An IRS Examination And A New IRS Hire

 

I have gotten dragged into a rabbit hole.

I often get involved with clients on a one-off basis: they are buying a company, selling their business, expanding into other states, looking into oddball tax credits and so forth. Several of our clients have been selling their businesses. In some cases, they have been offered crazy money by a roll-up; in others it is the call of retirement. I was looking at the sale of a liquor store last fall. As business sales go, it was not remarkable. The owner is 75 years old and has been working there since he was a teenager. It was time. The sale happened this year.

Fast forward to a few weeks ago. The CPA who works with the liquor store was taking time off, but I was in the office. The owner remembered me.

“Can I see you this afternoon,” he asked.

“Of course. Let me know what works for you.”

He brought an IRS notice of appointment with a field revenue officer. I reviewed the notice: there was a payroll issue as well as an issue with the annual deposit to retain a fiscal year.

I had an educated guess about the annual deposit. This filing is required when a passthrough (think partnership or S corporation) has a year-end other than December. We do not see many of these, as passthroughs have mostly moved to calendar year-ends since the mid-eighties. The deposit is a paper-file, and clients have become so used to electronic filing they sometimes forget that some returns must still be filed via snail mail.

The payroll tax issue was more subtle. For some reason, the IRS had not posted a deposit for quarter 4, 2022. This set a penalty cascade into motion, as the IRS will unilaterally reorder subsequent tax deposits. Let this reordering go on for a couple of quarters or more and getting the matter corrected can border on a herculean task.

I spoke with the revenue officer. She sounded very much like a new hire. Her manager was on the call with her. Yep, new hire.

Let’s start the routine:

“Your client owes a [fill in the blank] dollars. Can they pay that today?”

“I disagree they owe that money. I suspect it is much less, if they owe at all.”

“I see. Why do you say that?”

I gave my spiel.

“I see. Once again, do you want to make payment arrangements?”

I have been through this many times, but it still tests my patience.

“No, I will recap the liabilities and deposits for the two quarters under discussion to assist your review. Once you credit the suspended payroll deposit to Q4, you will see the numbers fall into place.”

“What about the 8752 (the deposit for the non-calendar year-end)?

“I have record that it was prepared and provided to the taxpayer. Was it not filed?”

“I am not seeing one filed.”

“These forms are daft, as they are filed in May following the fiscal year in question. Let’s be precise which fiscal year is at issue, and I will send you a copy. Do you want it signed?”

The manager chimes in: that is incorrect. Those forms are due in December.”

Sigh.

New hire, poorly trained manager. Got it.

I ask for time to reply. I assemble documents, draft a walkthrough narration, and fax it to the field revenue officer. I figure we have one more call. Maybe the client owes a couple of bucks because … of course, but we should be close.

Then I received the following:

 

I am not amused.

The IRS has misstepped. They escalated what did not need to escalate, costing me additional time and the client additional professional fees. Here is something not included when discussing additional IRS funding for new hires: who is going to train the new hires? The brain drain at the IRS over the last decade and a half has been brutal. It is debatable whether there remains a deep enough lineup to properly train new hires in the numbers and time frame being presented. What is realistic – half as many? Twice as long? Bring people out of retirement to help with the training?

Mind you, I am pulling for the IRS. The better they do their job the easier my job becomes. That said, there are realities. CPA firms cannot find qualified hires in adequate numbers, and the situation does not change by substituting one set of letters (fill-in whatever word-salad firm name you want) for another (IRS). Money is an issue, of course, but money is not the only issue. There are enormous societal changes at work.

What is our next procedural move?

I requested a CDP hearing.

The Collections Due Process hearing is a breather as the IRS revs its Collections engines. It allows one to present alternatives to default Collections, such as:

·      An offer in compromise

·      An installment agreement

I have no intention of presenting Collections alternatives. If we owe a few dollars, I will ask the client to write a check to the IRS. No, what I want is the right to dispute the amount of tax liability.

A liability still under examination by a field revenue officer. I have agreed to nothing. I have not even had a follow-up phone call. A word to the new hires: it is considered best practice – and courteous - to not surprise the tax practitioner. A little social skill goes a long way.

