Author: Jim Payne

Jim Payne, a Florida Certified Public Accountant (CPA) since 1976, offers candid insights on getting square with the IRS — with the least pain, and at the lowest cost — with (or without) the help of a tax representative. Mr. Payne is a former IRS agent and expert in business profitability, IRS audits, IRS payroll tax, and IRS non-filer issues. As a Tax Representative, his goal is clear: " I will speak on your behalf to all IRS agents, so you never have to, and I'll guide you in executing a strategy to resolve your IRS problem so you can get back to enjoying life."

What Can Non-Filers Do About Missing Records?

Non-Filers have a particular problem when they decide to come in from the cold and rejoin the tax system. That is nonexistent records. Non-Filers are most likely to be people with small businesses that can dodge the 1099/W2 reporting systems. Coming clean with the IRS requires them to report their net income for any returns missing in the last 6 years. What should they do if those records do not exist?

First, you must realize that records do exist. They are just not in the possession of the taxpayer. Here is a list of places to start to rebuild those resources:

    1. The IRS transcripts are the first place to start. You can download these from the irs.gov website. Life is a lot easier if late filed returns agree to the 1099s in IRS possession.
    2. Bank statements are still on file at the various banks. There may be some cost to get them depending upon their age.
    3. Credit card statements are also available from the various banks that issue them.
    4. Vendors have records of their billings and collections from their customers. This is particularly important if the transactions were primarily in cash.

Finally, there is the Cohen Rule. Cohen was a 1930 case in which the Court allowed the use of estimates if there is a reasonable basis to assume that the expenses had occurred. This won’t work with travel and entertainment expenses but is still better than nothing when it comes to other costs.

Yes, the fees for cobbling all this stuff together are going to be higher than they would have if you had never gone out of compliance. Think of it as a motivation to avoid this situation in the future.

IRS Form 1099-A vs. Form 1099-C

One of the more confusing issues in reporting taxable income is what to do when there is a 1099-A or 1099-C involved. Sometimes both the A and the C refer to the same property, other times not. Here is a simple way to think about the issue.

    1. The 1099-A is required from any creditor when a borrower abandons real or personal property. This is not a taxable event. The purpose of the form seems to be only to alert the IRS that a taxable event is likely coming.
    2. The 1099-C on the hand is issued by a financial institution whenever it cancels debts of more than $600. This usually means that the finance company has given up on collecting the debt and written it off.

The 1099-C is what the IRS is going to attempt to match to the related tax return. The problem is that just because there is an amount on a 1099-C, it is not necessarily all taxable. There are several exceptions that the taxability of debt cancellation including:

    1. Cancellation of debt in a title 11 bankruptcy case. Use Form 982 to report the reduction in tax attributes for canceled debt.
    2. The amount that the taxpayer is insolvent immediately after the discharge. See Pub 4681 for their nifty worksheet to calculate solvency.
    3. A discharge that is characterized as a gift.
    4. A discharge that would produce an offsetting deduction.
    5. A purchase price reduction that reduces the asset basis.
    6. Certain student debts.

All 1099-Cs should be reported to avoid problems with the IRS matching program. Use a disclosure note to explain your reductions when one of the exceptions applies.

The Pros & Cons of IRS Voluntary Disclosure for Nonfilers

The IRS has been building a list of millions of nonfilers who have significant income. The names on this list have been prioritized and their people are starting to work on those cases. One of the options for someone who thinks their time is running out is the Voluntary Disclosure Practice.

The idea here is that by making disclosures before the IRS catches up with you, you demonstrate your goodwill by coming clean. This saves the government investigation time and money.  There are two steps to the process. First, you need to make sure that an investigation is not already underway. This is called ‘Preclearance’ and takes 4 to 8 months before you receive an IRS letter welcoming you to the program or not. Once you have your preclearance letter in hand the next step is the actual disclosure followed by making arrangements to pay the taxes and penalties due.

