Taxpayer Wins Refund Despite Using Wrong Form

Let’s look at a case that comes out of Cincinnati.

E. John Rewwer (Rewwer) had a professional practice which he reported on Schedule C (proprietorship/disregarded entity) of his personal return.

He got audited for years 2007 through 2009.

The IRS disallowed expenses and assessed the following in taxes, interest and penalties:

           2007            $  15,041

           2008            $137,718

           2009            $ 55,299

Rewwer paid the assessments.

He then filed a claim for refund for those years. More specifically his attorney filed and signed the refund claims, including the following explanation:

The IRS did not properly consider documentation of my expenses during my income tax audit. I would ask that the IRS reopen the audit, reconsider my documentation, and refund the amounts paid as a result of the erroneous audit adjustments, including any penalty and interest that may have accrued.”

I am not certain which expense categories the IRS denied, but I get it. I have a similar (enough) client who got audited for 2016. IRS Holtsville disallowed virtually every significant expense despite being provided a phonebook of Excel schedules, receipts and other documentation.  We took the matter to Appeals and then to Tax Court. I could see some expenses being disallowed (for example, travel and entertainment expenses are notoriously difficult to document), but not entire categories of expenses. That told me loud and clear that someone at IRS Holtsville could care less about doing their job properly.

Wouldn’t you know that our client is being examined again for 2018? Despite taking the better part of a day faxing audit documentation to IRS Holtsville, we are back in Tax Court.  And I feel the same way about 2018 as I did about 2016: someone at the IRS has been assigned work above their skill level.

Back to Rewwer.

The attorney:

(1)  Sent in claims for refund on Form 843, and

(2)  Signed the claims for refunds.

Let’s take these points in reverse order.

An attorney or CPA cannot sign a return for you without having a power of attorney accompanying the claim. Our standard powers here at Galactic Command, for example, do not authorize me/us to sign returns for a client. We would have to customize the power to permit such authority, and I will rarely agree to do so. The last time I remember doing this was for nonresident clients with U.S. filing requirements. Mail time to and from could approach the ridiculous, and some of the international forms are not cleared for electronic filing.

Rewwer’s claims were not valid until the signature and/or power of attorney matter was resolved.

Look at this Code section for the second point:

§ 301.6402-3 Special rules applicable to income tax.

(a) The following rules apply to a claim for credit or refund of income tax: -

(1) In general, in the case of an overpayment of income taxes, a claim for credit or refund of such overpayment shall be made on the appropriate income tax return.

(2) In the case of an overpayment of income taxes for a taxable year of an individual for which a Form 1040 or 1040A has been filed, a claim for refund shall be made on Form 1040X (“Amended U.S. Individual Income Tax Return”).

Yep, there is actually a Code section for which form one is supposed to use. The attorney used the wrong form.

For some reason, the IRS allowed 2008 but denied the other two years.

The IRS delayed for a couple of years. The attorney, realizing that the statute of limitations was about to expire, filed suit.

This presented a window to correct the signature/power of attorney issue as part of the trial process.

To which the IRS cried foul: the taxpayer had not filed a valid refund claim (i.e., wrong form), so the claim was invalid and could not be later perfected. Without a valid claim, the IRS claimed sovereign immunity (the king cannot be sued without agreement and the king did not so agree).

The IRS had a point.

But the taxpayer argued that he had met the “informal claim” requirements and should be allowed to perfect his claim.

The Supreme Court has allowed imperfect claims to be treated as informal claims when:

(1) The claim is written

(2)  The claim adequately tells the IRS why a refund is sought, and

(3)  The claim adequately tells the IRS for what year(s) the claim is sought.

The point to an informal claim is that technical deficiencies with the claim can be remedied – even after the normal statute of limitations - as long as the informal claim is filed before the statute expires.

As part of the litigation, Rewwer refiled years 2007 and 2009 on Forms 1040X, as the Regulations require. This also provided opportunity to sign the returns (and power of attorney, for that matter), thereby perfecting the earlier-filed claims.

Question: did the Court accept Rewwer’s informal claim argument?

Answer: the Court did.

