Several recent court decisions analyze whether certain arrangements meet the requirements for upper management status under the Employee Retirement Income Security Act (ERISA). ERISA includes an exception from many requirements for certain unfunded plans “primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees,” the so-called “top hat exemption.”

In an article in the Journal of Retirement Planning, Andrew L. Oringer and Stacy L. DeWalt discuss the new top hat cases and show why employers should review their plans in light of these decisions.

In between publicly traded and private REITs is a class of REITs that conducts public offerings of equity securities registered with the SEC and the states. These REITS file reports with the SEC, but do not trade on any exchange. These instruments are referred to as public nontraded REITs. These REITs generally have the opportunity to utilize the “temporary investment of new capital” exception under the IRC in a robust manner not typically available to publicly traded REITs, while continuing to remain exempt from registration under the Investment Company Act.

In an article in the Journal of Taxation of Financial Products, Robert H. Bergdolt and Robert J. Le Duc provide an overview of the securities and tax environment in which a public nontraded mortgage REIT must operate, and a summary of certain advantages that these REITs have over their publicly traded counterparts.

While generally prospective, the new final dual consolidated loss regulations (the 2007 regulations) include several rules that apply to prior years or prior-year DCLs. This overlap means that some taxpayers may have to choose between applying the 1992 regulations or the 2007 regulations for their 2007 tax year.

In an article in the International Tax Journal, Irwin Halpern and Chris Trump show how these rules present immediate opportunities but also include traps for the unwary.

A so-called “30-day” letter from an IRS agent apprising a taxpayer of an increased tax liability raises questions as to the appropriate response. William P. Wiggins, in an article in the Journal of Tax Practice and Procedure, describes the art of preparing a successful formal written protest challenging the findings of the examining agent. Wiggins offers an overview of the IRS appeals process and illustrates five proven techniques to create a powerful formal protest in writing.

After the 2001 U.S. Supreme Court Gitlitz decision, Congress enacted changes to the IRC to address the perceived inappropriate use of losses by S corporation shareholders. In an article in the Journal of Passthrough Entities, Steven W. Swibel addresses the case and subsequent legislation, which raised a myriad of tax planning issues associated with income that a financially distressed S corporation may realize as it struggles with its rehabilitation.