Archive for the ‘IRS’ Category

IRS Criminal Investigation Has a 91.2% Conviction Rate

Thursday, December 5th, 2019

Here’s a helpful hint to anyone who commits a serious tax crime: If IRS Criminal Investigation (CI) comes after you, there’s a 91.2% chance that you will be heading to ClubFed or otherwise be convicted. As poker players say, ‘Those are betting odds.’ That’s just one of the highlights of IRS CI’s annual report.

There are only 2,009 special agents (down from 2,019 in 2018). There were 1,500 investigations started, with 942 prosecutions recommended, and 848 resulting in sentencing. As you would expect, most of the investigations relate to tax (75.1%), while 11.3% are narcotics-related, and 11.9% are non-tax. (A few investigations, 1.4%, are not categorized.)

The sources of investigations run the gamut: 28% are from the US Attorney’s Office (aka the Department of Justice), 26% from other federal agencies, 15% are internally developed (within CI), and 12% come from Bank Secrecy Act information. Other sources include IRS civil (from IRS Revenue Agents and others involved in audits), state and local government, and the general public.

The annual report highlights several cases, including the indictment out of Las Vegas of several individuals who allegedly filed $1.1 billion in false claims for refundable renewable fuel tax credits. They also allegedly laundered $3.1 billion.

If you’re at all interested in CI, and what they work on, the report makes for interesting reading.

Deja Vu All Over Again, Again

Thursday, November 7th, 2019

Last year I wrote a post noting the following:

A client filed his tax return on October 2nd. He had a balance due (he had made an extension payment, but he still owed some tax). He paid by having his bank account electronically debited with the filing of his tax return. In today’s mail he received a CP14 notice (dated today) alleging he hadn’t paid his balance due. Yikes!

My client was upset. “Russ, you forgot to have my bank account electronically debited.” No, I didn’t forget, and the return shows his payment being accepted for processing. I had a Tax Information Authorization for my client, so I ran an Account Transcript and it showed a $0 balance. My client was relieved, but there appears to be a systemic IRS issue.

The payment went through on October 2nd, but the IRS posted the tax due first (dated October 22nd) without posting his payment. Yet the payment was made, and my client should have never received this notice. It wasted both of our time for no good reason.

Well, history has repeated itself (again). I have two clients (so far) who filed their returns in October, paid by electronic debit with the filing of their returns, and who received CP14 notices stating they owed tax. They didn’t–the payments went through and the IRS shows they received the payments. Yet again, my clients were annoyed (with the bureaucratic stupidity) and both the clients and I had to waste our time chasing down an issue we shouldn’t have had to.

I concluded my post last year with the following:

Several years ago this was an issue for April filers; the IRS corrected the problem by allowing an additional ‘cycle’ before sending out CP14 notices. I hadn’t seen this issue before for extension filers, but it appears we have a case of deja vu all over again. I reported this to the IRS Systemic Advocacy Management System. If you’re a tax professional and run into this issue I urge to to report it, too.

Yes, I reported this again to SAMS. Last year, I was contacted by the Taxpayer Advocate Office/SAMS about this issue. It seems they were not successful in resolving the matter. Hopefully they will be this year.

If you’re a tax professional and your clients receive an erroneous CP14 notice based on this fact pattern, I urge you to report it to SAMS.

It Looks Just Like the L.A. Freeway System!

Sunday, July 14th, 2019

One of the things I love about living in Las Vegas is not dealing with the Southern California traffic. I remember running into a horrendous traffic jam at 2 a.m. I remember the ten mile drive that took two hours. I don’t miss that in the least. Yes, there’s some traffic here in Las Vegas–I complain when my commute home takes twenty minutes instead of the usual twelve minutes–but it’s really benign when compared to Los Angeles.

I bring this up because the Taxpayer Advocate released a “roadmap” of what happens with a tax return. Here it is:


There are some comments I’d like to make about this:

1. Yes, our tax system is that convoluted. We should have a simple, straightforward system. Our current Tax Code reminds me of differential equations (and yes, I took that in college).

2. There are important steps that are left out of the roadmap. One of the items listed in “Tax Return Processing” is IRS Issues Math Error Notice. When I think of a math error, I think of 2 + 2 = 5. Those kinds of math errors are appropriate for a math error notice. However, one of my clients just received a math error notice where the IRS inserted a $300 penalty for no particular reason. That’s not appropriate for a math error notice (at least, I don’t think it is), yet if my client didn’t write the IRS within 30 days of receiving that notice it would be next to impossible to have that corrected. Indeed, the Taxpayer Advocate has, in the past, complained about math error notices.