OBSERVATION: How did the Court skip over the fact that the claims – informal or not – were not properly signed? The IRS did that to itself. At no time did the IRS deny the claims for of lack of signatures or an incomplete power of attorney. The Court refused to allow the IRS to raise this argument after-the-fact to the taxpayer’s disadvantage: a legal principle referred to as “estoppel.”  

Look however at the work it took to get the IRS to consider/reconsider Rewwer’s exam documentation for 2007 and 2009. Seems excessive, I think.

Our case this time was E. John Rewwer v United States, U.S. District Court, S.D. Ohio. 

COMMENT: If you are wondering why the “United States” rather than the usual “Commissioner, IRS,” the reason is that tax refund litigation in federal district courts is handled by the Tax Division of the Department of Justice.

A Tax Refund When The IRS Fails To Process A Return

I am looking at a case involving a tax refund. The IRS bounced it, and I am having a hard time figuring out what the IRS was thinking.

Let’s talk about it.

James Willetts filed an extension for his 2014 individual tax return. He sent a $8,000 payment and extended the return from April 15 to October 15, 2015.

Standard stuff.

He did not file the return by October 15, 2015.

Oh well.

He finally filed the 2014 return on April 14, 2018.

April 15, 2015 to April 14, 2018 is less than three years, and that is not even including the six-month extension on the 2014 return.

The IRS rejected the return because of potential identity theft.

I presume that the IRS sent a notice, but Willetts did not respond. The Court goes on to observe that it was unclear whether Willetts even knew there was an identity issue before bringing suit.

COMMENT: That struck me as odd, as one of the first things a tax professional would do is obtain a transcript of Willett’s tax account. I then noted that Willetts brought suit as “pro se,” generally interpreted as going to Court without professional representation. Technically, that is incorrect, as one can go to Court with a CPA and still be considered “pro se,” but, in Willetts’ case, I am inclined to believe he was truly pro se.

The issue before the Court was straight-forward: did Willetts file his return in time to get his refund?

Let’s go tax nerd for a moment:

(1)  A taxpayer may recoup a tax overpayment by filing a claim within a statutorily-prescribed period of time.

(2)  That period of time is:

a.    Three years from when the return was filed, if the return was filed within three years of when the return was due; otherwise

b.    … two years from when the tax was paid.

(3)  The three years in (2)(a) extends with a valid tax extension.

Let’s parse this.

(1) Willetts' 2014 tax return was due April 15, 2015.

(2) He had a valid extension until October 15, 2015.

(3) His three-year period for filing a refund claim would run – at a minimum - until April 15, 2018. Since he also had a valid extension, the extension period gets tacked-on. He therefore had until October 15, 2018 to file a refund claim within the three-year lookback period.

You can see where the IRS was coming from. It did not have a tax return in its system until after October 15, 2018.

However, Willetts filed - or at least attempted to file - a return on April 14, 2018. It wasn’t his fault that the IRS held up processing.

The Court made short work of this.

A tax return is deemed filed the day it is received by the IRS, regardless of whether it is accepted, processed, ignored or destroyed by the IRS. The IRS’ own records showed Willetts' return as received on May 2, 2018, well within the period ending October 15, 2018.

The return was filed timely. Willetts was due his refund.

I have a couple of observations:

(1)  I do not understand why the IRS pursued this. The rules here are bright-line. The IRS did not have a chance of winning; in fact, the case strikes me as borderline harassment. 

What concerns me is the mountain of paper returns – especially amended returns – waiting unopened and unprocessed at the IRS as I write this. Are we going to see Willetts-like foot-dragging by the IRS on those returns? Is the IRS going to force me to file with the Tax Court to get my clients their refunds?   

(2)  Let’s play what-if.  

Say that Willetts had filed his return on November 1, 2018, so that all parties would agree that he was outside the three-year lookback period. Once that happened, his refund would be limited to any taxes paid within the previous two years. His 2014 taxes would have been deemed paid on April 15, 2015, meaning that none, zero, zip of his 2014 taxes were paid within two years of November 1, 2018. There would be no refund. This, by the way, is the how-and-why people lose their tax refunds if they do not file their returns within three years.   

Our case this time was Willetts v Commissioner, Tax Court November 22, 2021.

