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Our tax blog URL has changed!  Please take a second to update any reference to our tax blog.  Our tax blog can now be found at: http://www.irstaxtrouble.com/category/tax-blog/ and the RSS feed can be found at: http://www.irstaxtrouble.com/category/tax-blog/rss .
We are sorry for the inconvenience, but our website was long overdue for a makeover….

May 12th, 2007 | No Comments »

Offer in Compromise: The Coming Storm?

The Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) makes substantial changes to the IRS offer in compromise program. Most notably, TIPRA includes a provision in which taxpayer submitted offer in compromises are “deemed” accepted by the IRS.

The offer in compromise or OIC program for compromising tax debts for less than is actually owed. Taxpayers often refer to this program as the process of settling tax debts for pennies on the dollar.

The IRS offer in compromise process is notoriously slow, with the IRS appeals officer not even being assigned to a taxpayer submitted offer in compromise for upwards of six months.

Pursuant to TIPRA, subsection (f) was added to IRC 7122. This subsection indicates that the IRS is deemed to have “accepted” an offer in compromise if the offer in compromise is not withdrawn, returned or rejected within 24 months after the IRS received the offer in compromise. This new law is effective for offer in compromises submitted two months after May 2006. This means that we are one year away from the time when the first “deemed” accepted offer in compromises will start to show up.

Here are some general thoughts about this coming “deemed” offer in compromise scenario:

The offer in compromise process is a bargaining process. Taxpayers often submit an initial offer in compromise and then either amend or submit a new offer in compromise at the instruction of the IRS appeals office. It is not unusual for a taxpayer to submit two or three offer in compromises to the appeals office in this process.

The appeals office, in my experience, has and continues to only continue processing the one final offer in compromise. The others merely disappear. Apparently, the appeals office is not concerned about these other offer in compromises being “deemed” accepted – but it should be.

Also, the courts have said that the offer in compromise is a legal contract that is governed by state contract laws. This means that we will probably see some state law based litigation for these “deemed” offer in compromises. The issues could be very complex. Here are some examples:

If a first offer in compromise is ignored but then a second offer is accepted in the negotiating process, does the first offer then trump the second offer after the 24 month period? What if only the second offer is rejected, does that rejection apply to the first offer? What if there is confusion as to which offer was accepted, rejected, etc.?

What happens if the IRS and/or the taxpayer cannot establish the date on which the offer was received, rejected, withdrawn, or returned? Who has the burden to make that showing and, if it is the taxpayer, how does the taxpayer show that the IRS failed to issue a rejection letter or return the offer to the taxpayer? When is an offer in compromise withdrawn? Is it when the taxpayer calls the appeals office and says “I withdraw my offer in compromise,” when the taxpayer faxes or mails a letter to the IRS saying this, or when the IRS actually receives the fax or letter?

What state law applies if the taxpayer resides in State A at the time the tax obligation arose, moved to State B and negotiated the offer in compromise, moved to State C by the time the offer is “deemed” accepted and the IRS appeals officer is located in State D and the IRS center that received the offer is in State E (Tennessee)?

Also, there are significant federal tax law issues that remain to be resolved.

For example, how does a taxpayer tell the IRS collections function that the tax is not owed and that any future collection activities are illegal? What about getting a lien lifted because the tax debt is no longer enforceable because an offer in compromise was “deemed” accepted?

Taxpayers currently run into this situation where the IRS has let the collections statute expire (i.e., the CSED lapses). Taxpayers who are in this situation have no immediate way of telling the collection branch to stop its illegal collections activities and they have to write letter after letter and just hope that collection activity stops. In most cases the issue is beyond the grasp of IRS employees, who are merely able to read the CSED that shows up on their computer screen and assume that it is THE correct answer.

If collections doesn’t stop, then the taxpayer has to appeal the collection activity after the fact. Is this how “deemed” accepted offers will start showing up in the system? Is that the best way to handle them? Maybe the Advocates Office will start handling these cases?

