Tag: IRS

IRS Provides Benefit Plan Relief to Louisiana Flood Victims

IRS Louisiana FloodOn August 14, 2016, President Obama declared a major disaster in the State of Louisiana due to the severe storms and flooding that took place in several State parishes (“Louisiana Storms”). Following the declaration, the Internal Revenue Service (IRS) issued guidance postponing certain tax filings and payment deadlines for taxpayers who reside or work in the disaster area. The relief also provides qualifying individuals with expanded access to their retirement plan assets to alleviate hardships caused by the Louisiana Storms. Below is a summary of the filing extension for the Form 5500 series and administrative changes that employers can make to expedite plan loans and hardship distributions to Louisiana Storm victims.

Extension of Filing Deadlines 

Plan sponsors in the affected parishes listed below now have until January 17, 2017, to file Form 5500 series returns, provided the return had an original or extended due date falling on or after August 11, 2016, and before January 17, 2017.

Relaxation of Hardship Distribution and Plan Loan Requirements

IRS Announcement 2016-30 (“Announcement”), issued on August 30, 2016, modifies certain verification procedures that may be required under retirement plans with respect to loans and hardship distributions. This relief allows qualifying individuals to quickly access assets in their “qualified employer plan” to alleviate hardships caused by the Louisiana Storms. Qualifying individuals include employees and former employees who have a principal residence or place of employment on August 11, 2016, located in one of the parishes identified below or who have a son, daughter, parent, grandparent, or other dependent with a principal residence or place of employment in one of the listed parishes on that date (“Qualifying Individuals”).

  • Acadia

  • Ascension

  • Avoyelles

  • East Baton Rouge

  • East Feliciana

  • Evangeline

  • Iberia

  • Iberville

  • Jefferson Davis

  • Lafayette

  • Livingston

  • Pointe Coupee

  • St. Helena

  • St. Landry

  • St. Martin

  • St. Tammany

  • Tangipahoa

  • Washington

  • West Feliciana

  • Vermilion

Other parishes may be added based on damage assessment by Federal Emergency Management Agency (FEMA).

The amount available for a hardship distribution is limited to the maximum amount permitted under the retirement plan and the IRS rules. However, Qualifying Individuals are permitted to use hardship proceeds for any hardship arising from the Louisiana Storms, for example, to repair or replace a home and to acquire food and shelter. Also, a Qualifying Individual may continue to make elective deferrals into the plan (the usual requirement to suspend deferrals for six months does not apply). Plan administrators may rely on the Qualifying Individual’s representations as to the need for and amount of the hardship distribution, unless the plan administrator has actual knowledge to the contrary. As soon as practicable the plan administrator can obtain any required documentation from the participant. Hardship distributions are includible in gross income and subject to the 10 percent excise tax that normally applies to a payment made before age 59-1/2 (unless Congress provides relief).

The IRS is also relaxing procedural and administrative rules that may apply to plan loans for a need arising from the Louisiana Storms. For example, if spousal consent is required for a plan loan or distribution and the employee claims his or her spouse is deceased, the plan may make the loan in the absence of a death certificate if it is reasonable to believe, under the circumstances, that the spouse is deceased, and the plan administrator makes reasonable efforts to obtain a copy of the death certificate as soon as practicable.

For purposes of the Announcement, a “qualified employer plan” includes a plan that meets the requirements of Code sections 401(a), 403(a), and 403(b), or a plan described in Code Section 457(b). Defined benefit plans and money purchase pension plans qualify, but only with respect to in-service hardship distributions from separate accounts, such as employee contributions or rollover amounts.

To qualify for relief, the plan loan or hardship distribution must be made no earlier than August 11, 2016, and no later than January 17, 2017.

If your retirement plan does not provide for loans or hardship distributions but you would like to allow storm victims to obtain loans or hardships, or if you would like to add flexibility to existing plan provisions, the plan must be amended no later than the end of the first plan year beginning after December 31, 2016 (December 31, 2017, for calendar year plans).

ARTICLE BY Timothy Brechtel, Susan Chambers & Ricardo X. Carlo of Jones Walker LLP

© 2016 Jones Walker LLP

IRS Tax Treatment of Wellness Program Benefits

Business people doing yoga on floor in office

The IRS Office of Chief Counsel recently released a memorandum providing guidance on the proper tax treatment of workplace wellness programs. Workplace wellness programs cover a range of plans and strategies adopted by employers to counter rising healthcare costs by promoting healthier lifestyles and providing employees with preventive care. These programs take many forms and can encompass everything from providing certain medical care regardless of enrollment in health coverage, to free gym passes for employees, to incentivized participation- based weight loss programs. Due to the wide variation in such plans the proper tax treatment can be complicated. However, the following points from the IRS memo can help business owners operating or considering a wellness program evaluate their tax treatment.

First, the memo confirmed that coverage in employer-provided wellness programs that provide medical care is generally not included in an employee’s gross income under section 106(a), which specifically excludes employer-provided coverage under an accident or health plan from employee gross income. 26 USC § 213(d)(1)(A) defines medical care as amounts paid for “the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body,” transportation for such care, qualified long term care services, and insurance (including amounts paid as premiums).

Second, it was made clear that any section 213(d) medical care provided by the program is excluded from the employee’s gross income under section 105(b), which permits an employee to exclude amounts received through employer-provided accident or health insurance if it is paid to reimburse expenses incurred by the employee for medical care for personal injuries and sickness. The memo emphasized that 105(b) only applies to money paid specifically to reimburse the employee for expenses incurred by him for the prescribed medical care. This means that the exclusion in 105(b) does not apply to money that the employee would receive through a wellness program irrespective of any expenses he incurred for medical care. 26 CFR 1.105-2.

Third, any rewards, incentives or other benefits provided by the wellness program that are not medical care as defined by section 213(d) must be included in an employee’s gross income. This means that cash prizes given to employees as incentives to participate in a wellness program are part of the employee’s gross income and may not be excluded by the employer. However, non-money awards or incentives might be excludable if they qualify as de minimis fringe benefits (ones that are so small and infrequent that accounting for them is unreasonable or impracticable). 26 USC § 132(a)(4). The memo gives the example of a t-shirt provided as part of a wellness program as such an excludable fringe benefit, and notes that money is never a de minimis fringe benefit.

