From my experience, the IRS does make a strong effort to notify taxpayers when issues exist with their tax account. Most of the IRS notices are standardized forms that can range from you having unreported income to having a refund on your tax return that is different than what your tax return states. The IRS is very good about using the mail to notify taxpayers, so do not be fooled if a person calls you on the phone and acts like they are from the IRS. This is likley a person just trying to impersonate the IRS to steal your money. However, if you receive such a call, remain polite but do not give out any personal information. Since the IRS uses mail and a primary method to reach taxpayers, it is important to keep your address with them current.

a1-300x300Your response to the IRS issue contained in the notice needs to be tailored to the issues involved. Often, I find that you have to clear and concise when responding to IRS notices to make any progress in resolving the issue. If the notice relates to an unfiled tax return, the IRS notice will ask for a copy of the tax return filed, or why it was not filed (this could be because you had to  little income to cause a filing requirement). If you have many years of unfiled tax returns, its a good idea to hire a tax attorney to help file the tax returns and reduce the tax penalties.

If you ignore this request related to unfiled tax returns, the IRS will prepare a substitute tax return, using information that they receive from third parties (banks, employer W2 forms, etc.) to prepare the tax return for you. In some ways that may seem ideal, but this return the IRS will not allow a married filing jointly form of filing, or take into account any itemized deductions. Therefore, your tax bill will be higher than if you prepared and filed your own tax return.

If a taxpayer does not file an income tax return (IRS calls them non-filers), and the IRS deems that a tax return is due to be filed, the IRS will use the information it receives from third parties (employers, brokerage firms, mortgage lenders) and filed W/2 forms, Form 1099, Form 1098, and other similar income reporting forms, to prepare the missing tax return. The tax return is prepared by the substitute return group at the IRS, which is connected to the audit group. The tax return is called by the IRS a Substitute For Return (SFR).

tax-planning-300x263When the IRS prepares your tax return, they use the highest tax rate and do not include any tax credits you are entitled to. Therefore, the tax computed is higher than what it would have been if you prepared the tax return in most cases. They also treat married people as married filing separately, which also causes the tax rates to increase. They also exclude dependents, which causes a higher tax bill. 

When you don’t file an income tax return, there is no statute of limitations of when you or the IRS can file a tax return, or audit you. The typical rule is that the IRS can audit you for the last three years once you file a tax return, unless they find your income was materially under reported on a filed tax return and they can go back for the last six years. The IRS however, under the Internal Revenue Manual sections 412.1.3, says in general they will only prepare substitute income tax returns for the last six years. The six-year rule also agrees with the IRS policy for non-criminal cases of only looking for taxpayers to file for the last six years if they did not file for a longer period of time.

When you receive a big tax bill from IRS, or have a large tax debt, you may be dismayed with paying off the amount all at once. As a matter of fact, IRS has an option for people who cannot afford to pay off their total tax debts. The IRS call this program the Offer in Compromise Program. The form 656 serves this purpose.

The nature of this form is an agreement between IRS and taxpayer to settle a tax debt amount that is less than what the taxpayer owed through an offer by the taxpayer, and then a negotiated settlement. The ultimate goal of this form is to settle an agreement that fits both parties’ interests. However, the IRS does not guarantee the approval of this application. However, there are little downsides of trying this process.

a5-300x300There are some pre-qualifications issues related to using this debt reduction tecnique. To be eligible for this process, you must have filed all your income tax returns that are legally required, and make all required estimated tax payments for the current year. Along with these three requirements, you cannot apply for offer in compromise if you or your business is currently in an active bankruptcy proceeding. You should go to IRS pre-qualifier test before you start the process. The link to the test is https://irs.treasury.gov/oic_pre_qualifier/.

As we discussed last in the last post, it is important to determine whether you are non-resident alien or resident alien. One major tax issue we discussed is about the substantial test. This test is used to determine whether you are resident or non-resident alien. Along with the basics, today we discuss situations that some individuals can exempt the days they are actually present in the United States.

In general, there are several categories of individuals who can exempt the days of presence in the United States. For example, days in transit, or days related to regular commuting to work from Canada or Mexico are not counted as presence for tax purposes. Individuals also don’t count days as crew members of a foreign vessel. In addition, students, trainees, foreign government related individuals, and professional athletes, are exempt within certain parameters. a7-300x300

The Form 8843 is designed to serve this purpose of determining if a person is exempt.  If you are an alien individual (other than a foreign government-related individual), you need to file Form 8843 to explain the rationale of your claim that you can exclude days of US presence in the United States as exempt individuals. In addition, this form can be used for people who are unable to leave the United States because of a medical condition or medical problem. This form is required to be attached to your Form 1040NR or Form 1040NR-EZ (note these are the non-resident income tax forms).

