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Tax Maths Of Emotional Distress When Insurance Is Present (November 1, 2019)
Handy Tips From: Tax Debt IntroductoryConsiderations (September 3, 2019)
Tax Debt Introductory Considerations (September 4, 2019)
Instructive Warning Cases(August 19, 2019)
Bankruptcy & Offer-In-Compromise – The Hot Dog Stand Paradigm (August 18, 2019)
PDF Version of: A Tax Debt Only Comparison of Offer-In-Compromise & Chapter 7 Bankruptcy in California Starting From a Homelessness Base Case(August 15, 2019)
How Far Can You Delay Paying Federal Tax Authorities Before Criminal Evasion Charges are Filed?(August 10, 2019)
"TAX DEBT CONTROL" https://rebrand.ly/Aug14TD(July 22, 2019)
Taxpayer First Act Credit Card Trap(July 12, 2019)
There are Usually 6 Tax Choices At Any Given Point In Time(July 10, 2019)
Taxpayer First Act Pt 2(July 07, 2019)
Taxpayer First Act Pt 1(July 06, 2019)
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Tax Maths Of Emotional Distress When Insurance Is Present

November 1, 2019

 

In March of 2019 there was a terse announcement by the IRS entitled "Recipient of sexual harassment settlement may deduct attorney fees" (as reported in a tax daily newsletter communication). My initial impression was that the IRS had magically decided to allow the same types of deductions for which plaintiffs in certain enumerated employment & whistle blower claims are eligible, and which can be categorized as "above the line deductions"(IRC sec. 62(20)&(21)). Sadly, this was not the case. The announcements were not complete and probably had the character limitation malady from which Twitter suffers.

Of course, the "whole" of the announcement was expanded and corrected by follow-up language that narrowed the breadth of the announcement. The whole of the announcement stated "the recipient of a settlement of a sexual harassment claim is not precluded, by Code Sec. 162(q)'s disallowance of deductions related to sexual harassment claim payments, from deducting attorney fees related to the payment." I again mistook this to mean that attorney's fees and costs could be deducted from harassment awards.

The IRS finally put out an FAQ on its site that stated: "Question: Does section 162(q) preclude me from deducting my attorney's fees related to the settlement of my sexual harassment claim if the settlement is subject to a nondisclosure agreement? The somewhat evasive answer: "No, recipients of settlements or payments related to sexual harassment or sexual abuse, whose settlement or payment is subject to a nondisclosure agreement, are not precluded by section 162(q) from deducting attorney's fees related to the settlement or payment, IF OTHERWISE DEDUCTIBLE [capitalized emphasis].

This qualifying language "if otherwise deductible"means that for victims, sexual harassment claims are like other personal injury recoveries, generally NOT deductible and therefore are 100% includable in the plaintiff's income unless the damages are due to "personal physical injuries or physical sickness." IRC Sec. 102(a)(2) states:

"(a) In general, except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include: (2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness;"

Further any settlement agreement must "spell out" and allocate to the "personal physical injuries or physical sickness" claims separately if the claimant has any hope of having that portion of the settlement be recognized as non-taxable. In the non-published case of Mumy v. CIR (T.C. Summary Opinion 2005-129 of 2005) a $12,000 settlement for harassment and a physical arm pinch "referenced the harassment, personal injury, and emotional distress allegations in a preliminary "whereas" clause...and then specifically stated that "Settlement is made only to buy peace and to compromise disputed claims, and to avoid the expense and inconvenience of trial." All of the $12,000 was found to be income of plaintiff.

If the parties had agreed and made two claims, one claim for $6,000 for the pinch and one claim for $6,000 for the emotional damage, the income would likely have been only $6,000 and the attorney fee of $500 would have been split in accord with the recovery absent some evidence of the amount of attorney time spent on each claim. Only a precise, reasonable amount of detail in the settlement agreement can mitigate the lack of deductibility of costs and attorney fees for "emotional distress."

An example of tax non-deductible of court costs and attorney fees might include a $100,000 settlement with $10,000 of court costs, and $40,000 of attorney fees. All $100,000 is added to the income of the plaintiff, who may pay as much as $15,416 in federal taxes (assuming no other income and excluding state tax). After paying the attorney fee, court costs and taxes, the plaintiff benefits by $100,000 - $10,000 - $40,000 - $15,416 = $34,584. (If the settlement is large enough to push the plaintiff into a higher tax bracket, the final benefit percentage drops further.)

The same example for complete exclusion from income (such as for physical injury) might include a $100,000 settlement with $10,000 of court costs, and $40,000 of attorney fees. All $100,000 is excluded from income, and the plaintiff benefits by $100,000 - $10,000 - $40,000 = $50,000 after paying the attorney fees, & court costs.

Against this tax deductibility system, is the Tax Cuts & Jobs Act. Congress added 26 U.S.C. Sec. 162(q): Payments related to sexual harassment and sexual abuse No deduction shall be allowed under this chapter for: (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney's fees related to such a settlement or payment.

The above was the provision that caused so many to mistakenly postulate that no tax deductibility would be allowed to victims who agree to keep their settlements confidential. The IRS FAQ emphasized that "otherwise deductible" referred to the prior state of tax deductibility as it was before section 162(q), but they could have simply interpreted 26 U.S.C. Sec. 162(q) to relate only to payor defendants (though that would have been too clear and easy an announcement) .

The purpose of IRC Sec. 162(q) is to deny a payor defendant a tax deduction when the settlement is made with confidential provisions. The idea might be such that an extra penalty is in order for a company electing confidentiality since confidentiality makes it more likely for a coverup or for the conditions that created the violation to continue. In addition, the extra cost due to inability to tax deduct a payor's damage payment might cause parties to opt for a non-confidential settlement benefitting the public.

Of course, the differential cost between confidential and non-confidential settlement will depend upon the marginal tax rate of the payor. Currently (2019) the top marginal rates are 21% for C corporations, 35% for professional corporations, and 37% for individuals. Using a $100,000 settlement amount, the ability to tax deduct the settlement is worth $21,000 to a C corporation, $35,000 to a professional corporation and $37,000 to an individual sole proprietor employer. It is financially painful enough to pay $100,000.00 as a settlement, but the loss of deductibility amounts to an additional fifth to one third as a penalty because the settlement is confidential.

This appears to be what congress had in mind when they passed Sec. 162(q). However, the use of insurance can severely mitigate this "economic punishment" arising from blocked tax deductibility. Commercial insurance policies typically work from a coverage limit and a policy deductible. The policy deductible is an amount that the insured is responsible for paying, while the insurance policy limits above the deductible is the responsibility of the insurance company.

The policy premiums are typically deducted as ordinary and necessary business expense after purchase and before an insurable event occurs. The policy deductible is typically subtracted from any claim paid. This means that only the deductible is paid by the insured. As such the deductibility or limit of deductibility is controlled by and paid by the insured. The insurance company's payout is related to reserves, and taxation of insurance performance is beyond the scope of this article.

An ELPI (Employment Practices Liability Insurance) policy is the type of commercial liability insurance that insures against employment harassment claims. Continuing the example above, if an insurance policy for $100,000 with a $1000 deductible will cause and enable the insured to deduct $1000 if the claim is non-confidential, and no deduction if the claim is confidential.

At the tax rates above, the inability to tax deduct the $1000.00 policy deductible costs employer payors an additional costs of $210.00 to a C corporation, $350.00 to a professional corporation and $370.00 to an individual sole proprietor. This can be considered to be either (a) a much reduced penalty for keeping the settlement confidential, or (b) a signal for the plaintiff to ask for more compensation to try and capture the "theoretical restored artificial tax deductibility" that comes from having insurance.

Of course, if the case goes to jury, the jury will probably not be allowed to consider insurance. The presence of insurance is likely to benefit the plaintiff even more where the plaintiff presses for some part of the "theoretical restored artificial deductibility" that comes from having insurance. In the example, the additional available benefit of not needing tax deductibility amounts in play (due to the presence of insurance) are $20,790 to a C corporation, $34,650 to a professional corporation and $36,630 to an individual sole proprietor.

Therefore, when an ELPI policy is present, the payor is likely to be insensitive to tax deductibility and thus may always want confidentiality unless the policy deductible amount is very large. When an ELPI policy is present and confidentiality is sought, a savings of roughly 20.8%; 34.65% and 36.6% of the claim results by having bought the insurance policy. These amounts of money were sought by congress as a tax deductibility punishment for non-insured payors, and under proper circumstances may represent percentage additional recoveries for plaintiffs as a starting bid for agreeing to confidentiality.

Other Articles Outside the Tax Debt Approach blog:
Debt Control Extensive Outline (8/14/2019)
Pre-Startup Efficiency – Introduction (Parts 1&2) (2016)
9th Circuit Rejects “One Day Late Rule” for Late Filed Return Tax Dischargeability (2016)
Give My Start-Ups a Break! (2015)
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September 4, 2019

 

Tax Debt Introductory Considerations

Let’s back up and do an introduction and talk about some important points about what tax debt is and how to best deal with it. Much of the introduction may not lend itself to a step-wise exploration, many of the principles tend to range throughout the process. This particular post may be supplemented or amended from time-to time.

Tax Relief Companies – The Bad Rap —
First, lets talk about “Tax Relief Companies.” The complaints about these companies tended to be that they were (a) expensive, (b) didn’t provide useful planning, (c) had an open-ended cost structure, (d) resulted in action that didn’t attempt to discover all the records, (e) performed actions that had little chance of success, (f) used “urgency” to try and excite taxpayer action, and (g) were so disjointed even a taxpayer trying to move the process forward encountered “progress resistance.”

It may be that the more important within this group of factors is a combination of (b) & (f) planning & false urgency. Included in the “Tax Debt Approach” blog is the need to consider monitoring as a positive, tangible alternative. In fact, many of the cases in which the taxpayer took action and failed, there was something that caused such a sense of urgency that it prevented a more balanced consideration of all the factors in the case.

The other factors cited by critics of “Tax Debt Services” will be dealt with in a different order because the ability to most efficiently free one’s self from tax debt starts at the earliest stages of interaction with IRS. The entire set of limits on tax collection are based upon the need to “move on” both for the good of IRS and for the good of the productive humans that create tax trouble for themselves. There are many instances where a taxpayer’s troubles started with the IRS, not all taxpayers get into trouble on their own. But, its very much like having an annoying relative at your work place; they have to be dealt with in a unique fashion to prevent the relationship and the controversy from irretrievably going down the drain.

Choosing to be in America – What it means to join the American Tax System —
This is not as tautological nor trivial as it might seem. If someone comes to America to reside here, what are they promising to do, and what are they giving up? They promise to be honest and to participate in a voluntary tax system. They agree to disclose ALL of their bank holdings overseas that cumulatively total over $10,000 in U.S. currency every year(FBAR). They agree to disclose overseas interests having a threshold total based upon income and filing status (Fatca).

This seems strange for foreigners used to having the bank remove their interest income tax before letting them touch their interest earnings for the year. Most foreigners come from majority tax jurisdictions that only tax people when they earn money while located in the country of residence. The U.S. and Eritrea are probably the only two countries that tax their citizens and current residents on income from all sources no matter where located.

So, when you think of an EB-5 immigrant you may be impressed that the moment they become a tax resident, they essentially have to disclose the bulk of their worldwide cash and interests. There are more disclosures relating to foreign company and controlled corporations. In essence, an immigrant of substance gives up many privacy rights that are not imposed on all (except Eritrea) of the other countries on the planet. Much of the additional rules and disclosure requirements happened as a result of 9/11, but they may always be the law, and will probably become more onerous over time.

A typical immigrant may have spread a portfolio of cash and assets across many bank accounts located throughout many countries. Absent laws and rules, this is basic diversification action as any given country, currency and bank can fail. The first tax return filed after becoming a U.S. resident essentially will disclose nearly all of the assets under taxpayer control, creating perhaps the first moment that the nexus of ownership of these assets have ever appeared in one document. Most solvent immigrants would do well to simply transfer everything they own to the U.S. to avoid extra accounting and disclosure associated with having overseas assets.

Efforts required to remain in Good Standing in the American Tax system —
Americans have a duty to keep records in relation to the complexity level at which they live. A worker for wages only with no need for deductions only needs a pay stub from an employer and an annual W-2 wage and income statement to file with a short form 1040-EZ tax return. A worker with extended holdings, including real estate and a business has to keep a much more detailed set of records. Good record keeping kept in the ordinary course of business can be shown to the IRS as proof of the basis upon which the proper tax is owed.

Lack of good record keeping can be punished civilly with loss of deductions. Criminally, the lack of records can be construed as an indication lack of criminal intent, or it might be construed to indicate a cover-up. If a taxpayer is honest, keeping records is the best policy. If a taxpayer either will not or can not keep adequate records, making an attempt to get help can go a long way to eliminate criminal intent.

Tip #1: A tax account with IRS should be treated with the same concern and care as one would treat a credit card or billing account. There are rights for credit card accounts, billing accounts and tax accounts and they are each different.

Non-tax Accounts Compared —
Non-tax accounts usually have rules that reward close scrutiny and this is also true of tax debt accounts. For a checking account, the account holder is responsible to see that forged checks are discovered, and can avoid payment if the error is reported to the bank early enough. Credit card accounts with erroneous entries or unsatisfactory purchases can be reversed if discovered and reported within a reasonable time. Tax accounts which have error should be challenged in writing at the first available moment.

Tip #2: A taxpayers opportunity to demand and make use of taxpayer rights are maximum at the earliest possible moment of discovery, and diminish for every time increment and deadline which passes, whether because of not knowing the problem or ignoring the problem.

Non-tax Debt Compared —
Non-tax debt usually has a requirement that a creditor bring a lawsuit and prove the existence, reasonableness and lack of defenses for a given debt. Tax laws give government the many of the rights that a non-governmental creditor has, but without having to bring suit and “prove up” the debt. Some of these rights include the right to tale money from the debtor’s bank account, record a security interest in the debtor’s property, and garnish the debtor’s wages. Government’s need to sue every taxpayer for its tax debt would overload and burden and possibly paralyze government. It is believed that taxpayer rights and procedures form a more efficient substitute for lawsuits against the debtor, and enable a more differentiably controllable apportionment of burden of proof.

