The IRS on Tuesday issued guidance regarding the amount of the Sec. 6707A penalty for failure to disclose reportable transaction information (T.D. 9853). Tuesday’s final regulations adopt a definition of “decrease in tax” for Sec. 6707A purposes and provide guidance for situations where a taxpayer uses a single disclosure statement to disclose multiple years of participation in a reportable transaction. The regulations finalize proposed regulations issued in 2015 (REG-103033-11).

Sec. 6707A imposes a penalty for failing to include on any return or statement any information about a reportable transaction that is required to be included with the return or statement. Reportable transactions are ones that the IRS has determined have a potential for tax avoidance or evasion. Sec. 6707A also prescribes a heightened penalty for listed transactions, which are reportable transactions that are the same as, or substantially similar to, certain transactions the IRS has identified as tax avoidance transactions.

In addition, Sec. 6707A(e) imposes a penalty for failure to disclose in required periodic reports to the SEC any penalty under Sec. 6707A a person is required to pay for a listed transaction; any penalty a person is required to pay under Sec. 6662A (accuracy-related penalty on understatement of tax) for a reportable transaction; and any penalty under Sec. 6662(h) (increase in accuracy-related penalty in case of gross-valuation misstatements) for a reportable transaction.

Before amendment by the Small Business Jobs Act, P.L. 111-240, Sec. 6707A(b) prescribed stated dollar amounts for penalties (for reportable transactions, $10,000 in the case of a natural person and $50,000 in any other case; for listed transactions, $100,000 for natural persons and $200,000 otherwise). Responding to concerns that those amounts could be disproportionate to the tax benefits derived from the transactions, Congress in the Small Business Jobs Act set a penalty of 75% of the decrease in tax shown on the return as a result of the transaction (or that would have resulted if the transaction were respected), with maximum amounts (for listed transactions, $100,000 for natural persons and $200,000 otherwise; for any other reportable transactions, $10,000 for natural persons and $50,000 otherwise) and minimum amounts (for any transaction, $5,000 for natural persons and $10,000 otherwise).

The final regulations adopt the definition of “decrease in tax” provided in the proposed regulations. It means (1) the difference between the amount of tax reported on the filed return and a hypothetical return without the reportable transaction, taking into account “adjustments that result mechanically from backing out the reportable transaction” and (2) as including “any other tax that results from participation in the reportable transaction but was not reported on the taxpayer’s return,” such as an excise tax on excess individual retirement account contributions.

Also, the final regulations adopt the same rule as the proposed regulations when a taxpayer uses a single disclosure statement to disclose multiple years of participation in a reportable transaction, as allowed under Regs. Sec. 1.6011-4. The final rules state that in such instances the decrease in tax will nonetheless be determined separately for each such year of participation, and the amount of the penalty will be 75% of the aggregate decrease in tax for all years for which disclosure was required, subject to the minimum and maximum amount limitations.

The IRS received two comments on the 2015 proposed regulations, but did not adopt either of them. It did, however, revise the final regulations slightly.

Regs. Sec. 301.6707A-1(d)(1)(ii) is revised from the proposed regulations to clarify that, when a taxpayer whose participation in a subsequently identified listed transaction or transaction of interest is reflected on more than one return and when that taxpayer fails to file, as required by Regs. Sec. 1.6011-4(a), a complete and proper disclosure statement in the time prescribed under Regs. Sec. 1.6011-4(e)(2)(i), the amount of the penalty will be calculated by aggregating the decrease in tax shown on each return for which the assessment limitation period remains open at the time the transaction becomes reportable, subject to the statutory minimum and maximum penalty amounts. Decreases in tax shown on returns for years for which the limitation period is not open at the time the transaction becomes reportable will not be taken into account in calculating the amount of the penalty.

The regulations are effective March 26, 2019.

Sally P. Schreiber, J.D., ([email protected]) is a Tax Adviser senior editor.