"The tax industry is a gift for people who want to learn and grow and be challenged. There's never going to come a day where you close volume two of the code and say, 'I figured it all out, I know what it all means now.’” Tony Nitti, Partner — EY National Tax

In this final episode of 2024, Tony Nitti shares his journey within the tax industry, emphasizing the importance of finding one’s passion, investing in oneself and overcoming personal challenges. Listen as Tony shares his personal experience and practical advice for career growth and fulfillment in the tax profession.

What you’ll learn from this episode:

·       Finding Your Passion: The importance of identifying and nurturing your specific passion within the tax industry, whether it's the law itself, client relationships, or running a firm.

·       Invest in Yourself: The value of investing in your knowledge and skills by learning, writing, and teaching the tax law.

·       Overcome Challenges: Strategies for attracting and retaining talent in the tax industry by providing intellectual challenges and growth opportunities.

·       Try hard things: The benefits of overcoming fears of public speaking and using writing as a tool to communicate complex concepts and share your passion.

Resources

S Corporation Shareholder Compensation: How much is Enough?, The Tax Adviser, August 2011

Note: This was the article referenced in the podcast written by Tony. In August 2012, it was the winner of The Tax Adviser’s 2011 Best Article Award.

Transcript

April Walker: Hello everyone, and welcome to the Tax Section Odyssey podcast where we offer thought leadership on all things tax facing the profession. Today, I'm excited to be here with Tony Nitti. Tony is a partner at EY National Tax and he's a frequent guest on the show.

We were just chatting about we think this is maybe the sixth time he's been with us. We appreciate you being with us. Our topic today is not a techie topic. It is a soft topic, but I think an important one. Tony, you did a session at National Tax which was just a couple of weeks ago, on finding your passion in tax and it incorporated some technical topics.

But today, we're just going to lean right into the finding your passion. I think we, as listeners, we just want to hear your story, tell us more about how you started and got where you are today at National Tax at EY, which is pretty impressive, I must say. Tell us more, Tony.

Tony Nitti: It's good to be here with you, April. I will also say I admire your bravery, because like you said, we just did this National Tax a couple weeks ago, or at least a shorter version of it you just went charging full speed ahead and said, let's do a podcast before we get our hands on those evaluations. We might just be doubling down on a disastrous decision.

April Walker: Never know.

Tony Nitti: Nobody wants to hear, but that's not the hope. Obviously, the hope is that something here will resonate with people who are listening who maybe are just struggling to find their center and find their passion within their careers. But if it's all right with you, I always want to address what I consider the elephant in the room of the conversation like this before we get started.

When we talk about this passion for tax, when we did it at National Tax, when we're doing it today, we're talking about a specific type of passion for this industry. What I mean by that is this idea that people are lured to the tax industry as I certainly was by a desire to live in and learn the law. Because we take one look at that tax law and we realize that it's something that's not solvable, and we want to spend our careers being challenged and being forced to grow and learning that law and apply it to our clients.

But that's not the only passion you can have in a tax industry. This passion for law, you probably need to learn the law regardless of your passion, but I've met many people in my career who have a very different passion than me. People whose passion is client relationships, building a relationship that lasts for decades, other people whose passion would be to run a firm someday because they want to prove that accounting can be done differently.

Those are extremely valid passions and we don't mean to discount them, but we're focusing today on a passion for the law. Learning and applying the law, and we're doing it for two reasons, I think. Number 1, at the AICPA, we're keenly aware of the challenges we have attracting and retaining talent. And specific to retaining talent, we just see all these good people at all levels of experience, leave the industry and as they're on their way out the door, they say, You know what, I got into this industry because I wanted to work in the law.

I wanted to solve complicated problems for sophisticated clients and be forced to think on my feet. Instead, for the first four years of my career, all I've done is prepare the same 30 tax returns every year. I haven't seen anything new in 18 months, I'm bored out of my mind, I'm going to go try something completely different.

That should never happen. It should never happen in this industry because the tax industry, it is a gift for people who want to learn and grow and be challenged. I think we've all been around long enough to know that there's never going to come a day where you close volume two of the code and say, I figured it all out, I know what it all means now.

That day is not coming and so we should never lose people because they're bored, because they're not being challenged. But we do, I assume for two reasons. One is the reason we want to tell ourselves when things aren't going well. It's not to say it's not appropriate sometimes. But this is the reason we want it to be and we want it to be because we're not getting a fair shake.

We're getting a raw deal. We work for the wrong firm or the wrong people, and we're not getting the type of work that we enjoy. That may be possible. If you're in a situation like that, the beautiful thing about the industry today is there's more change available to you than ever before. We're not tied into geographic regions. There are purely remote firms.

You can change your situation in a heartbeat. But there's also a second possibility. That's a possibility that people don't want to embrace as much. But there's a possibility that we're not in a terrible situation, we just haven't let it be known to the people we work for, the people we work with, what we're passionate about.

We haven't shown what's meaningful to us and proven to people that this is the type of work that I want to do. That leads to the second reason we're focusing on this specific type of passion for the law. That reason, April is I'm not Tony Robbins, I'm not a paid motivational speaker. The only thing I have to offer your listeners is my experience, and my passion for this industry, there's no two ways about it is rooted in the law.

I'm not someone who has a passion necessarily for forging client relationships that last 40 years. I'm not someone who ever thought I would run my own firm. My passion is constant intellectual stimulation, growth, learning that law. The only thing I have to offer people until I become a paid motivational speaker someday and go through the five step training program is my life experience, what I've learned in this career.

That's why I just want to address that because I feel bad. I can't tell someone with other types of passions how to reconnect with their passion in tax,  because I only know my experience at this point. But the hope would be that my experience can help some people because I am a good example of someone who got into this industry for a specific reason, like I said, this desire to learn and build expertise in the law. And then quickly went down the wrong path that so many of us do, and I arrived at a crossroads where I was ready to leave this industry four or five years in because I wasn't growing.

I wasn't the person I wanted to be. I wasn't doing the type of work that lured me to this industry and I had to make a conscious decision at that point to say, if I'm going to stick it out in this industry, I am going to make what I'm passionate about the centerpiece of my career and hope that it pays off. That was, again, a proactive conscious decision, and it paid off in ways that I would have never seen coming because what I found is the more I showed people what I was passionate about, the more I made my passion the centerpiece of my career, the more the industry rewarded me with more of the type of work I was passionate about.

We can talk about that process. But that decision being something that I decided to do proactively, I also ended up learning lessons later in my career that were taught to me that I didn't decide to do. That I learned the hard way, that had made all the difference as far as understanding, that in life, in our careers, it's probably best to leave no stone unturned. To try different things, to find out what you're capable of, what you might be passionate about, and just say yes to new opportunities.

It's been a mix of making a proactive decision to invest in myself and we can talk about that. And then being taught through just the harsh reality of life that you're probably best served to say yes to as many opportunities as you can to just constantly move the goal posts on what you love and what you need out of your career to be happy.

With that long rambling introduction....

April Walker: I think it's good. You don't have to convince me because I think some of the themes in your story will apply to a lot of people, even if, like you said, their passion is not necessarily your direction or whatever. Let's get into it.

Tony Nitti: That would be the hope. Like I said, it's always uncomfortable because I only have my own experience to talk about, you end up talking about your own experience the whole time and you just sit there and go, why does anybody want to listen to my path? But listen, I didn't grow up dreaming of being a CPA, and I don't know that many people do.

I didn't really have many dreams growing up as far as a career. The one thing I thought I would want to be was a writer. Because I love to read as a kid and I wanted to be a sports writer, but it's never something I took seriously. Because I decided at a very young age that I did not have anywhere near the talent necessary to be a writer, and so it's just something I never even pursued.

But I went to college undecided as far as a major goes. The only reason I ended up an accounting major is because I told one of my college soccer teammates I was going to go to law school. And he said if you want to get into a good law school, be an accounting major. I'd never even considered accounting, and I don't even know if there's any truth to what he said.

But I didn't want to go to law school because I wanted to be a lawyer. I wanted to go law school because I had no idea what I wanted to be. And I just thought I'd put off that decision as long as I could. I end up this accounting major by accident. But after I get through the cost accounting class and the microeconomics class and those types of things, I eventually land in my first tax class. I'm guessing that other people had a similar experience where I get introduced to the tax law and I say, now this might work for me.

Because even though I didn't know specifically what I wanted my career to be, I knew that I wanted a career that provided an opportunity for constant challenge, constant growth. I wanted that feeling of going to bed every night a little bit smarter than when I woke up in the morning. To me, the idea of a death sentence was any career where after three months or three years or even 30 years, you've seen everything there is to see and you're just going through the motions.

There's nothing wrong with a career like that, it just wasn't going to work for me. The first thing you see when you get introduced to the tax law, this stuff is hard. Hard is good, hard is what I want. We know that in common culture, the tax law is held up as this point of reference for something that's incomprehensible.

Einstein once famously said that the hardest thing for him to figure out was the income tax. Sitting there as a 21-year-old kid, you're like, All right, if this was a challenge for Einstein, it's certainly going to kick my butt for the entirety of my career, and that's what I'm looking for. That's how I ended up choosing a career in tax and taking a job with Arthur Andersen. As I said before, this industry should certainly provide all the opportunities someone like me craves, that wants to grow and learn. You could even argue that if you are making your career in the tax industry, it's almost hard to not be passionate about your career if you're passionate about learning and growth. But that doesn't mean it's impossible. I am living proof of that April because pretty much as soon as I started my career, I fell into a very familiar trap.

You take a guy who was lured to this industry by this desire to learn the law, and then you put him as a new hire at what was at that time, the largest firm in the world, Arthur Andersen. And pairing up with 25 other new hires. What happens. You get in that competitive environment and you say, forget that learning the law stuff. I have one singular focus and it is to move up the ranks as quickly as possible. To climb the ladder as fast as I can, because I will be damned if I am to let Sally make it to senior before me or Johnny make it to manager before me. That became the focus. That became the priority. How do I get promoted? That is largely based sometimes on just playing the game. Shaking hands with the right clients and being close with the right partners. And just making sure everyone knows what you want, when you want to get promoted, being the squeaky wheel. When you get promoted as senior, pushing your staff as hard as you can to meet deadlines. That's what I valued. That's what was important to me was moving up those ranks, and the thing is it worked.

Now four and a half years into my career, I get promoted to manager at what is now PWC, not Arthur Andersen anymore because in the interim there, Andersen collapsed on itself like a dying star after the Enron scandal. Now I'm at PWC, and they promote me to tax manager, and it's supposed to be this cause for celebration. Because they say, you make manager in public accounting. It opens doors that aren't open at any previous level. You want to go make an extra 20, 30 grand and work at another accounting firm, you can do it. You want to go work in a tax department of private company and make some more money while working fewer hours, you can do that, too. Everybody's patting me on the back and they're telling me, this is an impactful day for you. It's a big day in your career. You can go anywhere and do anything now.

The thing is, it wasn't just the biggest day to that point in my career. Looking back at it now a full 20 years later, the day I made manager at PWC was and is the single biggest day of my entire career. Now that I could leave you now on a cliffhanger like Dukes of Hazard. Remember, like, they would be launching off some jump, and they go to commercial and you don't know are they going to be okay? This was the biggest day in my career, April, and you probably wondering why? What was so big about?

April Walker: Yeah, I'm wondering.

Tony Nitti: I went home that night, and all, like, the pats on the back had ended. I'm sitting there, and it hit me like a brick wall. It was this realization that I was a fraud. I know that may sound harsh. I know there are people who are listening that may think you're just being unduly hard on yourself, but I also know there's people listening who are going to say, “I know exactly the feeling he's talking about.” What I mean when I say I was a fraud, April, is it dawned on me that I had just been promoted to tax manager at the second biggest tax firm in the world, and I didn't know a damn thing about the tax law. I didn't.

April Walker: I'm sure you knew some stuff.

Tony Nitti: Well, that's what everyone says, because they say, “How could you get promoted to manager if you didn't know.” I never have read a court case at that point in my life. I didn't know how the code was strung together. You know what I was good at? Do you know why I got promoted? Because I was good at following processes.

April Walker: And competitive, a little bit competitive.

Tony Nitti: But I could take the last year's work papers for the return I was doing and turn them into the current year's workpapers. I knew how to do that, but when I was doing that current year return. When I was adding back 50% of M&E, I wasn't doing it because 274(n) told me to. I was doing it because they did it last year. When I was asking the client, how much of your accrued liability was paid within eight and a half months? I had no idea it's because I was trying to apply the recurring item exception of 1.461-5. I was doing it because that's what they had done last year.

April Walker: SALY, man.

Tony Nitti: SALY. And I know people have shared this experience, but what hit me was that I had been so focused on those processes to get promoted that I had never actually bothered to learn much of anything about the law in which I lived every day. What was terrifying was the realization that I couldn't go anywhere and do anything. It was the exact opposite, April. I was a prisoner at PWC because they knew my limitations. They knew what I could do and couldn't do, and they were content to respond to my constant complaints about promotion by promoting me. But if I wanted to go somewhere else or think about what I had already learned four years into my career. I had learned the lesson that the largest firm in the world can disappear overnight. What if that happened again? And I had to go somewhere else. Could my resume get my foot in the door? Yeah, of course, I could.

Would my undeniable charm possibly land me that job? I'd like to think it would, April, but then what after that? Because how long would it take my new employer to realize, Oh, we just hired a tax manager who can't think critically, can't research and solve problems in the code, can't provide planning advice for clients. You know what he can do? He can take last year's workpapers and turn them into this year's workpapers, and that's about the extent of it. I realized when I say I was a fraud, I realized that I had fallen into a trap of pushing so hard for promotion that I had gotten promoted to a level that I was not capable of delivering on. I hated that feeling. The reason it was the most important day of my entire career is because two things changed that day.

Number 1, I said, no more am I going to measure my success in this industry by my pace of promotion or my pay rate. I'm done with that. Look what it's gotten me. I've gotten everything I've asked for and it's now made me miserable and terrified. From now on, I am going to reprioritize what attracted me to this industry, which was the law, the substance. I'm going to make that the centerpiece of my career. Whatever happens good or bad, I'm going to live with the results. But if I'm going to call myself a tax person, then I'm going to be the best version of a tax person that I can imagine being. To me that meant building technical expertise.

The second thing that happened, and this is a part people aren't going to want to hear quite as much about. I realized that it was nobody's fault but my own. Of course, I wanted to blame PwC, but for what? They gave me everything I asked for. I showed them what I cared about. What I cared about was getting promoted. They promoted. It was not their job to feed me every piece of law I ever wanted to know when I hadn't prioritized that to them.

They were trying to run a business and I helped them run a business. The fact that I hadn't learned what I needed or wanted to learn, that was on me. That's when I made the conscious decision to invest in myself. And April, it really was as dramatic a switch as I'm making it sound here. Four and a half years of my career, zero priority on my passion, learning the law. That day everything changed.

The way it changed is, first things first, desperate times call for desperate measures. And I had a big gap between what I could do and what my resume said I could do. To solve that gap, I applied that day to the graduate tax program at University of Denver. Because I needed to be spoon fed tax law as quickly as I could. But as soon as I showed up in that program, what happened is I realized I had made the right choice in making this the focus of my career. Because I forgot how passionate I was about the law about learning and growing.

Because now I'm sitting there in this class and they're feeding me the law and every day I am going to bed, a little bit smarter than when I woke up in the morning. And I'm saying to myself, this is what attracted me here, this needs to be the focus. Then the second thing is, I'm listening to these professors and I finally know what I want to be in my career. I don't mean a professor, even though that's a great gig as well. I just wanted that substance.

I'm listening to them cite case law from 50 years ago, off the top of their head and reference private letter rulings down to the final digit. And I'm saying, I want to be able to do that, because one, that's where my passion lies, but two, I'm guessing if I can have that substance, I will never have to have this horrible feeling again of feeling like I can't deliver what I should be able to deliver.

That just set me on the right track, but it didn't solve all the problems, obviously. This decision to invest in yourself, it's got to become a career-long process. I graduate from the program. I felt like the program really helped me bridge that gap, but I knew the process was just starting. Coming out of the program, the one thing I know for sure is that, yes, my one true passion in this industry is to live in the law. Let's be honest, we can argue about it, but you said in your intro. If you truly love working in the law all day and solving complicated problems for sophisticated clients, one could argue there's nowhere you can do that at a more regular level than National Tax group for a big Four firm.

That was my dream job back in 2005, when I came out of DU, but it was never possible for me. The reason I say possible is because, look, if we had all the time in the world, we'd be talking about not just pursuing your passions professionally, but also personally. I am a guy that has a lot of passions from a personal perspective. From the time I was 16-years-old, I knew that I was not going to be a happy adult unless I lived in a mountain town where I could be on skis, 70 days a year and riding my mountain bike another 250 days a year. It had to be that way.

When I graduated in 2005, I was already laying the groundwork to move up to the mountains of Colorado in 2006. At that time, if you were going to work in Big Four National Tax, you had to physically sit in DC. It's something I never even sent a resume, never even applied for. Because I knew that even if I were happy professionally, if I were miserable personally, it wasn't going to be a winning formula.

What I did instead was I took a job at a wonderful regional firm called Withum. And they were so wonderful, in fact, that they let me work remotely at a time where remote work was not really prevalent within our industry. But they let me work from Aspen, even though they were an East Coast firm. But we finally get now to the lesson, how? How do you connect with your passion for your industry? Knowing that my passion was learning the law, now starting at a brand new firm. I don't have anybody spoon feeding me tax law every day. How do I unlock the secret to a happy career? That secret is not really a secret. You want a happy career, do more of the work you love and less of the work you don't.

How do I get my hands on this type of work I love and the decision that I made. There are people listening who are at that crossroads right now who may have to say, it sounds like a lot of work, but I get it. Maybe it's time for me to make that decision as well to invest in myself. Was that if I can't bring myself to Big Four National Tax and do the type of work I love, I am going to find a way to bring the type of work I love to me. I realized that the responsibility is mine to show this new firm that I'm passionate about working in the law and that I'm capable of working in the law.

Part of that happens obviously on the job. Part of it happens by doing diligent research and coming up with good answers and thinking outside the box. But I knew that I needed to really prove to everybody where my passion lies so I could get more of that work. What I did, and this was the thrust of our AICPA class, is I instituted this three-step process that I had been using for the last 20 years and just repeating over and over again, and it has served me better than I ever could have dreamed. But what I did was Step 1, I'd say, I am going to learn everything I can about some narrow area of the law.

I would pick an area of the law, usually one that I found that the industry was struggling with. What I mean by that is we all know there's certain things we do in the tax world that all of us do, and we apply it all the time for our tax returns. We never truly understand why we're doing what we're doing. That was back to what we said earlier, the same as last year's stuff. Perfect example would be allocation of partnership liabilities under Section 752. We all fill out a K-1 on a 1065 and allocate recourse and non-recourse liabilities. But how many people truly understand what makes a liability recourse and non-recourse or how those liabilities should be allocated?

I would say, Sec. 752. I am going to learn everything I could about 752. This is a part people don't want to hear, but it would happen outside work hours. I would read the code, I would read the regs, I would read the editorial content, I would read the key cases and the rulings and things like that. And I would read and re-read and make notes and do outlines until I felt like I understood what it was I was reading. Then I would move on to Step 2. Step 2 is, how do I cement this knowledge? I would sit down and say, if I truly understand all that stuff I just read, I should be able to explain it to other people.

I would sit down and I would write up everything I just read. Try to re-package and re-purpose the law in a way that would make someone who read what I was writing understand. Maybe some of your listeners know that later and we'll get into this, I would go on to write for more national publications. That's not what I'm talking about here in 2006, April. I didn't have a platform. When I say I'm writing about the law, I was quite literally putting together an email for my firm's tax department that absolutely nobody asked for. I would summarize 752. I would put together a PDF decision tree and flow chart and show how we should be allocating things.

I was doing it for two reasons. The reason I like to tell people is I wanted to help my firm understand 752. But the true selfish reason I was doing it is because I wanted to understand that law, and I wanted to show everyone else that I understood that law and that I was passionate about that law. I would send out this email to my firm's tax department explaining 752. Going through that process of writing it up really did cement that knowledge for me because I had to think about the law in a different way from reading it to say, how do I now explain it?

April Walker: How did they react to those emails?

Tony Nitti: You could almost hear the eyerolls in the system. You can almost hear, who is this kid? What is he doing? I wasn't even a kid at that point, I was near 30. Here's the thing. We're going to talk some life lessons here, but I was talking to somebody after the presentation at AICPA. Sometimes the key to success in any career is just being willing to do the thing other people won't. What I mean by that is those books, the code, the regs, we all have access to them. What I was doing is I was diving in and saying, I'm going to figure out what they say and what they mean. Other people probably rolled their eyes when I would summarize law that nobody asked for. But you know what those same people would do when they had a 752 issue? Who were they coming to?

April Walker: For sure.

Tony Nitti: Well, the only other option was to open the books themselves.

That's what I mean about doing what other people won't. That's not everyone's priority and I'm not here to say it's right or wrong, but the reality is when I showed people that I'm willing to open the books, I started to get that work because other people aren't. Not everybody, but there are just people who say, I'd rather just push it to someone who enjoys that stuff and that became a common theme of my career where people come to me and say, I know you love this research stuff, so I'm going to give it to you. You probably give it to me because you don't want to do the research stuff. That's fine by me because I do want to do it. I do want to do this work. To your point, there are eye rolls, but those eye rolls, I'm sure, were the same people who'd say, I got this question. I know this dude seems to care about this stuff. I'm going to go to him and let him answer it for me, which is exactly what I was hoping for. After that writing step, I would go to Step 3.

Step 3 was the uncomfortable step. Because as much as I enjoy writing, and I know this sounds strange because we're doing a podcast about a presentation I gave, but speaking in public, not for me. We're going to talk more about this later, but terrifies me. And I would go into my partner's office, and I'd say, you see that email that I sent around about 752? I need to teach it. I need to teach here at the firm - some lunch and learn local office or the firm's annual update, but I need to teach it. Why would I ask to teach if I was terrified of it? It's because I was terrified of it. Because if I want to know that law, there is no greater motivator than fear. If I'm going to stand in front of a room full of my peers or some people who've been practicing 20 years longer than me, I was really going to make sure I understood that law really well.

To this day, I don't give a presentation that I don't walk around my house and rehearse to air, just to time it out, to make sure I'm comfortable with the transitions, to make sure I know the law. Because that fear still exists from a public speaking perspective. I would go through that process, and by the time it was done, by the time I was done handling that fear and speaking in front of -  these are tiny rooms. These are my firm. These are not strangers to me, but by the time I was done, I would say, that area of the law, that is in my back pocket. I feel like I know that well, and more importantly, my firm now knows that I know that well.

