pay child support in excess of certain thresholds. Instead, Congress required that the custodial parent sign a written declara-tion that he or she will not claim the child as a dependent. This change removed the evidentiary disputes that the court had to resolve in determining which parent could claim the deduction. If the dependency exemption deduction was permitted to be released upon the satisfaction of a condi-tional declaration, the court would have to revert to resolving evidentiary disputes. As a result, the court concluded that the IRS was correct in denying the dependency exemption deduction.

Comment. The court also found that the husband was not entitled to the child tax credit.

References: CCH Dec. 59,835; TRC FILEIND: 6,168.20.

Tax Court Denies Capital Gain Treatment For Qui Tam Award Patrick, 142 TC No. 5

The Tax Court has rejected a tax-payers treatment of a qui tam award as capital gain. The court concluded that the award was a reward for advancing a claim on behalf of the government, and was not a sale or disposition of property.

CCH Take Away. Under the False Claims Act and other statutes, a person, known as a relator, can file a complaint (known as a qui tam action) and seek reimbursement on the governments behalf. A court may award 15 to 30 percent of the amount recovered to the relator. The taxpayer here filed and prosecuted several successful claims, but did

not want to treat the award as or-dinary income. The court found as key the rule that the relator must serve the complaint and supporting information on the government.

BackgroundThe taxpayer worked for a company that designed medical equipment. Although the equipment could be used on an outpatient basis, the company marketed its use as inpatient, so that a hospital stay was nec-essary. Some of the hospital expense was billed to Medicare.

The taxpayer collected documents that demonstrated the companys practices. He filed a qui tam complaint, which the com-

pany settled for $75 million. The taxpayer then filed additional complaints that were settled for cash.

The taxpayer received $6 million for 2008 and $850,000 for 2009. The government issued Forms 1099-MISC to the taxpayer to report those amounts. The taxpayer reported the amounts (less attorneys fees) as capital gain.

Courts analysisThe court stated that to be a capital gain, the award must have resulted from the sale or exchange of a capital asset. The court concluded there was no sale or exchange and no capital asset.


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CRS Highlights Value Of Itemized Deductions Across Income Groups

CRS 7-5700

The Congressional Research Service (CRS) recently conducted a review of who claims itemized deductions and the revenue loss from certain itemized deductions. The top five itemized deduc-tions are projected to reduce federal rev-enues by more than $208 billion for fiscal year (FY) 2014.

CCH Take Away. President Obama has proposed to reduce the value of certain tax expendi-tures for higher income taxpay-ers. Rep. Dave Camp, R-Mich., chair of the House Ways & Means Committee, has proposed cutting back on most itemized deductions in favor of an overall lower tax rate. Under Camps plan, many popular itemized deductions would be eliminated. The home mortgage interest deduction and the deduction for charitable con-tributions would be retained but modified under Camps proposal.

(see lead article in this issue for more details).

Income groupsCRS reported that in 2011, the most recent year for which statistics are available, 32 percent of all filers chose to itemize their deductions rather than claim the standard deduction. Higher income individuals item-ize their deductions more often than lower income taxpayers. The share of filers who chose to itemize in higher income ranges above $200,000 remained virtually the same, although the average sum of itemized deductions increased, CRS reported. For taxpayers with an AGI above $200,000, the share that itemized ranged from 94 percent to 98 percent, and the average sum of itemized deductions claimed per itemizer ranged from $39,470 to $441,719.

Comment. In comparison, CRS discovered that 84 percent of tax fil-ers with an AGI between $100,000 and $200,000 chose to itemize their deductions, with an average of $27,075 in deductions claimed.

DeductionsFilers in different income ranges tend to claim different itemized deductions,

CRS reported. Higher income taxpay-ers claimed deductions for gifts to charitable organizations, state and local taxes and real property taxes at higher rates than lower income taxpayers. Eighty-eight percent of filers with AGI above $200,000 claimed a deduction for charitable contributions, compared to 75 percent of taxpayers with AGI between $100,000 and $200,000 and 45 percent of taxpayers with AGI between $50,000 and $100,000.

