vdichiac wrote:The notice doesn't say shareholder, the way it does in the regulation. And 267(c)(5) doesn't consider a constructive owner as identical to an actual owner. It's no more contrived than the IRS position. Yes, this issue has been beaten to death, but it's not over. Many expect Congress to correct this, and if not Congress, courts.
Congress is the only hope for an Owner ERC "fix" or exception. The tax code is the law. In this area the law is clear and unambiguous (even if it is complex to get the the result). There is no basis for a court to determine otherwise. A court can't do a thing about it.
Here is Justice Thomas in the Supreme Court Case of CONN. NAT'L BANK v. GERMAIN(1992):
We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. See, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 -242 (1989); United States v. Goldenberg, 168 U.S. 95, 102 -103 (1897); Oneale v. Thornton, 6 Cranch 53, 68. When the words of a statute are unambiguous, then this first canon is also the last: "judicial inquiry is complete." Rubin v. United States, 449 U.S. 424, 430 (1981); see also Ron Pair Enterprises, supra, at 241.
Anyone out there saying "It's up to the court to decide" on Owner ERC - well, they are just trying to save face in front of their CPE audience because they ignored the Owner ERC problem when it came to light early in the year. Only Congress can give us an exemption now. I doubt they will get it done. It's not in the infrastructure bill or the tax texts that came out of the Ways & Means committee this week. In fact, they added two NEW references to 51(i)(1) for related party disallowance in other areas (this is the reference which killed Owner ERC btw). So my hopes are not high at this stage.