Howard's IRS and the Law Blog

Deciding whether it is best to submit an offer in compromise or file bankruptcy on your taxes involves thoughtful consideration of many factors.  Those factors include how long each can take, which option will have the lowest settlement payment, which is most likely to be successful, and post-settlement terms (like tax lien releases in bankruptcy or future compliance in compromises).

Each of these factors is worthy of their own post.  For now, let’s focus on how long each option takes – when should you expect to get to the finish line in an offer in compromise vs. the filing of bankruptcy?

1.    Offer in compromise – how quickly does the IRS work?

An offer in compromise is not necessarily a quick fix.  It can take the IRS, on average, 6-9 months at a minimum to complete its initial investigation.  But here’s the catch:  many offers are not initially accepted.  That means an appeal of the errors the IRS made in the initial review is usually necessary.  An appeal of a rejected offer can take another 6-9 months.  With the initial review and appeal, go into an offer in compromise presuming a 12 -18 month time frame to completion.

If you get a “yes” on the compromise, then you have to pay the amount offered to the IRS. The IRS will give you up to two years to pay the settlement to them.  But your “yes” is conditioned on the final payment being made – meaning you still owe the IRS and have not been given your fresh start until then.  If you want your tax lien released and credit cleared, presume it stays on until final payment is made.   It is not until final payment of the compromise settlement that the IRS makes an entry into their database to reduce your account balance to zero (yes, they really do that).

So, 12-18 months for investigation (and appeal), then up to two years for payment.  Yes, it can be shorter if appeal is not necessary, or if you can pay in the settlement quickly, but there is a wide time range to completion.

Let’s compare that to bankruptcy.

2.     Chapter 7 bankruptcy – quick relief without IRS passing judgment.

A Chapter 7 bankruptcy is a swift and efficient way to eliminate an IRS debt.  (Yes, bankruptcy can eliminate IRS tax debt.)  A Chapter 7 should be completed within 4 months of filing.

Here is what happens in a Chapter 7 bankruptcy:  Approximately 5 weeks after the filing, a hearing is scheduled with a bankruptcy trustee.  This trustee is employed by the Department of Justice – generally speaking, his or her job is to make sure that you have  been honest in your bankruptcy filing, and to determine if you have any assets available to sell to pay your creditors (rest easy, most assets are protected from creditors by state and federal law, very few Chapter 7 bankruptcies on the IRS result in loss of any property).  After your hearing with the trustee, your creditors – and the trustee – then have 60 days to object to your bankruptcy.  This is also rare – usually in cases where the bankruptcy laws are being “abused.”   If no one objects, the court issues you what is known as a “discharge”.

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There is an uncanny consistency in the returns that I see the IRS auditing. The process that the IRS goes through to determine whether to audit a tax return is far from random.  The IRS knows what to look for, and can spot a return that is prone to having mistakes in it, making you vulnerable.

Keep this in mind about your tax return:  it is a map of your finances.  And the IRS know the map quite well – after all, they created the map (tax forms).  You are filling the map in.

Let’s get into the mind of the IRS.  Here is a list of of five items that are red flags to an IRS audit:

1.     Returns that are self-prepared.  My only evidence of this is what I see – my clients that are audited usually prepared their own tax return.   I do not know if the IRS strategically and purposefully targets self-prepared returns, but it sure seems that way.  And thinking about it, it makes sense.  CPAs. attorneys, enrolled agents – professionals who are well-versed in the tax code and return preparation – may have less errors on a return.

2.     Returns that are illogical.   Remember that a tax return is a map of your finances  and the IRS is the map reader.  Here is an example:  If your household income is $46,000 a year, but you deduct $18,000 in mortgage interest, $4,000 in real estate taxes and $2,000 in charitable contributions – a total of $24,000 in expenses – the IRS could likely wonder how these expenses are being paid.  The income to debt ratio is too high.

Think about it.  That $46,000 of income is pretax – you actually brought home, say, $36,000 after taxes and deductions (equal to $3,000/month).  The expense deductions on the return for mortgage interest, real estate taxes and charity totals $2,000/month.  That leaves $1,000 for food, clothing, utilities, car payments, medical expenses, gas, insurance…and possibly an IRS audit because that budget may be appear unreasonable to the IRS.  To an IRS auditor, something is illogical on the tax return – are you making more and not reporting it, or deducting expenses you did not pay? Now, there may be explanations, and they can be provided – but you could be on the IRS’s radar.

