Archive for the ‘IRS’ Category

Wait

Tuesday, November 24th, 2020

I sometimes listen to music while working. I have a ~900 song playlist I cycle through, and today White Lion’s Wait came on. (White Lion was a hair band–if you watch the linked video, you will see why.) And it seemed an entirely apropos title to this post: a post where we’re dealing with PPP loan forgiveness.

Earlier this year many businesses applied for Paycheck Protection Plan (PPP) loans. These seemed like a great deal for struggling businesses: Use them for payroll or certain other expenses (rent, utilities, etc.) and the loan would be forgiven. It was money from the US government to help small businesses make their way through Covid.

Congress’s intent (at least according to Senators Grassley and Wyden) was that businesses would be able to receive the loan, have the loan forgiven (assuming the expenditures were used as noted above), and the loan would not be considered income. The IRS, though, had another idea. Sure, the loan isn’t income; however, the expenses would not be deductible: the IRS noting that per Section 265 of the Tax Code if you have nontaxable income, expenses used in production of that income are not deductible. Senators Grassley and Wyden complained earlier this summer when the IRS first announced this. The IRS double-downed on this, releasing Revenue Ruling 2020-27 and Revenue Procedure 2020-51 confirming the IRS’s initial position. Senators Grassley and Wyden complained again.

A few tax professionals have argued the IRS got this wrong. Unfortunately, a literal reading of the Tax Code verifies what’s in Section 265 of the Tax Code. That said, Congress can override this. They could, for example, write a new law stating that PPP loans that are forgiven do not cause the expenses used in production of that income to be taxable. Indeed, there is legislation pending in Congress to do just that. Whether such legislation passes is another question though. The legislation does have bipartisan support, so there is a good chance it passes either in the “lame duck” session or early next year.

So what should someone do who received a PPP loan? Generally, they should wait to request forgiveness. (An exception is a sole proprietorship who used the funds for replacement of the owner’s ‘pay’. Because such pay isn’t taxable, there are no expenses which would be non-deductible.) Generally, you have ten months from the end of the PPP covered period to request forgiveness. We’re likely to have clarity on this sooner rather than later (I’m hopeful we’ll know by February), so if you can wait do so.

Indeed, given the rules and procedures the IRS came up with in Revenue Ruling 2020-27 and Revenue Procedure 2020-51 it’s a good idea to know what the exact forgiveness is before filing your 2020 return…and that could be five months after applying for forgiveness. As always, it’s better to extend than amend. Yes, there are going to be quite a few extensions filed by PPP loan recipients in 2021.

When It Takes the IRS 5+ Months to Process an Amended Return…

Wednesday, November 18th, 2020

Back in May, clients of mine discovered they left something out of their 2018 tax return. We prepared an amended return, the clients included a check for the additional tax, and it was mailed off to Kansas City. The check was cashed in July, so the amended return was received.

Fast forward to today. The amended return still has not been processed (and no one knows when it will be; it’s almost certainly sitting in a bin with thousands of other amended returns), but the IRS Automated Underreporting Unit discovered the error and sent the clients a notice. They found the same error. So now my clients have to respond to this notice, telling the IRS there’s an amended return somewhere in Kansas City.

Normally, when a taxpayer submits an amended return for a year the IRS computer system notes the return exists so that no AUR notices are sent until the IRS processes the return. Because of Covid the IRS is behind. Way, way behind. At last report the IRS still has 8+ million pieces of mail to go through. So what my clients are going through is going to be repeated by many others, just adding to the IRS’s backlog.

Unfortunately, I don’t see a solution to these issues. Covid isn’t going away until likely next summer (based on the vaccine news, I expect most Americans to be vaccinated by then), meaning the IRS issues we face today will continue for months. (Even when the IRS fully reopens we’re looking at months to clear the backlog.) And it’s not just amended returns. I have a payment issue for a client (the IRS misapplied a payment) where I sent a response in September 2019; that response has still not been assigned to anyone. An Appeals request sent in February has just been assigned to somebody, but the helpful staff at the Practitioner Priority Service (and they did help me this morning) have no idea when the case will actually be worked. We all do need to be patient, but many taxpayers aren’t which is adding to the issues.

