Archive for the ‘IRS’ Tag
It’s Friday April 15 and Taxes Aren’t Due?
Filed under: General | Tags: Abraham Lincoln, April 15, April 18, District of Columbia Compensated Emancipation Act, due date, Emancipation Day, Emancipation Proclamation, IRS, slavery, slaves, tax returns
Leave a comment Originally published in the Cedar Street Times
April 15, 2016
If you were (or still are!) a last minute tax return filer, you may have some pleasant news this year – you have three more days to procrastinate! If you are reading this article on April 15, you might be wondering, “Why is it a normal workday, and my taxes are not due?”
The answer is “Emancipation Day.” No, we are not talking about emancipation from taxation, but emancipation from slavery. On April 16, 1862, President Lincoln signed the District of Columbia Compensated Emancipation Act. This act freed slaves in Washington, D.C., and compensated the prior slave owners for having to give up what was perceived as a financial loss. This was the only instance were prior slave owners were compensated by the federal government.
The importance of the District of Columbia Compensated Emancipation Act is that it was seen as the first major victory that led to the abolition of slavery. There had been attempts in the past to accomplish similar feats, but they had all failed. In fact, when Abraham Lincoln was still a Senator, he tried in 1849 to accomplish this task, but it did not get enough votes to pass the legislature. Even the decade prior to that saw several failed attempts spearheaded by others.
The District of Columbia Compensated Emancipation Act served as a precursor to the much broader Emancipation Proclamation, nine months later, that freed all slaves in Confederate territories. Whereas the District of Columbia Compensated Emancipation Act freed about 3,000 enslaved people, the Emancipation Proclamation freed about three million enslaved people!
The Emancipation Proclamation, although often thought of as abolishing slavery, did not actually do so. It was a wartime power instituted by Lincoln (not voted on by Congress), and it only freed slaves in the Confederate territories that were rebelling. There were still four non-Confederate states in the South where slavery was legal, even after the Emancipation Proclamation. It was not until the 13th Amendment to the Constitution was passed, and then ratified on December 6, 1865, that slavery was officially abolished in the United States.
The District of Columbia Compensated Emancipation Act, although celebrated in various capacities since 1862, did not become an official legal holiday in Washington D.C. until 2005. The first year the tax return filing deadline was changed was for the 2006 tax returns due April 17, 2007. Since the Emancipation Day Celebration fell on a Monday, and the IRS deadline is always the next business day if the 15th falls on a nonbusiness day, the due date was bumped to Tuesday the 17th. That year, only Washington D.C. residents received an extra day, and everybody else still had to file on April 16.
Tax year 2011 was the next conflict, and the first time the whole country received an extra day, and is just like this year where April 15 falls on a Friday. Whereas, the IRS moves their due date to the next business day when April 15 falls on a nonbusiness day, the Emancipation Day celebration moves to the prior business day. Since April 16 was a Saturday in 2011, as it is now, Emancipation Day moves its celebration to Friday April 15, and then the IRS turns around and says, “Okay, today is a holiday, so we move our due date to the next business day,” which results in Monday the 18th! Phew! And fortunately California says, “We will just do whatever the IRS does,” – a rare but appreciated concession in a state that enjoys nonconformity.
Prior articles are republished on my website at www.tlongcpa.com/blog .
Travis H. Long, CPA, Inc. is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. Travis can be reached at 831-333-1041. This article is for educational purposes. Although believed to be accurate in most situations, it does not constitute professional advice or establish a client relationship.
Back to Basics Part XXIX – Form 8822 Change of Address
Filed under: Back to Basics, General | Tags: Change of Address, Form 3533, Form 8822, FTB, IRS
Leave a comment Originally published in the Cedar Street Times
December 11, 2015
If you are like most people, whenever you change addresses you will almost certainly notify the United States Post Office so they can forward any mail that is still being delivered to the old address. Although you may have notified people and businesses prior to and just after your move, you will inevitably have those that are off your mental radar, and do not get notified.
Since people generally only file their taxes once a year, and it is sometimes an experience they want to forget (although never in my office, I am sure!), the IRS and any state taxing authorities often end up in the off-the-mental-radar list!
The fact that the USPS will forward your mail for up to a year after your move does assuage the need to update the taxing authorities since filing a new return with an updated address will also effect the same change. Plus it seems the IRS and FTB (here in California) have an uncanny ability to track you down anyway, if you owe them money!
All of this said, you may not want to risk your private tax information and Social Security number being delivered to the new people in your old house by mistake. Not to mention, you may have action items that require attention within 30 days of the letter date. Mail forwarding can sometimes take a good chunk of that time, or maybe it never makes it to you if accidentally delivered to the old address.
So what are your options? Well, you could call the taxing authorities, but be prepared to wait. These days I tell clients to find a time where they can put the phone on speaker, make some popcorn and watch a movie while they wait.
This is a sidebar discussion – but here is the reason for the long wait times…the IRS is considered a discretionary program in the US budget and it is funded by annual appropriations by Congress. The IRS budget has been cut by about $1.2 billion in total over the course of the past five years (approximately 10 percent) according to the GAO.