Tip #3: The procedural burden and risk on the taxpayer to suffer the punitive financial pain from misunderstandings regarding the tax debt account should encourage high involvement in investigation and tracking of the taxpayer’s tax accounts, but many taxpayers “put their heads in the sand” because facing something they believe they cannot control is simply too painful. Ignoring the problem is a gateway to disaster.

IRS Engagement and Analytical Effort —
“Engagement and Effort” are key to dealing with the IRS, and a part of being present in the American Tax System. Non-engagement is perceived by IRS as an indication that the taxpayer is trying to skirt tax obligations. Non-effort is an indication that perhaps the taxpayer is possibly deliberately intending not to pay tax obligations.

A good financial analysis performed or kept by the taxpayer, especially with an assist from a tax professional ( if the taxpayer has a better use for their time in organizing it) can help formulate a solution. If no early contact is made, IRS will use its lien rights for real property equity, high price personal property, bank levy, and wage garnishment. Put another way, if you have been operating honestly, you need to reveal your circumstances to IRS or risk being treated as if you were trying to get away with something. Understanding, preparing and filing one’s own taxes will likely connect a taxpayer with knowledge as to what is going on with their own finances and tax account.

Tip #4: Lien, levy, garnishment should be NO REASON for taking blind, quick action with a mind simply to stop such lien, levy, or garnishment. First, taking action will extend the IRS collection statutes (all years), and the bankruptcy tax discharge statutes(all years). Where there is a distant milestone with significant savings to the taxpayer, an immediate action is likely to push such a valuable milestone, such as a CSED expiration date farther into the future. It could be that if the taxpayer avoided doing such a tolling act, that the taxpayer may have a balanced chance to achieve enough passage of time to reduce the tax owed.

Go Adversary if it Goes Criminal —
If a taxpayer has made a fraudulent misrepresentation as to income, deductions, evidence or critical facts, the taxpayer is in danger of being criminally charged. Its difficult to realize as its developing, but always be on guard. In many cases what starts as an ordinary audit can turn into a criminal investigation. Most pure tax evasion issues are somewhat complex, in that even if a single element is mis-stated, there are other elements that may mitigate fault or intent. Due to this complexity, and partially motivated by political concerns, the government requires several high level sign-offs and a thorough investigation before initiating actions resulting in a criminal indictment.

A key to government prosecution for tax evasion is related to a magnitude threshold judgement on whether the result will result in felony incarceration. The sentencing current sentencing chart requires a “tax loss” of over $6,500 to correspond to more than a year in prison an offense level of 10. But this level is too chancy, especially for a first time offender. With subtracted points for “acceptance of responsibility” (2), “minor role” (2) and “cooperation” (?) depending upon how a defendant cooperates. An offense level of 10 could be reduced to 6 or 4 and become eligible for probation with no time spent in prison.

However, even an establishment of a “tax loss” of over $6,500 is subject to argument. So, adding 6 points to 10 to make 16 corresponds to a tax loss of over $100,000. Remember that the elemental transactions that contributed to that $100,000 tax loss might not all be of equal strength. In that case, maybe a prosecutor might tend to look for cases with double this tax loss.

Conversely, there may be additional elements which bootstrap the offense level, but a prosecution having a core tax evasion might not be filed if heavy dependence on ancillary crimes is required to obtain prison time. Conversely, if the non-tax-evasion elements are sufficiently strong and the tax evasion elements somewhat weak, the requirement to obtain IRS signatures at the highest levels simply disappears. A taxpayer suspected of identity theft (which carries a 2 year mandatory minimum sentence) and $5,000 in tax loss might be charged only as an identity theft violation with the addition of tax evasion only at sentencing (since it might not mathematically extend the 2 year mandatory minimum).

Sentencing Danger for a Taxpayer with a Criminal History —
The interesting aspect of the federal system is that sentencing enhancements occur based upon the summation of a lifetime of prior convictions and prior criminal acts (both state and federal). Criminal history point additions for felony served (3), 60+ day sentence (2), and any other sentence (1), to name a few. Each two criminal history points (using offense level 10 as an example) can add an average additional incarceration for columns 1-4 of about 1.6 months per criminal history point. This means that someone with prior criminal convictions faces a more severe punishment than someone who had none.

Tip #5: Any criminal trouble a taxpayer has had in the past should make them doubly anxious to insure additional corroborating documentation and proof of legitimacy for all tax transactions, especially since the taxpayer with prior convictions will receive longer sentences than a taxpayer having had no such prior convictions. (Put another way, the Justice Department can prosecute a case with a lesser tax loss and still achieve a felony incarceration for a defendant.)

Willful Failure to Pay is also Tax Evasion —
Taxpayer sometimes forget that not all tax evasion prosecutions are based upon a transaction in the past that becomes discovered and prosecuted some time in the future. Some may occur based simply upon not paying, despite a line of cases that would seem to give the taxpayer a right to withhold payment until some absolute (non-ratio, or non-partial)form of relief became available. For example, In Re: W. David Fretz (11th Cir 2001), a tax debtor didn’t file a tax return for 10 years, and then filed all his past returns at once and was successful in discharging tax debts in issue ($1 million) in bankruptcy court more than 2 years later. The government appealed and the court of appeals for the 11th circuit, reversed, noting that the alcoholic debtor worked overtime for 10 years (was aware of his duty to pay) and that circumstances were a little to neat, holding “[that] Dr. Fretz’ attempt to evade or defeat his tax liability was not willful is clearly erroneous.

Many taxpayers each year are successful in discharging their tax liability. Most discharges are based upon multiple years of tax debt owed. However the old adage “pigs get fat, hogs get slaughtered” is one form of explanation as to why extreme cases that fit within a pro-taxpayer rule (“simply not paying owed taxes is not enough” to prove wrongdoing) will fail when the facts are extreme. If a taxpayer owes taxes, the actions, attitudes and showing made by the taxpayer could ameliorate the result that occurred in the Fretz case, above.

Tip #6: If the reader of this blog was sitting on a jury and judging another taxpayer’s good faith efforts, what types of actions would you want to see them attempt or do in order to show good faith? For example, a tax debtor should consider making a payment to IRS from time to time, and especially diverting a portion of an unusual windfall to show intent to repay. Should a prosecution occur, it might be difficult for a judge to block the evidence of payments from the jury.

Think How Events Now Will Appear in Future —
Every action a tax debtor takes may be examined under a microscope in future. The legitimacy of a taxpayer’s tax debt should be challenged immediately. Full engagement with IRS should be achieved every step of the way. It is much more difficult to later charge fraud or evasion when early engagement and early statement of position has been employed.

Psychologically, it is much easier for IRS to compromise and in a more favorable way, earlier than later. Once sides become entrenched, the chance for a more taxpayer favorable outcome is reduced. Even if the settlement is not what the taxpayer wanted, it is less expensive to settle early given penalties and interest than later. If other tax debts from other years are such that the taxpayer genuinely cannot pay, fighting over a small magnitude tax debt can (depending on the routes chosen) push the 10-year collection statute on the other tax debts even farther forward in time. Both the magnitude and legitimacy of the more recent tax debt should be considered.

Every taxpayer should keep in mind that every action or lack of action should be explained and made reasonable with good and sufficient evidence. Every negative deviation perceived by IRS will increase the lack of trust in the facts and data that will translate into a belief that a taxpayer is really withholding the much more fraudulent facts which need discovering. Always be truthful to IRS, but the scope of any inquiry needs to be controlled both for efficiency and to prevent an unbridled fishing expedition.

Tip #7: One of the most valuable tools a taxpayer has in dealing with the IRS is an independent tax practitioner that will deal with IRS in a non-emotional way, keep IRS on topic to both limit the scope of the audit where possible, as well as to document any attempts to “hunt” for other taxpayer problems in order to leverage the outcome of the audit to the IRS’ favor.

Privilege Level is Important —
Each taxpayer should think deeply about their level of culpability regarding their problems with IRS. Representation can be important, and there is a set of rules on privilege. Loss of privilege generally means that the government could call a person to testify against the taxpayer.

(1) Anyone that accepted money to prepare a tax return for submission is a “preparer” and has no privilege as to that return. This is true regardless of whether the preparer is non-enrolled, an enrolled agent, a CPA or an attorney. This is one reason that I generally don’t prepare individual’s returns, including late returns. If a taxpayer files late returns and uses a preparer, that preparer may be forced to testify if the identity of the preparer were discovered.

(2) Federally authorized tax practitioners include EAs, CPA’s, and Attorneys. However, the privilege of EAs and CPA’s are governed by 26 U.S.C. sec. 7525 and it only extends to civil representation matters. What this means is that if an investigation goes criminal, the practitioners that rely only upon 26 U.S.C. sec. 7525 lose their privilege. Loss of privilege (as would be the case for practitioners that were “return preparers”) means that the practitioner can be called as a witness against the taxpayer from whom they learned potentially damaging information.

(3) Attorneys are the only class of federally authorized tax practitioners that can hold privilege in a criminal tax matter. If a taxpayer needs to oppose IRS in a matter that might become criminal, it makes sense to start with an attorney. Any EA, or CPA that is exposed to your case, and who can be found, can potentially be called as a witness against a taxpayer. Life is not always fair, as we learn from US v. Willena Stargell (CA 9th. Cir. 2013) No. 11-50292, where a district court allowed a fired criminal defense attorney to become an expert testifying against the client at sentencing. This is rare and really not fair, but why should a taxpayer make it easy for the government to put them in jail by starting with an EA, or CPA when there is any possibility that a tax controversy could turn criminal?

Tip #8: Consider choosing an attorney for IRS representation and be completely forthright about which aspects of the IRS interaction may likely turn criminal. An attorney that can represent a taxpayer criminally, and who is forearmed with knowledge of the problem has a much greater chance of either minimizing the probability of trouble, or at least minimizing the degree of damage.

Payment Plan Trap —
There are two main things to watch out for if you sign up with IRS for a level payment plan. First, you lose the ability to designate what years and what taxes your payments are being applied. To make it simple, lets say a taxpayer owes $5000 on their taxes from a year ago and $5,000 on their taxes from 5 years ago. Because the tax debt from 5 years ago could potentially disappear via bankruptcy, the government would like to payoff that 5 year old debt first. The more recent $5,000 debt is not dischargeable in bankruptcy and thus the government would rather apply it to an older debt that could be discharged. An installment agreement allows the government to choose which taxes and tax periods in which it will apply the payments.

A taxpayer has the ability, by communicating the year and tax to which a voluntary payment applies along with the payment and IRS has to apply it as per the taxpayer’s wishes. I’ve had older taxpayers say “I fully intend to pay the government back, so who cares how it is applied?” When it is pointed out that they could have an accident in the coming years, or a heart attack and may not be able to work, they might have bankruptcy as a “no choice” option. In the example above, paying off the more recent $5,000 debt first would leave them in a position to discharge the older $5,000 debt later. Further, there may be non-tax debts that drive the bankruptcy decision, and a pressing need for early filing would cause more recent tax debts to survive the bankruptcy.

The second payment plan trap involves defaulting on an installment agreement’s payments. The government will be more reluctant to trust a taxpayer or a taxpayer’s other pleas for help when an installment agreement is defaulted. With no installment agreement, there is no installment agreement to default. If a taxpayer had a record of sending various amounts per month to pay a tax debt, those amounts would create their own record of intent to repay the IRS. And, the taxpayer could designate the years and taxes to which they apply while doing it. Further, a month when the taxpayer cannot make a payment (or makes a small payment) will still not disrupt the establishment of a record of intent to repay.

Tip #9: Depending upon all conditions, it can be a real advantage for a taxpayer to operate their own repayment plan in accord with month-to-month and week-to-week ability to pay. Such a “taxpayer directed” payment plan will provide flexibility, the ability to allocate tax and years, and proof of intent to pay.

Discover as Many Aspects of Assets and Tax Before Taking Action —
A taxpayer has a greater chance consider and craft an optimum tax debt solution strategy if the taxpayer starts planning at the earliest possible moment. So many taxpayers adopt a strategy to “putting off” dealing with the tax problem until they believe they are forced to take action — usually in response to a threat of garnishment, levy, or lien filing. In most cases, garnishment, levy, or lien can be avoided by early action.

However no imminent threat of garnishment, levy, or lien should trigger an unthinking reaction to avoid the inconvenience of any or all of these possibilities. If a taxpayer requires 2 – 4 months to get a complete picture of their position and options, the possibility of 2 – 4 months of garnishment or levy will be unpleasant, but the taxpayer needs to know and understand a full analysis before taking action. Taking action that fails to achieve the goals costs the tolling of tax debt statute of limitation, possibly prolonging the debt condition for additional years.

Tip #10: Review all financial aspects and debt relief possibilities for tax debt, including bankruptcy enabling statutes and tolling, Bankruptcy outcomes, the collection statute and tolling, the effect of taking an action, and the effect of monitoring and planning to take action after specific milestones are significantly passed in the future.

Preparing and Filing One’s Own Taxes —
Much like a river that begins with a small stream, most tax debt problems usually start with some small deviation early in time. A deviation from what “should have been done” can occur on the taxpayer side or the IRS side. Any two entities that transact information and accounts can have errors.

A taxpayer that keeps complete records can have an advantage on government when errors occur. Moreover, a taxpayer that keeps complete, provable records can begin to achieve a probability shift in which the government is probably the entity that made the error. A government error can be costly, but it is likely to be less costly when detected and addressed early.

(a) Self-filers have better knowledge of their own transactions: Taxpayers that file their own taxes are in a better position to know the match between what they are filing and their own earnings and deductions. Self-filing taxpayers are in a better position and have a better incentive to keep records than taxpayers that continually try to divorce themselves from involvement in their own financial affairs. Taxpayers that self-file know the effect of deductions, their marginal tax rate, and can make decisions in their business and financial life knowing how each decision will impact their taxes.

(b) Self-filers assume self-responsibility: Taxpayers often use a paid preparer along with an attitude that if something goes wrong, its the preparer’s fault. The preparer industry is under pressure to increase profitability, without charging a prohibitively high rate for the time they spend on a particular taxpayer. So, increased profitability for a tax preparer will generally translate into less time spent on each taxpayer, against the hope that responsibility for developing problems can disavowed or garner additional charges to fix. Intake checklists are used to help establish isolation of responsibility away from a tax preparer.