Fourth, payment of gym memberships or reimbursement of gym fees is a cash benefit, even when received through the wellness program, and must be included in gross income. This is because cash rewards paid as part of the wellness program do not qualify as reimbursements of medical care and cannot be a fringe benefit.

Fifth, where an employee chooses a salary reduction to pay premiums for healthcare coverage and the employer reimburses the employee for some or all of the premium amount under a wellness program, the reimbursement is gross income.

These points laid out in the IRS memo provide a solid foundation for understanding the tax treatment of workplace wellness programs and should be kept in mind by business owners deciding how to structure new wellness plans for their employees, or ensuring the tax compliance of existing plans.

The Impact of Recently Proposed Regulations on Ineligible Nonqualified Plans Under Internal Revenue Code § 457(f)

qualified plans IRS taxThe Treasury Department and the Internal Revenue Service recently issued comprehensive proposed regulations governing nonqualified plans subject to tax under Internal Revenue Code § 457. Code § 457 prescribes the tax rules that apply to “eligible” and “ineligible” nonqualified deferred compensation plans. Code § 457(b) defines the requirements to be an “eligible” nonqualified plan; a deferred compensation plan that does not satisfy the requirements of Code § 457(b) is an “ineligible” plan under Code § 457(f). Eligible and ineligible plans may be maintained only by state or local governments or organizations exempt from tax under Code § 501(c). The proposed regulations make the following changes:

  • Eligible plans (Code § 457(b))

The proposed regulations would amend the final regulations issued in 2003 to reflect subsequent statutory changes made to Code § 457.

  • Ineligible plans(Code § 457(f))

The proposed regulations make good on the Service’s promise, made in Notice 2007-62, to issue “guidance regarding a substantial risk of forfeiture for purposes of § 457(f)(3)(B) under rules similar to those set forth under § 1.409A-1(d).” This promise prompted much concern amount ineligible plan sponsors and their advisors. Notice 2007-62 was aimed squarely at the interaction between Code § 457(f) and the then recently issued final regulations under Code § 409A. It was clear to many that the latter would have some consequences for the former. To what extent would Code § 409A force unwelcome changes to the rules governing ineligible plans of deferred compensation? When maintained by private sector tax-exempt entities, these plans are restricted to covering only senior management (or, in the parlance of ERISA, the “top-hat group”), which in many institutions, meant the chief executive officer. In particular, sponsors and their advisors worried about three, broad issues:

  • Will the narrower definition of ‘substantial risk of forfeiture” set forth in Code § 409A be applied to arrangements governed by Code § 457(f)?

  • Will elective deferrals continue to be allowed?

  • Will a non-compete agreement continue to operate to defer vesting (and hence the imposition of tax)?

Though not addressed in Notice 2007-62, sponsors of ineligible plans had the following additional worries relating to the interaction between Code § 457 and Code § 409A:

  • Code § 457 includes a carve-out for bona fide severance plans; Code § 409A similarly includes a carve-out for severance plans, but only for terminations based on an involuntary termination. It was only a matter of time they surmised, before the regulators intervened to “harmonize” the two provisions of the Code.

  • The final Code § 409A regulations contained detailed rules governing what constitutes an “involuntary termination of employment.” Whether a termination of employment is also (critically) important for purposes of Code §457, since only an involuntary termination can defer vesting. Will the same definition apply in each case?

  • How “constructive termination” actions (often referenced as “good reason” provisions) would operate as a basis for vesting of benefits for ineligible plans?

In this post, we examine the impact of the proposed regulations on ineligible plans under Code § 457(f) with a particular emphasis on the issues raised above. As a result—or at least it so appears—of comments received in response to Notice 2007-62, the worst fears of sponsors and advisors alike have not materialized. Once these rules are made final, however, there will be a “new” far more constrained “normal.” These regulations will introduce a new level of rigor into the design, maintenance and operation of ineligible deferred compensation plans.

Background                                                                                                  

A “plan” for purposes of Code § 457 includes “any plan, agreement, method, program, or other arrangement, including an individual employment agreement, of an eligible employer under which the payment of compensation is deferred. There are, however, certain plans that are not subject to Code § 457. These include bona fide vacation leave, sick leave, compensatory time, severance pay, disability pay, and death benefit plans, plans paying solely length of service awards to bona fide volunteers (or their beneficiaries), and bona fide severance pay plans. While these exceptions apply to eligible and ineligible plans alike, the exception for bona fide severance pay plans is of particular interest to sponsors of ineligible plans…

Continue reading…

ARTICLE BY Alden J. Bianchi, Tyrone P. Thomas & David R. Lagasse of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

A Whole New World for Qualified Plans: Internal Revenue Procedure 2016-37

IRS qualified plansThe Internal Revenue Service (IRS) announced changes to the determination letter program for individually designed qualified plans in IRS Announcement 2015-19 and IRS Notice 2016-03, which we have discussed in prior posts. In our June 2016 we described the report made to the IRS by the Advisory Committee on Tax Exempt and Government Entities, which provided recommendations to the IRS regarding changes to the determination letter program.

The IRS issued Revenue Procedure 2016-37 on June 29, 2016, which clarifies, modifies and supersedes Revenue Procedure 2007-44 and is generally effective January 1, 2017.  Revenue Procedure 2016-37 provides additional guidance on changes to the determination letter program and ongoing plan compliance, extends the remedial amendment period for individually designed qualified plans, revises the remedial amendment cycle system for pre-approved qualified plans in accordance with the changes made to the determination letter program and delays the beginning of the 12-month submission period for pre-approved qualified plans to request opinion and advisory letters. This Client Alert addresses the modifications to the determination letter program and ongoing compliance for individually designed qualified plans. A subsequent post will address the modifications in Revenue Procedure 2016-37 that apply to pre-approved qualified plans.

Key Points for Individually Designed Qualified Plans:

  • The current five-year determination letter program for individually designed qualified plans described in Revenue Procedure 2007-44 is eliminated effective January 1, 2017, consistent with prior recent IRS guidance.

  • Effective January 1, 2017, sponsors of individually designed qualified plans may submit determination letter applications only for initial plan qualification, qualification on plan termination and certain other circumstances to be determined annually by the IRS.

  • The IRS intends to publish annually a “Required Amendments List” of disqualifying provisions that arise as a result in a change in qualification requirements.

  • The remedial amendment period for a disqualifying provision related to a change in qualification requirements which is on the Required Amendments List generally will be the end of the second calendar year following the year the list is issued.