3. The equivalent of traffic jams do occur. One of the current issues taxpayers and practitioners face is slow response time on the IRS reading its mail. Consider my client’s response to the math error notice. She received the notice on July 10th, and on July 11th mailed the response (using certified mail, return receipt requested). It was received on July 13th. The average IRS response time for reading correspondence is 14 weeks. That means it will likely be November 1st before my client receives a response to the erroneous penalty on a math error notice. And suppose a second letter is needed (which happens). The lack of timely responses by the IRS negatively impacts all taxpayers (and the IRS). I have a second client who received a late filing penalty for filing a tax return without an extension. The extension was filed, but it wasn’t processed until after the tax return was processed! That client had to file a request for abatement for the penalty. Here’s a situation where the IRS’s internal systems should have automatically abated the penalty, yet my client must mail another piece of paper to the IRS, wait 14 weeks for it to be read, and hope that the agent who reads it understands that this was an IRS error.

4. The IRS’s automated systems hurts “edge-case” taxpayers. My mother is not that computer literate. Yet she is supposed to pay her taxes (like all of us). Now, she happens to have a son who is a tax professional, but what if she didn’t? Would she really be able to determine how much of her social security is taxable? Or how to compute the new Section 199A deduction on her dividends that qualify for that deduction?

5. Did I mention that the Tax Code (and how it works) is far too complex? I’m pretty sure I did.

Most of the blame does not fall to the IRS; it falls to Congress, which enacts the laws that have resulted in this mess. Additionally, Congress has not adequately funded the IRS. These are issues that need to be resolved, but cannot be resolved by the IRS.

Should a Taxpayer be Liable for Tax on Income She Didn’t Receive?

Saturday, June 22nd, 2019

Not even the IRS could go after someone for income they didn’t receive, right? Well, wrong. And when the taxpayer filed a lawsuit to reverse the result, she lost. She appealed to the Eleventh Circuit where the Court had a slightly different view of taxes than the government.

The story begins when her ex-husband is subject of a lawsuit (they were married at the time). It became clear the lawsuit would last longer than the marriage, and the couple agreed that they’d be equally liable for the judgment (if any). The couple divorced; later, the ex-husband settled the lawsuit for $600,000. He paid that to the plaintiff; he also filed a claim on his tax return for the $300,000 he paid. The IRS had no problem with that.

Per the divorce agreement, she reimbursed him $300,000. She also took a deduction under Section 1341 of the Internal Revenue Code. The IRS said no you don’t. She asked for relief in court. The district court granted summary judgment to the IRS. She appealed.

The Appellate Court looked at what’s necessary for relief: To obtain relief under § 1341, a taxpayer must satisfy four requirements.

First, an item of income must have been included in a prior year’s gross income “because it appeared that the taxpayer had an unrestricted right to such item.” § 1341 (a)(1). Second, the taxpayer must have later learned that she actually “did not have an unrestricted right” to that income. See § 1341(a)(2). Third and fourth, the amount the taxpayer did not have an unrestricted right to must have exceeded $3,000 and be deductible under another provision of the tax code. Fla. Progress, 348 F.3d at 957, 959. If the taxpayer can demonstrate these elements, then she has a choice between two options: “[s]he can deduct the item from the current year’s taxes, or [s]he can claim a tax credit for the amount [her] tax was increased in the prior year by including that item.”

The government disputed whether the taxpayer had an unrestricted right to the income. The lawsuit claimed that there was misappropriation of funds. “But here, the record lacks any proof that [the ex-husband] knowingly misappropriated income, since his settlement agreement with [B] expressly disclaimed any wrongdoing.” The government also claimed that she had no presumptive right to the ex-husband’s income. “First, even if the government’s assertion were correct, it makes no difference to the § 1341 analysis. What matters is whether [she] sincerely believed she had a right to [his] income, not the correctness of her belief.”

The next part of Section 1341 is for the taxpayer to establish that “after the close of a taxable year, ‘the taxpayer did not have an unrestricted right’ to some amount she initially reported as taxable income. To make this showing, the taxpayer must demonstrate that she involuntarily gave away the relevant income because of some obligation, and the obligation had a substantive nexus to the original receipt of the income.” The government said that she voluntarily gave away the income. The Court disagreed.