3.     Schedule C losses.  This can go hand-in-hand with the tax returns not being logical.  If you are self-employed and show a loss on your tax return on Schedule C, questions can arise in the mind of the IRS:  How are you funding the loss?  How are you paying living expenses if you are losing money?  Schedule C losses offset other income on a tax return, lowering taxes and creating what can often be a significant tax benefit.  It makes the IRS curious.

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Resolving your tax debt often involves providing a financial statement to the IRS that discloses what you own, who you owe, what you make, and how much you spend.

Your financial disclosures are required to be made on forms designed by the IRS.  There are three forms that the IRS uses:  The 433A, which you will use if you are self-employed or a wage earner, the 433F, which is a shortened version of the 433A, and the 433B, which is used by businesses.

But what you put on the 433A, 433F or 433B is not enough.  Expect the IRS to request documents that back-up what you list – in other words, proof of how you report your financial situation.

IRS collection officers often appreciate their job being made easier – and that means providing documents that verify what is listed on the 433A, 433F or 433B.   More importantly, documents verifying your financial situation permits a Revenue Officer to move closer to making a recommendation to resolve and close your file.

Be prepared in advance – here is a list of 10 items IRS collections is most likely to request from you:

1.     Bank statements, usually at a minimum the last three months leading up to the date of the financial statements.  If you are self-employed and have both business and personal accounts, both will likely be required.

2.     Recent paystubs or proof of other income, like social security benefits, usually covering the last three months.

3.     A statement from your bank verifying the amount you owe on your home and car loans.

4.     A statement verifying the value of whole life insurance, stocks, brokerage accounts.

5.     Verification of any balances in a retirement account.  Information should also be obtained detailing indicating any inability to access the funds (age, separation from employment, etc.).

6.     Verification of certain monthly living expenses.  This can include housing and utilities, car payments, child care, child support, out of pocket medical expenses if the monthly expense is greater than $60 per dependent, health insurance premiums and payment of old state and local tax debts.

The IRS should not request verification of your expenses for food, clothing and entertainment – the IRS has a standard amount that it allows for these expenses regardless of what you spend.  Only in unusual circumstances will the IRS allow more than their standard monthly allowances for food, clothing and entertainment.

7.     If you are divorced and paying child support, a copy of your decree showing that a court requires you to make the payment and verification of the payments (usually three months).

8.     If you are self-employed, the IRS can request verification of your business expenses (this should be consistent with the profit and loss provided as part of the financial statement).

9.     If you are self-employed and are required to make estimated tax payments, expect the IRS to ask for proof that you are making your quarterly deposits.

10.   Verification of the valuation of your home and car.

Keep in mind this is intended to be a laundry list – what is actually requested is on a case-by-case basis.

Also remember that Revenue Officers need to document their case file and report to their manager that their recommendation for the case resolution (i.e., installment agreement, uncollectible) is backed up by records.  And if you are working with Automated Collection Service, I recommend having everything that could be possibly requested available when you place the call – if you are fortunate enough to have found a sympathetic IRS case worker, you do not want to have to call back and start again with someone else because documents are missing.  That someone else could be something else.

Any way you cut it, it pays to be prepared in advance and have records available that supports your IRS financial statement.

Falling behind on filing your taxes can be scary, filled with questions and doubt about how to make it right with the IRS.  Fortunately, there are steps that can be taken to satisfy the IRS and get you back into the system.

Here are 10 things you should know about getting current with your unfiled returns:

1.     In most cases, the IRS requires the last six years’ tax returns to be filed as an indicator of being current and compliant.  The reference is IRS Policy Statement 5-133 and Internal Revenue Manual  This is the starting point – preparing the last six years’ returns for filing.

2.    Gather your records.  It is important to do your best to pull together your records for the years where you did not file.  This can include 1099s or W2’s you received for work your performed, mortgage interest you paid, or interest, dividends and stock sales.  Don’t worry if you are missing records, this is just a starting point.

3.    Your records are supplemented by securing internal IRS transcripts that will show what has been reported to the IRS – this will be a comprehensive listing of the 1099s and W2s that were sent to you.  This cross-checks against your own records, filling in for anything that is missing.

4.    The IRS transcripts are a checking point – if there is income you earned that is not on the transcripts, best efforts need to be taken to determine that income and include it on your return.