(c) Self-filers have records organizational control: Self-filing Taxpayers are more likely to keep and treasure their records both because they don’t visualize dumping the records and responsibility on someone else, and they know that those records may be needed to settle later disputes, tax or non-tax. Self-filers are probably more likely to store records for later retrieval to facilitate quickly providing IRS with record proof and detailed explanations the moment that IRS raises a question. Self-filers are more likely to have returns that match prior returns and have kept records that match with prior year’s records.

(d) Self-filers have tax compliance control: Self-filing Taxpayers are more likely to keep and treasure their records both because they don’t visualize dumping the records and responsibility on someone else, and they know that those records may be needed to settle later disputes. At present, taxpayers can file their own taxes and take greater steps to preserve the record of filing by using cover letters reciting contents, keeping detailed computer scans of what was sent, and using delivery service tracking numbers to show that a return was actually filed. Tax preparers are generally “forced/encouraged” to file electronically. Electronic failures include IRS failure to generate a proper receipt or rejecting an electronic filing or otherwise electronically “losing” a filing due to IRS computer problems. Self-filers can research their positions and assure themselves of the propriety of taking a position that a tax preparer might not risk such a position due to the “preparer penalty.”

(e) Self-filers have confidentiality control: Self-filing Taxpayers need not share their information with anyone. Self-filing taxpayer can submit returns and payments by mail and need not go on-line. A filing single taxpayer with no partnership business or employees need not share information with anyone and automatically avoids the 18 U.S.C. sec. 371 conspiracy to defraud government. As stated above in greater detail, anyone that helps a taxpayer prepare, decide on a position, or file a tax return for pay has no confidentiality (and can thus be made to testify against the taxpayer). Self-filers are better able to keep their identity, finances and confidentiality by staying off-line. Therefore also, avoid “the cloud.”

Tip #11: A taxpayer should self-prepare and file their own tax returns in accordance with their own involvement in their financial lives, and also remember to keep all financial information, discussions, and bookkeeping off the Internet and isolated from any possible breach in confidentiality by anyone.

Other Sections within this blog:
Instructive Warning Cases
Bankruptcy & Offer-In-Compromise – The Hot Dog Stand Paradigm
A Tax Debt Only Comparison of Offer-In-Compromise and Chapter 7 Bankruptcy in California Graduating From a Homelessness Base Case
How Far Can You Delay Paying Federal Tax Authorities Before Criminal Tax Evasion Charges are Filed?
Taxpayer First Act Credit Card Trap
There are Usually 6 Tax Choices At Any Given Point In Time

Other Articles Outside this blog:
Debt Control Extensive Outline (8/14/2019)
Pre-Startup Efficiency – Introduction (Parts 1&2) (2016)
9th Circuit Rejects “One Day Late Rule” for Late Filed Return Tax Dischargeability (2016)
Give My Start-Ups a Break! (2015)

 

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August 19, 2019

Instructive Warning Cases


The recent case of Hugger v. Warfield (In re Hugger), 2019 WL 1594017 (9th Cir. BAP Apr. 5, 2019)(not officially published for citation)(http://cdn.ca9.uscourts.gov/datastore/bap/2019/04/08/Hugger%20-%20Memorandum%2018-1003.pdf), U.S. Bankruptcy Appellate Panel of the Ninth Circuit (the “BAP”) in an Appeal from the United States Bankruptcy Court for the District of Arizona, illustrates mathematically one of the harshest outcomes to occur when seeking tax debt relief. A debtor sought to discharge $40,000 in tax debt through a chapter 7 bankruptcy. The amount of non-tax debt totaled $569.

As is not untypical, the taxpayer in this case filed late tax returns
for 2001, 2002, 2005, 2006, 2009, 2010, and 2012, all in September 2015. Under the bankruptcy discharge of taxes rules, the tax year due date must be at least three years old at the time of at the time of filing the return and as to this, all years qualified except for 2012. The second requirement is that at the time of filing the bankruptcy case, the tax filing date must have been at least two years old.

The September 2015 tax return filing date indicates that September 2017 would have normally been the earliest date that bankruptcy should have been filed. A decent temporal safety factor might have even been added, depending upon potential tolling activity after all taxpayer records were searched and analyzed. Even with no indicated tolling it would have probably have been better to file the bankruptcy October 2017 or later.

Debtors can face significant pressure and financial pain before taking action. However, a bankruptcy filing has significant negative effects and is not easy to undo, and in some cases is impossible to undo. Any bankruptcy filing that is dominated by a desire for tax debt relief should be investigated thoroughly to avoid the type of result that In re Hugger exemplifies.

The In re Hugger debtor filed a chapter 7 bankruptcy case on January 9, 2017, at least 9 months too early (even without tolling). On May 9, 2017, the U.S. Bankruptcy Court for the District of Arizona entered the Debtor’s discharge, and the bankruptcy case was closed a few days later. By September 2017 it was realized that the bankruptcy was filed too early and the debtor began action to re-open the case, undo the discharge, and ask that the bankruptcy case to be dismissed so that taxpayer could have a later “do over,” so to speak.

Requesting and receiving a chapter 7 case withdrawal of discharge followed by a dismissal is not as easily done as in a chapter 13 case. The main standard to be met is that the actions must be shown to benefit, and not harm the creditors. In this case the creditor was the United States. The premature bankruptcy filing benefited the United States, and to allow an unwind would be prejudicial to the creditor interests. Both the bankruptcy court and the BAP denied withdrawal of the discharge and dismissal of the case. The bankruptcy filing and discharge (which did not discharge the tax debt) stands.

Some factors to consider from this case are:

(1) The bankruptcy filing date was so premature that it may be likely that the statute of limitation rules were not understood.

(2) Even if the taxpayer was facing a garnishment, putting up with 9 or more months of garnishment would have been preferable to tossing away the right to discharge the balance.

(3) As in (2) above, any motivation to take quick, thoughtless action should be avoided. Tax debt based bankruptcy filings should be well thought out, carefully prepared, and absolutely complete.

(4) Another reason for a well thought out filing is to make as certain as possible that bankruptcy judges will have no reason to rule against the debtor. Where the IRS insolvency unit indicates that they will oppose a tax debt discharge, the court requires an adversary proceeding by the debtor. Getting IRS insolvency unit assent might encourage debtor’s counsel to forego an adversary proceeding (which still might be risky for the debtor).

(5) It is typical for IRS to simply determine nondischargeability of part or all of the tax debt, and then sit by while a debtor omits having an adversary, then once discharge and case closing occurs, simply re-start collection activities. This is somewhat of a trap as it forces a debtor to either accept the failure, or try and fix it, by re-opening the case for the purpose of filing an adversary proceeding that perhaps should have been filed to begin with.

(6) Where tax debt is greater than fifty percent of all debt (as it was in this case) the means test is not necessary. This might facilitate haste in filing rather than increase the quality of information in the schedules.

Aside from the limitation periods and tolling, the case of Ilko v. California State Board of Equalization (In re Ilko) 651 F.3d 1049 (9th Cir. 2011) (http://cdn.ca9.uscourts.gov/datastore/opinions/2011/06/27/09-60049.pdf) is instructive of dischargeability of derivative taxation before assessment. In Ilko, bankruptcy was filed based upon a contingent debt under California’s Rev. & Tax Code 6829. Debtor believed that a bankruptcy filing based upon a contingent (possible future) secondary debt would result in discharge.

The thought may have been to simply “list” potential creditors for contingent debts in the hope of getting an advance discharge. This case emphasizes that by contrast tax debt cannot be discharged in bankruptcy before it is assessed. What it means is that assuming a tax debt that meets the 3-year, 2-year, and 240 day rule in bankruptcy, that future assessments for that year are not dischargeable.

Thus, a taxpayer making it past the 3 year assessment statute, knowing that some fraudulent amounts have been omitted from the return, may have the added amounts assessed, and they will be nondischargeable unless a further bankruptcy filing occurs more than 240 days after the assessment. So, a bankruptcy filing at year 3.5 followed by later assessed debts based upon fraud will not discharge for at least 240 days after the assessment. So, the timing for filing bankruptcy within any limitations period should always consider the possibility of unassessed (or not yet assessed) tax debt liability potential.

For any later assessment, the prohibition on bankruptcy re-filing will provide an additional obstacle as there are time limits for filing a further bankruptcy that depending upon which chapters were chosen for the first and subsequent bankruptcies. Failure of discharge of tax is more often followed by an offer in compromise if there is a genuine inability to pay, rather than a second bankruptcy. Of course, most secondary assessments are based upon some sort of finding of “responsible person” liability so at least there may be some ability to avoid an assessment on that basis before considering bankruptcy, offers in compromise, etc.

 

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August 18, 2019

Bankruptcy & Offer-In-Compromise – The Hot Dog Stand Paradigm

Have you ever walked down the street and made eye contact with a hot dog stand vendor? Did you notice that the vendor grabs his tongs and pulls out a square of hot dog wrap paper in preparation for you to complete an order even before you have had a chance to say one word? It can be awkward to ask the time, or to ask directions, once the vendor is armed with their “weapons of the trade.”

The next quick action is asking you what type bun and what type link you want. You might have been approaching the vendor to ask for marital advice. It doesn’t matter. The vendor scoops up his tools of the trade and positions to complete a hot dog assembly without having to look. Its such a smooth move, as if it were the billionth time this month.

Of course, if the vendor was asked to provide a “t-bone steak lunch,” all hell would break loose. “What do you think this is, a fancy restaurant?” The vendor expects that when the cart says “hot dogs,” that it can be read easily and that if you approach and make eye-contact, that you are “going to order a hot dog.” The irritation at a request to provide a “t-bone steak lunch,” will be greater than if you had asked the time of day or even to provide marital advice. The point is that asking about a service that is not along the same lines as “the usual” will provoke hostility and rejection. You would be lucky to get a “get out of here,” and “don’t come back”.

This “expected service” situation exists in the tax debt world. On one side there are large numbers of tax practitioners that can predominantly directly provide IRS based help, such as offer-in-compromise services. On the other side there are bankruptcy practitioners that can potentially provide tax debt relief through a bankruptcy filing. Two factors account for the rift between these two services.

First, the professionals that can provide the tax related services include enrolled agents, CPA’s, and Attorneys. CPA’s are the most numerous and have the closest connection with taxpayers by virtue of tax and accounting services. Next are the enrolled agents that provide tax preparation but not accounting services. Last and fewest in number are the attorneys that are specialized in tax and provide tax related services. As an example, the number of tax specialists attorneys in California is less than 310 at the time of this writing, although there are an unknown number of attorneys that predominantly practice tax law. The number of enrolled agents nationally is cited as 53,000 and if the distribution follows the population, California is 12% and thus 6330 enrolled agents in California.

NASBA (nasba.org) indicates that there are 654,375 actively licensed CPAs in California. So, even if tax practice attorneys were to number twenty times the 310 tax specialists, it can be easily seen that the non-attorney practitioners would be 99% of the tax practitioners available in California, excluding multiple license overlaps. This means that the overwhelming majority of the population of tax practitioners are generally unable or unwilling to apply their tax expertise to bankruptcy. Practice before IRS will involve all of the IRS actions and remedies, but bankruptcy is likely to be an unexplored mechanism for the vast majority of tax practitioners.

Bankruptcy, on the other hand, has practitioners that from a consumer (taxpayer) standpoint operate mostly with non-tax debt. Most bankruptcy lawyers know the main basic bankruptcy debt-related limitations rules relating to the 3 year from tax filing due date, 2 years from filing late return date, and 240 day from assessment date. Some may not know in-depth about the complexities of tolling, a mechanism that stops the normal day-to-day progress toward getting past a limitations date. Inaccurate and inconsistent IRS record keeping creates further difficulty in determining which of the lesser ranked events have been recorded as tolling and which are not.

Many bankruptcy practitioners, even those that understand tax debt may refrain from not ordering the taxpayer’s full records to match against transcripts to analyze tax dischargeability in detail.. In some cases this may be driven by urgency or the necessity for quick action. Often, the procrastinating public seeks help and perhaps even bankruptcy practitioners versed in the basic tax mechanism will not take the time to order a freedom-of-information act full IRS file in addition to a full set of tax account transcripts. The bankruptcy practice approach might be simply skewed toward immediate quick filing in response to some myopic impression of a focused threat.

A monolithic threat is what we humans have become most accustomed to. If we see a first hint of danger, we focus on that danger typically ignoring other dangers that may be more deadly. Many citizen taxpayers perceive a threat and only then approach either a tax practitioner or bankruptcy practitioner for the first time. The citizen taxpayer wants the matter to be resolved instantly. The problem is that the best solution for the taxpayer may be unknown in circumstances where the taxpayer demands immediate resolution.

To take one partial example from one of hundreds of possible configurations, what if a taxpayer hires a bankruptcy practitioner that computes the tax discharge eligibility based upon the 3-year/2-year/240-day computation? What if the client states that there are no tolling events, but in fact there were tolling events? What if the taxpayer transcripts have entries associated with tolling events, but they are incorrect? If there is an SFR (Substitute for Return), will it be investigated? Will the bankruptcy practitioner use the Freedom of Information Act and order the taxpayer’s whole file to verify the transcript, or simply ask the taxpayer to waive any possibility of nondischargeability of tax debt for all years?

To take that same partial example again, from one of hundreds of possible configurations, what if a taxpayer hires a tax practitioner that computes reasonable collection potential without analyzing the transcripts and testing for tolling? What if a tolling event was not reported on the transcripts? What if a tolling event was reported and was improperly entered from someone else’s records, or left open ended? Will the tax practitioner use the Freedom of Information Act and order the taxpayer’s whole file, or simply ask the taxpayer to waive any possibility of taking action before a tax year collection statute expires?

In both cases, I question whether the average taxpayer been presented with a more complete picture going forward, in order to see when milestone opportunities occur (such as the expiration of a collection statute). A taxpayer can blindly wait for a stressor, and then run to one side (bankruptcy) or the other (IRS remedies) and act, often without knowing the other side, the bankruptcy statutes, nor the tax statutes.
More importantly, the taxpayer may not have a view going forward into the future if a decision is made to take no immediate action at this time.

