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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Proposed Rules 7508Ad1, however, provides that this mandatory 60-day postponement period shall be disregarded in the same manner as a period specified under section 7508Aa. Section 7508Aa is not self-executing. Rather, it requires the Secretary to determine whether a taxpayer is affected by a Federally declared disaster for purposes of section 7508Aa, whether any time-sensitive tax acts are to be postponed for such taxpayers, and the duration of such postponement. Section 7508Ad1s reference to section 7508Aa thus requires a determination by the Secretary of the time-sensitive tax acts, if any, to be postponed under section 7508Aa. Therefore, these proposed regulations provide that the Secretarys determination under section 7508Aa of the acts subject to postponement due to a Federally declared disaster is an essential prerequisite to determining the acts to which the mandatory 60-day postponement period applies with respect to that Federally declared disaster for qualified taxpayers.
There are circumstances when the Secretary has chosen to limit the extent to which the discretion to postpone time-sensitive acts under section 7508Aa might otherwise be exercised.
For example, section 7508Aa1
through its reference to acts described in section 7508a1 lists several time sensitive acts performed by the IRSnot by taxpayersthat are available for postponement in the event of a Federally declared disaster, including the assessment of any tax, making of notice and demand for payment of any tax, collection of any tax, and initiating litigation with respect to any tax liability. Although all of these acts can be postponed under section 7508Aa in the same manner as time-sensitive acts performed by taxpayers, the Secretary rarely chooses to postpone them. Over the past 20 years, time-sensitive government acts were only postponed under section 7508Aa in connection with four Federally declared disasters:
the September 11, 2001 terrorist attacks Notice 200168, 200147 I.R.B. 504, Hurricane Katrina Notice 200566, 200540 I.R.B. 620 and Notice 200581, 200547 I.R.B. 977, Hurricane Rita Notice 200582, 200547 I.R.B. 978, and the COVID19 pandemic Notice 202023, 202018 I.R.B. 742. The statutory text of section 7508Ad provides no indication that Congress intended to postpone all time-sensitive acts for which relief potentially could be provided under section 7508Aa, including those acts due to be performed by the government with respect to a qualified taxpayer. It has
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generally not been the practice of the Secretary to exercise all of the authority given under section 7508Aa to postpone all time-sensitive government acts with respect to taxpayers affected by a Federally declared disaster.
The Secretary generally also chooses not to exercise the discretion under section 7508Aa with respect to many time-sensitive acts carried out by taxpayers. For example, section 7508a1AB and section 7508Aa1 combine to provide, among other things, that the Secretary has the discretion to specify a period of up to one year that may be disregarded in determining whether an affected taxpayer with respect to a qualifying disaster has timely filed any return of income tax or paid the United States any employment or excise taxes. The Secretary may exercise the discretion under section 7508Aa to not provide postponement periods for the filing of certain information returns with respect to income, such as Forms W2 Wage and Tax Statement and forms in the 1099 series. These information returns with respect to income are required by most income tax filers in order to timely prepare their own income tax returns, such as Forms 1040 U.S. Individual Income Tax Returns or Forms 1120
U.S. Corporation Income Tax Returns.
These information returns may also be used by the IRS to verify withheld amounts that were claimed on an income tax return before tax refunds are issued. As a result, for tax administration reasons, the Secretary generally does not postpone the timesensitive acts of filing and furnishing these information returns, except for certain information returns relating to individual retirement accounts IRAs and certain other tax-exempt accounts.
Finally, the Secretary may choose not to provide any relief under section 7508A in response to a Federally declared disaster. For example, when a disaster is eligible for assistance that is limited to only the clean-up of public property or other short-term public services, the Secretary may determine that relief is not warranted under section 7508A.
For the foregoing reasons, these proposed regulations provide that the phrase, shall be disregarded in the same manner as a period specified under section 7508Aa in section 7508Ad1 first requires the Secretarys exercise of discretion under section 7508Aa to specify the postponed set of time-sensitive acts for taxpayers and potentially for the government during the entirety of the postponement period under both section 7508Aa and d.
Accordingly, if the Secretary determines
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not to postpone a time-sensitive act pursuant to the discretionary authority under section 7508Aa, that act will also not be postponed under section 7508Ad. Similarly, if no time-sensitive acts are postponed under section 7508Aa, then none will be postponed under section 7508Ad.
II. Calculation of the Mandatory 60-Day Postponement Period The earliest and latest incident dates referred to in subsections 7508Ad1AB for a Federally declared disaster are the dates for these events set forth in the declaration establishing the Federally declared disaster for purposes of section 7508A.
In the circumstances where there is a certain event with an incident date or incident dates stated in the declaration, as described in Examples 13 of the proposed regulation, the period described in section 7508Ad1 will generally run concurrently with the discretionary periods specified by the Secretary under section 7508Aa or b, when the postponement period provided by the Secretary is equal to or greater than 60 days. As explained previously, the postponement period provided by the Secretary is generally 120 days. If the postponement period provided by the Secretary is less than 60
days, then section 7508Ad would apply to provide a mandatory 60-day postponement period, running concurrently with the Secretarys postponement period at the start, and then after the period prescribed under section 7508Aa ran out, the mandatory period under section 7508Ad would continue to run for the remainder of the 60-day period.
In flooding, wildfire, or earthquake disasters, it is not unusual for FEMA
initially to issue a major disaster declaration with no known end date for the disaster incident period. However, insofar as Congress could have been aware when section 7508Ad was enacted, these open-ended disaster incident periods were generally resolved with the addition by FEMA of a closing date within a short time usually less than 60 days after the first reported incident date. Also, it is clear from the legislative history that Congress did not anticipate a situation such as a pandemic or drought, where the beginning date and end dates are not clear, or a situation where the declaration does not specify an incident date.
Ambiguities in applying section 7508Ad arise when the incident date is specified in the declaration as beginning on a certain date but remaining open-ended for an extended
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