All those questions are going to come to me. I would just repeat that process, every year, not every year. I'm just repeat it over and over again with deducting accrued liabilities or 263(A) or prepaid expenses. I would just repeat the process if the firm. Read about it, write about it, teach about it. The more I'm doing it, the more they can see where my passion lies and that I'm capable. To the point where 2008ish, the firm decides to launch its version of a National Tax Group and in addition to our mutual friend Brian Lovett, who's still at Withum, and I get to be one of the founding members of that National Tax Group. Now all of a sudden, I have brought national tax to me and my passion is much more of the focus of my career. As I said, that's the recipe, right? Do more of what you like and less of what you don't and that's what I'm getting now as a return on my investment.

That's where the proactive decisions I made to help improve my career, that's pretty much the end of them. From there, it's just life has taught me because now you get to 2008, April and my career is going really well. I'm doing the type of work I love to do. Personally, I am living in Aspen and like I said, I'm on skis 70 days a year. I'm living on my mountain bike all spring. Life is good.

April Walker: That's when life smacks you in the face.

Tony Nitti: Exactly. That's when the headache started, and I'm your audience with the entire story, obviously. But after one particularly brutal race in Aspen, I was rushed to the emergency room with a terrible migraine-type headache. But I imagine more intense than most migraines because eventually, what they would figure out, it took a little bit of time, was that I had an aneurysm in my brain. Most people know somebody impacted by brain aneurysm and those stories typically do not have happy endings. The reality is once an aneurysm leaks blood into the brain cavity, 70% of people are dead by the next morning. As my surgeon so eloquently put it, of the other 30%, half of them will wish they were by the next morning because they're permanently disabled. This is something where I went from thinking I was invincible at 33 years old to absolutely certain that I was going to die. The only reason we bring this up here is because I had to face my mortality, and I had to go in for 8 hours of surgery to save my life. I had that morning to lay on that metal table before they wheeled me in for the surgery. They were very clear about the risks.

There's a 5% chance I go into vasospasm and I never wake up. There's a 15% chance if I wake up, I've got memory problems, right side of the body problems, cognitive deficit, and that's terrifying. Laying there that morning, I know it sounds cliche, but looking back at 33 years I'd spent on the planet, I wasn't spending any of that morning regretting the things I had done that maybe didn't go the way I wanted him to do. I was spending the time regretting the things I had said I was going to try, but I hadn't tried yet. It was eating away. Like, I thought I had so much more time, and now the prospect that either I don't wake up or I wake up a different person and I never get to find out some of those things about myself. It was not something you ever want to have to face. That the tomorrow you thought you had may never arrive. Now, obviously, I had a good surgeon.

April Walker: Given that that was in 2008?

Tony Nitti: Yeah. Doctor Jefferson. He fixed me right up. I knew within 48 hours that all the Simpsons references, all the code sections, they were all still in there. But I did come out of it a changed person. Not cognitively, necessarily, but I came out of it saying, I'm going to live the rest of my life slightly different than I did before, starting with the fact that I'm leaving no stone unturned. This is what we were talking about earlier. Anything I've been curious about - personal, professional, could I be good at it? Would I enjoy it? I am going to find out. I'm going to say yes, because I just want to know. It started simply enough. I wasn't even in my professional capacity, like silly little thing. I spent my whole childhood saying I wanted to learn how to play guitar. I never bothered to learn guitar. I had a year, basically year it took me to recover from that surgery before I could get back to my normal life, and I spent that year playing ten years worth of guitar. But what happens is you realize, I love this. I thought I would enjoy it.

Tony Nitti: I do enjoy it. I shouldn't let other things slip past me like this. I should try everything. Within my career, it's now 2009, and I've made partner at Withum. There's no impetus to try new things in my career. I've gotten the last promotion I'm never going to get. But that's not what's driving me at that point. What's driving me is this primal realization that, life is fleeting and so I'm going to go find out whatever I want to find out about. We go back to how we started this conversation. Growing up, the only thing I ever thought I would enjoy was being a writer. I had been doing those emails to my firm, but I never tried anything bigger than that because I just assumed I didn't have the ability. What bothered me after the surgery is I never even risked it enough for someone to tell me I wasn't any good. I just decided it for myself. I said, look, I'm never going to write the Great American novel. I'm not that talented, but they say write what you know and I know some things about the tax law.

April Walker: Sure.

Tony Nitti: I said, I just want to find out. I want to find out what I'm capable of. The next time I went through that three step process, it was about a court case that came out on S corp reasonable comp. I said, well, this time, even though no one's pushing for it, no one at my firm cares, it's not anything anyone else values, I'm going to find out if I can get this thing published externally.

I wrote up the entire case history of S-Corp Reasonable comp for The Tax Adviser. I wrote and rewrote and I edited, I reedited and I eventually submitted it for publishing and they published it as a feature article. What I had learned in that process was not that I was a talented writer, but that I was as passionate about it as I thought I would be. I loved it. I love the process of trying to explain the law to somebody else in the hopes that the light bulb goes off and they go, I never understood that before, now I understand.

Of course, I looked from a selfish perspective having to learn the law that well, to read all of the cases that had ever been settled. It was just a really gratifying process, but the problem is, my firm's not paying me to sit around and write articles all day, so it's a bit of a bummer. Because I had done it, I loved it. But how do I get to do more of it? This is where the worlds collide between leaving no stone unturned, but also investing in yourself. Where the article, it went well.

Tony Nitti: It went well to the point where The Tax Adviser asked me to write a couple more articles, and I did. Then what happened is just if you invest in yourself, I firmly believe good things happen. You get a return on that investment. CCH reaches out to my firm and they're like. Hey, we see this writing this kid's doing, it's pretty darn good and we need someone to co author a treatise on consolidated returns and we'll pay your firm for six months of his time if he can contribute a bunch of chapters to this treatise.

Tony Nitti: My firm comes to me and says, CCH wants you to write a treatise on consolidated returns, you want to do it? Like any rational human being, every instinct in my body said, absolutely not. Why would I want to write a consolidated returns treatise, it's terrible. It's the worst area of the law. But the point is, who am I to say no? I'm passionate about writing. I want to be challenged, and it's just this idea of leave no stone unturned.

I'm going to write it just to see if I can write it and to see if good things come of it. Now my firm is getting paid for me to write, so they allow me to do more of the type of work I'm passionate about. I got to write that treatise, which is probably the last time I thought about a consolidated return. But it just things snowballed. From there, April and now the editor at Forbes, Janet Novack, she's reading my writing. She reaches out to me more than day. I'd never met her, or heard her.

She reaches out to me and says. Hi, I like your style of writing. Would you move your platform over to Forbes? For a regional firm like Withum at that time, the exposure was tremendous. Of course, we'll do it and so that's how I land at Forbes, where now anyone who ever read anything I wrote on Forbes, I'm not making up this three step process. Because the entirety of my writing on Forbes, for the most part, was this, like trying to explain complicated areas of the law. There was that whole Tax Geek Tuesday.

That's all it was. Breaking down things that no one was insane enough to want to write about because it's so dry and so complicated, like opportunity zones or 263 A or whatever it may be. Now all your listeners know my deep dark secret, which is it may have looked like I was doing all that writing because I wanted to help the industry, which obviously I'm joking. Obviously, I did. But why else was I doing it? Because I wanted to learn that stuff. I wanted to build that expertise and hope that it would pay off.

One of the things we'll finish with in a couple of minutes is how that ended up paying off with my dream job. But even at that point, even with the writing, and this comes full circle to how this class came to be for us because of what happened in Engage this summer. But at that point, we're talking 2011. I've never done public speaking. Outside of my firm, outside of a lunch and learn, I've never stood in front of a room full of strangers and taught.

What happened was you do enough writing, eventually, someone's going to come to you and say, you're decent at explaining a tax law, wouldn't you like to try it, like in person. So you don't have to trust that someone's going to read your writing and understand it all, first try, things like that? My friend Mark Friedlich at CCH approached me and said, "We do this conference every year. Come speak at the conference.".

Again, every fiber of my being said, Mark, absolutely not. Because I am someone who has got more than my share of social anxiety. I just do, I'm an introvert. There's a reason I love having my nose in the books. The idea of standing in front of a room full of strangers, it terrifies me to this day. I just learned to deal with it a little bit better.

Then, of course, there's the impostor syndrome that comes with it. I'm like, why would anybody want to listen to me? There's so many people who know this stuff better than I do. I said, "Mark, it is not for me." Because as much as I always knew I would enjoy writing, I knew I would hate public speaking. He just said, "Look, just give it a try. What's the worst that could happen?" Eventually he's right. Who am I to say no to this?

The whole point of this second act I'm getting in life, is say yes, find out what you're capable of, find out what you might enjoy. I flew to Arizona, April and I did 90 minutes on the tax consequences of foreclosures and short sales. That tells you.

April Walker: That's very specific.

Tony Nitti: It's 2011. This is where it's getting real for the crash and so everybody's dealing with foreclosures and short sales. I went in there and I talked for 90 minutes, and let me tell you, it was every bit as awful as I thought it was going to be. But when I walked out of that room, I knew my goals in my career. I knew my passion in my career had changed, had evolved. Because I walked out of that room saying, I need to do more of this. But why? If it was so terrifying, why?

Because it was so gratifying, Just to have even one person come up to you afterwards and say, "I struggled to understand that now. The light bulb went off. I get it." This desire to communicate and help other people and explain the law in a way that people can understand. It's fun to do it in writing. Maybe not that efficient. You have to trust that they're going to read the whole thing, not have any follow up question. But with speaking, I could read their faces. Are they following along?

Do they look lost or are they tilting their head to the side like my pup Maggie does in some futile attempt to understand what I'm saying to her? I'm like, I'm not built for this, but I need to do it. For me to be the best version of myself, the happiest version of myself in my career, I need to do this thing regularly that terrifies me because the reward is so great.

That ability to repackage and repurpose the law in a way that connects with other people in the industry. Of course, the byproduct of learning it so well. If I'm going to stand in front of the room and talk about foreclosures and short sales, that's another thing I'm going to get to add to my quiver as far as areas of expertise.

It's funny, because like I said, growing up, I knew I'd be passionate about writing, and I was. Knew I'd be terrified to speak publicly, and I am. But I'm just as passionate about it now as I am the writing. One final story to just tie everything together and just show you how. Look, I don't know. Maybe my experience is unique. Maybe we need one of those things to run on the bottom of the podcast that says. What is it? Past performances are not  indicative of future performances?

April Walker: Future yeah?

Tony Nitti: I don't know. Maybe it's just unique, but this right place, right time. The rewards I've gotten on the decision to invest in myself from Withum's willingness to create a national tax group, to Forbes noticing my writing and bringing me on. Just the little things that have impacted the course of my career. It's remarkable because listeners out there, especially the younger variety, they're going to think it's these big decisions that I stress out about that are going to impact the course of my career. Which job do I take or what area of the law do I focus on? But my goodness, it's sometimes the smallest things.

What changed the course of my career was a decision in 2013 to waste my Thanksgiving weekend. Because 2013, right around this time, the IRS issues regulations under 1411, the net investment income tax regs. I didn't want to necessarily spend my Thanksgiving weekend learning about those regs and writing about them, but it was new. I love writing about new stuff. I love trying to explain to people how to read [how the] law works and so I said. I'm going to sit down and go through the three step process, at least the first two.

For now, I'm going to learn about it, I'm going to write about it. I wrote about the net investment income tax regs. It was no different than any other article. There's nothing special about it. The only thing that was special is a couple of days later, I get an email from the attorney at the IRS who wrote those regulations.

April Walker: Spoiler.

Tony Nitti: Felt encouraging. He just reached out to me to say, here's what you got right. Here's what you got wrong. I want to send a unified message out to the people. You know [David] Kirk, so there's probably some expletives thrown in there.

April Walker: Absolutely.

Tony Nitti: I just thought, that's so admirable that this guy would take that level of ownership over his work. Dave and I would become what I would loosely call friends. I think we met in person once at National Tax, but other than that, we maybe connected once a year for the next decade. But the point is, this return on investment, that decision to write that article would change everything. Because 10 years later, Kirk is not at the IRS anymore.

Now he's at EY running one of the National Tax groups, and one of his partners is retiring and unbeknownst to me, he's been keeping track of my career the entire time and he's seeing this investment I'm making in myself. He's seeing my passion for learning the law and whatever small ability I might have to explain that law to other people. He's saying. That's the guy I want. He's going to his bosses and saying. This is the person I want to come in as the new partner in EY National Tax.

In 2021, he reaches out to me. And I was working for an amazing firm at the time, Rubin Brown, and I loved my job.  But he reaches out to me and he says. Come work with me and work in this National Tax group. The opportunity, obviously, to work with Dave Kirk is pretty much all you need to hear. But of course, me being a pain, the first thing I say is, do I have to move to DC?

Now, this is the benefit of the post pandemic world. We can do this remotely from Aspen and so he's offering me my dream job, April. What's amazing about that is I spent a couple months agonizing over that decision. I very nearly turned it down. Why?

Because, honestly, I was scared. I couldn't do it. It was back to almost that feeling of being a fraud again, but just feeling, I don't know. This guy has forgotten more about the law than most people know. And I had that impostor syndrome kick in again. Can I do it? Am I capable? Who knows? Maybe I'm not and the firm has just been lying to me for the last three years.

The point is, I almost didn't take it and then I sat down and said, hold on a second. What is it that makes you not want to take this job? I'm scared because I think I might have to learn a lot to be able to hang.

Then I'm like, wait a minute. What is it you're most passionate about in your career?  Where you're forced to learn a lot so that you can hang? Finally, it just became obvious to me that I had to take the opportunity because this was my dream. My dream to just live in the law all day, every day, and it came about in the most bizarre fashion.

April, I didn't submit a resume because it didn't mesh with my personal goals. But then this decision to invest in myself, which eventually led to Forbes, which got me in front of Kirk. It's just crazy. Crazy to think how it all unfolded. The message for someone listening out there, is I was no kid when Dave Kirk called me.

I was 45 years old. 45, to land my dream job in this industry and patience is certainly a virtue. The bigger virtue is just understanding some of the things we talked about here today. Which is, look, no one wants to hear this. The easy way out is to say, I'm in a bad situation, no one's treating me fairly. I'm not learning what I want to learn.

Look, there are bad situations out there. Like I said, if you're in one, it's pretty easy to move. Problems are going to follow you even to good situations, if you don't take ownership over your own career and if you don't say at a certain point, it's no one's job to make me the professional that I want to be other than myself. That's not easy. It comes with a lot of extra work.

You think I wanted to be reading Bittker & Eustis on the beach on a weekend back when I was fielding materials a lot? Of course, I didn't. The BNA portfolio at night? No, but I was making an investment in the hope that it would pay off. The way it paid off, like I said, was doing more of the type of work I love, which is all you can possibly ask for.

It's not an easy thing to communicate to people - as much as we work in this job, sometimes you have to you go above and beyond to show people what you're passionate about and that you're capable of handling it. If you don't show, no one knows and you can just get lost in the shuffle and end up being that person we talked about that's doing the same tax returns five years in a row and not growing and not learning.

If you haven't shown people that you're not content with that. If you haven't shown people where your passions lie, human nature is such that firms of any size are just going to say, April just keeps doing what we ask for every year. We're just going to keep asking her to do it.

April Walker: I think that's great. It's funny when you were starting to tell your story about that you hadn't learned anything. I had a question in my mind, like, don't you think that's partially the firm's responsibility that they hadn't invested in you to send you enough trainings or things? Then you answered the question. That's a personal responsibility thing.

Tony Nitti: Perfect example of that. They did send me to trainings. I can remember most of those trainings, and everyone knows someone like this. Being the guy who spent half of the trainings outside the room, doing work for my senior or my manager back in the office because I didn't value the training.

What I valued was getting promoted. If my senior manager said, I need you to do something right now, even though I was at a training at St. Charles for Andersen, I was going to walk out of that room and get that work done for them.

Everybody wants a villain. Life is always easier with a villain. PWC was no villain. Because it's not like I asked them to teach me and they refused to. I showed them what I valued and they rewarded that. If I only valued promotion, they gave me promotion.

Since that point in my career, when I showed my employers that I valued the type of work I love, I valued being challenged, I valued living in the law, I have gotten rewarded with more of that type of work. I refuse to believe my experience is a one-off, that it's completely unique. I definitely got some very lucky breaks at some key points in time.

Then I got dealt a harsh lesson that I wouldn't wish upon anybody. I don't want anyone at 33 years old to have to face their mortality. But that was an impetus to say, I got to find out more of what I'm capable of. And that opened up doors that I never dreamed, April, that I would spend as much of my career doing.

When I say passionate about my love for writing, I just never thought it would even be an option in a career in tax. Then it ended up being a huge part of what I did for so long. I refuse to believe that that's unique to me. I think that anybody who says, I'm willing to do what the other person isn't. I'm willing to get into these books, learn what they say, show people that I care about what they say, and that I can communicate them to other people, that really good things are going to follow.

April Walker: Writing might not be your passion, but I think the message today, as we're wrapping up, figure out what that passion is. It doesn't matter how old you are. You can try to figure it out and do more. I just read this book that was talking about -  do the next right thing. The big picture might feel huge and scary, but just whatever the next step is, just do the next right thing.

Tony Nitti: The way I've always described that too, April, is you shouldn't at any point in your life be finished finding out what your passions are. That's the whole point, is you should be a fundamentally different person at 35, that you're at 25 and 45 that you're at 35. You should be saying yes to opportunities that help you unearth new passions and new things that you are capable of doing.

Because like I said, there is no scenario, and people who know me well know what I mean, where I should be making career out of public speaking, doing as much public speaking as I do. It is so foreign and uncomfortable to me. But I look past that, because I'm passionate about it and so I find a way to make it work through truly ridiculous levels of preparation.

April Walker: Some might say you're good at it. I'll give you a little spoiler. Your two sessions were the top rated at National Tax, so there you go.

Tony Nitti: Now, you have to edit out earlier today when I said, we're doing this without the safety net of the evaluation.

April Walker: I didn't want to tell you in advance.

Tony Nitti: See that. Again, but that is proof that anybody, if I can make any career out of public speaking, anybody can. That's why you got to try. That was the thing at ENGAGE that started all this, is when we were just talking about say yes to opportunities because you know what, if you are as bad as you think you're going to be and you hate it as much as you think you will, you haven't lost anything. You just go back to not doing it anymore, but you might unearth new passions that move the goalposts on what you need out of your career. That's a goal in life to keep growing and keep finding things that really drive you. Hopefully, April, something we said resonates with the listeners, but I guess we'll find out.

April Walker: I hope so too. This is our last podcast episode of the year. You can listen to it at the end of the year. I used to love your resolution articles. I think that was a Forbes thing. I love these articles. I miss those articles and people come up to you still all the time and are like, I really miss those articles.

Tony Nitti: What's funny is the last thing I ever wrote for Forbes was one of those resolution articles and I don't know. Maybe I wrote 200, 300 articles for Forbes over the 10 years, but the last thing is my favorite thing I ever wrote because it had absolutely nothing to do with tax. I had to do with my pup Macy.

April Walker: I know.

Tony Nitti: You knew well and Macy was on her way out of the world at the time and just to be able to even have a platform to write about my pup, that is still the one thing I've ever written that I go back and read. I don't hate this. I don't want to change anything.

April Walker: That's good. Thank you so much, Tony. This was so fun. I know our listeners will enjoy it. Also, again, thanks a bunch. This is April Walker from the AICPA Tax section. This community is your go to source for technical guidance and resources designed, especially for CPA tax practitioners like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants.

You can find us wherever you listen to your podcasts and we encourage you to follow us so you don't miss an episode. If you already follow us, thank you so much.  Please feel free to share with a like-minded friend. You can also find us at aicpa-cima.com/tax and find our other episodes. Thank you so much. Have a wonderful holiday season and come back and 2025 is going to be an exciting tax year. I just feel it. Thanks for listening.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

Note: This podcast episode was recorded Nov. 20, 2024, and since then, the U.S. House of Representatives races have been called, giving the Republicans 220 congressional members and the Democrats 215. This balance could change depending on potential special elections if some members of the House are appointed to positions within President-Elect Trump’s administration.

In this episode of the AICPA's Tax Section Odyssey podcast, Kasey Pittman, CPA, MST, Director of Tax Policy ­— Baker Tilly US LLP, discusses potential upcoming tax legislation for 2025, focusing on the complexities and challenges of extending the Tax Cuts and Jobs Act (TCJA) and other tax provisions.

What you’ll learn from this episode:

• The potential complexities and challenges of extending provisions of the TCJA and other tax legislation.
• The implications of a unified government and the reconciliation process for passing tax legislation.
• The financial constraints posed by the national debt and the importance of managing the deficit.
• The influence of individual policymakers and the importance of state and local tax (SALT) deductions.
• Potential revenue raisers like tariffs and ending the employee retention credit early, and their impact on the overall tax legislation.

AICPA resources

Planning for tax changes — CPAs need to not only brace for tax law changes such as the TCJA and expiring provisions but also be proactive in planning for them.

Tax advocacy — Advocacy is a core element of our purpose and value proposition. It is a strong mechanism for promoting trust and confidence in the CPA and CGMA credentials around the world.

Transcript

April Walker: Hello, everyone, and welcome back to the AICPA's Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a lead manager from the tax section, and I'm here today with Kasey Pittman. Kasey is the director of Tax Policy with Baker Tilly's National Tax Office. Welcome, Kasey.

Kasey Pittman: Thank you for having me.

April Walker: I thought we'd spend a few minutes today setting expectations for tax legislation for 2025. First, a little bit of a spoiler, tax legislation is likely, right, but what it will actually entail is probably a lot more complicated than just a straight status quo extension of TCJA. Kasey, let's set the stage a little bit and talk about what we know about the makeup of the government and what that will mean for upcoming legislation.

Kasey Pittman: I think going into the election, the vast majority of people assumed we were going to wind up in some divided government. We knew it was very likely that Republicans would capture the Senate. The math there was not very good for Democrats, just in terms of how many seats were up, and one of the Democratic-turned-independent retiring senators from a deep red state was almost a certainty to flip. I think the general thinking was that either Democrats would capture the White House or the House, and neither of those things came to fruition. We are sitting here in the 2024 election was a Republican sweep.