You may recall the IRS revealed in 2013 that its nonprofit audit department had been targeting certain political groups. Well, that did not help! This caused an uproar and Congress has been unwilling to increase the IRS budget. In fact it decreased it further since 2013. By examining the disproportionately large declines in taxpayer services according to statistics at the IRS, in relation to their ten percent budget cut, it is speculated that the IRS reaction to Congress has been to focus its internal funding cuts on taxpayer services (think phone support, etc.) in order to gain sympathy in the public eye for more funding. So taxpayers are caught in the middle of political chess.
Whenever I speak with the IRS representatives, I always try to be as courteous and supportive as possible while trying to get the information needed. Although you may be frustrated with such a long wait, it is not the fault of the representatives answering the phone, and they are probably feeling pressure and get tired of talking to upset people all day. Courtesy can go a long way sometimes.
Anyway, back to address changes – the easiest way is to mail a Form 8822 Change of Address to the IRS (FTB Form 3533 for California). The Form 8822 is a simple one-page form which you can download off the internet. You essentially list your name and Social Security number, your old address, and your new address. You sign and date it, and mail it in. California FTB Form 3533 is pretty much the same except they manage to stretch it into two pages in order to cover business entities as well.
If you have questions about other schedules or forms in your tax returns, prior articles in our Back to Basics series on personal tax returns are republished on my website at www.tlongcpa.com/blog .
Travis H. Long, CPA, Inc. is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Back to Basics – Part XVIII – Form 4684 – Casualties and Thefts
Filed under: Back to Basics | Tags: business loss, Casualties and Thefts, CCH, Cedar Street Funding, Form 4684, Form 4797, fraud, Internal Revenue Code, IRS, IRS scam, lottery, Madoff, personal loss, Ponzi, Schedule A, Schedule D, Zubick
Leave a comment July 10, 2015
My colleague next door enjoys kidding me every two weeks when my next installment of Back to Basics comes out! Although there will not be 10,000 parts as he suggests, there could be! CCH, one of the leading publishers on tax research materials has about 75,000 pages in its Standard Federal Tax Reporter – a product which includes the code, regulations, court case cites, commentary, and other related information. So, if I cover it in 35 articles or so, I probably can’t even call it the “basics” – maybe introductory remarks would be more fitting!
Nonetheless, it is designed to be an overview for commonly used Schedules and Forms. It is also interesting to note with today’s connectivity that people all over the country and the world find the articles reposted on my website and I regularly receive calls and e-mails. Earlier this week I received this response, “Just wanted you to know how much I enjoyed your blog. I wish you were in my hometown in Louisiana!” Thanks for the message, Dianne!
This week we will touch on Form 4684 – Casualties and Thefts. If you would like to catch up on our Back to Basics series on personal tax returns, prior articles are republished on my website at www.tlongcpa.com/blog .
Casualty and theft sounds like language stolen from an insurance agent, and like a good insurance agent, Uncle Sam wants to help you too…sometimes. If you have a large personal financial catastrophe resulting from something like a fire, storm, wreck, robbery, embezzlement, etc. you can claim the loss on Form 4684. Hopefully you have insurance, but if not, or to the extent that it is not covered, such as your deductible, you can claim the unreimbursed portion on this form.
The wheels are already turning – “Wow, I have had several car accidents in the past and I had to pay a $500 deductible – you mean I could have claimed that?” The answer is, “Yes.” However, it likely would not have done you any good since the loss of personal use property has to be in excess of 10 percent of your adjusted gross income (AGI) plus $100. That is a relatively big number for most people. If your AGI is $100,000, for example, that would equate to a $10,100 out-of-pocket loss threshold. Everything over that amount would then go to Schedule A as an itemized deduction. But, if you are retired and not actively earning income that threshold could be much smaller.
Q. “What about a stock market crash, where my portfolio drops by 40 percent – can I claim my losses from that as a casualty/theft loss?” A. – If you have not sold anything, then no. When you do sell, that loss gets reported on Schedule D instead along with gains and losses from capital assets.
Q. “I parked my Ferrari at a sports event and my insurance had lapsed. There were so many parking lots, I never could find it. Can I deduct that loss?” A. – Losing or misplacing money or things (stupidity) is not deductible. Hopefully you will have realized it was stolen, filed a police report, and then the answer would be, “Yes,” assuming there was no reasonable expectation of recovery. If you claim the loss on your tax return, and then two years later the police locate it three states away you would then have to claim it as income when recovered.
Q. “I have been using my yacht for twenty-five years and it has finally worn out and has stopped working. Can I claim that as a loss?” A. – Wear and tear and breakage from normal use are not deductible.
The area where I have seen Form 4684 actually come to significant aid for taxpayers over the years has been regarding financial theft. It is often large and there is generally no insurance reimbursement. Caretakers that get access to accounts, telephone or e-mail scams, and Ponzi schemes are all examples of items that find some relief on the 4684. Local residents may recall Jay Zubick’s $16 million financial investment scheme in Monterey in 2007. Cedar Street Funding would be another example, as well as Bernard Madoff’s massive national scam.
