The ABA comments that if the final TSDA does contain a "significant purpose" standard in its "tax shelter" definition, then the test should also include a second prong.
The ABA's indicators improve the draft TSDA whether or not the "significant purpose" standard is maintained in the final TSDA.
The draft TSDA provides for an enhanced penalty equal to forty percent of an understatement in tax due to a tax shelter.
As such, the final TSDA should tighten the rules regarding penalty application by narrowing the methods that taxpayers currently use to eliminate the penalties with opinion letters.
66) The draft TSDA provides that a taxpayer may only rely on a "more likely than not" opinion letter to eliminate the new forty-percent penalty where the tax advisor writing the opinion is not a "disqualified tax advisor" (67) and the opinion is not a "disqualified opinion.
Section 101 of the draft TSDA defines a "disqualified tax as a tax advisor (69) who:
The commentators support the position that the draft TSDA opinion writing provisions should be altered.
The AICPA has several concerns about the language used in this section of the draft TSDA.
Instead, the Tax Council comments that a taxpayer should be able to reasonably rely on an opinion where there is "substantial authority" for the position taken in the opinion and a broader definition of "substantial authority" should be applied than the draft TSDA appears to allow.
The NYSBA, however, does not comment on the "disqualified tax advisor" or "disqualified opinion," (96) Rather, the NYSBA comments that even if all of the conditions of the draft TSDA are met, they advocate that the taxpayer still suffer a twenty-percent penalty if the transaction is deemed a "tax shelter.
The commentators are correct that the opinion-writing provision of the draft TSDA should be altered to better focus the language on advisors and opinions that are not independent.
The purpose of the TSDA creating the "disqualified tax advisor" and "disqualified opinion" classes is only served if the taxpayer still has a proper means of relying on qualified tax advice.