We've done a lot of worrying about things that we can let go of, and I think probably we'll touch on that a little bit later in the podcast. But the margins aren't very big. Trump captured the White House actually by a good margin in terms of both electoral votes and total votes in the country. It looks like Senate Republicans will have the majority with a 53-47 split between Republicans and Democrats. The house is currently unknown.

We know that the House has captured 218, and that's what you need for the majority. There's 435 seats. 218 is literally a one seat majority. There are five races outstanding, and probably threeish, maybe four of those are likely to go Republican. We're just waiting on final vote counts. In the House, we're looking at a few vote margin, in the Senate, we're looking at a few vote margin, and that can make legislating really difficult.

One of the themes we touch on here as we go through is reconciliation. When you have a unified government, and a unified government is one where one party has both chambers in Congress, and the White House, which is what we're going into in 2025, there's this process that you can use for certain types of legislation, fiscal legislation called reconciliation. What reconciliation does is it allows you to overcome the filibuster in the Senate. You actually only need a simple majority, like 51 votes in the Senate to pass a bill, but anybody can hold up a bill with a filibuster, and you need 60 votes to end debate and force the vote on the floor. But this type of legislation doesn't require that, so we can move forward with a simple majority.

However, there are a lot of limitations to the reconciliation process. Everything in a reconciliation bill has to be financial. It needs to deal with spending or revenues and it can't be incidentally related to those. That has to be its primary purpose. Tax provisions are perfect for this. It cannot increase the deficit outside of the budget window. The budget window is typically 10 years. Then inside that budget window, you can only increase or decrease the deficit by the amount in the reconciliation instructions.

Reconciliation instructions are set again, by a simple majority on a budget resolution in the House and in the Senate. That number can be hard to define. We also can't touch Social Security, by the way, which is why you never see Social Security in a reconciliation bill. However, that number is really difficult to come to an agreement on sometimes, and I predict that we're going to face some issues just in getting to that budget reconciliation number before we even start to put together the bill.

April Walker: That's a great summary, and we used reconciliation before to actually pass TCJA and some other legislation in the past few years, but it's still not how I grew up learning how law was passed. It's a little bit interesting and that's a great summary. Kasey, I led with saying, we don't think it's going to be a straight extension of TCJA and some of the other proposals that have been thrown out throughout campaigns.

Talk through a little bit about specific provisions, what they're scoring out at, why they may or may not be included in this legislation. Again, I don't think we have to say this. This is all just speculation on our part. We will have to see what we will see once it turns to 2025.

Kasey Pittman: Some of it is really speculative. We're guessing, they are educated guesses based on history and based on what influential policymakers are telling us. For many months, Republicans have really optimistically been planning for reconciliation, hoping to capture both chambers, hoping that Trump would be in the White House. They've been planning. Honestly, there's been a ton of organization inside the House Ways and Means Committee around it.

What I said just a minute ago was that I think we're going to have trouble getting to that number, and here's why. If we want a blanket 10-year extension of the Tax Cuts and Jobs Act, all these taxpayer-favorable provisions, they're mostly taxpayer-favorable and we'll get into that in a second too. It's going to cost $4.6 trillion. Just for benchmarking for everybody, our national debt, which is the sum accumulation of all the deficits we've ever run right now is $35 trillion. That's really impactful because each year, honestly, I believe since Clinton, we've run at a deficit and some of the Clinton years too.

But each year, since I was in middle school, we've run at a deficit, which means we're spending more money than we're bringing in, and part of the reason we're spending more money than we're bringing in is because we have to pay interest on all this debt. It's really come to a head over the last couple of years for two reasons. One, our debt skyrocketed. Recently, TCJA added to it. COVID certainly didn't help it at all. Then additionally, because we've had such high inflation, the Fed has increased interest rates and that's the rate that we pay to service the debt.

In FY 24, which ended at the end of September. This year, we paid over a trillion dollars just to service our debt, not paying down our debt, just paying the interest on our debt. That's more than we spent on defense spending for the entire year. It becomes a liability if our debt is too large. Particularly, we like to compare it to our GDP. This year we ran a $1.8 trillion deficit. Over a trillion of that we could say is attributable to interest costs. Anyway, here we are. We've got $4.6 trillion to extend the TCJA.

Then we've got a whole host of other campaign proposals that Trump made on the trail. No SALT, and we'll get to SALT in a second. No SALT, no tax on tips, no tax on overtime, no tax on Social Security benefits. There's family caregivers credit for home caregivers. There's just a number of things, and some of them are hard to score because there's not a lot of details around the policy yet. They're more on the idea than the actual detailed policy phase at this point but those are a lot and estimates are 8-10 trillion with the Tax Cuts and Jobs Act plus all of the other campaign promises, and that is just wild as compared to our current national debt and the fiscal responsibility that I think a lot of policymakers and Americans really are focused on.

Do I think that Senate Republicans and House Republicans are going to come together and say, let's write a $10 trillion bill that's not paid for at all, that increases the deficit? No, I don't. We still have deficit hawks in the Republican Party, we have people who are really concerned about it and for good reason. That's going to be a struggle. I want to say SALT is really important here. Republicans are fairly united in the general extension of Tax Cuts and Jobs Act. There's a lot of campaigning this cycle on it. It's been a priority where we're fairly unified.

However, that's not where it ends. We're looking again at these small margins in the House and the small margins in the Senate. When we have that, we have individual policymakers who have a lot of influence.

We saw that in 2021- 2022, when Democrats had a big bill and they said, Hey, this is our wish list, and Joe Manchin and Kristen Sinema, who are Democrats, turned independents in the Senate, said, Oh gosh, no, thank you, that's way too big. Here's what we can do. We'll do the Inflation Reduction Act, which was a fraction and a little bit of a different direction on some than the original Democratic priorities. That's what we passed, because again, these two policymakers were able to exert a ton of influence.

Then we saw it in 2023, when I think it was a total of eight house members ousted their speaker, which was the historic moment for Republicans in the House, what we see is a lot of power when we have those small vote margins.

In the House, there's a really strong caucus for repeal of the state and local income tax, a limitation of $10,000. It's bipartisan. But there are a number of Republicans on there, particularly from high tax states, from traditionally blue states, New York, California, Connecticut, New Jersey. There's dozens of them, really, and they've won re election to the House and they've campaigned on this, and this is going to be a priority for them. I think it's really impractical to think we're going to see a tax bill that doesn't have SALT attached to it because this is a pretty strong caucus.

Again, the margins are small, and to fully repeal SALT for 10 years is another $1.2 trillion. Now I'm at $6 trillion April, and that's before the overtime and before the Social Security, which is already system in peril in terms of being able to fund it. It's not quite that simple, and we do have deficit hawks. When we saw Tax Cuts and Jobs Act originally come through in 2017, we used the reconciliation process, Republicans did, and then Democrats used it in 2022 to pass the Inflation Reduction Act. There were many Republicans who wanted much more than TCJA cost.

TCJA eventually they came to an agreement, and they said, We can do $1.5 trillion. 1.5 trillion is what we can sign on for. We can get everybody on board for that. That's what the budget instruction said. You can write a bill that increases the deficit by 1.5 trillion dollar over 10 years and so they did that. But it's not quite that simple. People say, $1.5 trillion, it wasn't 1.5 trillion dollar in tax cuts. It was $5.5 trillion in tax cuts with four trillion dollar in revenue raisers, some of them were pretty simple.

 I replaced these itemized deductions with the standard deductions, they kinda offset, but there were some provisions in there that were just revenue raisers and one of them is 163(j), the business interest limitation. Then additionally, we couldn't see them all through the entire budget window and still hit that mark. When I originally described it literally in 2017, 2018, when I was talking about it, I would say. Hey, look, we've got all these dials, and at the top, we've got this big number, and this is what we've added up to. We want to turn this dial up, but that costs too much money, and that puts us over, so maybe we dial it down on the number of years or maybe we add this revenue raiser.

We're trying to back into this $1.5 trillion number, and that's part of the reason we saw some of these changes that transitioned under TCJA. We're seeing right now the bonus depreciation number come down. We've seen a change in how we calculate ATI for that business interest limitation, and we've changed how we deduct research and experimental expenditures. Honestly, they just couldn't make it all the way through that budget window at that number.

Just a quick note on those things that have already changed, we saw a bipartisan bill sail through the House, sail through 83% vote margin, 357-70, I want to say on January 31 this year, and it died in the Senate. Senate Finance Committee Leader Ranking member, Mike Crapo, said, No, thank you. [He was] really confident that he was going to have a majority in the Senate in 2025 and he does, and he now also is able to have a Republican House to work with.

One of the questions I get a lot is, do I think that we're going to see that bill be taken up in the lame duck session? My answer is no, I do not. I don't see what the incentive is for Republicans to make the concessions in there with Democrats around the refundability of child tax credit because they've got different methodologies on that. I don't see an incentive for them when they know they're going to run the table next year.

April Walker: One thing I know you and I have talked about before, there's in evaluating “pay fors” and revenue raisers, there's the ERC provisions that are in that legislation that you're talking about in the past. I guess that's still potentially on the table ending ERC in January, that's potentially out there. What about tariffs? Tariffs have been suggested as a revenue raiser. How does that work with reconciliation?

Kasey Pittman: There are a couple of revenue raisers that have been widely talked about, and I think there's a lot of bipartisan agreement around ending the employee retention credit early, and that's scored, if they use it from the old bill, that's scored around $77 billion. But you have to think that's drop in the bucket when we're talking about $6 trillion, $8 trillion, $10 trillion dollars. But it helps - every bit helps, obviously right? 

And then there's another one that's clawing back a lot of the IRA provisions, some of those clean energy provisions and semi recently, I think last weekend, President Elect Trump said,"Hey, I'm going to take away this $7,500 EV credit. We're not doing that anymore once I'm president." That's one item, but there are a lot of energy provisions outside of just that. That's the one that I think most individuals know about, but there are a lot of energy provisions outside of that. How they dismantle that is going to be really interesting to me, because there are some proponents who just say kill it all. This is not where our priorities are.

There are others and there was a letter, I want to say to Speaker Johnson in the summer, that came from a number of House Republicans, a dozen or so that said, Hey, these are really beneficial in my district. I really hope that we and the language we've heard a lot of here is take a scalpel and not a sledgehammer. That's the talking point, scalpel and not a sledgehammer, to clawing back some of these provisions.

I do expect some exploration of clawing back those provisions, and then tariffs. President Trump has talked a lot about tariffs and we've heard a number of things between 10 and 20% across the board tariff rate for anything coming into the country, about 60% on China. I believe we've heard 100% on cars coming from Mexico. What we don't know is and I've gotten a ton of questions on this, honestly. What we don't know is how serious he is about those.

Is it an idea? Is it something that he intends to use as a bargaining chip in trade negotiations? Is it something that's going to be applied potentially in a more specific niche, these particular areas? That's what we saw in his first presidency was that it was particular items coming in. We saw it on aluminum, we saw it on steel. Or is it going to really be, does he intend to do it across the board?

The thing is that presidents do not have completely unfettered power here, but they have the ability to enact certain tariffs without the consent of Congress. That being said, unless they find a way to write that into the reconciliation bill, they can't use the money they believe they'll generate from the tariffs as an offset to try to get back into that number.

Because again, TCJA, $5.5 trillion in cuts, $4 trillion in revenue, if we want to include that in revenue, it's going to have to be present in the bill in some fashion. What I have been reading and researching a little bit, does it have to be explicit or does it have prescriptive or does it have to authorize him to move in that area? I'm still doing a little research there. But anyway, it would have to be in the bill in order to be included in the revenue scoring.

April Walker: Lots of items to think about as we're rapidly going towards the end of the year and our listeners are [a  lot of] tax partitioners talking to clients. I think another top question I'm sure you've been getting is, what are we thinking about timing? When is this going to happen? When is legislation going to happen? Because we really think it's going to happen, they're not going to let TCJA expire at the end at 12/31/25. But what are we thinking?

Kasey Pittman: Speaker Johnson has been very bullish on this and saying he would like a bill coming out of the house, not necessarily enacted, but out of the house in the first 100 days of Trump's presidency. Just if we're going from inauguration day of January 20th, that date would be April 30th. That is a really ambitious goal. There's a number, it's ambitious in ideal scenarios. There's a ton of other priorities as well, including government funding, which as of this moment, is not done, and we don't know if it'll be a continuing resolution or if they'll fund the government through the end of the year.

 But there are a lot of priorities for this Congress, and one of them is the confirmation of all of President Trump's picks for various administration positions, which is going to complicate this. Because right now, the House Republicans have the generally accepted number is 218 seats. There are five seats outstanding. They could wind up with a total of 223. That's probably more like 221, 222, maybe 220, but probably 221, 222 (See note above for the final results).

There are three people from the House that President Trump has nominated. They're leaving their seats, assuming they get this job, Matt Gaetz has already left his seat, and that's going to complicate matters. It's not an easy swap. Speaker Johnson will be working with a very tight majority, like a very razor thin majority in the House until all of that is sorted out, and you've got new policymakers in seat. That's going to complicate things as well, and it's going to be difficult to get to that number. Again, I think that there are a lot of different, even within the Republican Party, even though they believe in the TCJA. They believe it was stimulating. They think that they should extend it. Deficit funding for a large number is going to be really difficult.

First, we're going to have to come to that number, and that is going to be a negotiation in and of itself. It's not going to be $10 trillion. It's not going to be, hey, we get everything we want for 10 years. In addition, then they have to figure out how to work with that number. Let's say $2 trillion, I'm just going to throw that out there, $2 trillion, $3 trillion, whatever they've decided on. You can increase the deficit over the budget window by $2 trillion dollars, $3 trillion dollars. I've got 10 years. In my budget window, what am I going to do with it? I could try to find a ton of revenue raisers, and I think it's honestly going to be a mix of these things.

I could try to find a ton of revenue raisers. I could try to reduce government spending. I could not put everything in place for 10 years. We could see a bill that comes out for four years. Even though the budget window could be larger, they could say, hey, they're all going to expire after four years because that's how we can get most of our priorities in, and then we're going to kick this can down the road.

When they crafted TCJA, it was very intentional. The portion that they made permanent was the corporate rate, there's a much longer planning runway for large corporations and businesses than there are for individuals, typically.That was smart. In addition, the things that are expiring are the things that are popular with voters, lower rates, increased child tax credit. It puts political pressure on the extension of these items. They could do that again because the items we're talking about are by and large, popular with voters. Nobody's looking, nobody raises their hand and says, I'd really love you to increase my tax rate. Personally, thank you so much. I'd like my bill to go up every year.

Now, many taxpayers are okay with it and they believe in the methodology of a graduated system, but nobody's personally asking for an income tax increase that I've seen anyway in my practice. They're popular, they could kick it down the road and put pressure on the 2028 election, if they only do it for four years. I'd be interested to see what happens. They could also only enact them partially or phase them out or make other changes. There's a lot to figure out. There are a lot of dueling priorities and there's a lot of money at stake.

April Walker: Lots to think about as we move into 2025, but I so appreciate your sitting down with us today, Kasey, and thinking through the scenarios. Very helpful for me.

In closing, as we wrap up this podcast, I like to take a little bit of a left turn and think about, hey, we're together, we're taking a journey together towards a better profession in doing that, I like to get a glimpse of my guest other journeys outside of the world of tax. Kasey, tell me about a trip you have planned or a bucket list item you've got on the agenda.

Kasey Pittman: Actually, we took our kids out of the country for the first time this summer, and we had a little bit of a larger trip planned and it got delayed because of a couple of years, mostly because of COVID, honestly. It was wonderful. We went to Germany and Austria and London, and we were hoping to add France on there too, but we couldn't because it was the Olympics and it was bananas getting into France. It was absolutely bananas. We are hoping to go, not next summer, but maybe the following summer go back and bring the kids to France. I enjoy traveling a lot, but I think it's so cool to see it through their eyes, too. I think it's really neat because the world.

April Walker: I love to do that, too. Traveling is definitely I didn't do it a ton as a kid, and so I try to do it and get my daughter on the road as much as possible.

Kasey Pittman: But in the short term, April, I'm going to come down your way. Let's see. I want to say it's the first Sunday of December to watch because on Monday, it is the Women's NCAA soccer championship, which will be very exciting. It'll be our third year and it's in Cary. Unfortunately, the next three years, I think, after that are in California, and we're not going to make that trip. It's probably our last year.

April Walker:  Yes, you're always welcome to come down to a lovely North Carolina. Hopefully the weather will cooperate.

Kasey Pittman: Fingers crossed.

April Walker: Thanks again so much, Kasey. Again, this is April Walker from the AICPA Tax Section. This community is your go to source for technical guidance and resources design, especially for CPA tax practitioners like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants. You can find us wherever you listen to your podcast and we encourage you to follow us so you don't miss an episode. If you already follow us, thank you so much. Please feel free to share with a like minded friend. You can also find us at aicpa-cima.com/tax and find our other episodes and get access to any resources we mentioned during this episode. Thank you so much for listening and wishing everyone a happy upcoming holiday season.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

In this joint episode with the JofA podcast, host Neil Amato discusses with Melanie Lauridsen, Vice President of Tax Policy & Advocacy for the AICPA, what tax practitioners can expect regarding tax legislation. The conversation covers key tax topics following the 2024 election, including the future of the Tax Cuts and Jobs Act (TCJA), beneficial ownership information (BOI) reporting, and disaster relief efforts. Melanie provides insights into the challenges and opportunities facing tax professionals in 2025, emphasizing the importance of staying informed.

What you’ll learn from this episode:

•  The latest updates on disaster relief for BOI reporting.
•  Melanie’s insights about the potential future of the TCJA provisions.
•  How IRS funding might be impacted by the new administration

AICPA resources

Planning for tax changes – CPAs need to not only brace for tax law changes such as the Tax Cuts and Jobs Act (TCJA) and expiring provisions but also be proactive in planning for them.

Tax Advocacy – Advocacy is a core element of our purpose and value proposition. It is a strong mechanism for promoting trust and confidence in the CPA and CGMA credentials around the world.

Transcript

April Walker: Welcome back to the AICPA’s Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, lead manager from the Tax section, and today we have a joint episode with the JOA, providing information on several important tax topics, such as BOI, disaster relief, and also upcoming potential tax legislation. Let's hear more.

Neil Amato: Welcome to the Journal of Accountancy podcast. This is Neil Amato with the JofA. This episode is a special collaboration between the JofA and the Tax Section Odyssey podcast. It's Nov. 19 as we're recording, two weeks since the 2024 election. With the election over, we have results. We also have questions about the future of several tax topics. Here to provide some analysis and clarity on those topics is Melanie Lauridsen, vice president–Tax Policy & Advocacy for the AICPA. Melanie, welcome back to the podcast.

Melanie Lauridsen: Thank you for having me back, Neil.

Amato: We talk pretty regularly, pretty much a quarterly basis. It's safe to say that even if we keep this discussion fairly narrow in scope, there is plenty to discuss, so we'll get right to it. I'm going to tease for the listeners that there will be discussion of the future of the Tax Cuts and Jobs Act. But first, I'd like to ask about BOI reporting, beneficial ownership information reporting, as that's been in the news lately as well. What's the latest from your lens, the advocacy lens, on the topic of FinCEN's disaster relief for BOI?

Lauridsen: Good topic, Neil. Disaster relief is something, regardless of what it is, whether it's tax or BOI, it is critical that people are able to get it as quickly as possible in the largest scope possible. With BOI, we are grateful that FinCEN did offer disaster relief for victims of various hurricanes, most notably Hurricane Milton and Hurricane Helene, which created quite a bit of damage to the areas they hit.

But, unfortunately, the scope of the relief, particularly for those victims of Hurricane Helene, is not as broad and as encompassing as we would have liked it to have been. They did offer a filing relief for those victims. However, they didn't extend it to entities that had been created prior to 2024 and therefore had a Jan. 1, 2025, deadline.

We know that [for] some of the entities, it took everything away. It destroyed everything, and those entities have years to rebuild, and they really could use an extension. With that in mind, we are actually working with various state CPA societies, and we are also working with FinCEN in order to broaden the scope that was issued, in particular for victims of Hurricane Helene. Of course, we are working with people on the Hill because there are a lot of questions around the Corporate Transparency Act and BOI reporting to begin with, much more so also with disaster relief that they would like to see some expansion of the scope, too.

Amato: Yeah, and on that topic of the reports that are in versus the reports that are expected, it's still a pretty small number. I know people like to do things at the last minute, but it's something like 6.5 million of 32 million, so still a long way to go.

Lauridsen: There is an awareness issue there, and FinCEN is highly aware that there is an awareness issue because, like you said, 6.5 million filings of 32.6 [million], there's a little bit of a disconnect, especially when we're in November. So we're talking there's a month and a half to file to meet those other — what is it? — 20-plus million filings that we have to go in 1½ months? I don't think they're going to be able to meet those numbers, so, yes.

But a couple of things to note about that 6.5 million. Of those 6.5 million, the majority of those filings are for entities that were created in 2024 and had that 90-day deadline, and also for the 30-day corrected and updates that are needed, and that's the 30-day deadline needed. A lot of the existing entities, those that were created prior to 2024, still need to file. Now, FinCEN realizes that their numbers are not where they want them to be, and they are now focusing on awareness and not so much on enforcement. But they are, like I said, making pushes for awareness, and they were even on our AICPA Town Hall, so you can look at the archive there because we did host Phil Lam for that.

But also, the other day, I was watching national television, and I saw one of their commercials. I just about fell out of my seat. I didn't think the messaging was as clear as it could have been, but they are trying to make efforts there.

Amato: Was this the coffee shop ad that you saw?

Lauridsen: Yes, it is.

Amato: We wrote about that earlier this year, that the outreach had begun. But still, I guess, a ways to go on that topic. Let's look ahead to one item that was popular at the tax conference. It's popular in the news headlines, and I know it's something you're paying attention to: the Tax Cuts and Jobs Act. It's a very open-ended question, but I'll ask it anyway: What's the future of the Tax Cuts and Jobs Act?

Lauridsen: Well, Neil, we would all love to know exactly what the future is. But, the Tax Cuts and Jobs Act, it's interesting because a lot of people said prior to the election, we always knew that tax was going to be on the agenda. People were saying that, it all depended on if it was Democrat or Republican that ended up taking the presidency. Ultimately, the same topics are at stake. TCJA was always something that was going to be debated and discussed, regardless of who ended up being in office and who will be in office. The difference is we definitely know that President-elect Trump would like to see TCJA provisions become permanent.

