Howard's IRS and the Law Blog

An IRS offer in compromise is available to virtually anyone who owes the IRS back taxes.  But it is important to avoid confusing the program’s widespread availability with success in getting your offer accepted.

After all, the last thing you want to do is waste time and money with the IRS on an offer that has no chance.  The offer in compromise program does work – but only in the right situation. To have success with an IRS compromise, you have to understand the IRS guidelines for analyzing your offer.

Is there a point where you could earn too much money to get a compromise accepted, and as a result have to consider other options with the IRS (installment agreements, tax bankruptcy).

There are two rules to follow when considering how your income could affect the success of your offer in compromise:

The first rule is that the IRS has no set rules that limit an offer in compromise to certain income levels.  There are no earnings caps to the availability of an offer in compromise. Whether you make $25,000 or $250,000, the IRS compromise guidelines will not, standing alone, make you ineligible for settlement.

The second rule, though, is that the IRS does have living expense guidelines that limit how much you can spend to get to “yes” in a compromise.

Sure, the IRS says, go ahead and make $250,000 – but if you spend it in a way that is different from what the IRS guidelines permit, your compromise could run into trouble.

The IRS determines the amount of your settlement by figuring out how much they think they can collect from your cash flow over the time they have to collect your tax debt from you.

Cash flow is defined by the IRS as your earnings less your monthly living expenses (remembering that the IRS has guidelines that limit your living expenses). The IRS has 10 years to collect a debt from you, beginning on the date you initially owed the IRS the money.

If your monthly cash flow, after being multiplied by the amount of months the IRS has left to collect the debt from you, is less than what you owe, then your in the game for an offer in compromise.  If your monthly cash flow, as defined by the IRS, can full pay what you owe, then your offer will be rejected.

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What if you can afford a monthly installment agreement with the IRS, but your payments will not ever repay what you owe?

The good news is that the IRS will give you a payment plan – and leave you alone – even though you cannot pay them back.

The IRS calls this partial pay installment agreements (PPIA).  Payment agreements that do not pay the IRS in full are permitted not only by IRS internal guidelines (Internal Revenue Manual 5.14.2), but by law (Internal Revenue Code Section 6519).

Internal Revenue Code 6159(a) specifically states that the IRS can enter into an agreement that facilitates either full or partial collection of an unpaid tax liability.

Even better news:  In conjunction with your partial pay installment agreement, keep in the back of your mind that the IRS does have a time limitation on how long they can collect a tax debt.  The time limitation, which is known as the statute of limitations on collection, is 10 years.  The 10 years starts when the IRS first determines that you owe them money – that can be when you filed your tax return, when the IRS completed an audit of your tax return and found you owed additional money, or when the IRS filed a tax return for you (called a Substitute for Return) because you never filed on your own.  Whenever the IRS puts a balance owed on its books, that’s when the 10 year time to collect starts. IRS collection does not last forever, and neither do payment agreements.

They are called partial pay installment agreements for a reason.

What does this mean to you?  To sum up, the IRS will accept partial pay installment plans, and combined with the limitation on how long the IRS has to collect a debt, this results in an agreement where you repay the IRS less than what you owe. In other words, partial pay installment agreements present a viable settlement alternative to the IRS offer in compromise program.

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You were brave enough to pick-up and open your certified mail, and there it was – an IRS Final Notice of Intent to Levy.

The law is intended to avoid surprises from the IRS and protect you, and the Final Notice of Intent to Levy does just that, giving you notice in advance that they are considering sending a levy to your employer or bank or even taking your personal property or real estate.

Now that you are on notice that the IRS wants to gear up its collection activities, what are your next steps?

You do have rights.

First, it is important to make sure you have received an actual Final Notice of Intent to Levy from the IRS. The IRS sends out many, many different collection letters, and they all tend to look like, but they are not all are equal.

To determine if you have received an actual Final Notice of Intent to Levy, look in the upper right hand corner of your letter.  You are looking for IRS identifiers LT11 or LT 1058 – if your notice does not have have either of those, it is likely not a Final Notice of Intent to Levy giving the IRS the rights to take your property.