The Notice of Intent to Levy was premature.

Someone was not properly trained.

Or supervised.

I question whether this would have happened 15 or more years ago.

But then again, 15 years from now the new hires will be the institutional memory at the IRS.

It is the years in between that are problematic.

What Is Your Tax Basis When There Are No Records?

 

Since I started practice, there have been repetitive proposals to change the step-up basis rules upon death. With some exceptions, the general rule is that assets at one’s death take fair market value as their tax basis.

EXAMPLE: A decedent purchased his principal residence in 1975 for $56,000. The house is in Brentwood, Tennessee, and upon death the property is worth $1 million. The property’s tax basis is reset from $56 thousand to $1 million. Sell it for $1 million shortly after death and there is no gain or loss.

The common exception are retirement accounts: 401(k)s, 403(b)s, traditional IRAs and so on. These assets do not reset to fair market value (the tax nerds call this the “mark”), as the Code wants distributions from these accounts to be taxed as ordinary income.

There is a downside to the mark, of course. If the asset has gone down in value, then that lower value becomes the new basis.

The proposals I to which I refer would require carryover basis for the asset, meaning that tax basis will be acquisition cost plus improvements with no reference to market value at death.

I get it, I really do.

Why should income tax basis for an asset be marked just because someone died?

To continue that line of argument, why should there be a mark if one did not even have to file an estate tax return, much less pay estate taxes? The lifetime exemption in 2024 is $13.61 million. That is rarified air. So few estate tax returns are being filed that the IRS has been reassigning estate examiners to other functions.

The flip side asks how many times an asset is going to be taxed. To require carryover basis is to extend taxation on someone even beyond their death, which – I admit – seems macabre.

I prefer the mark over carryover basis for a different reason:

I am a practitioner and have been for decades. The argument for carryover basis may sound reasonable in the insulated confines of academe or expense account restaurants in corridors of power, but one should make a reality check with practitioners who have to work with these rules.

I expect that many if not most practitioners have encountered assets that are nearly impossible to cost or – if possible – possible only with extraordinary effort.

We had an example during busy season. A client and his siblings sold undeveloped land inherited from their grandfather and great aunt. The property had been owned separately, then as tenants in common, had survived two deaths and eventually found its way into a trust. The trust had terminated, and the siblings had formed a partnership in its place. One of the siblings was convinced that the basis for the land was incorrect. It was possible, as we had assumed the tax work from another accountant. We had not previously questioned the basis for the land. No one had.   

It took weeks and multiple people investigating and researching the provenance of the land. Even so, we were fortunate to research only back to the dates of the two deaths, as those would be the trigger dates for any potential mark.   

This is but one asset. One taxpayer. One practitioner. Who knows how many times the story repeats?

There is also a dark side to establishing tax basis that should be said out loud.

Let’s look at the Youngquist case.

Dean Youngquist (DY) did not file a tax return for 1996. He in fact had not filed a tax return since the late 1980s, which is a story for another day.

DY started day trading in 1996. He opened an account with Protrade. He closed that account in December 1996 and opened an account with Datek, another brokerage.

Do you remember the 1099-Bs that brokerages send you and the IRS? The Protrade and Datek 1099-Bs totaled $2,052,688 in sales proceeds.

COMMENT: I expect to see net trading losses, as net gains from day trading are uncommon.

The IRS send DY a tax assessment of $791,200, with another $796,726 in penalties and interest.

DY had been space-tripping, I guess. He did not file a tax return. He did not remember receiving notice(s) from the IRS. He had no idea that liens were filed on his property. He was shocked to learn that the IRS wanted to sell stuff to collect his taxes.

COMMENT: DY needs to tighten his game.

DY asked how the IRS got to the $791 grand in tax, much less the penalties and interest.

Easy, said the IRS. Since you did not provide records, we used zero (-0-) as your basis in the trades.

Folks, we all know there is zero chance that DY had no cost in his trades. The world does not work that way. How then did the IRS assert its position with a straight face?

Here is the Court:

The fact that basis may be difficult to establish does not relieve a taxpayer from his burden.”

