Can Your Tax Preparer Expose You To Fraud?

We have talked about the statute of limitations many times.

In general, the IRS has three years to challenge your tax return and assess additional taxes. Reverse the direction and you likewise have three years to request refund of a tax overpayment.

The intent is clear: at some point the back and forth must stop.

Mind you, if the IRS assesses additional tax within that period, then the three-year statute for assessment transmutes to a ten-year statute for collection.

There are exceptions to the three years, of course. Here are some exceptions from Section 6501(c):

Let’s do a little tax practice today. Reread (c)(1) above. I have a question for you:

          Must the intent to evade tax be the taxpayer’s?

On first impression, the answer appears to be “yes.” Who - other than the taxpayer - stands to benefit from filing a false or fraudulent return?

Let’s talk about Stephanie Murrin.

For years 1993 to 1999 the Murrins used a tax preparer for their joint individual income tax return, as well as two partnerships in which Ms. Murrin was a general partner. Unbeknownst to the Murrins, the preparer placed false or fraudulent information on those returns with the intent to evade tax.

Why? We are not told.

The Murrins were not aware of the preparer’s actions, nor did they intend to evade tax.

The IRS (somehow) caught up to this and in 2019 (twenty years later) issued a statutory of deficiency for the years at issue. The IRS argued that the years were still open under the statute of limitations pursuant to Section 6501(c).

Mr. Murrin died before the case went to Tax Court.

Mrs. Murrin ran into a formidable obstacle: stare decisis.

The Tax Court had previously decided (in Allen) that Section 6501(c) did not look solely at the taxpayer to find intent.

Mrs. Murrin argued that Allen was wrongly decided. She based her argument on a Federal Circuit Court decision (BASR) disagreeing with the Tax Court decision in Allen.

She had an argument.

The Tax Court noted that each judge in BASR wrote separately, meaning that it was unclear which interpretation of Section 6501(c) prevailed. When everyone has an opinion, there is no standard for precedence.

With that backdrop, the Tax Court stated:

The Federal Circuit’s position on the precise point before us is not clear. We further note that ‘there is no jurisdiction for appeal of any decision of the Tax Court to the [Federal Circuit]’ in any event. Stare decisis principles thus would seem to weigh against our reconsideration of our precedent in light of BASR.”

The Tax Court had two arguments to support its position:

• By its own terms, this provision does not restrict its application to cases where taxpayers personally had intent to evade tax. Instead, Congress showed itself agnostic as to who had to have the intent to evade tax, choosing to ‘key [the extension of the limitation period] to the fraudulent nature of the return’ rather than tie it to taxpayer intent.”

• There are other Code sections (which we will skip for our discussion) where Congress explicitly limited required intent to the taxpayer. The fact that it did not do so here is a tell that Congress did not mean to limit the meaning of “intent” for purposes of this Section.

Mrs. Murrin lost before the Tax Court.

She appealed to the Third Circuit, and I read last week that she lost there also.

Is it fair? My first reaction is no, as taxpayer is the tax return and vice versa. Who else can have a closer connection to that return that the person filing it? It seems to me that the judicial wordsmithing here is drivel and prattle. Still, I acknowledge the necessity and persuasion of stare decisis, although poor drafting of tax law and stare decisis is a bad brew for common sense.

Our case this time was Murrin v Commissioner, No 23-1234 (3^rd Cir, August 18, 2025).

   

Can A Taxpayer Be Responsible For Tax Preparer Fraud?

 

We are familiar with the statute of limitations. In general, the SoL means that you have three years to file a return, information important to know if you are due a refund. Likewise, the IRS has three years to audit or otherwise adjust your return, important to them if you owe additional tax.

The reason for the SoL is simple: it has to end sometime, otherwise the system could not function.  Could it be four years instead of three? Of course, and some states use four years. Still, the concept stands: the ferris wheel must stop so all parties can dismount.

A huge exception to the SoL is fraud. File a fraudulent return and the SoL never starts.

Odds are, neither you nor I are too sympathetic to someone who files a fraudulent return. I will point out, however, that not all knuckleheaded returns are necessarily fraudulent. For example, I am representing an IRS audit of a 2020 Schedule C (think self-employed). It has been one of the most frustrating audits of my career, and much of it is self-inflicted. I know the examiner had wondered how close the client was to the f-word; I could hear it in her word selection, pausing and voice. We spoke again Friday, and I could tell that she had moved away from that thought. There is no need to look for fraud when being a knucklehead suffices.

Here is a question for you:

You do not commit fraud but your tax preparer does. It could be deductions or credits to which you are not entitled. You do not look at the return too closely; after all, that is why you pay someone. He/she however did manage to get you the refund he/she had promised. Can you be held liable for his/her fraud?

Let’s look at the Allen case.

Allen was a truck driver for UPS. He had timely filed his tax return for the years 1999 and 2000. He gave all his tax documents to his tax preparer (Goosby) and then filed the resulting return with the IRS.

Mr. Goosby however had been juicing Allen’s itemized deductions: contributions, meals, computer, and other expenses. He must have been doing quite a bit of this, as the Criminal Investigations Division (CID, pronounced “Sid”) got involved.

COMMENT: CID is the part of the IRS that carries a gun. You want nothing to do with those guys.

Allen was a good guy, and he agreed with the IRS that there were bogus numbers on his return.

He did not agree that the tax years were open, though. The IRS notice of deficiency was sent in 2005 – that is, outside the normal three years. Allen felt that the tax years had closed.

He had a point.

However, look at Section 6501(c):

§ 6501 Limitations on assessment and collection.

(c)  Exceptions.

(1)  False return.

In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.

The Court pointed out that the law mentions a “false or fraudulent return.” It does not say that the fraud must be the taxpayer’s.

The year was open, and Allen owed the additional tax.

I get it. There is enough burden on the IRS when fraud is involved, and the Court was not going to add to the burden by reading into tax law that fraud be exclusively the taxpayer’s responsibility.

The IRS had helped its case, by the way, and the Court noticed.

How?

The IRS had not assessed penalties. All it wanted was additional tax plus interest.

I wish we could see more of that IRS and less of the automatic penalty dispenser that it has unfortunately become.

Allen reminds us to be careful when selecting a tax preparer. It is not always about getting the “largest” refund. Let’s be honest: for many if not most of us, there is a “correct” tax number. It is not as though we have teams of attorneys and CPAs sifting through vast amounts of transactions, all housed in different companies and travelling through numerous foreign countries and treaties before returning home to us. Anything other than that “correct” number is … well, a wrong number.  

Our case this time was Allen v Commissioner, 128 T.C. 4 (U.S.T.C. 2007).