Now, the reality is all those provisions cost money, and there are real dollars associated with it. Even though we are going to be seeing in 2025 the trifecta effect, where the Republicans have swept across the board, it doesn't mean that everybody is in line with the same provisions, and therefore it doesn't mean we know exactly what will be coming. A lot of what is to come becomes an argument of how much things cost and how much things don't cost and what can be included and what can be agreed on. The debate is still very much alive as to what will happen with TCJA.

I think, this is my pure speculation, I think we're going to see a hybrid of all the things that are there and not necessarily everything becoming permanent. But who's to say? Things could absolutely change.

Amato: Do you want to talk about any of the particulars within that, for example, the SALT cap, estate tax policies, the future of the corporate tax rate?

Lauridsen: All of those pieces are very interesting. The SALT cap, let's start with that one. The SALT cap, we have heard that they would like to eliminate the SALT cap. On a personal level, sure. I would love to see that go away. I know quite a few people feel that way about it. But the reality is that it costs money. Right now, the SALT cap at the $10,000 cap is a revenue raiser, and it helps pay for other aspects of it. If they were to eliminate it, that will cost a lot more money than what is anticipated.

If we were to see a change, again, this is pure speculation on my part, obviously, we have to wait and see how things play out and what indicators we see. Right now, we haven't seen any specific indicators, but I wouldn't be surprised if the SALT cap ends up being raised slightly, not completely eliminated because, again, it costs money to eliminate it.

Amato: OK, state tax policies next.

Lauridsen: You said estate?

Amato: Estate. Sorry, estate, not state, as opposed to state and local tax. Now, estate tax.

Lauridsen: With estate tax policy, there's definitely a desire and a will to see the cap also eliminated because with TCJA, after TCJA, it will cut in half of what we're seeing. Who knows what we'll see in that play. Again, it costs money to be able to have no limit for estate tax planning purposes. I do think like the SALT cap we're going to see something come out in the middle. Maybe it'll maintain, maybe it might increase, but completely unlimited — I don't see that happening, either.

Amato: Then finally, the corporate tax rate as it relates to the TCJA.

Lauridsen: The corporate tax rate, that is definitely something that has been discussed.

We have heard during the campaigns from President-elect Trump that he would like to lower the corporate tax rates, but please keep in mind that the current corporate tax rates in TCJA, again, they cost money. What is paying for those corporate tax rates are those small business provisions that we would like to see come back. For example, Sec. 174, the R&E expenditures. We would like to see that 100% bonus depreciation. We would like to see that come back, but those are some of those provisions that pay for that lower corporate tax rate. Of course, there's the [Sec.] 163(j) interest expense deduction and Sec. 199A, the qualified business income. Again, all those pieces come into play into that corporate tax rate because, technically, those are the pay-fors for that corporate tax rate, so it's a handoff.

Amato: Good description of the pay-for aspect of it. Anytime there's a change in administration, I guess the IRS funding topic comes up. The IRS has said many times that the funding it received under the Inflation Reduction Act was helping it provide better service. Now, I guess that funding is going to be up for debate. What do you see as the future there?

Lauridsen: Well, that is definitely something. The funding for the IRS, specifically, the Inflation Reduction Act, the IRA as we call it, is something that we are definitely going to keeping an eye on because, if you take a look at the Inflation Reduction Act, the majority of the money, $80 billion — that was allocated towards enforcement. Now there was a piece that was allocated to IRS services, and it is that piece, that portion where we've seen the increased answering of the telephone, the hiring of people at the IRS to be able to provide services with that. Now, we know that that particular funding for IRS services from the Inflation Reduction Act is set to run out by 2026. If the money runs out, what do you think will happen? We'll see decreased IRS services. The way we're looking at it is we do know there is interest in clawing back the Inflation Reduction Act funding and, specifically, for the enforcement piece of it.

Our position is, well, let's not take it away from the IRS. Let's rebalance it and shift it over to services. One thing to note, though, is enforcement is a critical function of the IRS. Not everything under enforcement is audits, liens, and levies — all these things that people don't want to see happening. There are pieces of enforcement like Chief Counsel's Office that is covered under enforcement, and Chief Counsel are the ones who provide the regulations and those guides, the guidelines to people in order to be compliant with their taxes. It is a critical function of the IRS. Now, do they need as much as they got? I would venture to say and would like to see some of that money going from enforcement to IRS services and not necessarily clawed back.

Amato: That's great. Now, I said we're two weeks since the election. We're also about one week since the AICPA & CIMA National Tax Conference. I know you were there. I know you were busy yourself, but maybe, as you interact with members, as you interact with people in Washington, if you could then look ahead to 2025, what do you see as challenges that are tax-related and also opportunities for the new year?

Lauridsen: Some of the challenges that our people have, and we've actually done some informal surveys, too, and the results are the same and we're seeing this trend. There's a lot of growing concern with new legislation coming and, in particular, retroactive legislation or midyear legislation, which makes it particularly hard for members to be able to keep up with it. Retroactivity doesn't help because then you have to amend returns if you already started down that process. Of course, with both last-minute legislation and retroactive legislation, you have to keep on top of the tax changes. Now, you should do that on every given year, but when they do it retroactively or midyear, it makes it particularly hard when you're in the middle of filing season. That is one of the biggest challenges that our members are concerned about.

Also, with new legislation, that means we are waiting on guidance from the IRS. The IRS [process] can be very time-consuming in looking at the rules to able to provide guidance. Again, people just want to be compliant. People aren't trying to get out of it. They just want to be compliant, and they need some guidance. That's another concern that we see there.

Of course, other challenges that we're seeing associated with Sec. 199A — we would love to see the extension of that to continue, but ideally, we would also like to see the expansion of Sec. 199A. Again, that costs money, and where is that money going to come by in order to be able to achieve something along those lines within it.

But, there are opportunities, Neil. Some of those opportunities there's mobile workforce, opportunities there's an appetite for that hopefully that we can see move forward, and that would be something that would make a lot of people's lives a lot easier. That essentially is saying to put a safe harbor that if you work less than 30 days in a state, then you don't file at that state level. It would have to be over 30 days to be able to move forward with that.

The expanded use of 529 accounts to be able to pay for studying to sit for the CPA Exam or to be able to get your financial planning certification associated with that. There are pieces of opportunities. Another piece of opportunity that we would like to see — maybe we'll see a change with the Form 1099-K, with the threshold. Remember that was at $600, and there's been a debate where it could be, so maybe we'll see an increase in that threshold filing. Of course, disaster relief. We would love to be able to see some of the bigger positions that we've had associated with disaster relief to make a real difference for victims of disasters.

Amato: Good points all. Thank you very much, Melanie. I'll give you the opportunity to give a closing thought if you have one.

Lauridsen: My closing thoughts are, I think 2025 is a huge tax year. I think we just need to buckle down and get ready for that roller coaster that's going to be coming, and it's always important to keep up to date and follow through, but in this year, changes are happening. They're happening quickly. I think podcasts like this, webcasts, things like the AICPA Town Hall, they become even more critical for people to keep up to date.

Amato: Great. We will keep having you on. We'll see you again in 2025, and thank you for being on the show today.

Lauridsen: Thank you, Neil.

 Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

This podcast discussion with Michael Reese, Risk Control Consulting Director (Accountants) — CNA Insurance, centers around the importance of engagement letters for tax practitioners. Michael emphasizes the role engagement letters play in setting expectations, providing clarity and mitigating risks during engagements. He also reviews the necessity of having clear, documented agreements to minimize disputes and liability issues.

What you’ll learn from this episode:

• The importance of engagement letters
• Common risks in tax engagements
• The role of client education and communication in managing risk
• How to handle quality control under deadline pressure

AICPA resources

Annual Tax Compliance Kit — Engagement letters, organizers, checklists and practice guides help you manage your tax season workflow.

Say "I do" to engagement letters — Uncover the importance of establishing parameters of client relations and detail the scope of services to be provided.

Other resources

Frequently Asked Engagement Letter Questions — The Accountants Risk Control team at CNA, the endorsed underwriter of the AICPA Professional Liability Insurance Program, summarizes answers to frequently asked questions.

Transcript

April Walker: On today's podcast, listen to hear how you can manage your risk with engagement letters. Hello, everyone, and welcome to the AICPA’s Tax Section Odyssey Podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a Lead Manager from the Tax Section. And I'm here today with Michael Reese. Michael is a risk control director with CNA.

Michael Reese: Good morning, April.

April Walker: Thanks for joining me today. Here at the AICPA, we work really closely with Michael and his team on lots of things and lots of projects. But I'm especially grateful for the partnership that we have with his team for Tax engagement letter templates. Speaking of engagement letters, they are now currently available to Tax Section members. Of course, I will put a link in the show notes so that you're able to access those.

April Walker: Today, we're going to talk about some common questions that we get, and I'm sure that you also get Michael on Tax Engagement Letters and just generally how to manage your risk as a tax practitioner. Welcome, Michael, and thank you for joining me.

Michael Reese: Thank you. Hopefully, what I can provide will be of use to your listeners. These are questions we often get as well. I do want to confirm that, but it's a very important topic. Glad we're talking about it here today.

April Walker: I'm positive that they will be helpful. Sometimes people get answers to questions that they don't really want to hear, but they're important for them to hear.

Michael Reese: Exactly.

April Walker: Just to start off, I'm wondering why you think it's crucial for tax practitioners to have an engagement letter in place not only for every engagement but before they actually start the work.

Michael Reese: April, I think there's two primary answers to this question. First, setting expectations and then setting guardrails in case something goes wrong. From a practice standpoint, it's very important for both the practitioner and the client to know what's going to happen and what work is being done. Your engagement letter hopefully is going to clearly state, "This is what you've asked us to do. This is what we're doing. This is what we collectively need to do to get this completed. This is the info we need and when we need it," etc.

If a practitioner doesn't have this, then they run the risk of a client coming back later and either adding services, sometimes without the added fee, or complaining that a service has not been performed. There needs to be that clarity upfront. For professional liability reasons, having that clarity helps limit your duty of care to the agreed-upon scope.

This way, in the event of a dispute, the practitioner has a strong argument for avoiding liability related to items for which they had no responsibility. That leads me to the second answer involving guardrails. Ideally, the engagement letter is going to set out the agreed-upon rules if something goes wrong.

Dispute resolution is not really something CPAs focus on until they are in the middle of one, but we routinely talk to tax practitioners who are in the middle of an engagement with a problem and they don't have the signed letter to fall back on. If that letter is in place before the work starts, you now have options if something goes wrong, whereas without the letter, you don't.

Now, I'm not ignoring the fact that getting a signed letter back can be a challenge, especially for 1040 clients. But I know there are practitioners out there that have a strict process. No letter, no work. Remember, the onus is on the client because they do need your help. Otherwise, they aren't showing up to your office.

If they want the service, then they need to work with you. April, I would say put it this way. When I go to get work done on my car, even for an oil change, they don't even take my keys until I've signed a piece of paper that says I agree to the service and the terms of service. If I ignore that paper, disappear for some period of time, and then come back like some tax clients, when I come back, my car is still how I left it unrepaired, and I can't now complain that I'm going to be late for work because my car isn't fixed. I can, but I don't know how far it's going to get me. I really would like to think that tax professionals should have no trouble with a similar approach.

April Walker: That's a great analogy. That's where we'll talk about this. Mike, you and I have both been in practice before. And sometimes we struggle with the way we've always done things, in a certain way, but it might not be the way the rest of the world operates. If we're thinking about this in a way of managing your risk, this is definitely a best practice.

Michael Reese: Yeah, I would agree.

April Walker: Great. Let's talk about some common risks that tax practitioners face during engagement. You've got your engagement letter, for sure. Check one. We are in the engagement. How might having that engagement letter help mitigate some of the risks that can happen as things are going on?

Michael Reese: I'll give you four. We can talk about these. But the first one and we did touch on it before in the prior question, there's risk when there's no alignment on what the client needs. The client may not understand truly what they need to comply. They just know they need to file a return. Once you have the discussion with your client and identify the extent of the need, that engagement letter is going to provide the clarity that we spoke of, so both you and the client understand - this is what we're doing.

Two, once you know what you're doing, there's still a risk that the client doesn't know what's included. Let me give you an example. When I practiced, I had a 1040 business owner client that felt they were paying too much in estimated taxes using the 110% safe harbor method. We ended up doing actual method.

They didn't realize that meant doing quarterly drafts for the business and then calculating actual tax in multiple draft 1040s to figure out how much they owed each quarter. Added a lot of time, added a lot of fees. The client thought it was, "Part of the return." But at the time, the engagement letter didn't really break down for the client what was part of the return and what was not. That subsequent argument about fees could all have been avoided.

Three, there is a small risk someone may use the work for a purpose other than what was originally intended and we don't see this too often in tax. It's more of an attest item, but sometimes we do see it in tax. Just think of how often clients ask for comfort letters and you'll see where I'm going with this. Once you give them the deliverable, you do lose a bit of control as to what they might do with it.

Your engagement letter can anticipate this risk by saying, "We're doing this X." Tax return, consulting project, whatever. "We're doing this X for this specific reason. If you use it for some other reason, that risk and or loss is on you." I helped you with your tax return so that you can file your taxes and not have the IRS sending you nosy letters. If you gave that return to someone else for some other reasons, you've been warned, that's between you and that other person. But if your engagement letter doesn't close that door, you could have an issue.

Fourth, strangely enough, not every client realizes that if you don't file and pay your taxes on time, there's some downside associated with that. A lot of professional liability claims fall into the bucket of, "You didn't tell me," regardless of merit. At minimum, your engagement letter can put the client on notice. "Hey, if you don't do this or you don't take your responsibilities seriously, bad things can happen."

April Walker: I think those are all great examples. I'm specifically thinking about and we may touch on it a little bit later talking about some of the planning that might be around some of the upcoming TCJA sunset items and work you're going to be doing around that. I like your example and that absolutely has happened to me before about the estimated tax payments. The client didn't really understand, "Hey, cash out is also the fees you pay to me." I think that's a interesting one.

But you want to make sure that you're not leaving on the table the assumption that any planning and projection work that you might be doing related to these consulting projects or whatever around TCJA or whatever it might be is specifically either included in the engagement letter or you have a separate engagement letter that talks about that.

Michael Reese: I think you used a very important term when you say assumption. I think a lot of times CPAs are very in tune with the work and what needs to be done and there's an assumption that the client has the same knowledge or the same background. I think you talk to a lot of clients and what the CPA believes to be true isn't always necessarily what the client believes to be true. That's why you'll hear me talk a lot about that alignment between client and CPA. Documenting that and getting that understanding and having it in the engagement letter is very helpful.

April Walker: Like you said, in assurance engagements, you hear more about scope creep. But definitely, it happens in tax engagement too. It's important to think about.

I know this doesn't happen with people who listen to this podcast and are AICPA and tax section members. I know this doesn't happen. But maybe you have friends who do not have an engagement letter for an engagement. What are some examples of situations? Not specific - we're not calling names and calling people out here, but where might there be significant issues for a tax practitioner if they don't have an engagement letter?

Michael Reese: Sure, and you're right. I can't name names, but we've seen enough that I can give you some generic examples inspired by true events. Hopefully one listening doesn't say that's my situation, but that's not where this is intended to go. If you don't have an engagement letter, you may have an oral contract even if you don't realize it. I'm not sure most people are aware. Simple fact pattern. Client calls you for work, you discuss fees, client says, there's an argument, that's a contract. The problem is other than the fee and the return, what are the terms? What's the result if something weird happens and you want to fire the client? Or if the client never pays you for your time, or and I've seen this one before, the person goes MIA, you don't realize they were serious and they show up on the due date with a stack of papers and your fee demanding a tax return.

Oral contracts are a gray area and frankly, one where I think practitioners should seek legal help if one exists because of the ambiguity around performance, remedy and termination. When I say performance, I mean doing the work. Remedy is what one party can look forward to if the other party violates the agreement and termination I hope is self explanatory. I'll put a plug in here for the engagement letters offered to AICPA members in the tax compliance kit. Those letters include a provision that states the agreement supersedes all previous oral agreements. That's there on purpose. You can hopefully avoid the issues related to possibly having entered into an oral agreement, when you've provided a written proposal, or if the engagement letter scope differs from prior understandings. And that happens frequently enough where you talk about the work and then you put it in the letter and maybe the client doesn't realize the scope has changed a little bit.

Another situation. If you don't have an engagement letter and a good percentage of tax claims actually fall into this category, the disputes and ensuing lawsuits are more difficult to defend and more expensive to defend. You're now trying to piece together all of those conversations, all of those emails, dealing with all of the finger pointing and the convenient lapse of memories, just to figure out what was supposed to happen. Just put it in writing so it's clear upfront what the agreement is. I think an area I would be concerned with here is with SALT (state and local tax) compliance. Here it's more often that there's an engagement letter, but the letter is ambiguous or silent on key scope matters. It's not absence of an engagement letter as in your question, but functionally, it's the same principle because whether you have no letter or the letter is silent, in both cases, you don't have contemporaneous documentation.

A lot of clients forego SALT compliance because to them, the cost outweighs the act. But when the state comes knocking, you're going to have to navigate that lack of documentation. I don't know if too many clients audited by the state who raise their hand and say, no, I told my CPA not to prepare that return. My last example is the long standing client with recurring compliance that all of a sudden has new facts. Sometimes the practitioner isn't even aware of the new information when it's in their possession. If the planned scope anticipates 20 hours of work with commensurate fee, and now all of a sudden you realize the scope needs 50 hours of work. With a commensurate fee, the lack of an engagement letter is going to be a real problem when you send that bill for 2.5 times the fee that the client expected. Fee disputes are common claim drivers.

April Walker: Those are great examples and the SALT one particularly. You just need to make sure I think in the engagement letters that are part of our toolkit, it specifically says that you need to list out the state returns you're going to do, but there needs to be, like you said, some documentation about you may have a nexus and exposure in these particular states and somehow document what the client is telling you to do. Then just a quick note on sometimes people will talk about unilateral engagement letters. Hey, we've had this client forever, and we're doing the same thing for them. Do we really need to get an engagement letter every single year? What's your thought on that?

Michael Reese: I would say yes. You do need to get an engagement letter every single year. I'd say that for a couple of reasons. If your practice is still the practice 10 years later after you gave that original engagement letter, I'd be hard pressed to think that most people's practices and practices internally have changed. I think the engagement letter is a reflection of how your practice evolves and your quality control and what you're doing for a client. Two, depending on what's in your engagement letter, you want the engagement to actually end so that you're not indefinitely keeping open potential statute of limitations or potential liability. I'll give you a high level example. If you have an engagement letter and you say, I'm not going to do an engagement letter, I'll do the evergreen letter where it just continues on indefinitely. There's a question that engagement is still there. It's just an ongoing one really long engagement.

Whereas if you have the engagement letter, you clarify the scope every year. By clarifying the scope every year, you limit your duty of care for that year and then it ends. When you look at the statute of limitations for liability, you can say okay this letter is done with, this statute is done with, anything related to the work done there, that's passed. You can't come back and argue with me about it, but if you have just this amorphous, non defined or ill defined client situation, you interject a lot of ambiguity and that can become a problem for liability purposes. It's really just best to make everything clean, do one letter a year, make sure the clients understand that when that letter ends or when that work delivers, that one's done. I'm not tied to you indefinitely. I may be tied to indefinitely as the client, but I'm not tied to indefinitely visa V that engagement. Next year, when the work comes up, issue another letter. It also helps you understand what the client needs. Or if the client's needs they changed and it's evolved, the letter is going to reflect that every year as opposed to just having one letter, it's old you push out the same one. If their needs have changed, that letter really needs to reflect it.

April Walker: Good thoughts. Michael, I'm thinking about client education. I feel client education and communication is a big part of underlying a lot of what we talked about today. But I'm assuming you think it's an important role that we play in client education. But how can practitioners work on educating their clients about the importance of these engagement letters?

Michael Reese: I don't know if it's so much educating them about the importance of the letters. They need to understand the letter aspect of it as well, but it really is educating clients on their role in the process and reinforcing the fact that whatever the client brings to your door, it's ultimately the client's responsibility, not the CPA's responsibility. It's the client's tax return. It's the client's tax planning. As your service provider, I can provide you with suggestions, guidance, or advice, but really it's up to you to make the decision. The engagement letter should confirm that and lay out with some specificity what that decision is and what the client needs to do to support that decision.

One problem I saw from my own practice was that most clients concerns, especially around the engagement letter, started and stopped with a fee and the deliverable. It was very transactional. If the practitioner can impress upon clients that you're not a vending machine. They can't just drop off paper and money and expect magic. And that you client have to put some effort into the process too. That right there really helps everyone involved. I'll continue to harp on it, but things go a lot smoother when both practitioner and the client are on the same page. Client education can be a big help here because practitioners shouldn't take for granted that even their longstanding clients fully understand what's going on or what the process requires.

On your question of how. It's never a bad idea to be open and upfront about both the service and the engagement letter and answering any questions the client may have. Some firms take this approach as part of onboarding new clients. I know you and I talked a little bit about onboarding before we got underway, but practitioners should be forewarned. The risks of misunderstandings between practitioner and client are not limited to new clients. Practitioners need to be able to talk about what's in their letter. That may require them to sit down with an attorney that helped draft the letter so that they know what certain provisions mean and where it's okay to be flexible.

I might also challenge practitioners to not be afraid to openly discuss what might happen if things don't go as planned. Now, this doesn't have to be a doom and gloom or threatening conversation. But, hey, I need your help here to make this go smoothly and if I don't get your help, here's what the downside to you client might look like. I would hazard to guess that outside of a small population of clients that repeatedly get fired by their professional, most clients don't think about the prospect of what might happen if they don't hold up their end of the bargain.

Talking about client responsibilities openly and soberly and what happens if the client doesn't support the work might help make this prospect not so remote. Because unless the client just doesn't care about their taxes, and those are out there. I have to believe most clients do not want the prospect of either paying some unexpected amount on the due date or trying to find assistance at the last minute. If you think about it, a lot of client angst really revolves around those two items, paying more than expected or necessary and having the government come back and stress them out later. Use that and have an honest conversation with the client about what they need to do to avoid either of those outcomes. Then make sure it's in your engagement letter.

April Walker: Like I said, our conversation today boils down to communication and so I think those are good thoughts and good conversations to have. I mentioned it earlier but you and I are both in the public accounting world, and we're aware of the pressure that you can face with client demands and deadline demands and all of that. What do you think - do you have to balance that, with the need for thorough quality control? What are some of your thoughts around that question?

Michael Reese: I'll challenge it a little bit just because.

April Walker: That's fine.

Michael Reese: I don't want your listeners thinking that they need to make a choice between quality control and something else. You and I both know when the clock hits the week before deadline, ten, 11, 12th, a lot of things start getting squishy, I guess, maybe is the best way.