DY did not even file a tax return, so it appears he put zero effort into discharging his burden.

If the taxpayer fails to satisfy the burden, the basis is deemed to be zero.”

Harsh, but that is the Coloman decision and extant tax law.

What did DY do next?

Believe it or not, he found – way, way after the fact – records for his Datek account.

The United States will abate the assessments by the portion of the assessments, penalties, and interest that were based upon the $601,612.50 in stock sales through Datek in 1996.”

Datek, BTW, was not his major trading account. Protrade was.

… there is no evidence documenting Youngquist’s actual stock transactions in the Protrade account. There are no statements from Protrade. There are no letters or emails from Protrade. Youngquist did not keep any notes about the stocks he purchased and sold, and he is unable to testify from memory about the specific stocks he bought and sold.”

DY had waited too long. Protrade was out of business.

DY had an idea:

·      He started his Protrade account with $73,000.

·      He closed his account with $67,333.

·      There was an aggregate loss of $5,677.

Seems reasonable.

Here is the Court:

First, I can find no authority to support his aggregate theory of proving basis in stock.”

This is technically correct, as each sale is its own event. Still, I would urge the Court to pull back the camera and use common sense. In legal-speak, we would call this an equity argument.

His only evidence is his own uncorroborated testimony. Youngquist’s bank account records do not reveal the November 5, 1996 withdrawal went to Protrade. There is no wire transfer record. There is no cancelled check evidencing payment to Protrade. Youngquist relies solely on his own testimony to suggest these facts.”

Personally, I believe that DY lost money overall in his Protrade account, but that is not the issue. The issue is that he needed to retain (some) records and file a return, responsibilities which he ignored. He then wanted the Court to do his work for him, and the Court was having none of that.

A taxpayer’s self-serving declaration is generally not a sufficient substitute for records.”

DY won on Datek but lost on Protrade. This was going to be expensive.

Back to the carryover basis proposal.

DY could not find records in 2013 going back to 1996. Granted, that is a long time, but that is nothing compared to requiring records from other people, possibly from other states and likely from decades earlier.  There should be a concession in tax administration that ordinary people pursuing ordinary goals are not going to maintain (and retain) records to the standards of the National Archive, at least not in overwhelming numbers. Combine that with a possible Youngquist body slam to zero, and the carryover basis proposal strikes as economically inefficient, financially brutish, possibly condescending, and an administrative nightmare. Why are we discussing a tax policy that cannot survive exposure to the real world?

Our case this time was U.S. v Youngquist, 3:11-cv-06113-PK, District Oregon.

Losing A Refund: Revisiting The Statute(s) of Limitations

 

I am thinking she got hosed.

I am looking at a district court decision. It involves Michelle Moy, and it remarkably bridges 2011 to the 2020 COVID year.

Let’s talk about it.

In May 2011 Moy was assessed $32,507 by the IRS because she failed to file a 2008 tax return. In this situation, the IRS may prepare a return for you (called a substitute for return) and proceed accordingly with collections activity.

COMMENT: It is rare that a substitute for return (SFR) will be to your advantage. The IRS will throw in all the positive numbers it can find, but it will not include negative numbers with the same zeal. It is almost always to your advantage to file a return rather than accept an SFR.

QUESTION: Here is an obscure practice question: when you file the 2008 return with an SFR already on file, is it considered an amended return? The answer is below.

Turns out that Moy had $20,447 in 2008 U.K. foreign taxes available for credit. Assuming that the foreign tax credit was available dollar-for-dollar, Moy owed $12 grand rather than the $32 grand the IRS wanted.

Seems easy enough. File the return. Pay the $12 grand plus interest and penalties and move on.

It appears Moy instead paid the $32 grand. She did not realize and overpaid.

I say that because she filed a claim for refund in April 2018. I presume the claim was for the $20 grand of foreign taxes.

In August 2018, the IRS bounced the claim as being outside the statute of limitations.

COMMENT: The statute for a refund claim is generally the latter of (a) three years from assessment date or (b) two years from the date of payment. Assessment here was in 2011, so the first period would have expired in 2014. Assuming she paid the $32 grand before April 2016, the second period would have also expired before she filed in April 2018.