Revenue lossesCRS, using figures calculated by the Joint Committee on Taxation, examined losses in revenue from selected deductions. The home mortgage interest deduction is expected to account for the largest loss in revenue, forecasted at $71.7 billion for FY 2014. The deduction for state and local taxes is projected to amount to $51.8 billion for FY 2014, the deduction for charitable gifts is projected to reach $43.6 billion for FY 2014, the deduction for real property taxes is projected to total $28.6 billion for FY 2014, and the deduc-tion for medical expenses is projected to reach $12.4 billion.

Reference: TRC INDIV: 48,050.

Filing Season Update: 49.6 Million Individual Income Tax Returns Filed So Far

The IRS has announced that it has processed almost 98 percent of the 49.6 million in-dividual income tax returns that it has received so far this filing season. That number is approximately one-third of the individual income tax returns it expects to receive during 2014. Previously, the IRS predicted that more than 148 million individual tax returns will be filed in 2014.

E-filing. More taxpayers are filing their returns electronically, the IRS reported. Of the total number of returns filed to date, 94 percent (or 46.6 million) have been e-filed. Approximately 22 million returns were e-filed from home computers, representing an increase of seven percent compared to the same time last year.

Refunds. The IRS also reported that it has issued more than 40 million refunds this filing season. This represents an increase of more than six percent compared to the same time in 2013. Nearly 90 percent of refunds have been directly deposited into taxpayer accounts.

The average refund this filing season is $3,116. The average refund for taxpayers whose refunds are directly deposited is slightly higher, at $3,155, the IRS reported.

IR-2014-20, TRC FILEIND: 15,250.

The taxpayer claimed that he sold the information to the government. The court found that since the relator is statutorily obligated to provide all supporting infor-mation, there is no sale or exchange. The government does not purchase information; it permits the relator to advance a claim on its behalf.

The taxpayer also claimed that the right to future income is a capital asset, or that the documents and information provided were capital assets. Under P.G. Lake, SCt, 58-1 ustc 9428, the right to future payments of ordinary income is not a capital asset. The award was a reward for the taxpayers ac-tions. The documents and information were not a capital asset because the taxpayer did not have a legal right to exclude others from using them. Thus, the taxpayer did not transfer any rights to the government.

References: CCH Dec. 59,834; TRC SALES: 15,100.

Qui TamContinued from page 113

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Partnerships Transfer Of State Tax Credits Was A Disguised Sale

Route 231, LLC, TC Memo. 2014-30

The Tax Court has found that the transfer of state tax credits (for charitable donations of conservation easements) from one LLC in exchange for money from its one-percent partner, an LLP, was a disguised sale under Code Sec. 707 resulting in income to the LLC. The Tax Court found that the credits were property for purposes of Code Sec. 707(a)(2)(B).

CCH Take Away. Unlike His-toric Boardwalk Hall, CA-3, 2012-2 ustc 50,538, in which the Third Circuit denied rehabilitation tax credits to an investor who was found not to be a bona fide part-ner, the Tax Court did not ques-tion the validity of the partnership between the LLC and LLP. Instead it closely applied the Fourth Cir-cuits analysis from Va. Historic Tax Credit Fund 2001 LP, 2011-1 ustc

50,308, in which the court found there had been taxable transfers of historic rehabilitation tax credits, which were property under the disguised sale rules.

BackgroundAn LLC taxed as a partnership donated two conservation easements and one fee interest on historic tracts of land to charitable conser-vation agencies and claimed transferable state income tax credits equal to 50 percent of the fair market value of the donated land. An LLP acquired some of the state tax credits and a one-percent partnership interest in exchange for what the two entities termed a capital contribution of approximately $0.53 for each dollar of state tax credits allocated to the LLCs fund. However, the IRS issued a final partnership administrative adjustment deter-mining that the LLC had failed to report $3.8 million from the sale of the state tax credits.

Courts analysis The transfer of money for tax credits was not a capital contribution, but a disguised sale under Code Sec. 707, the Tax Court found. The tax credits met the definition of property under the Code Sec. 707(a)(2)(B) disguised sale definition because they were valuable and imbued with essential property rights, such as transferability. The amount of money transferred by the LLP to the LLC was expressly linked to the amount of tax credits it received, and the transfer of credits would not have taken place but for the transfer of money. The LLP failed to undertake any entre-preneurial risks to receive the credits. Furthermore, a facts-and-circumstances test confirmed that the transfer of credits in exchange for money was a disguised sale, the Tax Court found.