The IRS has issued Notice 2006-68, which fails to address any of these “deemed” accepted issues. In fact, this Notice raises even more questions.

Even more disturbing, what if every taxpayer decided to start mailing in $1 lump sum offer in compromises every day for the next two years? Would the IRS be able to reject and keep track of each and every one of those offer in compromises?

Sure the taxpayer would have to worry about the new frivolous submission penalty, but that is just a civil penalty and it is only a very nominal amount and taxpayers could withdraw any submission that they were notified by the IRS that it was frivolous, thereby avoiding the penalty on the offer in compromises that the IRS caught.

Of course, I would never recommend something like this to any taxpayer. I merely point out the issue, as there very well could be a storm on the horizon with regard to “deemed” offer in compromises — a storm that could cost the US Treasury quite a bit of tax revenues.

May 9th, 2007 | 1 Comment »

“We the People Foundation” Loses Court Battle, Wins Publicity

“We the People Foundation” recently lost yet another tax-related court case, but, perhaps wining in court is not really what the group is after.

According to the court record, We the People have:

engaged since 1999 in “a nationwide effort to get the government to answer specific questions” regarding what plaintiffs view as the Government’s “violation of the taxing clauses of the Constitution” and “violation of the war powers, money and ‘privacy’ clauses of the Constitution.”

…

and they contend:

that the President, the Attorney General, the Secretary of the Treasury, the Commissioner of the Internal Revenue Service, and Congress neglected their responsibilities under the First Amendment to respond to plaintiffs’ petitions.

As a result, We the People brought suit claiming:

that government officials-by seeking to collect unpaid taxes-have retaliated against plaintiffs’ exercise of First Amendment rights.

We the People then asked:

the District Court to enjoin the Internal Revenue Service, the Department of Justice, and other federal agencies from retaliating against plaintiffs’ exercise of their constitutional rights (in other words, to prevent the Government from collecting taxes from them).

The district court held that the First Amendment does not provide plaintiffs with the right to receive a government response to or official consideration of their petitions. We the People then appealed this decision, arguing that:

they have a First Amendment right to receive a government response to or official consideration of their petitions. Second, plaintiffs argue that they have the right to withhold payment of their taxes until they receive adequate action on their petitions.

The court of appeals dismissed We the People’s claims. While the group lost the court case, it did get some excellent publicity for its “cause.”

May 8th, 2007 | No Comments »

Tax Overpayments in Bankruptcy

Taxpayers who owe taxes and who are thinking of filing bankruptcy should be aware of the Ninth Circuit’s recent Nichols v. United States case.

The taxpayers in the Nichols case overpaid their 2001 state and federal tax liability. The court opinion says that:

Sixteen days later, on February 5, 2002, the Debtors filed for bankruptcy. The [Bankruptcy] Trustee demanded that the Debtors turn the deposits over to the Trustee, but this was not done. In February of 2003, the Debtors signed their 2002 federal and state income tax returns and applied the deposits (resulting from the overpayment of their 2001 taxes) to their 2002 tax liabilities.

The Bankruptcy Court held that the overpayment was an asset of the bankruptcy estate; therefore, the taxpayers had to deliver an amount equal to the tax overpayment to the trustee.

The taxpayers appealed the decision, arguing that their inability to get the funds back from the IRS and the irrevocable nature of their election prevents the bankruptcy estate from asserting any right to the funds.

The court rejected the taxpayer’s argument, saying:

As a result of the election, the Debtors were left with a credit with the IRS that provided a dollar-for-dollar tax reduction in the following year. If the Nichols had not elected to prepay their taxes, those funds would have been refunded to them and would likely have been available for the bankruptcy estate when they voluntarily filed for bankruptcy just 16 days later. The fact that the election, once made, was irrevocable, does not change the analysis. In light of the expansive definition of property contained in the Bankruptcy Code and our broad interpretation of “property” …, we hold that this credit toward future taxes constituted estate property at the time the Debtors filed for bankruptcy.