A CPA’s Signature And The Informal Claim Doctrine

 

I am looking at case where the CPA signed a return on behalf of a client.

Been there and done that.

There is a hard-and-fast rule when you do this.

Let’s go through it.

The Mattsons were working in Australia for the Raytheon Corporation.

In April, 2017 they timely filed their 2016 individual tax return, paying $21,190 in federal taxes.

COMMENT: This immediately strikes me as odd. I would have anticipated a foreign income exclusion. Maybe they were over the exclusion limit, meaning that some of their income was exposed to U.S. tax. Even so, I would then have expected a foreign tax credit, offsetting U.S. tax by taxes paid to Australia.

Turns out they had signed a closing agreement when they went to Australia. The agreement was with the IRS, and they waived their right to claim the foreign income exclusion.

Ahh, that answers my first question.

Why would they do this?

In return for agreeing not to claim the 911 exclusion, the government of Australia has entered into an agreement with the United States Government not to subject the income earned by the taxpayer to Australian taxes."

Yep, there are advantages to working with the big company. It also answers my second question.

Seems to me that we are done here. Taxpayers paid taxes on their Australian wages solely to the United States. In exchange they forwent the foreign income exclusion. Makes sense.

The Mattsons changed CPA firms. The new firm prepared an amended 2016 return for – you guessed it – the foreign income exclusion.

COMMENT: I presume the new firm did not know about the closing agreement.

A CPA at the firm signed the amended return on behalf of the Mattsons.

No problem, but she did not attach a power of attorney authorizing the CPA to sign the return.

Not good, but there is time to fix this.

The IRS held the amended return and sent a letter wanting to know why the Mattsons had taken a position contrary to the closing agreement.

Me too.

In May, 2019 the CPA firm requested an Appeals hearing.

OK.

In July, 2019 the IRS sent a letter that they were disallowing the refund.

The taxpayers filed suit in Court.

To me, the controversy was done with discovery of the closing agreement. There is a Don Quixote quality to this story once that fact came to light.

There is a requirement in the tax Code and a list of cases as long as my arm that taxpayers have to sign a return, especially a claim (that is, a return requesting a refund). A CPA can sign the return on behalf of a client, but the CPA is charged with attaching a copy of a power of attorney to the return.

Hold on, argued the CPA. We sent a power of attorney to the IRS in November, 2018.

This is new information.

And it introduces the “informal claim” doctrine to our discussion.

The idea is that the taxpayer can correct the defect in a claim. That is what “informal” means in this context – think of the first claim as a placeholder until it is perfected. The CPA firm had failed to initially attach a power of attorney, but it subsequently corrected this error in November, 2018.

Issue: the claim has to be perfected BEFORE the start of a lawsuit.

Fact One: the lawsuit was filed in July, 2019.

Fact Two: the power was sent to the IRS in November, 2018.

Reasoning: the dates work.

Question: did the taxpayer correct their claim in time?

I sign powers of attorney all the time. I doubt I go a week without filing at least one with the IRS. I like to explain to clients (unless they have been through the process before) what the limitations are to a standard tax power of attorney. I can call the IRS, request and/or agree to adjustments or stays, and so forth.

However, what our standard power does not do is allow me to sign the return. A client can give me that authority, true, but is has to be separately stated on the power. Our routine powers here at Galactic Command, for example, do not include the authority to sign a return on behalf of a client. In truth, unless there are exceptional circumstances, I do not want that authority. I don’t want to receive a client’s refund check, either.

I can almost visualize what happened.

The CPA signed the return. She knew that she needed a power, so she – or a staff accountant – generated one from their software. It was a default power, the one they – like we – use in almost all cases. No one paused to consider that the default power was not appropriate in this instance.

There was still time to fix this. The firm could revise the power to allow the CPA authority to sign, collect the appropriate signatures and record the power with the IRS.

But they had to do this before bringing suit.

Which they did not.

The informal claim doctrine did not apply, because the placeholder claim was not perfected before filing suit.

Our case this time was Mattson v U.S., 2021 PTC 110 (Fed Cl 2021).

Withdrawing A Tax Court Petition

 

We have a case coming up in the Tax Court.

Frankly it should never have gone this far. Much of it was COVID, I suspect. However, some of it was the IRS dropping the ball.