IRS Mailing Erroneous CP259F Notices

Wednesday, November 4th, 2020

We prepare a few split-interest charitable trust returns (IRS Form 5227) every year. Coincidentally, I serve as trustee of a split-interest trust. Imagine my surprise when I received a CP259F Notice from the IRS for the trust that I am trustee of stating, “You didn’t file a Form 5227.” The only problem is that I did file it (mailing it certified mail, return receipt requested) and it shows as delivered on March 4th. (Form 5227 cannot be electronically filed.) Meanwhile, multiple clients received the same letter; all filed their returns on or about the same date (and have proof of filing).

I called the IRS this morning and confirmed that these returns are most likely sitting in a trailer in Ogden, Utah waiting to be processed. Because of Covid, the Ogden, Utah mailroom did not reopen until mid-June. It could be tomorrow or three months from tomorrow before the Form 5227s are processed. The IRS asked that we ignore these notices and not send a second return because a second return (a) could be processed before the first return (causing another set of issues, including erroneous late filing penalties), and (b) sooner or later the backlog will be cleared (the returns will be considered filed on the date received, not the date the IRS eventually processes the returns). The IRS representative I spoke with stated these notices should not have gone out.

I do want to point out that this issue shows why using certified mail is essential when sending anything to a tax agency. While I’m hopeful that the trust return is sitting in the trailer and will eventually be filed, it’s inevitable that something is going to get lost. (There were over 23 million pieces of mail waiting to be processed at one point; the backlog is still more than 5 million.) Should the IRS lose the Form 5227, I have proof of filing that should hold up and prevent the imposition of late filing penalties.

This also is definitely the year to have patience with the IRS.

It’s Time to Panic

Wednesday, September 30th, 2020

As I write this, it’s September 30th. Two weeks from tomorrow is Thursday, October 15, 2020. That’s the deadline for individual taxpayers on extension to file their tax returns (except for those in disaster areas such as the fires that impacted California, Oregon, and Washington). If you have yet to send your paperwork to your tax professional it’s past the time to do so. Yes, it’s time to panic!

If your return is simple and straightforward, stop procrastinating and get it done and filed. If your return has any sort of complexities, you must start working on it now. Your tax professional needs time to get it done correctly. You need to turn in that paperwork post haste. If you’ve procrastinated, stop, sit down, and get it done–NOW.

It may already be too late for your return to be timely filed with many tax professionals. For example, our official deadline was September 15th. Luckily, we’re only a day or two behind so our procrastinating clients are still in relatively good shape. However, that might not be the case with all tax professionals. And I can guarantee if you drop off your paperwork with us on October 13th your return is almost certainly not going to be timely filed.

If you file late, it’s as if you never filed your extension. So sit down and get everything done now! Of course, if you like paying a 25% penalty, simply procrastinate for another three weeks.

The Dead Need Not Amend (Even When They Have To)

Friday, September 25th, 2020

When I eventually go to the pearly gates, I assume I’ll be leaving income tax behind. It would be a rather rude surprise to find I have lifetime employment in the great beyond, too.

This past week I needed to amend a 2019 federal return. A couple left off one item from their return. It had no impact on their tax, but the return did need to be amended. The IRS is now allowing amended 2019 federal returns to be electronically filed, so after obtaining the signature document I efiled the return. That’s a lot more efficient than mailing the return to the IRS.

But the return was rejected, because the spouse was deceased. That was true, and was noted on the originally filed return. The original return was electronically filed, so I couldn’t see why the amended return couldn’t be. Silly me, I missed yet another exception to the ability to electronically file amended returns. You cannot electronically file an amended return if a spouse is deceased. This wasn’t listed in any of the IRS notices announcing electronic filing of amended returns.

