George Thompson (GT) lives in
New Jersey. He is the president of Compliance Innovations, Inc, which is owned
by a trust. He and his wife are the trustees. He is a lifelong member of the
Church of Jesus Christ of Latter-Day Saints (Church). He is a shift coordinator
and a stake scouting coordinator with the Church. The Church does not pay him, however.
He is married and has five children, two of whom are or were in college.
GT got himself into tax
problems. He owed payroll trust fund penalties of over $150,000 for payroll
periods in 2004, 2005 and 2007.
NOTE: We have spoken about these penalties before and
referred to them as the “big boy” penalties. These penalties are for not
submitting payroll tax withholdings and are some of the harshest penalties in
the IRS arsenal.
He also
owed regular “income tax” penalties for taxable years 1992, 1995, 1996, 1999,
and 2000. These added up to over $730,000.
$150,000
plus $730,000 equals a lot of money. The IRS wanted it. I think you can see the
problem.
The IRS
begins its offense by sending a Final Notice of Intent to Levy, following up
with an off-hand Notice of Federal Tax Lien Filing. GT called time-out by filing a request for a Collection
Due Process Hearing.
Let’s
take a moment and explain what happened here. More than 25 years ago, Congress
passed what has become known as the “Taxpayer Bill of Rights.” The intent was
to introduce some formality to IRS Collections efforts, which too often
operated as a Government Agency Gone Wild. GT applied the brake by requesting a
CDP hearing. IRS Appeals would now step-in and look at how GT and Collections
were behaving.
Before
Appeals stepped-in, GT offered a “partial payment” installment agreement. You
can guess that “partial payment” means that he is not paying off his tax in
full. Collections requested a financial statement – a Form 433-A – providing
GT’s income, expenses, assets and liabilities. The IRS wanted to see how much
GT could pay.
GT appeared
to be doing well, listing monthly income of over $27 thousand with expenses of
$24 thousand. He therefore offered to pay the IRS $3 thousand per month.
Seems
fair, right?
The IRS
looked at the same numbers and determined that he could pay over $8 thousand
per month.
What?
How could that be?
Trust
me, it is easy – and common. The numbers are just magnified in this case.
When
you get into this level of financial detail, the IRS classifies your expenses
into two categories:
·
Necessary
expenses
·
Conditional
expenses
The IRS will generally disallow
conditional expenses in a partial pay offer. GT had included approximately $5
thousand per month for Church tithing and college expenses. The IRS considered
both to be conditional – and disallowed them. Bam! He could pay $5 thousand
more per month.
Off go GT and the IRS to Tax
Court.
GT leads off with Malachi
3:8-10:
Will a mere mortal rob God? Yet you rob me.
But you ask, ‘How are we robbing you?’
In tithes and offering. You are under a curse – your whole nation – because you are robbing me. Bring the whole tithe into the storehouse, that there may be food in my house.”
The IRS
fires back with Matthew 22:21:
Render unto Caesar the things that are Caesar’s, and to God the things that are God’s.”
The Court steps between the two with:
While we may be incapable
of determining what belongs to God, we believe that we can, and must, decide
what is Caesar’s.”
GT presented three different
arguments to the Court:
(1) Given his position in the Church, tithing is required
by the Internal Revenue Manual to be treated as a necessary expense.
(2) Classifying his tithing as a conditional expense is a
violation of his rights under the Free Exercise Clause of the First Amendment.
(3) Classifying his tithing as a conditional expense is a
violation of the Religious Freedom Restoration Act.
The
Court dives into the first argument. It observes that the necessary expense
test has two prongs: the expense must be for
·
The taxpayer’s
health and welfare, or
·
The taxpayer’s
production of income
For example, the Internal Revenue
Manual allows a minister’s tithing as an allowable expense – if it is a
condition of employment.
GT trots out a letter from his
bishop that GT would have to resign his positions within the Church if he did
not tithe. GT has a problem though, as the Church did not pay him. This would
appear to present an obstacle. GT, undeterred, argues that the term
“employment” in the Internal Revenue Manual is not limited to compensated
employment and can include uncompensated employment.
Huh?
The Court observes that it
cannot find any case specifically deciding whether the term “employment” as
used in the Internal Revenue Manual is limited to compensated employment or can
include uncompensated employment.
What? Can it be ...?
The Court reasons that there is
a difference between a minister who is required to tithe in order to keep his/her
job (and paycheck) and GT’s situation. It decides that the term “employment”
must mean compensated employment.
GT argues that being active in
the Church contributes to his health and welfare. The Court reflects on the
interaction of religious observance and taxation, but does not agree that
holding GT to his tax obligations compromises his health and welfare – or, at
least, not any more than it compromises the rest of us.
GT next argues that not being
able to tithe results in his being booted from Church office, thereby
infringing his free exercise of religion.
The Court observes:
...petitioner overlooks the fact that it is his Church who is requiring him to resign his positions if he does not tithe. The settlement officer did not require petitioner to resign ...”
And here is my favorite quote
from the Court:
“Petitioner’s claimed exemptions stems from the contention that an incrementally larger tax burden interferes with their religious activities. This argument knows no limitation.”
OBSERVATION: We know about Congress, taxes and “no limitation,” don’t we?
Let’s fast forward: GT loses his
case. The Court is simply not going to let him treat his tithing and college
expenses as a necessary expense when determining his partial payment
installment offer.
My thoughts? There are rules and guidelines when
negotiating payment plans with the IRS. The more you want them to budge, the
stricter the rules. The IRS did not budge an inch.
I believe GT lost his case before
he even went to Court. Why? Consider this quote from the Court:
Petitioner has a long history of not paying his taxes. As of the date of trial petitioner still had not paid his income tax liabilities for the taxable years 1992, 1995, 1996, 1999, and 2000.”
The Court was looking at GT as a
deadbeat.
Here is the Court again:
Additionally, respondent has assessed trust fund recovery penalties under section 6672 against petitioner for seven different tax periods.”
Looking at? Nah. The Court had concluded
that GT was a deadbeat.