What set this off was someone dying. His employer had a life insurance policy on him. I suspect that this came as a surprise to his employer, who probably thought all along that the employee owned the policy with the employer paying the premiums. This would be a “split dollar” arrangement. The taxation of split dollar plans became trickier in the mid aughts, but these arrangements have been around for a long time. 

The employee died. The company received the proceeds. The company intended for the widow to receive the proceeds. How did the company get the proceeds to the widow?

They botched is what they did.

They tried to correct the botch by amending a Form 1099.

Our client is the widow, and she is being chased by the IRS. I reviewed the history of the transaction, the original and amended 1099, e-mails galore.

I have been trying to contact the IRS on the case. I even reached out to the clerk for Judge Morrison (at the Tax Court) for an assist. She was extremely helpful, but getting a response – or a pulse – from the IRS has been frustrating.

Until this week.

It is amazing how quickly some issues can be resolved if people can just talk.

The IRS understood our argument. They were willing to compromise, except for one thing.

The company never filed the amended 1099 with the IRS.

Explains why the IRS was digging in its heels.

Mind you, we can correct this – now that we know. We could also have corrected this long ago and not involved the Tax Court.

We will never appear before the Court.

Procedure here is important. Both the IRS and we will tell the Court the matter has been settled. The Court will be happy to move on.   

By contrast, what happens if we unilaterally pull out of Tax Court?

Bad things.

The seminal case goes back to 1974.

The IRS came after William Ming. Whatever was going on, the IRS was going after the fraud penalty.

There was back and forth. Mr Ming died. The IRS eventually showed some leeway on the fraud issue.

That caught the estate’s attention.

The estate tried to withdraw its case. They may have wanted a jury, and the Tax Court does not have a jury.

Here is the Court:

It is now settled principle that a taxpayer may not unliterally oust the Tax Court from jurisdiction which, once invoked, remains unimpaired until it decides the controversy.”

There is a Hotel California vibe here: the Tax Court will hold against you should you withdraw. This triggers the legal doctrine of res judicata, and you then cannot relitigate the issue in another court.

You can leave by winning, losing or settling. What you cannot do is walk out.

Our case this time for the at-home tax historians was Estate of Ming 62 T.C. 519.

How Much Paperwork Does the IRS Want?

Sometimes practitioners disagree on how much supporting paperwork – if any – should go with a tax return.

The issue can take on a keener edge when one is working with amended returns or claims for refunds.

COMMENT: For the nerds, an amended return can technically be a claim for refund – if the amended return shows a refund.

It also can vary with the tax issue at play.

I am looking at two cases – the first being the initial hearing and the second the appeal – involving a research tax credit.

The research credit is easier to understand if we think of companies such as Johnson & Johnson or Pfizer. Lab coats, scientific equipment, people wearing safety glasses and so forth. The image screams research.

Mind you, there are accounting and recordkeeping issues that go with this credit.

A routine accounting system would capture functional costs (think payroll, rent, utilities), departmental costs (think auto parts versus auto service at a car dealership) and divisional costs (consumer and industrial, for example). The research credit wants even more detail from the accounting system. It wants detail at the research activity level.

What is a research activity?

You could be an activity. Say that you are an engineer. You work in manufacturing, but a portion of your time is spent on activities that might qualify for the credit. What would be an example? Let’s say improving a product or the process to manufacture that product.  

The accounting system easily captures your payroll as a functional cost.

The system also captures your payroll as a manufacturing cost.

What the system perhaps doesn’t do – at least without upgrades – is break-down your lab time into specific projects, some of which might qualify for the credit and others which might not. Yep, your time sheets going forward are going to be a bear.

Let’s be clear: if you are Pfizer, you likely have tweaked-out your accounting and reporting system to capture 360 degrees of data, including whatever is needed for the research credit. Our discussion here concerns more routine companies.

The Harpers owned a company that specializes in military design build projects. They initially filed returns not claiming a research tax credit.

Now pause and consider what they do.

Chances are that some of what they do has an element of uncertainty: what to, how to do it, what order to do it and so on. Depending upon, that uncertainty might trigger the research credit.

