IRS Individual Tax Payment Plans

I anticipate a question about an IRS payment plan this tax season. It almost always comes up, so I review payment options every year. It occurred to me that this topic would make a good post, and I could just send a link to CTG if and when the question arises.

Let’s review the options for individual taxes. We are not discussing business taxes in this post, with one exception. If the business income winds up on your personal return – say through a proprietorship or an S corporation – then the following discussion will apply. Why? Because the business taxes are combined with your individual taxes.

YOU DO NOT HAVE THE MONEY BUT WILL SOON

You do not have the money to pay with your return, but you do have cash coming and will be able to pay within 120 days. This is a “short-term” payment plan. There is no application fee, but you will be charged interest.

BTW you will always be charged interest, so I will not say so again.

YOU OWE $10,000 OR LESS

You cannot pay with the return nor within 120 days, but you can pay within 3 years. This is the “guaranteed” payment plan. As with all plans, you have to be caught up with all your tax filings and continue to do so in the future.

If you are self-employed you can bet the IRS will require that you make estimated tax payments. I have seen this requirement sink or almost sink many a payment plan, as there isn’t enough cash to go around.

The IRS says they will not allow more than one of these plans every 5 years. I have had better luck, but (1) I got a good-natured IRS employee and (2) the combined tax never exceeded $10 grand. Point is: believe them when they say 5 years.

YOU OWE MORE THAN $10,000 BUT LESS THAN $25,000

This is a “streamlined” payment plan. Your payment period can be up to six years.  

As long as your balance is under $25 grand, the IRS will allow you to send a monthly check rather than automatically draft your bank account.

YOU OWE MORE THAN $25,000 BUT LESS THAN $50,000

This is still a “streamlined” plan, and the rules are the same as the $10-25 grand plans, but the IRS will insist on drafting your bank account.

DOWNSIDE TO THE GUARANTEED AND STREAMLINED PLANS

Have variable income and these plans do not work very well. The IRS wants a monthly payment. These plans are problematic if your income is erratic – unless you sit on a stash of cash no matter whether you are working or not. Then again, if you have such stash, I question why you are messing with a payment plan.

UPSIDE TO THE GUARANTEED AND STREAMLINED PLANS

A key benefit to both the guaranteed and the streamlined is not having to file detailed financial information. I am referring to the Form 433 series, and they are a pain. You have to attach copies of bank statements and provide documentation if you want more than IRS-provided amounts for certain cost-of-living categories. Rest assured that – whatever you think your “essential” bills are – the IRS will disagree with you.

Another benefit to the guaranteed and streamlined is avoiding a federal tax lien. I have had clients for whom the threat of a lien was more significant than the endless collection letters they received previously. Once the lien is in place it is quite difficult to remove until the tax debt is substantially paid.

YOU OWE MORE THAN $50,000

If you go over $50 grand you will have to provide Form 433 financial information, work your way through the cost-of-living categories, fight (probably) futilely with the IRS to spot you more than the tables and then agree on an amount that will pay off the debt over your remaining statute-of-limitations (collections) period.

If you are at all close to the $50,000 tripwire, SERIOUSLY consider paying down the debt below $50,000. The process, while not good times with old friends, will be easier.

YOU CANNOT PAY IT ALL OVER THE REMAINING COLLECTIONS PERIOD

It is possible that – despite the best you can do – there is no way to pay-off the IRS over the remaining statute-of-limitations (collections) period. You have now gone into “partial pay” territory. This will require Form 433 paperwork and working with a Collections officer. If one is badly injured in a car wreck and has indefinitely decreased earning power, the process may be relatively smooth. Have a tough business stretch but retain substantial earning power and the process will likely not be as smooth. 

HOW TO APPLY

There are three general ways to obtain a payment plan:

(1)   Mail

(2)   Call

(3)   Website

There is a charge for anything other than the 120-day plan. The cheapest way to go is to use the IRS website, but the charge – while more if not using the website – is not outrageous.

