Much Uncertainty About Uncertain Tax Positions

The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken on their tax returns unless it is more likely than not that the IRS would fully concede the issue prior to litigation if it arose during an audit.The article describes the proposals and then discusses concerns and open issues. The most significant concerns include that, as a practical matter, information asymmetry may result in overly aggressive positions taken by the IRS and the IRS may not have the administrative capacity to use the additional information properly. The proposal also raises concerns about privilege and waiver, particularly with respect to the work-product doctrine and tax accrual workpapers