[Her] situation is materially indistinguishable. As with Barrett, her obligation to pay arose not from a final judgment, but from an agreement she entered in good-faith to avoid litigation. And it would be equally as “ludicrous”—as it was in Barrett to say that Barrett voluntarily paid his $54,000—to conclude that [she] voluntarily paid $300,000 of her income without regard to any legal obligation.

Indeed, she initially opposed paying [her ex-husband] for any liability arising from the…lawsuit. Only after [the plaintiff in the lawsuit] threatened her with litigation did she agree to be bound to do so and enter into Article 5 of her separation agreement…

[She] also paid an attorney to advise her of her rights, and that attorney told her that she had an “obligation” to pay [the plaintiff]. Under these circumstances—and particularly in light of the desirability of fostering settlements without litigation—[she] did not need to wait to be sued before settling and paying for her payment to be considered involuntary. Because the record reflects [she] reasonably anticipated litigation and settled in good faith in the shadow of litigation, her $300,000 payment was involuntary for purposes of § 1341.

The Court also noted that the obligation to pay must relate to the original receipt of income, and that she clearly established that.

There’s one more element that must be met:

Finally, to qualify for § 1341 relief, Mihelick must show that her $300,000 payment is deductible under another provision of the tax code. Fla. Progress, 348 F.3d at 958-59. Mihelick can meet this element, as she can deduct her payment under 26 U.S.C. § 165(c)(1), which allows deductions for an individual’s uncompensated “losses incurred in a trade or business” during the taxable year.

Given that the ex-husband was the CEO and majority shareholder, and that the lawsuit alleged that he breached his fiduciary duty while acting as CEO, the lawsuit related to the income and can be deducted.

The Court began the decision as follows:

Inscribed above the main entrance of the Internal Revenue Service office in Washington, D.C., is a quotation from Supreme Court Justice Oliver Wendell Holmes Jr.: “Taxes are what we pay for a civilized society.”…An admirable outlook, yet even Justice Holmes would likely agree that it is uncivilized to impose taxes on citizens for income they did not ultimately receive. But that is precisely the result the government asks us to uphold today. [citation omitted]

The Court rightly chastised the IRS and US government for being uncivilized.

Case: Mihelick v. United States

IRS No Longer Redacting Information on Wage & Income Transcripts

Friday, May 31st, 2019

Yesterday I went on e-Services and downloaded a Wage & Income Transcript for a client. I was surprised to see that the payor information was no longer redacted. There was the payor’s name in full (along with the address and EIN).

Congratulations to the IRS on reversing their short-sighted policy of redacting this information. In order to access e-Services, I have to already have:

– Registered with the IRS;
– Setup two-party authentication with the IRS; and
– Used two-party authentication to access e-Services.

Yes, it’s theoretically possible for someone to break into somebody’s office and get into e-Services. But they’d also have to obtain the two-party authentication device. The odds of both occurring are very, very low.

The previous policy had deleterious impacts on both the IRS and tax professionals. It added workload to the IRS (tax professionals had to call the IRS to obtain unredacted transcripts); it caused delays and extra work for tax professionals. Kudos to the IRS on using some common sense in returning to the status quo ante.

Can I Disclose a Candidate’s Tax Returns?

Sunday, May 12th, 2019

Let’s say that back in 2010 I prepared the federal and California tax returns for John and Mary Smith of Irvine, California. Ten years later, Mr. Smith decides to run for statewide office. Let’s further assume I abhor Mr. Smith’s politics. Can I leak his tax returns to the Los Angeles Times? Can the Times publish the Smiths’ returns?

I, like all tax professionals, fall under the rules of Circular 230. Circular 230 basically states that I can only disclose a client’s returns with his or her permission, and that these rules protect current clients, future clients, and former clients. Federal law has more to state about this: Under 26 U.S.C. § 7213(a)(1) it is illegal for me to disclose to anyone any information about a tax return. Additionally, 26 U.S.C. § 7213(a)(3) states: “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information.”

So the answer to the first question I asked is easy: It is very illegal for me to disclose Mr. & Mrs. Smiths’ returns to anyone for any reason whatsoever without the permission of the Smiths.

The answer to the second question is far more difficult. While federal law makes it illegal for anyone receiving illegally disclosed tax return information to publish it, the First Amendment to the Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”) likely overrides federal law. I have to use “likely” instead of “certainly” because there hasn’t been a case about this issue that has reached the Supreme Court.