Moy filed a protest with Appeals.

Appeals stalled, responding three times (in December 2019, February 2020, and March 2020), each time asking for another 60 days.

I think we all remember what happened in March 2020, so I withhold blame.

The IRS dismissed her appeal in January 2021, arguing that the statute of limitations for refund had expired.

In June 2023, Moy filed a lawsuit against the United States.

Confused yet?

Let’s sort this out.

What is happening is that there are two statutes of limitations coming into play here. In fact, it would be more accurate to say two and a half.

The first is the standard 3 years/2 years. This is the statute for filing a refund claim. In this context, Moy filing a 2008 return showing that foreign tax credit counts as a refund claim.

NOTE: In answer to our question above, Moy would file an original – not a an amended – 2008 return. The SFR is not considered a return for this purpose, so the first filing by the taxpayer would be considered the original filing.

Mind you, her 2008 filing was likely outside the 3/2 combo, so how did Moy argue that the statute for refund was still open?

Look at this pearl:

        § 6511 Limitations on credit or refund.

(d)  Special rules applicable to income taxes.

(3)  Special rules relating to foreign tax credit.

(A)  Special period of limitation with respect to foreign taxes paid or accrued. If the claim for credit or refund relates to an overpayment attributable to any taxes paid or accrued to any foreign country or to any possession of the United States for which credit is allowed against the tax imposed by subtitle A in accordance with the provisions of section 901 or the provisions of any treaty to which the United States is a party, in lieu of the 3-year period of limitation prescribed in subsection (a) , the period shall be 10 years from the date prescribed by law for filing the return for the year in which such taxes were actually paid or accrued.

 

Yep, the foreign tax credit gets its own 10 year statute of limitations. Let’s see, the 2008 return was due April 2009. Add ten years and we get April 2019. She filed a refund claim in April 2018. She appears to be within the statute period for filing a refund claim.

So why did the Court say she was out of statute?

There is one more statute of limitations to consider.

        § 6532 Periods of limitation on suits.

(a)  Suits by taxpayers for refund.

(1)  General rule.

No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.

 What does this mishmash mean?

This statute applies to the IRS and authorizes the IRS to pay a refund up to two years after disallowing a claim for refund.

When did the IRS disallow Moy’s refund claim?

In August 2018.

Add two years and you have August 2020.

When did Moy file suit?

In 2023.

The IRS is prohibited from issuing a refund.

To recap, the familiar 3/2 statute of limitations applies to a taxpayer filing a refund claim.

The second statute (2 years, no more, no less) applies to the IRS paying the refund claim.

Moy cleared the first.

She did not clear the second.    

Are there administrative options?

None that excites me.

Could she have done something differently?

While a long shot, she could have asked to extend the refund statute. The difficulty is that both sides must sign, and it can be difficult to find someone at the IRS with authority to sign.

Realistically, her best option was filing a refund suit with the district court or U.S. Court of Claims. I would much rather go to Tax Court – as that court has procedures for pro se taxpayers – but the Tax Court does not accept refund suits. You must owe the IRS to get your ticket punched on the Tax Court Express.

Moy was hosed. She went into COVID with a two year window to get her refund. Little could she anticipate IRS employees being sent home - meaning no access to correspondence mailed to IRS addresses, unprocessed returns and mail accumulating in trailers, the later shredding of such returns and mail, and the agency becoming near unreachable for extended periods “due to a high volume of calls.”

And those IRS letters asking for “another 60 days”?

You would have to get a court to allow equitable tolling. Notice that the IRS did not do so on its own power. They were quick to ask for another six months while processing Moy’s appeal, but they did not toll a single minute on the Section 6532 limitation on her refund.

Looking back, IRS Appeals should have included Form 907 with any refund claims assigned during the COVID era. Unfortunately, the IRS still has no policy or practice of doing this, so any responsibility for this tax obscurity falls fully on the taxpayer (and his/her tax representative). 

Our case this time was Moy v United States, Case No 23-cv-03151-PP (Northern District of California 2024).

Paying Personal Expenses Through A Business

I am looking at a tax case.