April Walker: Squishy is a good word.

Michael Reese: You got hard rules all of a sudden those rules get a little squishy. The term balancing may give some the impression that if one end is weighted more heavily, the other one is up in the air. Practitioners shouldn't view the quality control as optional if their reputation is built on doing quality work.                                                             

I think most if not all practitioners would say that's the case. I want to look at both parts of your question, thorough quality control and deadline pressure/client demands. Now, the most obvious answer to me for dealing with the pressure of a tight deadline and client demand is to not have deadline pressure or client demands. I know. Before I get laughed out of the room, I've had my share of deadline horror stories. We all have. The concept really isn't that outlandish. I'm starting to see a lot of evidence slowly, but surely practitioners are challenging that default notion that tax due dates have to be this pressure filled exercise that makes you wonder or question, why do I put up with this every year? If you can create optimal work conditions, that's a huge win rather than simply accepting that there's no alternative and suffering the consequences.

 For those that aren't fully to a stress free deadline yet, and I know they're out there as well, your quality control, whether that's informal or it's a 50 page document that no one reads or refers to, it needs to be designed in a more intentional way. To me anytime you talk about quality control, I think you have to look at your process and your process design. Then you have to look at the people integral to the process, including the client. A lot of process is iterative, organic, reactive. When that happens, there's no design, there's no intentionality. You're just patching holes as they appear or responding to the latest impetus.

On the other hand, when there is design, sometimes we fall into the trap of designing to a best case scenario instead of a worst case scenario or realistic scenario. Mistakes happen all the time, but I don't think it's far fetched or controversial thing to say that in periods of high stress and pressure, the likelihood of a mistake is higher.

When I say process design requires intentionality, I'm really trying to highlight that the design needs to operate from the base assumption that the players involved aren't always going to do things in a rational, uniform or expected manner.

The question is, can your process for quality control withstand the sheer hysteria of those last days before the due date? Because if it can, you're not really balancing quality control or sacrificing quality. Your system accounts for the insanity as a given and then responds appropriately.

For those that have QC in place, I want you to ask yourself, are they rules or do they become suggestions in the face of competing interests? Do they become squishy, as we said before? Is it easy to rationalize an exception to the rule on April 13th compared to January 13th?

Part of this depends on what habits you have as a professional. If you have strong habits, the answer or choice you make doesn't change regardless of day or situation. I think the last thing I want to say about QC design is often practitioners are challenged because they don't know what they don't know, and that is a real and legitimate hurdle. We completely understand that.

We get a lot of calls on the risk management hot line where practitioners have never had to deal with this before and I get it. You can't design for what you don't know. But that's where I think you tap into your professional network, attend conferences, like National Tax Conference, where you and I will be and understand what resources are available to you, whether it's a tax section or your insurance carrier or your state society. There's tons of ideas out there, maybe too much, but there's nothing that says you have to keep doing it the same way and expecting a different outcome. I think that's called insanity.

April Walker: I particularly love that we start off talking about engagement letters, but then we circle back to thinking about a new way to operate in tax, which I do think is possible and one of my passion projects. I love that.

I just wanted to note another important aspect of quality control that in my mind, is a best practice for firms to minimize errors and omissions, and those are checklists that help you consider, have you addressed these key issues and making that not just a rote check.

It's a real part of your procedures and really stepping away and making sure you have a process for all of the things. Making sure you have a process for getting your signed engagement letter before you start your work, making sure every return has some review procedure.

Even if you're a very small practitioner you should have some kind of [review process]. Is it stepping away for a period of time before you look at the return again or something like that. Speaking of the checklist, they will be available soon in mid December as part of the annual tax compliance kit. Look forward to those.

Thank you so much Michael for this discussion today. I think it was a good one and hopefully a educational one for our listeners. In closing on these podcasts, if you're a listener, I hope you are. You know that this next question is coming and so it's Tax Section Odyssey we're taking a journey together towards a better profession.

In doing so I like to hear about my guest other journeys outside of tax. Talk to me about something that's on your bucket list or a recent trip you've had, something that you've got on the horizon.

Michael Reese: I have not had any recent trips, but I do have an upcoming trip next month and then I will give you a bucket list one as well because I'm always happy to talk about bucket list travel. Next month and we started this maybe eight or nine years ago.  We took our daughter to Vienna for Christmas. We got away from the house for Christmas. I'm taking the family including the grandmothers. We are going to Germany to do Christmas markets. We're going to trips around Germany for about two weeks and visit a couple of Christmas markets and we'll make a pit stop in France to do some markets there. And my mother has never been overseas and so I'm really looking forward to that just reliving that child like joy that comes around the holiday season. That's what we'll be doing next month, lots of plans going into that. That will be a little bit of an odyssey as well because we'll see how well I can survive with my mother for 12 plus days. Shouldn't be an issue, but we'll see. Fingers crossed.

April Walker: Inter-generational trips.

Michael Reese: Exactly. I would say bucket list and I was talking to a couple of friends about this actually earlier this week, I would love to go to Easter Island and see the Moai and the Rapa Nui. That's a really long trip. But that's one that I think has been on my bucket list. If I can take that one off that would be really cool . I think maybe was it last month where Easter Island had the full solar eclipse? I would have loved to have been down there for that. But if I can get down there and check that out, I will definitely be in a good spot.

April Walker: Wonderful. I look forward to hearing about your trip to Germany and the Christmas markets. That's definitely on my bucket list as well.

Michael Reese: I will tell you all about it.

April Walker: Again this is April Walker from the AICPA Tax Section. This community is your go to source for technical guidance and resources designed especially for CPA tax practitioners like you and mine. This is a podcast from AICPA & CIMA together as the Association of International certified Professional Accountants. You can find us wherever you find your podcast, and we encourage you to follow us so you don't miss an episode. If you already do thank you so much, and please feel free to share with a like minded friend.

You can also find us at aicpa-cima.com/tax check out our other episodes and get access to all the resources, including those wonderful engagement letters mentioned during the episode. Thank you so much for listening.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

The AICPA & CIMA National Tax Conference will take place on November 11 and 12 in Washington, DC. Join Brandon Lagarde, Tax Partner at EisnerAmper, and April Walker, Lead Manager on AICPA & CIMA’s Tax Practice & Ethics team, to learn more about what to expect from the upcoming conference.

Conference sessions will feature topics such as:

• The impact of election results on tax legislation: Investigate the potential legislative outlook based on the recent election results and how it might affect tax policies.
• Tax Cuts and Jobs Act (TCJA) expiring provisions: Provisions of the TCJA are scheduled to sunset at the end of 2025; learn more about how to prepare and explore planning opportunities.
• Practical tax strategies: Sessions at the conference will cover various tax tactics, including gifting and income tax planning strategies, for clients who are not currently subject to estate tax.
• Ethical dilemmas in tax practice: A session will discuss common ethical dilemmas faced by tax practitioners and provide insights on how to handle them.
• The future of tax practice: Investigate the importance of transforming tax practices with year-round advisory services and how to implement these changes in a tax firm.

AICPA resources

AICPA & CIMA National Tax Conference — For tax practitioners, there’s no better place to get immersed in current events than the AICPA & CIMA National Tax Conference; in-person and virtual options are available.

Reimagining your tax practice — Join us for free upcoming live roundtable sessions to tackle today’s top practice management issues with insights and tips from pioneers in the tax community.

TCJA expiring provisions — This detailed, downloadable resource offers an in-depth look at the expiring provisions under the TCJA and other recent legislation. It categorizes changes across individual tax, estate and gift tax and business tax provisions, organized by year of expiration.

Transcript

Neil Amato: Welcome back to the Journal of Accountancy podcast. This is Neil Amato with the JofA. I'm excited to be joined for today's episode by two top flight tax experts in this special collaboration episode with the Tax Section Odyssey podcast with our guests, we're discussing the AICPA & CIMA National Tax Conference which begins November 11th in Washington.

Those guests, April Walker, lead manager with the tax practice and ethics team and host of the aforementioned Tax Section Odyssey. Also Brandon Lagarde, tax partner at EisnerAmper and Chair of the Tax Conference Planning Committee. We have a lot to get to. We're excited to have you on. First, a quick welcome, April and Brandon, thanks for being repeat guests on the JofA podcasts.

April Walker: Thanks so much for having me Neil. I'm excited to be here.

Brandon Lagarde: It's very exciting to be here Neil. Thank you for having me.

Neil Amato: Yeah, we're glad to have you both on as I said, the Tax Conference is November 11th, less than a week after election day. Brandon for you first, tell me what you're looking forward to about this event which is at the Omni Shoreham Hotel in Washington?

Brandon Lagarde: Yeah. I'm looking forward to just go into DC. It's going to be a week after the election, hoping that we know who the president will be and what the makeup of Congress will be at that time. Again, it's going to be a great atmosphere, a great opportunity to go to the nation's capital, to hear from some of the best tax minds out there.

Neil Amato: April, I know you're a repeat attendee at that conference. You're also running sessions, recording podcasts, taking part in panels. What do you look forward to from the event?

April Walker: It's always a busy conference for me and I love being in DC and it's very exciting for me to be there, like Brandon said right after the election. Speaking of that, really what I'm looking forward to most is hearing more about what the potential legislation outlook could look like based on those results, based on those election results. I think we'll hear more about we've talked a lot about the Tax Cuts and Jobs Act, the TCJA, that it potential expiration, what that means. We'll really be able to dig into that at the conference. I'm excited about that.

Neil Amato: It's almost like we planned this. My next thing was going to be the TCJA. Some of the provisions of that Act, the Tax Cuts and Jobs Act, are scheduled to sunset at the end of 2025. Clearly, there is a lot of uncertainty about the provisions right now as we record and the first part of October. But I imagine that topic is going to be a popular one at the conference. Brandon, What do you think?

Brandon Lagarde: Yes, absolutely and that's why, again, being there at the heart of it all after the election and getting to hear from presenters and speakers about just what the future holds for tax professionals, end of 2024 is going to be really important for us.

2025 is going to be incredibly important for tax practitioners to understand and remind ourselves of here are all these provisions that we've been dealing with for the last seven years that are going to expire. What's going to happen? Where are we going to be? A lot of planning opportunities, lot of reason to get in front of clients to learn about what we have in the horizon. Again, that's why this conference, particularly just the time of the year. It is in the election cycle, and heading into 2025, 2026. It's probably the most important conference that's ever taken place.

This is just a really important time for us to get together and to really try to figure out what's going to happen. Of course, we're not going to know exactly at that time, but at least start to have a better understanding, a clear picture of what we can expect and what should we be talking to clients heading into 2025? What are some things that need to be doing?

Because you can't just turn on the switch in November of 2025 and start to really think about this. Right now is really the time to get ahead of it and remind ourselves what provisions are expiring? What do we need to start thinking about planning opportunities to get ahead of it? That's what's at stake at this time.

April Walker: I love Brandon that you're setting the bar really high. The most important conference of all time. Here we go.

Neil Amato: Yeah, that's great and because it's the most important conference of all time, we will include a link to the conference registration page with the agenda information and all of that in the show notes for this episode. One of the items on that agenda is being led by Marty Finn. He's a previous guest on the podcast. He has a session on tax and financial planning. When estate taxes don't matter. Now not to steal Marty's thunder. But can you give me a little preview of the highlights of that session?

Brandon Lagarde: Certainly. We will spend a lot of time at this conference again, learning about the estate tax world and the sunset provisions and trying to navigate that. But the reality is a lot of our clients are not subject to estate tax. A lot of our clients are not having to worry about the sun setting provisions.

We thought it was important to have sessions that not just focused on the top 1% of our clients, but to the 99% or to the large majority of our client base. Things like gifting strategies, what we need to be talking to clients about, who aren't necessarily dealing with the estate tax. Income tax planning strategies around that.

Really just as practitioners, what do we need to be talking to clients about? We're not super focused on just estate tax and the ultra wealthy or the wealthy. That's one thing that we really try to work hard as committee in this conference is to find sessions that have a very practical application.

That we can take away tips and tricks and things to our client base and back to our hometown and not just focused on the very academic discussion that a lot of tax practitioners like to have. That they can relate to. Try to have sessions that are very practical in nature and the Marty session is definitely one of those. He's going to do a great job giving some really good tips and tricks to people to bring home.

Neil Amato: I liked the practical part you mentioned, and that leads me into another session that I want to ask you about. This is one that April is taking part in with Dan Moore and Mark Gallegos.The title of the session is Tax Practice makeover, transforming with year-round advisory services. Tell me some more about that session.

April Walker: Yeah. I'm really excited about that session. A lot of what I do here at the AICPA is try to help practitioners think about the future, the future of Tax Practice, the future of what a firm could look like. So we had this idea to do like a makeover of a practice. We're going to talk about some of the different aspects of a practice that you could make over- billing, client focus.

One of those is about adding advisory services. We'll talk more about that. So come and join us and learn how you could do a makeover of your practice.

Neil Amato: That's great. Now another session with an intriguing title, this is you, Brandon and you April, test your tax ethics IQ. Now one that sounds like one that people have to do some homework on or some pre-reading, maybe I don't know, but tell us about that session. What's a flavor of it that you can tell attendees about now?

Brandon Lagarde: We're going to try have fun with this session. Play some games that have come up with like a quiz atmosphere. I think April going to try bring a buzzer for people to buzz in and answer our questions. But really focus on ethical dilemmas.

We're faced with ethical dilemmas daily, with clients who are either trying to push the boundaries a little bit or just get into some situations where they find themselves in a bad place. We're constantly being asked to address the situation with our client base. Whether you need amended return for XYZ reason. Can you take on a client because of what's going on? Do you need a fire a client? Because they may be trying to push the envelope a little bit.

Really, there's a lot of ethical dilemmas that we face as practitioners. This is really a time for us to again, have some fun with it. To the extent that ethics is fun. We're going to try to test the audience and see what they think. It's always amazing if you ask a room of people what they think about certain tax ethic issue or are really just a tax topic.

In a room of 100 people, there are probably 100 different opinions on what should be done. I think it can be fun. We're going to try have fun with it. Again, I really trying to also provide some education so if you find yourself in these situations, here's some things to consider. But again, April and I, we hope to have fun with that.

April Walker: Just come visit us. There is no pre-work. To answer your question, Neil, there is no pre-work to the session. We'll take a lighthearted take on a potentially tough, dry subject.

Neil Amato: Great, and this quiz is not graded. You still get the CPE as long as you're showing up, right?

April Walker: Absolutely.

Neil Amato: Well, good. One of the themes that I'm hearing is providing advice on the topic of expanding services beyond just, "Hey, we're going to do taxes for someone." But if someone said to you, maybe after a session, "Hey, I really liked what you said there. But gosh, I'm a smaller firm," or "It's only me. I don't know where to start." What do you tell them?

April Walker: What I would do, if they came up to me and I hope they do. You can come up to me at our booth. You can come up to Brandon and I if you see us. We will likely be posted up in the bar at the Omni. Come see us anytime. But what I would tell you, we talk to small firms all the time.

One thing I recommend them is come to a session that I do that's on the computer. It's not live at the conference, but it's called Reimagining your tax practice. I'm really more about re-imagining and having makeovers and that sort of thing it seems like. But in those sessions we really talk about the nitty-gritty. Sometimes it's hard to think about this big process of going from X to Y.

We like to talk in those sessions about practical ways. I like to focus on the practical. How to actually get where you're going, or how to change things in your practice or how to change how you're operating. That's probably what I would say if you came up to see me wherever you might find me.

Neil Amato: This has been great. We've mentioned session by Marty Finn. We've mentioned some sessions you are taking part in. Of course, we've mentioned that key acronym these days, TCJA. Brandon, in closing. Anything you'd like to add as we wrap up this Tax Conference preview episode.

Brandon Lagarde: Yeah. Certainly. A couple of other terms you'll hear out there. AI, which we have a session. Transforming your tax practice. One thing we like to emphasize about all of our conferences, but certainly this one is, there'll be lots of sessions with lots of smart people talk speaking at these sessions with great content.

A lot of times your challenge is which sessions do I go to. Because it's such a great hour, hour-and-a-half of content. You'd have to choose. At the moment, you do have to pick a session. But you have access to recordings of all the sessions after. I often go back and watch sessions that I wasn't able to attend because of that great content. It's just a wealth of information.

Again, you get a little parting gift when you leave. Not only do you meet up, making new friends, meet people at the conference, talk about challenges you're facing with your colleagues and also hear some of the best speakers in DC and have a great time there. But you also get to have access to all the recordings after and watch the sessions after that you missed, and that is invaluable to have access to that content.

Neil Amato: April, how about you? Anything to add in closing?

April Walker: I think one thing that's really important about this conference being in DC, and we haven't mentioned yet, is the ability to have IRS speakers that come and speak to us. We're going to have the taxpayer advocate, Erin Collins. We'll have other IRS speakers scattered throughout the conference.That's another opportunity to really hear where they are on certain things and be able to ask them questions.

Neil Amato: Yeah. That's great. It's a good reminder that there is that access to IRS officials every year at this conference. Really thank both of you for your time. Again, look forward to the conference November 11th, Brandon, April. Thanks for being on the JofA podcast.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

This podcast conversation with digital asset specialist Kirk Phillips, CPA, CMA, CFE & CPB, Managing Director — Global Crypto Advisors, focuses on demystifying IRS Rev. Proc. 2024-28, which provides guidance on transitioning from universal basis tracking for holders of digital assets and a safe harbor deadline of Jan. 1, 2025, to determine how to allocate any unused basis in digital assets. Phillips shares recommendations for tax practitioners around communicating with clients and the need for careful planning and documentation to meet the safe harbor provisions.

What you’ll learn from this episode:

Understand more about Rev. Proc. 2024-28 and what it means for holders of digital assets.

• Hear about the safe harbor provisions provided in the revenue procedure.
• Learn the importance of the Jan. 1, 2025, deadline for making a reasonable allocation of unused basis.
• Find out about the challenges of documenting and reconciling cost basis related to digital assets.
• How to communicate and prepare individuals and businesses for the upcoming changes related to reporting of digital asset transactions. 

AICPA resources

Digital assets and virtual currency tax guidance and resources — Sharpen your tax knowledge on digital asset and understand the tax complexities and strategies involved with virtual currency and cryptocurrency.

AICPA advocacy resources

AICPA makes recommendations for digital asset transactions regulations, March 7, 2024

Other resources

Rev. Proc. 2024-28 — Guidance to allocate basis in digital assets to wallets or accounts as of January 1, 2025

Final Regulations 2024-07-09 — Gross proceeds and basis reporting by brokers and determination of amount realized and basis for digital asset transactions

Transcript

April Walker: Hello everyone, and welcome to the AICPA's Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a lead manager from the tax section, and I'm here today with Kirk Phillips. Kirk is a CPA and it has a lot of other designations behind his name. But he's also more importantly for today's discussion, a specialist in the world of digital assets and crypto. [He's] been in it for a long time.

Our goal today, Kirk, is to demystify some of this latest guidance that we've gotten from the IRS. We're definitely not going to be able to demystify all of it in the time we're just going to spend today. But there are some important deadline related items, so we want to make sure we're covering those. Kirk is on the AICPA's Digital Asset Tax Task Force. And for the past few months, we've actually been meeting weekly, which is unusual for a task force. Because really we've been discussing one thing, Revenue Procedure 2024-28. What it actually said, what it meant. Just really delving into that, the details of all of that.

That's going to be the topic of what we're going to talk about today. What that means for tax practitioners and holders of digital assets. Especially like I said, there are deadlines around this safe harbor. Kirk, to start off. Welcome. Let's talk about I mentioned the deadline and let's talk about the significance of that January 1, 2025 deadline for making that reasonable allocation of unused basis. That's what the Rev Proc says.

Talk to us a little bit about what that means, what you're thinking about, what practitioners should be doing now to prepare for that date.

Kirk Phillips: Sure. Thank you so much April for having me on the podcast. I love talking digital assets and crypto, whether it's tax-related or otherwise. I'm excited to help demystify this Rev Proc. One of the key things here is that and why this is so important is we both have a short timeline. Because we're already nearing the last quarter of the year 2024. It's also very challenging - it's a onetime exercise that we have to go through and on a short timeline. That's why this is critical and that's why we're here today to talk about that.

One of the key things here is that prior to this Rev Proc that the taxpayers would do their accounting for the digital asset transactions, which would be their trading or their sales, and it could be other related transactions as well. But basically they would do all the accounting on a universal basis. The question is, what does universal basis mean?

Universal basis means that whether you have one wallet or one exchange account or you've got 37 wallets and six exchange accounts or even something more crazy than that, you would for the most part, more than 99% of the time people would use specialized tax software because that's really the only way to get the job done. You would connect all those things and or import your transactions into the software and it would essentially co-mingle all those transactions. I like to say as if it was one wallet or as if it was a single exchange.

But it's not simply for the tracking purposes, all the transactions are simply dumped together and you perform one set of accounting. That's what the universal [method] is. Now, you can no longer use universal. You have to do a wallet by wallet, account by account basis. Which means that if you, again using those same numbers I did in my example there. If you had 37 wallets, that means you essentially have to do 37 different sets of accounting for those. I think that without knowing even anything more about it, an accountant hearing that would say, "Wow," immediately that sounds like that could be challenging, that could be a lot more work, and so on.

There could be issues around that. And all those things are true. Because of this short timeline between now and the end of 2024 and essentially we're talking here at the end of September, so we got one-quarter left to do this. The important thing here is if you have any channels to communicate with your clients, the first thing to do would be to communicate with them and let them know, "Hey, there's this Rev Proc 2024-28." Maybe, perhaps even provided a link if you want to, and or read that yourself in detail at least once.

But there's a lot of other things that you can lean on in AICPA guidance, of course. But just to send that out, in other words, you don't have to know it in detail before communicating. You should start the process communicating right now to say, "Hey, there's a lot to unpack here. I'm just letting you know there's going to be more that's coming. Be on the lookout. We're going to do a series of blogs on this or whatever it is you do or a newsletter, segments, and things like that.

I think that's probably the number one thing to start off with is start the communication now, because this is not a one-shot communication thing. This is a series of communications that you're going to need to do. Whether you're just providing value to non-clients or you're working with current clients, you're going to need them to be thinking in steps and increments along the way.

April Walker: Yeah. That's a lot of what we've been talking about over the past couple of months. Who this actually applies to you and who needs to really take notice of this? I think that's a great suggestion. Our listeners might be thinking, "Hey, I didn't know that we are not allowed to use universal method of basis allocation anymore. Did that come from the revenue procedure or where did that come from?"