Perhaps the result would have been different if the taxpayers had relinquished any rights in IRS and state tax deposits prior to filing for bankruptcy.

May 8th, 2007 | No Comments »

Part 2: One Tax Attorney’s Opinion on How the IRS Could Improve

In the prior blog post I provided a few suggestions for how the IRS could improve. This post was in response from a question posted to me by a fellow Denver tax attorney.

The prior post suggested that the Treasury Inspector General for Tax Administration take a more proactive approach to auditing the IRS, the IRS should provide more and better online tools for tax practitioners, the IRS should be more forthcoming with taxpayer records, and the Taxpayer Advocate Office should play a more active role were intra-agency failures leave taxpayers with no recourse.

Here are some additional suggestions (which are again in no particular order):

1. The collection due process hearing plays a vital role in our system of tax administration. The collection due process hearing is often the only way taxpayers can prevent the IRS from undertaking illegal collections activities. As important as it is, the collection due process (CDP) process is broken.The CDP process starts when a taxpayer submits a Form 12153 Collection Due Process Hearing Request. The Internal Revenue Code specifies that the IRS must suspend (most) of its tax collection efforts if the taxpayer submits a timely CDP hearing request.

   The main problem with the CDP hearing process is that the IRS does not check the Form 12153 in to its computer system for several weeks or, in some cases, several months. The average time to check in a Form 12153 is about three to four weeks, with an additional one to two weeks for the CDP hearing request to be delivered by the postal system.

   During this period of time the IRS collection function, not knowing that a CDP hearing request has been filed, often continues its collections efforts. These efforts are 100% illegal and in many cases the resulting damage cannot be undone after the fact (i.e., taxpayers cannot un-bake the cake).

   Yet, the IRS will not permit taxpayers to have a CDP hearing (and its associated benefits) where the taxpayer missed the 30-day deadline for filing the request (for example, where a taxpayer mails in a CDP hearing request one day late). I can’t help but wonder why the IRS takes such a strict approach in these cases when the IRS takes so long to even check taxpayer CDP hearing requests in to its computer system. This is yet another instance where the IRS policy is “do as I say, not as I do.”

   I would suggest that the IRS flag each and every taxpayer account on the very day that the IRS receives the CDP hearing request – regardless of whether the CDP hearing request was valid or timely (perhaps technology could provide a solution, such as allowing taxpayers to submit the forms electronically?). That way the IRS collection function would know that it should halt its collections efforts, pending the IRS determination of whether the CDP hearing request is appropriate.

   As an alternative, the IRS should adequately staff the CDP hearing request review teams so that it can, in a timely manner, determine whether the CDP hearing request is timely and valid and update its computer accordingly.

   I would go even further by setting up an administrative procedure whereby taxpayers can obtain relief and damages should the IRS undertake illegal collection activity after a CDP hearing request was filed (perhaps Congress should add this provision to Sections 6330 and 6320). This is going to become more and more important as the IRS ramps up its tax collections efforts.

   As a side note (in support of another suggestion), the IRS takes the position that the 30-day period for taxpayers to submit CDP hearing requests starts to run from the date that the first (lien or levy) notice is sent by the IRS to the taxpayer. So if the IRS sends out a subsequent notice that tells the taxpayer that they have 30-days to request a CDP hearing, the IRS will not honor the second letter – assuming that the letter does not benefit the IRS.

   Here is a common fact pattern: the IRS sends a first (lien or levy) notice letter to taxpayer in year one and the IRS sends a second notice letter to the taxpayer in year five. The taxpayer has a copy of the first notice letter, but he or she would not be able to successfully argue that the second letter (and any collection action based on the second letter) is invalid because the IRS had already sent a first notice letter – but why not, if the IRS refuse to honor their second letter when it is convenient for the IRS to do so?

   I would suggest that the IRS implement a policy whereby it stands by what it says in its letters in these cases, so that taxpayers are entitled to CDP hearings as set out in second or later letters from the IRS – regardless of whether the IRS letter is not convenient for the IRS (maybe Congress should add something to this effect to the Code as well).