If your letter is either an LT11 or LT 1058, then you now have important rights to stop the IRS from levying you.

The IRS not only has to give you notice before they levy, but also the right to prevent a levy by the filing of an appeal to negotiate alternatives to seizure.

Tax laws give you 30 days after the date of your LT11 or LT 1058 notice to file an appeal.  Filing your appeal is extremely important as it stops the IRS from levying you while it is pending. This enables you to continue to protect your wages and accounts from the IRS while you work out a solution with them.

If more than 30 days have passed since the IRS sent you the final notice, that’s okay, too. The IRS is actually somewhat flexible in giving you the ability to appeal their final notices of intent to levy, extending the tax law requirement of appealing with 30 days and giving you up to a year if you missed the deadline.

After the appeal is filed, procedurally, it will take the IRS about 3-5 months to process it. In most situations, during that entire time, the IRS continues to be barred from taking collection enforcement against you.

The IRS will then forward your appeal to a settlement officer.  IRS settlement officers are not collection employees and are trained to settle unpaid tax cases.  They cannot levy you.  They are there to resolve your case.

If you have been frustrated by dealings with the IRS Automated Collection Service or a local IRS Revenue Officer, your collection due process appeal changes that and put you in front of a different IRS employee – a settlement officer – who likely has a different perspective.  After you have reached resolution with the settlement officer (without the threat of levy), the IRS has to abide by it.

The IRS Final Notice of Intent to Levy is probably the most important letter the IRS will send you.  After all, without it, the IRS cannot levy your wages, bank accounts and property.

With the final notice, you have rights to stop the levy before it happens, and meet with an IRS settlement officer to negotiate a solution that is better than levy.  Solutions that the IRS settlement officer can consider include an offer in compromise, a monthly payment plan, currently uncollectible and even penalty abatement.  If you owe back taxes to the IRS, properly responding to the final notice can be an important element of getting the best result.

Getting ready for your IRS audit: Organizing your records

by Howard S. Levy, Esq. on February 16, 2015

in IRS audits

Most IRS audits start because the IRS believes there is something wrong with your tax return.

I mean, let’s face it, the IRS is not spending time auditing tax returns that they think are clean.

In other words, an audit starts with you behind the eight ball, presumed to have filed a return that has mistakes on it.

How do you fight that negative presumption of guilt before you even get started?  One word:  credibility.

Credibility in IRS audits does not come from words, but from organization.

But how do you organize you records for the auditor to gain credibility?  And what if your records are incomplete?

Here are some tip to solve frequently encountered problems in preparing for your records for an IRS audit:

1.     Make the auditor’s job easier.  That means understanding what the auditor wants ahead of time, and giving it to him.  You do not want to go through and organize that box of receipts, and neither does the IRS auditor.  But somebody has to.  And it is better you then the auditor.  Remember, the auditor is coming in expecting the worst; try to gain credibility by slowly adjusting his preconceived expectations of you.  So, put the time in so the IRS auditor does not have to. Ultimately, your preparation can give you the benefit of the doubt on judgment calls – you want those calls to go your way.

If possible, put your receipts in their own file folders.  Each expense should have its own file folder – i.e., one for subcontractor labor, one for your charitable contributions, one for your home office expenses.  Name each file folder for the expense it holds.

If necessary, receipts should be marked to further explain the expense it verifies.  For example, if you entertained for business, mark on the receipt who you entertained, and why.

If you have a bill for services and a check showing the bill was paid, staple the check to the bill.

Add the totals of the receipts up for each expense category and provide your tabulation to the auditor.

Do away with plastic grocery bags with receipts in them.  This makes for a poor presentation and takes away credibility.

Prepare this way:  How would you like the records to look if you were the auditor?  What would impress you?

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An offer in compromise can put IRS troubles behind you and bring a fresh start on your taxes.

But the road to a fresh start with the IRS is not necessarily as simple as it may sound.