References: CCH Dec. 59,836(M); TRC PART: 27,058.

Internal Revenue ServiceThe IRS has released guidance with respect to the computation of the housing cost/in-come ratio by issuers of qualified mortgage bonds (QMBs) and mortgage credit certifi-cates (MCCs). State and local governments can issue QMBs and MCCs under Code Sec. 143(a) and Code Sec. 25(c)(1), with recipi-ents subject to the income requirements of Code Sec. 143(f), expressed as a ratio of financing to median gross income.

Rev. Proc. 2014-23, FED 46,278; TRC SALES: 51,360.

InternationalThe IRS has issued final versions of previous-ly released temporary regulations (T.D. 9657 and T.D. 9658) and proposed regulations (see the February 27, 2014 issue of this newslet-ter) that revise certain provisions of the final regulations regarding withholding of tax on

certain U.S. source income paid to foreign persons, information reporting and backup withholding with respect to payments made to certain U.S. persons, portfolio interest treatment for nonresident alien individuals and foreign corporations, and requirements for certain claims for refund or credit of income tax made by foreign persons.

NPRM REG-130967-13, FED 49,611; NPRM REG-134361-12, FED 49,612;

TRC FILEBUS: 9,108.

The Tax Court should have allowed the U.S. Virgin Islands (USVI) to intervene as a matter of right under FRCP 24(a)(2) in three consoli-dated cases brought by taxpayers claiming to be bona fide residents of the USVI in response to IRS deficiency notices. Although the Tax Courts rules only provide for intervention as a matter of right in a few specific situations that did not apply, Tax Court Rule 1(d) required the

courts rules to be construed to secure a just determination in every case and the timing of the IRSs enforcement efforts effectively closed off all other venues to the USVI.

Huff, CA-11, 2014-1 ustc 50,186; TRC LITIG: 6,180.

IncomeA legally separated wife, who filed a sepa-rate return for the year at issue, was required to report on her return one-half of the income generated by her husbands community property investment. Under California law, even though she did not know about the investment until years later, the wife had a present and existing interest in the husbands hedge fund, which he funded with commu-nity property.

Carrino, TC, CCH Dec. 59,840(M), FED 47,956(M); TRC INDIV: 24,150.


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DeductionsAn individual was not in the trade or business of trading securities. Rather, his trading was sporadic and covered only a portion of the year. Finally, he failed to es-tablish that he sought to profit from swings in the daily market by showing how long he held many of the shares that he traded. Therefore, his losses were capital losses and were limited to the amount of capital gains plus $3,000.

Assaderaghi, TC, CCH Dec. 59,839(M), FED 47,955(M); TRC SALES: 45,058.

Frivolous ArgumentsAn individual who advanced a series of frivolous, tax protestor-type arguments was sanctioned for instituting proceedings for purposes of delay under Code Sec. 6673. The taxpayer had declared zero income despite receiving wages from several em-ployers. All of the taxpayers arguments have been repeatedly rejected by the courts.

Waltner, TC, CCH Dec. 59,841(M), FED 47,957(M); TRC LITIG: 6,816.

Liens and LeviesA judgment creditor had priority over an IRS tax lien because the IRS failed to file the no-tice required under Code Sec. 6323. A federal tax lien is not effective against third parties until after the IRS has properly filed a notice of federal tax lien and there was no evidence of a federal tax lien notice in the record. Clinton v. Adams, CA-9, 2014-1 ustc 50,190;

TRC IRS: 48,150.20.

The IRS did not abuse its discretion in sus-taining a levy and declining to consider an individuals installment agreement.

Lyons, TC, CCH Dec. 59,838(M), FED 47,954(M); TRC IRS: 51,054.35.