You use Form 9465 for mail.

The website is https://www.irs.gov/payments/online-payment-agreement-application for online.

Set aside time if you intend to call the IRS. You may want to download a movie.

The IRS Could Not Collect When Limitations Period Expired

Let’s talk a bit about the tax statute of limitations.

There are two limitations periods, and it is the second one that can lead to odd results.

(1) The first one is referred to as the limitations on assessments. This is the three-year period that we are familiar with. The IRS has three years to audit your return, for example. If they do not, then – in general – the opportunity is lost to them.

There are a number of ways to extend the three-year period. When I was young in the profession, for example, tax practitioners would “hold back” certain tax deductions until the client was closing-in on the three years. With a scant few and breathless days remaining before the period expired, they would file amended tax returns, thereby obtaining a refund for the client and simultaneously kneecapping the IRS’ ability to look at the return.

The rules have been revised allowing the IRS additional time when this happens. I have no problem with this change, as I consider the previous practice to be unacceptable. 

(2) The second one is the collections period, and this one runs ten years.

Say you filed your return on April 15, 2014. You got audited and the IRS assessed $15,000 on December 15, 2015. The IRS has ten years – until December 15, 2025 – to collect.

There are things that can extend (the technical term is “toll”) the collections period. Make an offer in compromise, for example, and the period gets tolled. 

Sometimes tax practice boils down to letting the ten-year period click-off, hoping that the IRS does not initiate action. It happens. A few years ago I had a client who had moved to Florida, remarried and had her new husband involve her in an unnecessary tax situation. It was extremely unfortunate and she was extraordinarily ill-advised. He passed away, leaving her as the remaining target for the IRS to pursue. She had a fairness argument, but that meant as much as a snowball in July to IRS Collections. They have a different mind frame over there.

So I am looking at a case where a taxpayer (Grauer) had an issue with his 1998 tax return. He filed it late (in 2000).  That was his first problem. He owed around $40 grand, which quickly became almost $58 grand when the IRS was done tacking-on interest and penalties. That was his second problem. He could pay that much money about as easily as I can fly.

In 2001 he signed a waiver, extending the ten-year collections period.

What makes this point interesting to a tax nerd is that someone would not (knowingly) sign a waiver without something else going on.  In fact, Congress disallowed this in the late nineties, responding to perceived IRS abuses - especially in Collections.

Sure enough, the IRS said that he signed an installment agreement in 2001 (around the time of that waiver), but that he broke it in 2006

Grauer said that he never signed an installment agreement.

It was now 2013, and off to Tax Court they went.

The Court looked at the account transcript, which showed that the IRS had issued an earlier Notice of Intent to Levy.  This was an immediate technical issue, as the Court would not have jurisdiction past the first Notice. The IRS persuaded the Court that the transcript was wrong. 

COMMENT: Your transactions with the IRS go to your “account.” That account is updated whenever a transaction occurs. The posting will include a date, a code, and sometimes a dollar amount and perhaps a meaningful description.  Some codes are straightforward, some are cryptic. 

The Court next observed that Grauer asserted that he had not signed a payment plan. In legal jargon, this was an “affirmative defense,” and the IRS had to prove otherwise. The IRS argued that its transcript was correct and that Grauer was incorrect.

The Court was a bit flummoxed by this response. The IRS was having it both ways.

The Court told the IRS to “show us the installment agreement.” 

The IRS could not.

The Court went on to describe the IRS account transcript as “indecipherable and unconvincingly explained.”

The Court decided for the taxpayer.

Remember: ten years had passed. The waiver needed to attach to something. In the absence of something, the waiver fizzled and had no effect.

The statute had expired.

Did the taxpayer get away with something?

I don’t know, but think about the alternative. Let’s say that the IRS could post whatever it wanted – to speak bluntly, to make things up – to your account. You then get into tax controversy. You are required to prove that the IRS did not do whatever it claimed it did. Good luck to you in that scenario. I find that result considerably more unacceptable than what happened here.