A taxpayer facing the need to take action now, might not know if a 2 week wait could result in substantial tax savings, and whether an eight week wait could produce even more savings. The taxpayer also needs to know that taking action will generally result in a tolling with respect to all the statutes of limitation as to other potential actions. An overly simplistic example is that a bankruptcy filing tolls the collection statute for later offer-in-compromise filings and later bankruptcy filings, just as an offer-in-compromise filing will also toll the collection statute for later offer-in-compromise filings and later bankruptcy eligibility filings.

Therefore, for any variety of reasons, a taxpayer might choose (in some cases wisely) to wait years before taking some form of action, if that taxpayer knew the approximate series of dates associated with a corresponding series of tax relief milestones going forward. Where a tax or bankruptcy practitioner is knowledgeable about statutes of limitation, its not unusual for the client to be informed about the next milestone, but usually not all the milestones extending into the future. Most practitioners don’t see themselves as having a duty to enable a “continue to monitor” outcome (which may be in the client’s best interest).

A knowledge of the nature of things going forward, what the future will look like without taking action and with triggering tolling, can be advantageous particularly where the client can’t know what exigency pressure they will face in future. The problem is that there is an extended list of actions that can toll the statute. Putting the taxpayer in control of continually monitoring future milestones while realizing that the driving impetus to take action should be a decision made perhaps at that future point in time.

Even further complicating the picture is that some tolling actions have a higher probability of being accurately recorded (or even recorded at all) than others. Actions may be recorded (accurately or inaccurately) in the IRS computer system and obtainable as transcripts, as well as a more complete total taxpayer record, possibly retrievable using the freedom of information act (FOIA). In instances where a taxpayer is taking an action that can only be justified based upon the ability to favorably compromise the tax debt it is extremely important to know as much about ALL the IRS records as is possible.

If a taxpayer is a step behind in knowledge, their efforts can create more problems for themselves than if they took no action at all. The IRS makes errors. IRS doesn’t always mean to make an error, but its something for which taxpayer should not have to suffer.

Errors in the record have to be discovered and advantageously addressed, always sooner rather than later. IRS is said to have a 40% error rate in computing the collection statute termination dates (dates where taxpayers no longer owe tax for a given tax years). If a taxpayer is past the termination of collection date, a taxpayer doesn’t owe any tax and should not be made to pay. IRS also uses substitute for returns (SFR’s) notices and “non-filer notices” to encourage taxpayers to file returns. This technique essentially depends upon the taxpayers to do tax error correction. 10-20% of SFR’s and other encouragements to file are sent in error with reliance on the taxpayer to fix the problem.

The error in SFR generation can stem from: (a) the issue of 1099 to a contractor that wrote your social security number by mistake, (b) making an inquiry to IRS and having the inquiry trigger a tolling period unexpectedly or without your knowledge (such as asking the taxpayer advocate’s office for help, as an example). For every correction response, other mailings may have been sent to a wrong address, or SFRs may be based upon errors in 1099s, social security numbers and many other bases for inaccuracy.

Even worse for bankruptcy filers, an SFR is treated as a first return filing, setting a threshold below which no amount for less than the SFR income amount can be discharged in bankruptcy. (See Chief Counsel Memo 2010-016(SFR)) (http://www.irs.gov/pub/irs-ccdm/cc_2010_016.pdf) For example, in a typical case of a taxpayer that normally receives $100,000 of revenue and a “cost of goods sold” of $80,000 would report (after reduction by the $12,000 standard deduction) a salary of $8,000 and pay a tax of about $1000. However, if IRS learns of receipt of $100,000 of revenue after receiving no return, an SFR having $88,000 of income ( $100,000 of revenue – $12,000 standard deduction revenue ) will be prepared and a tax of about $21,000 will be assessed against the taxpayer.

Even if the taxpayer submits a proper return to reduce the actual tax to $1000, any amount of tax under the threshold of $21,000 established on the initial SFR cannot be discharged. So, checking the SFR to the extent possible to determine if it was generated properly, could eliminate an impediment to discharge for the year it was wrongfully generated. It should be understood that not every non-filed return will result in an SFR, and that a proper SFR should have some verification that the basis upon which it was generated has significant legitimacy.

Given the above less-than-perfect state of affairs in discovering the correct state of the record regarding tax debt, it is important to consult with a practitioner that is interested in presenting a full and complete picture of the taxpayer’s future milestones, including (a) expiration of the 10 year collection statute of limitations for all years owing, (b) the limitation periods beyond which the tax debt is dischargeable in bankruptcy and (c) the tolling events for each tax year relating to (a) and (b), and much much more. The “professional” that is motivated to only serve up their standard fare regardless of the state of the client’s records and circumstances increase an unknown potential for harm.

 

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August 15, 2019

PDF Version of:

A Tax Debt Only Comparison of
Offer-In-Compromise & Chapter
7 Bankruptcy in California Starting From a Homelessness Base Case

The result would be different for each state in accord with available state bankruptcy  exemptions.  This paper does give an outline of one approach to organizing an analysis in other states.

 

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August 10, 2019

How Far Can You Delay Paying Federal Tax Authorities Before Criminal Evasion Charges are Filed?

A series of related cases illustrate the very bad results that can come from fighting the IRS in a non-direct way. We have heard informal rules of thumb regarding tax evasion. One rule of thumb might be that if you actually evade payment of tax for huge sum of money that you are more likely to be prosecuted for tax evasion. Another rule of thumb might be that if you are a well-known celebrity that evades payment of tax for a modest sum of money that you are also more likely to be prosecuted for tax evasion. Both ends of the well-known celebrity and high wealth parallel but oppositely oriented continua yield a less pronounced middle span largely due to the amount of approvals and signatures that must be obtained before launching a tax evasion case.

The potential criminal charges for tax evasion do not exist in a vacuum. Civil punishments can magnify the potential for criminal liability. The fundamental time period during which a taxpayer owes the government is either 10 years once tax has been assessed, or its an infinite number of years of no tax return is filed and no assessment has been made. Given a relatively slow pace of development for a non-celebrity, small dollar tax evasion prosecution, it doesn't pay to arrange to be under the IRS microscope for an extended period of time. It helps even less to become more noticeable during such an extended period of time.

The typical taxpayer files a return on time triggering an assessment (debt owed to the government) that "exists" for 10-years. At the 10 year mark, if nothing has occurred to increase the 10 year "statute of limitations" period (known as "tolling"), the IRS is no longer owed the tax debt associated with the tax event. Also, from the time of assessment, the IRS has a 3-year period to challenge the return with an audit. If some understatement problem is found (from an audit or any other source), of a sufficient magnitude to be characterized a presumptive fraud, the 3-year potential audit period turns into a 6-year audit period (from assessment).

Stating this another way, the normal flow of the process is that a taxpayer gets (1) a chance to file a correct return on time, (2a) the government gets 3 years to challenge the return via audit if the taxpayer made a less than presumptively fraudulent attempt to file a correct return, or (2b) the government gets 6 years to challenge the return via audit if the taxpayer made a more than presumptively fraudulent attempt to file a correct return. (3) the government gets a full 10 year period (absent tolling) from the day after assessment to the tax collection statutory expiration date to collect the tax.

The 10 year collection is unfortunately extended, whenever the taxpayer takes an action which requires the government suspend its collection. Some of these actions include bankruptcy, offer-in-compromise, filing a tax court petition. There are many more actions that cause tolling of the collection statute of limitation to move forward into the future. The result is that the 10 year collection period might become a 15 year collection period, or even more.

In addition, when a taxpayer has been particularly problematic for the government, the IRS can file a civil suit and obtain a judgement for collection of the tax which extends the period for collection by an additional 20 years. The judgement is renewable before the end of the additional 20 years and for an additional 20 years. So, even if there was no tolling, the use of the civil suit to obtain judgement means a 50 year collection period during which the taxpayer still owes the money.

There is a general impression that the progression of tax evasion involves cheating, then filing, and then getting caught due to the cheating mechanism. People forget that you can evade taxes by simply not paying. An evader can take action to emit chaff in hopes of escaping IRS attention. This may be foolishly done thinking that the IRS will grow weary and forget about the debt. Mostly blind, reason-deficient, struggles simply create a fervor to collect. There are procedures and rules that govern the negotiation, should be followed for a quick resolution.

Fighting IRS collection in a desperate way that ignores the policies that enable settlement, appears very like an evasive action to delay and prevent payment. Couple a perceived unwillingness to cooperate with temporal expansion (due to tolling) of the collection statutes of limitation, and the taxpayers spend a much longer period of time during which they owe and don't cooperate with the IRS. Even though the transaction of the tax year is long over, and the audit activities are probably long over, the collection period is extended, leaving the taxpayers under the collection microscope for an extended period.

IRS then has a much longer course of action with which to suspect and establish an evasion based upon non-payment and lack of cooperation. So even in cases in which the transaction and audit did not produce an evasion pattern, a long, drawn-out delay in cooperation can possibly supply the evasive elements needed to build a criminal case.

Any administrative inhibition due to the extended time required for criminal investigation and administrative approval will vanish when the taxpayer provides extension of time via statutory tolling.

Further, when the ire of the IRS has noticed activities of the taxpayer causing a value judgement that the taxpayer is problematic in delaying and misrepresenting efforts to bring the matter to a proper conclusion, it is much more likely that a judgement for collection of tax which extends the period for collection by an additional 20 years will be done. If owing tax debt to the government is painful, then extending that pain for an additional 20 years is tantamount to self-torture for what could be an additional one-third of a lifetime.

Imagine the following theoretical facts, and how they might appear to the IRS:

(1) Yr 0: Taxpayer avoids paying year capital gains on the sale of a business by using a tax shelter.

(2) Yr 3-10: IRS collection activities occur.

(3) Yr 10: Taxpayer files for bankruptcy in an attempt to discharge the tax owed, but the bankruptcy court denies discharge and finds that taxpayers willfully attempted to evade or defeat the collection of tax under 11 U.S.C. 523(a)(1)(C). (which recently has been set by legal decision to carry the same standard of proof applicable to tax evasion).

(4) Yr 12: After tolling delay from the bankruptcy, IRS resumes collection activity.

(5) Yr 15: Taxpayer utilizes administrative due process procedures, including collection due process and offer-in-compromise and are unsuccessful.

(6) Yr 16: IRS refers The Justice Department to file suit to reduce the assessments to judgement and thus extend the period for collection for another 20 years (possibly to Yr 36, and possibly to Yr 56 if extended before Yr 36).


(7) Yr 18: Taxpayer files a complaint in federal district court against a number of federal workers, including a revenue officer, collection supervisor, an advisor, a settlement officer appeals officer, offer in compromise manager, tax examiner, offer specialist, group manager and the acting director for area collection, and other yet unknown tax and justice personnel in a "Bivens" action for "a conspiratorial plot to deny him his constitutional rights, purportedly on account of his alleged disability, at all relevant stages of the aforementioned tax collection effort."

(8) Yr 19: The Bivens action was dismissed based upon the fact that because the Internal Revenue Code gives taxpayers meaningful protections against government transgressions in tax assessment and collection . . . Bivens relief is unavailable for plaintiffs' suit.

Establishment of evasion using the courses of action from the past can possibly be added to acts occurring in future to perhaps show a continuous course of dealing, an intent, establishment of a plan for tax evasion. Would YOU wish a quick resolution to this tax debt? What actions would YOU take begin such resolution?

(1) Would you start a stream of payment to IRS on a regular basis?

(2) Would you compute your reasonable collection amount and liquidate everything else and attempt a further offer-in-compromise without delay?

(3) Would you begin your own payment plan subject to a formula that was based upon the IRS cost of living standards?

(4) If your income was steady, would you set up and be willing to risk failure to try a long-term repayment plan?

(5) Given that a tax crime conviction would set up the tax debt owing as an even more onerous restitution payment, what acts and statements could you telegraph to IRS to show that steps are being taken to begin liquidation to an IRS living standards connected subsistence level?

(6) After liquidation to an IRS living standards connected subsistence level and achievement of a $0 further collection potential, would you consider asking to being placed on currently not collectible (CNC) status?

(7) Would you consider living overseas in order to possibly enable yourself to repay the tax debt more rapidly and efficiently through foreign earned income exclusion?

(8) What other actions would you consider to stave off criminal prosecution while paying off your tax debt?

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July 22, 2019

Announcing a new posting for no-cost CLE on August 14, 2019 :

California Continuing Education, Inc., Presents

"TAX DEBT CONTROL"

Taking Charge of your Relationship with the IRS

https://rebrand.ly/Aug14TD

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July 12, 2019

Taxpayer First Act Credit Card Trap

President Donald Trump signed the Taxpayer First Act on July 1, 2019. The Taxpayer First Act has a number of provisions, some of which will help IRS with its internal processes, and some of which are external and aspirational. As to one of the provisions, the IRS is about to embark on a relationship with credit card companies to allow taxpayers the ability to pay their taxes directly by credit card. As you may or may not be aware, one major possibility for a taxpayer to favorably resolve solve their IRS debt, when conditions permit is via bankruptcy. A resolution requires use of the 3-year, 2-year & 240 day limitation provisions with tolling.

Bankruptcy Code 523(a)(14) states that if a nondischargeable tax debt to the United States ( such as a nondischargeable tax or a customs duty) then any credit card debt incurred to pay such nondischargeable tax debt is excepted from discharge. As a practical matter this has been the rule for some time, but the possibility of paying federal tax debt directly with credit cards is expected to have a "short circuiting" effect, exposing what was has otherwise been an obscuring relationship between the credit card borrowing and its traceable application directly to a tax debt.

Currently, the use of credit cards to obtain money for use in paying taxes is difficult to trace because it probably involves a borrowing mechanism that uses currency as an intermediate, such as with an ATM machine. Only a few services allow transfer directly from credit card into a bank account, but the fees range from 10%-15%. Over the next few months, the IRS may be able to negotiate credit card transaction fees to 1-2% (not including interest). If and when this occurs, the use of direct credit card payment to the IRS will the greatly preferred in instances where credit cards are used as a source of tax payment funding.

This also will probably mean that tax transcripts can be expected to carry some indication to reflect the fact that a tax payment was accomplished with a credit card. Whether this indication shows up in taxpayer transcripts or is available internally at IRS, the tracing to verify the type of payment should be expected to be easy. Because the charging taxpayer is going to have to pay a publicly known credit card processing fee the records of the transactions may be even more identifiable in the bank credit card records, especially if the user fee is independently posted. In short, the fact of the direct use of a credit card to pay tax debt should be instantly and unambiguously available to both the IRS insolvency unit and to the credit card account creditor.