   An even better approach would be for Congress to amend the law to specify that the IRS cannot undertake collection activity unless it sends the taxpayer a new notice letter (i.e., that a letter sent five or nine years prior will not do the trick), perhaps the law could provide that the letter has to go out 30-days prior to renewed collection activity….

2. The “equivalency hearing” provides taxpayers with the ability to get in front of the Appeals Office in cases where the taxpayer missed the 30-day period for filing a CDP hearing request.Taxpayers cannot appeal equivalency hearing results (as the IRS is always quick to point out) and IRS collection activity is not suspended by requesting such a hearing.

   The IRS does not have to grant taxpayers equivalency hearings. In fact, the New Form 12153 specifies that the IRS will ONLY grant taxpayers equivalency hearings if the hearing is requested within one year of the first collection action (This is a new policy that I have found no reference to in anything other than the new Form 12153. Does anyone know how or who was responsible for this? Assuming that there is no authority for this, does this mean that a clerk who designs a IRS form has the power to set IRS policy? Maybe I don’t want to know the answer to the last question.).

   IRS employees do not give taxpayers fair consideration in equivalency hearings. In fact, in many cases the IRS uses the equivalency hearing for the sole purpose of gathering additional ammunition to use against the taxpayer. This is unfortunate because all taxpayers who come forward to resolve their tax liabilities should be afforded due consideration.

   I would suggest that the IRS implement a policy granting taxpayers CDP hearings, even though it is not required by Congress to do so (technically, such a hearing would not be appealable to court, but the IRS could at least suspend collections activities). I know that this is asking the IRS go to beyond the mere minimum that is required (which it basically never does), but it is the right thing to do.

There are two more suggestions for improvement. Perhaps I will suggest a few more changes in future blog postings.

April 20th, 2007 | No Comments »

How Could the IRS Improve: One Tax Attorney’s Opinion

A fellow Denver tax attorney asked me to provide some specific changes that I would make if I found myself in the position of being able to make administrative changes to the IRS. Given two to three seconds to think about it, I was able to come up with around forty such changes.

The other tax attorney apparently wasn’t expecting or didn’t have time for a long and detailed answer (or perhaps he lost interest in the topic), so I thought that I would just list a few of the changes in a blog post (maybe the other tax attorney can read it at his convenience in the future).

Here are a few administrative changes that I think the Treasury Department and IRS should implement:

1. The Treasury Inspector General for Tax Administration (TIGTA) currently audits and investigates the IRS to “promote economy, efficiency and integrity in the administration of the internal revenue laws.” Published TIGTA audit reports can provide very useful information about various IRS functions that it examines. However, the TIGTA’s audit function is limited in that it almost always investigates the IRS by reviewing past transactions by examining IRS records.I would suggest that TIGTA develop and actively promote a “mystery shopper” program where TIGTA employees pose as taxpayers who attempt to resolve various IRS tax troubles by contacting and working with the IRS.

   This would allow the TIGTA to investigate and report on how the IRS really functions, it would help the IRS weed out “unprofessional” employees, and it might even “encourage” IRS employees to (1) provide high quality service and (2) adhere to IRS policies and our tax laws. As an added benefit, Taxpayers would be able to read TIGTA audit reports to get a real sense of how our IRS employees conduct themselves (be it good or bad news).

   In the alternative, I would suggest that the IRS Office of Professional Responsibility take on this role. Similarly, and as a separate suggestion, as I have said before, I think that the IRS Office of Professional Responsibility should promulgate and enforce Circular 230-like ethical rules for IRS employees. Government employees should be held to a high standard, not no standard.

2. The IRS has recently taken some small steps to provide tax practitioners with online access to IRS records. I would aggressively expand online tools for tax practitioners (and for taxpayers).For example, all taxpayers must verify their financial information as part of the IRS collection process prior to being able to work with the IRS collection and/or IRS appeals function(s). In most cases, this process consists of the taxpayer or tax practitioner calling the IRS collection and/or appeals function, placing the telephone call with the IRS employee on hold, and submitting a Form 433 (along with the supporting financial records) via facsimile to the IRS employee.

