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Our firm successfully presented a tribe's position to EPA to ensure tribal-federal jurisdiction over components of an expansive water project serving Indian and non-Indian communities.

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Current Developments in Tribal Taxation Issues and Initiatives - Article by Wendy Pearson

This year we have seen a number of positive developments in the way of tax regulations, rulings and initiatives that favor Tribes and their members. There is still much work to be done and this article is as much a call to action as a summary of the major developments. Here is how 2016 is developing on key issues and initiatives:

I. Treasury Tribal Advisory Committee.

The Tribal General Welfare Exclusion Act of 2014 (GWE Act) created the Tribal Advisory Committee to the Secretary of Treasury. The Committee’s purpose is to “advise the Secretary on matters relating to taxation of Indians.” Pub. L.113–168, § 3(b)(1). In consultation with this Treasury Tribal Advisory Committee (TTAC), the Secretary is to establish and require training of IRS personnel on federal Indian law and the unique treaty and trust relationship between the federal government and Indian tribal governments. The required training also extends to both IRS personnel and tribal financial officers about implementation of the GWE Act. In that regard, TTAC is specifically required under the GWE Act to define what constitutes “lavish and extravagant” benefits under an Indian tribal government program. TTAC also sees its role as addressing issues that are brought to it by tribes in relation to interpretation and implementation of the GWE Act. A number of issues have already been brought to their attention, such as IRS delays in issuing refunds from previously taxed GWE benefits and uneven application of the GWE Act by other federal agencies such as the Social Security Administration. TTAC wants to start working officially on these matters now. However, progress has been stymied by the inaction of Congress to make all of its allotted appointments to the committee.

Four of the seven members have been appointed, to date. All three of the Secretary of Treasury’s appointees have been named: Chairman W. Ron Allen of Jamestown S’Klallam tribe, Treasurer Lacey Horn of the Cherokee tribe, and Chief Lynn Malerba of the Mohegan tribe. Congressman Levin appointed Eugene Magnuson of Pokagon Band of Potawatomi Indians. The three remaining appointments are to be made by Rep. Brady of Texas, Sen. Wyden of Oregon and Sen. Hatch of Utah. Reports indicate that Sen.Wyden has apparently identified an eligible candidate who is going through the requisite security screening and vetting process. Tribes are urged to contact their congressional representatives to request that the TTAC appointments be completed by these members of Congress.

On June 10, 2016, current TTAC members made an official request of IRS Commissioner Jack Lew to take action to convene the first TTAC meeting. With four of the seven members appointed, TTAC members believe they have a quorum to begin official activities. Under the committee’s charter, Treasury is required to identify the staff person who will conduct the meetings – this has not been done. Thus, tribes are urged also to contact Commissioner Lew and the Department of Treasury to urge them to convene the initial TTAC meeting immediately.