The combination of direct credit card use and an expected low initial transaction fee should make this option very popular, but once the option is used, it will work to the detriment of tax debtors and shift the possible remedy chosen as between bankruptcy, offer-in-compromise, and other alternatives.  Worse still, if tax debt practitioners fail to ask about credit card tax payment, or discover and understand it on the account transcript, and take it into account for an analysis of the debtor's options, unpleasant surprises will result. Also needed is a warning advisement to avoid the direct use of credit cards to pay tax debt as soon as possible, starting before this mechanism is fully implemented.

 

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July 10, 2019  

Introducing the Tax Debt Approach (Blog)

There are Usually 6 Tax Choices At Any Given Point In Time

 

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July 07, 2019     Taxpayer First Act Pt 2

To be fair, there are already a number of mechanisms to help taxpayers re-enter the middle road of tax compliance. The main theme that has operated for 10 years is "talk to me," and a need for taxpayers to get into contact with IRS.  The contact a taxpayer should have is to access & watch their IRS account in a way not terribly different from the way they access a credit card account, bank account, or other creditor's account.

One "meaty" provision of the Taxpayer First Act is the "single point of contact" mechanism for ID theft. Not only will it help IRS internal mechanisms synchronize to help combat ID theft, it will enable IRS to get and analyze a more complete and consistent data set to help better discover the causes of such identity theft. IRS can then formulate prevention protocols and begin to publicize warnings and how the particular form of identity theft can be avoided.

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July 06, 2019     Taxpayer First Act Pt 1

On July 1, 2019, President Trump signed the Taxpayer First Act. I'm expecting that enforcement of the changes may not mean much. The main fix might be a reduction in the Tax Court Load. What has happened up to now is that the taxpayer habit of not opening their mail has served a federal policy requiring an issue to be raised at a first possible (due process / appeals) hearing opportunity, or waived if the first possible hearing opportunity was missed. Since tax court petitions are usually sent back to appeals, many taxpayers file a skeletal tax court petition to try and generate a hearing opportunity before appeals. If the first hearing opportunity was waived, that waiver mechanism is still employed by appeals during the tax court remand. The result has been a bloated number of tax court filings that were submitted not to get to tax court, but to get to appeals.

Any mechanism that allows a taxpayer some appeals hearings without causing them file in tax court simply in order to get to appeals is a good thing, but the Taxpayer First law does not upset the current "first hearing opportunity" mechanism. The Taxpayer First law states that "For purposes of this section, subsections (c), (d) (other than paragraph (3)(B) thereof), (e), and (g) of section 6330  (which contains the "first hearing opportunity" rules) shall apply." This means that the mechanism for challenging the underlying tax CONTINUES to depend upon such a hearing's being the first opportunity to raise the issue. The tide of petitions to tax court will probably not be affected. Taxpayers may not feel any increased incentive to open their IRS mail.

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May 15, 2019              Las Vegas 19-527

Tax Evasion: Conspiracy to Defraud the Government How: Cause IRS to issue fraudulent income tax refunds
Amount:
False Claims: More than $6 million
Fraudulent Refunds: More than $2 million

Prison:  18 Months + 3yrs Supervised Release + $362,328.00 Restitution
Co-Conspirator(1) Prison: 102 Months
Co-Conspirator(2) Prison: 12 Months

Extreme measures were taken to avoid detection; which results in sentencing enhancement under the Sentencing Guidelines

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Tax Debt Introductory Considerations

Let’s back up and do an introduction and talk about some important points about what tax debt is and how to best deal with it. Much of the introduction may not lend itself to a step-wise exploration, many of the principles tend to range throughout the process. This particular post may be supplemented or amended from time-to time.

Tax Relief Companies – The Bad Rap —
First, lets talk about “Tax Relief Companies.” The complaints about these companies tended to be that they were (a) expensive, (b) didn’t provide useful planning, (c) had an open-ended cost structure, (d) resulted in action that didn’t attempt to discover all the records, (e) performed actions that had little chance of success, (f) used “urgency” to try and excite taxpayer action, and (g) were so disjointed even a taxpayer trying to move the process forward encountered “progress resistance.”

It may be that the more important within this group of factors is a combination of (b) & (f) planning & false urgency. Included in the “Tax Debt Approach” blog is the need to consider monitoring as a positive, tangible alternative. In fact, many of the cases in which the taxpayer took action and failed, there was something that caused such a sense of urgency that it prevented a more balanced consideration of all the factors in the case.

The other factors cited by critics of “Tax Debt Services” will be dealt with in a different order because the ability to most efficiently free one’s self from tax debt starts at the earliest stages of interaction with IRS. The entire set of limits on tax collection are based upon the need to “move on” both for the good of IRS and for the good of the productive humans that create tax trouble for themselves. There are many instances where a taxpayer’s troubles started with the IRS, not all taxpayers get into trouble on their own. But, its very much like having an annoying relative at your work place; they have to be dealt with in a unique fashion to prevent the relationship and the controversy from irretrievably going down the drain.

Choosing to be in America – What it means to join the American Tax System —
This is not as tautological nor trivial as it might seem. If someone comes to America to reside here, what are they promising to do, and what are they giving up? They promise to be honest and to participate in a voluntary tax system. They agree to disclose ALL of their bank holdings overseas that cumulatively total over $10,000 in U.S. currency every year(FBAR). They agree to disclose overseas interests having a threshold total based upon income and filing status (Fatca).

This seems strange for foreigners used to having the bank remove their interest income tax before letting them touch their interest earnings for the year. Most foreigners come from majority tax jurisdictions that only tax people when they earn money while located in the country of residence. The U.S. and Eritrea are probably the only two countries that tax their citizens and current residents on income from all sources no matter where located.

So, when you think of an EB-5 immigrant you may be impressed that the moment they become a tax resident, they essentially have to disclose the bulk of their worldwide cash and interests. There are more disclosures relating to foreign company and controlled corporations. In essence, an immigrant of substance gives up many privacy rights that are not imposed on all (except Eritrea) of the other countries on the planet. Much of the additional rules and disclosure requirements happened as a result of 9/11, but they may always be the law, and will probably become more onerous over time.

A typical immigrant may have spread a portfolio of cash and assets across many bank accounts located throughout many countries. Absent laws and rules, this is basic diversification action as any given country, currency and bank can fail. The first tax return filed after becoming a U.S. resident essentially will disclose nearly all of the assets under taxpayer control, creating perhaps the first moment that the nexus of ownership of these assets have ever appeared in one document. Most solvent immigrants would do well to simply transfer everything they own to the U.S. to avoid extra accounting and disclosure associated with having overseas assets.

Efforts required to remain in Good Standing in the American Tax system —
Americans have a duty to keep records in relation to the complexity level at which they live. A worker for wages only with no need for deductions only needs a pay stub from an employer and an annual W-2 wage and income statement to file with a short form 1040-EZ tax return. A worker with extended holdings, including real estate and a business has to keep a much more detailed set of records. Good record keeping kept in the ordinary course of business can be shown to the IRS as proof of the basis upon which the proper tax is owed.

Lack of good record keeping can be punished civilly with loss of deductions. Criminally, the lack of records can be construed as an indication lack of criminal intent, or it might be construed to indicate a cover-up. If a taxpayer is honest, keeping records is the best policy. If a taxpayer either will not or can not keep adequate records, making an attempt to get help can go a long way to eliminate criminal intent.

Tip #1: A tax account with IRS should be treated with the same concern and care as one would treat a credit card or billing account. There are rights for credit card accounts, billing accounts and tax accounts and they are each different.

Non-tax Accounts Compared —
Non-tax accounts usually have rules that reward close scrutiny and this is also true of tax debt accounts. For a checking account, the account holder is responsible to see that forged checks are discovered, and can avoid payment if the error is reported to the bank early enough. Credit card accounts with erroneous entries or unsatisfactory purchases can be reversed if discovered and reported within a reasonable time. Tax accounts which have error should be challenged in writing at the first available moment.

Tip #2: A taxpayers opportunity to demand and make use of taxpayer rights are maximum at the earliest possible moment of discovery, and diminish for every time increment and deadline which passes, whether because of not knowing the problem or ignoring the problem.

Non-tax Debt Compared —
Non-tax debt usually has a requirement that a creditor bring a lawsuit and prove the existence, reasonableness and lack of defenses for a given debt. Tax laws give government the many of the rights that a non-governmental creditor has, but without having to bring suit and “prove up” the debt. Some of these rights include the right to tale money from the debtor’s bank account, record a security interest in the debtor’s property, and garnish the debtor’s wages. Government’s need to sue every taxpayer for its tax debt would overload and burden and possibly paralyze government. It is believed that taxpayer rights and procedures form a more efficient substitute for lawsuits against the debtor, and enable a more differentiably controllable apportionment of burden of proof.

Tip #3: The procedural burden and risk on the taxpayer to suffer the punitive financial pain from misunderstandings regarding the tax debt account should encourage high involvement in investigation and tracking of the taxpayer’s tax accounts, but many taxpayers “put their heads in the sand” because facing something they believe they cannot control is simply too painful. Ignoring the problem is a gateway to disaster.

IRS Engagement and Analytical Effort —
“Engagement and Effort” are key to dealing with the IRS, and a part of being present in the American Tax System. Non-engagement is perceived by IRS as an indication that the taxpayer is trying to skirt tax obligations. Non-effort is an indication that perhaps the taxpayer is possibly deliberately intending not to pay tax obligations.

A good financial analysis performed or kept by the taxpayer, especially with an assist from a tax professional ( if the taxpayer has a better use for their time in organizing it) can help formulate a solution. If no early contact is made, IRS will use its lien rights for real property equity, high price personal property, bank levy, and wage garnishment. Put another way, if you have been operating honestly, you need to reveal your circumstances to IRS or risk being treated as if you were trying to get away with something. Understanding, preparing and filing one’s own taxes will likely connect a taxpayer with knowledge as to what is going on with their own finances and tax account.

Tip #4: Lien, levy, garnishment should be NO REASON for taking blind, quick action with a mind simply to stop such lien, levy, or garnishment. First, taking action will extend the IRS collection statutes (all years), and the bankruptcy tax discharge statutes(all years). Where there is a distant milestone with significant savings to the taxpayer, an immediate action is likely to push such a valuable milestone, such as a CSED expiration date farther into the future. It could be that if the taxpayer avoided doing such a tolling act, that the taxpayer may have a balanced chance to achieve enough passage of time to reduce the tax owed.

Go Adversary if it Goes Criminal —
If a taxpayer has made a fraudulent misrepresentation as to income, deductions, evidence or critical facts, the taxpayer is in danger of being criminally charged. Its difficult to realize as its developing, but always be on guard. In many cases what starts as an ordinary audit can turn into a criminal investigation. Most pure tax evasion issues are somewhat complex, in that even if a single element is mis-stated, there are other elements that may mitigate fault or intent. Due to this complexity, and partially motivated by political concerns, the government requires several high level sign-offs and a thorough investigation before initiating actions resulting in a criminal indictment.

A key to government prosecution for tax evasion is related to a magnitude threshold judgement on whether the result will result in felony incarceration. The sentencing current sentencing chart requires a “tax loss” of over $6,500 to correspond to more than a year in prison an offense level of 10. But this level is too chancy, especially for a first time offender. With subtracted points for “acceptance of responsibility” (2), “minor role” (2) and “cooperation” (?) depending upon how a defendant cooperates. An offense level of 10 could be reduced to 6 or 4 and become eligible for probation with no time spent in prison.

However, even an establishment of a “tax loss” of over $6,500 is subject to argument. So, adding 6 points to 10 to make 16 corresponds to a tax loss of over $100,000. Remember that the elemental transactions that contributed to that $100,000 tax loss might not all be of equal strength. In that case, maybe a prosecutor might tend to look for cases with double this tax loss.

Conversely, there may be additional elements which bootstrap the offense level, but a prosecution having a core tax evasion might not be filed if heavy dependence on ancillary crimes is required to obtain prison time. Conversely, if the non-tax-evasion elements are sufficiently strong and the tax evasion elements somewhat weak, the requirement to obtain IRS signatures at the highest levels simply disappears. A taxpayer suspected of identity theft (which carries a 2 year mandatory minimum sentence) and $5,000 in tax loss might be charged only as an identity theft violation with the addition of tax evasion only at sentencing (since it might not mathematically extend the 2 year mandatory minimum).

Sentencing Danger for a Taxpayer with a Criminal History —
The interesting aspect of the federal system is that sentencing enhancements occur based upon the summation of a lifetime of prior convictions and prior criminal acts (both state and federal). Criminal history point additions for felony served (3), 60+ day sentence (2), and any other sentence (1), to name a few. Each two criminal history points (using offense level 10 as an example) can add an average additional incarceration for columns 1-4 of about 1.6 months per criminal history point. This means that someone with prior criminal convictions faces a more severe punishment than someone who had none.

Tip #5: Any criminal trouble a taxpayer has had in the past should make them doubly anxious to insure additional corroborating documentation and proof of legitimacy for all tax transactions, especially since the taxpayer with prior convictions will receive longer sentences than a taxpayer having had no such prior convictions. (Put another way, the Justice Department can prosecute a case with a lesser tax loss and still achieve a felony incarceration for a defendant.)

Willful Failure to Pay is also Tax Evasion —
Taxpayer sometimes forget that not all tax evasion prosecutions are based upon a transaction in the past that becomes discovered and prosecuted some time in the future. Some may occur based simply upon not paying, despite a line of cases that would seem to give the taxpayer a right to withhold payment until some absolute (non-ratio, or non-partial)form of relief became available. For example, In Re: W. David Fretz (11th Cir 2001), a tax debtor didn’t file a tax return for 10 years, and then filed all his past returns at once and was successful in discharging tax debts in issue ($1 million) in bankruptcy court more than 2 years later. The government appealed and the court of appeals for the 11th circuit, reversed, noting that the alcoholic debtor worked overtime for 10 years (was aware of his duty to pay) and that circumstances were a little to neat, holding “[that] Dr. Fretz’ attempt to evade or defeat his tax liability was not willful is clearly erroneous.

