The tax community is currently embroiled in a heated debate over proposed IRS guidelines concerning timing provisions, the broad scope of individuals eligible to approve penalties and exemptions related to automated penalty calculations.
At the heart of the controversy lies Section 6751(b), which mandates that the immediate supervisor of a revenue agent must personally provide
A hearing is scheduled for September 11, 2023 for interested persons and organizations to provide testimony on proposed regulations on the timing and approval process for penalties. Section 6751(b) provides that:
No penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination or such higher level official as the Secretary may designate.
The timing of when the approval is required by Section 6751(b) has been the subject of significant litigation. The Second Circuit in Chai v. Commissioner concluded that Congress enacted section 6751(b) to “prevent IRS agents from threatening unjustified penalties to encourage taxpayers to settle.” This has caused a lot of litigation in both the Tax Court and U.S. District Courts such that there are currently two different standards on timing of when such supervisory approval is required. If supervisory approval is to meet the goal of not being used as an unfair “bargaining chip” it must be required before such unwanted behavior can occur. Many groups have submitted comments asking for supervisory approval to be done earlier in the examination process than the proposed regulations require and that approval be done by a direct supervisor and not just anyone with penalty approval rights within the IRS.
The Foreign Account Tax Compliance Act (FATCA) has resulted in a massive influx of financial information to the IRS over the past 13 years, but the extent of this data remains unknown. Despite expectations of significant revenue, FATCA has not met its financial goals, and the IRS is grappling with the challenge of effectively utilizing the data it has received from partner jurisdictions to enforce tax compliance. Tax Notes covered the topic in an article on August 23, 2023. Gray Reed Partner Joshua Smeltzer was one of the experts interviewed. Board Certified in Tax Law by the Texas Board of Legal Specialization, Joshua uses his experience as a former litigator for the U.S. Department of Justice to defend clients in tax audits, tax appeals, and litigation in Federal District Court, U.S. Tax Court, the U.S. Court of Federal Claims, and tax issues in U.S. Bankruptcy Court.
Excerpt:
Some of the funding will be used to help narrow the field of taxpayers potentially selected for audit, as the agency has been given a mandate to go after wealthy taxpayers, said Joshua D. Smeltzer of Gray Reed. “It will be difficult to target improvements in enforcement directly to FATCA because . . . dissecting enforcement increases on a granular level is just too hard,” Smeltzer said. However, because many more taxpayers in middle- and high-income brackets have worldwide finances, “the efforts by the IRS for FATCA enforcement will increase as well,” he said.
For some time, promoters have shopped around an arrangement known as a “section 643(b) trust,” known alternatively as a “non-grantor, irrevocable, complex, discretionary, spendthrift trust.” On August 9, 2023, IRS Chief Counsel issued a Memorandum that shoots down many of the contentions raised by the promoters relating to the tax benefits of these arrangements. The full Memorandum can be found here. Taxpayers who have entered into these types of arrangements should take careful note of the IRS Chief Counsel Memorandum and should discuss its implications with a tax professional.
Deadlines are important, particularly in federal tax law. Many taxpayers are aware, for example, of the significant penalties that the IRS may impose upon them for failure to timely file an income tax return or timely pay all taxes owed. But fewer taxpayers have an understanding or appreciation for the deadline rules associated with filing a timely petition with the United States Tax Court.
Many people end up owing the IRS for many reasons and there are various options to resolve your tax debt. Some of the options include an offer in compromise, installment agreement, or currently non-collectible status.
An offer is when a taxpayer and the Internal Revenue Service settle a taxpayer’s tax liabilities for less than the full amount owed.
There is a general misconception about what the IRS can and cannot do. Owing money to the IRS is not like owing any other creditor. The IRS is one of only a few creditors who can seize and sell your home even though state law may prohibit other creditors from doing the same.
Dealing with the IRS can be confusing, time-consuming and risky for someone who is not familiar with IRS procedures. Most taxpayers are not very successful in handling their own affairs with the IRS. The primary reason is the procedures of the IRS are extremely complicated, and most taxpayers do not understand how to protect themselves. In addition, some taxpayers become too emotionally involved which reduces their effectiveness in dealing with the IRS. However, no taxpayer should be afraid to CHALLENGE THE IRS. Although most taxpayers have a great fear of the IRS, they know little about how it works and the IRS benefits from this ignorance.
Once a taxpayer overpays a tax, it is necessary to file a claim for refund before any action can be undertaken to seek a refund of such tax from the government. The purpose of the claim for refund is to place the IRS on notice of an alleged overpayment. A taxpayer cannot require the IRS to make a credit or refund without filing the claim. In addition, a claim for refund is a prerequisite for suing in the U.S. District Court or the U.S. Court of Federal Claims. It also protects the overpayment of taxes if the statute of limitations expires. Claims for refund take many forms, but most typically are Forms 1040X and 1120X, amended returns for individual and corporate income taxes. Refund of other taxes requires regular forms which should be marked “amended” and show an overpayment. The courts have recognized many forms of claims for refund, including informal letters from taxpayers to the IRS. Form 843 should be used when filing claims for refunds for any taxes other than income taxes.
The preparing and filing of a claim for refund should be handled with care. Only one taxable period and one type of tax should be set forth on any claim. The claim may cover several different issues for the same taxable period and type of tax. The claim must be in writing under the penalties of perjury, and each and every ground upon which the taxpayer relies must be set forth in detail, plus sufficient facts to place the IRS on notice as to the taxpayer’s claim. The claim should demand the dollar amount sought as a refund, plus any other amounts which are legally refundable – including interest. In addition, the claim must be signed by the person who signed the return or, if a corporate return, by an officer of the corporation. To file a claim for refund there must have been an overpayment of tax, which could include:
While dealing with the IRS generally involves submitting documents or legal authority to support a client’s position, in most cases the element of negotiating is present. Negotiating becomes particularly important in dealing with the IRS where documentation may not exist, or the law is in the gray area. Most practitioners will find that when dealing with the Examination Division, Appeals Office, and Collection Division, negotiating skills and techniques are helpful in resolving issues in favor of the client.
Almost everything is negotiable–even when dealing with the IRS. Negotiating face to face with someone is generally more effective than negotiating over the telephone. Accordingly, it is good policy to always arrange a meeting with the representative of the IRS.
In all levels of negotiations there is no substitute for preparation. This includes knowing the facts of your case, the Internal Revenue Code, the Regulations, Internal Revenue Rulings and Procedures, the Internal Revenue Manual, Circular 230 and other ethical requirements. Also, you should have a network of other professionals with whom you can discuss your case.
The following are general negotiating tips which, if followed, should give you a greater chance of success in dealing with the IRS:
In 2013, the IRS revealed that it had selected “social welfare” groups (like the Tea Party) applying for tax-exempt status for closer scrutiny. That investigation is still ongoing and it has given the IRS a black eye.
The Tea Party is a 501(c)(4) organization – not your traditional 501(c)(3) which must be “organized and operated