The Pros of joining the program:

    • Acceptance means jail time is most likely out.
    • Penalties can be negotiated down.

There are some Cons to think about also:

    • You must tell them everything and cooperate fully. Messing this up will result in you having provided evidence to the IRS to be used against you in a likely criminal case.
    • Nonfilers with illegal income, even if legal under state law, are not eligible to participate.

How to Get Back into the Tax System without going to Jail

The common scenario is somebody who has not filed for years but finds themselves wishing they had. Perhaps they have seen articles about the IRS’s claim to have identified millions of non-filers with significant income. Or maybe they realize that in this world of interconnected databases there is simply no place to hide.

Whatever their reasoning, the next question is “how do I get back into the tax system without invoking a criminal investigation?”  There are three approaches to consider:

    1. Simply start filing and hope enough time goes by that the non-filing periods drop off the IRS radar.
    2. Then there is the “Quiet Disclosure” technique.  Basically, you prepare returns for the last three years and mail them in separately every week or two, hopefully with a check. The idea here is that no one return processor will connect the dots that something significant is happening.
    3. Finally, there is Voluntary Disclosure. You file a letter with the IRS requesting preclearance for voluntary disclosure. The preclearance process is so that the IRS can check their records to determine if you are already under investigation and not eligible for the “Voluntary Disclosure” process. Once you are cleared to proceed, you confess all and begin negotiating the penalties without fear of criminal actions.

Which is the right approach? Depends upon the situation and money owed.  Acceptance into the Voluntary Disclosure Program is the safest approach if you owe lots and a criminal investigation is likely. Run-of-the-mill cases are usually safe with the Quiet Disclosure approach.

Non-filers are in the IRS Crosshairs

The IRS claims to have built a list of millions of non-filers with substantial income. They were ready to pull the trigger on a program to begin investigations of the people on that list when COVID hit. Everything went on hold. The IRS is now officially back in the office and picking up where it left off.

 

What should you do if you think you might be on this list? Your number one priority should be to keep your case from going criminal. If you think the past due taxes are substantial, talk to a tax attorney with experience in criminal tax matters. Attorneys have confidentiality privileges that CPAs and other tax preparers do not, so do not go blabbing to them about your problem.

 

The next step is to prepare the missing returns. If you have not filed for decades, there is some good news. IRS Policy Statement 5-133 only requires that you catch up the last 6 years of returns. Don’t have the records? Not a problem for the IRS. They will happily compute the highest tax possible with the information they have. Reconstructing the records using a forensic accountant is costly, but more likely than not, worth it.

 

Once you have the missing returns prepared and the scope of the problem identified, it’s time to work on the strategy. If criminal action is likely, listen to your attorney. Jail time is a real bummer. If it’s not a criminal case, then you need to work with someone who knows how the IRS Reasonable Collection Potential formula works to determine which path to follow to clear the debt. Most people in this situation do not have the assets and income that will allow them to pay the debt in full. An Offer-in-Compromise is the best bet in these cases.

 

Timing is everything in getting out of this mess. The best outcomes happen when you come forward voluntarily, with returns in hand, and a strategy to clear the debt. Waiting for the IRS investigation to start means you will be facing hard deadlines throughout the process along with an unsympathetic Revenue Officer.

Yes, you can do a Wire Transfer to the IRS

Occasionally you really need to pay the IRS on a single day without fail. This can happen in cases with real estate closings in which the IRS is a lien holder. The safest way to make this happen is a bank-to-bank wire transfer.

The IRS Same-Day Wire Federal Tax Payments at https://www.irs.gov/payments/same-day-wire-federal-tax-payments has a downloadable worksheet that you can fill out and take to your bank. There are of course fees involved.

There is one big caveat to keep in mind in using wire transfers. If your wire comes in after 5:00 PM ET, it will be returned to the bank.