Ponzi schemes are considered business or investment losses since the original intent was to earn a profit. As such they are not subject to the 10 percent threshold. The same would be true for other casualty/theft losses related to business or income-producing property. Caretaker financial abuse, telephone and e-mail scams bilking people out of their personal financial resources, however, are theft of personal assets, and the 10 percent threshold would apply.
Anyone who uses e-mail regularly has no doubt received a fake e-mail from a friend that is stranded in another country and needs money ASAP. This type of fraud would certainly go on the Form 4684. The IRS has warned of numerous scams of people posing as IRS collections agents. Sometimes scams are quite elaborate involving long time periods and multiple con-artists all painting a picture of legitimacy. Fake lottery and other winnings are common fodder for scams where they claim money is needed for fees to transport cash across state borders, or to pay taxes. Often the scammers will start with requests for small amounts of money. They are probing for susceptible people. When they find someone who bites, they start working other scams and raising the stakes each time to soak you for more money.
I have had several occasions to work with people that have had hundreds of thousands of dollars stolen through such means. In these situations, the Form 4684 allows the taxpayer to get a large deduction which can even create a net operating loss on the current year tax return. This net operating loss can then be carried back several years to recoup past taxes paid and/or carried forward to the future to reduce taxes then as well.
The Form 4684 is a three-page form. The first page deals with casualties and thefts related to personal property, and helps you calculate the amount of loss after the 10 percent plus $100 deduction to carry to Schedule A as an itemized deduction.
The second page helps you calculate the losses related to business or income-producing property. Depending on the exact type of business or income producing property, the loss could carry over to the Form 4797 and eventually make its way to page one of the Form 1040 and directly offset ordinary income and lower adjusted gross income. Other types still go to Schedule A where they may not be quite as beneficial, but still helpful.
The third page deals specifically with Ponzi type schemes. Note that there are many types of financial investment schemes out there, but to be deductible on the Form 4684 as such, they must fall under the definition the IRS uses. There are also special ways to calculate the losses since Ponzi schemes generally wind up in court for years while the records are sorted out and funds are attempted to be recovered.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Back to Basics – Part XV – Form 2848 Power of Attorney
Filed under: Back to Basics | Tags: competent, conservatorship, CPA, disease or injury, executor, Form 2848, Form 56, FTB, incompetent, IRS, Notice of Fiduciary Relationship, out of the country, Power of Attorney, practice rights, representative, sign your return, trustee
Leave a comment Originally published in the Cedar Street Times
May 29, 2015
Question: My mother is older and it is sometimes difficult for her to sign her tax returns. I have a general power of attorney over her affairs that her estate planning attorney put together for us, so am I authorized to sign her tax returns? Also, we need to file a tax return for my son, who is away at college. Can I sign for him now that he is over 18? Can I call the IRS and talk to them about my mother’s taxes or my son’s taxes if needed?
Answer: In all of these cases, the IRS would first want you to file a Form 2848 – Power of Attorney. This is a limited power of attorney that just governs tax issues. (California also has an equivalent Form 3520, although they will generally accept a copy of the IRS Form 2848 as well.)
The Form 2848 is the standard document the IRS uses to process any individual that is acting as a representative for another person. As a CPA, I use this document as well when a client needs me to get access to their past tax information, balances owed, current status of notices, etc. It is also used if they need me to represent them during a tax audit. As with a general power of attorney, it is only good as long as the person is living. Once someone dies, a Form 56 – Notice Concerning Fiduciary Relationship is filed instead. An authorized executor or trustee, for instance, would file a Form 56, as a fiduciary, and they literally step into the shoes of the deceased individual with all the rights and authority that person had. After filing the Form 56, the fiduciary could then file a 2848 to authorize someone else, such as a CPA to represent them.
It is important to note that you cannot give just anyone full representation rights by filing a Power of Attorney. CPAs, attorneys, EAs, and immediate family members, are the only ones you can appoint for individual representation and provide them with full authority and practice rights before the IRS. (There are certain other classes that have limited practice rights, however.)
The Form 2848 also allows you to designate what authorities and for what tax periods you want to designate to your representative (such as “Income taxes and Gift taxes, Forms 1040 and 709, 2011-2015”). You can also indicate if you want your representative to receive copies of all IRS communication with you, if you want them to be able to add additional representatives without your consent, sign your returns, etc. If you want them to be able to sign your returns, there is additional language required as specified in the instructions to the 2848.
Generally, anytime you file a new Form 2848 it will replace any prior power of attorneys on file with the IRS unless you indicate otherwise and provide copies of the prior power of attorneys you wish to remain in effect. Both, the taxpayer and the representative must sign the power of attorney. Also note that this IRS Form 2848 – Power of Attorney does not replace or affect a general power of attorney in any way for other purposes. It is only used with the taxing authorities.
If the taxpayer is competent, but unable to sign the Form 2848, the IRS will allow an “X” to be made with the signature of two witnesses as well, and an explanation. In the case of someone who is incompetent, hopefully they had a general power of attorney. In these cases, as with the situation of the mother in the question at the beginning of the article, the power of attorney can be filled out with the exception of the taxpayer signing, and then the general power of attorney can be attached to the Form 2848. In the case of incompetent individuals without a general power of attorney in place it can become a sticky situation. A conservatorship is the proper legal vehicle to give one adult authority over another adult’s affairs when that person is incompetent and no other planning is in place, but this can be quite costly and impractical at times. I’ll let you wrestle with the IRS on that one!