Kirk Phillips: Well, that actually came from the digital asset broker regulations. But then what happened is in the process of those becoming final and the fact that universal [tracking] comes to an end. And we have to do the wallet by wallet approach. What arises from that is a onetime exercise of how do we get from one thing to the other thing? How do we get from point A to point B?

April Walker: The Sec. 6045 regs, which are long and complicated. Again, like Kirk said, we'll continue to create resources around all of this information because it's a lot to unpack. In the revenue procedure, it talks about a safe harbor. As we're transitioning between universal and wallet by wallet, the procedure provides a safe harbor. Let's talk about what are the key criteria that qualify you for using that safe harbor and give some of the requirements for it and so talk a little bit about that.

Kirk Phillips: Sure. That's one of the big things here is what are those key criteria for the safe harbor? Of course, another thing is we're wondering what is it actually a safe harbor from? There's going to be more to come on that. Because that's actually not super clear and usually that is when it comes to safe harbor. The critical things here are that you have two methods that you can follow in this universal transition process. From universal cost basis tracking.

In that transition process you can use a specific units method or you can use a global allocation method. In either case, you need to do some work before the end of the year arrives at 12-31-24, or before January the 1st, whichever way you want to say that. Those two methods are two distinct ways of doing it. You might say that the global allocation method is more straightforward and less work or less complicated. But let's just unpack those briefly. There's more to dig into on these, but this is a brief touchpoint.

Let's start with global allocation. Global allocation, I like to think of it as more like a recipe. There's more than one way to get the "cake baked". Because you've got your grandmother's recipe and you've got your own style and you've got things like that and things in the cookbook. So you can arrive at a different cake, but if you follow the recipe, you're going to get the same cake. Basically, another way I like to say it too, is if you come up with a global allocation, which is simply saying, "You know, what I want to do is I want to allocate my Ethereum, my ether. And I want to take some low-cost basis.

Maybe you could say, "I want to use my oldest cost basis and I want to apply it to my oldest wallets." For Bitcoin, I had only two Bitcoin wallets and one of them, it's only collected Bitcoin, received Bitcoin, it hasn't sold any. Say, you want to allocate maybe what's already there. Whatever it is, you're really defining a process. You're not actually going through with the process, you're simply defining it.

The key distinction about global allocation is, if you define the process and if you were to give it to, let's say another CPA, they will come up with the same answer. If you give it to CPA A, CPA B, or CPA C, they should all come up with the same answer. It's very systematic. That's the distinction there. Now with the specific units, it's simply user's choice. Like in baseball, it's a fielder's choice. It's user's choice. It's however you want to allocate it specifically.

Again, you have to follow the date. You can't break the date in the basis or a specific lot based on the date that it was purchased. You can't break that up. At that level that's as granular as you can get. If there was a lot or a tranche of Bitcoin or whatever, AVAX, or just pick your favorite coin and that was purchased on a certain date. You can't break up the date because the date piece has to be maintained and be consistent.

Anyway, that's really just a user's choice scenario. That's the difference because you can't give that method to three other CPAs and have them come with the same result because that's not what it is. It has nothing to do with following a process. It's simply just a user's choice. Now the key thing on the dates there is that the specific units method has to be conducted and finalize before the end of the year, before the last day of the year.

With the global allocation method, you just need to come up with the formula for doing it by the end of the year. But you actually can apply the formula to get the allocation after that. That's a super important point right there. Under global allocation, you also have until either the original due date or even the extended due date of the tax return if you did not conduct a transaction. The key is not having any transactions. You've got to put a halt to your transactional activity until you apply the global allocation method.

But it does buy you more time to do it. You just gotta be careful because that's how you could throw off the safe harbor. And ruin the safe harbor if you don't put a halt to the transactions before doing the allocation.

April Walker: You mentioned in one of our discussions is about what is this a safe harbor from? Based on our best discussions and where we think we are now, what do you think about that? What is it a safe harbor? What is our alternative if we blow this safe harbor.

Kirk Phillips: That's a great question. It looks like it would be a safe harbor prospectively from this day forward or the end of the year exercise that we're talking about forward. We're not sure about retroactively. It mentioned if you don't follow the safe harbor, you can incur penalties and interests.

As I recall that's about as deep as it goes. You could draw an inference from that and say, if I don't follow the safe harbor, does that mean that all of my transactional activity, all my reporting for the prior years could be recast and recalculated under different cost basis method. And therefore end up with a different tax liability than you originally calculated. Those things can be worst-case scenario. We just don't really know.

April Walker: Usually when you have a safe harbor, you have rules of what to do and how to document that you have met that safe harbor. Again, things we've struggled with. Seems like a simple question right? But I'm telling you a lot of smart people in the room, this is not a simple question.  Kirk, as we know it now, what types of documentation do we think will be good enough to substantiate that we have met that safe harbor as of 1/1/25.

Kirk Phillips: That's right. You could actually take an action. You could perform your allocation, and you could do this all before the end of the year. The question is, how do you prove that you've done it before the end of the year? People have talked about, well, you could have files saved that because you can look and see what a file date is, the modification date of a file.

But then you could also later open up the file, not even change anything but potentially open a file, change the modification date. If that was something that is being looked at, then that could be an issue there. This is really where it comes into use in your CPA skills to figure out what's a good way to document. We're already good at that. Even in the world of not knowing, you can come up with "well I think I should do this" to document.

One of the things is if there's a way to send an email to yourself. Time stamping on emails is one way to do things like that. Just in the larger world of documentation. Like I said, everybody is relegated to using specialized crypto tax software. You might as well say everybody uses crypto tax software.

Then the question is, which one do you use? Because they're all different. They all have issues and so on. But hopefully regardless of the software, it would allow you to export an end of the year holdings report or an inventory report. That's essentially what it is because the data is in the software and if that's going to be one of the key things is, can I get that report?

Let's just assume that you do. The first thing you do is to export that report. That's going to be the basis and the starting point for doing an allocation. Let's fast forward just a second. Let's say you go through the allocation however long that happens and let's say you're done. For example you could say, let me attach that file now. Again, figuring out how do you document.

You could attach that file in an email or you're copying [yourself] with your client and maybe there's other members in the firm as well. Maybe there's a specifically designated digital asset person who want to get copied. But nonetheless, that would create an email timestamp on it and that document is attached to it. That's one way that you can actually document that these things were done ahead of time.

I guess if we want to dive into documentation further again, I was talking about that inventory being a starting point. Regardless of whether you use this global allocation that we spoke about or specific units allocation. You would need to take the starting point of the ending balances or the inventory and then you need to take your wallets. Then you need to then allocate the basis that's in the wallet. Because remember it's on a universal basis. Now you're trying to allocate it on a wallet by wallet.

You then need to go through it, but it's difficult to describe it without seeing a visual. But basically you would allocate all of the inventory that starting to all of the current wallets that you have. Again it depends on what method you're using.

But at the end of the day, what you're trying to achieve is you want to get a proof. We all love proofs, and this is one way to do it. What's the proof? The proof is the check total. It could be a check total per asset, for example that you've allocated all the Bitcoin, you've allocated all the ether, you've allocated all the Solana, the AVAX, the whatever. You've allocated everything so that the check totals on the top match the check totals on the allocation. That's how you know that you've done it and it is complete and correct. Is by doing the methodology that is like that. Because if you don't do that then there's really no way to know that it's complete. You got to have checked totals and arrive at the same numbers and then that's how you do it.

Again it can be challenging because it's depends on what's the quality of the data that you're starting with. One of the big challenges is I think all the software has different types of issues, limitations, certain features some have that others don't have and things like that.

The first thought might be from the accountant mindset oh, if I split this inventory report out it's accurate. But the thing is, it's most likely not accurate. There's going to be issues with it. You're actually starting with something that's not solid in the first place, which creates a whole other set of challenges. But we can't dig too far into that one right now.

April Walker: I was just went back into my way back machine and I was doing proofs and doing double underlines and I was getting really excited. I think that's a great point. If you are using software for yourself or for your clients, you need to, just like with everything we would say, you're not printing it out and then just putting it in a file or somewhere and never looking at it again. You got to make sure that it's not garbage in, garbage out situation. Again, lots of potential steps in this seemingly simple, allocate your basis comment.

Another thing we've talked about is the role of brokers. Because eventually in the years to come, I'm sure you're aware, there's going to be in a form 1099-DA. And there's going to be reporting of digital assets and then hopefully there's going to be at some point, [cost] basis on those forms.

Again, happy little world the basis is going to be equal to what you think it is and everybody's happy. I think we know that it's going to be much more difficult than it sounds, but let's stay simple for the moment. Let's talk about how that revenue procedure 2024-28 impacts how a broker might communicate with your clients regarding interactions with brokers and how this might be a help eventually.

Kirk Phillips: That's all a great question and it's interesting how just the broker side of things, what were the centralized digital assets exchange. Because that's what we're talking about. It's just the two ways of saying it. But just to be clear what we're talking about because we have decentralized exchanges.

Then the other side of that is the brokers and the centralized exchanges. And so that creates a whole another set of unique things and considerations with the brokers. And how they're going to report basis because they're the ones that are required to do it right now. We don't have it on the self custody side. I guess the overarching thing is you could end up with perpetual mismatches. And when I say perpetual, they could go on forever - definition of the word. But it could go on for a very long time. Just to make a point there, you have a perpetual mismatch between what you have been tracking with your crypto tax software and what the broker actually has on file.

If it was Coinbase, for example, Coinbase and the assets that are on Coinbase were actually purchased there. Coinbase is going to have a record in that scenario. Then your tax software may have under the universal method have already spent some of that basis. Because again, those transactions are treated as if it was all one big wallet. You've got a mismatch off the start, even if you do a proper allocation on your own side, you may not even know what the broker has. So the question is, how can you communicate with the broker and let them know?

The centralized exchange services or these brokers, they can receive user provided basis, but they're not required to, but they may accept it. If you have some that accept it, that may be one path that you could try to match up what you have from your allocation and communicate that to the broker so it matches up. But again, that's not going to be perfect because not every centralized exchange is going to do that. Only some of them are. Even in cases where they do provide that as a courtesy to their customers, that's not a magic wand either. If there's other things that can happen there, we could get into the weeds further on that.

But one of the things is when you transfer in tokens to a broker, that they don't have any cost basis there. Again, if you wanted to report it because they're accepting it, yes. Otherwise they wouldn't have the information. There's just no way for them to know. If you think about the different assets that they may have in your account, they're going to have some that they know the basis for which would be the ones that you traded with them. Then they're going to have other transferred in assets from customers and they're not going to have any basis information on that.

That just exacerbates the issue of what basis they have, what information they have and what's getting reported. You're going to have basically you could have 1099-DAs and so on that get reported on your behalf or the basis information is not correct. I think you know what is going to happen in those cases. You can imagine the challenges of trying to reconcile. That's what it was going to come down to is creating a really challenging reconciliation process with what the broker reported and the software with the software not really having features enough to give you reconciliation, the ability to reconcile to the degree that we're talking about.

April Walker: We've talked a little bit about there are times certainly where you get it 1099-B and the basis that the broker reports, doesn't match for this or that reason? It can be inherited and who knows a couple of different scenarios. But generally, you can rely on what the basis is. I'm not sure that's going to be the case in this situation. But again, we're just scratching the surface on some of these complex issues. More from an issue highlighting, you can recognize that this is coming. Kirk, This has been great, we've covered a lot of great information, gives us some good takeaways as we're wrapping up listening to this podcast and what can practitioners do in the next quarter coming up or then as they're starting working on a 2024 tax returns.

Kirk Phillips: Yes, I've got some great key takeaways and key points here. Then again, these things will be some of the stuff that I was suggesting in the beginning where you incorporate it into your blogs and newsletters, etc. This ongoing communication that's going to be critical. One of those could be strategically setup and tee up this allocation process in such a way that it is less complicated and has less issues. There's really going to be a strategy that could alleviate some of that. It's not relegated to whatever challenging process is going to be for any specific client. One way you can do that as potentially consolidating wallets.

If there's an example, like I said, the client that's got the 37 wallets and the six exchanges. You can consolidate those down. Now whether it whittles down to a single wallet, probably not, with that many for various different reasons. But if you could go from, say, 37 and six, what's that? Forty three. If you go from 43 and you're able to whittle that down to say four or five. You're automatically going to have less challenges and the less complicated allocation process. Really strategically consolidating assets and wallets is one way that could make this process easier. And then also similar and in conjunction with that could be to take the assets off the exchange.

Because again, if you don't have the ability to communicate with that particular broker because they're not receiving user provided information. If you take the assets off the end of the year, and then you put it back, they're going to have a zero basis. Again, that's its own issue, but I think it's the lesser of the evils, if you will. It's a better scenario for them to have a zero basis because then you're going to report something for it. Rather than they have some number and you have some different numbers. It's kinda like cost basis cleansing and you could call it that.

The other thing here is the third key takeaway. I talked about all crypto software has limitations and challenges and issues, all different from one another. You really need to know [whether the software can help]. For example, if a software provider is going to provide some tooling to be able to help in this process, they may actually provide it to the user. And say, hey, you could just click a box here and we're going to lock down the inventory. Then we're going to do this reallocation for you and you think to yourself, that's great.

I don't have to do any of the work, but you're still going to need to check that. You can't just rely on that. Then furthermore, if there is anything [available] like that, the question [comes] back to safe harbor. Does just checking a box, is that an action that proves that I took an action, a timely action, and allows me to be in the safe harbor or not. I think one of the best takeaways is, regardless of any of these pathways, is that you got to have a workpaper of some sort. And it says, I examined this. Here's a work paper that shows I did the work.

Because it's one of the things that the software doesn't lock down the previous inventory. Find out what software the person uses. Because you may know or you may not know. It depends how you work with the client. [You need to] really understand what is that software provider doing to handle this. That's another key thing. This is really a big, interesting brain teaser for CPAs who were in the digital asset space.

April Walker: For sure and we appreciate you taking a walk with us down, at least to start or the path and more to come. Kirk, this first time you've been with me on this podcast. We call it Tax Section Odyssey. We think of it as an Odyssey, a journey toward a better profession. In doing that, I like to get a glimpse of my guests other journeys outside of the world of tax. What's something on your travel bucket list? Something you have planned. Give me something to add to my bucket list.

Kirk Phillips: Yes. I will be going to Orlando in about a month to see my sister and I don't get to see her much. But one of the things I like to do is backpacking. I am involved with Scouts and I discovered backpacking in 2021 for the first time. I just love going on the Appalachian Trail and all different kinds of trails,  whether it's with Scouts or other things. That's one of the things I like to do a lot.

April Walker: Nice being outside and in nature and there's some beautiful places to hike for sure. You'll have to share some pictures from your hike when you're back with us. Thanks again, Kirk. This was very informative for me, as it always is. I didn't give a shout out to our digital asset page, but I will certainly put it on the resources.

Again this April Walker from the AICPA Tax Section. This community is your go-to source for technical guidance and resources designed especially for CPA tax practitioner like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants. You can find us wherever you listen to your podcasts and we encourage you to follow us so you don't miss an episode. If you already follow us, thank you so much and please feel free to share with a like-minded friend. You can also find us at aicpa-cima.com/tax and check out our other episodes, as well as getting access to resources mentioned during this episode. Thank you so much for listening.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

In this episode David Snider, Founder and CEO — Harness Wealth, discusses the transformative role of technology in tax practices, exploring how tools like practice management software can enhance client relationships and streamline operations. David shares insights on what he sees as three phases of technology adoption in the tax industry and offers practical advice for firms looking to advance their tech capabilities. Tune in to learn how embracing technology can lead to a more efficient, client-focused tax practice.

What you’ll learn from this episode:

• What David thinks are the three phases of a firm’s technology journey.
• How leveraging technology can streamline tax practice management.
• How practice management software can enhance efficiency and client experience.
• Why regularly communicating with clients can strengthen relationships.
• The importance of allocating time and resources to implement new technologies.

AICPA resources

Adding AI into your tax practice — Artificial intelligence (AI) is certainly a hot topic of late. Listen to hear Jason Staats and Ashley Francis talk about the latest information in this area and where you should move forward and where you should proceed cautiously in this Reimagining Your Tax Practice archived session.

Transitioning to a tax-focused CPA financial planner — Tax return compliance is continuing to become more of a commodity. Your clients see you as their trusted adviser and ask about a range of topics that affect their financial well-being. In this Reimagining Your Tax Practice archived session, learn more about practitioners who offer financial planning services and how that has impacted their practices.

Transforming Your Business Model…Technology — The Private Companies Practice Section (PCPS) is developing tools around technology designed to help firms not only identify elements of their current business model that may be holding them back but also offering solutions to help them adapt in this changing environment.

Upcoming event

Tech stack wars in 2024 — With the amount of technology products out in the market, how do they perform in reality? Join our next tech stack wars challenge on Oct. 16, 2024, to hear about the latest in technology for tax practices.

Other resources

Harness Wealth — Learn more about how Harness Wealth strives to provide the next generation of builders confidence in the path to their best financial future.

Transcript

April Walker: On today's podcast,  listen to hear more about leaning into technology for your tax practice. Hi everyone and welcome to the AICPA Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a lead manager from the Tax Section and I'm here today with a repeat guest. His name is David Snider. He's the Founder and CEO of Harness Tax. Welcome back, David.

David Snider: It's a pleasure to be here. Thank you April.

April Walker: David, I'd love for you to start. Tell us a little bit about yourself and tell us a little bit about Harness Tax and where you see yourself in this world of tax.

David Snider: Thank you for having me. Yes, so Harness has a platform for routine tax advisors that are looking to make their relationship with their clients more seamless and insightful. What that really means is a practice management solution that's tied into a much broader set of offerings. That includes business development to help advisors with leads, a concierge team to help with support, as well as a broader network of resources to help guide advisors and give them the resources of bigger firms.

April Walker: Wonderful. I feel since we talked in Spring of 2022, if it's possible, I feel like the importance of technology is even more important. Maybe that's just me being dramatic, but let's start off just by pretty broad question like, how do you see technology transforming the way tax advisors interact with their clients?

David Snider: Absolutely. I think about it being in the second of three inevitable phases. I think the first was the first stage, which is very typical across industries. My background was spending, now 12 years, building tech enabled services, software solutions, first at Compass, a real estate advisory firm, and now at Harness. Before that in the middle, spent a lot of time at Bain Capital looking at different disruptive technologies. And so that first phase that we went through, very similar to a lot of industries, adoption of email, adoption of technologies that clients can actually submit core documents digitally and not just in paper.

The ability with the early software to actually complete and file electronically. That really is table stakes. If you look at the data, it's 99% of advisors have an Efin, etc. The second phase that we're really still in the early to mid innings of is the software collaboration phase. What that looks like is work-flow automation, ways of interacting with clients to create leverage for advisors and scale. It's not just, hey, I typed an email, send it to one, or I create an engagement letter sent to one. It's using the efficiencies of technology that can, at the vanguard be AI, but really doesn't need to be.

In the vast majority of cases, it's just having good practice management software to create efficiencies for the advisor that end up, ironically, even though you have to spend less time, creating a better client experience and one that's more customized to the individual. It gives them more visibility into what's going on, what's coming next.

The third phase, which I think only a handful of firms are really investing in, fully tapping into, which is totally fine. I don't think the client expectation is there, is around customized insights. How do you not just deliver an efficient workflow? But how do you, at the outset of a tax season, demonstrate to your client that you already know some stuff about them from prior years, here's why we really need just to tweak that. Showing your work. Here is all the different analysis that we ran in the completion of your return or the discussions that we had and at the end of the process, Yes, here's a completed tax document or analysis that you requested, but also here's what it means.

I think that ability to both give insights to people and leave clients like they actually understand tax, the tax process, the work that you did, is going to create massive benefits in terms of client's willingness to pay, their retention, their happiness, etc. Very few firms are at a Phase 3 in our opinion. You don't need to be concerned if you're not. Because there are a few, if any are. But certainly making sure that you've put in place or have the opportunities to go into next tax season and really nail Phase 2. I think will put advisors in a great place to really capture what is happening on the vanguard in Phase 3.

April Walker: We definitely hear from people and when I'm out talking to firms, people who are definitely still in that Phase 1. Where they transferred to Cloud. That seemed like a huge deal and leaning into some technology, but maybe taking that next step into two, even is difficult. Do you have any advice or thoughts on that? Because everyone is so busy and it's hard to figure out, especially if you're really small, it's hard to figure out how to take that time and really invest in trying to get to that next step. Any ideas or suggestions there?

David Snider: I think the good news is there are a lot of very good practice management software that did not exist or did not have the robustness that they do today, five years ago. One of the things to consider in evaluating the different choices is, ensuring that you price in the value of your time as a practice leader. In that there is a learning curve on anything, no matter how good the technology is. There are some that I think are much cheaper and may have the technologies you want to check the box on. But I think really understanding what is the on-boarding team look like?

What does the client success infrastructure of that solution look like? Who's going to make it as easy as possible to set you and in many cases your team up to use it successfully? And to answer issues that will inevitably arise from any change. I think we have over-invested in those resources, because we know there's a lot of change and fully transitioning the way that you think about practice management, some of the potential third-party software you can plug in, etc. That's important.

I think whatever approach that you take, whether it's working with Harness or a whole host of other solutions that are out there that are very good. I think just making sure that you understand, hey, what are the functionality each have, what's going to be accretive to the way that you want to work and your staff and perhaps your clients. But also what's the process going to be to fully utilize and take advantage of that.

April Walker: Those are some good thoughts. Just maybe if we can talk about a few examples of ways that firms can use practice management tools to really help them. Because this is really what it's about. It's about not having to have an Excel spreadsheet of clients and that's all you have. I'm not saying that's what our firms have. I'm just saying, I was in practice for some time and I remember that. What are some ways you can use tools to really advance your practice?

David Snider: I think there's both external components. How do you enhance the way that your clients perceive their process and there are internal things. How do you ensure that you don't miss a filing? The reason that advisors have Excel is just a mechanism to ensure that they do the work for their clients that the clients expect. I think on the external side, the more frequently you're interacting with clients around the tax process, generally the better, not in an annoying way, but I think tax is something clients generally don't want to think about, but definitely want to get right.

It's no different than a patient coming in to a doctor if they have an issue, but don't really totally understand it. Having a solution that allows you to email me before the season starts, to preview of what's to come and the deadlines and things that are upcoming. What do you need from your clients? What is the engagement going to look like from a pricing standpoint? Being able to send out engagement letters that reflect that. So someone feels like they weren't surprised because they had exactly what's being done for them and the pricing terms, etc, outlined being laid out. Having the client questionnaire customized ideally to what the clients already told you in previous years.