A disbarred certified public accountant (CPA) was permanently enjoined from pro-moting his abusive tax-avoidance scheme and engaging in any other activity subject to penalty pursuant to Code Sec. 6700. However, the CPA was not permanently enjoined from preparing federal tax returns for others. There was no evidence to show that he continued to actively use, market or

otherwise promote the plan after learning it was the object of an IRS investigation or that he repeatedly engaged in other prohib-ited conduct unrelated to the plan.

Baisden, DC Calif., 2014-1 ustc 50,187; TRC PENALTY: 3,256.20.

Deficiencies and PenaltiesThe applicability of the gross valuation misstatement penalty was remanded to the district court for further proceedings in light of the Supreme Courts decision in Woods, SCt, 2013-2 ustc 50,604.

Nevada Partners Fund, L.L.C., CA-5, 2014-1 ustc 50,191; TRC PENALTY: 3,110.25.

BankruptcyA Chapter 13 debtor was a responsible person who willfully failed to remit a businesss withholding taxes; therefore, his objection to the IRSs proof of claim was denied. The debtor acted willfully because he was aware that the payroll tax deposits were not being paid when he signed the payroll tax returns and paid other creditors.

In re Ingram, BC-DC Tex., 2014-1 ustc 50,189; TRC PAYROLL: 6,306.05.

Tax CreditsThe IRS has extended the Physical Inspec-tions Pilot Program for participating states, which is an alternative method, announced in Notice 2012-18, I.R.B. 2012-10, 438, to satisfy certain physical inspection and certification review requirements under Reg. 1.42-5(c)(2) for the low-income

housing credit. The new guidance extends the provisions of Notice 2012-18 through December 31, 2014.

Notice 2014-15, FED 46,276; TRC BUSEXP: 54,220.30.

Return PreparersA disbarred certified public accountant (CPA) was permanently enjoined from pro-moting his abusive tax-avoidance scheme and engaging in any other activity subject to penalty pursuant to Code Sec. 6700. However, the CPA was not permanently enjoined from preparing federal tax returns for others. There was no evidence to show that he continued to actively use, market or otherwise promote the plan after learning it was the object of an IRS investigation or that he repeatedly engaged in other prohib-ited conduct unrelated to the plan.

Baisden, DC Calif., 2014-1 ustc 50,187; TRC PENALTY: 3,256.20.

Employee Benefit PlansThe IRS did not abuse its discretion in dis-qualifying an Employee Stock Ownership Plan (ESOP) sponsored by an LLC taxed as a partnership. The plan did not qualify as an ESOP or comply with the written plan document because the plan did not invest in employer securities. Employer securities means corporate stock, not interests in an entity taxed as a partnership.

K.H. Company, LLC Stock Ownership Plan, TC, CCH Dec. 59,837(M), FED 47,953(M);

TRC RETIRE: 75,102.

Tax BriefsContinued from page 115

IRS Office Of Professional Responsibility Reports Increase In Number Of Cases

The IRS Office of Professional Responsibility (OPR) recently reported an uptick in the number of cases of alleged misconduct by practitioners. OPR received 784 cases for po-tential discipline in calendar year 2013 compared to 516 cases in 2012.

Background. Within the IRS, OPR is responsible for interpreting and applying Circular 230 (rules of practice before the agency). OPR oversees practitioner conduct and discipline. OPR may direct that a practitioner be reprimanded, suspended or disbarred, among other sanctions. In certain cases, referrals of practitioner misconduct are mandatory to OPR.

Cases. Of the 784 cases for potential discipline that OPR considered in 2013, 11 resulted in disbarments, the IRS reported. In 2013, OPR issued 128 reprimands and 48 expedited suspensions. In 2012, OPR issued two disbarments, 150 reprimands and 61 expedited suspensions.

www.irs.gov; TRC IRS: 3,112.

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IRS Preps For Impact Of Affordable Care Acts Individual Shared Responsibility Requirement

During his first appearance before Congress, new IRS Commissioner John Koskinen told lawmakers that the agencys implementation of the Patient Protection and Affordable Care Act is on track as 2014 unfolds. Koskinen, who appeared before a House Ways and Means subcommittee in February, said that oversight of the Affordable Care Acts individual shared responsibility provision will have a profound impact starting with the 2015 filing season and will require ad-ditional taxpayer service and education ac-tivities. Preparations are well underway, Koskinen emphasized. Beginning January 1, 2014, qualified individuals must carry minimum essential health insurance or make a shared responsibility payment when they file their 2015 returns. When asked by lawmakers how the IRS intends to enforce the individual shared responsibility pay-ment, Koskinen acknowledged that options are limited by the Affordable Care Act.