  • The remedial amendment period for a disqualifying provision related to an amendment to an existing plan which is not on the Required Amendments List generally will be the end of the second calendar year following the calendar year in which the amendment is adopted or effective, whichever is later.

  • To assist plan sponsors with operational plan compliance, the IRS intends to issue an Operational Compliance List annually to identify changes in qualification requirements that are effective during a calendar year.

Elimination of the Five-Year Remedial Amendment Cycle

Effective January 1, 2017, the staggered five-year remedial amendment cycle system for individually designed plans is eliminated. Cycle A plans (plan sponsors with employer identification numbers ending in 1 or 6) may submit determination letter applications during the period beginning on February 1, 2016, and ending on January 31, 2017. Controlled groups and affiliated service groups that maintain one or more plan may submit determination letter applications for such plans during Cycle A in accordance with prior valid Cycle A election(s). Also effective January 1, 2017, individually designed plan sponsors are no longer required to adopt interim plan amendments as described in Revenue Procedure 2007-44 with adoption deadlines on or after such date.

When May a Determination Letter Application Be Submitted?

  • Initial Plan Qualification.  A plan sponsor may submit a plan for initial plan qualification on a Form 5500 if a favorable determination letter has never been issued for the plan.

  • Qualification Upon Plan Termination.  A plan sponsor may submit a plan to obtain a favorable determination letter upon plan termination if the filing is made no later than the later of (i) one year from the effective date of the termination; or (ii) one year from the date on which the action terminating the plan is taken, but in any case not later than 12 months after the date that substantially all plan assets have been distributed in connection with the plan termination.

  • Other Circumstances.  The IRS will consider annually whether determination letter applications will be accepted for individually designed plans under circumstances other than initial qualification or plan termination. Factors that may affect such consideration include:

    • Significant law changes

    • New approaches to plan design

    • Inability of certain plans to convert to a pre-approved format

    • IRS case load and resources available to process applications

Additional situations in which plan sponsors will be permitted to request determination letters will be announced in the Internal Revenue Bulletin. Comments will be requested on a periodic basis as to the additional situations in which a determination letter application may be appropriate. The only determination applications that will be accepted during the 2017 calendar year are for initial plan qualification, qualification upon plan termination and Cycle A submissions.

Extension of Remedial Amendment Period

Generally, a disqualifying provision is a provision or the absence of a provision in a new plan or a provision in an existing plan that causes a plan to fail to satisfy the requirements of the Internal Revenue Code (Code) as of the date the plan or amendment is first effective. Additionally, a disqualifying provision includes a plan provision that has been designated by the IRS as a disqualifying provision by reason of a change in those requirements. For disqualifying provisions that are first effective on or after January 1, 2016, the remedial amendment period for plans (other than governmental plans) is extended as follows:

  • New Plan.  The remedial amendment period ends the later of (i) the 15th day of the 10th calendar month after the end of the plan’s initial plan year; or (ii) the “modified Code Section 401(b) expiration date.”

  • Amendment to Existing Plan.  The remedial amendment period for a disqualifying provision (other than those in the Required Amendments List) is the end of the second calendar year after the amendment is adopted or effective, whichever is later.

    • Plan Not Maintained by a Tax-Exempt Employer: The modified Code Section 401(b) expiration date is generally the due date for the employer’s income tax return, determined as if the extension applies.

    • Plan Maintained by a Tax-Exempt Employer: The modified Code Section 401(b) expiration date is generally the due date for the Form 990 series, determined as if the extension applies or, if no Form 990 series filing is required, the 15th day of the 10th month after the end of the employer’s tax year (treating the calendar year as the tax year if the employer has no tax year).

  • Change in Qualification Requirements.  The remedial amendment period for a disqualifying provision that relates to a change in qualification requirements is the end of the second calendar year that begins after the issuance of the Required Amendment List on which the change in qualification requirements appears.

Example: Remedial Amendment Period for Amendment to an Existing Plan.

Employer maintains an individually designed plan that received a favorable determination letter in 2014.  Effective January 1, 2018, Employer amends the plan’s vesting schedule. The plan amendment, which is signed on January 1, 2018, results in a disqualifying provision. During its annual plan compliance review in March 2019, Employer realizes that the plan amendment resulted in an impermissible vesting schedule. To maintain the plan’s qualification, Employer must: (i) adopt a remedial amendment to correct the disqualifying plan provision no later than December 31, 2020 – the last day of the second calendar year after the plan amendment was adopted and effective; (ii) make the remedial amendment retroactively effective as of January 1, 2018; and (iii) correct the plan’s operation to the extent necessary to correct the disqualifying provision.

Example: Remedial Amendment Period for Change in Qualification Requirements.

Employer maintains an individually designed plan with a calendar year plan year. The IRS publishes guidance in the Internal Revenue Bulletin in July 2016 that changes a qualification requirement under the Code. The guidance, which is effective for the first plan year beginning on or after January 1, 2017, is included on the 2017 Required Amendments List (issued in December 2016). To maintain the plan’s qualification, Employer must: (i) adopt an amendment to the plan reflecting the guidance no later than December 31, 2019 – the last day of the second calendar year that begins after the issuance of the Required Amendments List on which the qualification change appear; and (ii) ensure that the plan is operationally compliant with the guidance as of January 1, 2017.

Note that the remedial amendment periods differ for new and existing plans of governmental entities.

Extended Remedial Amendment Period Transition Rule

The remedial amendment period for certain disqualifying provisions identified in Revenue Procedure 2007-44 was set to expire as of December 31, 2016, as a result of the elimination of the five-year remedial amendment cycle system. The remedial amendment period for such provisions is extended to December 31, 2017, except that with respect to any disqualifying provision that is on the 2016 Required Amendments List, the remedial amendment period will end on the last day of the second calendar year that begins after the issuance of the Required Amendments List.

Terminating Plans

Generally, the termination of a plan ends the plan’s remedial amendment period. Retroactive remedial plan amendments or other required plan amendments must be adopted in connection with the plan termination even if such amendments are not on the Required Amendments List.

Plan Amendment Deadline

For disqualifying provisions, the plan amendment deadline is generally the date on which the remedial amendment period expires, unless otherwise provided. For discretionary amendments (i.e., any amendment not related to a disqualifying provision) to any plan that is not a governmental plan, unless otherwise provided, the amendment deadline is the end of the plan year in which the amendment is operationally put into effect. An amendment is operationally put into effect when the plan is administered in a manner consistent with the intended plan amendment (rather than existing plan terms).    

