TaxMama’s Audit Secrets How to Survive an Audit With
Transcription
TaxMama’s Audit Secrets How to Survive an Audit With
TaxMama’s Audit Secrets Or... How to Survive an Audit With No Changes By Eva Rosenberg, MBA, EA copyright © Eva Rosenberg 2006 800-5-WHY TAX TaxAnxiety, Inc. P.O. Box 280549 Northridge, CA 91328 www.TaxMama.com No portion may be reproduced without the written consent of the author, except, naturally, for IRS forms, which are public domain. The worksheets, if any, may be reproduced for internal use only. The mandatory legal disclaimer thing: This material is for education purposes. It’s designed to provide a guideline only. Things change. Laws change. Please do not rely on this as the ultimate authority on all things. I am not engaged in rendering legal, accounting or other professional advice or service via this publication. If you need advice on a specific issue - get it for that issue from an appropriate source. Copyright © Eva Rosenberg, 2003 AUDITS Page # 1 TaxMama.com About The Author Eva Rosenberg, known as TaxMama for both her warmth and her nagging, is an enrolled agent, hostess of www.TaxMama.com and author of the weekly, syndicated Ask TaxMama column and the daily audio podcast TaxMama’s Tax Quips. The TaxMama.com site is a free resource, warmly welcoming all taxpayers and tax professionals. Through the site, Eva provides articles, IRS news, links to tax forms and free answers to visitors' tax questions . . . along with her own twist on pending and current legislation. Go to www.TaxMama.com for your free subscription and access to a continuing stream of tax advice, news, and tips -- and plenty of jokes and inspiration, too! You'll find her quoted in publications as diverse as the Wall Street Journal, Chicago Tribune, New York Times, Los Angeles Times, USA Today, Glamour and Woman's Day. Her tips appear regularly in banking publications, including those of Wells Fargo, Guaranty Bank, and BankRate.com. Her recent book, Small Business Taxes Made Easy was named one of the top tax books of 2005 by Entrepreneur Magazine. http://www.taxmama.com/AskTaxMama/book/ She has co-authored a series of three business e-books with popular tax author Wayne Davies. The first book is called THE TAXTICAL GUIDE TO INCORPORATION SECRETS. http://suchasuccess.net/ Eva's frankness, sense of humor, and casual, stand-up tax delivery make her a popular talk show guest and speaker around the country. Her MarketWatch.com tax columns are eagerly anticipated by readers, wondering just what IRS button she's going to push next. Copyright © Eva Rosenberg, 2003 AUDITS Page # 2 TaxMama.com Staying Out of Audit in the First Place Some History I started preparing tax returns on my own in 1979. Sometime around 1990, after listening to other tax professionals discuss their client s audits, I began to notice that few, if any of my clients were getting audited. It s a bit hard getting experience doing audits if you aren t generating any. I just didn t know any better. Audits through 1979 - 1990: Individuals: 1 office in home; 1 person who omitted $100K in 1099 income (he never gave me the 1099's); Another person who omitted $30K interest income, he never received the 1099 with the various preparer penalties, we face tremendous new burdens to ensure that the data on the tax returns we prepare is reasonable and correct. And with all the hoopla about Enron and Anderson, when it comes to certified audits, the world’s eyes are on us, more than ever. We've developed TaxMama’s Philosophy: forms, engagement Unless a client can afford letters, disclaimers, etc. to (and is willing to) give to protect me enough money to live ourselves from for the rest of my life in the clients' manner to which I would non-disclosures. like to become But, if too many of accustomed, our clients start facing audits with NO WAY! major examination changes, it stands to reason that our work will be under scrutiny and our ability to earn a living will be jeopardized. Anticipating an Audit. Laying the Groundwork: Knowing there is an audit is simple - they get an audit notice and come to see you. But, when preparing the return, how can you predict when an audit or scrutiny is likely? Real Estate Partnerships: One third of the buildings burned down 2 weeks after purchase – and they reported the major casualty loss; Donated $1,000,000 building to religious school It seems that my basic nature was responsible for my failure to generate more audits. Fundamentally, I have an adventurous, risk-taking personality. However, when it comes to my clients, I am extremely conservative. While I will take advantage of any gray areas the law allows, I will not knowingly prepare a false or fraudulent return. 1) You are dealing with a non-filer and preparing two year’s or more returns. 2) You are dealing with non-filers and a Revenue Agent has knocked on their door. 3) You are dealing with non-filers who have a Revenue Officer on the case due to SFR (Substitute For Return) assessments or other unpaid issues. 4) A member of a targeted MSSP class, related to working/for someone being audited. 5) They are a member of an entity that is/has been/is about to be audited. 6) They have a lot of "red-flag" issues on their tax return, although legitimately. Too many clients come to us with information that clearly bears no relationship to reality. Then we have those clients who complain to us about friends who are getting away without paying taxes and living well - so, why can't they? As tax professionals, under Circular 230 and Copyright © Eva Rosenberg, 2003 AUDITS Page # 3 TaxMama.com You know the return will be scrutinized. What will the IRS look for? 1) Financial lifestyle 2) Standards of living and reasonableness of business operations costs 3) Spending habits and new purchases (conspicuous consumption) 4) Bank deposits 5) 1099/W-2 reports with their ID # If these factors don't match the tax return (or industry practices), the IRS will suspect unreported income, inflated expenses, or worse, though client s source of funds may simply be non-taxable income. The IRS is the nation's tax collectors. They know that some people will do anything they