If you would like to catch up on our Back to Basics series on personal tax returns, prior articles are republished on my website at www.tlongcpa.com/blog .
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
As an addendum to the print version of this article, I am adding this additional information regarding authorizing someone else to sign your tax returns for you. Generally, you can only authorize someone to sign your returns if: 1) disease or injury prevents you from signing, 2) you are out of the country for at least 60 days prior to the tax return due date, or 3) you request and the IRS grants you permission. In the question of the college student who needs a parent to sign his returns or the mother who has difficulty signing, both would have to meet one of these three requirements as well.
Back to Basics Part XIII – Form 4868 Application for Automatic Extension
Filed under: Back to Basics | Tags: April 15, automatic extension, certified mail, estimated tax payments, Extension, Form 3519, Form 4868, Franchise Tax Board, interest, IRS, late payment penalty, late return penalty, October 15, Social Security Number, underpayment penalty, United States Treasury
Leave a comment Originally published in the Cedar Street Times
April 3, 2015
Two weeks ago we discussed underpayment of estimated tax – a penalty that is assessed prior to the April 15 due date if you did not pay enough tax in ratably throughout the prior year. Essentially these penalties are the equivalent of the taxing authorities wanting to be paid in installments rather than a lump sum check at the end of the year. (You would be equally upset if your employer only paid you once a year as well!) So they effectively charge you interest (currently a three percent rate) if you do not have enough tax paid in quarterly throughout the year. This week we are going to talk about filing an extension and the penalties and interest that you will incur beginning after April 15 if you do not file and/or pay on time. If you would like to catch up on our Back to Basics series on personal tax returns, prior articles are republished on my website at www.tlongcpa.com/blog .
The most important piece of advice is to file your return on time! When I say on time, I mean by April 15, or if you file a valid extension, then by October 15. In years where those dates fall on a weekend or holiday, the return due date is pushed to the next business day. There can be hefty penalties for filing a late return, which we will discuss later. Form 4868 is the federal form used to apply for an extension, and you have to postmark it by April 15 for it to be valid. If you are concerned of a postal mishap, U.S. certified mail is the correct way to document it was mailed on time. California gives you an automatic six month extension if you need it, and nothing is required to be filed to receive the extension. (Note there are exceptions regarding extensions for individuals out of the country on April 15, as well as for military people overseas, which we are not discussing in this article.)
Regardless of whether or not you file an extension, the tax is still due on April 15. So you want to be sure you have enough tax paid in to cover the liability when you finally do file the return. This means, you have to do a rough calculation at least, and then send in a check for the estimated tax with the 4868. It would be prudent to estimate on the high side if there is any doubt. If you end up not owing as much as you paid in, you can get a refund when you file the returns, or you can have it applied to the next year’s tax returns, and it will be credited to you as of the original April 15 due date when the first estimated tax payment was also due for the current year taxes (for those that pay quarterly estimates, this is very helpful).
When putting people on extension that pay quarterly estimated taxes, I will typically have them pay the remaining projected balance due from the prior year, plus the first quarter estimate for the current year and have all of this applied as a payment towards the prior year return. This gives them a cushion in case the estimates are wrong. Then, after the returns are filed, any leftover amount is then applied to the current year return and gets credit as of April 15 and everything is fine. If you project you will owe to California, then you will have to fill out a California Form 3519 Payment for Automatic Extension for Individuals and remit a check with that form.
The mechanics of filing the federal Form 4868 are quite simple. On the left side of the form you fill out your name, address, and social security number. On the right side you list your estimate of your total tax liability, the amount you have paid in so far, and then subtract the two to get the estimated amount you are short or over. If you are short, then you write in how much you are planning to pay with the extension. Hopefully you have enough to pay the balance, but if you do not, just pay what you can, and keep making payments when possible. Write your name, social security number, the year for which the tax is due and “Form 4868” on the check as well.
The California Form 3519 Payment for Automatic Extension is quite simple also. You do not even have to list estimates, but just the amount you are paying in addition to your name, address, etc. You would provide similar information on your check to California as well. Federal checks are made out to the “United States Treasury.” California checks are made out to the “Franchise Tax Board.” The mailing addresses are on the forms and related instructions, which can be downloaded online for free. If you are sending in a check for a married filing joint tax return, it is best to put both taxpayer names and social security numbers on the forms AND on the checks.
Now let’s talk about what penalties and interest you will incur if you do not file on time and/or pay on time.
Late Return Penalty
As I mentioned earlier, the most important piece of advice is to file your return on time! A late tax return with the IRS carries a hefty penalty of five percent of the unpaid tax PER MONTH or portion of a month until you file your tax returns. For those of you who aren’t doing the math in your head, that is the equivalent of an annualized interest rate of 60 percent per year (and you thought credit cards were bad!). Fortunately they cap that penalty after five months of delinquency thus maxing it out at 25 percent. Not to be left out, California conforms to this and charges the same for late returns based on the amount of California tax owed.