Comment. The individual mandate is just unfolding, Eliza-beth Kidd, CPA, who serves on the state council of the Pennsylvania Institute of Certified Public Ac-countants (PICPA), told CCH. The requirement that an individual, un-less exempt, has minimum essential coverage began January 1, 2014 and the number of individuals who will be liable for a shared responsibility payment will not be known until 2014 returns are filed in 2015. It is unclear at this time if failures to make individual shared responsibil-ity payments will rise to the levels of unpaid child support and unpaid student loans, Kidd observed.

Comment. The IRS recently posted health care tax tips on its

website to remind taxpayers about the requirement to carry minimum essential health insurance cover-age, unless exempt. The IRS also noted that individuals and their dependents covered by employer-provided plans generally meet the requirements for minimum essen-tial coverage.

Individual mandateThe Affordable Care Acts individual man-date took effect January 1, 2014. Gener-ally, individuals with employer-sponsored coverage (including COBRA coverage and retiree coverage) are treated as carrying minimum essential coverage. Individuals covered by Medicare, Medicaid, Children's Health Insurance Program (CHIP) cover-age, coverage administered by the U.S. Department of Veterans Affairs and cover-age provided by the U.S. Department of De-fense are also treated as carrying minimum essential coverage. Additionally, the Af-fordable Care Act exempts certain groups from the requirement to carry minimum essential coverage, including: individuals whose required contribution for self-only coverage for a calendar year exceeds eight percent (adjusted for premium growth after 2014) of household income, members of federally recognized Native American na-tions, individuals whose income is below

the minimum threshold for filing a tax return, incarcerated individuals, persons not lawfully present in the U.S., members of health sharing ministries, and individu-als having a hardship which makes them unable to obtain coverage.

In Notice 2014-10 and NPRM REG-141036-13 issued in January 2014, the IRS provided clarifications on certain

types of coverage and their relationship to minimum essential coverage for purposes of the Affordable Care Act. The IRS ex-plained that coverage under Medicares medically needy program is generally not government-sponsored minimum essential coverage, subject to certain exceptions. Coverage under a Section 1115 (Social Security Act) demonstration project gener-ally is not government-sponsored minimum essential coverage. Certain military health coverage may be limited only to space available care and line-of-duty care. The proposed regs provide that this coverage is not government-sponsored minimum es-sential coverage. Minimum essential cover-age does not include coverage that consists solely of excepted benefits. The proposed regs clarify that minimum essential cover-age excludes any coverage, whether insur-ance or otherwise, that consists solely of excepted benefits.

When asked by lawmakers how the IRS intends to enforce the individual shared responsibility payment, IRS Commissioner John Koskinen acknowledged that options are limited by the Affordable Care Act.


118 March 6, 2014

Issue 10

by the CCH Washington News Bureau

Camp releases tax reform billHouse Ways and Means Committee Chair-man Dave Camp, R-Mich., unveiled his long-awaited comprehensive tax reform package on February 26 to mixed reaction. Camps proposed Tax Reform Bill of 2014 would reduce the number of individual tax brackets, cut the corporate tax rate, sim-plify, repeal or curtail many popular tax credits and deductions, and make a host of other changes to the Tax Code. House Speaker John Boehner, R-Ohio, said it is time to have a public discussion about tax reform but stopped short of endorsing Camps plan. House Minority Whip Steny Hoyer, D-Md., said that Camps proposal did not incorporate input from Democrats. For more details about Camps proposal, see the lead article in this weeks newsletter.

IRS warns of more enforcement, service cutsIn fiscal year 2014, we expect audits con-ducted by the IRS will decline by an estimated 100,000 and the number of collection activi-ties will decline by an estimated 190,000, IRS Commissioner John Koskinen told lawmakers on February 26. Testifying before the House Appropriations Subcommittee on Financial Services and General Government, Koskinen said that the IRSs current funding level is approximately $11.3 billion, or about $900 million below 2009, and the staff level has dropped by 10,000 employees.