The United States is known as an inclusive country. People from all over the world study, work and live in this country. As an international student or foreign worker, you may ask the question, what is my US tax status when I have income. Below I will give you a starting point when you ask this question or struggle with this issue.

The first step in resolving this tax problem is to understand if you are a resident alien or a non-resident alien. As for tax purposes, an alien refers to an individual who is not a U.S. citizen. Alien has two subcategories, resident alien and non-resident alien. In most cases, resident aliens are taxed on all their income, regardless where the income comes from. Nonresident aliens are taxed only on income sources from within the United States, and on most income which is from a trade or business in the United States. Often, foreign people may also subject to certain tax treaties as well that can override the regular tax rules.

a6-300x300Normally, you are nonresident alien unless you pass either green card test or substantial presence test for the calendar year. The green card test means you meet the test as a lawful permanent resident of the United States. You are regarded as a lawful resident if you are given privilege to reside in the United States permanently as an immigrant. Often, governmental agency (i.e. USCIS) will issue you a registration card when you have this status. This status continues unless the resident status is taken away from you (administratively or judicially).  A green card holder pays taxes, and is subject to the same tax rules, as a US citizen

A question I often get from clients with a tax debt is how long does the IRS have to collect the taxes I owe?

There is a statute of limitations on collection of taxes, and it is generally 10 years. Once that time expires, you are free from the remaining unpaid tax debt and the IRS cannot collect from you unless they go to court and create a tax judgement which is rare.

a3-300x150When I say generally they have 10 years to collect, there are a few issues on when the time clock starts, and what can cause the clock to temporally stop. The 10-year time window begins when the tax debt is calculated and billed by the IRS. This would normally be when you file a tax return, or the tax audit is finished. For example, if you do not file a tax return for the 2010 tax year, you would not be free and clear in 2020, but rather 10 years from the date the tax bill for 2010 is generated after you file the tax return, or the IRS files a return for you. With a tax audit, unless it is an agreed upon case, the IRS will propose an adjustment and then you have a right to appeal or petition tax court. Once all the legal process is complete, then the tax debt becomes official and the 10 year collection statute starts.

Typically, when you owe a creditor, such as a credit card company, and you have an unpaid balance they would have to go to court and get a judgement against you before they could take steps to take your assets to pay the unpaid balance. Unfortunately, this same legal mechanism is not in place for tax debts owed to the IRS and the States. A tax lexy is a tax collection tool available to the IRS and the States where there is an unpaid tax balance owed, but it does not require court intervention. Technically, a tax levy is a seizure of your assets to pay back taxes owed. The tax levy is difference from a tax lien (or tax warrant), which does not require the taking the assets, but is a lien against your property (for instance your home), similar to how a bank would have mortgage against your property for the balance you owe to the bank. However, a tax lien will affect your FICO score in a very substantial negative way, so it is not harmless.

a1-300x300Before your assets can be seized by the IRS, typically you have been given a fair amount of warning that a tax issue exists. The first step is that the IRS will assess the taxes, either from a tax return you filed, or if you did not file a tax return they would prepare a substitute tax return for you. They will then send you a tax bill and demand payment. They will usually send out three bills, over a 90 day time period. If that tax bill is not paid, your account will go into collections and they will issue a CP504 letter (notice of intent to levy). Even at this stage, the IRS is not levying your assets. If the CP504 letter is not responded to, then they issue a CP90 Notice, that is also known as a Notice of Levy. If that demand letter is not responded to, they have a right to levy and take your assets.

The assets that the IRS and States most likley to levy are wages, bank accounts, physical assets, social security, accounts receivable, and vehicles. From a collection perspective, the IRS will use the levy mechanism that will produce the quickest and easiest method to get your assets to pay off the tax debt. For wage garnishments, they would notify your employer of the tax debt, and under the law in most cases can receive a substantial amount of your salary, often leaving the taxpayer with not enough money to pay their bills.   For bank levies, the IRS contacts your financial institution and tell them to put a 21 day hold on your account. The hope is that during those 21 days an alternate payment mechanism can be worked out with the IRS, such as a payment plan. If that does not happen, at the end of the 21 days they take the assets in the  account to pay the balance owed. For assets seizures (cars, motorcycles, boats) the IRS can just seize them and sell the asset to pay down the debt.

