Filing A Zero-Income Tax Return

Here’s a question:

Would you file a tax return if you have no income – or minimal income - to report?

I would if there was a refund.

I also lean to filing if one has a history of tax filings.

The former is obvious, unless the incremental cost of filing the return is more than the refund.

The latter is because of my skepticism. I do not want a letter from the IRS stating they have not received a tax return for name-a-year. Granted, the issue should be easily resolved, but I have lost track of how many should-be’s have turned out to not-be.

Another reason is a rerun of Congress’ decision to automatically send advance payments back in 2021 – specifically, the child tax credit.       

You were ahead of the game by having filed a prior year return.

Ruben Varela filed a 1040EZ for 2017. It showed a refund of $1,373.

OK.

Ruben attached four Forms 4852 Substitute for Form W-2.

This form is used when an employer fails to send a W-2, among other situations. It happens and I see one every few years. But four …? That is odd.

The 4852’s that Ruben prepared showed zero wages.

And the $1,373 included Social Security and Medicare taxes., taxes which are not refundable.

Ruben, stop that yesterday. This is common tax protestor nonsense.

Let’s read on. There was third party reporting (think computer matching) for wages of $11,311 and cancellation of indebtedness income of $1,436.

Not surprisingly, the IRS considered it a protest filing and assessed a Section 6702(a) penalty.

§ 6702 Frivolous tax submissions.

(a)  Civil penalty for frivolous tax returns.

A person shall pay a penalty of $5,000 if-

(1)  such person files what purports to be a return of a tax imposed by this title but which-

(A)  does not contain information on which the substantial correctness of the self-assessment may be judged, or

(B)  contains information that on its face indicates that the self-assessment is substantially incorrect, and

(2)  the conduct referred to in paragraph (1) -

(A)  is based on a position which the Secretary has identified as frivolous under subsection (c) , or

(B)  reflects a desire to delay or impede the administration of Federal tax laws. 

That caught Ruben’s attention, and he disputed the penalty. On to Tax Court they went.

How can I owe a penalty if there was NO TAX, argued Ruben.

On first impression, it seems a reasonable argument.

But this is tax. Let’s look at that Code section again. 

              Such person files ….                                                      OK

              What purports to be a tax return …                                OK

      Does not contain information on

   which the substantial correctness …                             ?

 

Let’s talk about this last one. The Tax Court has a history of characterizing “zero” W-2s as both substantially incorrect and not containing sufficient information allowing one to judge the self-assessment of tax.

We have a third “OK.”

Back to Section 6702.

Is there any reference in Section 6702 to whether the return did or did not show tax due?

I am not seeing it.

The Court did not see it either.

They upheld the Section 6702 penalty.

The IRS wanted more, of course. They also wanted the Section 6673 penalty.

§ 6673 Sanctions and costs awarded by court

This penalty can be imposed when somebody clogs the Court in order to impede tax administration. The penalty can be harsh.

How harsh?

Up to $25 grand of fresh-brewed harsh.

The Court noted they had not seen Ruben Varela before nor was it aware of him previously pursuing similar arguments. They declined to impose the Section 6673 penalty, but …

We caution petitioner that a penalty may be imposed in future cases before this Court should he continue to pursue these misguided positions.”

The Court was warning him in the strongest legalese it could muster.

Our case this time was Ruben Varela v Commissioner, T.C. Memo 2024-92.

 

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).

The EV Tax Credit

I was reading an article recently that approximately 40% of Americans have not heard about the EV tax credits.

EVs are battery powered cars. We used to have hybrids, which sometimes used a motor and other times a battery. EVs by contrast are 100% battery powered.

If you are thinking about buying one for personal use, here are a few markers to keep in mind:

(1)   There was an OLD tax credit and now there is a NEW tax credit.

a.     The OLD credit went through April 18, 2023.

b.    The NEW credit of course is after April 18, 2023.