Many taxpayers each year are successful in discharging their tax liability. Most discharges are based upon multiple years of tax debt owed. However the old adage “pigs get fat, hogs get slaughtered” is one form of explanation as to why extreme cases that fit within a pro-taxpayer rule (“simply not paying owed taxes is not enough” to prove wrongdoing) will fail when the facts are extreme. If a taxpayer owes taxes, the actions, attitudes and showing made by the taxpayer could ameliorate the result that occurred in the Fretz case, above.

Tip #6: If the reader of this blog was sitting on a jury and judging another taxpayer’s good faith efforts, what types of actions would you want to see them attempt or do in order to show good faith? For example, a tax debtor should consider making a payment to IRS from time to time, and especially diverting a portion of an unusual windfall to show intent to repay. Should a prosecution occur, it might be difficult for a judge to block the evidence of payments from the jury.

Think How Events Now Will Appear in Future —
Every action a tax debtor takes may be examined under a microscope in future. The legitimacy of a taxpayer’s tax debt should be challenged immediately. Full engagement with IRS should be achieved every step of the way. It is much more difficult to later charge fraud or evasion when early engagement and early statement of position has been employed.

Psychologically, it is much easier for IRS to compromise and in a more favorable way, earlier than later. Once sides become entrenched, the chance for a more taxpayer favorable outcome is reduced. Even if the settlement is not what the taxpayer wanted, it is less expensive to settle early given penalties and interest than later. If other tax debts from other years are such that the taxpayer genuinely cannot pay, fighting over a small magnitude tax debt can (depending on the routes chosen) push the 10-year collection statute on the other tax debts even farther forward in time. Both the magnitude and legitimacy of the more recent tax debt should be considered.

Every taxpayer should keep in mind that every action or lack of action should be explained and made reasonable with good and sufficient evidence. Every negative deviation perceived by IRS will increase the lack of trust in the facts and data that will translate into a belief that a taxpayer is really withholding the much more fraudulent facts which need discovering. Always be truthful to IRS, but the scope of any inquiry needs to be controlled both for efficiency and to prevent an unbridled fishing expedition.

Tip #7: One of the most valuable tools a taxpayer has in dealing with the IRS is an independent tax practitioner that will deal with IRS in a non-emotional way, keep IRS on topic to both limit the scope of the audit where possible, as well as to document any attempts to “hunt” for other taxpayer problems in order to leverage the outcome of the audit to the IRS’ favor.

Privilege Level is Important —
Each taxpayer should think deeply about their level of culpability regarding their problems with IRS. Representation can be important, and there is a set of rules on privilege. Loss of privilege generally means that the government could call a person to testify against the taxpayer.

(1) Anyone that accepted money to prepare a tax return for submission is a “preparer” and has no privilege as to that return. This is true regardless of whether the preparer is non-enrolled, an enrolled agent, a CPA or an attorney. This is one reason that I generally don’t prepare individual’s returns, including late returns. If a taxpayer files late returns and uses a preparer, that preparer may be forced to testify if the identity of the preparer were discovered.

(2) Federally authorized tax practitioners include EAs, CPA’s, and Attorneys. However, the privilege of EAs and CPA’s are governed by 26 U.S.C. sec. 7525 and it only extends to civil representation matters. What this means is that if an investigation goes criminal, the practitioners that rely only upon 26 U.S.C. sec. 7525 lose their privilege. Loss of privilege (as would be the case for practitioners that were “return preparers”) means that the practitioner can be called as a witness against the taxpayer from whom they learned potentially damaging information.

(3) Attorneys are the only class of federally authorized tax practitioners that can hold privilege in a criminal tax matter. If a taxpayer needs to oppose IRS in a matter that might become criminal, it makes sense to start with an attorney. Any EA, or CPA that is exposed to your case, and who can be found, can potentially be called as a witness against a taxpayer. Life is not always fair, as we learn from US v. Willena Stargell (CA 9th. Cir. 2013) No. 11-50292, where a district court allowed a fired criminal defense attorney to become an expert testifying against the client at sentencing. This is rare and really not fair, but why should a taxpayer make it easy for the government to put them in jail by starting with an EA, or CPA when there is any possibility that a tax controversy could turn criminal?

Tip #8: Consider choosing an attorney for IRS representation and be completely forthright about which aspects of the IRS interaction may likely turn criminal. An attorney that can represent a taxpayer criminally, and who is forearmed with knowledge of the problem has a much greater chance of either minimizing the probability of trouble, or at least minimizing the degree of damage.

Payment Plan Trap —
There are two main things to watch out for if you sign up with IRS for a level payment plan. First, you lose the ability to designate what years and what taxes your payments are being applied. To make it simple, lets say a taxpayer owes $5000 on their taxes from a year ago and $5,000 on their taxes from 5 years ago. Because the tax debt from 5 years ago could potentially disappear via bankruptcy, the government would like to payoff that 5 year old debt first. The more recent $5,000 debt is not dischargeable in bankruptcy and thus the government would rather apply it to an older debt that could be discharged. An installment agreement allows the government to choose which taxes and tax periods in which it will apply the payments.

A taxpayer has the ability, by communicating the year and tax to which a voluntary payment applies along with the payment and IRS has to apply it as per the taxpayer’s wishes. I’ve had older taxpayers say “I fully intend to pay the government back, so who cares how it is applied?” When it is pointed out that they could have an accident in the coming years, or a heart attack and may not be able to work, they might have bankruptcy as a “no choice” option. In the example above, paying off the more recent $5,000 debt first would leave them in a position to discharge the older $5,000 debt later. Further, there may be non-tax debts that drive the bankruptcy decision, and a pressing need for early filing would cause more recent tax debts to survive the bankruptcy.

The second payment plan trap involves defaulting on an installment agreement’s payments. The government will be more reluctant to trust a taxpayer or a taxpayer’s other pleas for help when an installment agreement is defaulted. With no installment agreement, there is no installment agreement to default. If a taxpayer had a record of sending various amounts per month to pay a tax debt, those amounts would create their own record of intent to repay the IRS. And, the taxpayer could designate the years and taxes to which they apply while doing it. Further, a month when the taxpayer cannot make a payment (or makes a small payment) will still not disrupt the establishment of a record of intent to repay.

Tip #9: Depending upon all conditions, it can be a real advantage for a taxpayer to operate their own repayment plan in accord with month-to-month and week-to-week ability to pay. Such a “taxpayer directed” payment plan will provide flexibility, the ability to allocate tax and years, and proof of intent to pay.

Discover as Many Aspects of Assets and Tax Before Taking Action —
A taxpayer has a greater chance consider and craft an optimum tax debt solution strategy if the taxpayer starts planning at the earliest possible moment. So many taxpayers adopt a strategy to “putting off” dealing with the tax problem until they believe they are forced to take action — usually in response to a threat of garnishment, levy, or lien filing. In most cases, garnishment, levy, or lien can be avoided by early action.

However no imminent threat of garnishment, levy, or lien should trigger an unthinking reaction to avoid the inconvenience of any or all of these possibilities. If a taxpayer requires 2 – 4 months to get a complete picture of their position and options, the possibility of 2 – 4 months of garnishment or levy will be unpleasant, but the taxpayer needs to know and understand a full analysis before taking action. Taking action that fails to achieve the goals costs the tolling of tax debt statute of limitation, possibly prolonging the debt condition for additional years.

Tip #10: Review all financial aspects and debt relief possibilities for tax debt, including bankruptcy enabling statutes and tolling, Bankruptcy outcomes, the collection statute and tolling, the effect of taking an action, and the effect of monitoring and planning to take action after specific milestones are significantly passed in the future.

Preparing and Filing One’s Own Taxes —
Much like a river that begins with a small stream, most tax debt problems usually start with some small deviation early in time. A deviation from what “should have been done” can occur on the taxpayer side or the IRS side. Any two entities that transact information and accounts can have errors.

A taxpayer that keeps complete records can have an advantage on government when errors occur. Moreover, a taxpayer that keeps complete, provable records can begin to achieve a probability shift in which the government is probably the entity that made the error. A government error can be costly, but it is likely to be less costly when detected and addressed early.

(a) Self-filers have better knowledge of their own transactions: Taxpayers that file their own taxes are in a better position to know the match between what they are filing and their own earnings and deductions. Self-filing taxpayers are in a better position and have a better incentive to keep records than taxpayers that continually try to divorce themselves from involvement in their own financial affairs. Taxpayers that self-file know the effect of deductions, their marginal tax rate, and can make decisions in their business and financial life knowing how each decision will impact their taxes.

(b) Self-filers assume self-responsibility: Taxpayers often use a paid preparer along with an attitude that if something goes wrong, its the preparer’s fault. The preparer industry is under pressure to increase profitability, without charging a prohibitively high rate for the time they spend on a particular taxpayer. So, increased profitability for a tax preparer will generally translate into less time spent on each taxpayer, against the hope that responsibility for developing problems can disavowed or garner additional charges to fix. Intake checklists are used to help establish isolation of responsibility away from a tax preparer.

(c) Self-filers have records organizational control: Self-filing Taxpayers are more likely to keep and treasure their records both because they don’t visualize dumping the records and responsibility on someone else, and they know that those records may be needed to settle later disputes, tax or non-tax. Self-filers are probably more likely to store records for later retrieval to facilitate quickly providing IRS with record proof and detailed explanations the moment that IRS raises a question. Self-filers are more likely to have returns that match prior returns and have kept records that match with prior year’s records.

(d) Self-filers have tax compliance control: Self-filing Taxpayers are more likely to keep and treasure their records both because they don’t visualize dumping the records and responsibility on someone else, and they know that those records may be needed to settle later disputes. At present, taxpayers can file their own taxes and take greater steps to preserve the record of filing by using cover letters reciting contents, keeping detailed computer scans of what was sent, and using delivery service tracking numbers to show that a return was actually filed. Tax preparers are generally “forced/encouraged” to file electronically. Electronic failures include IRS failure to generate a proper receipt or rejecting an electronic filing or otherwise electronically “losing” a filing due to IRS computer problems. Self-filers can research their positions and assure themselves of the propriety of taking a position that a tax preparer might not risk such a position due to the “preparer penalty.”

(e) Self-filers have confidentiality control: Self-filing Taxpayers need not share their information with anyone. Self-filing taxpayer can submit returns and payments by mail and need not go on-line. A filing single taxpayer with no partnership business or employees need not share information with anyone and automatically avoids the 18 U.S.C. sec. 371 conspiracy to defraud government. As stated above in greater detail, anyone that helps a taxpayer prepare, decide on a position, or file a tax return for pay has no confidentiality (and can thus be made to testify against the taxpayer). Self-filers are better able to keep their identity, finances and confidentiality by staying off-line. Therefore also, avoid “the cloud.”

Tip #11: A taxpayer should self-prepare and file their own tax returns in accordance with their own involvement in their financial lives, and also remember to keep all financial information, discussions, and bookkeeping off the Internet and isolated from any possible breach in confidentiality by anyone.

Other Sections within this blog:
Instructive Warning Cases
Bankruptcy & Offer-In-Compromise – The Hot Dog Stand Paradigm
A Tax Debt Only Comparison of Offer-In-Compromise and Chapter 7 Bankruptcy in California Graduating From a Homelessness Base Case
How Far Can You Delay Paying Federal Tax Authorities Before Criminal Tax Evasion Charges are Filed?
Taxpayer First Act Credit Card Trap
There are Usually 6 Tax Choices At Any Given Point In Time

Other Articles Outside this blog:
Debt Control Extensive Outline (8/14/2019)
Pre-Startup Efficiency – Introduction (Parts 1&2) (2016)
9th Circuit Rejects “One Day Late Rule” for Late Filed Return Tax Dischargeability (2016)
Give My Start-Ups a Break! (2015)

Instructive Warning Cases


The recent case of Hugger v. Warfield (In re Hugger), 2019 WL 1594017 (9th Cir. BAP Apr. 5, 2019)(not officially published for citation)(http://cdn.ca9.uscourts.gov/datastore/bap/2019/04/08/Hugger%20-%20Memorandum%2018-1003.pdf), U.S. Bankruptcy Appellate Panel of the Ninth Circuit (the “BAP”) in an Appeal from the United States Bankruptcy Court for the District of Arizona, illustrates mathematically one of the harshest outcomes to occur when seeking tax debt relief. A debtor sought to discharge $40,000 in tax debt through a chapter 7 bankruptcy. The amount of non-tax debt totaled $569.

As is not untypical, the taxpayer in this case filed late tax returns for 2001, 2002, 2005, 2006, 2009, 2010, and 2012, all in September 2015. Under the bankruptcy discharge of taxes rules, the tax year due date must be at least three years old at the time of at the time of filing the return and as to this, all years qualified except for 2012. The second requirement is that at the time of filing the bankruptcy case, the tax filing date must have been at least two years old.

The September 2015 tax return filing date indicates that September 2017 would have normally been the earliest date that bankruptcy should have been filed. A decent temporal safety factor might have even been added, depending upon potential tolling activity after all taxpayer records were searched and analyzed. Even with no indicated tolling it would have probably have been better to file the bankruptcy October 2017 or later.

Debtors can face significant pressure and financial pain before taking action. However, a bankruptcy filing has significant negative effects and is not easy to undo, and in some cases is impossible to undo. Any bankruptcy filing that is dominated by a desire for tax debt relief should be investigated thoroughly to avoid the type of result that In re Hugger exemplifies.

The In re Hugger debtor filed a chapter 7 bankruptcy case on January 9, 2017, at least 9 months too early (even without tolling). On May 9, 2017, the U.S. Bankruptcy Court for the District of Arizona entered the Debtor’s discharge, and the bankruptcy case was closed a few days later. By September 2017 it was realized that the bankruptcy was filed too early and the debtor began action to re-open the case, undo the discharge, and ask that the bankruptcy case to be dismissed so that taxpayer could have a later “do over,” so to speak.

Requesting and receiving a chapter 7 case withdrawal of discharge followed by a dismissal is not as easily done as in a chapter 13 case. The main standard to be met is that the actions must be shown to benefit, and not harm the creditors. In this case the creditor was the United States. The premature bankruptcy filing benefited the United States, and to allow an unwind would be prejudicial to the creditor interests. Both the bankruptcy court and the BAP denied withdrawal of the discharge and dismissal of the case. The bankruptcy filing and discharge (which did not discharge the tax debt) stands.

