Are there rules on overstating income on a tax return?
Friday, April 7, 2017
Tax Preparers And Making Things Up
The following question came up this year. It was from an experienced CPA, so I was surprised that he even asked:
You can anticipate the thought process. It is intuitive why one is not allowed to overstate deductions, as that has the effect of reducing taxes otherwise going to the government. But to overstate income? Why would the government care if you wanted to pay more tax?
Because folks, 999 times out of 1000 that is not the reason someone overstates income.
People do this to tap into the tax-credit-money-goodies in the tax Code. Most credits will reduce your tax, but when you get down to zero tax the credit ends. There are some exceptions. The main one, of course, is the earned income credit, although in recent years the government has added the American Opportunity (usually called the college) and the child tax credits.
The government will send you a check.
The earned income credit has the peculiar feature that the credit increases (as does your refund) as your income increases – up to a point, of course, and then the credit goes away.
I have reached a point in practice where I simply do not accept a client with an earned income credit. Chances are they could not afford my fee, granted, but I have a bigger issue: as a professional preparer, I take on additional penalty exposure by signing a return with this credit. I am “supposed” to perform extra due diligence, such a verifying that there is a child in your house. I have options other than parking across the street from your place overnight to verify your comings and goings, though: I can look at your kid’s report card (if it shows an address) or a doctor’s bill (again, if it shows an address).
Sure, pal. You know what I am not going to do? Prepare your return, that is what I am not going to do.
Unless I have known you for years, and I know that you have had a financial reversal. That is different. My due diligence has already been done and over several years.
There are unscrupulous preparers who do not observe such niceties. One could set up a temporary storefront, crank out a thousand make-believe, earned income/American Opportunity/child credit tax returns, charge a usurious fee (refund anticipation loans are sweet profit), skip town and enjoy the summer at a nice beach.
I knew one of these guys, although his schtick was made-up deductions more than false tax credits. You automatically had business mileage if you were his client. It did not matter if you owned a car.
Oh, did you know that is one way for you to get audited? If the IRS looks at your preparer, your odds of also being audited go up astronomically.
I am looking at a case from my hometown – Tampa, also known as the tax-fraud capital of the nation.
Our protagonist (the “Tax Doctor”) prepared a 2007 return for Shakeena Bryant. She brought a W-2 for less than $200 from Busch Gardens and information regarding her kids.
You are not going to get much of a credit with $200 worth of income.
But the Tax Doctor had a solution: report additional income from a business.
So she went out, got a business license for auto detailing and returned with it to his office the same day.
He then put a bit over $18,000 auto-detailing income on her return.
I suppose business licenses in Tampa also allow one to travel back in time.
Wouldn’t you know she got audited?
The IRS asked her about the auto detailing business.
She told the IRS she did not have an auto detailing business.
The IRS then wanted to talk to the Tax Doctor.
He explained that he “reasonably” relied upon her statements and exercised “due diligence.” He had that license, for example, and two pages of notes. He may also have had a soiled napkin from Dunkin Donuts, but I am not sure.
Out comes the preparer penalty - $2,500 of it.
Then the Tax Doctor – not knowing when to walk away – filed suit to get his $2,500 back.
This was a really bad idea, as it allowed the IRS to depose Ms. Bryant and the friend who accompanied her to the Tax Doctor’s office that day.
Both testified that the business income idea was his.
The Tax Doctor fired back: he observed the due diligence rules, meaning that he should not be penalized. Why, he had a business license and two pages of notes in his files!
He had a point.
The Court also made a point: Ms. Bryant never talked about an auto-detailing business until he brought up the need for more income to drive the tax credit. Perhaps a reasonable preparer would have asked for documentation …. bank statements, receipts, FaceBook postings, State Department leaks. Folks, it is acceptable for a preparer to use his/her skepticism-radar.
He was reckless.
The Court found intentional disregard of his preparer responsibilities and sustained the penalty.
Very little patience. The Tax Doctor got off easy.