Both credits can get up to $7,500, so what changed was the measuring stick.

Before April 19, the EV had to be assembled in North America.

After April 18, one test became two tests:

·       The battery itself has to be manufactured in North America, and

·       Then critical minerals in the battery (cobalt and lithium, for example) must be extracted or processed in the U.S. or in a country with which the U.S. has a free trade agreement.

Notice that OLD $7,500 credit (assembled in North America) has become two NEW credits of $3,750 each. You can get to $7,500, but along a different route.

It matters. For example, the new Ford Mustang Mach-E only qualifies for one of the credits – only $3,750 – because its battery comes from abroad.

Some – like the Genesis GV70 – used to qualify for the old $7,500 credit but no longer qualify for anything under the new rules.

If you are considering an EV, please double check whether the vehicle qualifies. Here is the Department of Energy’s website:

https://fueleconomy.gov/feg/tax2023.shtml

(2)   Congress included some price caps on qualifying vehicles. These things are expensive, and Congress was trying to exert downward pressure.

To qualify,

·       A van, SUV or pickup truck must cost $80 grand or less.

·       Any other vehicle (a sedan, for example) must cost $55 grand or less.  

(3)   Starting in 2024, you will have the option of using the credit immediately when you purchase the vehicle. It would make for an easy down payment, I suppose.  

The heavy lifting is done behind the scenes, as the dealerships will register on a new website to initiate and receive the credits. If you are curious, that website is: 

https://www.irs.gov/credits-deductions/register-your-dealership-to-enable-credits-for-clean-vehicle-buyers  

(4)   For the first time, used EVs will qualify for a credit. This credit will not be as large as the one for new EVs, but it is not insignificant either. Here are the ropes:

·       The price must be $25 grand or less.

·       The car must be at least two years old.

·       The car qualifies only once in its lifetime.

·       The credit is up to $4 grand, limited to 30% of the price.

·       You can claim the used EV credit once every three years.  

(5)   There are income limits on both the new EV and used EV credits. Make too much money and you will not qualify.  

For example:

New EV

           Married        income < $300,00

                                       Single          income < $150,000

                            Used EV

                                        Married       income < $150,000

                                        Single         income < $75,000  

You can test for income either in the year of purchase or the immediately preceding year. I am thinking – to be safe – that one should generally go with the preceding year. It would be no fun to apply a $7,500 credit against the purchase of an EV and then give it back because you reported too much income on your 2024 tax return.  

(6)   Up to now, we have been talking about buying an EV for personal use. There is a similar credit if you lease rather than buy, but some rules are different.

·       Since the leasing company (and not you) owns the vehicle, the income test does not apply.

·       The credit requires the EV be manufactured by a “qualified manufacturer” rather than the two-step qualification discussed above for a purchased vehicle. This should result in a wider selection.

·       Mind you, the leasing company is not required to pass (all or any of) this credit on to you. Education is important here - and expect negotiation.  

The reason the rules are different is that this second credit is designed for businesses – rather than individuals – buying an EV. By bringing in a leasing company, we flipped from the first to the second credit.  

I am not in the market for a car myself.  If I were, though, I would go in a very different direction.

Primer On Research Expenses And The Research Credit

[In case you were wondering what a tax CPA does during weekdays, I drafted the following for a fellow CPA as a walkthrough through the tax terrain for research expenses and the related – but different – research credit. It is not recreational reading, but hopefully it may help another tax practitioner out there – CTG].

 

The research & development tax credit has been around since the early 1980s. Initially, only the largest of corporations seemed able to meet its requirements. The passage of years introduced more realistic standards, allowing even modest companies to benefit. Its decades of changes, requirements, limitations and alternate calculations make this a challenging area for almost any tax practitioner.

Let’s take a brief dive into the research credit.

Analysis of the credit, oddly enough, does not begin with a tax credit itself. No, it begins with the deduction for research expenses.

         § 174 Amortization of research and experimental expenditures.

