Compensation Received by Human Egg Donor Not Excludable Under IRC §104

Nichelle G. Perez v. Commissioner; 144 T.C. No. 4, Filed January 22, 2015

“Both parties agree that payments Perez received were not for the sale of her eggs. Perez argues that they were in exchange for the pain, suffering, and physical injuries she endured as part of the egg-retrieval process; the Commissioner, on the other hand, argues Perez was simply compensated for services rendered.


We conclude by noting that the result we reach today by taking a close look at the language and history of section 104 is also a reasonable one. We see no limit on the mischief that ruling in Perez’s favor might cause: A professional boxer could argue that some part of the payments he received for his latest fight is excludable because they are payments for his bruises, cuts, and nosebleeds. A hockey player could argue that a portion of his million-dollar salary is allocable to the chipped teeth he invariably suffers during his career. And the same would go for the brain injuries suffered by football players and the less-noticed bodily damage daily endured by working men and women on farms and ranches, in mines, or on fishing boats. We don’t doubt that some portion of the compensation paid all these people reflects the risk that they will feel pain and suffering, but it’s a risk of pain and suffering that they agree to before they begin their work. And that makes it taxable compensation and not excludable damages.

Because Perez’s compensation was not “damages” under section 104(a)(2), we must rule against her on the main issue in the case.”


Section 25A American Opportunity Credit: Tuition Payment made in 2010 for Spring Term 2011 Deductible In 2010.

John Mark Ferm et ux. v. Commissioner; T.C. Summ. Op. 2014-115; Filed December 30, 2014

The taxpayers made three payments to an educational organization toward the spring 2011 charges: $2,150.85 received on December 28, 2010; $50 received on January 3, 2011; and $165.45 received on May 6, 2011. They sought a credit under IRC § 25A. The Court held that the payment made December 28, 2010 was deductible only in tax year 2010 not 2011.

“We realize that the statutory requirements may seem to work a harsh result in a case such as this where a four-day delay in making the December 28, 2010, payment would have engendered a different result. However, the Court must apply the statute as written and follow the accompanying regulations when consistent therewith. Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986).”



IRS Revises Publication 971 on Innocent Spouse Relief.

The IRS recently revised Publication 971 to update it advice on innocent spouse relief under IRC § 6015. The publication takes into account changes first described in Revenue Procedure 2013-34.

“The Internal Revenue Service has issued Revenue Procedure 2013–34, available at–34_IRB/ar07.html. This revenue procedure expands how the IRS will take into account abuse andFinancial control by the nonrequesting spouse in determining whether equitable relief is warranted. It alsobroadens the availability of refunds in cases involving deficiencies.”

Hobby Loss Rules of § 183 Preclude Deductions from Cattle Operation.

Raymond E. Gardner et ux. v. Commissioner; T.C. Memo. 2014-148, Filed July 28, 2014

In a long and detailed analysis of the taxpayer’s cattle operations the Tax Court found that the taxpayers did not have a profit motive and disallowed all deductions associated with their cattle operations under IRC § 183. As is typical in cases like the Court applied the nine factors described in Treasury Regulation § 1.183-2(b).

“Section 1.183-2(b), Income Tax Regs., contains a nonexclusive list of objective factors to be considered in deciding whether an activity is engaged in for profit. The factors are: (1) The manner in which the taxpayer carries on the activity; (2) the expertise of the taxpayer or his advisors; (3) the time and effort expended by the taxpayer in carrying on the activity; (4) the expectation that assets used in activity may appreciate in value; (5) the success of the taxpayer in carrying on other similar or dissimilar activities; (6) the taxpayer’s history of income or losses with respect to the activity; (7) the amount of occasional profits, if any, which are earned; (8) the financial status of the taxpayer; and (9) elements of personal pleasure or recreation. Sec. 1.183-2(b), Income Tax Regs. No single factor is determinative.”

The Court found that factors number 5 and 6 were neutral, the Commissioner prevailed on all other factors except for number 9. Of this factor the Court said, “[r]aising cattle generally lacks significant recreational aspects.”



Same-sex Spouse Refund of Federal Income Taxes Paid on the Spousal Health Coverage

UIL: 106.00-00 June 27, 2014

In a letter to Congressman Welch the IRS provided guidance on how to apply for refunds associated with federal income taxes paid on the spousal health coverage:

Dear Congressman Welch:

I am responding to your inquiry dated January 22, 2014, on behalf of your constituent. She added health coverage for a same-sex spouse under her employer’s health plan in November 2013. The value of health coverage for the same-sex spouse was included in the constituent’s gross income on her Form W-2, Wage and Tax Statement, for 2013. The constituent asked how she can subtract the value of this spousal coverage when filing her 2013 tax return.

Accordingly, your constituent may be entitled to a refund of any federal income taxes paid on the value of spousal health coverage under the employer’s health plan, provided that the spouse is the constituent’s legal spouse under Revenue Ruling 2013-17.