5.    If you are self-employed, business income and expenses need to be determined.  Income can be pieced together by several methods, including 1099 reporting to the IRS (supplemented by any income not reported), or your total bank deposits.  Working backwards, determining what you spent to live (food, housing, utilities, auto expense) can cross-check your income on the presumption that you at least earned what you spent and saved.

6.    Before preparing the returns, a financial review should be completed to determine how any taxes can (or cannot) be repaid to the IRS.  Unfiled returns are really a two-step process, consisting of (1) getting the returns prepared and filed and (2) negotiating solutions to balances due with IRS collections.  This involves a review of your current income, living expenses, property and debts.  It is often the case that the amount owed on unfiled returns cannot be repaid – you may qualify for an offer in compromise, or may be considered in financial hardship – in those cases, the IRS puts collection of the debt in forbearance (known as uncollectible).   Bankruptcy could eventually eliminate the tax debt.

If you cannot pay either way, spending time piecing together every business expense for the returns might be an effort in futility – you will owe more than can be paid with or without the receipts.  In that case, it may be best to file a “gross” return, listing your income but not the expenses, and focusing on collection solutions.

7.     If you are married but only one spouse earned income, strong consideration should be given to filing a separate return for the spouse that caused the liability.  Filing separately can limit who the IRS can collect from – protecting your innocent spouse.

8.     If you were employed with wages and had taxes withheld from your paycheck, it is possible that you may not owe the IRS at all.  This will depend on the amount withheld from your wages and any other deductions you may have (mortgage interest, etc.).

The IRS charges interest and penalties only on balances due – so there are no penalties if you do not owe.  And if you have refunds, you should actually receive those for the last three years’ returns (but note the refunds will be applied to any balances due for other years).

9.     Sometimes, when you don’t file a return, the IRS files one for you.  In IRS-speak, this is called a Substitute for Return (sometimes known as an SFR).  Most times, an IRS substitute for return gets it wrong, charging you for income that was reported on W2s and 1099s but not giving you any deductions or exemptions.  You may already have a bill from the IRS from a Substitute for Return.  These estimated returns can be corrected – and the tax lowered – by filing an original return.

10.     If possible, the unfiled returns should be hand-filed at an IRS walk-in center – bring an extra copy to get it stamped by the IRS as proof of filing.  If you are working with an IRS Revenue Officer, the returns should be filed direct with that person.  It can take the IRS several months to process the returns – watch for billing notices in the mail that will indicate the IRS processed the returns and you are back in the system.  If you owe money, the next step is solutions to the balances due -usually consisting of compromise, installment agreement, uncollectible and bankruptcy.

You can get current on your on unfiled tax returns and get back into the system.  Your goals should be the same as the IRS’s – get the returns filed and provide financial disclosures to arrive at a solution for the balances owed.

The IRS sends out a lot of mail.  Any letter from the IRS should be taken seriously, but some have more legal ramifications than others.  Here are three of the most important IRS letters – what they mean, and how to respond:

1.     Notice of Deficiency.  The IRS sends this letter out as the final notification they are going to make changes to your tax return.  It is usually sent out to conclude an audit, but can also be used to create a liability for you if you have not filed a tax return.  The notice of deficiency will list the changes the IRS proposes to make to your taxes – for example, disallowing your home office deduction, or business use of your car, or increasing your income from a retirement distribution that you overlooked – and calculate a new tax due, along with interest and penalties.

The notice of deficiency is also known as a “90 day letter” or ” statutory notice of deficiency,” and is authorized in Internal Revenue Code section 6212.

The notice of deficiency gives you 90 days to file a complaint to U.S. Tax Court to dispute the proposed changes to your tax return.  Focus on the use of the word “proposed” – nothing is final until the notice of deficiency is sent and you are notified of your Tax Court rights.  In Tax Court, you will be like a Plaintiff, and the dispute will be over the IRS auditor’s findings.  You will have an opportunity to go before a Federal judge, bring witnesses, and state your case that the IRS audit is wrong.  If you did not have the opportunity for IRS appeals to review the audit, you will have that opportunity to settle the case with the IRS appeals before trial.

If you do not file a complaint to Tax Court in 90 days, the audit becomes final, and the IRS will send you a bill and start collection efforts.   Before the 90th day, the audit is proposed; after the 90th day, the audit becomes legally binding if a Tax Court petition is not filed.

