Here’s something that flew under the radar for most people: a court decision from late last year could put money back in your pocket if you got hit with IRS penalties during COVID. But you need to act fast! For some taxpayers, the deadline to file a claim is July 10.

What This Case Is Actually About

Remember when COVID was declared a federal disaster? That designation wasn’t just symbolic. It triggered real protections under the tax code, specifically Section 7508A, which lets the IRS push back deadlines and waive penalties when taxpayers are caught up in a disaster. We’re talking about failure-to-file and failure-to-pay penalties here, and those fees can add up to almost 50 percent of what you already owe, which is brutal!

The Kwong v. United States decision came down from the Court of Federal Claims in November 2025, and it changed the game. The court said the nationwide COVID emergency created a mandatory postponement running from Jan. 20, 2020, through July 10, 2023. Everything that came due in that window should have been bumped to July 11, 2023. In other words, a lot of people may have been penalized when they shouldn’t have been.

This Got Real on April 30

The case had been percolating quietly until the National Taxpayer Advocate (NTA) made some noise about it on April 30. That’s when things got interesting. According to the NTA, tens of millions of taxpayers could be eligible for refunds. Not just on the penalties themselves, but on the interest that piled up on top of those penalties.

The NTA isn’t being shy about this either. The office has pushed hard for the IRS to apply relief broadly instead of making people jump through hoops. They want systemic fixes, not case-by-case battles. And they’ve asked Congress to make sure procedural red tape doesn’t rob people of money they are owed.

There’s another wrinkle worth knowing about. Some refunds issued during 2020 through 2023 may have shortchanged taxpayers on interest because the IRS treated their returns as late. If Kwong holds up, you might be able to claim that missing interest, too.

Expats Had It Especially Rough

If you were living overseas when the pandemic hit, you know the chaos was next level. Borders slammed shut with no warning. People got stranded in countries they were just passing through. Others couldn’t get back to the places they’d been living for years.

Good luck reaching your accountant when consulates are closed, mail isn’t moving, and you’re dealing with a 12-hour time zone difference. Some folks couldn’t access their bank accounts. Others couldn’t get basic documents. And plenty of people were simply stuck, unable to go anywhere, when their filing deadlines rolled around.

Slapping penalties on taxpayers who were dealing with all of that? It misses the point entirely. The disaster relief rules exist for exactly these situations. The NTA has been clear: fair treatment means recognizing what people were actually going through.

You Need to File a Protective Claim

Here’s the practical part. If you want to preserve your right to get this money back, you have to file something called a protective claim. Think of it as a placeholder that keeps your options open while the legal dust settles.

For many people, the deadline is July 10, 2026, though it depends on the tax year involved. Don’t wait until the last minute to figure this out.

The good news is the paperwork isn’t complicated. You can use IRS Form 843 or just file an amended return. You need to list the tax years you’re claiming and note that your refund depends on how the Kwong case plays out. You don’t have to calculate the exact dollar amount right now. The whole point is just to get yourself on record before time runs out.

A Few Limitations to Know About

This relief is specifically about federal income taxes under the Internal Revenue Code. If you’re worried about Report of Foreign Bank and Financial Accounts (FBAR) penalties, that’s a different animal. FBARs fall under the Bank Secrecy Act, so Kwong doesn’t automatically help there. That said, you might still have a reasonable cause argument based on the same COVID disruptions.

State taxes? Every state did its own thing. Most offered some pandemic extensions, but those programs were separate and usually more limited than what we’re talking about here.

Conclusion

If there’s any chance this applies to you, file that protective claim now. Especially if you were overseas during the pandemic years. Once that deadline passes, the door closes for good.

Artificial intelligence is driving an unprecedented surge in data center construction. Developers, private equity sponsors and their tax advisors are navigating a complicated web of questions that touch everything from ownership structure to site selection to power sourcing. Get the early decisions wrong and the tax consequences can follow a project for years.

Why REITs Have Become the Structure of Choice

Private equity has increasingly turned to real estate investment trusts when backing data center projects. Structure a REIT correctly, and you sidestep corporate-level taxation entirely. Foreign investors get an even better deal. Sovereign wealth funds and foreign pension funds can participate without any obligation to file U.S. tax returns. Data centers, with their heavy real estate footprint, slot into the REIT framework more naturally than many other asset classes.

That said, the fit is not seamless. Related party rent rules create traps for the unwary. Public pension funds and sovereign wealth funds need to confirm they do not hold stakes in both a data center REIT and its tenant. Another wrinkle involves equipment. Data centers demand significant upfront investment in personal property that may not count as qualifying REIT assets. The tax code requires that 75 percent of a REIT’s total asset value consist of real estate, cash, and government securities at each quarter’s close. Developers often must segregate personal property until the REIT builds up enough good assets to clear that hurdle.

The Power and Water Challenge

Reliable power and water access have become one of the toughest operational problems in the industry. Demand is so intense that many developers are generating their own electricity on-site. The tax treatment of these co-located power facilities depends heavily on the energy source and delivery method. Get it wrong, and the generation asset may not qualify for REIT treatment.

Solar photovoltaic systems sit on relatively solid ground under existing guidance. Nuclear and natural gas, which many see as the next wave of data center power, do not. Current rules leave significant uncertainty around whether these sources can work within a REIT structure.

Legislative and Executive Developments

The IRS priority guidance plan for 2025 and 2026 contains no projects aimed squarely at data centers. Regulation section 1.856-10(g), finalized in 2016, includes an example analyzing customized electrical and telecommunications systems in a data center context, but practitioners continue pushing for clearer rules on alternative energy.

Congress may offer relief on the waterfront. In April 2025, Representative Darin LaHood of Illinois proposed a new section 48F that would provide a 30 percent credit for qualifying water reuse projects, including on-site recycling systems at data centers. With U.S. data centers projected to consume 33 billion gallons of water by 2028, the bill attracted 21 cosponsors and bipartisan support.

The White House has made its priorities clear as well. The Trump administration’s July 2025 AI action plan established a goal of achieving global dominance in artificial intelligence, with infrastructure as one of three pillars. An executive order, issued July 23, 2025, focused specifically on reducing federal regulatory obstacles to data center construction.

Conclusion and OBBBA Incentives Worth Watching

Several provisions in the One Big Beautiful Bill Act benefit data center projects, even though lawmakers did not design them with that sector in mind. The return of 100 percent bonus depreciation under section 168(k) matters enormously for an industry requiring massive capital outlays.

Rural Opportunity Zones sweeten the economics further. Investments in qualified rural opportunity funds now qualify for a 30 percent basis step-up after five years, triple the 10 percent available in standard zones. A special rule targeting improvements to existing structures in rural areas cuts the substantial improvement threshold to 50 percent of adjusted basis, compared to more than 100 percent for non-rural funds.

Developers and investors evaluating new projects will find that entity structure, site selection, and the shifting regulatory environment all interact in ways that directly affect the bottom line. Getting the tax picture right from the start remains essential.