Late Payment Penalty
Regardless of whether or not you file an extension, if you do not pay the tax by April 15, the IRS will assess you 0.5 percent PER MONTH on the unpaid tax, capping out after 50 months at 25 percent. If the return is also delinquent (no extension filed), the five percent per month late return penalty includes the 0.5 percent per month late payment penalty for the first five months. After the first five months, then you only pay the additional 0.5 percent late payment penalty. So the maximum federal late return and late payment penalty could be 25 percent late return penalty (4.5 percent plus 0.5 percent for five months) plus another 22.5 percent (0.5 percent per month for the next 45 months for the continuing late payment penalty) equals a total of 47.5 percent. California has a slightly different approach on this and immediately charges five percent of the balance if you are even one day late. In addition they assess 0.5 percent PER MONTH or part of a month for the first 40 months, also capping you at 25 percent. So one day late in California will actually cost you 5.5 percent in late payment penalties.
Interest
In addition to the above penalties, interest is also charged starting on April 16 until the taxing authorities get paid in full. Since you had the use of the money and they did not, they want to be paid for their lost use of the funds. The interest rate varies and is adjusted each quarter for the IRS and twice a year for California. The current interest rate is three percent for both the IRS and California. If you had the money sitting in a bank account, you clearly lost out, however, if you had it invested in the markets, you would have probably come out ahead in the past few years. Whereas, you can sometimes get the taxing authorities to waive penalties if you had reasonable cause, interest is virtually impossible to waive. Without the before mentioned penalties, there are many people that would love a three percent loan!
If you have noticed a common thread for the above interest and penalties, it is that they are all based on the amount of tax you were short starting on April 15. If you had paid in more than enough on April 15, there would be no penalties and interest, even if you did not file an extension. Theoretically, you could file several years late and incur no penalties as long as you eventually give them a return showing all the tax had been paid in on time. I do not recommend this practice, however! Eventually you would receive notices and they would even estimate a tax return for you and assess tax, penalties, and interest. Those are usually not in your favor! Also, you never start the statute of limitations running, so you keep yourself open for audit longer.
Most importantly, like me, have fun when you are preparing these forms. If you find all of this interesting, perhaps you should have become an accountant!
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Confidentiality, Privilege, and Taxes
Filed under: Foreign Reporting, General | Tags: accountant, accountant-client privilege, Attorney, attorney-client privilege, confidentiality, confidentiality privilege, disclosure, evidentiary privilege, IRC 7525, IRS, Kovel letter, privilege, professional standards, tax evasion, tax shelters, third-party
Leave a comment Originally published in the Cedar Street Times
August 22, 2014
Pretty much anybody that watches crime shows on television knows about attorney-client privilege. This is how murderers can admit the details of their crimes to their attorneys and the communication is protected from discovery by the courts.
But what about tax related communications with your accountant? Unfortunately, there are not a lot of television shows featuring taxpayers admitting the gory details to their accountants on how they swindled the IRS. That said, prime time dramas are probably not the best place to learn about the legal and accounting world anyway!
Misinformed people will sometimes think they can sit down with their CPA and contrive ways to scheme the IRS, or that they can openly discuss all the income they took in under the table and did not report. Communications with a CPA are confidential due to professional standards, but they usually do not qualify for evidentiary confidentiality privilege in a court of law. This means the CPA should not disclose the information to other parties without your permission, but if questioned in a court of law, the information would have to be disclosed. The other problem a CPA would have knowing the skeletons in your closet, is that a CPA (or any preparer) cannot knowingly file a false return.
So you may think you should hire a tax attorney to prepare your returns in order to get privilege. That actually won’t work either. One of the main tenets of attorney-client privilege is that if you do not treat the information as confidential and you disclose it to a third-party other than your attorney and his or her associates, then you have lost your privilege. Since tax returns are inherently a third-party communication for disclosure to the taxing authorities, it has been ruled that tax preparation services are not afforded attorney-client privilege. In fact, there have been interesting cases where attorneys have lost their attorney-client privilege because they included estate tax preparation as part of their engagement with the client.
Tax advice, however, is a different story. For engagements that strictly involve tax advice, and not tax preparation, attorney-client and accountant-client privilege is extended. Accountant-client privilege has more limitations than attorney-client privilege as defined in Internal Revenue Code section 7525. Most notably is that accountant-client privilege does not extend to criminal matters before the IRS or Federal courts, nor does it apply to tax shelters designed for tax evasion.
As previously discussed, the disclosure of information to a third-party generally waives the attorney-client privilege. An exception to this rule is if the attorney needs the assistance of another professional (such as an accountant) in order to render legal advice to the client. A Kovel letter (based on the 1961 case) can be drafted and signed by the accountant and attorney which essentially extends the attorney-client privilege to the accountant. The accountant is then, in essence, working for the attorney and not the ultimate client. This does provide additional protections, but it still would not provide protections for tax return preparation.