can to reduce their taxes - even illegally.IRS’s main focus is no longer just on substantiating expenses. They are serious about picking up unreported income and making their audits profitable. They have so many electronic tools and information sorting technology at their fingertips, that’s become really easy to do select the right tax returns for audit. If you aren’t seeing a higher rate of taxes billed as a result of audits, you will be. There’s no longer a reason for IRS to perform audits strictly at random. (Yes, they have that National Research Program running – but it impacts very few people.) Now, IRS can sort for common errors or for tax preparers whose returns consistently fall into certain patterns. So, if they can find returns they know will be wrong, why waste energy on no-changes? Mark my words, you’ll see more solid audits come up in the next many years. So, how will IRS know if our clients are lying? Inside Info W-2s 1099s Tax Returns Collections Prior Audit(s) Prior Examiners Market Segment Spec Prog (MSSP) Copyright © Eva Rosenberg, 2003 AUDITS National Research Program (NRP) Audits of other people’s returns Audits of Related or Pass-Through Entities IRP ( Information Returns Program) Currency & Banking Retrieval System (CBRS) - Customs - Casinos - CTR's (Currency Transact. Reports) - F-Bar (Report-Foreign Bank Accts) - Forms 8300 Outside Data Agencies Bureau of Labor Statistics (BLS) Social Security Admin (SSA) U.S. Post Office (USPS) Dept of Motor Vehicles (DMV) Law Enforcement Dept of Social Svcs (DSS) Dept of Agriculture (DOA) OSHA - Occupation Health & Dept of Social Svcs (DSS) Small Business Admin (SBA) Dept of Transport (DOT) Fictitious Name Register Permits Better Business Bureau (BBB) Court Records (Amount/Holder) Divorces Mortgages Liens Bankruptcies Probate Property Records City and State Information Permits Licenses Sales Tax Employment/Unemployment Other Trade Associations Corporations (charters, etc) City Directory Public Utilities Credit Applications/Reports Suppliers Employer s Personnel Records Banks/S&Ls/Credit Unions Insurance Providers Dun & Bradstreet Legal Databases Former Personal Contacts/Relationships Landlord Employer - Employees/Contractors - Ex-Spouse/Children - Neighbors Third Party Contacts - Various Newspaper Articles Informants Internet Searches Page # 4 TaxMama.com Remember, the IRS is the arm of the US government that caught Al Capone, Darryl Strawberry and Heidi Fleiss. They have access to substantial internal and external resources about people - especially in today's computer age How do you overcome this? Know as much about your client as the IRS knows. You never want to walk into an audit and learn: The IRS has communications from the client on file of which you are ignorant. They know about income or bank accounts that you don't. Your most important tools these days are the proof of cash and the Cash T. Auditors should be using them. Do it first. (I haven’t seen one done in an audit. But then, I’ve always had my own to hand them.) Get copies of ALL the bank statements on all accounts, personal and business, checking, savings, CD and Money Market. The next most important line of defense? Redo the tax return from scratch, using all the supporting information you gather from the client. Make it VERY clear to your client that s/he must disclose all IRS-related interactions to you. All income sources must be disclosed. Be clever and ask very detailed questions about the client's finances and lifestyle. Ask to see a credit report. If you feel that the client has many unexplained or suspicious transactions you may want to remove yourself from the case. (Note: The new Tax Pro client privilege does not extend to knowledge about criminal actions.) Have the client sign all the appropriate engagement letters. If they think criminal charges are a consideration, bring in an attorney and be retained under that umbrella. Keep in mind: Your reputation and credibility with the IRS is your best asset if you want to build an audit practice. If a client lies to you, will the IRS believe you didn't know. Tip: Document the date, time and substance of all conversations with your client or auditor. Copyright © Eva Rosenberg, 2003 If your client tells you that there is unreported income, explain the consequences and potential tax liability to your client, preferably in writing. Do your best to determine the full magnitude of the problem before you go to the IRS. Having the facts in hand and good reasons for the actions may help you negotiate away fraud and other penalties. AUDITS Although you may not find the auditor performing these tasks, it’s wise for you to do them. For each bank account, do a proof of cash : Please note: Regardless of the non-income sources of funds your client tells you about, if they are not deposited to any of the accounts in questions, those funds will NOT reduce the income resulting from the proof of cash. The Cash T is a more detailed version of the old proof of cash. There is nothing to prevent the auditor from looking at all your taxable and non-taxable income, beginning bank balances and loan balances, partnership/S-Corp/LLP distributions and all other sources of deposits you have identified. If they do, the auditor will deduct all visible expenses. If you refuse to (or cannot) provide The client’s living expenses, the IRS may use Bureau of Labor Statistics (BLS) data figures. Page # 5 TaxMama.com In ideal situations, the client will have a Profit and Loss and a Balance Sheet, along with a Detail General Ledger printout. Add up all the deposits on all the bank statements for ALL 12 months Deduct: All personal loans Gifts (document them) deposited to the account Credit card advances deposited to the account Bank loans Refinancing proceeds deposited to the account SS Income Other non-taxable income (federal tax refunds, etc.) Find transfers into this account from another of the client's accounts Fundamentally, the difference should be your income. Since the audit is brief (about two hours are allotted for the typical office audit), during the meeting, the auditor is likely to try to come to some ball-park