(a)  In general.

In the case of a taxpayer's specified research or experimental expenditures for any taxable year-

(1) except as provided in paragraph (2), no deduction shall be allowed for such expenditures, and

(2)  the taxpayer shall-

(A)  charge such expenditures to capital account, and

(B)  be allowed an amortization deduction of such expenditures ratably over the 5-year period (15-year period in the case of any specified research or experimental expenditures which are attributable to foreign research (within the meaning of section 41(d)(4)(F) )) beginning with the midpoint of the taxable year in which such expenditures are paid or incurred.

 For years – decades actually – research and experimental expenses were deductible as incurred, although the taxpayer had the option to capitalize and amortize such expenses if preferred. For taxable years beginning on or after January 1, 2022, however, that option has been eliminated. Research and experimental expenditures must now be capitalized and amortized (that is, spread out over time). The only difference is the period:

·       Domestic research is amortized over 5 years.

·       Foreign research is amortized over 15 years.

This is a sea change in the treatment of such expenses. Many practitioners – including me – have only known one option, and that was the immediate deduction of relevant expenses. Granted, amortization does not mean the deductions are lost; it means only that the deduction is spread over a period of years. If the company is unprofitable (think a start-up), the difference between immediate deduction and amortization may be minimal. Take a mature company (Pfizer, for example), and the difference could be dramatic.

What type of expenses qualify for the Section 174 deduction?

·       Wages paid to employees directly involved in R&D, and individuals who support and supervise their work. Support or supervise is defined as one level above or below.   

·       Supplies and raw materials.

o   There is an issue here about depreciable equipment. In general, the taxpayer decides the matter by capitalizing or not capitalizing the equipment. If it does, then the equipment is not considered supplies and cannot be included in the expense pool.

·       Work performed by a third party, as long as the business retains the risk of failure.

·       Patent costs

·       Certain overhead expenses (think a research lab)

Now, we know that wages may qualify for the Section 174 deduction, but obviously not all wages will qualify. There are additional “qualities” for an expense to qualify as Section 174 expenses:

·       A permitted purpose

The underlying activity in which wages are incurred must relate to a new or improved business purpose. For example,

o   Something functions (at all)

o   Something functions more reliably

o   Something functions more efficiently 

·       Technological in nature

o   Must be based on a hard science

§  Think engineering, physics, chemistry

§  Scratch sociology and the like  

·       Elimination of uncertainty

o   There must be a realistic question whether the idea will work.

§  Mind you, it does not have to work, but there must be an initial question (or oppositely, a hope) that it will.  

·       Process of experimentation

o   Think classic trial and error.

There are best-practice recordkeeping standards for these expenses. At this point (that is, deduction), such practices may or may not be critical, but the recordkeeping becomes critical as we leave Section 174 and go to the tax credit under Section 41.

             § 41 Credit for increasing research activities.

(a)  General rule.

For purposes of section 38, the research credit determined under this section for the taxable year shall be an amount equal to the sum of-

(1)  20 percent of the excess (if any) of-

(A)  the qualified research expenses for the taxable year, over

 

(B)  the base amount,

(2)  20 percent of the basic research payments determined under subsection (e)(1)(A) , and

(3)  20 percent of the amounts paid or incurred by the taxpayer in carrying on any trade or business of the taxpayer during the taxable year (including as contributions) to an energy research consortium for energy research.

The research tax credit is a big deal because it gives you a second tax bang for doing something you were doing anyway. First, you get to deduct the expense of doing something (immediately under old law; over time under the new law). Second, you get a tax credit on top of the deduction.

The tax credit can be – to be diplomatic – confusing.

There are two main paths:

       

·       The regular credit

·       The alternate simplified credit

 

The Regular Credit

 

The regular credit begins with an odd question:

·       Did you have qualifying research expenses (QREs) before 1984?