   Taxpayers or their representatives then have to wait on hold for the IRS collections and/or appeals function employees to receive the documents and manually enter the information into the computer. The IRS uses the word “verification” to refer to this process. This “verification” process can take more than two hours for some taxpayers (especially if the taxpayer is or owns a business).

   In many cases, taxpayers or their representatives will have to call back and start the “verification” process from scratch if any particular information or record is missing. IRS employees often do ask for unusual documentation (in many cases I think that they do this in bad faith just so they can move on to the next case…).

   This would not be as much of a problem if IRS employees could simply return phone calls (most ACS collections employees do not have this ability) and/or taxpayers could speak directly with the same IRS employee when the taxpayer calls the IRS back with the additional information or record (this is possible with most IRS appeals and IRS revenue officers, but that presumes that the case is in appeals or has been assigned to the IRS field collection function).

   I suggest that a better approach would be to allow tax practitioners (or taxpayers) enter this information into an IRS maintained/hosted website (or even a third party maintained/hosted website). The tax practitioner could even upload and/or fax the documents into the IRS, prior to the IRS contacting the tax practitioner (or taxpayer) to “verify” the information that was uploaded.

   This would save the taxpayer and the IRS a considerable amount of time, and it would allow the IRS to handle cases at their convenience (as opposed to when taxpayer and tax practitioner telephone calls come in).

   While I am thinking about it, in the alternative, I would suggest that the IRS Form 433 be redesigned to track EXACTLY the computer fields that the IRS employees have to enter. The current Form 433-A does not contain all of the information that IRS employees must enter into the computer to “verify” the taxpayer’s financial information (remember my comment about having to call back and start over if you do not have the necessary information….) and the information that it does include is not listed in the same order (if you want to hear a frustrated IRS employee, all you have to do is send them a Form 433-A with a lot of supporting taxpayer information).

   In the alternative to that, the IRS should get rid of the Form 433-A all together. The Form 433-A is used by many IRS functions – such as appeals, the field collection function, etc. There are three other versions of the Form 433 (the Form 433-B, D, and F). The Form 433-F is a much better and more recent form. I would suggest that the Form 433-F be expanded a bit and the other Form 433’s be eliminated.

   In the alternative to that, I would suggest that tax practitioners (or taxpayers) not have to “verify” the taxpayer’s financial information with the appeals and/or field collection function if the tax practitioner (or taxpayers) have already (and recently) “verified” their financial information with the automated collection system.

   And that only deals with the financial verification process. Don’t get me started about how the IRS could improve the IRS audit and other collection functions by using technology that is used by reasonable and prudent businesses that perform similar functions.

3. The IRS is pretty good about sending out taxpayer transcripts. However, the IRS is not very forthcoming with other taxpayer records. Taxpayers should not have to submit formal freedom of information requests to obtain their IRS files. If the taxpayer wants their information master file or if the taxpayer wants to see what is in the field function collection file, they should be able to see that information and to obtain copies upon request.Taxpayers often use the Form 4506-T to request their tax transcripts. The current IRS processing time for a Form 4506-T can range from one month to one year (or to infinity, in some cases). The RAVIS teams that handle these requests are no doubt flooded with transcript requests (Maybe taxpayers could submit their requests online, and, heaven forbid, the IRS could provide the transcripts to taxpayers online or via email). As a side note, the IRS processing time for transcripts requested by taxpayers using the automated telephone system takes about one to three weeks.

   I would suggest that the IRS add the ability for taxpayers to request additional documents via the slow Form 4506-T method or via the other existing methods (or again, electronically).

   The same issue often limits IRS employees. I continue to encounter IRS employees who are not able to locate files and who are not able to timely access records/information – and IRS employees who (I think, falsely) blame their inability to act on their inability to obtain records.

