IRS To Review Partial Pay Installment Agreements

I am looking at a TIGTA  (Treasury Inspector General for Tax Administration) report on partial pay installment agreements. Let’s talk about what these are, and how the report may matter to you.

If you pay the IRS over time, you are in an “installment agreement.” It may be that you do not have money to pay your 2012 tax in full, but you can pay it over 12 months. This is a vanilla payment plan, and you are paying all the tax – plus interest and penalties.

If you finances are truly pinched, the IRS may agree to a partial payment plan. The “partial” means that you will not – assuming the payments remain constant  – fully pay off your tax, interest and penalties. Say that you have 7 years left on a tax liability of $42,000. The most you can pay is $300 per month. Perhaps there has been a business reversal, a divorce, or a medical misfortune. The most you will repay at $300 per month is $25,200, which is far short of $42,000. The IRS knows going in that you will not be able to pay the liability in full.

How do you get the IRS to agree to this? You have to submit detailed personal financial information. Think bank statements, copies of W-2s, copies of household bills. Then there are tables, which the IRS will use. If your expenses exceed table amounts, the IRS will either disallow the excess or ask you for more detail. A common example is pet expenses. Little Bow-Wow may be your pride and joy, but good luck persuading the IRS for an additional allowance to feed Bow-Wow or take him/her to the veterinarian.

There is one more thing: the IRS is supposed to review your financial information every two years. There is a computerized first sweep against your tax information. If your financial situation shows improvement, then an IRS employee will physically review your file. If things have actually improved, you can expect a love letter asking for more.

TIGTA found that the IRS is not always performing these two-year reviews. It also found cases of insufficient financial information as well as missing manager sign-offs. The IRS agreed with TIGTA and stated its intention to beef-up its two-year review process, as well as its documentation and sign-off policies.

TIGTA also talked about the IRS “uncollectible” status, and recommended that the IRS try to bring some of those people into partial pay status. Also known as “CNC”, this status is supposedly reserved for the most broke of the broke. These are  individuals who cannot pay anything, so the IRS suspends all collection activity for a while. TIGTA recommended that the IRS review its CNC caseload to see if any of the CNC people could be transferred to partial pay. Interestingly, this was the one recommendation with which the IRS disagreed. The IRS felt that it had tried a comparable program, which failed to yield any significant results.

Can we expect more timely IRS reviews of partial-pays and CNC’s? I would normally say yes, but remember that Congress may yet decrease funding for the IRS pursuant to its 501(c)(4), Congressional obstruction and Fifth Amendment scandals. Consider also that the IRS will be hip-deep in ObamaCare starting next year - another explosive political issue. There may just be too many fires for the IRS to put out.

Mormon Tithing and Caesar

George Thompson (GT) lives in New Jersey. He is the president of Compliance Innovations, Inc, which is owned by a trust. He and his wife are the trustees. He is a lifelong member of the Church of Jesus Christ of Latter-Day Saints (Church). He is a shift coordinator and a stake scouting coordinator with the Church. The Church does not pay him, however. He is married and has five children, two of whom are or were in college.

GT got himself into tax problems. He owed payroll trust fund penalties of over $150,000 for payroll periods in 2004, 2005 and 2007.

NOTE: We have spoken about these penalties before and referred to them as the “big boy” penalties. These penalties are for not submitting payroll tax withholdings and are some of the harshest penalties in the IRS arsenal.

He also owed regular “income tax” penalties for taxable years 1992, 1995, 1996, 1999, and 2000. These added up to over $730,000.

$150,000 plus $730,000 equals a lot of money. The IRS wanted it. I think you can see the problem.

The IRS begins its offense by sending a Final Notice of Intent to Levy, following up with an off-hand Notice of Federal Tax Lien Filing.  GT called time-out by filing a request for a Collection Due Process Hearing.

Let’s take a moment and explain what happened here. More than 25 years ago, Congress passed what has become known as the “Taxpayer Bill of Rights.” The intent was to introduce some formality to IRS Collections efforts, which too often operated as a Government Agency Gone Wild. GT applied the brake by requesting a CDP hearing. IRS Appeals would now step-in and look at how GT and Collections were behaving.

Before Appeals stepped-in, GT offered a “partial payment” installment agreement. You can guess that “partial payment” means that he is not paying off his tax in full. Collections requested a financial statement – a Form 433-A – providing GT’s income, expenses, assets and liabilities. The IRS wanted to see how much GT could pay.  

GT appeared to be doing well, listing monthly income of over $27 thousand with expenses of $24 thousand. He therefore offered to pay the IRS $3 thousand per month.

Seems fair, right?

The IRS looked at the same numbers and determined that he could pay over $8 thousand per month.

What? How could that be?

Trust me, it is easy – and common. The numbers are just magnified in this case.

When you get into this level of financial detail, the IRS classifies your expenses into two categories:

·        Necessary expenses

·        Conditional expenses

The IRS will generally disallow conditional expenses in a partial pay offer. GT had included approximately $5 thousand per month for Church tithing and college expenses. The IRS considered both to be conditional – and disallowed them. Bam! He could pay $5 thousand more per month.

Off go GT and the IRS to Tax Court.

GT leads off with Malachi 3:8-10:

Will a mere mortal rob God? Yet you rob me.

 But you ask, ‘How are we robbing you?’