Over the years I have received many calls from surprised taxpayers that their debts written off, whether it be from home loan or credit card debt, created income that needed to be reported on the tax returns as taxable income. The basic theory for all taxation, is that if you are wealthier,  then there is a good chance you need to pay taxes on that wealth.

a5-300x150When a person borrows money and buys an asset (for a car or home, for example), they typically do not think if they do not repay that loan that it creates income, but under the tax rules it may. As an example, say you borrow $20,000 from the bank and buy a car. You run into bad luck,  stop paying the loan, and the car loan defaults and they take the car. After selling the cat, say you still owe $5000 on the loan after the car is sold. If they write-off the $5,000 it can create income since you received $20,000 and paid back $15,000, so you are $5,000 richer and that $5,000 of wealth is subject to tax. The tax form that you would receive in these cases is a form 1099-C, Cancellation of debt.

There are a few exceptions to this rule, for instance, if you are in bankruptcy or insolvent (assets less than liabilities) when the debt is written off. If either of these exceptions are your case, then the write-off of the tax debt would not be taxable. The lender also needs to be a commercial lender and not a family member or friend. If you fail to pay the family member or friend, then the write-off would be viewed as a gift from them to you. The other main exception is if you merely guarantee  debt, by co-signing, then if the main borrow defaults typically you did not become wealthier and you would not have to pay tax on that transaction. The last major exception is if under the terms of the loan, the only recourse of the lender has is to take back the property to satisfy the debt. They call this non-recourse debt, and a write down of non recourse debt is typically not taxable.

The IRS appeals function has the mission of attempting to resolve tax disputes between taxpayers and the IRS by negotiated settlement discussions rather than litigation. Since tax litigation is very expensive, the IRS appeals process is a very useful tool to help resolve tax disputes. Today, in our society, using means other than litigation has caught on in the form of mediation and arbitration.

The ability to utilize the IRS appeals function, as demonstrated by Facebook’s failed attempt to gain access to the appeals group and ended up going to court just to have the right to go to IRS appeals, can sometimes be a tricky process. I have used the IRS appeals process many times to try to avoid tax liens, for collection and exam issues, and penalty abatement cases. If you desire, the appeal can be heard in person, or over the phone.

a8-300x301-299x300Fast Track Mediation is geared mostly to the small business and self employed taxpayers that are disputing tax assessments as a result of an income tax audit, the imposition of a trust fund recovery penalty (for unpaid payroll taxes), offers in compromise settlements, or IRS collection actions where a Revenue Officer is involved. The trained mediator (who does not force either party to accept his or her decision), listens to both sides to understand the tax issues involved and try’s to formulate a solution that both parties can accept. This process is usually complete in about 30 to 40 days. The mediation process is started when the IRS and the taxpayer both sign a Form 13369, for the case to transferred to the mediation group. With the form, you also provide a written explanation of your position, with legal support (tax law, court cases), that supports your position. The mediator reviews all the evidence, speaks to each party, and then renders a decision.

I often receive phone calls from prospective clients who have not filed their income tax returns for many years. The typical range of unfiled income tax returns is about the last 5-7 years, but some cases it dates back to the mid 1990’s. Since I can barely remember what I did in the 1990’s, I am glad to tell you that the IRS and many states do not require you to file all the income tax returns that are due when you are trying to catch up on late filed returns. This is very good news since when you do not file a tax return, the statute of limitations never expires. a9-300x150

Typically, when I call the IRS, I negotiate with them and get them to agree to accept the last six years of filings to bring the client current with their tax filings. For New York State Tax Department, we can sometimes have them accept the last three years to become current. In some cases, New York State also forgives the penalties, so you just pay the taxes and interest under the New York State Voluntary disclosure program . This concept of forgiving the penalties, which can be as high as 50% of the tax balance, is something the Internal Revenue Service should consider, in my opinion, since it creates a huge amount of work for them to track down and collect the penalties and can result in hardship to the taxpayer.

The amount of taxes owed related to the unfiled tax returns can vary widely depending on whether the taxpayer was self employed or a wage earner. If the taxpayer was a wage earner, it also matters whether their wage allowances were close to what they needed to be. If a taxpayer was self employed, they will incur the normal income taxes, which are roughly 25% for the IRS, and 10% for NYS, as well as an additional 15% for social security taxes. Therefore, the total taxes can be about 40% on the income earned.  For a wage earner (a person who receives a W-2), if their withholdings were fairly reasonable, there should not be a huge tax bill since the taxes were paid during the tax year in question. Once the tax amount is computed, and penalties negotiated downward, the remaining tax debt can be paid off either through an installment agreement or offer in compromise. Typically, the terms of the payment plan can be three to eight years.

 

 

 

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