On February 28, IRS Deputy Commis-sioner John Dalrymple echoed Koskinens comments at the Annual Tax Law Confer-ence of the Federal Bar Association in Washington, D.C. Telephone customer service at the IRS is at its lowest level since 2008, Dalrymple reported. Approximately four out of 10 taxpayers who telephone the IRS give up waiting before their calls are answered. No matter how energetically our employees work, we will not be able to keep with demand, Dalrymple said. Without

adequate funding, enforcement and service will continue to decline, he predicted.

More post-Windsor guidance for qualified plans in pipelineMore guidance for qualified plans on same-sex marriage post-E.S. Windsor, 2013-2 ustc 50,400, is in the pipeline, a senior Treasury official told tax professionals at the 38th Annual Tax Law Conference of the Federal Bar Association in Washington, D.C., on February 28. Robert Neis, deputy benefits counsel, Office of Benefits Tax Counsel, Treasury Department, indicated that this guidance is expected to be issued shortly.

Beneficiaries under qualified retirement plans, including spouses, are covered by many rules, some administered by the IRS and others by the Department of Labor. Before Windsor, same-sex spouses were not treated the same as opposite-sex spouses for purposes of the qualified plan spousal rules. In Rev. Rul. 2013-17, the IRS instructed quali-fied retirement plans to comply with Wind-sor and its place-of-celebration approach to same-sex marriage as of September 16, 2013.

In December 2013, the IRS indicated on its website that it intended to issue guidance on how qualified retirement plans and other tax-favored retirement arrangements must comply with Windsor. Future guidance, the IRS reported, is expected to address plan amendment requirements, including the timing of plan amendments. This guidance is expected very soon, Neis noted.

Government reviewing comments on proposed partnership regsThe government will give full consider-ation to comments submitted on proposed partnership regs, NPRM REG-119305-11, which would limit basis for guarantees of partnership debt that are not commercially reasonable, a government official said on February 28. Speaking at the Annual Tax Law Conference of the Federal Bar Asso-

ciation in Washington, D.C., Craig Gerson, attorney, Treasury Office of Tax Legislative Counsel, said the government understands that the regs are controversial and are a significant departure from existing rules.

The proposed regs include a seven-year transition period. Gerson said the govern-ment does not want people to have to change what they are doing now, while the rules are under consideration. The transition relief and the effective date rules are meant to be helpful and reflect the governments care in proposing the rules, he explained. The proposed regs also address bottom-dollar guarantees. A bottom-dollar guarantee is disregarded, and the debt being guaranteed is treated as nonrecourse, a practitioner observed. Gerson added that it is hard to see a guarantee as having commerciality if the guarantor is liable only for the first dollar.

Administration urges Congress to enhance retirement securityThe Obama administration and the Treasury Department are committed to expanding and enhancing retirement security and retirement saving, particularly for lower and moderate-income American workers, but much remains to be done, according to a U.S. Trea-sury official. In testimony on February 26 before the Senate Finance Subcommittee on Social Security, Pensions and Family Policy, J. Mark Iwry, senior advisor to the Treasury Secretary and Deputy Assistant Secretary (Tax Policy) Retirement and Health Policy, said that the administration plans to pro-mote more lifetime income in both defined benefit and defined contribution plans, and to facilitate portability and consolidation of retirement savings. Iwry said administration officials will encourage employers to make Code Sec. 401(k) plans more automatic and effective, and extend coverage to workers not currently in the system. We believe that the myRA initiative is one meaningful step in that direction, Iwry added.

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Shared responsibility payment

Individuals failing to carry minimum essen-tial coverage after January 1, 2014 and who are not exempt from the requirement will make an individual shared responsibility payment when they file their 2014 federal income tax returns in 2015. The amount of individual shared responsibility payment, if applicable, will vary depending on a taxpayers income, filing status and more. Generally, the individual shared responsi-bility payment is the greater of:

$95 flat dollar amount per uninsured person or one percent of household in-come over the filing threshold for 2014.$325 flat dollar amount per uninsured person or two percent of household in-come over the filing threshold for 2015.$695 flat dollar amount per uninsured person or 2.5 percent of household in-come over the filing threshold for 2016.