How to Correct an IRS Substitute for Return

The IRS needs a tax return to start the tax assessment process. If the taxpayer does not file, the IRS will file a return for them. This is known as a ‘Substitute for Return’ or SFR in government parlance. The SFR is usually prepared by the IRS computers using all the information that they have on file for that taxpayer. Electronic information includes filings of documents like the 1099s and W-2s that we are all familiar with. The problem comes up when those documents are incorrect, bringing up the question ‘How do I fix this?”.

First of all, the taxpayer is under no obligation to correct an SFR that understates his or her tax. The taxpayer in these cases did not lie to the IRS or perjure themselves on their tax return.  The IRS filed it themselves using third-party information and it is on them to fix their own errors. If the taxpayer is happy with the return that was filed, they should just simply pay the tax bill and move on.

Sometimes that 3rd party information is wrong the other way. The result is that the IRS assesses a higher tax than it should have. How to fix it? The answer is simple. Just file the return that you should have filed showing the correct information.

Strategy 7 – Make your Business More Profitable

You owe the IRS a lot of money and you want a way out of this hole. Most people that get into this problem are business owners and they tend to overlook one of the best strategies available — make the business more profitable.

That is easier said than done, but now you have a large incentive to make real changes. Consider some of the following steps:

    1. Write up a one-page strategy statement that details your business purpose, vision, and values.
    2. Do a SWOT analysis and identify your strengths, weaknesses, opportunities, and threats.
    3. Using your strategy and SWOT analysis, write up an action plan that separates those steps that will produce a short-term vs. a long-term positive change.
    4. Implement. Planning is great, but actually doing it is what counts.

The change that can make the biggest impact on your profitability is your pricing policy. Marking up costs to produce a sales price is easy, but probably won’t get you where you need to go. Value pricing is a better way to go. Even a 1 or 2 percent change in pricing can have a major impact on your bottom line.

There are also the more traditional changes that will make a one-time jump in your cash flow such as collecting on your aged Accounts Receivable or reducing inventory levels. Be aware that unless you fix your systems to stay on top of these issues, the balances will tend to slip back to where they were before.

Improving your business profitability is hard work. After all, if it were easy, you would have already done it. The alternative is to shut it down and do something else to produce the money to get the IRS off your back.

Strategy 6 – Taxpayer Advocate Service

What do you do when you know the IRS is wrong and creating a financial hardship as a result? The cheapest answer is the Taxpayer Advocate Service also known as the TAS. You can file, an appropriately numbered form, Form 911 to explain the situation. A TAS representative will give you a call back within 48 hours to discuss your issues.

The TAS does require that you make every effort to resolve the situation before contacting them. This means you must have already done the following:

    1. Spoken with the Collection Division
    2. Spoken with the Group Manager
    3. Excised your appeals rights for a CDP or Equivalent Hearing
    4. Used the Collection Appeals Process

The best-case result from contacting the TAS is that they will cut through red tape and go straight to the right people. The worst-case result is that you will receive great advice on your options to proceed. This is an easy and worthwhile step when you can’t seem to get the IRS to recognize they are in error.

Strategy 5 – Innocent Spouse Claims

An Innocent Spouse Claim is worth considering in cases where the taxpayers jointly owe a lot of IRS debt. The downside is that the IRS does not generally approve these claims. Worse, most of the appeals to the courts have been IRS wins.

That said, it is still worth considering. Innocent spouse claims arise in cases where the tax understatement can be attributed to just one spouse. Additionally,  the other spouse must have no knowledge or benefit from that understatement. The strategic advantage is that you might get a better result on the Reasonable Collection Potential formula by removing the one spouse from the liability.

An Offer-in-Compromise will only work if the taxpayers can show that they do not have the financial means that will enable them to pay the debt in full. The IRS does not accept offers for less than full pay merely because someone throws a number at them. Instead, they do a financial analysis. The results are plugged into the Reasonable Collection Potential formula. Removing one of the spouses from the liability could change the formula results and make the other spouse eligible for an offer.