There are four principal requirements to the research credit:

(1)  There must be a reduction in uncertainty about the development or improvement of a product or process.

(2)  That development or improvement in turn involves experimentation – that is, there are different ways to get there from here. The experimentation involves determining which ways work and which ways do not.

(3)  The experimentation must involve hard sciences: engineering, chemistry and so forth. Experimenting with tax law, for example, will not work (sadly).

(4)  The purpose of the activity must be a new or improved product or process: performance, function, quality, reliability, that kind of thing.

The Harpers reviewed what they did and determined that the company had research activities qualifying for the credit. They amended their returns for 2008 and 2010. The credit amount was impressive:

         2008                    $437,632

         2010                    $388,325

The IRS reviewed the amended returns and denied the credit.

Off to Court they went. The first case was in California district court.

The IRS position was both straightforward and cynical:

The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof.”

Let me rephrase the position: we (the IRS) decide when we have enough facts and in any event the facts you submit are not sufficient to apprise us of anything until we say that they are sufficient.

The district court agreed with the IRS.  The taxpayer was required to establish all facts and details for its refund claim. The IRS said that the taxpayer had not, and the Court said that was all it needed to know.

Wow. Let me think how can this standard can possibly be abused….

The Harpers appealed the case to the 9^th Circuit Court of Appeals.

Their argument?

• The IRS has the right to notice of a claim and its underlying facts so it can make an informed and appropriate determination. This is referred to as the “specificity” requirement.
• The IRS can always ask one more question. This makes attaching ALL possible paperwork to a claim virtually impossible.
• In practice, the IRS can review a claim with a taxpayer. One way is to audit the claim, of course. This act is considered a waiver of the specificity requirement.
• Why would the IRS review a claim and thereby waive anything? Consider the alternative. Tax practitioners would attach so much documentation to the research tax credit that the IRS would have to lease additional storage to house it all.  It is in both parties’ mutual interest to go along and get along.

The Harpers argued that the IRS had waived the specificity requirement.

How did the IRS do this?

By auditing the claim.

The IRS spent four years auditing the amended returns. The Harpers provided over 100,000 pages of supporting documentation. At no point in time did the IRS tell the Harpers that they had not provided ENOUGH documentation.

I am trying to be fair, but I am distressed by the IRS behavior.

It is common professional knowledge that the IRS can always ask for additional information. One can provide it and still get turned down, but the give and take allows the system – the IRS and tax practitioners - to function and not be overwhelmed.

Is that what happened here?

Nope.

The IRS did not go to Court arguing that it had reviewed 100,000 pages of supporting documentation and decided the Harpers did not qualify for the research credit.

The IRS argument was that the Harpers did not meet the specificity requirement – meaning the Harpers did not include enough paperwork.

The Appeals Court called out the IRS. It had waived the specificity requirement by auditing the amended returns.

The Appeals Court sent the case back to the district court. The case should never have been dismissed for the specificity requirement.

The Harpers may win or may lose, but they will have their day in court.

Our case this time for the home gamers was Harper v United States.

Abatement Versus Refund

 

I was contacted recently to inquire about my interest in a proceduralist opportunity.

That raises the question: what is a proceduralist?

Think about navigating the IRS: notices, audits, payment plans, innocent spouse claims, liens and so on.  One should include state tax agencies too. During my career, I have seen states become increasingly aggressive. Especially after COVID – and its drain on state coffers - I suspect this trend will only continue.

I refer to procedure as “working the machine.” This is not about planning for a transaction, researching a tax consequence or preparing a tax return. That part is done. You have moved on to something else concerning that tax return.

Less glamorously, it means that I usually get all the notices.

Let’s go procedural this time.

Let’s talk about the difference between an abatement and a refund.

Mr Porporato (Mr P) filed a return for 2009. He owed approximately $10 grand in taxes.

He did not file for 2010 or 2011. The IRS prepared returns for him (called a Substitute Return), and he again owed approximately $10 grand for each year.

COMMENT: He had withholding but he still owed tax for each year. He probably showed have adjusted his withholding, but, then again, he went a couple of years without even filing. I doubt he cared.

The IRS came a-calling for the money, and Mr P requested a Collection Due Process hearing.