Prior articles are republished on my website at www.tlongcpa.com/blog.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
What Are Your Chances of Being Audited? Part III – Red Flags
Filed under: Audit | Tags: 1099 matching, American Opportunity Credit, art, audit, audit selection, automobile mileage, child tax credit, earned income tax credit, foreign income, Health Care Tax Credit, hobby, home office deduction, horse racing, IRS, meals and entertainment, music, painting, performing, photography, red flags, refundable tax credits, rental losses, travel expenses, Treasury Department, video
Leave a comment Originally published in the Cedar Street Times
June 13, 2014
Four weeks ago I discussed some of the statistics regarding your chances of being audited by the IRS, and two weeks ago I discussed audit selection methodology. A few of the high points from the articles were: 1) on the average, audit rates for individuals are generally less than one percent each year, and increase as you make more money, 2) about 75 percent of audits are actually mail correspondence audits focused on a narrow request of information for specific items on your return rather than a full-blown in-person, field audit, 3) the IRS does not release its exact methods of selecting audits, and many people have incorrect notions about this process, 4) the IRS does tell us audit selection is aided by a computer scoring system to help find returns that will likely yield a change; it uses computer matching to ensure information reported on 1099s by third parties matches what you report; it uses publicly available information; and it uses statistical random sampling. The rest of this article will be devoted to “red flags.”
So what are these “red flags” everyone talks about? One fairly obvious assumption we can make from the audit statistics released by the IRS is that they follow the money! You are three times more likely to be audited if you make over $200,000 a year and over eleven times more likely to be audited if you make over $1,000,000 a year. C-corporations face a similar dynamic of increasing audit rates on larger corporations – for instance, one out of every three corporations with assets over $250 million are audited.
Not reporting all your income even when it is reported to the IRS should not be a surprising red flag, but it happens frequently. I see this most commonly with stock sales reported on a 1099-B when people prepare their own returns – they either forget, or do not understand the form. I also see this with contract work where a 1099-Misc is issued and the individual forgets to report it.
There are a number of issues related to small businesses that raise eyebrows. Keep this in mind – anytime there is an easy path for someone to pass-off personal expenses as business expenses, you are going to have a higher level of scrutiny. For instance – relatively high amounts of: business automobile mileage (or claiming 100% business use on your vehicle – very rare in reality), home office deductions, meals and entertainment, or travel expenses. All of these can be easily abused, so they are highly scrutinized. If you are beyond the norms, you are a clearer target.
Here is another golden nugget – if your job is one that millions of people do for fun as a hobby (although perhaps not nearly as well!), then you have a higher level of audit risk, particularly if you are losing money. Think of the arts – photography, video, music, drawing, painting, performing, etc. Also, think of horse racing and breeding for the wealthier set.
That brings us to another “red flag,” businesses that lose money every year. The IRS is trying to determine which of these three describes your nonprofitable business situation: 1) Are you really trying to make this successful and genuinely feel it will be profitable overall? 2) Are you trying to deduct your personal expenses, your hobby, or keep up appearances? or 3) Are you just plain nuts? By allowing people to continue businesses circumscribed in two and three, the rest of the country is having to foot the bill for the lost tax revenues. This is because the “losses” generated are offsetting the person’s other income that would otherwise be taxable. With no realistic future expectation to recuperate the losses, the IRS is ready to pounce.
Claiming rental losses in California is fairly common due to the high cost of our real estate, but claiming a real estate professional designation in combination with these losses is an area of greater concern. If your main occupation is in the real estate related field, and you work at least 750 hours in this trade, you are allowed to deduct all of your rental losses in the year they are incurred. Everyone else get to deduct $25,000 at most, and are rapidly phased out to no deductions for the losses based on income levels. The losses get suspended until the property is disposed of or until there is passive gain to offset. There are a lot of challenges when it appears the person has substantial earned income from a trade or business unrelated to real estate or if there is very little income from real estate related trades.
Refundable tax credits such as the Earned Income Tax Credit, Child Tax Credit, American Opportunity Credit (for education), and Health Care Tax Credit can also be a point of concern, particularly when the total refund on your return is higher than the tax paid in to the system! The IRS receives thousand of fraudulent returns each year that use refundable credits to steal money from the government.
Although harder to catch, unreported foreign income is an area worth mentioning due to the extremely high penalties by the Treasury Department for failure to report foreign accounts, and it has been a hot-button issue that has raised billions in revenues.
The above is not an exhaustive list, but it does describe many commonly seen areas of concern.
Prior articles are republished on my website at www.tlongcpa.com/blog.
IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
What are Your Chances of Being Audited? Part II – Audit Selection
Filed under: Audit | Tags: 1098, 1099, audit, audit selection, audit selection methodology, computer matching, contact third parties, DIF, Discriminant Inventory Function System, internet, IRS, National Research Program, newspapers, NRP, public information, random, Taxpayer Compliance Measurement Program, TCMP, W-2
Comments (1) Originally published in the Cedar Street Times
May 30, 2014
Two weeks ago I discussed some of the statistics regarding your chances of being audited by the IRS. A few of the high points from that article were: 1) on the average, audit rates for individuals are generally less than one percent each year, although audit rates jump to over three percent on people making over $200,000 a year, 2) about 75 percent of audits are actually mail correspondence audits focused on a narrow request of information for specific items on your return rather than a full-blown in-person, field audit, 3) partnership, LLC, and s-corporations have a less than half of one percent chance of being audited, while small c-corporations with less than $10 million in assets have an audit rate just under one percent, 4) larger c-corporations have increasingly higher chances of being audited with a roughly one in three chance for corporations with over $250 million in assets. If you would like to read the full article, you can read it on my website at http://www.tlongcpa.com/blog. The rest of this article will be devoted to audit selection and in two weeks we will discuss “red flags.”
Regarding audit selection, let me start by saying that no matter what you read or hear, nobody knows the exact methodology the IRS uses to select returns for audit as it is not public information. All we really know is the broad overview the IRS tells us about its methodology and the limited statistical information the IRS releases about audits; the rest is conjecture based on the type of returns that we as tax practitioners see being audited. Of course that can be warped by our own experiences. That said, when you have been in the field long enough and have read about or talked to others about their experiences, you do get a good idea of the common issues for the types of clients with which you work. When a client comes in and says, “I heard that if you report over ‘x amount’ of this, it is a red flag,” or “I am not going to file until ‘this date’ because you are less likely to be audited,” I know they have latched onto some misguided information.
So what does the IRS say about their audit selection tools and methods? First, they tell us there is a computer scoring system called “Discriminant Inventory Function System” (DIF). This system looks at your return and compares your return to similar returns to come up with a score for your return; the higher your score, the more likely an audit will yield a tax change.
Secondly, they use computers to match information reported on your return with information reported by third parties such as on Forms W-2, 1099, 1098, and the like. Automatic notices can be generated as a result of mismatched items.
Third, they admit to using a variety of other tactics and resources such as the internet, newspapers, and other public information, or even people who may file a complaint or “squeal” on you. They say they will investigate these sources for reliability before using it for an examination.
They also have the right to contact third parties about you, such as neighbors, co-workers, bankers, etc. Generally they have to inform you if they contact someone else unless they feel it would jeopardize their ability to collect the tax or that you might retaliate against the individual.
Although I have not seen this written as a tactic employed, I am aware of a situation where the IRS was selecting returns because they were prepared by a particular tax professional in a particular industry (and no, it wasn’t me!).
In addition there have been various programs over the years such as the Taxpayer Compliance Measurement Program and the more current National Research Program which introduces a random statistical selection methodology. One of the uses for the information gathered in this program is to fine-tune the DIF computer scoring system. It also means that ANYONE can be audited.
In two weeks we will discuss “red flags.”
Prior articles are republished on my website at www.tlongcpa.com/blog.
IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Relief if You Paid Tax on a Short-Sale 2011-2013
Filed under: Foreclosures and Short-Sales, Residence Sale | Tags: 580(b), 580e, anti-deficiency, Barbara Boxer, California, cancellation of debt, Chief Counsel, debt, exclusion, Foreclosure, Franchise Tax Board, FTB, Internal Revenue Service, IRS, nonrecourse, principal residence, qualified debt, qualified principal residence indebtedness, recourse, refund, section 121, Senate bill 458, Senate bill 931, Short-Sale
Leave a comment Originally published in the Cedar Street Times
February 21, 2014
Hopefully we are nearing the end of the short-sale and foreclosure saga that has continued since 2008. My litmus test based on tax return filings is indicating that things are much closer to being back on track. Prior to 2008, it was all about 1031 exchanges. Those turned off like a faucet when the markets crashed, and then short-sales and foreclosures took center stage. I have seen those tapering off over the last couple years, and I am starting to see 1031 exchanges again. The cycles continue!
But before we leave short-sales and foreclosures in the dust, there is a possible silver-lining handed down by the IRS and FTB in the last few months. Taxpayers that generated income tax as a result of a short-sale in California on their principal residence, retroactive to January 1, 2011, may be entitled to a refund.
California Code of Civil Procedure Section 580b has been dubbed California’s “anti-deficiency laws” for years. It had a positive effect on homeowners because it basically said if you had never refinanced your home and you lost it in a short-sale or foreclosure that you could not be pursued for the balance you still owed (the deficiency), and the remaining debt would not be taxable income to you because the debt was considered nonrecourse debt.
This, however, left many people out in the cold that had refinanced. Suddenly, it was a different ball game if you had done a refinance (and who didn’t during the run of good years up through 2007!?), and the debts were then allowed by lenders to be treated as recourse debts and they could pursue your personal assets. Alternatively they could cancel the debt if it was not worth pursuing, leaving you with taxable income for the amount cancelled.
Congress stepped in (and California generally conformed) during the housing crisis and enacted favorable legislation which said you could exclude cancellation of debt income generated by your personal residence. The catch, however, was that the debt had to be “qualified debt.” In short, if you lived off the equity in your house by refinancing to pull cash out and did anything with it other than improve the property, then you were not eligible for the exclusion on that portion and would still have to pay tax.