After 2016, the $695 flat dollar amount is indexed for inflation. The Affordable Care Act generally provides a 300 percent family cap on the above monetary amounts and the overall shared responsibility payment is capped at the national average premium of a bronze-level health insurance plan available in a Marketplace. At this time, the federal government has not provided the national average premium of a bronze-level plan available in a Marketplace.

Example. The Congressional Research Service (CRS) recently described some examples to il-lustrate how the individual shared responsibility payment operates. In its examples, CRS used a 2013 filing threshold of $10,000 for a single individual under age 65 with no dependents and $20,000 for a married couple filing a joint federal income tax return. In 2014, for sin-gle individuals with no dependents, CRS estimated that individuals with incomes above the filing threshold but at or below $19,500 will pay the $95 flat amount; individuals with incomes above $19,500 and below the cap at the national average premium for bronze-level coverage will pay one percent of applicable

income. For a married couple with two children under age 18, CRS es-timated that couples with incomes above the filing threshold but at or below $48,500 will pay a flat dol-lar amount of $285; couples with incomes above $48,500 and below the cap at the national average premium for bronze-level family coverage will pay two percent of applicable income.

CRS noted that the flat dollar amount for a family cannot be greater than three times the flat dollar amount for an individual. In 2014, the flat dollar amount is limited to three times $95 (for a total flat dollar amount of $285). The flat dollar amount is, as described above, one-half for children under age 18.

CRS explained that in 2013, the standard deduction was $6,100 and the personal ex-emption was $3,900, so that generally, the filing thresholds for individuals under age 65 was $10,000 for a single filing status and $20,000 for a married couple filing a joint return. The filing threshold, CRS explained, is linked to an inflation adjustment based on the CPI-U and therefore may be higher in 2014 and subsequent years.

Individual paymentsKoskinen told lawmakers that the IRS will enforce the individual shared responsibil-ity payment requirements. The Affordable Care Act generally provides that the in-dividual shared responsibility payment is assessed and collected in the same manner as most other assessable penalties under the Internal Revenue Code. However, the Affordable Care Act placed limitations on enforcement: The IRS may offset an unpaid payment against any federal income tax refund due to the taxpayer.

Comment. The IRS cannot col-lect an unpaid individual shared re-sponsibility payment through a lien or levy but it can offset a taxpayers refund, Kidd noted. Because the IRS will offset refunds, individu-als may tend to feel they are not spending money since the payment is coming out of their refund and they are not writing a check.

Comment. The IRS may offset generally where the taxpayer has

an outstanding tax debt, unpaid child support, debts owed to federal agencies, and in certain other cases.

Code Sec. 36B creditThe open enrollment period to purchase health care coverage through a state-run or federally-facilitated Health Insurance Marketplace for 2014 began October 1, 2013 and runs through March 31, 2014. The U.S. Department of Health and Hu-man Services (HHS) recently reported that more than two-thirds of individuals who have obtained coverage through a Marketplace have been eligible for cost sharing or the Code Sec. 36B premium assistance tax credit.

For purposes of the Code Sec. 36B credit, household income is the taxpayers modi-fied adjusted gross income plus that of every other individual in his or her family for whom the taxpayer can properly claim a personal exemption deduction and who is required to file a federal income tax return. Modified adjusted gross income is the taxpayers adjusted gross income plus any excluded foreign income, nontaxable Social Security benefits (including Tier 1 Railroad Retirement Benefits), and tax-exempt interest received or accrued dur-ing the tax year. However, Supplemental Security Income (SSI) is excluded. The Code Sec. 36B credit may be paid in advance to the insurer or claimed on the taxpayers return.