Required Amendments List

The Treasury and IRS intend to publish a Required Amendments List annually, beginning with changes in qualification requirements that become effective on or after January 1, 2016. The Required Amendments List will provide the date that the remedial amendment period expires for changes in qualification requirements. An item will appear on the Required Amendments List after guidance (including any model amendment) has been provided in regulations or in other guidance published in the Internal Revenue Bulletin, except as otherwise determined at the discretion of the IRS.

Operational Compliance List

The deadline for amending a plan retroactively to comply with a change in plan qualification requirements is the last day of the remedial amendment period.  However, a plan must be operated in compliance with a change in qualification requirements as of the effective date of the change. The IRS intends to issue annually an Operational Compliance List to identify changes in qualification requirements that are effective during a calendar year. The Operational Compliance List is intended to assist plan sponsor in operational compliance, but plan sponsors are required to comply with all relevant qualification requirements, even if not on the list.

Scope of Plan Review

The IRS will review plans submitted with determination letter applications based on the Required Amendments List issued during the second calendar year preceding the submission of the application. The review will consider all previously issued Required Amendments Lists (and Cumulative Lists prior to 2016). Terminating plans will be reviewed for amendments required to be adopted in connection with plan termination.  Plans submitted for initial qualification in 2017 will be reviewed based on the 2015 Cumulative List. With the exception of a terminating plan, individually designed plans must be restated to incorporate all previously adopted amendments when a determination letter application is submitted.

Reliance on Determination Letters

As provided in Revenue Procedure 2016-6, effective January 4, 2016, determination letters issued to individually designed plans no longer contain expiration dates, and expiration dates in determination letters issued prior to January 4, 2016, are no longer operative. A plan sponsor that maintains a qualified plan for which a favorable determination letter has been issued and that is otherwise entitled to rely on the determination letter may not continue to rely on the determination letter with respect to a plan provision that is subsequently amended or is subsequently affected by a change in law. However, the plan sponsor may continue to rely on such determination letter for plan provisions that are not amended or affected by a change in the law.

Action Steps for Sponsors of Individually Designed Qualified Plans

  • Conduct an annual compliance review to assess compliance with the current Operational Compliance List and correct any failures detected in accordance with the IRS guidance.

  • Periodically conduct a more in depth compliance review to assess compliance with all prior Operational Compliance Lists.

  • Review plan documents annually to assess compliance with the current Required Amendments List and determine whether plan amendments are required within the applicable remedial amendment period.

  • Review plan documents annually to determine whether all discretionary plan amendments have been timely adopted.

  • For any new individually designed qualified plan, determine the timing of the IRS submission request for an initial favorable determination letter.

  • For any terminating individually designed qualified plan, determine: (i) whether a favorable determination letter will be requested in connection with the plan termination; (ii) whether plan amendments are required in connection with the plan termination; and (iii) the timing of the submission to the IRS for a favorable letter on the qualification upon plan termination.

  • Annually, determine whether an IRS submission is permissible for an existing individually designed qualified plan, based on current IRS guidance.

ARTICLE BY Lori L. Shannon & Monica A. Novak of Drinker Biddle & Reath LLP
©2016 Drinker Biddle & Reath LLP. All Rights Reserved

Tax Treatment of Bitcoin Has Many Open Questions

bitcoinIt has been over two years since the IRS came out with its initial position on the tax treatment of Bitcoin and other virtual currencies, but there has yet to be any follow-up on questions that this initial position has raised. The American Institute of Certified Public Accountants has written a letter to the IRS urging the Service to publish additional guidance to provide more certainty on these open issues.

IRS Notice 2014-21 stated that virtual currencies are to be treated as property, not as currency. This was potentially good news to Bitcoin investors, since it would allow them to pay the lower long-term capital gains tax rate on profits if they held the Bitcoin for over a year. On the other hand, this position was  inconvenient for consumers and merchants who use and accept virtual currencies as a means of exchange, because each transaction, no matter how small, must be reported in order to determine the amount of gain  or loss every time a consumer uses the virtual currency as a means of exchange, and every time the merchant converts the virtual currency received in a transaction into U.S. currency.

In the two years since the IRS published Notice 2014-21, this classification of virtual currencies as property rather than a currency, many other questions have been raised, but have not been addressed. The letter from the AICPA sets them out:

(1) Determining Fair Market Value of the Virtual Currency: The IRS should publish guidance on whether a taxpayer can use any published exchange rate to determine the fair market value of virtual currencies, and whether the taxpayer must use the same published exchange rate for all other transactions. The letter notes that there are  wide variance in the fair market value of Bitcoin on four Bitcoin published rates (Google, Bitcoin exchange rate, Bitstamp, CEX and Winkdex), citing an example selected at the same time, reflecting a range of value from a low of $227.84 to a high of $231.14.

(2) Expenses of Obtaining Virtual Currencies: Are the expenses to mine virtual currencies currently deductible, or are they to be added to the basis of the mined currency? This would normally be an easy call – costs would normally be added to the basis of the property that is manufactured – but the 2014 guidance intimates that this might not be the case.

(3) Tracking Basis of Virtual Currency: Because virtual currencies are treated as property, the taxpayer must track the cost of purchasing each unit acquired, in order to determine the taxable gain when it is sold (including every time a consumer uses it to purchase goods and services).  The AICPA letter says that tracking the basis for virtual currency is virtually impossible when it is used in everyday commerce, and asked for the IRS to consider alternative means to determine basis.

(4) General Transaction Rules Applicable to Property: The AICPA letter asks whether the general tax rules applicable to property (rather than currencies) would apply to virtual currencies. For example, the letter asks whether a taxpayer would be able to take advantage of the tax free like-kind exchange rules of section 1031 if one type of virtual currency is exchanged for a different type of virtual currency (for example, a Bitcoin for Ethereum exchange).

(5) Character of Virtual Currencies Held By Merchants: How should virtual currencies that are accepted by a merchant be classified for tax purposes – as a capital asset or as an ordinary income asset?

(6) Charitable Contributions: Does a contribution of virtual currencies to a charitable organization require a formal appraisal? The general rule is that if a taxpayer donates property worth more than $5,000 to a charitable organization, the taxpayer must obtain a formal appraisal to support the amount to be deducted as a charitable contribution. There is an exception, where an appraisal is not needed for the donation of securities that are traded on a published exchange. The letter asks whether the donation of virtual currency should be subject to the same exception, since they are traded on published exchanges.

