Saturday, August 25, 2018

Issuing 1099s As Retaliation

I continue to be surprised when people use IRS forms as retaliation.

The form of choice tends to be a 1099. The intent – of course – is to provoke an IRS audit.

There was an incessant legal battle several years back at a Cincinnati CPA firm that detonated. I happen to know the parties involved, and I was interested in the use of 1099s as weapons of war. The senior partner in the imbroglio however was not amused with my interest, seemed surprised that so much of the combat was available to one who could search legal records, and told me where to take a long walk. Quite the charmer.

I am reading a case involving doctors in Illinois. There was an anesthesiologist (Nicholas Angelopoulos - “Nick”) who went into business with an orthopedist (Hall).  Hall owned a company (Keystone) which employed Nick and two other doctors.

There was a cost-sharing arrangement among the doctors, which is common enough but which seemed to change without much explanation.

There was question whether Nick and the other two doctors were ever owners of Keystone (an S corporation). There were e-mails, draft shareholder agreements and meeting agendas, and the doctors were charged for equipment purchased by the practice.  Dr Hall, however, maintained that he was the only shareholder.


There was an LLC called WACHN, comprised of our four doctors plus another and which purchased medical condominiums. Each of the doctors kicked-in $110,000 and the LLC borrowed the rest, although the doctors had to personally guarantee the debt. Nick said that he never signed the operating agreement and that his signature was forged by use of a signature stamp.


Each of the four doctors was required to contribute $100,000 towards a “cash reserve” in Keystone’s bank account. Hall argued that it was necessary to avoid paying checking fees, and that – eventually – there would be more money to distribute to everyone. Nick thought that he was paying for his ownership in Keystone.
COMMENT: Folks, if your bank requires hundreds of thousands of dollars to avoid fees, you really need to consider another bank.
There were questions about how the numbers were calculated and allocated among the doctors in Keystone, but Hall assured the doctors that the practice manager (Hall’s brother in law, by the way) had assured him everything was in order.

I feel better.

In 2007 two of the doctors left.

Later in 2007, Nick told Hall that he too was leaving.

In March, 2008 Hall gave Nick a hand-written sheet stating that Nick owed $151,769. Hall, being a good sport, said that he would offset the $110,000 that Nick had put into WACHN, but Nick had to transfer his interest to Hall. Hall would then – back to that good sport thing – “forgive” the remaining $40,769. Hall did not address removing Nick as a guarantor for WACHN’s debt, though.

Nick told Hall where to go.

Keystone issued Nick a 1099 for $159,577.

Hall said that Nick still owed $100,000 toward the Keystone cash reserves and $28,000 towards the WACHN buy-in. There was also a $38,010 bonus that Hall was paying Nick on the way out, being a good sport and all. Nick responded that he had paid everything he was supposed to pay, and – by the way – what bonus?

Sure enough, in 2011 the IRS swooped in on Nick.

Mission accomplished.

Turns out the $38,010 bonus was right. That however left a bogus $121,567 on the 1099.

Let’s fast forward through the rest.

Nick sued Hall and Keystone. There were several lawsuits, but we are concerned here with the tax-related lawsuit.

The Court decided that Keystone and Hall filed a fraudulent 1099 because of “spite arising out of the larger disputes between the parties.” Code Section 7434 allows for damages in this circumstance, and the Court gets to decide.

The Court awarded Nick damages of $178,954.

Our case this time was Angelopoulos v Keystone Orthopedic Specialists.

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