If the answer is yes, you will have to accumulate information from the 1980s to calculate the credit, This requirement has been enough to break the hearts of many seeking the research credit.

If the answer no, then calculations become more doable.

The basic calculation is:

Current QREs – base amount = excess QREs         

The base amount involves a five-year period and can be any 5 years between the company’s 5th and 10th taxable year.     

Add up the 5-year QREs. [A]

Add up the 5-year gross receipts [B]

Divide [A] by [B] (called the fixed base percentage)

Let’s pause for a moment.

For its first 5 years, the company can just use 3% for its fixed base percentage.  

The fixed base percentage cannot exceed 16% (i.e., once outside the five year window).

 Back to math. 

Multiply the fixed base percentage by average annual gross revenues for the 4 preceding years (this is called the “base amount”).

Use the greater of the base amount or 50% of current QREs.

Subtract that amount from current year QREs (let’s call this the golden earring).

 Now what?

We multiply the golden earring by a percentage.

Easy: 20%, right?

Nothing is easy.

If we use 20%, then we have to add the amount of the research credit back into taxable income, meaning there is a loop-the-loop.

Fortunately, one can elect to use a reduced credit to avoid the loop-the-loop. The reduced credit is directly tied to the maximum corporate tax rate. Presently the maximum rate is 21%, so the reduced credit would be 20% times 79% = 15.8%.

The election must be claimed on an original, timely filed return and is good only for the year of election.

 Let’s look at an example. 

 

Current year QREs					164,000
Sum of 5-year QREs		[A]	250,000
Sum of 5-year gross receipts		[B]	960,000
Fixed base percentage			26%
Limit on fixed-base percentage				16%
Average gross receipts preceding 4 years				744,000
Base amount				119,040
Greater of base amount or 50% of current QREs					119,040
Subtract					44,960
Credit rate					20%
Credit					8,992

 

The Alternative Simplified Credit

This option came into the Code in 2007, offering an alternative to working with (possibly) decades-old data, There is a price for the simplification, though:     

The credit is 14% if the company has at least 3 years of QREs, otherwise … 

The credit is a flat 6% of current year QREs.  

You again have the loop-the-loop or you can elect to use the reduced credit. 

The nice part of the calculation is that you look at only the three years preceding the current year. 

Here is an example.  

Current year QRE					164,000
Average QREs previous 3 years			[A]	105,000
Multiply [A] by 50%					52,500
Subtract					111,500
Credit rate					14%
Credit					15,610

 

              

 

Here is an example with the reduced credit. 

Current year QRE					164,000
Average QREs previous 3 years			[A]	105,000
Multiply [A] by 50%					52,500
Subtract					111,500
Credit rate					11%
Credit					12,265

 

              

 

 

What if the company does not have 3 years of QREs? Then a flat 6% of current QREs applies.  

Current year QRE						164,000
Average QREs previous 3 years			[A]
Multiply [A] by 50%						0
Subtract						164,000
Credit rate						6%
Credit						9,840

              

              

 

 

The Payroll Tax Offset Option

The PATH Act of 2015 introduced yet another option to the research credit: use it instead to offset employer payroll tax.

More specifically: 

(1)  The offset applies to both the social security portion (6.2%) and Medicare portion (1.45%) of the employer FICA tax.

(2)  There is a $500,000 maximum.

(3)  Only companies with gross receipts for 5 years or less (think startups) qualify.

(4)  Only companies with gross receipts of $5 million or less in the year of the election qualify.

(5)  The election goes with the income tax return.

(6)  The offset applies to the first payroll tax quarter after the company files its income tax return.

(7)  Any unused credit carries over to the next payroll tax quarter.

(8)  Any ultimately unused credit, however, will not be refunded.

The provision was clearly directed at companies with payroll tax obligations but little or no immediate income tax liabilities to sop up that research credit.

Be cautioned, however: you would be exposing your tax filings (both income and payroll) to heightened scrutiny. R&D credits are a high priority for the IRS.