(7) Is Virtual Currency a Commodity: If virtual currencies are treated as a commodity, would it be subject to the mark-to-market rules for commodity traders?

(8) How About a De Minimus Exception For Small Transactions: The letter asks the IRS for an exception to the rule requiring a taxpayer to report each virtual currency transaction as a taxable sale of property when used to make small consumer purchases.

(9) Retirement Accounts: Can virtual currencies be held as an investment in a qualified retirement plan (like a 401(k) plan)? The rules for eligible investments in such plans limit the types of property than can be held in a qualified retirement plan.

(10) Foreign Reporting Requirements: Are virtual currencies subject to Foreign Bank Account Reports (FBAR) and/or Foreign Bank Account Tax Compliance Act (FATCA) reporting?

As these issues get worked out, others are likely to arise. Until they are addressed by the IRS, the uncertainty will likely inhibit the growth of virtual currencies in the U.S. economy.

To see a copy of the AICPA letter to the IRS, please click here.

ARTICLE BY Marvin A. Kirsner of Greenberg Traurig, LLP

©2016 Greenberg Traurig, LLP. All rights reserved.

IRS Expands Ability of Safe Harbor Plan Sponsors to Make Mid-Year Changes

The Internal Revenue Service (IRS) recently issued Notice 2016-16, which provides safe harbor 401(k) plan sponsors with increased flexibility to make mid-year plan changes.  Notice 2016-16 sets forth new rules for when and how safe harbor plan sponsors may amend their plans to make mid-year changes, a process which traditionally has been subject to significant restrictions.

Background

“Safe harbor” 401(k) plans are exempt from certain nondiscrimination tests (the actual deferral percentage (ADP) and actual contribution percentage (ACP) tests) that otherwise apply to employee elective deferrals and employer matching contributions.  In return for these exemptions, safe harbor plans must meet certain requirements, including required levels of contributions, the requirement that plan sponsors provide the so-called “safe harbor notice” to participants, and the requirement that plan provisions remain in effect for a 12-month period, subject to certain limited exceptions.

Historically, the IRS has limited the types of changes that a safe harbor plan sponsor may make mid-year due to the requirement that safe harbor plan provisions remain in effect for a 12-month period.  The 401(k) regulations provide that the following mid-year changes are prohibited, unless applicable regulatory conditions are met:

  • Adoption of a short plan year or any change to the plan year

  • Adoption of safe harbor status on or after the beginning of the plan year

  • The reduction or suspension of safe harbor contributions or changes from safe harbor plan status to non-safe harbor plan status

The IRS has occasionally published exceptions to the limitations on mid-year changes.  For example, plan sponsors were permitted to make mid-year changes to cover same-sex spouses following the Supreme Court of the United States’ decision in United States v. Windsor in 2013.

Aside from these limited exceptions, safe harbor plan sponsors were generally not permitted to make mid-year changes.  This led to some difficulties for plan sponsors, particularly in situations where events outside the plan sponsor’s control might ordinarily cause a plan sponsor to want to make a mid-year plan change.

Permissible Mid-Year Changes

Notice 2016-16 clarifies that certain changes to safe harbor plans made on or after January 29, 2016, including changes that alter the content of a plan’s required safe harbor notice, do not violate the safe harbor qualification requirements simply because they occur mid-year.  A “mid-year change” for this purpose includes (1) a change that is first effective during a plan year, but not effective at the beginning of a plan year, or (2) a change that is effective retroactive to the beginning of the plan year, but adopted after the beginning of the plan year.

Mid-year changes that alter the plan’s required safe harbor notice content must meet two additional requirements:

  1. The plan sponsor must provide an updated safe harbor notice that describes the mid-year change and its effective date must be provided to each employee required to receive a safe harbor notice within a reasonable period before the effective date of the change.  The timing requirement is deemed satisfied if the notice is provided at least 30 days, and no more than 90 days, before the effective date of the change.

  2. Each employee required to be provided a safe harbor notice must also have a reasonable opportunity (including a reasonable time after receipt of the updated notice) before the effective date of the mid-year change to change the employee’s cash or deferred election.  Again, this timing requirement is deemed satisfied if the election period is at least 30 days.

Mid-year changes that do not alter the content of the required safe harbor notice do not require the issuance of a special safe harbor notice or a new election opportunity.

Prohibited Mid-Year Changes

Certain mid-year changes remain prohibited, including:

  • A mid-year change to increase the number of years of service that an employee must accrue to be vested in the employee’s account balance under a qualified automatic contribution arrangement (QACA) safe harbor plan

  • A mid-year change to reduce the number of employees eligible to receive safe harbor contributions

  • A mid-year change to the type of safe harbor plan, such as changing from a traditional 401(k) safe harbor plan to a QACA

  • A mid-year change to modify or add a matching contribution formula, or the definition of compensation used to determine matching contributions if the change increases the amount of matching contributions

  • A mid-year change to permit discretionary matching contributions

In addition, mid-year changes that are already subject to conditions under the 401(k) and 401(m) regulations (including changes to the plan year, the adoption of safe harbor status mid-plan year, and the reduction or suspension of safe harbor contributions, as described above) are still prohibited, unless applicable regulatory conditions are met.  These changes are also not subject to the special notice and election opportunity requirements.

Conclusion

Notice 2016-16 fundamentally changes the rules regarding mid-year changes to safe harbor 401(k) plans.  Prior to Notice 2016-16, mid-year changes were assumed to be impermissible, subject to the limited exceptions described above.  Going forward, however, mid-year changes that are not specifically prohibited are permitted, so long as the notice requirements, where applicable, are met, and other regulatory requirements are not violated.

Notice 2016-16 should prove particularly helpful for safe harbor plan sponsors that have struggled with the limitations imposed on safe harbor plans by the inability to make mid-year changes when non-safe harbor plans would do so (for example, if a record-keeper changes administrative procedures or other events outside the plan sponsor’s control require mid-year changes).  However, safe harbor plan sponsors wishing to make mid-year changes will still need to consult with advisors to determine whether a proposed amendment is permissible, or whether the amendment is subject to additional regulatory requirements.  In addition, plan sponsors wishing to make a mid-year change that would alter the plan’s required safe harbor notice content must assume the additional cost of issuing a special safe harbor notice and must plan ahead to make sure the supplemental notice is delivered on time.