The IRS has very strict criteria that they use to determine if a tax debt should be compromised.

Before jumping in with a compromise, there is much you need to know about the IRS settlement process, including:

–     Whether you should even file an offer in compromise.  For example, if the IRS has a limited time left to collect your debt (out of the 10 year period they are given by law), should you jump in or remain on the sidelines?  Sometimes, it is better to hold ’em, but you need to know when.

–     What are your chances of success. The IRS rejects more comprises than it accepts, due in part to its rigorous financial guidelines that are used to determine if they should settle or if they believe they can get paid in full.  Know if your your situation merits the time invested to settle ahead of time.

–     How to use the internal IRS criteria to negotiate the best settlement.  It is important to know the IRS offer in compromise valuation formula before jumping in.  Do you make too much to settle?  What if you spend too much and the IRS wants you to cut your budget so you can pay them more?  The IRS has specific formulas that are used in valuing a compromise that should be reviewed and applied to your situation before jumping in.

–     The best ways to handle the full financial disclosure that the IRS requires.  The IRS wants to know where you work, bank, the amount in your retirement accounts, what cars you drive, what your house is worth, what you make, and what you spend.  What if your income varies year to year, and right now it is at a high?  What income do you pick (hint:  the IRS permits income-averaging over several years to even out the highs and he lows)?

–     How to complete the IRS financial statements and compromise forms.  For example, the IRS guidelines permit you to reduce the value of your cars and house by 20% on the financial statements, effectively lowering the value of your compromise by 20%.  Proper completion of the forms can result in significant savings in settlement.

–     Your rights to dispute an IRS rejection of an offer in compromise.  Maybe they think your home is worth more than it is.  Or aren’t allowing you necessary living expenses.  Or think you earn more than you do or will in the fixture.  Either way, any IRS compromise decision is subject to an independent review by the IRS Office of Appeals.  Many offers that are initially turned down are ultimately accepted by appeals.

Success with an offer in compromise is based on knowing the IRS’s settlement guidelines, understanding how to apply those rules to your situation, and responding if the IRS does not properly follow and implement them.

In that regard, on Wednesday, January 28, 2015, I will be giving a live webinar with myLawCLE.com on how to negotiate an offer in compromise settlement with the IRS.  If you are unable to attend the webinar, feel free to email me at howard@voorheeslevy.com and we can set a time to review helping you get a fresh start with the IRS.  And if an offer in compromise is not your best option, we can determine if you qualify for other alternatives, including how much longer the IRS has to collect, bankruptcy, currently uncollectible, or a monthly payment agreement with th IRS.

You just received a letter from the IRS notifying you that they are rejecting your offer in compromise.  Enclosed with your letter are the IRS calculations, detailing why your offer was rejected.

The IRS might as well be speaking a foreign language – what do all their calculations mean? And do you have a good reason to appeal the rejection?

One reason the IRS rejects an offer in compromise is because they think that you can pay them in full from your future income.  The IRS defines your future income as the amount you earn, less your necessary living expenses.

The IRS has schedules of what your necessary living expenses should be.  And if your actual expenses are greater than the IRS allowances, the IRS will cut you short on expenses.  This creates more future income to IRS, increases the value of your compromise, and can result in a letter proposing rejection.

Here’s an example of how the IRS living expense allowances work:

Let’s say you live in Cincinnati, Ohio and have a family of four.  The IRS will allow you a monthly housing and utility expense of $1,942.

But what if your housing and utilities – mortgage payment, gas/electric, water, sewer, trash, cable, and phone bill – total $2,300/month?

The IRS won’t allow you to deduct your full monthly living expense in their offer in compromise calculation, and will cap the expense and allow you only their number, $1,942. The result is that the IRS calculations have you at $358 more left over every month to pay them than you actually do ($2,300 actual – $1,942 allowed).

This is what I call phantom cash flow – you don’t have it, can’t afford to pay it to the IRS, but they will use that $358 a part of what is collectible from your future income in their offer in compromise calculation.

These expense limitations are known as IRS Collection Financial Standards.

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