2.     Final Notice of Intent to Levy.   The IRS is required by law to send a notification to anyone who owes a tax debt before starting enforcement by levy or seizure.  This letter is called a Final Notice of Intent to Levy, and is authorized by Internal Revenue Code section 6330.

The Final Notice of Intent to Levy gives you 30 days to file an administrative appeal with the IRS, disputing the IRS’s intent to start collecting the taxes from you.   This appeal is important:  First, while the appeal is pending, the IRS is prevented from taking its intended enforcement action – no levies, no seizures in most every case.  Second, the appeal moves the case file from the IRS Collection Division to the IRS Office of Appeals.  The Office of Appeals will give you an opportunity to meet with a settlement officer to negotiate a solution to the unpaid taxes.  And third, if you cannot work it out with appeals, you have the right to dispute the proposed enforcement in Tax Court.

The process to appeal, stop, and dispute intended IRS enforcement before it occurs is commonly referred to as a Collection Due Process Appeal.

The right to take IRS collections to Tax Court creates a notice that is a first cousin to the Notice of Deficiency – you will receive a Notice of Determination at the conclusion of your collection appeal.  If you disagree with IRS Appeals, you have 30 days to file a complaint to Tax Court for a review of the intended collection action.

3.     Trust Fund Recovery Penalty – IRS Letter 1153.   The IRS cannot make an assessment against business owners for unpaid employee withholding taxes unless prior notice and appeal rights are first provided.  This is called a trust fund recovery penalty, and an IRS Revenue Officer will issue Letter 1153 to any person with decision making authority over the payment of the employee withholding.  (It is called a trust fund recovery penalty because the decision-makers had a caretaking (trust) responsibility to pay the employees’ withholding to the IRS; failing that trust can result in the business owners being held responsible for repayment of the employment taxes.)  This is authorized by Internal Revenue Code section 6672.

The IRS Letter 1153 is sent by an IRS Revenue Officer after an investigation into finding the decision-makers.  Many times, the IRS targets for the trust fund penalty were not decision-makers and should not be held responsible for the failures of the business.  If the IRS target disputes the liability, there is a 60 day window of time to file an appeal.  The appeal prevents an assessment being made against the target, and provides independent review of the Revenue Officer’s findings.

The Notice of Deficiency, Final Notice of Intent to Levy and Trust Fund Recovery Penalty Letter 1153 all involve proposed actions by the IRS, and rights to review before those actions can be implemented.  The tax code has restrictions on the IRS acting unilaterally to finalize an audit, levy on property or conclude an investigation into personal responsibility for trust fund taxes.  When dealing with the IRS, itt is essential to know these rights, what they mean, and how to respond.

If you owe money to the IRS, chances are you have justifiable concerns over the IRS involuntarily taking your property to pay the debt.

But the IRS releases statistics on what they levy and seize. This provides valuable direction as to what is really at risk for you rather than losing sleep and energy worrying over what might could happen.

The IRS prefers assets that are liquid – meaning easily convertible to cash.  This is primarily bank accounts and wages.  And although retirement accounts are cash assets, the IRS tends to avoid that.  The IRS shies away from seizing real and personal property – houses, cars, household goods, even business equipment.

Here are the facts as to what the IRS levies and seizes:

In 2011, the IRS made 776 seizures of real and personal property – hard assets that take time to liquidate, houses, cars, household goods, business equipment.

Compare that to levies on bank accounts, wages, etc.:  In 2011, the IRS issued 3,748,884 levies on third parties, like banks and employers.

Think about it:  776 vs. almost 4 million.

The IRS wants to get paid in the least intrusive manner and with the quickest result.  There are reasons for this wide discrepancy, including a prohibition in the Internal Revenue Code and Internal Revenue Manual on the IRS seizing and selling property that will not result in any net recovery (i.e., property with no equity).  Make no mistake that an IRS seizure of a house or business equipment is serious; but it is important to understand that the risk usually is in cash assets.

If you have a wage levy or just found out the money in your bank account was just cleaned-out by the IRS, there are ways to get quick releases.  Sometimes, a levy can be released without providing the IRS any financial information about you (known as streamlined installment agreements), while other times your income and expenses will need to be discussed with the IRS to arrive at a plan (which can include the levy released on a finding of financial hardship and having your account placed on hold for several years).  In extreme situations, bankruptcy can get an IRS levy released, no questions asked.

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