The IRS is also requesting comment on additional guidance that may be needed with respect to mid-year changes to safe-harbor plans, and specifically as to whether additional guidance is needed to address mid-year changes relating to plan sponsors involved in mergers and acquisitions or to plans that include an eligible automatic contribution arrangement under Section 414(w) of the Internal Revenue Code.  Comments may be submitted in writing not later than April 28, 2016.

Article By Jeffrey M. Holdvogt, Stephen Pavlick, PC & Sarah G. Raaii of McDermott Will & Emery
© 2016 McDermott Will & Emery

IRS Releases Favorable Guidance for Individual Investors in Community Solar to Claim Section 25D Tax Credit

The IRS recently issued a Private Letter Ruling (PLR) clarifying that an individual investor in a net-meted community solar project may claim the federal residential Investment Tax Credit (ITC) under Section 25D of the Internal Revenue Code. (A copy of the PLR is available here.) The PLR is also significant because it appears to eliminate a number of contractual requirements that the utility and taxpayer needed to agree to regarding the tracking and ownership of the power produced by the solar project to be eligible for the credit.

Section 25D Tax Credit and Prior IRS Guidance

Just like the Section 48 ITC, the Section 25D ITC permits an owner of solar and other renewable energy property installed before January 1, 2017 to receive a 30% tax credit against federal income taxes. However, in order to claim the credit the property must “generate electricity for use in a dwelling … used as a residence by the taxpayer.” Some tax practitioners interpreted that to meant the credit was limited to solar projects on or adjacent to the taxpayer’s residence. A few years ago, the IRS provided some guidance in Notice 2013-70 (at Q&A Nos. 26 and 27) that taxpayers could in fact claim the credit for off-site solar projects. However, the fact pattern in the Notice described an off-site net-metered project that was owned by the taxpayer, so questions remained whether taxpayers could claim the credit for investments in co-owned community solar projects. Further, the IRS limited the Notice so that it only applied to net-metering arrangements whereby the taxpayer specifically contracts with its local utility to track “the amount of electricity produced by the taxpayer’s solar panels and transmitted to the grid and the amount of electricity used by the taxpayer’s residence and drawn from the grid” as well as stipulate in the contract that the taxpayer holds title to the energy until it is delivered to the taxpayer’s residence. These requirements were problematic because they were often at odds with utility tariffs and state net-metering laws.

The PLR

The PLR is partially redacted but it was provided to a Vermont taxpayer requesting clarification as to whether his investment to purchase 10 solar panels in a 640-panel community solar farm along with a partial ownership in related racking, inverters and wiring is eligible for the Section 25D ITC. (A brief write-up about the project and taxpayer in the local press is available here.) The PLR explains that the project’s entire solar energy output is provided to the taxpayer’s local utility which then calculates a net-metering credit pursuant to its tariff and applies a portion of that credit against the taxpayer’s monthly electric bills. The PLR also explains that the taxpayer’s solar panels are not expected to generate electricity in excess of what the taxpayer will consume at his residence and that the taxpayer along with the other owners of the community solar project are members of an entity that coordinates with the utility the information needed to calculate each person’s allocable share of energy produced by the entire project. Based on these facts, the IRS determined that the taxpayer is entitled to the Section 25D credit. The PLR makes clear the fact that other individuals own solar panels in the project’s solar array does not disqualify the taxpayer from claiming the Section 25D ITC. The PLR did away with the requirement the utility specifically track the exact amount of electricity produced by the taxpayer’s portion of the community solar project and can instead determine the taxpayer’s allocable share of the entire project. The PLR also did away with the requirement the utility contractually agree that the taxpayer retains ownership of the electricity until delivered at his residence. Thus, to recap, under the PLR a taxpayer investing in a community solar project is generally entitled to the Section 25D ITC so long as: (1) the community solar project provides power to the taxpayer’s local utility, (2) the utility provides a credit for the taxpayer’s allocated energy production of the entire project, and (3) the taxpayer’s allocable share is not in excess of its residential needs.

Impact

It is important to note PLRs only apply to the individual taxpayer requesting the ruling and may not be cited or relied upon as precedent by other taxpayers. That said, PLRs provide valuable insight to the IRS’s views on a particular matter, and we expect that this PLR should incentivize investment in community solar and lead to even further expansion in the market. Until now, the market has been primarily driven by tax equity investors claiming the Section 48 ITC and depreciation, however, this PLR opens up opportunities for homeowners who cannot install solar systems for various reasons to invest in community solar.

Article By David B. Weisblat & Kurt R. Rempe of Foley & Lardner LLP
© 2015 Foley & Lardner LLP

IRS Identifies Certain Basket Derivatives as Reportable Transactions

On July 8, 2015, the Internal Revenue Service (the “IRS”) identified as reportable transactions certain derivative contracts that reference a basket of assets. The transactions identified by the IRS are referred to by the IRS as “basket option contracts” or “basket contracts.” In these transactions, a purchaser enters into a contract that is IRS Seal logodenominated as an option, a notional principal contract (e.g., a swap), a forward contract or other derivative contract with a counterparty to receive a return based on the performance of a notional basket of referenced assets (the “reference basket”). The reference basket may include (1) “actively traded personal property” (e.g., publicly traded stock), (2) interests in hedge funds or other entities that trade securities, commodities, foreign currency or similar property, (3) securities, (4) commodities, (5) foreign currency, or (6) similar property or positions in such property. The purchaser or a designee named by the purchaser will either determine the assets that comprise the reference basket or design or select a trading algorithm that determines the assets. While the contract remains open, the purchaser has the right to request changes in the assets in the reference basket or the specified trading algorithm.

The purchaser generally takes the position that short-term gains and interest, dividend and other ordinary periodic income from the performance of the reference basket is deferred until the instrument terminates and, if the instrument is held for more than one year, that the entire gain is treated as longterm capital gain. According to the IRS, the purchaser may be using the instrument to inappropriately defer income recognition, convert ordinary income and short-term capital gain into long-term capital gain and/or avoid U.S. withholding tax.

Anyone who has participated in a basket option contract, basket contract or substantially similar transaction is now subject to certain IRS reporting obligations. The following parties are generally considered participants by the IRS and are, therefore, subject to these reporting obligations: (1) the purchaser, (2) if the purchaser is a partnership, any general partner of the purchaser, (3) if the purchaser is a limited liability company, any managing member of the purchaser, and (4) the counterparty.