estimations of reasonableness. It’s up to you to do enough homework to make sure the information is reasonable - or be prepared to explain any discrepancies. If there are more expenditures than sources of income, the IRS will consider any unsupported difference as unreported income. It is our job, as tax professionals to know about this difference, in advance – and to minimize this difference. Frankly, your average honest taxpayer will have probably come out just fine. This stringent tool is designed to ferret out the tax outlaws. (And keep us from looking like clowns at audit.) We’ve got the deposits explained...now let’s move on. Deposits are Sorted out? Time to Work on Expenses. Copyright © Eva Rosenberg, 2003 AUDITS In reality, if you're lucky, they'll come in with an accordion file with all the receipts neatly arranged into categories - you won't realize there is a problem until you later notice that there are no adding machine tapes, the totals don't come close to the expenses shown on the return, and you have checks written to another bank account he forget to tell you about. Oh yes, back to reality. What now? Frankly, the simplest method I've found to work my way through audit schedules is to use an accounting program like QuickBooks. Many people prefer spreadsheet programs. Whatever software you use, make sure it's one that doesn't require you to POST or CLOSE each month or year. I prefer a program that does not force me to make journal entries to correct my data. (I really have to leave an audit trail every time an entry in a check register is different from the canceled check.) Try to find one that let's you enter receipts and checks in any order and any year, but places them into check number &/or date order for you. Make sure it will produce detail general ledger reports as well as account detail and detailed reports on groups of accounts. You will find that this saves substantial filing/sorting time. Prepare all your entries and compare the results to the tax return. If you are way off, ask the client for credit card statements for ALL his/her accounts and all cash-paid receipts. Don't hesitate to ask if they used someone else's credit cards for their business expenses. This practice is becoming more prevalent than you realize. Get copies of the friend's credit card statements and the canceled checks reimbursing the friend. (Prime candidates – people who have filed bankruptcy, gotten divorced recently or are non-filers afraid to open bank accounts.) For expenses where the IRS permits you to use standard amounts (auto/mileage, meals and travel per diems) compare the actual with the standard rates. Too often, I have been able to bypass a detailed scrutiny of the expenses via Page # 6 TaxMama.com one of these methods. You’ll find links to all of these things at TaxMama’s Tax Resource Page. We're going to walk through some real audits. Naturally, the names have been removed. When preparing for an audit, use every tool at your disposal - Tax Code, Master Tax Guide, Research Disks/libraries, Regs, Tax Court Cases, industry behavior (newsletters, articles, guides, etc.), wiser minds. Call a college tax department for help. Call one of us! Negotiating: You can negotiate, to some extent on all levels. You need to have a basis for your request. They won't do it just because you ask. In another case, concluded on July 18, 1996, (not presented here) I was able to negotiate with an office auditor. They generally don't have the authority to reduce the tax liability once the audit has been concluded - so don't ask for that. However, the office auditor does have the discretion to decide what documentation is acceptable. In this case, I could prove that there were loans, but couldn't trace them into the bank. I could convince her that the client most likely had auto insurance, but since the insurance agent was gone (deceased) and the client had used his mother's money to pay for it we couldn't prove the cost. I could prove there was a second vehicle, couldn't prove how many miles it had been driven (business or otherwise). I had no bank statements at all for one of the years, but I had detailed QuickBooks schedules covering all the checks in the check register, the credit card entries and all the cash expenses. TaxMama’s 3 Basic Rules of Tax Negotiating 1. Know before you start negotiating exactly what it is you want to accomplish. (They don’t need to know that - but it’s critical that you have it defined in your own mind.) 2. Have something to give up. (Do your audit preparation so thoroughly that you find the expenses your client overlooked. Look at missed itemized deductions - always a good source of errors in your favor!) Although I did not have a mileage log, I had a list of all the jobs and how often he had been there. I had the client reconstruct his sales calls (mileage to potential work) and the approximate number of shopping trips for materials and supplies. 3. Give the auditor/Appeals Officer something tangible to put into the file to support your position. It saves them time and makes them look good to their superiors on review. In other words, I gave the office auditor an excuse to accept my position on the questionable expenses. In Case Study 1, although I couldn't prove the last $133,000 of deposits were transfers, I was able to prove that there was a consistent pattern of behavior. I was able to provide enough paperwork to give the auditor an excuse to support my position that perhaps the deposits were not income after all. Copyright © Eva Rosenberg, 2003 Looking at Case Study 2, I made sure that I had enough extra expenses to be able to give up some without losing much. When the auditor started to waver about the garments, I quickly offered him a lower percentage of the office in home. The garments were important to Al in order to establish a precedent. The office in home no longer mattered because he wasn t living there - and now, he really was selfemployed. So I knew that we were giving up nothing in the long run. AUDITS Tip: Make an extra set of copies of all the schedules and workpapers for the auditor's file. It provides documentation and makes him/her look better upon review. Page # 7 TaxMama.com Result: Instead of the $10,000 additional taxable income I expected, we ended up owing only $987.00. Copyright © Eva Rosenberg, 2003 AUDITS Page # 8 TaxMama.com Audit Reconsiderations, Appeals & Tax Court, some Brief Words You can get audit reconsiderations. Try any or all of the following: Should we use Appeals only a Last Resort? Some practitioners find that the Appeals process is sometimes easier to deal with that the auditors. While all auditors must have college degrees, the degree does not necessarily have to be in accounting or taxation. So, sometimes they are not as well-trained as we would like. 1) If you are working with a revenue officer, ask him/her for help. 2) Ask the local audit group manager. 