Unfortunately, that exception is real and is an IRS issue. My software company confirmed it’s an IRS programming issue and at least for now any amended return with a deceased taxpayer needs to be mailed to the IRS. Still, at least most 2019 amended returns can be electronically filed.

The Perils of Waiting to the Last Minute

Thursday, September 17th, 2020

The extended deadline for partnership and S-Corporation tax returns was this past Tuesday, and all of our returns were completed and filed that could be (but one). And that one client understood the issues with late filing–but more on that in a moment.

However, we were lucky in that we don’t use software from Wolters Kluwer. Users of that software (such as CCH) could not efile returns on September 15th. That’s an issue when it’s a deadline date. Many years ago, we were impacted when ProSeries (the software we use, made by Intuit) suffered a similar failure on the regular individual deadline date. That year, the IRS extended the deadline by a day. It’s quite possible the IRS will offer such relief to users of CCH this year.

Not only can technology issues happen on a deadline day, but if you wait to the absolute last minute you don’t have time to effectively review the return. This impacted one of our clients. She thought the income number from the partnership should be half of what we’re showing. The numbers on the tax returns exactly match the financial statements, so she needs to review the financials to find the errors. (I did not discover any errors, but she is intimately familiar with the business and errors should stand out more to her.) When you wait to the last day, the clock does strike midnight. She elected to file her return late (possibly using First Time Abatement to avoid penalties) as she wants her return to be correct.

We’re less than two weeks away from the extended deadline for trusts and estates and less than a month away from the extended deadline for individuals. Now is a very good time to send those last documents to your tax professional (indeed, our deadline to guarantee returns are timely prepared was earlier this week). It’s not yet time to panic (except for trusts and estates), but it soon will be for individuals. If you haven’t gotten everything together, you really need to start now. The penalties for late filing are severe, and if you don’t file by October 15th (unless you reside in one of the federal disaster zones) are severe (25% late filing penalty). It’s not a day late and a dollar short; it’s a day late and lots of dollars short.

At Least The IRS Could Find 95% of the Returns…

Thursday, September 3rd, 2020

Two items crossed my in-box within a few minutes of each other this morning. The first was a blog post from the National Taxpayer Advocate requesting that Congress give multi-year funding for modernizing IRS computer systems. The second was a TIGTA report noting the IRS couldn’t find about 5% of tax returns requested.

Do you know anyone who knows COBOL (a computer language)? If you do, the IRS wants to hear from him or her! COBOL dates from 1959 (before I was born). The IRS’s IMF and BMF (Individual and Business Master Files) are older than I am, and run in Cobol on IBM mainframes. They are the oldest computer systems still in use by the federal government! I’ll date myself: I was in the last class at Berkeley to learn computer programming on punch cards. On the bright side, the IRS uses the best of 1950’s technology….

Why doesn’t the IRS take their paper records and digitize them? Some of it has to do with the legacy systems they are run on. A lot of it has to do with inadequate funding.

Seriously, this is a problem. In our office, we don’t keep paper records. We scan everything (and return all paper to our clients). The IRS does this for electronically filed tax returns, but not for all paper returns. Indeed, the TIGTA report notes that 347 of the IRS’s 956 forms cannot be electronically filed (that’s more than 36%). The IRS has 468,000 cubic feet of storage available on their campuses. Additionally, Federal Record Centers store about five million cubic feet of IRS records! The IRS spends $57 million a year on storing and retrieving this mountain of paper.

To give an idea of how large this is, my house is 2400 square feet with (I believe) 10 foot high ceilings (because of the heat in Las Vegas). That’s 24,000 cubic feet. So IRS paper records would fill more than 227 of my sized home. It’s frightening to think of all that paper.

The Taxpayer Advocate noted the IRS needs $2.5 billion over six years to complete its (hoped for) modernization program. They received $150 million in the 2019 fiscal year and $180 million in the 2020 fiscal year for modernization. At the current rate, it will take more than 12 additional years to complete it.

