Michael Waalkes and Melissa Wiley were cited in a recent Tax Notes column titled “Listed Transactions and the Trump Administration — What Happens Now?”
Stephen J. Olsen, the faculty director of the Graduate Tax Program at Villanova University’s Charles Widger School of Law and a partner at Gawthrop Greenwood PC, examines the Eleventh Circuit’s 2024 opinion in Green Rock LLC v. IRS, which invalidated IRS Notice 2017-10, 2017-4 IRB 544, which classified certain syndicated conservation easement transactions as listed transactions. The Eleventh Circuit’s opinion concluded that the Notice should have been issued pursuant to the Administrative Procedure Act’s notice and comment rulemaking process; because the IRS had failed to do so, the Notice was invalid and not binding on the taxpayer. The IRS subsequently agreed to abide by the ruling.
Olsen cites an article written by Michael Waalkes in the CPA Journal, “Navigating The Unsettled Listed Transaction Landscape,” published shortly before the Eleventh Circuit’s ruling in Green Rock LLC. Olsen writes:
“As [Michael’s] article indicates, after 2022, the IRS and Treasury started identifying listed transactions in proposed regulations that went through the notice and comment procedures. This more conservative approach ensured that those identified transactions would not suffer the same fate as the transactions identified in the notices, thereby moving the assertion of the penalty past the APA objection and onto more substantive issues. … He essentially said the victories likely would not change much for practitioners, as the IRS would likely just issue regulations to cover all the listed transactions in the prior notices. Practitioners should consider disclosing to eliminate any risk of retroactive disclosure or the statute of limitations being tolled. It is possible that would occur even if the transaction had not yet been identified as a listed transaction.”
Olsen goes on to note that, in the IRS’s Action on Decision (AOD) on Green Rock LLC and a related ruling, the agency had stated that it would not only comply with the rulings, but would also concede or abate penalties related to listed transaction disclosure and reporting requirements that it had previously asserted in ongoing cases.
Citing a LinkedIn post from Melissa Wiley, Olsen writes that she pointed out that the statute of limitations on refunds for penalties remains open for some tax years. As Melissa observed, “Importantly, it also appears that taxpayers that paid such penalties and still have an open statute of limitations can (and arguably should) seek a refund of those penalties.” But she went on to note that the IRS had not updated its webpage to remove listing notices that are no longer considered valid.
Read the full article here.
About Melissa Wiley
With more than 20 years of experience in tax law, Melissa has represented a diverse range of clients, from large corporations to high-net-worth individuals, in complex disputes with federal and state taxing authorities. Known for her calm, empathetic style, Melissa excels at distilling intricate tax controversy topics into clear, actionable insights — helping her clients efficiently resolve disputes and focus on what matters most in their businesses and lives.
About Michael Waalkes
Mike focuses his practice on civil and criminal tax controversy matters. Prior to joining the firm, he served for two years as a judicial law clerk for Judge Joseph W. Nega of the United States Tax Court. Mike received his J.D. and LL.M. in taxation from Boston University School of Law.