3) Write to the branch chief. 4) Contact the Practitioner Priority Service they have Form 3410-Request for Audit Reconsideration ask them to give you Forms 3411 & 3412 ( copies enclosed). 5) Contact the Taxpayer s Advocate (formerly, Problem Resolution Officer) 6) Make an appointment for an IRS Problem Solving Day (if they still have them) 7) Contact the Small Business/Self-Employed Operating Division 8) Contact the Deputy Director, Compliance Field Operations 9) Contact the Director of the IRS 10) Call TaxMama for help However, by the time IRS agents get to the Appeals level, they have extensive field experience, education. Training and the ability to use and understand tax research and the research tools. You are dealing with a seasoned professional who has more decision authority than the office auditor and many field auditors. The purpose of Appeals is to settle cases without litigation. They will evaluate your case's strengths and weaknesses with an eye to how your case will stand up in court. They will have pulled the relevant court cases, decisions and precedents. (Or at least the items they think are relevant.) Feel free to ask them for their citations when you meet. But, most importantly, have your research ready. If you give them a copy of your cases (not just the citations to cases) with your points highlighted, it will enhance their willingness to cooperate with you. You've done a big part of their job and they have objective documentation, in your favor, to put into your client's file. When you ask for the reconsideration, you'd better have at least 80% of your material ready. You won't generally get another chance to present your case. You can also get an auditor removed from a case and get a replacement if things get completely out of hand. (I did that for one entertainment industry audit this year, where the office auditor spent our entire two hours getting terminology defined!) Copyright © Eva Rosenberg, 2003 Are Appeals More Appealing or Frightening Than Audit? AUDITS Remember, generally, Appeals is not about supporting expenses. It is about tax law and precedents. However, if deductions were not substantiated during audit, expect the appeals officer to require supporting documents. Most tax professionals use Appeals to their advantage. When confronted with a particularly troublesome auditor and a group manager who will not intervene, the tax pro simply calls a halt to the whole process. Let the IRS post their adjustments and the pro walks away. Page # 9 TaxMama.com They wait for the audit determination letter (30-day letter). When it comes, it tells you right on it that you can request an Appeals hearing. Do it. Write a letter requesting the hearing. Include specific areas where the auditor is incorrect and briefly describe what documentation you have to add for this hearing. And be sure to include the office where you d like the case heard. In an area like Southern California, we have several duty stations for Appeals Officers. If you know that one group has a particular attitude pro or con your issue, take that into account. (If you don t know, ask your colleagues who ve done appeals cases in the area - or call TaxMama) we had. But, oops, the Appeals Officer s requests for documentation were making more and more sense - and Bob was missing crucial information. By this time, Bob had come to realize that his position is much weaker than he thought. In fact, the more material that came to light, the worse his case kept getting. (Potential recapture of K-1 losses on all the closed partnerships, potential gains from cancellation of indebtedness...were the interest deductions even valid - after all, he bankrupted those debts...on and on...it kept getting worse). The case finally closed with a negotiated balance of $50,000. (Then, he waited another couple of years and bankrupted that again - but that s another story!) DO NOT include a harangue of the auditor's bad qualities, what's wrong with the IRS or the System. Meanwhile, get all your documentation together. This will include all the support for the unresolved income/expense issues. It will also require that you do some in-depth research on the tax law issues involved. Besides the legal issues, you may have to get background information relating to your client and his/her business, plans, intentions. Intentions are critical. However, they must be documented. Was the intent of the expenditure for Business, for Investment, simply a Personal loan? One case I had was about whether a building developer, Bob, was an employee of his various corporations or self-employed (in the business of being a developer). While we could gather substantial legal authority to demonstrate a precedent for this concept, we couldn't prove that it applied to him. Bob had no evidence that he had ever received compensation, wages or profits from any of the entities. He had taken substantial deductions on Schedule C for the legal and interest costs to close down his various operations. However, none of the corporate or partnership returns for the income-making years were available. On audit, Bob was assessed about $300,000 (taxes and penalties) for 1990-1992. We thought we were ready for Appeals with all the research Copyright © Eva Rosenberg, 2003 AUDITS Page # 10 TaxMama.com Tax Court - Must You Take the Tax Court Exam to Appear in Tax Court? Yes and no. A while back, I had lunch