COMMENT: I agree, and that is what a CDP hearing is about. Mind you, the IRS wants to hear about payment plans, but at least you have a chance to consolidate the years and work-out a payment schedule.

There was chop in the water that we will not get into, other than Mr P’s claim that he had a refund for 2005 that was being ignored.

So what happened with 2005?

Mr P and his (ex) wife filed a joint 2005 return on June 15, 2006.

Then came a separation, then a divorce, then an innocent spouse claim.

Yeeessshhh.

He amended his 2005 return on March 29, 2010. The amended return changed matters from tax due to a tax overpayment. The IRS abated his 2005 liability.

There you have the first of our key words: abatement.

Let’s review the statute of limitations (SOL). You generally have three years to file a tax return and claim your refund, if any. Go past the three years and the IRS keeps your refund. There are modifiers in there, but that is the general picture. We also know the flip side of the SOL: the IRS has three years to examine your return. Go past three years and the IRS cannot look at that year (again, with modifiers). Why is this? It mostly has to do with administration. Somewhere in there you have to close the matter and move on.

Let’s point out that Mr P amended his 2005 return after more than three years. The IRS still reversed his tax due.

Can the IRS do that?

Yep.

Why?

An IRS can abate at any time. Abatement is not subject to the restrictions of the SOL.

Abatement means that the IRS reducing what it wants to collect from you.

But the result was an overpayment.

Mr P wanted the IRS to refund his 2005 overpayment – more specifically, to refund via application of the overpayment to later tax years with balances due.

This is not the IRS reducing what it wants to collect. This is in fact going the other way: think of it as the IRS writing a check.

Wanting the IRS to write a check ran Mr P full-face into the statute of limitations. He filed the 2005 amended outside the three-year window, meaning that the SOL on the refund was triggered.

I get where Mr P was coming from. The IRS cut him slack on 2005, so he figured he was entitled to the rest of the slack.

He was wrong.

And there you have the procedural difference between an abatement and a refund. The IRS has the authority to reduce the amount it considers due from you, without regard to the SOL. The IRS however does not have the authority to write you a check after the SOL has expired.

Another way to say this is: you left money on the table.

Our case this time was Porporato v Commissioner (TC Summary Opinion 2020-24).

An Expiring Six Figure Tax Refund

We had an unusual client situation this 2020 tax-season-that-refuses-to-go-away.

It involved a high earner and a private plane.

More specifically, buying a private plane.

The high earner bought the plane in 2016, which meant there was a dollar-for-dollar depreciation deduction if the plane was successfully placed in business use. While that may sound simple enough, there is a high wall in the tax Code (specifically, Section 280F(d)(6)(C)(ii)) that one has to scale. The IRS is onto wealthy taxpayers buying a plane for “business” use, using it also for personal reasons and reporting relatively minimal income for that personal use under the SIFL rules.

COMMENT: Think of the SIFL rules as picking up mileage-rate income for your personal use of a company car.

It took a while to resolve the issues involved in this return. We prepared and the client filed his 2016 return in 2020. We filed on paper, as it was too late to electronically file. Going into COVID, mind you, when soon there would be no one at the IRS to open the mail. In fact, at one point the IRS estimated that it had over 10 million pieces of unopened mail to process.

Not the best-case scenario, but I was not immediately concerned.

Until our client received an IRS letter that the period for claiming a 2016 tax refund was about to expire.

That amount was six figures.

Let’s talk about the tax statute of limitations.

There are different sides to the statute of limitations.

In general, we know that there is a three-year statute for the IRS to look at one’s return. If you filed, for example, your 2016 tax return on April 15, 2017, the IRS has until April 15, 2020 (barring unusual circumstances) to look at and change your return.

The technical term for any additional taxes is “assessment”, and the IRS has 10 years to collect any taxes assessed. You there have a second limitations period.

But what if the IRS owes you?

Let’s say that you have a refund for 2016. You are in no hurry to file, because there is nothing for the IRS to chase down. You have a refund, after all.

That three-year statute flips and can now be your enemy.

You have to claim that refund within three years.

What if you don’t?

Then you lose it.

You had better file that 2016 tax return by April 15, 2020.