I wrote this brief piece because of the release of information regarding President Trump’s tax returns from 1984-1995. The New York Times published this information and stated they received the information from someone who had legal access to them. It is a certainty that particular individual violated federal law and could be prosecuted. If he’s a licensed CPA or Enrolled Agent, he could lose his license; if he’s a licensed attorney, he could be disbarred. If the Department of Justice discovers the individual responsible for the leak, he or she is very likely to be prosecuted (it’s a slam-dunk case). As for the Department of Justice going after the New York Times, I highly doubt that will happen. The case is anything but a certain winner. I strongly suspect the First Amendment overrides 26 U.S.C § 7213(a)(3).

Bozo Tax Tip #1: We Don’t Need No Stinkin’ Basis

Friday, April 12th, 2019

If there’s one issue in tax that tax professionals have trouble explaining to clients it’s basis. Your basis in an entity is, generally, the total of your investment in an entity plus income it generated less any distributions from it. If you’re an investor in a business, you can only take losses up to the amount of your basis. Sounds simple, right?

So let’s say you invest in an S-Corp, “Losing Money, Inc.” Unfortunately, it’s name matches what’s happened year after year. You invested $10,000 years ago, and each year your share of the loss has been $3,000. It’s year four of your ownership, and you get the K-1 showing the (as usual) $3,000 loss. Your tax professional tells you, “I’m sorry, but you’re only getting $1,000 of the $3,000 loss–you used up your basis.”

The IRS has been battling this issue for a number of years. Owners of businesses are supposed to keep basis statements. Most reputable tax professionals prepare basis statements for the partnerships and S-Corporations that they prepare returns for. It remains, though, the responsibility of the owner to keep track of the basis.

Anyway, the IRS has (in audits) seen many owners not have basis and still take losses. The IRS hasn’t had a good method to police this. This year, though, the IRS wised up. There’s an addition to the instructions for page 2 of Schedule E:

If you are claiming a deduction for your share of an aggregate loss, check the box on the appropriate line in Part II, column (e), and attach to your return a computation of the adjusted basis of your corporate stock and of any debt the corporation owes you. For details, see the Shareholder’s Instructions for Schedule K-1 (Form 1120S). [emphasis added]

Of course, some individuals may attach a phony basis statement to get around this issue, but that’s yet another bozo action (that’s committing a felony–lying on your tax return, which is signed under penalty of perjury). Still, it’s likely that the IRS has the right idea and this will lessen the problem. (I expect the IRS to expand basis reporting rules to partnerships in the near future.)

Of course, some individuals may simply ignore attaching the basis statement and play ‘audit roulette.’ That’s something else I can never advise. But if you want to enjoy the Bozo side of life, just keep ignoring your basis and take your loss year after year after year.

That’s the last of our Bozo Tax Tips for the 2019 tax filing season. We’ll be back with normal content, including a rather scathing review of this tax filing season, late next week.

Bozo Tax Tip #2: We Don’t Need No Stinkin’ Employees (Especially Because We’re Lawyers)

Thursday, April 11th, 2019

A few years ago, I first heard about the law firm that had no employees. Now, I can imagine a small firm of, say, three or four partners, with no clerical staff as a possibility. However, having dealt with enough attorneys there are always secretaries, paralegals, clerks, and junior lawyers because most clients don’t way to pay $400 an hour for typing.

Joe Kristan (who formerly had the Roth CPA tax update blog) wrote about the Donald Cave Law Firm in Baton Rouge, Louisiana. A few years ago the firm found itself in Tax Court claiming that the three associates of the firm weren’t employees because the owner, Mr. Cave, alleged he didn’t have enough control over them. Now, do you really believe that a senior lawyer at any firm would allow junior attorneys to do their own thing? Of course not, and the Tax Court didn’t believe it either.

That wasn’t the end of the story, though. The firm appealed and their fate at the Fifth Circuit was, well, what you would expect.