with one of the name partners of a major tax law firm in Los Angeles. He stated his solid opinion that only trained attorneys should practice in Tax Court. He scoffed at the idea that EA's could simply take an exam and be free to represent cases. I asked him how often his firm took cases to Tax Court? He replied that while they file hundreds of Tax Court Petitions, they rarely ever end up in Court. Have you ever looked at the Tax Court decisions. Don't you wonder why they ever ended up in Tax Court at all? Couldn't you have settled half of them in AUDIT, much less Appeals? Getting into Tax Court: If you've missed your opportunity to go to Appeals after the 30-day letter, wait for the 90-day letter (Notice of Deficiency). Then use the forms provided in the Appendix to file a Tax Court petition. Strategy: Use as much of the 90 days to get your records as ready as possible. Send your petition in about 10 days before the end of the 90 days. Send it with $60.00 ?? to: The United States Tax Court 400 Second Street, N.W. Washington, DC 20217-0002 Copyright © Eva Rosenberg, 2003 AUDITS Page # 11 TaxMama.com TaxMama’s Typical Year’s Score: • Academy-Award Winning Designer – over $25,000 of employee business expenses – approved. Would have been ‘no change’ except auditor discovered AMT error and issued $2200 refund. • Consultant – HOH issue. He couldn’t be bothered to come up with costs, so IRS could verify that he paid more for support of son than wife did. (Both claimed the same son as a dependent – her 1040, with her new husband showed over $1 million in income.) – IRS accepted HOH and EIC, but not dependent. • Insurance Broker – Big Schedule C audit, and unreported income issue (he inherited Mother’s estate in six figures) with 20 bank accounts to do Proof of Cash on. - No Change. • Estate of Tony Award Winning Producer – Accepted as filed • Estate of Academy Award Winning Composer and Conductor (2000) – Accepted as filed • Several that really had me losing sleep – all ‘no change’. • That’s all I could remember right now. One Case’s Timetable: I filed on June 24, 1997. Got a Docket number on July 1, 1997. Heard from Appeals on September 16, 1997. (This is the fastest Tax Court response I ever had.) Handled it by mail. Learned from the client that he didn t have the documentation, so it took a bit longer than I had planned. Settled it on Christmas eve - by phone. His report is dated December 27, 1997. We got the first version of the Notice of Settlement from IRS Counsel, dated April 8th. Re-did it twice First time, the judge would not accept his signature using a black felt pen - it looked too much like a copy. Second time, they had misplaced the re-signed documents. On May 12, 1998, the judge agreed to accept the signed documents. And the change notice from Fresno arrived on June 22, 1998. And the refund, soon after. Total time – about one year. As you can see, filing a Tax Court Petition gets you right back to Appeals. We’ve filed several cases since then. They all go about the same way. Copyright © Eva Rosenberg, 2003 AUDITS Page # 12 TaxMama.com CASE STUDY - AUDIT 1 – The Real Estate Mogul The Sad Tale: No records. What now? The Los Angeles client had limited records. One bank had been bought out, the other's records were destroyed in the "Rodney King" riots. This taxpayer was referred to me in November 1995 by an EA. who specializes in collections issues. The client had an IRS levy for $177,270, resulting from an audit report on a 1989 tax return, dated 9/03/93 assessing additional taxes of nearly $73,000 and penalties of over $33,000. With interest, the balance due in September of 1993 was $143, 495.57. By November 1995, we were talking about over $177,000. The auditor had disallowed a minor amount of interest expense and over $42,000 worth of rental loss (the rental loss reported was only $35,000??). The auditor had picked up over $20,000 of unreported interest and dividend income (from 1099s) AND also imputed nearly $300,000 in additional rent receipts! The taxpayer was adamant that this was simply not true. He had not had any profits, in fact, he had some serious losses that year. Can't we get it re-opened? Along the way, we learned there had already been one audit reconsideration. The same preparer had handled both the audit and the reconsideration. He brought little or no documentation to either meeting. Got minor changes. Getting Started: I believed the client. I gave him a list of things to get for me: Letters to and from all his banks and/or their successors requesting bank statements Or... written explanations about why they could not provide them All available bank statements from ALL accounts Copyright © Eva Rosenberg, 2006 AUDITS Reconstructed rent rolls on all his rental properties (about 20 of them) Escrow closing statements on all mortgages and refinancing on his real estate. We had a conference with the revenue officer (RO). We brought her some of the escrow closing statements showing loans of about $200,000.(Not sure how much had been deposited into this bank account?) We had some of the bank statements showing that there were savings that might have been transferred. She agreed that it there was a good chance that the taxpayer's income might have been overstated by the auditor. The RO agreed that if we could provide her with some tangible evidence that these loans, savings and other funds had been deposited into the primary operating account (the auditor had based his determination on the deposits to a specific account), she would try to get us an audit reconsideration. [Lesson - some senior RO's will work towards the truth and have enough of an audit background to understand the problem.) Procedure: • Got FOIA data on the audit and audit workpapers, 1099's, 1098's etc. Wrote to Disclosure Office. • Traced specific deposits from two savings accounts to the operating account using worksheet. • Identified all NSF's redeposited • Had them recreate the rent rolls, compared them to the 1099's issued for subsidized housing. • Analyzed his rental report and cleared up or got explanations for the discrepancies substantial vacancies due to vandalism/gang activity - get photographs of those properties to put into the record. • Identified all bank loans/mortgages and traced the deposits to the operating account. • Used FOIA information to identify other accounts (the add'l interest income was correct) Page # 13 TaxMama.com It gave me had room to negotiate and agree to increase the rental income by about $100,000 The interest income reported on 1099's was for without adverse consequences to my client. earnings on 2 or 3 Certificates of Deposit. Based on the year end balance of the CD’s and using a reasonable interest rate for that year, Result Case Study #1 (not including the interest earnings indicated that the CD’s had been intact all year. None of them had been cashed accrued interest) : in. So the client’s contention that he got money from his CD’s made no sense. Original tax liability + Penalty: $ 105,464.18 (After first audit recon) Oh, I forgot to mention, the taxpayer was elderly corrected Tax Liability $ 2,981.00 and sometimes was slow to remember or be able to pinpoint things. Net Reduction: $ 102,483.18 When we got done with all the sources, we were still way off on the deposits. There was still well over =========== $175,000 unaccounted for. And since the IRS had previously collected/kept $3,000 of his subsequent refunds, he didn't even owe the $2,981.00! They sent him a refund. Listen! Important step: I conversed with the client and the banking officer about his borrowing habits We learned that he pulled mortgage loans on the property. Then he bought CD's. Then, he borrowed against the CD's! Aha! He had been doing this for so long that he took it for granted and NEVER explained this to anyone. He just kept saying that he had deposited the CD money into the account we had been analyzing - and we couldn't find any decrease in the CD balances based on the 1099-Int. We got this practice confirmed in writing from the banking officer. She was quite happy to comply. Take Nothing For Granted: One other important thing I did. (Don't assume that the original return has been correctly computed just because someone used a computer program to prepare it. Passive loss issues and carryovers are often wrong!) I reviewed the computations on the original tax return - and re-entered the whole return from scratch into my program. I learned that although the original 1989 return showed a rental loss of about $35,000, the total rental loss was over $85,000. (Coincidentally, this unused rental loss had not been carried over to the 1990 return. ) So it turned out that we had a lot of room to absorb additional rental income without a tax effect. Copyright © Eva Rosenberg, 2006 AUDITS Page # 14 TaxMama.com CASE STUDY - AUDIT 2 The Designer Here we have a case of a young man, in his twenties, who has been repeatedly audited. In 1993, his tax return called him a “cutter.” In fact, he was a designer of garments. He had recently graduated from Los Angeles Trade Technical College, where they have a special program for the garment industry. But, considering that it’s a City College, with limited funds, the programs are not strong enough for a careerbase. Graduates could expect to earn little more than minimum wage. Yet in 1993, his gross wages were over $50,000. How did this 20-some year old achieve this? By learning on his own. He went to the designer shops and bought garments having quality he admired. He studied the fabrics, the stitching, the cut, the bias, etc. He took the garments apart and used them to learn to create a sleeve or a back or a hem or a vest or a crotch. And he spent over $10,000 buying them. After a battle with Appeals and Tax Court, his attorney got IRS Counsel to grant her $3,492 worth of the garments. (She got some other expenses accepted and the negligence penalties waived.) But, with such a large part of the garments disallowed, it was not encouraging for the next year’s audit. (1993 was settled on June 22, 1998. The original audit report was dated 1/10/96.) In the next year’s audit, essentially, the issue has been the same one - Is he entitled to a business deduction for those garments? And while we’re at it, we’ll look at the entire miscellaneous deduction issue. I was the lucky one who got the 1994 audit. It was scheduled for July 10, 1997 and I was prepared. Before going into the audit, I asked the Hotline to run a printout of his 1994 W-2s & 1099's. We discovered that he had not reported the California refund, and some 1099 income and had over-estimated some wages. We were going to start this audit with $7,401 worth of additional income before I even walked in the door! By the time we got done, concessions and all - the IRS assessed him for only $5,940 additional income. And that was after I made some concessions. How did I do it? My Preparation Technique: Getting Started: I. Get copies of all bank statements, canceled checks and credit card statements II. Get all receipts for cash expenditures and large ticket items III. Get a schematic drawing of all the places he lived (for office in home) IV. Have him mark all the business only usage areas and the mixed use areas V. Get his calendar for the year. (If none reconstruct based on deposits/purchases) Procedure: The printouts with the additional income had already arrived, so I knew that I was looking for more expenses than were originally on the return. I entered all the checks and expenses into QuickBooks - let the computer sort them into date and category order. Once all the expenses were entered, I could print out detailed reports on each expense category. Issues to ponder: 1. No 2106 or detail - only a line entry on Schedule A (no detail) 2. Garments - $13,819 3. Auto (gross expenses $5,317) Net Finding over $13,000 worth of purchases, I had him to 2106 = $3,999 write a one-page report for each purchase. It was to 4. Schedule C - Office in Home contain: $4,401 (using 59.48% of residence) 5. Not really an employee - he worked freelance, from home, but was paid on W-2 for simplicity’s sake. Copyright © Eva Rosenberg, 2006 AUDITS Page # 15 TaxMama.com • • • • • Description - what was bought Cost Job or Client he used it for What he learned from it How he used it