It reminds me of something.

There is a too-common belief that paying an expense through a business can somehow transmute an otherwise personal expenditure into a tax deduction.

Here are common ways I have heard the question:

(1)  My spouse is going to replace her car. Should we buy it through the business?

(2)  I run my business from my home. That makes my home a “headquarters,” right? Can’t I deduct all the expenses related to my business headquarters?

(3)  I am going to borrow money to [go on vacation/pay college tuition/buy a boat I’ve been wanting]. Should I have the business borrow the money to make it deductible?

Do not misunderstand, many times there is a more tax-efficient way to accomplish something. There may still be some tax though, and the goal is to minimize the tax. Making it disappear may not be an option, at least for a responsible practitioner.

Let’s look at the above questions.

(1) Realistically, if there is no business use of the vehicle, you are not allowed to deduct any of the ownership or operating expenses of a vehicle. Despite that, does it happen routinely? Of course. Practitioners do what they can, but it is like fighting the tide.

(2)  I consider this quackery, but it is a true story. No, working from home does not make your house fully deductible. You might get a home office deduction out of it, but that is a fraction of some – and not all – expenses. No, your house is not Proctor and Gamble. Get over it.

(3) This one might have traction, but in general the answer is no. Even if the interest is deductible, how is the company getting you the money? Is it going to lend it to you? If so, you will have to pay interest to the company, although you may be able to arbitrage the rate. Will the company bonus you the money? If so, I see FICA and income taxes in your future. Explain to me the win condition here.

Let’s look at Justin Maderia (JM).

JM lived in Florida and owned 50% of Lindy Inc (Lindy).

Lindy must be a C corporation, which is the type that pays its own taxes. I say this because the Court refers to earnings and profits (E&P), which is a C corporation concept. The purpose of E&P is to track a corporation’s ability to pay dividends. When it pays dividends, a corporation is sharing its accumulated profits with its shareholders. The corporation has already paid taxes on these profits (remember: a C corporation pays taxes). When it pays dividends, you are personally taxed on that previously taxed profit. This is the reason for “qualified dividends” in the tax Code: to cut you a break on that second round of taxation.

The IRS was looking at JM’s 2018 personal return. It was also looking at Lindy’s 2018 business return.

COMMENT: It is not unusual to include a closely held company with the audit of an individual tax return.

The IRS wanted to increase JM’s 2018 income by $192 grand of “stuff” that Lindy paid on his behalf.

COMMENT:  Sounds to me like Lindy was paying for EVERYTHING.

Let’s talk procedure here.

The IRS identified personal transactions in Lindy. Lindy was the type of corporation that could pay dividends, and the IRS argument was – to the extent Lindy paid for personal stuff – that such payments represented constructive dividends to JM.

Fair. Consider that the serve.

JM gets to return.

He would argue that the payments were not personal because … well, who knows why.

JM did nothing.

Huh?

JM did nothing because he had a previous audit, and the IRS never pursued the issue of Lindy payments. JM believed he was immunized.

Mind you, there is a kernel of truth here, but JM has googled the concept beyond all recognition.

IF the IRS looks at an issue AND makes no change to your tax return for that issue, you can challenge a later proposed assessment based on that same issue. You might not win, mind you, but you have grounds for the challenge.

Is this what happened to JM?

Let’s look at it.

The IRS examined his prior year return.

Score one for JM.

The IRS never looked at Lindy.

We are done.

There is no immunity. JM cannot challenge a proposed 2018 assessment on an issue the IRS did not examine in a prior year.

JM had to return on different grounds. He did not. He - procedurally speaking - automatically lost.

JM had $192 grand of additional income.

The IRS next wanted the accuracy-related penalty.

Well, of course they did. If they were any more predictable, we could just put it on a calendar.

The Court said “no” to the penalty.

Why?

Because the IRS had looked at JM’s previous return. The IRS either did not bring up or dismissed the Lindy issue, so JM kept reporting the same way. While this would not protect him from a challenge of additional income, it did provide a “reasonable basis” defense against penalties.

Our case this time was Maderia v Commissioner, T.C. Summary 2024-5.