Some factors to consider from this case are:

(1) The bankruptcy filing date was so premature that it may be likely that the statute of limitation rules were not understood.

(2) Even if the taxpayer was facing a garnishment, putting up with 9 or more months of garnishment would have been preferable to tossing away the right to discharge the balance.

(3) As in (2) above, any motivation to take quick, thoughtless action should be avoided. Tax debt based bankruptcy filings should be well thought out, carefully prepared, and absolutely complete.

(4) Another reason for a well thought out filing is to make as certain as possible that bankruptcy judges will have no reason to rule against the debtor. Where the IRS insolvency unit indicates that they will oppose a tax debt discharge, the court requires an adversary proceeding by the debtor. Getting IRS insolvency unit assent might encourage debtor’s counsel to forego an adversary proceeding (which still might be risky for the debtor).

(5) It is typical for IRS to simply determine nondischargeability of part or all of the tax debt, and then sit by while a debtor omits having an adversary, then once discharge and case closing occurs, simply re-start collection activities. This is somewhat of a trap as it forces a debtor to either accept the failure, or try and fix it, by re-opening the case for the purpose of filing an adversary proceeding that perhaps should have been filed to begin with.

(6) Where tax debt is greater than fifty percent of all debt (as it was in this case) the means test is not necessary. This might facilitate haste in filing rather than increase the quality of information in the schedules.

Aside from the limitation periods and tolling, the case of Ilko v. California State Board of Equalization (In re Ilko) 651 F.3d 1049 (9th Cir. 2011) (http://cdn.ca9.uscourts.gov/datastore/opinions/2011/06/27/09-60049.pdf) is instructive of dischargeability of derivative taxation before assessment. In Ilko, bankruptcy was filed based upon a contingent debt under California’s Rev. & Tax Code 6829. Debtor believed that a bankruptcy filing based upon a contingent (possible future) secondary debt would result in discharge.

The thought may have been to simply “list” potential creditors for contingent debts in the hope of getting an advance discharge. This case emphasizes that by contrast tax debt cannot be discharged in bankruptcy before it is assessed. What it means is that assuming a tax debt that meets the 3-year, 2-year, and 240 day rule in bankruptcy, that future assessments for that year are not dischargeable.

Thus, a taxpayer making it past the 3 year assessment statute, knowing that some fraudulent amounts have been omitted from the return, may have the added amounts assessed, and they will be nondischargeable unless a further bankruptcy filing occurs more than 240 days after the assessment. So, a bankruptcy filing at year 3.5 followed by later assessed debts based upon fraud will not discharge for at least 240 days after the assessment. So, the timing for filing bankruptcy within any limitations period should always consider the possibility of unassessed (or not yet assessed) tax debt liability potential.

For any later assessment, the prohibition on bankruptcy re-filing will provide an additional obstacle as there are time limits for filing a further bankruptcy that depending upon which chapters were chosen for the first and subsequent bankruptcies. Failure of discharge of tax is more often followed by an offer in compromise if there is a genuine inability to pay, rather than a second bankruptcy. Of course, most secondary assessments are based upon some sort of finding of “responsible person” liability so at least there may be some ability to avoid an assessment on that basis before considering bankruptcy, offers in compromise, etc.

Bankruptcy & Offer-In-Compromise – The Hot Dog Stand Paradigm

Have you ever walked down the street and made eye contact with a hot dog stand vendor? Did you notice that the vendor grabs his tongs and pulls out a square of hot dog wrap paper in preparation for you to complete an order even before you have had a chance to say one word? It can be awkward to ask the time, or to ask directions, once the vendor is armed with their “weapons of the trade.”

The next quick action is asking you what type bun and what type link you want. You might have been approaching the vendor to ask for marital advice. It doesn’t matter. The vendor scoops up his tools of the trade and positions to complete a hot dog assembly without having to look. Its such a smooth move, as if it were the billionth time this month.

Of course, if the vendor was asked to provide a “t-bone steak lunch,” all hell would break loose. “What do you think this is, a fancy restaurant?” The vendor expects that when the cart says “hot dogs,” that it can be read easily and that if you approach and make eye-contact, that you are “going to order a hot dog.” The irritation at a request to provide a “t-bone steak lunch,” will be greater than if you had asked the time of day or even to provide marital advice. The point is that asking about a service that is not along the same lines as “the usual” will provoke hostility and rejection. You would be lucky to get a “get out of here,” and “don’t come back”.

This “expected service” situation exists in the tax debt world. On one side there are large numbers of tax practitioners that can predominantly directly provide IRS based help, such as offer-in-compromise services. On the other side there are bankruptcy practitioners that can potentially provide tax debt relief through a bankruptcy filing. Two factors account for the rift between these two services.

First, the professionals that can provide the tax related services include enrolled agents, CPA’s, and Attorneys. CPA’s are the most numerous and have the closest connection with taxpayers by virtue of tax and accounting services. Next are the enrolled agents that provide tax preparation but not accounting services. Last and fewest in number are the attorneys that are specialized in tax and provide tax related services. As an example, the number of tax specialists attorneys in California is less than 310 at the time of this writing, although there are an unknown number of attorneys that predominantly practice tax law. The number of enrolled agents nationally is cited as 53,000 and if the distribution follows the population, California is 12% and thus 6330 enrolled agents in California.

NASBA (nasba.org) indicates that there are 654,375 actively licensed CPAs in California. So, even if tax practice attorneys were to number twenty times the 310 tax specialists, it can be easily seen that the non-attorney practitioners would be 99% of the tax practitioners available in California, excluding multiple license overlaps. This means that the overwhelming majority of the population of tax practitioners are generally unable or unwilling to apply their tax expertise to bankruptcy. Practice before IRS will involve all of the IRS actions and remedies, but bankruptcy is likely to be an unexplored mechanism for the vast majority of tax practitioners.

Bankruptcy, on the other hand, has practitioners that from a consumer (taxpayer) standpoint operate mostly with non-tax debt. Most bankruptcy lawyers know the main basic bankruptcy debt-related limitations rules relating to the 3 year from tax filing due date, 2 years from filing late return date, and 240 day from assessment date. Some may not know in-depth about the complexities of tolling, a mechanism that stops the normal day-to-day progress toward getting past a limitations date. Inaccurate and inconsistent IRS record keeping creates further difficulty in determining which of the lesser ranked events have been recorded as tolling and which are not.

Many bankruptcy practitioners, even those that understand tax debt may refrain from not ordering the taxpayer’s full records to match against transcripts to analyze tax dischargeability in detail.. In some cases this may be driven by urgency or the necessity for quick action. Often, the procrastinating public seeks help and perhaps even bankruptcy practitioners versed in the basic tax mechanism will not take the time to order a freedom-of-information act full IRS file in addition to a full set of tax account transcripts. The bankruptcy practice approach might be simply skewed toward immediate quick filing in response to some myopic impression of a focused threat.

A monolithic threat is what we humans have become most accustomed to. If we see a first hint of danger, we focus on that danger typically ignoring other dangers that may be more deadly. Many citizen taxpayers perceive a threat and only then approach either a tax practitioner or bankruptcy practitioner for the first time. The citizen taxpayer wants the matter to be resolved instantly. The problem is that the best solution for the taxpayer may be unknown in circumstances where the taxpayer demands immediate resolution.

To take one partial example from one of hundreds of possible configurations, what if a taxpayer hires a bankruptcy practitioner that computes the tax discharge eligibility based upon the 3-year/2-year/240-day computation? What if the client states that there are no tolling events, but in fact there were tolling events? What if the taxpayer transcripts have entries associated with tolling events, but they are incorrect? If there is an SFR (Substitute for Return), will it be investigated? Will the bankruptcy practitioner use the Freedom of Information Act and order the taxpayer’s whole file to verify the transcript, or simply ask the taxpayer to waive any possibility of nondischargeability of tax debt for all years?

To take that same partial example again, from one of hundreds of possible configurations, what if a taxpayer hires a tax practitioner that computes reasonable collection potential without analyzing the transcripts and testing for tolling? What if a tolling event was not reported on the transcripts? What if a tolling event was reported and was improperly entered from someone else’s records, or left open ended? Will the tax practitioner use the Freedom of Information Act and order the taxpayer’s whole file, or simply ask the taxpayer to waive any possibility of taking action before a tax year collection statute expires?

In both cases, I question whether the average taxpayer been presented with a more complete picture going forward, in order to see when milestone opportunities occur (such as the expiration of a collection statute). A taxpayer can blindly wait for a stressor, and then run to one side (bankruptcy) or the other (IRS remedies) and act, often without knowing the other side, the bankruptcy statutes, nor the tax statutes.
More importantly, the taxpayer may not have a view going forward into the future if a decision is made to take no immediate action at this time.

A taxpayer facing the need to take action now, might not know if a 2 week wait could result in substantial tax savings, and whether an eight week wait could produce even more savings. The taxpayer also needs to know that taking action will generally result in a tolling with respect to all the statutes of limitation as to other potential actions. An overly simplistic example is that a bankruptcy filing tolls the collection statute for later offer-in-compromise filings and later bankruptcy filings, just as an offer-in-compromise filing will also toll the collection statute for later offer-in-compromise filings and later bankruptcy eligibility filings.

Therefore, for any variety of reasons, a taxpayer might choose (in some cases wisely) to wait years before taking some form of action, if that taxpayer knew the approximate series of dates associated with a corresponding series of tax relief milestones going forward. Where a tax or bankruptcy practitioner is knowledgeable about statutes of limitation, its not unusual for the client to be informed about the next milestone, but usually not all the milestones extending into the future. Most practitioners don’t see themselves as having a duty to enable a “continue to monitor” outcome (which may be in the client’s best interest).

A knowledge of the nature of things going forward, what the future will look like without taking action and with triggering tolling, can be advantageous particularly where the client can’t know what exigency pressure they will face in future. The problem is that there is an extended list of actions that can toll the statute. Putting the taxpayer in control of continually monitoring future milestones while realizing that the driving impetus to take action should be a decision made perhaps at that future point in time.

Even further complicating the picture is that some tolling actions have a higher probability of being accurately recorded (or even recorded at all) than others. Actions may be recorded (accurately or inaccurately) in the IRS computer system and obtainable as transcripts, as well as a more complete total taxpayer record, possibly retrievable using the freedom of information act (FOIA). In instances where a taxpayer is taking an action that can only be justified based upon the ability to favorably compromise the tax debt it is extremely important to know as much about ALL the IRS records as is possible.

If a taxpayer is a step behind in knowledge, their efforts can create more problems for themselves than if they took no action at all. The IRS makes errors. IRS doesn’t always mean to make an error, but its something for which taxpayer should not have to suffer.

Errors in the record have to be discovered and advantageously addressed, always sooner rather than later. IRS is said to have a 40% error rate in computing the collection statute termination dates (dates where taxpayers no longer owe tax for a given tax years). If a taxpayer is past the termination of collection date, a taxpayer doesn’t owe any tax and should not be made to pay. IRS also uses substitute for returns (SFR’s) notices and “non-filer notices” to encourage taxpayers to file returns. This technique essentially depends upon the taxpayers to do tax error correction. 10-20% of SFR’s and other encouragements to file are sent in error with reliance on the taxpayer to fix the problem.

The error in SFR generation can stem from: (a) the issue of 1099 to a contractor that wrote your social security number by mistake, (b) making an inquiry to IRS and having the inquiry trigger a tolling period unexpectedly or without your knowledge (such as asking the taxpayer advocate’s office for help, as an example). For every correction response, other mailings may have been sent to a wrong address, or SFRs may be based upon errors in 1099s, social security numbers and many other bases for inaccuracy.

Even worse for bankruptcy filers, an SFR is treated as a first return filing, setting a threshold below which no amount for less than the SFR income amount can be discharged in bankruptcy. (See Chief Counsel Memo 2010-016(SFR)) (http://www.irs.gov/pub/irs-ccdm/cc_2010_016.pdf) For example, in a typical case of a taxpayer that normally receives $100,000 of revenue and a “cost of goods sold” of $80,000 would report (after reduction by the $12,000 standard deduction) a salary of $8,000 and pay a tax of about $1000. However, if IRS learns of receipt of $100,000 of revenue after receiving no return, an SFR having $88,000 of income ( $100,000 of revenue – $12,000 standard deduction revenue ) will be prepared and a tax of about $21,000 will be assessed against the taxpayer.

Even if the taxpayer submits a proper return to reduce the actual tax to $1000, any amount of tax under the threshold of $21,000 established on the initial SFR cannot be discharged. So, checking the SFR to the extent possible to determine if it was generated properly, could eliminate an impediment to discharge for the year it was wrongfully generated. It should be understood that not every non-filed return will result in an SFR, and that a proper SFR should have some verification that the basis upon which it was generated has significant legitimacy.

Given the above less-than-perfect state of affairs in discovering the correct state of the record regarding tax debt, it is important to consult with a practitioner that is interested in presenting a full and complete picture of the taxpayer’s future milestones, including (a) expiration of the 10 year collection statute of limitations for all years owing, (b) the limitation periods beyond which the tax debt is dischargeable in bankruptcy and (c) the tolling events for each tax year relating to (a) and (b), and much much more. The “professional” that is motivated to only serve up their standard fare regardless of the state of the client’s records and circumstances increase an unknown potential for harm.

A Tax Debt Only Comparison of Offer-In-Compromise and Chapter 7 Bankruptcy in California Graduating From a Homelessness Base Case

Introduction
Table 1 indicates some comparison of the conditions through which one may enter and take advantage of either offer-in-compromise or chapter 7 bankruptcy shown side by side for a partial comparison.


Table 2 involves a progression starting with an individual with tax debt only with additions to
property by category and with level income used only for fee waiver effects. Graduation of wealth going into either an offer-in-compromise or chapter 7 bankruptcy starts as a base case for one single person increases with three types of assets, each subsequent asset added to the prior asset, in this order: (money), (automobile), & (tools of the trade):
(A) Homeless, owns nothing, no income
(B) Individual with income lower than the lowest fee waiver threshold
(C) Individual, waiver ineligible with income slightly above the higher waiver threshold.
(D) Individual, waiver ineligible having Bank Cash $30,825
(E) Individual, waiver ineligible having Bank Cash $30,825 + automobile
(F) Individual, waiver ineligible having Bank Cash $30,825 + automobile + tools of the trade

Table 3 illustrates a magnitude of the advantage of either offer-in-compromise v. chapter 7 bankruptcy considering income only. Income drives the amount that must be repaid to IRS. Income also sets the cost of entry into either offer-in-compromise v. chapter 7 bankruptcy.
(G) Homeless, owns nothing, no income
(H) Individual, income between fee waiver threshold for bankruptcy and OIC
(I) Individual, income near the median income amount, computing an offer amount based solely on income.



