Potentially fraudulent employee retention credit (ERC) claims are an issue of great concern to both Congress and the IRS, resulting in civil and criminal investigations of certain “ERC mill” promoters. Larger employers have seen these kinds of claims arise in due diligence when looking to purchase a smaller company. We discuss actions taken by the IRS to combat potentially fraudulent claims.

On 18 May 2023, the Supreme Court sided with the IRS in a dispute that centered on the agency’s power to issue summons for bank account records without notice to the interested account holders. The court’s decision, however, is far from an unmitigated victory for the agency. In fact, the majority and concurring opinions reflect the court has significant reservations about the IRS’s use of no-notice summons, particularly in cases involving innocent third parties.

Recent developments across the three branches of government address the tax treatment of syndicated conservation easement transactions. The US Tax Court first held as invalid the notice designating the transactions as listed transactions. The Treasury and IRS then issued modified guidance in the form of proposed regulations, addressing the notice and comment deficiencies cited by the court. Finally, Congress enacted legislation separately addressing issues presented by these transactions.

The IRS did not follow notice-and-comment procedures when it issued Notice 2007-83. A theme underlying a number of court decisions since the Supreme Court’s decision in Mayo Foundation is that the Administrative Procedure Act does apply to the IRS – just like it applies to every other administrative agency. The IRS appears to be slowly coming to recognize this reality, but for many, many years, the agency acted as if the APA did not apply to its actions. The Sixth Circuit’s recent decision in Mann Construction, Inc. v. United States illustrates the importance of the IRS’ prior failures in this regard, in this case in the context of listed transactions.