possible in order to avoid/reduce the selfemployment tax assessment. We put the whole package together, including a summary of his educational intent for these purchases, pictures, calendars, industry wages, detailed workpapers - and I went into the audit with great confidence. (Except for the $4,401 worth of office in home.) Upon asking him if the items he bought were things he could wear for personal use, Al just laughed. Then he explained that a) many of the clothes were women’s wear, and b) they were average sizes, while he was small and The Audit slender and built like a boy. (I had never met him. We handled all transactions by telephone.) First, the auditor took her time coming out. While we were walking in, she told me So I asked him to have someone take photographs that the only reason she hadn’t left yet was because of him wearing the some of the men’s garments. of this audit appointment. Otherwise They were so far too large on him, you could see she’d have gone home. She had a bad cold. Well, the pants legs trailing the ground so did I, so I thought we could commiserate. in front of him, or the waist big enough for two . And Nope - she was downright hostile. And she wasn’t the sleeves draped alluringly past interested in anything I had prepared. his fingertips. She wanted it all re-done. It’s been a long time (at least three years) since I’ve run into anyone so I also wanted pictures of how he cut the garments unprofessional in an IRS office audit unit. apart and the sequence he followed to create a new garment. Well, we did what we could for her. She took her While we were at it, I wanted to prove that he was earning far more than the industry average. So Al went to a couple of sources and got industry earnings statistics. We added his resume and career history. (Yes, I go overboard.) Next, using the blank 1994 month-a-glance calendar pages I gave him, Al recreated his activities and computed his total mileage, business mileage and personal mileage. We used actual expenses and no depreciation. (It was a very old car and had been more than fully depreciated in the past.) Recap: With all the information gathered, I redid the whole return. It was stamped AMENDED and I brought it along as my proposed revision. By the time I got through with my version, Al owed only $140.00. We both knew it was optimistic. sweet time writing the report. Knowing that she would disallow everything, I was prepared to go to Appeals so I could deal with a professional. Nevertheless, when I got her report sometime around October or November, I called to try to discuss it with her. She was no longer there - and no explanation was provided. The total assessment, including negligence & delinquency penalties and interest was $11,300.00. The case had been assigned to someone else who only wanted to close it. I explained the situation and wrote him a detailed letter outlining why these expenses were legitimate. By this time the Tax Court case had been settled. It wasn’t solid enough for me to use to convince him, but I felt that it was leverage. (I knew if I had to go to Tax Court, I would win.) So, he looked at the file again. And changed little or nothing. But, by the time his report was issued in late December, the assessment had risen to about $11,600.00, including interest. The one area we were a bit weak on was the employee vs independent contractor (re: W-2 income). I knew it would be difficult to prove that his office in home was justified. (Now that we had $6,080.00 worth of 1099 income, I wanted to offset that with as many expenses as Copyright © Eva Rosenberg, 2006 AUDITS Page # 16 TaxMama.com Options for a Disputed Audit: 1) We could ask for a supervisor’s review, but that didn’t seem encouraging. 2) We could request an Appeal. That would be costly to client AND we could be turned down. 3) We could wait for the 90-day letter and file a Tax Court petition - we’d get into Appeals for sure. 4) We could let it post, set up a minimal installment agreement and then bankrupt the whole thing. NEW: IRS has a Fast-Track Mediation Program. That might be a good alternative these days. It does work. Ask for it! Decision: I tried option #1, but the group was in between supervisors. Oh well... Al decided to wait it out. We’d file the Tax Court petition. So we waited. One fine day in March, I received a call from a woman who wanted to know if we were going to just let this post unagreed? Upon inquiry, she admitted to being the group’s interim supervisor. So, I took a shot - I explained the circumstances and told her that I was sure I would be able to get a fair hearing in Appeals. I was very confident in my case. But I would much prefer to settle it at her level if she’d look at it again. the delinquency penalty (taxpayer did file late). By the time we got done, the assessment was only $2,315.00 plus interest. Remember, the additional income we started with? If I had gotten a no-change on all the expenses, Al would have ended up owing about $2,100 from these omissions alone. Result Case Study #2 (not including accrued interest) : Original tax liability + Penalty: (After first audit report) Corrected Tax Liability (penalties removed!) Net Reduction: $ 9,176.00 $ 2,315.00 $ 7,401.00 =========== More important than the reduction of the audit assessment: We established, for the record, that his expenses for garments are legitimate. Next time he gets audited, that won’t be an issue - only verifying the costs of the purchases. This is extremely important for two reasons: first, since I firmly believed they were legitimate, I went ahead and took those deductions in the years when I prepared his returns. And 2) He had gotten an audit notice for 1996. That’s how the audit bounces! I admitted that the circumstances were unusual. (Actually, not really. I find that many people doing audit representation just aren’t as creative about interpreting a person’s career or business activities as I am. ) We talked for over an hour. She agreed to reassign the case (but wouldn’t tell me what happened to the first auditor) and have it reviewed in her group. Well, it went back to the same man who had brushed it off in