The Income Awakens

Despite the chatter of politicians, we are not soon filing income taxes on the back of a postcard. A major reason is the calculation of income itself. There can be reasonable dispute in calculating income, even for ordinary taxpayers and far removed from the rarified realms of the ultra-wealthy or the multinationals.    

How? Easy. Say you have a rental duplex. What depreciation period should you use for the property: 15 years? 25? 35? No depreciation at all? Something else?

And sometimes the reason is because the taxpayer knows just enough tax law to be dangerous.

Let’s talk about a fact pattern you do not see every day. Someone sells a principal residence – you know, a house with its $500,000 tax exclusion. There is a twist: they sell the house on a land contract. They collect on the contract for a few years, and then the buyer defaults. The house comes back.  

How would you calculate their income from a real estate deal gone bad?

You can anticipate it has something to do with that $500,000 exclusion.

Marvin DeBough bought a house on 80 acres of land. He bought it back in the 1960s for $25,000. In 2006 he sold it for $1.4 million. He sold it on a land contract.

COMMENT: A land contract means that the seller is playing bank. The buyer has a mortgage, but the mortgage is to the seller. To secure the mortgage, the seller retains the deed to the property, and the buyer does not receive the deed until the mortgage is paid off. This is in contrast to a regular mortgage, where the buyer receives the deed but the deed is subject to the mortgage. The reason that sellers like land contracts is because it is easier to foreclose in the event of nonpayment.

 

 DeBough had a gain of $657,796.

OBSERVATION: I know: $1.4 million minus $25,000 is not $657,796. Almost all of the difference was a step-up in basis when his wife passed away.  

DeBough excluded $500,000 of gain, as it was his principal residence. That resulted in taxable gain of $157,796. He was to receive $1.4 million. As a percentage, 11.27 cents on every dollar he receives ($157,796 divided by $1,400,000) would be taxable gain.

He received $505,000. Multiply that by 11.27% and he reported $56,920 as gain.

In 2009 the buyers defaulted and the property returned to DeBough. It cost him $3,723 in fees to reacquire the property. He then held on to the property.

What is DeBough’s income?

Here is his calculation:

Original gain		157,796
Reported to-date		(56,920)
Cost of foreclosure		(3,723)
		97,153

I don’t think so, said the IRS. Here is their calculation:

Cash received		505,000
Reported to-date		(56,920)
		448,080

DeBough was outraged. He wanted to know what the IRS had done with his $500,000 exclusion.

The IRS trotted out Section 1038(e):

         (e)  Principal residences.

If-

(1) subsection (a) applies to a reacquisition of real property with respect to the sale of which gain was not recognized under section 121 (relating to gain on sale of principal residence); and

(2)  within 1 year after the date of the reacquisition of such property by the seller, such property is resold by him,

then, under regulations prescribed by the Secretary, subsections (b) , (c) , and (d) of this section shall not apply to the reacquisition of such property and, for purposes of applying section 121 , the resale of such property shall be treated as a part of the transaction constituting the original sale of such property.

DeBough was not happy about that “I year after the date of the reacquisition” language. However, he pointed out, it does not technically say that the $500,000 is NOT AVAILABLE if the property is NOT SOLD WITHIN ONE YEAR.

I give him credit. He is a lawyer by temperament, apparently.  DeBough could find actionable language on the back of a baseball card.

It was an uphill climb. Still, others have pulled it off, so maybe he had a chance.

The Court observed that there is no explanation in the legislative history why Congress limited the exclusion to sellers who resell within one year of reacquisition. Still, it seemed clear that Congress did in fact limit the exclusion, so the “why” was going to have to wait for another day.

DeBough lost his case. He owed tax.

And the Court was right. The general rule – when the property returned to DeBough – is that every dollar DeBough received was taxable income, reduced by any gain previously taxed and limited to the overall gain from the sale. DeBough was back to where he was before, except that he received $505,000 in the interim. The IRS wanted its cut of the $505,000.