The TIGTA report looked at the ability to get specific pieces of paper. Retrieving that paper is necessary for audits and many other required IRS tasks. TIGTA had requests sent through normal channels for tax returns and examination case files. Most of the time the records could be found. However, 6% of examination case files and 3% of tax returns could not be located. An additional 23% of examination case files and 10% of tax returns were not provided timely.

The TIGTA report should be looked in its entirety for a depressing picture of the reality (vis-a-vis computer systems) at the IRS. It’s not that IRS management disagrees with TIGTA on the recommendations that TIGTA made (they agreed with the four recommendations in the report); rather, the problem is that the IRS almost certainly doesn’t have the money to complete the necessary tasks.

Here’s an example from real life: A fellow tax professional’s client mailed in a Form 1040X last year. That client just received a letter stating, “We have a record of receiving your Form 1040X for the 2018 tax year. We cannot find it. Please send another signed copy by mail to this office….”

I’ve been impacted by this. I had a client a few years ago request an ITIN (Individual Taxpayer Identification Number) for his child. The ITIN unit managed to lose the paperwork (sent by certified mail) three times, including once when it was hand-carried to them by the Taxpayer Advocate Office! (Thankfully, the Taxpayer Advocate kept a copy and the fourth time was a charm!)

Do I think Congress will loosen the purse strings here? Well, maybe before I retire….

IRS Extends Tax Deadlines for Victims of Iowa Derecho & California Wildfires

Tuesday, August 25th, 2020

The IRS announced yesterday that they have extended tax deadlines for victims of both the derecho that hit Iowa and the ongoing California wildfires. The specific counties impacted can be found on the Federal Emergency Management Agency (FEMA) website.

For both disasters, tax deadlines are extended that began on August 10th for the derecho and August 14th for the wildfires until December 15th. This impacts 2019 personal tax returns on extension, business returns on extension, payroll tax filings, and estimated tax payments. California’s Franchise Tax Board automatically extends deadlines for federal disasters, so those impacted have identical extensions for California taxes. I assume the Iowa Department of Revenue will similarly extend Iowa deadlines.

Unfortunately, it looks like we’ll also be looking at victims of Hurricane Laura in Texas and/or Louisiana later this week. The IRS recently posted information on safeguarding records for natural disasters; your insurance company likely has additional information available. The cliche is that an ounce of prevention beats a pound of cure–but it is good advice.

More on the IRS Daily Fantasy Sports Memo (“DFS Is Gambling”)

Thursday, August 20th, 2020

There has been some speculation in the gambling world on (1) why did the IRS memo on Daily Fantasy Sports (DFS) suddenly appear, and (2) is the IRS correct about the non-precedential memo?

Chris Krafcik on Twitter asked, ” Has anybody gotten to the why of the IRS DFS memo? Working backwards from the targets (DFS companies [i.e., DK [DraftKings] and FD [Fanduel]]), and having observed what I have of gambling industry lobbying skullduggery, fair to ask, imo, whether IRS was lobbied by a DK-FD competitor.”

The reality is far more mundane. John Brennan, who often writes on gambling, has an article today on the DFS memo. He quotes Jason Robins, CEO of DraftKings, from his conference call with gaming analysts last week:

We have been involved in [an] audit with the IRS for many years, and this was a memo that has no force of law and is non-binding,” Robins said. “In our view, the analysis is deeply flawed. …” [Emphasis added]

Let’s assume that DraftKings raised the issue in the audit that DFS wagers are not gambling for purposes of federal tax law because of the Unlawful Internet Gambling Enforcement Act (UIGEA) (which is a near certainty). The UIGEA contains a carve-out for DFS specifically exempting it. The IRS auditor did not know whether the UIGEA carve-out applied to the wagering excise taxes, and his or her manager didn’t know. They did what they were supposed to do: They asked the IRS Chief Counsel Office how this should be treated. This memo is the response to that inquiry. (It’s highly unlikely this memo is the result of a competitor’s actions.)