It feels intelligent, not like you're starting at Day 1 every year with the same advisor around your materials, etc. All that stuff is beneficial, being able to update them that "I've received everything I need" or expect to hear from me this time in March for business filing. Aspirationally, late March not April 14th, but whatever that may be for the draft filing, what their advisors recommended, etc. Or at extension deadlines, etc. That stuff all again can be done without moving your practice to Phase 2, but it's going to be dramatically more time consumptive. And it's stuff that you can't bill and price for in the way that you want.

Because there are lots of other tax firms that have already made those investments and therefore they can do those things with very little time invested. Internal stuff is really around collaboration, tracking, knowing what clients have uploaded what? Who has been filed? Who's working on documents? Etc. Where are they in the process? Have they paid? The more visibility you have, the easier it is to spend each day, not driven by who is pinging you over and over in your inbox, but who actually needs something based upon external deadlines or prioritization or the revenue they're going to drive wherever that may be as you think about being the quarterback of your practice rather than playing defense. Just having the scrimmage run towards you over and over again during tax season and hoping you're still standing at the end of it.

April Walker: Yes, I love a football analogy. I was just in Minnesota to watch my Tar Heels play. My first trip to Minnesota anyway, it was fun.

David Snider: I went to the Super Bowl when The Patriots played there against The Eagles a number of years ago and it was bone chilling.

April Walker: Yes, we're recording this in early September. It will come out in a couple of weeks and what we're really thinking about, and what I hope our practitioners are thinking about is year-end planning and there's a lot to talk about with impending legislation. There's Tax Cuts and Jobs Act sunsetting. There's a lot going on for you to be in front of your clients and proving your value. Talk a little bit about how technology might assist you with some of those conversations, or pulling data together to be able to help understand who you need to talk to you, and what about?

David Snider: Number 1, I would say, and this is anecdotal, I don't have the data to prove it. The majority of advisors do not proactively email their clients in Q4. Unless they need to collect certain things to do a quarterly estimate, etc. That is a huge missed opportunity. Even if you adopt, no technology, take an hour jot down some thoughts, a few bullets on what could be at stake in the election or the expiration of the Trump tax cuts or of the estate tax exemption, whatever it is, send something that seems thoughtful, and obviously it's going to be thoughtful from any practitioner who cares about what they're doing.

If you do that, you may think, I actually have the time to have something more customized. A, you can use software at least have to be addressed to the person, even if it's a mass email versus just a generic one, but then you could potentially also group your clients and say, hey, I've got 15 law firm partners, and I've got 42 small businesses, and I've got a cohort of people with multi-state issues, etc. I'm going to create three different end of year planning emails.

I'm going to categorize my clients and be able to send out something that's not individual, but that makes you feel like, wow, April is really ahead of the curve in terms of giving the insights that I wouldn't have expected. Although it obviously can be automated, but it takes the adviser having the initiative to create that content and think about what's going to be most useful for. When you do that, feel free to promote the scope of what you can offer. Tax advisors or not, the world's sales-iest profession. In many respects that can be a good thing, but it also does you a disservice where your clients don't know what type of things might be beneficial.

For that end of the year planning to small business owners be like, hey, you're thinking about possibly selling or transferring a chunk of the business to a child or an employee or selling outright, etc. There are a whole bunch of things that you should be thinking about now, potentially some things that may involve tax decisions this year versus next year, etc. I can be helpful with that.

I think highlighting the opportunities around that and giving people the ability to opt in for more complex planning is going to be really accretive. But yes, whether it's Harness practice management solution or others, there are definitely ways to customize the messaging, the cohorts, some of that stuff, but it really starts with the advisers sitting down and saying what is potentially meaningful on the horizon for my clients. And how much time energy do I want to take to customize that? And maybe it's hey, it's one generic one, and there are 10 clients that really move the needle. These are my 10K plus clients, whatever the threshold may be. I actually want to spend some time and really make them feel that I'm paying attention to their holistic needs and how I can be strategic to them.

April Walker: A lot of times we hear people say, I don't want to bother my clients, but I feel like on the other side, they really want to hear from you when you have something to say that's really important and crucial to them. I think it's important. That's a great point you made about reaching out in some way fourth quarter of 2024, because like we said, there's a lot of different things that you could bring up that are specific to their situation.

David Snider: Honestly, my view and it's just a personal view having now been in and around this industry for several years is book-ended communications is extraordinarily rare and extraordinarily valuable. What I mean by that is communication before the season starts, the more customized, the better, but at least something. The same thing at the end, that even after the client has signed a return, you've completed some analysis that post-season follow up.

If it's just previewing when they think about bringing for the next year or some of those planning opportunities goes a really long way, I think in demonstrating value. I'm seeing advisers do the presentation of insights through loom videos and other things that I think is also an element of that. Which is do more than deliver the bare minimum of the compliance requirements, and you will stand out and generate a tremendous amount of goodwill from your clients in whatever form it takes. A Loom video, something semi-customized, something even generic will be helpful to a lot of the people that you work with.

April Walker: Just thinking about some clients you may have worked with with Harness Tax, do you have any success stories that come to mind where technology really improved someone's practice?

David Snider: Yeah. I think we have two different types of advisors that we principally help. The one is a practice with 1-25 employees under 10 million of revenue, that's really making an investment. [They say] we've got a good business. We're going to do just fine regardless, but we also recognize to make it A, sustainable, B, to enable growth,

We've got to be more efficient and we want to not just be good enough that clients don't leave, we want to be better. For a number of those practices, I think the combination of a workflow, practice management technology that can save a couple hours per client with some of these automations of the client engagement letter or the intelligent client questionnaire, the status updates, also supplemented by our client's success team that can help field those level 1 questions that may come into the advisor. They're not necessarily required to answer. They don't require tax expertise, etc. All that stuff gets unburdened. Those firms have then been able to take advantage of new referrals that they generate and a whole bunch of Harness generated clients.

One of the earliest practices that came on to the platform has grown, I think 80, 90% across two seasons because the practice leader is getting a lot more leverage in the amount of time that she spends with each client. She's gotten more resources to talk about in the conversation. The clients, they don't use the network of tax attorneys that we have or some of the other software and database that they have access through our platform.

The other group are people that have been at top 50 firms and for a variety of reasons feel like now is the time to be more entrepreneurial to create their own practice. There's tremendous demand for people that have specialization, nimbleness, a willingness to create a great experience. And one  that joined that had been at a top 50 firm to create his own practice and his first year was able to generate over a quarter million dollars of revenue. That really came from Day 1, adoption of Harness' technology, a few other components to that workflow and the ability to really highlight some areas of specialization and to take a lot of clients that came through our consumer-facing side that brings in clients and distributes those to the right advisors to serve them.

It's really a powerful combination that no matter how good your practice seems, if you free up hours and you position yourself well, you're going to grow. I think giving yourself that time, especially in Q4, to really think through what are ways that you can generate more value, maybe capture a fraction of that incremental value for existing clients and create the space for you to take on new ones that would be incrementally valuable is wonderful. We've certainly seen that just in the top-line value and in really high net promoter scores of the clients that are being served by advisors using our technology.

April Walker: We'll go live before the end of September. Hopefully this will be valuable information for people and we talk about growing. Sometimes firms don't want to grow because they feel like they have too much going on at the time. But what we have talked about and heard and I'm sure you'll echo this is sometimes you need to grow in a different way, like you need to cull some clients and really focus on growing your experience with those really good clients.

David Snider: Grow your free time. Grow your client value and or grow the amount of money that you pocket at the end of the year.

April Walker: All three, I'm going to say, check, check, check for me. David, it has been lovely chatting with you today. Any final thoughts as we're wrapping up?

David Snider: I think we're turning back to that initial theme. If you are an advisor in Phase 1 where you adopted some technology probably 7-10 plus years ago, it's really important, to get ahead of clients expectations. Which I think will rise as more advisers are using technologies to create a better experience. But don't also get anxious. Oh, if I don't have a fully outsourced AI practice then I'm behind the curve or my job's going away. There is secular growth in demand for tax services.

The more that you can devote time to areas that you are advising, building relationships, strengthen relationships you will thrive in this profession. But don't sit in the same as last year mentality. Take Q4, look at what is going well, look at what's going to create the most value for you and your clients and make those investments of time and in some cases, expenditure.

April Walker: Great thoughts. You've been with us before, so you know that in closing on these podcasts — we're Tax Section Odyssey — we're taking a journey together toward a better profession. But I also like to think about other journeys outside of tax. David, share a page from your travel journal, a trip coming up or something you've just recently done. You already had a spoiler with the Super Bowl trip, so that was cool.

David Snider: That's way in the rearview, I don't think the Patriots are making a run this year unless something dramatic changes. But the trip I'm excited about I'm heading actually tomorrow night to Barcelona and watch the America's Cup race as a father sons trip. [He has] always been a big sailor before my time. He spends a lot of the summer and now year-round in Rhode Island. That used to be where the America's Cup always was held and for the last almost 40 years, I think it's been elsewhere. We decided rather than just wait, we will take the trip. We're hoping that Team USA, American Magic, can at least win the Louis Vuitton cup to be the challenger against New Zealand.

April Walker: Worst-case scenario, enjoy some time in Spain which doesn't sound like a bad plan for me.

David Snider: Exactly.

April Walker: Thanks again so much, David. Again, this is April Walker from the AICPA Tax Section. This community is your go-to source for technical guidance and resources designed especially for CPA tax practitioners like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants. You can find us wherever you listen to your podcasts and please feel free to follow us so don't miss an episode. If you already follow us, thank you so much and please feel free to share with a like-minded friend. You can also find us at aicpa-cima.com/tax and find our other episodes as well as resources mentioned today. Thank you so much for listening and happy fall.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

This Tax Section Odyssey podcast episode takes a deeper dive into the Organisation for Economic Co-operation and Development’s (OECD) initiative on Base Erosion Profit Sharing (BEPS) 2.0 which sets to reform the internation tax system with Pillar 1 and 2 tax regimes. In addition to the complexity of such international regulations, the political landscape for U.S. implementation is uncertain, and potential action is needed from Congress.

Cory Perry, Principal, National Tax — Grant Thorton Advisors, and Vice Chair of the AICPA’s International Technical Resource Panel (TRP), highlights that while many U.S. companies may not face larger tax bills if these regimes are adopted in the U.S., the administrative and compliance challenges are significant. The AICPA has submitted comment letters to the OECD, Treasury, and the IRS, focusing on simplification and clarification of rules.

AICPA resources

OECD BEPS 2.0 - Pillar One and Pillar Two — The OECD BEPS 2.0 sets out to provide a tax reform framework allowing for more transparency in the global tax environment.

What you need to know about BEPS 2.0: Pillar One and Pillar Two | Tax Section Odyssey — The OECD BEPS 2.0 project is an international effort to reform the international tax system that addresses transfer pricing, profit allocation and tax avoidance.

Advocacy

Comments to Treasury on tax issues of OECD Pillar Two, Feb. 14, 2024

Comments to Treasury on Amount B of OECD Pillar One, Dec. 12, 2023 

Other resources

OECD BEPS — Inclusive Framework on Base Erosion and Profit Sharing

Transcript

April Walker: Hello everyone and welcome to the AICPA's Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a lead manager from the tax section and I'm here today with my colleagues Reema Patel and Lauren Pfingstag. They are colleagues here with me at the AICPA. They are international experts and legislative experts. We'll get into more of that as we're discussing.

I'm also delighted to have with me Cory Perry. Cory is a principal with Grant Thornton Advisors and their national tax office. He's also, and more importantly for our discussion today but probably not more importantly for his day-to-day, the Vice Chair of the AICPA's International Tax Resource panel and Chair of the OECD taskforce. That's what we're going to be talking about today.

If you are a follower and listener of this podcast, you might recall a few episodes ago we did a higher-level background on OECD's tax regimes — Pillar 1 and Pillar 2 — just laying the groundwork. Today we're going to talk more about why we think you need to be familiar with these concepts. Even though for today they may not be relevant for any of your current clients.

We're also going to delve into the political landscape and where we are today and what that could mean for the US tax system related to international tax legislation. Reema, I'm going to let you take it away for the next little bit.

Reema Patel: Thanks, April, Cory, welcome. I know a lot of us have been hearing about the OECD Pillar 1 and Pillar 2 for awhile now. Many countries have also implemented it this year and some are implementing it next year. I guess the most basic question we can start with is, who should care and pay attention to this?

Cory Perry: Absolutely. It's a wide impact in tax, but it only impacts the largest of the large companies. I would say it has a high threshold, 750 million of consolidated revenue and two of the four preceding years and you have to be taxed, want more than one jurisdiction. We are talking about very large companies but these days, even middle market companies are easily starting to bump up against that threshold. We're not just talking about the Fortune 100. We're talking about middle market and above companies that should care and think about these rules.

Obviously accountants that serve those types of companies, those larger companies. I think many of those companies themselves not even be fully aware that they're subject to these rules or may not have fully thought through how they're going to comply. The other thing I would add, there is a bit of a misconception out there that this is a corporate multinational problem. Although that is primarily where it is, it also impacts pass-throughs, partnerships and S corps that are parents within these groups can be equally subject to these rules.

Rules don't always necessarily apply at that level, but they are applied to the group as a whole. I know there's a number of practitioners out there that have clients that have grown over time and might have reached this level. It's by no means going to be the majority, certainly going to be a large minority, but I suspect many will have clients out there that might be impacted or if you're in-house at your company might be impacted.

Reema Patel: Like you said, it is for large corporations currently with consolidated revenues at 750 million euros and more. What are you seeing with the clients right now? Any challenges that they're being faced by technology? Gathering data points? I know you have to comply with many foreign jurisdictions as well as the US. Can you speak a little bit to the challenges that you're seeing just as a practitioner as well as from a client perspective as well for them.

Cory Perry: Absolutely. Companies are really still trying to get their hands around this as are practitioners. Even the rules aren't fully baked. The OECD is still releasing new guidance every couple of months on quite a frequent cadence. So the rules continue to evolve and how companies are approaching it continue to evolve as well. As far as challenges, interestingly enough, from what we're seeing, many companies are not actually seeing larger tax bills.

You'd think tax legislation, tax change like this is going to hit the bottom line and there are certainly companies out there with lower/no taxed pockets of income or that are in low-tax jurisdictions. But what I've found is the vast majority, particularly of middle market companies, are generally not in many of these low-tax jurisdictions, if at all. They are in higher tax jurisdictions, think of the US's top five trading partners- for example, Canada, Mexico, China, and Japan and the UK all have rates above or even some cases well above 15%.

The idea is to reach a minimum level of 15% and once you're above that, there may not be additional top-up tax to be paid. It may not be necessarily for all taxpayers an item that's going to really be a cash tax impact. But where we're really seeing the challenge is more on the administrative and compliance side to this.

It is a very significant undertaking to comply with these rules. It's just a massive effort that's required in order to get your hands around what needs to be done, get your systems updated so that you can comply and collect the information or the data at the right level, clean the data, so on and so forth. There was a lot of complex calculations that need to be done. In some cases there may be even third or four sets of books that need to be kept that you may not have been keeping our tracking in the past.

The rule started out with a simple premise. It was going to be a book tax based on books. That sounds simple. But it quickly evolved into a very complex tax regimes that sits on top of all the other global tax regimes that are already in place. If it wasn't complicated enough before, now we have another layer over the top making it quite complex. That's certainly been the biggest challenge is how do you deal with all of this change and international tax complexity when you're operating across borders.

Reema Patel: Definitely, I guess it just keeps piling all the time. Three sets of books, four sets of books. We don't even have CAMTI [rules] out yet. Speaking of which currently, it looks like, as we mentioned it's for large corporations, but what do smaller firms and CPAs in the industry need to know? I'm sure they're not getting into the nitty-gritty details of how to calculate pillar two taxes and all the top up taxes on different regimes.

But we don't know if the threshold does get lowered, more companies will get pulled in, possibly. What should they know? How can they keep up with and at least be aware that it's out there?

Cory Perry: I think at this point I would say it's more of a client service point. It's being aware of the potential risks in an area where your client might be subject to these rules. I don't expect many firms will have many clients that are going to be impacted. In fact, many firms might not have any clients that are impacted. But it's making that identification and helping those clients understand whether they are impacted. It is getting a lot of press and it's in the Wall Street Journal, it's on NPR in the morning, it's certainly in the mainstream news.

Clients are interested in asking questions about it. It's understanding that it's out there, what it is and who it applies to. I think that's the most important part, I don't expect most smaller firms will scale up or hire experts in this area necessarily. But I think helping those clients with the identification - that's going to be greatly appreciated. You're highlighting a risk area for them that they might not have previously considered. Then helping them find a resource that can assist with this somewhat unique area of tax.

Whether that'd be another CPA firm in the US or more commonly, sometimes these are non-US firms because right now, as we'll talk about later, the US is not implemented these rules that could certainly assist. Again, flagging these as issues, being aware of those thresholds and who it might apply to is probably the area I would focus right now and making sure that your base has been reviewed. And they understand whether they're going to be in or out these rules.

Reema Patel: Definitely. I guess just building on what you said. It's been in the news everywhere. We've also heard in the news — What's the U.S going to do? The US hasn't implemented or enacted any part of pillar two regime yet. Until they do or they don't, the U.S. multinationals are going to have to comply with this. They have to comply in the foreign jurisdictions. They have to comply in the U.S. as well. But there has been limited guidance issued. [There was] a notice earlier in the year, and then the recent proposed regs on dual consolidated losses.

But none of them really went into detail. It was just like scratching the surface. There's a lot of guidance that the U.S. taxpayers need. I know the AICPA's submitted a few comment letters to the OECD, to Treasury and the IRS, and you've been heavily involved in some of them. Do you want to just speak to a little bit on what we highlighted in the comment letters, some of the recommendations and concerns we raised in hoping for some future guidance.

Cory Perry: Sure. You made a good point there with scratching the surface. I think there's a lot of ground yet to be covered by the IRS. As I said earlier, this is a complex system that lays on top of a complex system. The US [tax] system is undoubtedly the most complex tax system out there. There are a number of different interesting and intricate ways in which these two systems interact. The IRS is working diligently, but I think [they are] only beginning to understand where some of these issues and gaps might be in regulation.

They're trying to hit the bigger ones first which they've done with then notice package and the regulations. The notice addressed primarily, but not exclusively, foreign tax credit issues and how the US is going to view these new taxes, really novel taxes that have been created under this Pillar 2 system. And how that's going to interact with the US foreign tax credit system. Then just a week and a half or two weeks ago, they also released proposed regulations dealing with a number of dual consolidated loss issues. One of the major issues they addressed was the Pillar 2 area. The dual controlidated loss rules, those very complex rules, but suffice it to say they are rules that are intended to address double-dipping of losses between two systems.

Really, now that we have this overlay, we have this third system that you have to contend with where losses can be used in the U.S. and in that third system and that makes that already challenging system quite complex. I would say a detailed discussion of our comment letters is probably a little bit weedy for this discussion but I'll give some themes and some areas that we focused on in those comment letters. The first I would say is a call for simplification. That was really our focus with most of our efforts in this space. We asked for exceptions and safe harbors from application of some of these very onerous rules.

We focused on areas where there wasn't much opportunity for abuse but there was a lot of opportunity to save taxpayer's and CPAs time and effort to have to do some of these calculations that might be, in some cases unnecessary. Or you could make various safe harbor type assumptions. We focus on simplification. Clarification was another area where we focused on. There's a lot of gray out there and there will continue to be. But we focused on a few areas of gray within these rules that we had identified that we thought the IRS could add clarity. Beyond those, we also provided some comments, or we're working on some comments, not just to the IRS, but also to the OECD.

There we were focusing on, again, clarification and simplification but with U.S. and multinational corporations in mind. Really the focus is on some of the safe harbors that are out there. There's transitional safe harbors that allow for shortcuts, if you will, that make the work much simpler. But many of those are temporary and they're set to expire in a couple of years and we're making some comments around those. One of them being a request that those be made permanent for taxpayers in an effort to simplify this very complex system.

April Walker: Thanks so much Cory. You did a wonderful job for me. Definitely not an international tax expert by any stretch of the imagination and it was made it easy to understand where we are. I'd like to pivot a little bit now and have Lauren take us away. I don't know if anybody knows but there's an election coming up in a couple of months and so I thought it would be interesting if we would talk about what does our political landscape mean for what the U.S. is going to do around this? Lauren, tell us what you know all around this area.

Lauren Pfingstag: Thanks for inviting me to join the podcast, April. Cory, I think a lot of professional congressional watchers would say in this space that there's going to eventually need to be some action taken by Congress to move Pillar 2 forward. What would that look like right now?

Cory Perry: It's certainly a challenge, I would say in our current environment to move Pillar 2 legislation forward. To give a little bit of background on where it's been. Historically from a political sense, the Pillar 2 rules have been a core aspect of Biden's tax platform. He attempted to move them through the Build Back Better bill a few years ago, that ultimately failed in the Senate. But they remain, and they were in his most recent greenbook, a core part of his plan. I believe they will continue to be a part of the Harris tax platform. I have no reason to believe that will change as well as the Democratic agenda going forward. It has broad support on the Democratic side. The Republicans side historically had support there but more recently they've been openly critical, I'll say of Pillar 2.

They've noted their concerns in public forums and expressed frustrations with the negotiation process. There are certainly some challenges there. It's not impossible that we could see some legislation move forward in the short-term particularly if we had, for example, a Democratic controlled government. If we had a Republican controlled government, I think the chances go down. With that said, there are some other factors on the horizon that could influence this from a political perspective. The Tax Cuts and Jobs Act, tax cuts for individuals expire in the end of 2025, beginning of 2026. Many of the favorable business provisions like the GILTI rate, the BEAT rate, the foreign derived intangible rate, and a variety of others.

Those are just the international ones, but those are set to expire the end of 2025 for tax years beginning in 2026. That sets up an interesting opportunity where perhaps we could see some compromise, maybe a budget reconciliation bill where it's not along party lines, depending on which way the government swings. Obviously, we might need some collaboration there. If we don't have a democratic government, we might see something later in 2026 in terms of legislation. There is a path forward although it does look like a challenging one.

Lauren Pfingstag: Is it true that implementing part of Pillar 2 legislatively would potentially raise revenue over a 10-year budget window? Meaning, if Congress were to move forward with a piece of legislation that put Pillar 2 into play, that they would raise a certain amount of money that could be used to pay for other provisions and a larger let's call it end of year 2025 tax bill?