(1) To best indicate the divergent nature of these two remedies, a starting point is $0 homelessness (which enables fee waivers), and thence to a low income in excess of the higher fee waiver limit, then cash in the bank, and then a car, and lastly tools of the trade. Under the wild card rules, some available cash property is sacrificed to cover the greater of two
exemptions.

(2) $30,825 was chosen as it is the sum of the maximum cash exemption under the highest cash
alone exemption available to non-cash bankrupts.

(3) Car equity that matches the bankruptcy exemption (greater of the two exemptions $4312.50 and $5850) illustrates that the $1537 shortfall means that the $1000 “Exempted” bank account money is essentially committed to the collection potential as well as an additional $537 will be added to the commitment to the offer. Overall $1537 additional is committed to Offer, regardless of whether low income is below a national standards threshold.

(4) The Lump Sum offer form of offer-in-compromise is the most beneficial to the taxpayer, and it can be seen that a taxpayer with assets above the $1000 bank deposit, $4312.50 FMV car and $4470 tools adds directly to the collection potential offer. If taxpayer lives frugally and below some of the national standards (that don’t involve subtraction for actual), such as Food, Clothing and Misc; Public Transportation; & Out of Pocket Health Cost, the above-threshold assets add directly to the reasonable collection potential.

The other part of the contribution to reasonable collection potential is income minus necessary business
expenses and extraordinary expenses, which is too diverse and unique in each case to meaningfully
discuss beyond the base cases treated here. We see that in each case of (a) cash, (b) car, and (c) tools;
that bankruptcy is more generous. Everyone has some cash, most people have a car, and not everyone has “tools of the trade” But, the bankruptcy exemptions allow the taxpayer to exempt more value in each of the cited cases and before going deeply enough to begin to counter personal property exemptions unrelated to making a living.


Because table 2 involves asset categories having different threshold values, those relatively lower exemption threshold values for offer-in-compromise quickly consume the value of the initial cash exemption of $1000 in the offer-in-compromise case for the higher value of item’s bankruptcy exemption compared to the exemption for offer-in-compromise.

(5) National Standards not subject to subtraction for actual expenses include Food, Clothing and Misc ($727); Public Transportation ($217); & Out of Pocket Health Cost ($55) totaling $999, leaving between
$562.25 and $1603.00/mo. The maximum housing for LA county is $2258. For a single person living
alone, housing and utilities actual expenses should easily cost at least the $1603.00/mo at the upper end of the range in the row example. If this is the case, a $1 offer should be acceptable assuming all other categories don’t contribute to a higher reasonable collection potential. In the range the bankruptcy cost is $0 while the offer-in-compromise cost is $186 + $1 offer. Based just upon tax debt, bankruptcy wins.


(6) Monthly national standards of $999 + local automobile standard $273 = $1272. Also, assume the
$2258 LA county housing and utilities Monthly excess reasonable collection potential is $4830- $1272-2258 = $1300. 12 months of this excess is 12 x $1300 = $15,600. The filing cost of the bankruptcy is $335 and the filing cost of the Offer-in-Compromise is $186 + 20% of Offer ($15,600) or $8,725 with a full cost if accepted of $15,786. This creates a break-even if $15,786 of tax is owed (no discharge advantage).

Table 3 illustrates that, as to California, where income is less than ($9 – $15/hr) that most tax debts are discharged in both the OIC and bankruptcy cases. For income (>$15-$24+/hr), bankruptcy’s cash exemptions predominate.

For bankruptcy, if all tax is eligible for discharge, then it is discharged. This does not depend
upon the amount of earnings nor the amount of tax. What this indicates, is that if tax debt is all
the debt involved, that bankruptcy might be the more advantageous option, and especially for California taxpayers earning over $15 per hour. In other states the results will vary based upon the level and configuration of that state’s bankruptcy exemptions.

How Far Can You Delay Paying Federal Tax Authorities Before Criminal Tax Evasion Charges are Filed?

A series of related cases illustrate the very bad results that can come from fighting the IRS in a non-direct way. We have heard informal rules of thumb regarding tax evasion. One rule of thumb might be that if you actually evade payment of tax for huge sum of money that you are more likely to be prosecuted for tax evasion. Another rule of thumb might be that if you are a well-known celebrity that evades payment of tax for a modest sum of money that you are also more likely to be prosecuted for tax evasion. Both ends of the well-known celebrity and high wealth parallel but oppositely oriented continua yield a less pronounced middle span largely due to the amount of approvals and signatures that must be obtained before launching a tax evasion case.

The potential criminal charges for tax evasion do not exist in a vacuum. Civil punishments can magnify the potential for criminal liability. The fundamental time period during which a taxpayer owes the government is either 10 years once tax has been assessed, or its an infinite number of years of no tax return is filed and no assessment has been made. Given a relatively slow pace of development for a non-celebrity, small dollar tax evasion prosecution, it doesn’t pay to arrange to be under the IRS microscope for an extended period of time. It helps even less to become more noticeable during such an extended period of time.

The typical taxpayer files a return on time triggering an assessment (debt owed to the government) that “exists” for 10-years. At the 10 year mark, if nothing has occurred to increase the 10 year “statute of limitations” period (known as “tolling”), the IRS is no longer owed the tax debt associated with the tax event. Also, from the time of assessment, the IRS has a 3-year period to challenge the return with an audit. If some understatement problem is found (from an audit or any other source), of a sufficient magnitude to be characterized a presumptive fraud, the 3-year potential audit period turns into a 6-year audit period (from assessment).

Stating this another way, the normal flow of the process is that a taxpayer gets (1) a chance to file a correct return on time, (2a) the government gets 3 years to challenge the return via audit if the taxpayer made a less than presumptively fraudulent attempt to file a correct return, or (2b) the government gets 6 years to challenge the return via audit if the taxpayer made a more than presumptively fraudulent attempt to file a correct return. (3) the government gets a full 10 year period (absent tolling) from the day after assessment to the tax collection statutory expiration date to collect the tax.

The 10 year collection is unfortunately extended, whenever the taxpayer takes an action which requires the government suspend its collection. Some of these actions include bankruptcy, offer-in-compromise, filing a tax court petition. There are many more actions that cause tolling of the collection statute of limitation to move forward into the future. The result is that the 10 year collection period might become a 15 year collection period, or even more.

In addition, when a taxpayer has been particularly problematic for the government, the IRS can file a civil suit and obtain a judgement for collection of the tax which extends the period for collection by an additional 20 years. The judgement is renewable before the end of the additional 20 years and for an additional 20 years. So, even if there was no tolling, the use of the civil suit to obtain judgement means a 50 year collection period during which the taxpayer still owes the money.

There is a general impression that the progression of tax evasion involves cheating, then filing, and then getting caught due to the cheating mechanism. People forget that you can evade taxes by simply not paying. An evader can take action to emit chaff in hopes of escaping IRS attention. This may be foolishly done thinking that the IRS will grow weary and forget about the debt. Mostly blind, reason-deficient, struggles simply create a fervor to collect. There are procedures and rules that govern the negotiation, should be followed for a quick resolution.

Fighting IRS collection in a desperate way that ignores the policies that enable settlement, appears very like an evasive action to delay and prevent payment. Couple a perceived unwillingness to cooperate with temporal expansion (due to tolling) of the collection statutes of limitation, and the taxpayers spend a much longer period of time during which they owe and don’t cooperate with the IRS. Even though the transaction of the tax year is long over, and the audit activities are probably long over, the collection period is extended, leaving the taxpayers under the collection microscope for an extended period.

IRS then has a much longer course of action with which to suspect and establish an evasion based upon non-payment and lack of cooperation. So even in cases in which the transaction and audit did not produce an evasion pattern, a long, drawn-out delay in cooperation can possibly supply the evasive elements needed to build a criminal case.

Any administrative inhibition due to the extended time required for criminal investigation and administrative approval will vanish when the taxpayer provides extension of time via statutory tolling.

Further, when the ire of the IRS has noticed activities of the taxpayer causing a value judgement that the taxpayer is problematic in delaying and misrepresenting efforts to bring the matter to a proper conclusion, it is much more likely that a judgement for collection of tax which extends the period for collection by an additional 20 years will be done. If owing tax debt to the government is painful, then extending that pain for an additional 20 years is tantamount to self-torture for what could be an additional one-third of a lifetime.

Imagine the following theoretical facts, and how they might appear to the IRS:

(1) Yr 0: Taxpayer avoids paying year capital gains on the sale of a business by using a tax shelter.

(2) Yr 3-10: IRS collection activities occur.

(3) Yr 10: Taxpayer files for bankruptcy in an attempt to discharge the tax owed, but the bankruptcy court denies discharge and finds that taxpayers willfully attempted to evade or defeat the collection of tax under 11 U.S.C. 523(a)(1)(C). (which recently has been set by legal decision to carry the same standard of proof applicable to tax evasion).

(4) Yr 12: After tolling delay from the bankruptcy, IRS resumes collection activity.

(5) Yr 15: Taxpayer utilizes administrative due process procedures, including collection due process and offer-in-compromise and are unsuccessful.

(6) Yr 16: IRS refers The Justice Department to file suit to reduce the assessments to judgement and thus extend the period for collection for another 20 years (possibly to Yr 36, and possibly to Yr 56 if extended before Yr 36).

(7) Yr 18: Taxpayer files a complaint in federal district court against a number of federal workers, including a revenue officer, collection supervisor, an advisor, a settlement officer appeals officer, offer in compromise manager, tax examiner, offer specialist, group manager and the acting director for area collection, and other yet unknown tax and justice personnel in a “Bivens” action for “a conspiratorial plot to deny him his constitutional rights, purportedly on account of his alleged disability, at all relevant stages of the aforementioned tax collection effort.”
(8) Yr 19: The Bivens action was dismissed based upon the fact that because the Internal Revenue Code gives taxpayers meaningful protections against government transgressions in tax assessment and collection . . . Bivens relief is unavailable for plaintiffs’ suit. Establishment of evasion using the courses of action from the past can possibly be added to acts occurring in future to perhaps show a continuous course of dealing, an intent, establishment of a plan for tax evasion. Would YOU wish a quick resolution to this tax debt? What actions would YOU take begin such resolution?

(1) Would you start a stream of payment to IRS on a regular basis?
(2) Would you compute your reasonable collection amount and liquidate everything else and attempt a further offer-in-compromise without delay?
(3) Would you begin your own payment plan subject to a formula that was based upon the IRS cost of living standards?
(4) If your income was steady, would you set up and be willing to risk failure to try a long-term repayment plan?
(5) Given that a tax crime conviction would set up the tax debt owing as an even more onerous restitution payment, what acts and statements could you telegraph to IRS to show that steps are being taken to begin liquidation to an IRS living standards connected subsistence level?
(6) After liquidation to an IRS living standards connected subsistence level and achievement of a $0 further collection potential, would you consider asking to being placed on currently not collectible (CNC) status?
(7) Would you consider living overseas in order to possibly enable yourself to repay the tax debt more rapidly and efficiently through foreign earned income exclusion?
(8) What other actions would you consider to stave off criminal prosecution while paying off your tax debt?

Related Links:
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https://rebrand.ly/TDABlog    TAX DEBT APPROACH blog
https://rebrand.ly/TCBlog   Tax Controversy Blog
https://rebrand.ly/CLE CLEpage
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Taxpayer First Act Credit Card Trap

President Donald Trump signed the Taxpayer First Act on July 1, 2019. The Taxpayer First Act has a number of provisions, some of which will help IRS with its internal processes, and some of which are external and aspirational. As to one of the provisions, the IRS is about to embark on a relationship with credit card companies to allow taxpayers the ability to pay their taxes directly by credit card. As you may or may not be aware, one major possibility for a taxpayer to favorably resolve solve their IRS debt, when conditions permit is via bankruptcy. A resolution requires use of the 3-year, 2-year & 240 day limitation provisions with tolling.

Bankruptcy Code 523(a)(14) states that if a nondischargeable tax debt to the United States ( such as a nondischargeable tax or a customs duty) then any credit card debt incurred to pay such nondischargeable tax debt is excepted from discharge. As a practical matter this has been the rule for some time, but the possibility of paying federal tax debt directly with credit cards is expected to have a “short circuiting” effect, exposing what was has otherwise been an obscuring relationship between the credit card borrowing and its traceable application directly to a tax debt.

Currently, the use of credit cards to obtain money for use in paying taxes is difficult to trace because it probably involves a borrowing mechanism that uses currency as an intermediate, such as with an ATM machine. Only a few services allow transfer directly from credit card into a bank account, but the fees range from 10%-15%. Over the next few months, the IRS may be able to negotiate credit card transaction fees to 1-2% (not including interest). If and when this occurs, the use of direct credit card payment to the IRS will the greatly preferred in instances where credit cards are used as a source of tax payment funding.

This also will probably mean that tax transcripts can be expected to carry some indication to reflect the fact that a tax payment was accomplished with a credit card. Whether this indication shows up in taxpayer transcripts or is available internally at IRS, the tracing to verify the type of payment should be expected to be easy. Because the charging taxpayer is going to have to pay a publicly known credit card processing fee the records of the transactions may be even more identifiable in the bank credit card records, especially if the user fee is independently posted. In short, the fact of the direct use of a credit card to pay tax debt should be instantly and unambiguously available to both the IRS insolvency unit and to the credit card account creditor.

The combination of direct credit card use and an expected low initial transaction fee should make this option very popular, but once the option is used, it will work to the detriment of tax debtors and shift the possible remedy chosen as between bankruptcy, offer-in-compromise, and other alternatives. Worse still, if tax debt practitioners fail to ask about credit card tax payment, or discover and understand it on the account transcript, and take it into account for an analysis of the debtor’s options, unpleasant surprises will result. Also needed is a warning advisement to avoid the direct use of credit cards to pay tax debt as soon as possible, starting before this mechanism is fully implemented.



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