Yes, Congress put an exception in there should the property be resold within one year. The offset – although unspoken – is that the seller can claim the $500,000 exclusion, but he/she claims it on the first sale, not the second. One cannot keep claiming the $500,000 over and over again on the same property.

Since Debough did not sell within one year, he will claim the $500,000 when he sells the property a second time.

When you look at it that way, he is not out anything. He will have his day, but that day has to wait until he sells the property again.

And there is an example of tax law. Congress put in an exception to a rule, but even the Court cannot tell you what Congress was thinking.

Phone Call About The Statute Of Limitations

Recently I received a call from another CPA. 

He is representing in a difficult tax audit, and the IRS revenue agent has requested that the client extend the statute of limitations by six months. The statute has already been extended to February, 2016, so this extension is the IRS’ second time to the well. The client was not that thrilled about the first extension, so the conversation about a second should be entertaining.

This however gives us a chance to talk about the statute of limitations.

Did you know that there are two statutes of limitations?

Let’s start with the one commonly known: the 3-year statute on assessment.

You file your personal return on April 15, 2015. The IRS has three years from the date they receive the return to assess you. Assess means they formally record a receivable from you, much like a used-car lot would. Normally – and for most of us – the IRS recording receipt by them of our tax return is the same as being assessed. You file, you pay whatever taxes are due, the IRS records all of the above and the matter is done.    

Let’s introduce some flutter into the system: you are selected for audit.

They audit you in March, 2017. What should have been an uneventful audit turns complicated, and the audit drags on and on. The IRS knows that they have until April, 2018 on the original statute (that is, April 15, 2015 plus 3 years), so they ask you to extend the statute.

Let’s say you extend for six months. The IRS now has until October 15, 2018 to assess (April 15 plus six months). It buys them (and you) time to finish the audit with some normalcy.

The audit concludes and you owe them $10 thousand. They will send you a notice of the audit adjustment and taxes due. If you ignore the first notice, the IRS will keep sending notices of increasing urgency. If you ignore those, the IRS will eventually send a Statutory Notice of Deficiency, also known as a SNOD or 90-day letter.

That SNOD means the IRS is getting ready to assess. You have 90 days to appeal to the Tax Court. If you do not appeal, the IRS formally assesses you the $10 thousand.

And there is the launch for the second statute of limitations: the statute on collections. The IRS will have 10 years from the date of assessment to collect the $10 thousand from you.

So you have two statutes of limitation: one to assess and another to collect. If they both go to the limit, the IRS can be chasing you for longer than your kid will be in grade and high school.

What was I discussing with my CPA friend? 

• What if his client does not (further) extend the statute?

Well, let’s observe the obvious: his client would provoke the bear. The bear will want to strike back. The way it is done – normally – is for the bear to bill you immediately for the maximum tax and penalty under audit. They will spot you no issues, cut you no slack. They will go through the notice sequence as quickly as possible, as they want to get to that SNOD. Once the IRS issues the SNOD, the statute of limitations is tolled, meaning that it is interrupted. The IRS will then not worry about running out of time - if only it can get to that SNOD.

It is late August as I write this. The statute has already been extended to February. What are the odds the IRS machinery will work in the time remaining?

And there you have a conversation between two CPAs.

I myself would not provoke the bear, especially in a case where more than one tax year is involved. I view it as climbing a tree to get away from a bear. It appears brilliant until the bear begins climbing after you. 

I suspect my friend’s client has a different temperament. I am looking forward to see how this story turns out.

Jurate Antioco's Nightmare On IRS Street

Ms. Jurate Antioco lived in Martha’s Vineyard, where she owned a bed and breakfast with her husband. The B&B was their home. In 2006 they divorced (after 27 years) and sold the B&B for almost $2 million. They used some of the money to pay off marital debt, but over $1 million went to her after she was unable to finish a Section 1031 exchange within the permitted time.