Your inquiry states that the value of the spousal health coverage was reported as taxable wages to the constituent on Form W-2. To exclude such amounts, the constituent should take the following steps:

First, contact the employer and request a corrected Form W-2 that does not include the value of any excludable spousal health coverage in taxable wages.

If the employer issues a corrected Form W-2, your constituent can then use the amounts reported on the corrected Form W-2 when filing a tax return.

If the employer does not issue a corrected Form W-2, the constituent should file Form 1040, U.S. Individual Income Tax Return, using the original Form W-2 from the employer and should also attach Form 4852, Substitute for Form W-2, Wage and Tax Statement, or [for] Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., which I am enclosing with this letter. Your constituent should also take the following steps when completing Form 4852 and Form 1040:

On Form 4852, check the box indicating that the taxpayer received an incorrect Form W-2 for 2013.

Subtract the value of any excludable spousal health coverage from the taxable wages reported in Box 1 of Form W-2 and list this result on line 7(a) of Form 4852.

Subtract the value of any excludable spousal health coverage that was included in Medicare wages reported in Box 5 of Form W-2 and list this result on line 7(c) of Form 4852.

If your wages were subject to social security tax, as a general rule, list on line 7(b) of Form 4852 the lesser of $113,700 or the amount listed on line 7(c) of Form 4852. If your wages were not subject to social security tax, list on line 7(b) of Form 4852 the amount of social security wages reported in Box 3 of Form W-2.

Copy the amounts reported on Form W-2 to the appropriate places on lines 7(d) through (j) of Form 4852.

Complete line 9 of Form 4852 explaining that the amounts reported on Form W-2 included the value of excludable spousal health coverage and that these amounts have been excluded on Form 4852 as permitted by Rev. Rul. 2013-17 and Notice 2014-1. Also explain how the value of excludable spousal health coverage was determined (for instance, by referring to the amount reported as taxable health coverage on paystubs).

Complete line 10 of Form 4852 explaining all steps taken to request a corrected Form W-2 from the employer.

When completing Form 1040, use the amounts listed on Form 4852 instead of the amounts listed on Form W-2.

Sign and date Form 4852 and Form 1040.

Attach Form 4852 and Form W-2 to Form 1040 in accordance with the instructions for Form 4852.


New Form 1023-EZ for Most Small 501(c)(3) Organizations

IR-2014-77, July 1, 2014

“WASHINGTON — The Internal Revenue Service today introduced a new, shorter application form to help small charities apply for 501(c)(3) tax-exempt status more easily.

“This is a common-sense approach that will help reduce lengthy processing delays for small tax-exempt groups and ultimately larger organizations as well,” said IRS Commissioner John Koskinen. “The change cuts paperwork for these charitable groups and speeds application processing so they can focus on their important work.”

The new Form 1023-EZ, available today on, is three pages long, compared with the standard 26-page Form 1023. Most small organizations, including as many as 70 percent of all applicants, qualify to use the new streamlined form. Most organizations with gross receipts of $50,000 or less and assets of $250,000 or less are eligible.


The Form 1023-EZ must be filed using, and a $400 user fee is due at the time the form is submitted. Further details on the new Form 1023-EZ application process can be found in Revenue Procedure 2014-40, posted today on”

Comment: Many taxpayers belong to small non-profit organizations such as garden clubs, school auxiliaries, and the like. Failure to register as an exempt organization exposes individuals to tax liability for the income received by those organizations including dues and proceeds from fund-raisers. The new Form 1023-EZ will allow much easier compliance with the law of tax exempt organizations for those groups.




S. 2347, the Multi-State Worker Tax Fairness Act of 2014, Sen. Richard Blumenthal, D-Conn., Would Restrict Application of States’ Income Tax Laws as Applied to Nonresident Workers.

May 14, 2014


This Act may be cited as the “Multi-State Worker Tax Fairness Act of 2014”.


(a) IN GENERAL. — Chapter 4 of title 4, United States Code, is amended by adding at the end the following:

Ҥ 127. Limitation on State taxation of compensation earned by nonresident telecommuters and other multi-State workers

“(a) IN GENERAL. — In applying its income tax laws to the compensation of a nonresident individual, a State may deem such nonresident individual to be present in or working in such State for any period of time only if such nonresident individual is physically present in such State for such period and such State may not impose nonresident income taxes on such compensation with respect to any period of time when such nonresident individual is physically present in another State.

“(b) DETERMINATION OF PHYSICAL PRESENCE. — For purposes of determining physical presence, no State may deem a nonresident individual to be present in or working in such State on the grounds that –

“(1) such nonresident individual is present at or working at home for convenience, or

“(2) such nonresident individual’s work at home or office at home fails any convenience of the employer test or any similar test.