In tithes and offering. You are under a curse – your whole nation – because you are robbing me. Bring the whole tithe into the storehouse, that there may be food in my house.”

The IRS fires back with Matthew 22:21:

Render unto Caesar the things that are Caesar’s, and to God the things that are God’s.”

The Court steps between the two with:

While we may be incapable of determining what belongs to God, we believe that we can, and must, decide what is Caesar’s.”

GT presented three different arguments to the Court:

(1) Given his position in the Church, tithing is required by the Internal Revenue Manual to be treated as a necessary expense.

(2) Classifying his tithing as a conditional expense is a violation of his rights under the Free Exercise Clause of the First Amendment.

(3) Classifying his tithing as a conditional expense is a violation of the Religious Freedom Restoration Act.

The Court dives into the first argument. It observes that the necessary expense test has two prongs: the expense must be for

·        The taxpayer’s health and welfare, or

·        The taxpayer’s production of income

For example, the Internal Revenue Manual allows a minister’s tithing as an allowable expense – if it is a condition of employment.

GT trots out a letter from his bishop that GT would have to resign his positions within the Church if he did not tithe. GT has a problem though, as the Church did not pay him. This would appear to present an obstacle. GT, undeterred, argues that the term “employment” in the Internal Revenue Manual is not limited to compensated employment and can include uncompensated employment.

Huh?

The Court observes that it cannot find any case specifically deciding whether the term “employment” as used in the Internal Revenue Manual is limited to compensated employment or can include uncompensated employment.

What? Can it be ...?

The Court reasons that there is a difference between a minister who is required to tithe in order to keep his/her job (and paycheck) and GT’s situation. It decides that the term “employment” must mean compensated employment.

GT argues that being active in the Church contributes to his health and welfare. The Court reflects on the interaction of religious observance and taxation, but does not agree that holding GT to his tax obligations compromises his health and welfare – or, at least, not any more than it compromises the rest of us.

GT next argues that not being able to tithe results in his being booted from Church office, thereby infringing his free exercise of religion.

The Court observes:

...petitioner overlooks the fact that it is his Church who is requiring him to resign his positions if he does not tithe. The settlement officer did not require petitioner to resign ...”

 And here is my favorite quote from the Court:

 “Petitioner’s claimed exemptions stems from the contention that an incrementally larger tax burden interferes with their religious activities. This argument knows no limitation.”

OBSERVATION: We know about Congress, taxes and “no limitation,” don’t we?

Let’s fast forward: GT loses his case. The Court is simply not going to let him treat his tithing and college expenses as a necessary expense when determining his partial payment installment offer.

My thoughts?  There are rules and guidelines when negotiating payment plans with the IRS. The more you want them to budge, the stricter the rules. The IRS did not budge an inch.  

I believe GT lost his case before he even went to Court. Why? Consider this quote from the Court:

Petitioner has a long history of not paying his taxes. As of the date of trial petitioner still had not paid his income tax liabilities for the taxable years 1992, 1995, 1996, 1999, and 2000.”

The Court was looking at GT as a deadbeat.

Here is the Court again:

Additionally, respondent has assessed trust fund recovery penalties under section 6672 against petitioner for seven different tax periods.”

Looking at? Nah. The Court had concluded that GT was a deadbeat.  

IRS Modifies Streamlined Installment Payment Program

The IRS issued a memorandum on January 20, 2012 liberalizing streamlined installment agreements. I am happy with this change.

As a refresher, the advantage of the “streamlined” is that one does not have to provide financial information to the IRS. If you have gone through this effort, you may remember IRS Form 433 – the financial information form. This is where you provide financial detail such as monthly deposits and expenses. You will also attach documentation, including copies of bank statements as well as copies of your mortgage or rent advice and certain other expenses. 

The IRS has standards for broad household expenses, such as mortgage and utilities, clothing and personal effects, medical expenses and vehicle payment and operating expenses. The IRS is inclined to use their numbers, although they will allow you to document higher or additional expenses. You then have to persuade them that your numbers are better than theirs and do not reflect a “lavish” lifestyle or incorporate”excessive” expenses. To give you an idea, the IRS does not allow for payments on your credit cards. I am not sure if they consider credit card payments to be “lavish” or “excessive.”

The “streamlined” allows you to fast-forward through this.

The liberalized streamlined rules apply only to an individual taxpayer. They do not apply to corporations and other types of businesses. You can now enter streamlined if your assessed balance (taxes, interest and penalties) is less than $50,000, an increase from the previous $25,000. In addition, you now have 72 months to pay, an increase of one year from the previous 60 months.

The IRS does charge a small fee (either $104 or $52, depending on whether you permit direct deposit) for the payment plan. Any streamlined over $25,000 must be on direct deposit.

To clarify, you do not have to enter streamlined, even if your assessed balance is less than $50,000. You can go the normal route, provide information and pursue a more favorable payment plan.  You would do that if you are pursuing a partial pay, for example. You would certainly have to go that route if you are pressing for an offer in compromise. For many people, however, the increase from $25,000 to $50,000 and an additional year to pay may make all the difference.

Why would someone hesitate to provide a 433? For one, it can be a pain to assemble and complete. Also, you have to disclose your bank accounts, including bank account numbers, on the 433. Some people believe this makes it easier for the IRS to levy your bank account. Whether correct or not, you have provided the IRS a roadmap to your finances.