Comment. Eligibility for the Code Sec. 36B premium assistance tax credit is linked to a taxpayers household income in relation to the federal poverty line. Generally, a taxpayer must have household income between 100 percent and 400 percent of the federal poverty line. For a family of four for tax year 2014, the IRS has explained that means income from $23,550 to $94,200. Taxpayers whose household incomes for 2014 are expected within a few percentage points over the respective cut-offs may want to consider some tech-niques to defer income to 2015 and other techniques to come within the parameters.

Practitioners CornerContinued from page 117

120 March 6, 2014

Issue 10

The cross references at the end of the articles in CCH Federal Tax Weekly (FTW) are text references to CCH Tax Research Consultant (TRC). The following is a table of TRC text references to developments reported in FTW since the last release of New Developments.

March 7Employers deposit Social Security, Medi-care, and withheld income tax for March 1, 2, 3, and 4.

March 10Employees who received $20 or more in tips during February report them to their employers using Form 4070.

March 12Employers deposit Social Security, Medi-care, and withheld income tax for March 5, 6, and 7.


March 19Employers deposit Social Security, Medi-care, and withheld income tax for March 12, 13, and 14.


March 13: CCH, a part of Wolters Kluwer, presents a webinar, Income Taxation of Trusts and Estates. The program will of-fer a clear review of how estates and trusts are taxed and the related compliance and planning issues and concerns for estates and trusts. To register, visit www.krm.com/cch or call (800) 775-7654.

March 14: CCH, a part of Wolters Klu-wer, presents a webinar, Unrelated Business Income Tax: Navigating UBIT Complexities. The program will provide an overview of unrelated business taxable income, recent rulings and court decisions, exceptions, exclusions and modifications. To register, visit www.krm.com/cch or call (800) 775-7654.

March 18: CCH, a part of Wolters Kluwer, offers a program, Cross-Border Tax Issues for U.S. Companies Doing Business in Canada. Expert practitioners will discuss common tax issues, consequences and op-portunities involved with U.S.Canadian cross-border transactions. To register, visit www.krm.com/cch or call (800) 775-7654.

March 18: The American Bar Association Section of Taxation hosts its 2nd Annual International Tax Enforcement conference in Washington, DC. Government officials and practitioners will cover current en-forcement efforts, dispute management, criminal investigation, and policy con-siderations. For more information or to register, visit www.americanbar.org or call (202) 662.8672.

April 2425: Georgetown Law Continu-ing Education hosts a two-day program Representing and Managing Tax-Exempt Organizations in Washington, D.C. Speakers include government officials and expert practitioners, who will discuss important exempt organization issues in-cluding disaster relief, charitable giving, Code Sec. 501(c)(4) organizations, and more. Visit www.law.georgetown.edu or call (202) 662-9890 to register.

ACCTNG 21,054 66ACCTNG 21,300 49ACCTNG 33,256.05 87ACCTNG 36,162.05 102BUSEXP 6,162.15 40BUSEXP 9,080 79BUSEXP 9,104.30 65BUSEXP 24,118.10 101COMPEN 18,202 111DEPR 3,504.05 110DEPR 3,559 111DEPR 3,602 42EXEMPT 15,208 77EXEMPT 18,252 91EXEMPT 18,252 101FILEBUS 9,108 97FILEBUS 9,158.12 42FILEBUS 9,158.30 80FILEBUS 12,306 88

FILEIND 6,168.20 113FILEIND 15,200 62FILEIND 15,250 87FILEIND 15,250 114HEALTH 3,250 51HEALTH 3,300 103HEALTH 9,102 99INDIV 48,050 114INDIV 48,400 79INDIV 60,114 78INDIV 69,150 112INTL 15,100 86IRS 3,106 54IRS 3,112 116IRS 3,204.30 99IRS 12,350 63IRS 12,350 91IRS 18,106 75IRS 66,304 100

LITIG 6,114 65NOL 9,254 77NOL 27,052 75NOL 33,056 67PART 15,254 63PART 27,058 115PAYROLL 3,178 43PENALTY 3,108.15 54PENALTY 9,110 100RETIRE 42,454 89RETIRE 51,054.35 104RETIRE 51,100 53RETIRE 66,702 64RETIRE 75,104.15 66RETIRE 75,454.10 89RIC 6,054.15 92SALES 15,100 113SALES 30,614 103SCORP 560 90

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