The ABA Tax Section last week submitted to the IRS Interim Guidance Regarding Disclosures by Material Advisors (Notice 2004-80).  Here is the Executive Summary:

These comments address the Interim Guidance governing required disclosures by “material advisors” pursuant to § 6111, as amended by the American Jobs Creation Act of 2004. The comments are in response to the solicitation for comments in Notice 2004-80, which was issued on November 16, 2004.

The Interim Guidance implements changes made to §§ 6111, 6112 and 6708 by the Act. Among other things, those changes require “material advisors” to file disclosures with the IRS with respect to any “reportable transaction” on which they provide material aid, advice or assistance.

These comments address a critical issue on which immediate clarification is needed to permit “material advisors” to comply with the disclosure requirements imposed by § 6111, as amended by the Act, without imposing unnecessary burdens on affected parties. Specifically, the comments request clarification that disclosures are required only with respect to transactions that are actually entered into, as opposed to hypothetical or proposed transactions. The comments further suggest a change to permit “material advisors” to file required disclosures on a quarterly basis.

The members of the Section of Taxation who participated in the preparation of these comments, together with other members of the Section of Taxation, are continuing to review the aspects of the Interim Guidance not addressed herein, as well as the other provisions of the Act not reflected in the Interim Guidance. Additional comments will be submitted in the near future on these subjects. However, because the initial deadline for disclosures by “material advisors” is before February 1, 2005, these comments address the limited issues described above and respectfully request that Notice 2004-80 be clarified or modified as described herein prior to that deadline.