Each participant in a basket option contract, basket contract or substantially similar transaction that was in effect on or after January 1, 2011 must report the transaction to the IRS, provided that the period of limitations did not end on or before July 8, 2015. If a participant has already filed its tax return for a year in which it participated in a basket option contract, basket contract or substantially similar transaction and the period of limitations has not ended, the participant needs to report the transaction to the IRS by November 5, 2015. Significant penalties and an extended statute of limitations may apply if a reportable transaction is not timely reported. In addition to the reporting obligations, a participant in a reportable transaction must also retain copies of all material documents and other records relating to the transaction.

ARTICLE BY Investment Services Group of Vedder Price

© 2015 Vedder Price

IRS Announces Major Changes to its Determination Letter Program for Individually Designed Retirement Plans

On July 21, 2015, the Internal Revenue Service (IRS) issued Announcement 2015-19 (the Announcement), which ends the five year remedial amendment cycles for individually designed plans effective January 1, 2017.  For remedial amendment cycles beginning after 2016, plan sponsors will no longer be able to apply for determination letters on their individually designed defined contribution and defined benefit plans, except for initial qualification and qualification upon termination. Effective on the Announcement date, off-cycle requests for determination letters will no longer be accepted. The IRS intends to publish additional guidance periodically, and seeks comments on the upcoming changes.

Background

The determination letter program allows retirement plan sponsors to request an IRS determination that the “form” of a plan (but not its operation) meets the requirements for favorable tax treatment under the Internal Revenue Code (Code). A determination letter is an IRS opinion that the terms of a retirement plan satisfy the complex requirements of Section 401(a) of the Code. It is standard practice to seek a favorable determination letter for an individually designed retirement plan. Plan sponsors, auditors, fiduciaries and others customarily rely on a favorable determination letter to establish that a plan’s terms comply with Code requirements.

Under the determination letter program, the sponsor of an individually designed plan generally applies for a determination once every five years according to staggered application cycles (Cycles A to E) based on the last digit of the plan sponsor’s employer identification number (EIN).

IRS Announcement 2015-19

The Announcement leaves unchanged the current remedial amendment period, Cycle E, ending January 31, 2016 for individually designed plans sponsored by employers with EINs ending in zero or five. Also unchanged is the next remedial amendment period, Cycle A, from February 1, 2016, through January 31, 2017, for EINs ending in one or six. Sponsors of Cycle A plans may submit determination applications until January 31, 2017. The Announcement ends the five year remedial amendment cycles for individually designed plans effective January 1, 2017. The end of the remedial amendment cycles will mean that required amendments generally must be adopted on or before the extended due date for filing the plan sponsor’s tax return for the year of a plan change. However, because the rules are changing, the IRS expects that a remedial amendment period will extend at least until December 31, 2017.

Future Compliance

The IRS and the Department of Treasury are considering ways to make it easier for sponsors to ensure that their plan documents satisfy the qualification requirements of the Code. This may include, in appropriate circumstances: (i) providing model amendments (safe harbor language), (ii) not requiring certain amendments to be adopted if they are not relevant for a particular plan (for example, because of the type of plan, employer, or benefits offered), or (iii) expanding plan sponsors’ options to document qualification requirements through “incorporation by reference.”

At a recent American Bar Association meeting, IRS officials informally discussed other possible compliance methods for plan sponsors including: (i) allowing plans sponsors to make minor changes to model amendments, (ii) making it easier to correct plan document failures under the Employee Plans Compliance Resolution System (EPCRS), and (iii) expanding the determination letter program for pre-approved plans.

In the Announcement, the IRS requests comments on the upcoming changes and specifically these issues: (i) changes to the remedial amendment period for individually designed plans, (ii) requirements for adoption of interim amendments, (iii) guidance to assist the conversion of individually designed plans to pre-approved plans and (iv) any modification of the EPCRS.

Observations

Cycle E and Cycle A plan sponsors should still submit timely determination letter requests for those plans. The Announcement on July 21, 2015, is likely just a first step, to be followed by other IRS guidance which may make it easier for plan sponsors to comply with documentary requirements. Questions and comments on the Announcement will probably be addressed later by the IRS. Plan sponsors with individually designed plans should consider the Announcement and subsequent IRS guidance in deciding on a course of action. When determination letters are no longer effective, sponsors of individually designed plans may decide to seek expert opinions that plan terms comply with Section 401(a) of the Code. Some sponsors of individually designed plans will consider transitioning those plans to a pre-approved format (Master and Prototype, or Volume Submitter), to take advantage of IRS opinion letters issued to pre-approved plans.

ARTICLE BY David Diaz, Alan D. Nesburg, PC & Stephen Pavlick, PC of McDermott Will & Emery

© 2015 McDermott Will & Emery

New IRS Guidance on 40% Excise Tax Previews Future Regulatory Complexity

Although public opposition to the 40% excise tax on high-cost health care is rapidly growing, the IRS continued to develop a regulatory framework for administration of the excise tax through its issuance of Notice 2015-52 on July 30, 2015. Similar to the first notice on this topic, Notice 2015-52 merely identifies various administrative challenges without providing concrete guidance. If nothing else, the new guidance provides another preview into what will undoubtedly be a complex regulatory environment.

By way of background, the Affordable Care Act (or “ACA”) added Section 4980I to the Internal Revenue Code (the “Code”), which imposes a 40% excise tax (the “40% Excise Tax”) on the excess, if any, of the aggregate cost of applicable coverage provided to an employee over a set dollar limit (the applicable dollar limits will be adjusted for inflation and are subject to additional increases based on age and gender or for certain individuals in high risk professions). The 40% Excise Tax is imposed on the “coverage provider,” which is the health insurance carrier in the case of an insured group health plan, the employer with respect to a health savings account or Archer medical savings account, or in all other cases, the “person that administers the plan benefits.”

In February 2015, the IRS released the first notice, Notice 2015-16 (discussedhere), which was intended to initiate the process of developing regulatory guidance under Code Section 4980I. Notice 2015-16 described potential approaches related to the definition of applicable coverage, the calculation of the cost of applicable coverage and the applicable dollar limit.