Cory Perry: Absolutely yes. It would be a revenue raiser. Right now, if it's not imposed, other countries might be taxing the United States under the way these systems operate. Subsidiaries, for example, could be taxed in the U.S. if it's in an effective rate less than 15%. There's certainly revenue on the table and free revenue. If you think about it, you could tax in the U.S. or you could tax it in the foreign country. If we tax in the U.S. first, they're not going to tax in the foreign country. It is a revenue raiser. I think it was scored that way in the Build Back Better bill.

It would certainly be a pay-for those types of extensions of those expiring tax cuts that I mentioned. That's why I think it could be a lever that could be pulled in those negotiations to help further the Pillar 2 legislation in US in exchange perhaps for some of those other items.

Lauren Pfingstag: Particularly if the Democrats, as you said, did win control of the White House, the House and the Senate this November. I think this is more of a note rather than a question, but I think West Virginia Senator Joe Manchin, who was one of the most, if not the most moderate Democrats in the Senate, was instrumental in pulling Joe Biden's vision for Pillar 2 out of the Build Back Better bill. When you look ahead into 2025 and you think through the different Senate races, Senator Joe Manchin is retiring, you no longer have Senator Sinema from Arizona who is retiring.

It's hard to pick out who in the Democratic caucus in the Senate, at least in 2025, could play, or would want to play the role of a Joe Manchin and maybe stripping that out of a democratic tax reconciliation bill if we get to that Democratic trifecta of power. I'll be keeping my eye on that for sure.

Cory Perry: I wholeheartedly agree. Keeping their caucus together was a challenge last time and it seems like it could potentially be easier at least.

Lauren Pfingstag: This is obviously just holistically like a weedy, thorny topic. In my conversations across D.C., I have only met a few people, and I don't count myself among them — who really understand this. It's incredibly complicated and if you were in a room with the tax aides who staff members on the House Ways and Means Committee and the U.S. Senate Finance Committee and you could deliver one or two key messages to them about this, what would you want to tell them and have them relay to their bosses?

Cory Perry: I think there's a couple of key messages and themes here. One, I would say the world is moving forward with or without us in terms of pillar 2. At some point, I think there was thought and perhaps that thought might still exist in some, but I think there was a thought that this wouldn't move forward without the US and some of the larger economies like China and India signing on. But that's shown not to be the case. It's been enacted and legislated in the E.U..

All the E.U. member states have adopted it. There's dozens of countries across the world at this point with many more being added every month. It certainly has broad international support and it's moving forward with or without us. What does that mean? I think that means US multinationals in particular might face some challenges if U.S. doesn't enact legislation.

If U.S. enacts, there is a benefit from that. They would pay the tax most likely at the U.S. level. They'd be able to file returns at the U.S. level. They'd be able to work through the U.S. government to use the information exchange mechanisms to make sure the foreign countries have received the reporting that they need and not to mention it would shut off the under taxed profit rule (UTPR) which is beyond the scope of our discussion today but it's a complex rule. I'd describe it as the backstop rule. Effectively if no other rule taxes that rule comes in and imposes that tax.

If the U.S. doesn't do anything, subsidiaries could be taxing the U.S. As I said earlier, the U.S. profits through that under taxed profit rule, as well as other subsidiaries of the U.S. that the U.S. could tax. There's certainly revenue opportunities that are on the table that seemingly will go to other countries if we don't act. It would also go a long way in simplifying the US's approach to compliance. Because they'll be less of a need to orchestrate the two systems if we adopted one of them and made it part of our law. I think it would be easier to coordinate the two. Just overall for those reasons I mentioned earlier it would make it much simpler for U.S. multinationals in the long run.

Lauren Pfingstag: Thank you for taking again what is a difficult subject and making it digestible. That is a skill and we appreciate it.

April Walker: Yes, I echo those thoughts, Lauren and I'm also incredibly grateful for you joining because you bring a different perspective, Lauren, to this conversation and very fascinating. I was listening on the edge of my seat hopefully everyone else was. And I'm appreciative to Reema. Reema is very well-versed in international tax so I'm grateful for her to be able to ask questions that I couldn't pull off. I'm very appreciative to you Reema. Cory, I'll give you the opportunity to just as we're wrapping up final thoughts on this very heavy weighty topic?

Cory Perry: Just the closing note that I would leave is, if you think you're subject to these rules or you think you have clients that might be subject to these rules don't wait. Engage with your advisors or with your clients now. Review structures and start planning for pillar 2. The sooner that companies and accountants act, the better prepared that the taxpayer will be for the changes that are ahead. There's things that can be done now that will significantly reduce reporting in the initial years, simplify the overall process that may not necessarily be available if you wait. It's coming, it's right around the corner and that should start thinking about it now.

April Walker: Perfect. I would be remiss if I didn't say [you can find] in our show notes a landing page on the AICPA's website where you can find resources and we're continuing to work on those resources. I will put a link to the show notes in there.

Just in final closing, a little bit of a lighter topic. The name of this podcast is Tax Section Odyssey so I'd like to think about us taking a journey together, toward a better profession and in doing so I'd like to get a glimpse of my guest other journeys outside of tax. Cory, tell me a page from your travel journal or a memorable trip or something you'd have on the horizon?

Cory Perry: Sure. I regularly take trips to Taiwan, that's one of my favorite countries to go to. That's where my wife's originally from. We met in college and have been married for many years now, but I have two young boys who love to travel with me, although it's sometimes challenging to travel with them, but I still enjoy it very much. We go to Taiwan usually every year, every other year to visit her family, travel around Taiwan and see Taipei. That is a reoccurring and memorable trip journey.

April Walker: Wonderful. As I'm doing these I like to add to my travel list because I love to travel.

Thanks again, so much I'm so grateful for Cory, Lauren, and Reema. Again, this is April Walker from the AICPA Tax Section. This community is your go-to source for technical guidance and resources designed especially for CPA tax practitioners like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants. You can find us wherever you listen to your podcasts. I encourage you to follow us so you don't miss an episode. If you already follow us, thank you so much and I encourage you to share with your like-minded friends. You can also find us at the aicpa-cima.com/tax, where you can find other Odyssey episodes as well as get access to the resources mentioned during this episode. Thank you again so much and thank you for listening.

Keep your finger on the pulse of the dynamic and evolving tax landscape with insights from tax thought leaders in the AICPA Tax Section. The Tax Section Odyssey podcast includes a digest of tax developments, trending issues and practice management tips that you need to be aware of to elevate your professional development and your firm practices.

This resource is part of the robust tax resource library available from the AICPA Tax Section. The Tax Section is your go-to home base for staying up to date on the latest tax developments and providing the edge you need for upskilling your professional development. If you’re not already a member, consider joining this prestigious community of your tax peers. You’ll get free CPE, access to rich technical content such as our Annual Tax Compliance Kit, a weekly member newsletter and a digital subscription to The Tax Adviser.

In this joint episode, Neil Amato, host of the Journal of Accountancy podcast and Melanie Lauridsen, VP of AICPA Tax Policy and Advocacy discuss two recent Supreme Court decisions.

The Supreme Court ruling in Loper Bright Enterprises v. Raimondo overturned a 40-year-old precedent of deference referred to as the Chevron doctrine, affecting future rulemaking by eliminating the need for judges to defer to agency interpretations of ambiguous statutes. In Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court ruled to alter the statute of limitations for challenging regulations, starting the clock when a plaintiff is injured rather than when the regulation is enforced.

These decisions introduce significant uncertainty for the accounting profession, particularly regarding IRS regulations and long-standing rules and emphasize the need for CPAs to stay informed and adaptable as the implications of these rulings unfold.

 AICPA Resources

Melancon: Supreme Court decisions are ‘big deal’ for tax pros, The Tax Adviser, Aug. 1, 2024

Supreme Court overrules 40-year-old Chevron doctrine, The Tax Adviser, June 28, 2024

Supreme Court decision on Chevron doctrine will affect tax pros, Journal of Accountancy, June 24, 2024

For a full transcript of the episode, see  Tax Section Odyssey on the AICPA & CIMA website. 

On this episode of the Tax Section Odyssey podcast episode, Dave Kirk, National Tax Partner — EY, and Chair of the AICPA’s Pass-through Entity Tax Task Force, discusses the complexities surrounding state tax refunds related to the pass-through entity tax (PTET) and delves into the challenges posed by the lack of IRS guidance, the application of the tax benefit rule and varying state regulations. Dave emphasizes the importance of consistency in handling these refunds and advises practitioners to involve taxpayers in decision-making due to the inherent uncertainties and risks.

AICPA resources

FAQ on the Federal Taxation of State Income Tax Refunds for PTET Payments — FAQ guidance on the federal taxation of state income tax refunds for PTET payments.

AICPA list of taxpayer and practitioner considerations for whether to elect into a state pass-through entity (PTE) tax — Various issues should be considered when deciding whether a taxpayer can, and should, elect into a state PTE tax.

Pass-through Entity (PTE) Taxes States’ Legislation and Tax Authorities’ Information and Guidance — A state-by-state PTE matrix tracking and linking to legislative updates, guidance, as well as other relevant information.

State and Local Tax (SALT) Roadmap and Resource Center — Browse the reference library for the latest guidance and tools to address your state and local tax needs including tax rates, due dates, nexus, PTE tax and more.

Transcript

April Walker: On today's podcast, listen to learn more about how to handle refunds related to the pass-through entity tax.

Hello everyone and welcome to the AICPA's Tax Section Odyssey podcast, where we offer thought leadership on all things tax facing the profession. I'm April Walker, a Lead Manager from the Tax Section and I'm here today with a repeat guest, Dave Kirk. Dave's with National Tax at EY. He is the knower of a lot of things, but specifically today we're going to talk about PTET.

Dave, let's start off with, I think when we chatted before, we talked about pass-through entity tax fun with that, we're delving into a very specific issue related to it. Let's first talk about the challenges. There are so many challenges around this, the lack of guidance around PTET, but today we're going to talk about refunds and there isn't guidance really. How has that impacted our practitioners?

Dave Kirk: First of all, thanks for having me again. Being the leader of the PTET Task Force for the AICPA and having to deal with this for E&Y nationally, I've probably spent 500 hours of my life on this that I'm not getting back. It's just that each state is different. You could probably group states together. It usually requires a case-by-case analysis on how the deduction was taken, when the deduction was taken, and how much money the taxpayer is getting back.

The [IRS] Notice 2020-75 only talked about taking the deduction. There was not one word in that notice talking about refunds. You're right, April, there is no formal guidance from the IRS on PTET refunds. But this is also not the first time in US history where a state government has given money back to a taxpayer. Our federal tax system, as we currently know, it has only been around for 110 years or so. We do have guidance scattered throughout that last century of payments of taxes, deductions for taxes and recoveries. You might call it the common law of refunds that we would use in the absence of anything specific coming out of the government on how to deal with this.

Walker: Tax benefit rule, right? It's been around for a little bit.

Kirk: Yeah. There's two aspects of the tax benefit rule. There's the exclusionary aspect of it, and that's been codified about 40 years ago into Sec. 111 of the code. Then there's also the inclusionary aspect which kind of says, hey, you got a benefit for a payment back in a prior year and you have got that payment returned. That should be something, that should be Sec. 61, gross income. But where the complexity arises is, first of all, you can tell whether something is taxable or not taxable based on whether you got a benefit for it in a prior year.

Okay, great. That's relatively straightforward, and I say relative with some emphasis there. But then you'd go down a very slippery slope really quick once you do determine that a PTET refund is taxable, because then you have to ask yourself, what characteristics does that taxable refund have? That is a morass that I don't think that the government ever really envisioned. I'm not envisioning any sort of guidance coming out of the government within the next 12 months on this.

Walker: The last count, we have 50 states. Like you said, you can group them maybe, but each state was allowed with the IRS notice to develop their own regime which causes all kinds of fun. Which again, we won't get into specifically today.

But like you said, it seems like we could the tax benefit rule and thoughts around that, or how we are going to try to provide some assistance to you with a resource that's been developed. You mentioned that you are the Chair of the AICPA Task Force for PTET. We thank you so much for all the things you do for the AICPA. In doing that, you guys have developed some really helpful FAQs around different nuances, some examples or some summary activities that can happen. Let's provide our listeners with some of the key takeaways from those FAQs.

Kirk: First, states matter, and who's getting the refund matters. If you're an S corp and let's just keep this simple that you have at dentist that owns an S corp. That S corp makes $1 million and it owes PTET at the S corp level of say, $80,000. What you do assuming cash basis and assuming you pay the exact amount of PTET on December 31st, that you can deduct it. Your K-1 line 1 should be $920,000. You are going to get a credit on your local state return of $80,000. In a vacuum, you should not have a state liability equal to or greater than or less than the $80,000. In a perfect world, that's how the system works, and that's probably about as complicated as the system was ever supposed to be in the eyes of the IRS.

But you know that no one ever hits their tax liability at 100 percent. You might hit by 99, 98% or 101 or 102%, but you're never exactly on the dollar. First is the S-corp. If you thought that you owed $80,000 and you made that payment in December of 2023. Cash basis taxpayer, you reduced your K1 income by the $80,000. But when you get around to filing your return and you only owe $79,000, when the S-corp files the PTET return, the S-corp is overpaid $1,000. That should be income back to the S-corp because in 2023 they deducted 80,000.

They only should have deducted 79k and so they get it back. In a vacuum, next year, I'm going to have $1,000 of income on my K1 that I wouldn't have otherwise had if I wasn't in this PTE regime. Simple. Now if I deducted it on the front page of the return because I'm just offsetting my dental practice income or whatever it is, that PTET payment is no different than rents or salaries or insurance or whatever it is. Ok fine. So when I pick it up, that $1,000 refund in the next year, that should also be similar to my dental practice income, it's simply reversing a deduction.

If that amount is, if I say for example, reduced passive income, maybe I'm a part owner of a dental practice that I don't practice anymore and I'm passive. Then that should come through as passive income to me because last year the deduction was probably a passive deduction. Or if I was in a business that generates QBI, qualified business income, under 199A and I deducted PTET against it last year. If it reverses, then it feels like the right answer should be it's 199A income, good QBI when I pick up my refund.

But that is where the inclusionary aspect of the common law tax benefit rule would come into play. You think about it in the same way of self-employment income. Is if a partnership that you were in your subject to self-employment income on the Line 1 and your PTET deduction reduced Line 1, and that amount is refunded to the partnership, or some portion of that was refunded back to the partnership in year 2, that should probably be self-employment income. Just because the deduction reduces self-employment, you'd think that the income should increase self-employment. That's at the entity level.

But then you have to think, going back to my original example, my dental practice made a million dollars and paid $80,000 of PTET. I turn around and I file my personal return and because of credits or dependent exemptions or whatever it is, I owe only $76,000 on my 1040, on state version of my 1040. I'm going to get $4,000 back from the state. Then the question is, what is that? I first start with the concept of I have $4,000 and so Section 61 says that's income, I'll live with that.

Then I go to Sec. 111 and said, do I have a benefit from a prior year or do I not? If I don't have a benefit in a prior year, then this income shouldn't be income so it would probably be excluded by [Sec.] 111. But because they took the $4,000 of a deduction on the front page of the 1120-S, it reduced my K1 number. I did get a benefit even if I had an NOL that I could use and I didn't pay any tax on a prior year. It just means I used less NOL. Or that if it was passive income and I had passive losses that would be able to offset, but it would still be income to me.I still got a benefit even though I had other personal attributes that minimized that income, it would still be income.

It's much harder though, to think about, look, I am getting this refund and should a state refund be QBI? Because it came from the state, it didn't come from the entity like in the first part of our discussion, should it be self-employment income? That's never been the case before that a state tax refund is self-employment income. That's just weird because itemized deductions for state taxes were never self-employment because you'd never got to deduct them from self-employment. You have all of these character questions.

But that is simple when you're looking at the individual and the entity in a vacuum, and that's where we started that I'm a dentist, I own 100 percent of an S-corp and that's all I have. But as soon as I start injecting other things such as a spouse with W2 withholding or estimated payments that are made at my 1040 level or composite returns that I'm filing in other states and getting out-of-state tax credits on my local return. That gives rise to the question of if I get money back from the state, is it really the PTE credit that I am getting back or am I getting back my estimated payments? Or am I getting back my W-2 withholding or my spouse's W-2 withholding? That part, what is it, is a question that we've never really had to wrestle with in the last 100 years because taxes were always deductible in prior years, prior to TCJA.

Yes, we had the AMT system and everyone knew how to do that calculation of how much of the taxes puts you in an AMT and did you even get a benefit at all? But the composite taxes, the withholding taxes, estimated payments, they were all treated the same. But now you have this special class of tax credit, deemed tax payment, whatever you want to call it, that, is almost like a hydra with multiple heads of, what is it?

In the FAQs, basically say, "Look, we think that absent any guidance specifying that certain items come first, that you pick a method and you stick with it year over year." A duty of consistency. If you want to take the position that every dollar of refund first comes from estimates and withholdings. Basically your Schedule A, taxes that are capped at 10K. Then chances are those coming back to you will not be taxable because you capped out at the 10K and you never got a benefit under the tax benefit rule. Another alternative is to say that the PTE credit comes back first, but that would almost certainly be taxable if it was deducted on Schedule E or are embedded in Line 1 of a K-1. That's probably not very common for people to take that position.

But the other one would be, look, if you have $80,000 of PTET credit and you have 20,000 of withholding than $0.80 of every dollar coming back could be taxable and 20% would be associated with the withholdings or whatnot. Maybe that would not be taxable. That would be like a pro rata method. But absent guidance, it's Choose Your Own Adventure. Just don't get eaten by the dragon at the end.

But that's what we're instructing our folks inside of E&Y is to just be consistent and let the taxpayer in on the discussion. Don't make unilateral decisions on their behalf. And let them know that there is uncertainty, there is risk, and that the IRS may disagree on taking estimates first and whatnot. That they should to the extent that they are running into this problem. That if I know that my PTET is being overpaid at my partnership or S corporation level, then I should take corrective measure at my personal level either, by reducing estimates or trying to ratchet down withholding of my spouse on her W2 or his W2 to try to make sure that you're not overpaying too much because you're still giving interest-free loans to your state and local governments and that still doesn't make any sense.

Walker: That's a great summary of what's included and the different situations that we go through [in the FAQs]. But consistency, I think, is a good rule. Also, if we note the fact that the IRS hasn't and likely will not put out any guidance on this. I think it's really interesting that here we are in the middle of 2024 and TCJA is scheduled to sunset at the end of 2025 and we're dealing with this. It may become a moot point, but it's still very important that people are just really wrestling with this very complex issue and without guidance, it's hard to make a plan.

Kirk: I think the IRS is keeping their fingers crossed, that the SALT cap expires and the TCJA and PTE regimes will just expire and everyone will go back to itemized deductions. I'm not sure that's in the cards, because even if the SALT cap goes away and that itemized deductions are fully allowed for taxes, just like was in pre-TCJA land. The PTET regime is still beneficial from an AMT perspective. I wouldn't be the least bit surprised that you're going to have maybe state societies and taxpayers and the likes start lobbying their state governments in the next year to extend the PTE regime past 2025, make it permanent.

Because of the AMT benefit, regardless of what happens in Congress on the cap. Whether cap goes away, cap goes up, cap stays where it is, whatever. Because the people on the coasts, the high-net-worth individuals on the coast and in the highest tax states, California, Oregon, New York, New Jersey, Connecticut, Massachusetts. You all know where you are, Illinois, whatever, that taxes and 2% miscellaneous were the ones that put you in AMT to start with. The fact that you could get their local governments to go along with this, I don't think that this topic is going away for taxpayers or the IRS. I think that both sides, both taxpayers and the IRS need to I would say wake up to this. This is something that's in my mind here to stay for the long term.

Walker: I don't know if that's good news or bad news. I'm not sure how I feel about that. It is news. That's what we're here, is to let people know. Here's something you need to not bury your head in the sand about. Any other final thoughts as we're wrapping up? Dave, any advice?

Kirk: Advice is that it is a lot more complicated than people appreciate. That I know I've heard certain preparers, usually it's smaller firms, really small. Just say that this stuff it's not taxable if the state doesn't give you a 1099-G. The 1099-G has nothing to do with whether something is taxable or not. The taxability of something landing in a checking account, direct deposit, or via check. The default position is it's taxable unless you can tell me why it's not. That's always been the case in the code. I think that's the way people need to approach it. Start with taxable and let's figure out a way for it not to be.

Walker: Great. That's good final advice for everyone. Dave, in closing on these podcasts you've been with me before, but I like to think about us taking a journey. We're the Tax Section Odyssey, we're taking a journey toward a better profession. But I also like to hear about my guest other journeys outside of the world of tax. I do have some insider information — I know you were just on a trip, do you want to share something about that. How did that go?

Kirk: We just got back a couple of days back from 16 days in Alaska. We flew into Fairbanks, took the train down to Denali and then carried on down to Anchorage, and then got on a ship and made it all the way down to Vancouver.

Walker: Nice.

Kirk: I expected a lot of strange things to happen, maybe be chased by a moose or something like that. But what I didn't anticipate is when I took the train from Fairbanks down to Denali, that a spark shot off the train and started a forest fire at the entrance of Denali. Within two hours of us getting to the entrance to the park, the forest fire had spread to such a point where it burned all the power lines and the park had been is now I think just opening up after being closed for about two weeks. Ironically, I've been to the entrance point of Denali twice in my life and I've never actually been able to make it into the park. That gives me a reason for a third time to return to the interior of Alaska.

Walker: Yes. I like your positivity there, rather than taking it as maybe you don't need to go back to Alaska. I don't know. I hope you were able to experience some of the loveliness of Alaska even though you weren't able to get into Denali.

Kirk: Oh, it's beautiful. For those that like the outdoors. It truly is a magical place.

Walker: Wonderful. Thank you again so much, Dave. I hope this was helpful and good information for our listeners. It certainly was for me.

Kirk: Thank you for having me again, do it anytime.

Walker: Thanks. Again, this is April Walker from the AICPA Tax Section. This community is your go-to source for technical guidance and resources designed especially for CPA tax practitioners like you in mind. This is a podcast from AICPA and CIMA together as the Association of International Certified Professional Accountants. You can find us and listen wherever you find your podcasts and please follow us so you don't miss an episode. If you already follow us, thank you so much and please feel free to share with a like-minded friend. You can also find us at aicpa-cima.com/tax, and find our other Odyssey episodes, as well as getting access to the resources mentioned during this episode, specifically the FAQs that were the focus of our conversation today. Thank you for listening.

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