Let’s go tax nerd here.

Technically, there are two limitations periods running concurrently. You have to meet both of them to get to your refund.

(1)  You have to file a refund claim within three years of filing the return.

There is some technical mumbo-jumbo here. Since you never filed a return, the filing serves as both a return and a claim (for refund). You would easily meet the three-year test as filing the return also counts as filing a claim. You did both at the same time.

That, however, is not the problem.

(2)   Taxes paid within the preceding three-year period are recoverable.

The taxes for 2016 were considered paid-in as of April 15, 2017 (when the return was due). As long as you get that return/claim in by April 15, 2020, you are good, right?

Who was not working on April 15, 2020?

The IRS, that‘s who.

Nor many CPA firms. If CPAs were working, odds are they were working in a diminished capacity.  

Still, our return was filed before April 15, 2020, so was there need to be concerned that it was sitting in a trailer with millions of other returns?

And didn’t many deadlines got extended to July 15, in any event?

That answer is fine until the client begins to panic. Did the period run out on April 15? Is the period running out on July 15? ARE YOU SURE?

My partner was anxious: should we call the IRS? Should we file another claim? Should we request an extension of the statute?

Ixnay on that last one, champ.

We had one more card to play.

Guess what extends the three-year lookback period for recoverable taxes?

An extension, that’s what, and our client had one for 2016.

No matter what, our client’s lookback period for taxes goes through October 15, 2020. The client has three years and six months to get to those taxes.

I am, by the way, a fan of routine extensions for tax returns of complexity. COVID has given me another reason why.

Happy client.

Crazy year.

Deducting a Divorce

I am looking at two points on a case:

(1)  The IRS wanted $1,760,709; and

(2)  The only issue before the Court was a deduction for legal and professional fees.

That is one serious legal bill.

The taxpayer was a hedge fund manager. The firm had three partners who provided investment advisory services to several funds. For this they received 1.5% of assets under management as well as 20% of the profits (that is, the “carry”). The firm decided to defer payment of the investment and performance fees from a particular fund for 2006, 2007 and 2008.

2008 brought us the Great Recession and taxpayer’s spouse filing for divorce.

By 2009 the firm was liquidating.

The divorce was granted in 2011.

Between the date of filing and the date the divorce was granted, taxpayer received over $47 million in partnership distributions from the firm.

You know that point came up during divorce negotiations.

To be fair, not all of the $47 million can be at play. Seems to me the only reachable part would be the amount “accrued” as of the date of divorce filing.

He hired lawyers. He hired a valuation expert.

Turns out that approximately $4.7 million of the $47 million represented deferred compensation and was therefore a marital asset. That put the marital estate at slightly over $15 million.

Upon division, the former spouse received a Florida house and over $6.6 million in cash.

He in turn paid approximately $3 million in professional fees. Seems expensive, but they helped keep over $42 million out of the marital estate.

He deducted the $3 million.

Which the IRS bounced.

What do you think is going on here?

The issue is whether the professional fees are business related (in which case they are deductible) or personal (in which case they are not). Taxpayer argued that the fees were deductible because he was defending a claim against his distributions and deferred compensation from the hedge fund. He was a virtual poster boy for a business purpose.

He has a point.

The IRS fired back: except for her marriage to taxpayer, the spouse would have no claim to the deferred compensation. Her claim stemmed entirely because of her marriage to him. The cause of those professional fees was the marriage, which is about as personal as an event can be. The tax Code does not allow for the deduction of personal expenses.

The IRS has a point.

The tax doctrine the IRS argued is called origin-of-the-claim. It has many permutations, but the point is to identify what caused the mess in the first place. If the cause was business or income-producing, you may have a deduction. If the cause was personal, well, thanks for playing.

But a divorce can have a business component. For example, there is a tax case involving control over a dividend-paying corporation; there is another where the soon-to-be-ex kept interfering in the business. In those cases, the fees were deductible, as there was enough linkage to the business activity.

The Court looked, but it could not find similar linkage in this case.

In the divorce action at issue, petitioner was neither pursuing alimony from Ms [ ] nor resisting an attempt to interfere with his ongoing business activities.