The new IRS guidance proposes additional approaches related to (1) identification of the person or entity responsible for paying the tax, (2) determining the cost of applicable coverage, (3) age and gender adjustments to the applicable dollar limit and (4) notice and payment of the 40% Excise Tax. Although many of the approaches described by the IRS could work in the single-employer plan context, the approaches create a number of issues for multiemployer plans and the employers that contribute to them. These issues will be addressed in a future blog. Below is a summary of the key approaches described by the IRS in Notice 2015-52.

Identification of the Coverage Provider

As noted above, Code Section 4980I imposes a tax on the “coverage provider.”  The coverage provider is easily identified in the case of an insured plan or a health savings account. However, in all other cases, the coverage provider is the “person that administers the plan benefits.” Because neither the ACA nor ERISA contains guidance on identifying the person or entity that administers plan benefits, the IRS has proposed two approaches to assist in identifying the coverage provider.

Under the first approach, the coverage provider would be the person or entity responsible for performing day-to-day functions related to administration of the plan (e.g., processing claims or handing participant inquiries). In many cases, this would be a third-party benefits administrator. Under the second approach, the coverage provider would be the person or entity that has the ultimate authority or responsibility with respect to administration. Usually, this would be the plan administrator that is defined in the plan, such as a benefits administration committee that has been delegated administrative duties.

Either approach will present challenges for employers. For example, a single third-party rarely administers all benefits considered “applicable coverage” under Code Section 4980I. It is not uncommon to have separate administrators for medical benefits, pharmacy benefits, mental health and substance abuse benefits and flexible spending benefits. Employers would need to determine which portion of the 40% Excise Tax should be allocated to each administrator.

Calculation of the Cost of Applicable Coverage

Similar to the first notice, much of the guidance in Notice 2015-52 focuses on issues related to determining the cost of applicable coverage. Below are the key proposals.

  • Timing Issues. In order to timely pay the 40% Excise Tax, coverage providers must determine the cost of applicable coverage shortly after the taxable period (which the IRS indicated will likely be the calendar year for all taxpayers, regardless of plan year). This presents challenges for self-insured plans that cannot determine the cost of coverage until claims incurred prior to the end of the taxable period are submitted. Therefore, the IRS requested comments on whether a claims run-out period would be appropriate. Additionally, experience-rated insurance policies often provide payments or discounts following a policy year. The IRS has requested comments on how these payments or discounts should be applied to the cost of applicable coverage.

  • Excluding Income Tax Reimbursements from the Cost of Applicable Coverage. If an entity other than the plan sponsor is responsible for paying the 40% Excise Tax, that entity will likely pass the cost of the tax through to the plan sponsor in the form of increased service fees. Code Section 4980I provides that the cost of applicable coverage does not include amounts attributable to the 40% Excise Tax. However, Code Section 4980I does not address what happens when the same parties that pass on the cost of the 40% Excise Tax also seek reimbursement of income taxes incurred due to the receipt of additional service fees. This raises an important question – should the amount passed-through in the form of increased service fees to reimburse for income taxes (in addition to the 40% Excise Tax reimbursement) be excluded from the cost of applicable coverage? The IRS has requested comments on administrable methods for excluding income tax reimbursements, including what tax rate to use. The IRS anticipates that excise tax and income tax reimbursements will be excludable from the cost of applicable coverage only if separately billed and identified.

  • Annual Contributions to Account-Based Plans. The cost of applicable coverage includes employer and employee contributions to account-based plans, such as health savings accounts. The IRS recognized that annual contributions (as opposed to contributions made monthly or per pay period) could trigger a 40% Excise Tax in the month of contribution because the cost of applicable coverage is determined on a monthly basis. To avoid this result, the IRS indicated that it is considering an approach that would allow employers to apply annual contributions on a pro rata basis over the course of the taxable period when determining the cost of applicable coverage.

  • Flex-Credits and Carry-Overs under Flexible Spending Arrangements. The cost of applicable coverage for benefits provided through a flexible spending arrangement (FSA) is the greater of the employee’s contribution to the FSA or the total reimbursements made from the FSA. The IRS stated that when an employer contributes non-elective flex credits to an FSA on behalf of an employee, the cost of applicable coverage includes (1) the employee’s contributions, and (2) the amount of non-elective flex credits actually used for reimbursements. This would prevent unused non-elective flex credits from being included in the cost of applicable coverage. The IRS also stated that it is considering a safe harbor approach for amounts carried-over from prior years to prevent double counting. Under this safe harbor, amounts carried-over from previous years will not be included in the cost of applicable coverage. The IRS plans to restrict the availability of this safe harbor if non-elective flex credits are available.

  • Inclusion of Amounts Taxable under Code Section 105(h). Code Section 105(h) provides that the value of a discriminatory self-insured benefit provided to a highly compensated employee must be included in the employee’s income. However, under 2012 guidance related to disclosing the cost of coverage for Form W-2 purposes, the IRS provided that the amount included in income should be excluded. Addressing this discrepancy, the IRS stated that it is the “coverage,” not the resulting tax benefit that constitutes “applicable coverage” under Code Section 4980I. In other words, although a highly-compensated employee is taxed on the value of the discriminatory coverage, that coverage must be included in the cost of applicable coverage under Code Section 4980I.

Other Proposed Approaches

The IRS also described potential regulatory approaches related to the following:

  • Age and Gender Adjustments to the Applicable Dollar Limit. The applicable dollar limits used to determine whether there is an excess benefit may be increased upward based on the age and gender characteristics of all employees of an employer. The IRS is considering rules allowing employers to determine these characteristics based on a “snapshot” on the first day of the plan year. The IRS also indicated that it is developing age and gender adjustment tables to assist employers in applying the adjustment.

  • Notice and Payment of the 40% Excise Tax. Under Code Section 4980I, employers are required to calculate the 40% Excise Tax and notify the coverage provider and the Treasury of the amount of the tax, if any. The IRS has not yet determined the form of this notice, but has indicated that coverage providers will likely pay the 40% Excise Tax using Form 720. Form 720 is a quarterly-filed form, but similar to payment of the PCORI fee, the 40% Excise Tax will only be paid once per year.

The IRS set October 1, 2015 as the due date for comments on the latest notice. Given that late date, it is not likely that proposed regulations would be completed before 2016. Employers considering filing comments on IRS Notice 2015-52 should begin to consider those comments now so they can be filed by the due date.

ARTICLE BY Damian A Myers & Douglas W Dahl, II of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.