The next question is whether or not the IRS memo reaches the correct conclusion. As I previously noted, I think it does. As noted in the memo, wagering is not defined in the Tax Code. But Court decisions are unanimous in what to do when a term isn’t defined. From Tschetschot v Commissioner (T.C. Memo 2007-38):

When a term is not defined, we must apply the term’s “plain, obvious, and rational meaning.” Liddle v. Commissioner, 103 T.C. 285, 293 n.4 (1994), affd. 65 F.3d 329 (3d Cir. 1995); see also Boyd v. United States, 762 F.2d 1369, 1373 (9th Cir. 1985). According to the dictionary, a “wager” is defined as “something risked or staked on an uncertain event” or “a bet”. Random House College Dictionary (1968). Similarly, “to wager” is defined as: (1) Something risked or staked on an uncertain event; bet; (2) the act of betting. Random House College Dictionary (1973).

We can also look to the UIGEA for a definition of wagers. Indeed, DraftKings argues that because of the UIGEA, DFS is not wagering (gambling). Let’s look at the definition from 31 U.S.C. § 5362 (1):

(1) Bet or wager.—The term “bet or wager”— (A) means the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance, upon an agreement or understanding that the person or another person will receive something of value in the event of a certain outcome; …(E) does not include— … (ix) participation in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or teams) no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization (as those terms are defined in section 3701 of title 28)….

First, I agree that DFS companies (such as DraftKings) are exempt from the UIGEA. 31 U.S.C. § 5362 (1)(E)(ix) is quite clear about that.

However, this has nothing to do with how wagering is treated under the Tax Code (aka the Internal Revenue Code); that’s a different section of the United States Code (Title 26). But we can look at the overall definition of what wagering is from the UIGEA, even though the UIGEA doesn’t apply to DraftKings, to see how the definition of wagering does apply to them under Title 26 of the U.S.C. As I wrote back in 2014,

…[T]here are plenty of IRS and Tax Court rulings on this, and all say basically the same thing. For something to be gambling, three elements must be present:
1. A prize;
2. Chance; and
3. Consideration.

The IRS memo and common sense tells us that DFS has at least an element of chance. No rain is predicted for a football game, and it rains impacting play. Or a pitcher pulls his hamstring and only pitches two innings. Or, well, you get the idea. The examples are too numerous to mention and all of them back the IRS’s view that there is an element of chance to DFS.

I do agree that DFS is an activity where skill predominates. As I have written many times, poker is also a game where skill predominates over luck. But that’s irrelevant for the Tax Code; legally, poker is a form of skillful gambling. So is DFS. But it’s gambling no matter what the DFS companies may want to say.

The conclusion I reached last week still holds: The DFS companies have little chance of prevailing on this issue. I reached that conclusion in 2015, and nothing has changed. They would be far better off trying to lobby Congress for an exclusion in the Tax Code than fighting the IRS on this.

That Direct Deposit from “IRS TREAS 310” Is Legitimate

Wednesday, August 19th, 2020

Taxpayers who filed after April 15th are being paid interest on their refunds. The IRS issued a press release earlier this week, stating:

This week the Treasury Department and the Internal Revenue Service will send interest payments to about 13.9 million individual taxpayers who timely filed their 2019 federal income tax returns and are receiving refunds.

The interest payments, averaging about $18, will be made to individual taxpayers who filed a 2019 return by this year’s July 15 deadline and either received a refund in the past three months or will receive a refund. Most interest payments will be issued separately from tax refunds.

In most cases, taxpayers who received their refund by direct deposit will have their interest payment direct deposited in the same account. About 12 million of these payments will be direct deposited.

Everyone else will receive a check. A notation on the check − saying “INT Amount” − will identify it as a refund interest payment and indicate the interest amount.

Several clients asked this morning about mysterious direct deposits from “IRS TREAS 310,” wondering what these were. That’s the interest on your refund from April 15th until the date you filed.

Do note that the interest you receive is taxable. You will receive a Form 1099-INT in the mail from the IRS next January and you will need to include that on your 2020 tax returns.