After approximately 1 year, she took the money and borrowed another $950,000 to buy a multifamily in San Francisco. She moved into one unit, moved her 90-something-year-old mother into another and rented the remaining three units as a source of income.

Ms. Antioco made a mistake concerning her taxes, though. She thought that – perhaps because the B&B had been her residence – that she would not owe any taxes. She fell behind in filing her 2006 taxes but did better with 2007. Her accountant informed her that she owed taxes on the sale for 2006. She was unprepared for this, as she had put almost all her money in the multifamily. She filed the tax returns, though.

The IRS of course assessed tax, interest and penalties. It is what they do.

In April, 2009 the IRS sends her a notice of intent to levy. Ms. Antioco has all her money tied up in the multifamily, so she filed for a collection due process (CDP) hearing.  She proposed paying $1,000 per month until she could work out a loan. She explained that her mom was having health issues, she was moving into caregiver mode, and anything more than $1,000 at the moment would cause economic hardship. As a show of good faith, she started paying $1,000 a month.

She contacted other lenders about a loan, but she soon learned that she had a problem. Even though she had considerable equity in the property, her current lender had included a nuclear option in the mortgage giving them the right to foreclose if another lien was put on the building

OBSERVATION: There is a very good reason to request a CDP, as the IRS will routinely file a lien to secure its debt. This could have been very bad for Ms. Antioco.

She goes back to the primary lender, and they tell her that they are not interested in loaning her any more money.

She has a problem.

The IRS sends her paperwork (Form 433-A) and schedules a hearing for September, 2009. The IRS tells her that she simply has to try to borrow before they will consider an installment plan. If she cannot, then proof of that must also be submitted.

She finds another lender and a better interest rate. The new lender will refinance but not lend any new money. Still, a lower payment frees-up cash, so Ms. Antioco decides to refinance. The new lender wants her to put her mom on the deed, which she does by granting her mother a joint tenancy in the property.

She sends her financial information (the Form 433-A), along with supporting bank documentation and a copy of her most recent tax return, to the IRS. She hears nothing.

In November, 2009 she received a notice from the IRS stating that they were sustaining the levy. The notice stated that she had requested a payment plan, but she had failed to provide additional financial information. In addition the IRS completely blew off her economic hardship argument.

Ms. Antioco appealed to the Tax Court. She pointed out that she was never asked for additional financial information, and –by the way – what happened to her economic hardship request?

And then something amazing happened: the IRS pulled the case, admitting to the Court that the Appeals officer had never requested additional financial information and had in fact abused her discretion.

The Court sent the matter back to IRS Appeals, hoping that the system would work better this time.

Uh, sure.

Enter Alan Owyang. The first thing he did was call Ms. Antioco to schedule a face-to-face meeting and review detailed questions. . Ms. Antioco explained that she would call back later that day, as she wanted to collect her documents to help her with the detailed questions. Owyang didn’t wait, and he kept calling her back that same day. At one point her accused her of being “uncooperative’ and that she “put your money where your mouth is.” He added that he had been a witness in her case.

Ms. Antioco was so rattled that she hired an attorney. Sounds like a great idea to me.

Mr. Owyang sent her a letter a few days later, saying that he thought Ms. Antioco had added her mother to the deed to defraud the government and that he also thought she could pay her taxes but “simply chose not to do so.” He asked for all kinds of additional paperwork, but not curiously no new financial information – the very reason the Tax Court sent the matter back to IRS Appeals. 

Her attorney submitted a bundle of information and requested another CDP hearing for April, 2011. He explained to Mr. Owyang that Ms. Antioco’s mother was declining and would (likely) not survive a sale and move from the apartment building. All Ms. Antioco wanted was time – to allow her mom to pass away or to finally get a new loan – after which she would able to pay the balance of the tax. She was willing to pay under a short-term installment plan until then.

Mr. Owyang told the attorney that he would not grant an installment agreement because Ms. Antioco had chosen to transfer the equity in the apartment building by adding her mother to the deed. He could not see another reason for it.