   Lets be honest, how effective can an IRS examiner or collector be if he or she cannot obtain a copy of the taxpayer’s tax return, W2’s, 1099’s, etc. or even IRS records which reflect the contents of these documents?

   My suggestion here should be self evident.

4. The Taxpayer Advocate Office can be very helpful in resolving unresolvable IRS cases. A major problem with the Advocate’s Office is that they will generally not get involved in matters when the matter is assigned to another function – such as the IRS appeals function. In those cases the Advocate will simply say “you need to follow up with Appeals Officer _________.”This ignores the reality that IRS Appeals Officer __________ may not be able to address the problem. Take the very common situation where the taxpayer is appealing the collection function, but the taxpayer is waiting on the examination function to “assess” a newly filed or amended tax return. IRS Appeals Officer ___________ may be assigned to the case, but he or she will not be able to process the case until the examination function “assesses” the tax.

   The current wait time for “assessing” a tax obligation seems to average about thirty days. But there are some instances where the exam function will never “assess” the tax – despite IRS Appeals Officer __________’s request that they do so and despite the taxpayer request that they do so. The Advocates Office will not touch these cases. So what are taxpayers to do in these situations? Unfortunately the answer is “nothing, but send letter after letter and make phone call after phone call to the IRS.”

   This same intra-function conflict comes up in a number of common situations. As such, I would suggest that the Advocates Office handle these types of cases.

Well, there are four suggestions. Perhaps I will write about a few more in the next blog post.

April 18th, 2007 | No Comments »

Disgruntled Ex-Spouses or Just Good Tax Procedure?

Divorce is not a very fun topic and divorce often causes people to act in ways that they would not otherwise act. I often encounter taxpayers who want to use the tax aspects of divorce to add insult to injury. Here is a case that very well could be (but may not be) an example of disgruntled ex-spouses who are using the tax system to spite their ex-spouse: Kovitch v. Commissioner.

The Kovitch’s were divorced. The IRS then issued a notice of deficiency to both spouses. Only Ms. Kovitch filed a petition in tax court. Ms. Kovitch only sought innocent spouse relief, she did not challenge the underlying tax. Mr. Kovitch did not file a petition with the tax court. Instead, Mr. Kovitch later opted to intervene in Ms. Kovitch’s tax court proceeding. Mr. Kovitch then filed for Chapter 13 bankruptcy after intervening in the tax court case.

Mr. Kovitch may have done this as a matter of course or Mr. Kovitch may have done this in an effort to preclude Ms. Kovitch from obtaining innocent spouse relief. The question before the tax court was whether the bankruptcy automatic stay would preclude the tax court from determining if wife Kovitch was entitled to innocent spouse relief.

Innocent spouse relief generally can relieve the current or former spouse of liability for a tax, penalties and interest if (1) there was a jointly filed tax return, (2) there is an understatement of tax by the non-innocent spouse, and (3) the innocent spouse can show that he or she did not know or have reason to know of the understatement.

Generally the bankruptcy automatic stay halts all IRS and tax court activities with regard to the taxpayer who files bankruptcy, pending the resolution of the bankruptcy proceeding.

Mr. Kovitch may have thought that he was pulling a fast one, by filing bankruptcy to prevent his ex-wife from obtaining innocent spouse relief; however, it was Ms. Kovitch that pulled the fast one.

The tax court concludes that the bankruptcy automatic stay does not preclude the tax court from determining whether wife Kovitch was entitled to innocent spouse relief. The reasoning is that husband Kovitch will still owe the tax even if wife Kovitch was granted innocent spouse relief, as such the tax court was not determining husband Kovitch’s tax liability and the bankruptcy rules did not halt this type of activity.

The result may have been difficult if Mr. Kovitch filed his own petition contesting the deficiency (and the trials were consolidated) or had Ms. Kovitch opted to contest the deficiency in her tax court petition. I am left wondering if Ms. Kovitch did her homework and knew that she should not contest the tax in addition to requesting innocent spouse relief or if it was just a strange (and lucky) coincidence….

April 4th, 2007 | No Comments »