Then, a few years ago, California passed Senate bills 931 and 458 which were codified into law as California Code of Civil Procedure Section 580e as of January 1, 2011. This resulted because some unscrupulous lenders were entering into short-sale agreements to allow sellers to go through with the sale of their property for less than the amount owed to the bank, but then still pursuing the seller for the remaining debt after the fact (often a big surprise to the seller). California’s enactment of this law was good news for homeowners because it basically said, even if you had refinanced, but had entered into a short-sale agreement with a lender, then you could not be pursued for the remaining balance owed and that lenders would basically have to cancel the debt. Of course, cancelling the debt could mean tax was owed, but that was still better than being pursued for the remaining balance!
Finally, in November 2013 a letter from the Office of the Chief Counsel at the IRS written to Senator Barbara Boxer, due to an inquiry from her, stated that the IRS would treat any debt pursuant to California’s 580e as nonrecourse debt! The Chief Counsel’s office at California’s Franchise Tax Board followed up with their own letter a month later saying they will conform to the IRS interpretation.
This means that anyone who filed a tax return in 2011 or 2012, or even this year, and reported cancellation of debt income related to the short sale of a principal residence, should consider filing an amendment for a possible refund. It is still possible to have income tax, primarily if you did not live in the house for two of the last five years prior to your short-sale. The reason is that when a home is disposed of with nonrecourse debt, the total amount of debt outstanding at the time of the short-sale becomes the sales price of the home. You then subtract your cost basis, and the difference is your gain on sale. However, if you lived in the home for two of the last five years, then you get a $250,000 gain exclusion for filing as a single status, and $500,000 gain exclusion if married filing jointly, pursuant to IRC Section 121.
You need to act on this during the next year if your short sale was in 2011 as the statute of limitations expires three years after filing.
Prior articles are republished on my website at www.tlongcpa.com/blog.
IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Health Insurance Tax Credit for 2014
Filed under: Healthcare Costs | Tags: advance payment, Covered California, dependents, health insurance, health insurance exchange, household income, IRS, Medicaid, MediCal, Medicare, poverty line, tax credit, threshold
Leave a comment Originally published in the Cedar Street Times
December 13, 2013
You have probably heard that there is a possible tax credit for the new health insurance requirement that takes effect January 1, 2014. If you have health insurance available through your employer that does not exceed 9.5% of your household income (for your single coverage alone, exclusive of your family), or you have certain government plans like Medicare or Medicaid, you are not eligible for the credit. For others that can go through Covered California, our state health insurance exchange, your income will determine your eligibility. It is important to know the income thresholds for your family size because the poorly designed structure of the credit could mean the complete loss of the credit if you are even $1 over the threshold.
For instance, a family of four which includes a mother and father age 45 and two children in high school with total household income of $94,199 (using 2013 figures) in Pacific Grove, California, would qualify for a $629 per month tax credit, or $7,548 for the year. If they made $1 more of income, $94,200, they would receive absolutely nothing. This being the case, they would be better off taking an extra three or four weeks of unpaid time off from work, just to be able to qualify for the credit!
The credit is available to households making as much as four times the federal poverty line. If you make under the poverty line you are not eligible for the credit, but eligible for Medicaid (MediCal in California) instead. If you make between 100% and 400% of the federal poverty line, the credit is determined on a nice sliding scale based on your income, age, zip code, and family size. The problem is that there is a cliff once you get over 400% that makes you completely ineligible for the credit. The 2014 poverty line figures are not yet released, but can be found at http://aspe.hhs.gov/poverty/figures-fed-reg.cfm when available.
Using 2013 information, the critical thresholds at 400% are as follows based on the number of members in the family: one family member – $45,960, two family members – $62,040, three family members – $78,120, four family members – $94,200, five family members – $110,280, and adding $16,080 for each additional family member. California residents can visit https://www.coveredca.com/shopandcompare and enter in their family size, age of adults, zip code, and expected household income to determine the tax credit and premium options for the state healthcare exchange very easily.
The family size includes you, your spouse, and your dependents (whether or not actually related). Household income includes the income for you and your spouse (if married, you must file a joint return to get the credit), as well as any income of dependents IF those dependents had a filing requirement ($6,200 of earned income or $1,000 of unearned income in 2014). Although there is not a lot of clear guidance by the IRS at this point, it appears if they are under the filing requirement, none of their income is counted (this is another cliff!). This means you would need to make sure your dependents do not make over these amounts if it would push you over the threshold. More specifically the income included for you and your dependents is your adjusted gross income modified to include any tax-exempt income, nontaxed Social Security benefits, and any foreign earned income excluded.
Based on your 2012 income, you may be eligible to receive advance payments on your credit. However, this will be reconciled on your 2014 tax return, and you will either have additional funds paid to you, or worse, have to pay back (subject to a cap) some or even all of the credit if it turns out you were ineligible based on your actual income in 2014.
Prior articles are republished on my website at www.tlongcpa.com/blog.
IRS Circular 230 Notice: To the extent this article concerns tax matters, it is not intended to be used and cannot be used by a taxpayer for the purpose of avoiding penalties that may be imposed by law.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
Travis H. Long, CPA, Inc. Blog 