·        Even though he had a letter from the lender stating it wasn’t willing to lend any more money. And to include her mom on the deed if she wanted to refinance.

He refused to consider whether there was any “hardship.”

·        One of the reasons it went back to the IRS to begin with.

He also thought that all the talk about taking care of a 90-something-year-old mom was a “diversionary argument” that he “would not consider.”

·        I am stunned.

Mr. Owyang also contacted the IRS Compliance Division. He said that the government’s interest was in “jeopardy,” and he recommended that the IRS file a manual lien. There were problems with the filing, and Mr. Owyang went out of his way to follow up personally.

In May, 2011 Mr. Owyang filed a supplemental notice of determination, concluding that Ms. Antioco had “fraudulently” transferred the building to her mother. He went all Sherlock Holmes explaining how he had deduced that Ms. Antioco had committed fraud, concealed the transfer, became insolvent because of it and was left without any assets to pay the government. It was his judgement that she could have gotten a loan if she really wanted one, and that Ms. Antioco was a “won’t pay taxpayer” who was using her ailing mother as an “emotional diversion.”

This guy is a few clowns short of a circus.

They are back in Tax Court. The IRS this time sees nothing wrong with Mr. Owyang's behavior. They did however acknowledge that Mr. Owyang never ran the numbers to see if Ms. Antioco was insolvent, and that his determination of fraud was … “flawed.”

But Mr. Owyang had not abused his discretion. No sir!! Not a smidgeon.

The IRS wanted the Court to dismiss the case.

The Court instead heard the case.

The Court went through the steps, noting that the Commissioner can file liens to secure the collection of an assessed tax.  The IRS however must follow procedures, such as notifying the taxpayer, granting a collections appeal if the taxpayer requests one, and so on. The taxpayer had proposed a payment alternative, and the IRS never completed its analysis of her proposed payment plan. The IRS had also failed to consider her complaint of economic hardship.

The IRS did not follow procedure.

The Court then reviewed Mr. Owyang’s behaviors and assertions, refuting each in turn. The Court even pointed out that Ms. Antioco had paid down her tax debt by $88,000 by the time of trial, not exactly the conduct of someone looking to shirk and run. The Court was not even sure what Mr. Owyang’s real reason was for his determination, as his reasons were contradicted by documentation in file, not to mention changing over time.

The Court decided that Mr. Owyang had abused his discretion.

In February, 2013 the Court sent the case back to the IRS again, as the IRS never reviewed whether the $1,000 was a reasonable payment plan.

Back to the IRS. Introduce a new Appeals officer.

Ms. Antioco then filed suit against the IRS for wrongful action – that is, over the behavior of Mr. Owyang. This type of suit is very difficult to win. Ms. Antioco focused her arguments on Mr. Owyang’s abusive behavior.  The District Court determined that this behavior occurred while Mr. Owyang was “reviewing” collection action and not actually “conducting” collection, which barred liability under Section 7433.

OBSERVATION: No, he was “collecting.” What is a lien, if not a collection action?

In June 2013 the IRS finally agreed to an installment payment plan.

In July, 2014 the IRS filed suit to reduce Ms. Antioco’s liability to judgment. Reducing an assessment to judgment gives the IRS the ability to collect long after the 10-year statute of limitations.

Ms. Antioco filed a motion to dismiss.

Her reason for requesting dismissal? The tax Code itself. Code Section 6331(k)(3)(A) bars the IRS from bringing a proceeding in court while an installment agreement is in effect.

The IRS realized it got caught and last month agreed to dismiss.

And that is where we are as of this writing.

For a tax pro, the Jurate Antioco cases have been interesting, as they highlight the importance of following procedural steps when matters get testy with the IRS. From a human perspective, however, this is a study of a government agency run amok.  How often does the IRS get spanked twice by the Tax Court for abuse on the same case?

Ms. Antioco’s mom, by the way, is now 97 years old and suffering from congestive heart failure. Ms. Antioco is herself a senior citizen. May they both yet live for a very long time.