December! Fuming quietly, I patiently explained my contentions to him and asked him to look the case over in that light. After three more conversations and some negotiations, we came to an agreement. He gave me ALL the garment expenses. I lost a little bit of the auto on Form 2106, and most of the office in home (the item was expecting to lose entirely!). He removed the negligence penalty and Copyright © Eva Rosenberg, 2006 AUDITS Page # 17 TaxMama.com BONUS – Questions asked of IRS in October 2002 (data is still current) b) Will the random audits go into more depth (Like the old TCMP, line-by-line audits) c) Are there any ways to get out of the audit, if your client is selected? Answer: Trends in Audit • Question 1: Many professionals are complaining that their clients are getting audit letters, listing specific criteria for the audit. But when the audit takes place, the examiner is going outside the scope of the contact letter – even before seeing the taxpayer’s records. a. Is this deliberate? (It’s happening much more often) b. Is it a new policy? c. What should the Tax Pro do, without antagonizing the examiner? Answer: a. The contact letter and accompanying information request should normally contain the initial scope of the examiner’s audit. Additional items may be examined based on initial interview responses or other facts that present themselves during the audit. b. This is not a new policy. Examiners have always had the authority to expand the audit with managerial approval based on the facts and circumstances of the case. c. The practitioner is responsible for full representation of the taxpayer, even if they do not prepare the taxpayer’s return. The practitioner should feel free to contact the group manager, If any disagreement should arise during the audit process. Any ambiguities regarding documents can be resolved by calling the group prior to the appointment. • • • a. How will you know if you were selected for an NRP audit – the contact letter sent to the Taxpayer will specify that this is an NRP examination. b. Depth of Audit – unlike TCMP audits, the NRP examiner’s judgment determines the depth, substantiation and verification needed for each classified issue. Please note, that there will only be approximately 2,000 line-by-line audits. c. Exclusions - Ways to get out of Audit – in limited instances a taxpayer will be excluded from an NRP examination: • • • • Question 2: In July IRS announced the return of the random audit. I know, they’re random, but what are the search criteria, and which returns are excluded from the population? a) How can you know if your audit is part of the random selection or for cause? Copyright © Eva Rosenberg, 2006 AUDITS NRPs will consist of approximately 50,000 randomly selected filed 1040 returns. Approximately 2,000 audits will be lineby-line as part of a calibration sample. Will represent most 1040 filers. Some NRP audits, after classification, will be accepted as filed. Some NRP audits will be conducted through correspondence, other by examination in person. • • • • • Affected by Terrorists Acts of 9/11/01. KITA – killed as a result of a terrorist action. Stationed in a combat zone. Disaster relief – excluded if taxpayer suffered from disaster and is unable to produce records as a result of the disaster. Illness. Incompetence. Death –if executor can not be located. Outside of U.S. – and unable to provide adequate documentation in sufficient time. Systemic Exclusions – taxpayers Page # 18 TaxMama.com audited under the 1988 TCMP and EITC Compliance Study Audits. Copyright © Eva Rosenberg, 2006 AUDITS Page # 19 TaxMama.com Question 3: Question 4: With the restructuring of the Service, how are the various audit functions affected? Can you tell us of changes in procedure we should know about for all audit categories? a) b) c) d) e) Office audits Field audits Large Cases Appeals Did I miss any? Answer: The major change is that organizationally, Tax Compliance Officers (Tax Auditors) and Revenue Agents now work in compliance rather than Exam. With regard to the Small Business/SelfEmployed (SB/SE) Operating Division, there have not been major changes in the audit procedures as a result of our restructuring that would impact the taxpayer or tax practitioner. With regard to Large Cases, now under Large and Mid-Size Business (LMSB) Operating Division, there has been increased focus on industry specialization, and LMSB territories are aligned around specific industries rather than a geographic location. This realignment resulted in some territory managers being located in other cities or states. The basic function of Appeals remains much the same, which is to rule on the tax law decisions made at the group level, not to perform an audit or examination. If Appeals determines that an examination or audit needs to be further developed, the case will be returned to the Examination group. Copyright © Eva Rosenberg, 2006 AUDITS Conflicted audits. Without going to Appeals or filing a Tax Court petition, when there is a complete conflict between examiner and practitioner (personality of either, auditor is not familiar with the industry, etc.), a) How can we get the case re-assigned to someone who understands the issues? b) At what point should we get the supervisor involved? c) What MUST the supervisor do if a complaint is registered? d) Who else should we contact in the chain of command Answer: It is the auditor’s responsibility to gain professional competence in an industry – we have several mechanisms (i.e., audit technique guides for specific industries, coaches, managers) to help the auditor gain this competence. a. To request an auditor be re-assigned, the tax professional should contact the group manager and explain the facts of this case. b. The supervisor should become involved as soon as an impasse is reached or the audit becomes unnecessarily delayed. c. The supervisor’s responsibility is to evaluate the facts and take actions if appropriate. In most territories the manager is encouraged to accompany the examiner on the next visit. d. The chain of command is: group manager, territory manager, area director. Page # 20 TaxMama.com