Finally, with respect to the law clerk, Michael Matthews, the record shows that Donald Cave hired Matthews and exercised complete control over the assignment of Matthews’ work for the Firm. Although Matthews also worked for other lawyers and law firms, providing services to multiple employers does not necessitate treatment as an independent contractor…Matthews was paid a salary by the Cave Law Firm of approximately $1250 every two weeks, which amounts to $30,000 per year, regardless of the amount of work he performed during that time period. Contrary to the Firm’s suggestion, Matthews was not paid a minimal amount for essentially piecework. Instead, he entered into a verbal contract with Donald Cave and the Firm for a fixed sum to provide services at the direction of Cave, and there was no evidence that he could reject any work he did not wish to perform. Furthermore, Matthews could neither increase his profit through his own skill and initiative, nor would he suffer the risk of any losses. Matthews also made no investment in the facilities because the Firm provided him with the amenities needed to complete his work.

Can you really imagine that a clerk at a law firm isn’t an employee? I can’t, and neither could the judges at the Fifth Circuit.

The point of this is to be careful about who you claim are independent contractors. If you give John a research project, and don’t control his activities, and he’s working in another state on his own, that truly sounds like an independent contractor. However, if John’s working in your office, and your supervising his every move, etc., trying to claim he’s an independent contractor when he’s really an employee can lead to a big heartache.

Additionally, some states are far tougher on the independent contractor/employee decision than the IRS. Indeed, my old homestead of California is probably the most difficult state in the country to have independent contractors. California’s Employment Development Department (EDD) has an excellent publication on this issue (EDD Publication 38). There’s even a help line you can call.

So if you really have independent contractors, great. But if you’re a law firm and you really, really think that your secretary and the filing clerk are independent contractors you are committing a Bozo act.

Bozo Tax Tip #4: The $0.55 Solution

Tuesday, April 9th, 2019

With Tax Day fast approaching it’s time to examine yet another Bozo method of courting disaster. And it doesn’t, on the surface, seem to be a Bozo method. After all, this organization has the motto, Neither rain nor snow nor gloom of night can stay these messengers about their duty.

Well, that’s not really the Postal Service’s motto. It’s just the inscription on the General Post Office in New York (at 8th Avenue and 33rd Street).

So assume you have a lengthy, difficult return. You’ve paid a professional good money to get it done. You go to the Post Office, put proper postage on it, dump it in the slot (on or before April 15th), and you’ve just committed a Bozo act.

If you use the Postal Service to mail your tax returns, spend the extra money for certified mail. For $3.50 you can purchase certified mail. Yes, you will have to stand in a line (or you can use the automated machines in many post offices), but you now have a receipt that verifies that you have mailed your return.

About fourteen years ago one of my clients saved $2.42 (I think that was the cost of a certified mail piece then) and sent his return in with a $0.37 stamp. It never made it. He ended up paying nearly $1,000 in penalties and interest…but he did save $2.42.

Don’t be a Bozo. E-File (and you don’t have to worry at all about the Post Office), or spend the $3.50! And you can go all out and spend $2.80 and get a return receipt, too (though you can now track certified mail online). For another $1.60, you can get the postal service to e-mail the confirmation that the IRS got the return (for the OCD in the crowd). There’s a reason every client letter notes, “using certified mail, return receipt requested.”

Bozo Tax Tip #5: Procrastinate!

Monday, April 8th, 2019

Today is April 8th. The tax deadline is just seven days away.

What happens if you wake up and it’s April 15, 2015, and you can’t file your tax? File an extension. Download Form 4868, make an estimate of what you owe, pay that, and mail the voucher and check to the address noted for your state. Use certified mail, return receipt, of course. And don’t forget your state income tax. Some states have automatic extensions (California does), some don’t (Pennsylvania is one of those), while others have deadlines that don’t match the federal tax deadline (Hawaii state taxes are due on April 20th, for example). Automatic extensions are of time to file, not pay, so download and mail off a payment to your state, too. If you mail your extension, make sure you mail it certified mail, return receipt requested. (You can do that from most Automated Postal Centers, too.)

By the way, I strongly suggest you electronically file the extension. The IRS will happily take your extension electronically; many (but not all) states will, too.

But what do you do if you wait until April 16th? Well, get your paperwork together so you can file as quickly as possible and avoid even more penalties. Penalties escalate, so unless you want 25% penalties, get everything ready and see your tax professional next week. He’ll have time for you, and you can leisurely complete your return and only pay one week of interest, one month of the Failure to Pay penalty (0.5% of the tax due), and one month of the Failure to File Penalty (5% of the tax due).

There is a silver lining in all of this. If you are owed a refund and haven’t filed, you will likely receive interest from the IRS. Yes, interest works both ways: The IRS must pay interest on late-filed returns owed refunds. Just one note about that: the interest is taxable.