Petitioner has not established that Ms [ ] claim related to the winding down of [the hedge fund]. Nor has petitioner established that the fees he incurred were “ordinary and necessary” to his trade or business.

While the hedge fund fueled the cash flow, the divorce action did not otherwise involve the fund. There was no challenge to his interest in the fund; he was not defending against improper interference in fund operations; there was no showing that her action led to his winding down of the fund.

Finding no business link, the Court determined that the origin of the claim was personal.

Meaning no deduction for the professional fees.

NOTE: While this case did not involve alimony, let us point out that the taxation of alimony is changing in 2019. For many years, alimony – as long as the magic tax words were in the agreement – was deductible by the payor and taxable to the recipient. It has been that way for my entire professional career, but that is changing. Beginning in 2019, only grandfathered alimony agreements will be deductible/taxable, with “grandfathered” meaning the alimony agreement was in place by December 31, 2018.

Mind you, this does not mean that there will be no alimony for new divorces. What it does mean is that one will not get a deduction for paying alimony if one divorces in 2019 or later. Conversely, one will not be taxed upon receiving alimony if one divorces in 2019 or later.

The Congressional committee reports accompanying the tax change noted that alimony is frequently paid from a higher-income to a lower -income taxpayer, resulting in a net loss to the Treasury. Changing the tax treatment would allow the Treasury to claw back to the payor’s higher tax rate. Possible, but I suspect it more likely that alimony payments will eventually decrease by approximately 35% - the maximum federal tax rate – as folks adjust to the new law.

Our case this time was Sky M Lucas v Commissioner.

Is It Income If You Pay It Back?

You receive unemployment benefits.

You repay unemployment benefits.

Do you have taxable income?

To start with: did you know that unemployment benefits are taxable? I have long considered this a dim bulb in taxation. Taxing the little you receive as unemployment seems cruel to me.

Back to our question: it depends.

It depends on when you pay it back.

Let’s look at the Yoklic case.

Yoklic applied for unemployment benefits in 2012.  He received $3,360, and then the state determined that he was not entitled to benefits. The state sent him a letter in October, 2012 requesting repayment.

Yoklic sent a check in September, 2013.

And he left the unemployment off of his 2012 return. How could it be income, he reasoned, if he had to pay it back. It was more of a loan, or alternatively monies that he received and to which he was not entitled.

Makes sense.

But tax theory does not look at it that way.

Enter the “claim of right” doctrine. It is an oldie, tracing back to a Supreme Court case in 1932.

The problem starts with accounting periods. You and I file taxes every year, so our accounting period is the calendar year. Sometimes something will start in one period (say October, 2012) but not resolve until another period (say September, 2013).

This creates a tax accounting issue: what do you do with that October, 2012 transaction? Do you wait until it resolves (in this case, until September, 2013) before you put it on a tax return? What if it doesn’t resolve for years? How many years do you wait? Does this transaction hang out there until the cows come home?

Enter the claim of right. If you receive monies – and you are not restricted in how you can use the monies – then you are taxable upon receipt. If it turns out that you are restricted – say by having to repay the monies - then you have a deduction in the year of repayment.

If you think about it, this is a reason that a bank loan is not income to you: you are immediately restricted by having to repay the bank. There is no need to wait until repayment, as the liability exists from the get go.

Find a bag of money in a Brooks Brothers parking lot, however, and you probably have a different answer.

Unless you repay it by the end of the year. Remember: you have a deduction in the year of repayment. If you find the bag of money and the police require you to return it, then the income and deduction happen in the same year and they fizzle out.

What if you promise to return the bag of money by year-end, but you do not get around to it until January 5^th? You may have an argument here, albeit a weak one. You could reduce your promise to writing, say by signing a contract. That seems a better argument.

What did Yoklic do wrong?

He repaid the monies in the following year.

He had income in 2012.

He had a deduction in 2013.

The problem, of course, is that the 2012 income may hurt more than the 2013 deduction may help.

There is – by the way - a Code section that addresses this situation: Section 1341, aptly described as the “claim of right” section. It allows an alternate calculation to mitigate the income-hurt-more-than-the-deduction-benefited-me issue. We have talked about Section 1341 before, but let me see if I can find a fresh story and we can revisit this area again.