There is no denying that a sales tax audit is not a pleasant encounter with the New York State Tax Department. I guess any interaction with the tax authorities is likely to produce an uncomfortable experience but going through a detailed sales tax audit is like going to the dentist. As a tax attorney who assists clients with providing guidance through all phases of the sales tax audit process the goal is to have the audit produce minimal pain and little financial loss.

a8-300x301-299x300Through many tax audits, I have gained an original perspective on the motivations on the State Tax Department to improve their taxing abilities by being aggressive with imposing taxes. As troubling as this may appear, it must be remembered that the best offense is a great defense. In many cases, a typical client does not spend the time to compile the necessary and sufficient documents to meet the needs of the auditors. This is a huge mistake, but you may ask why do we care about the tax auditors, and if they review the right records?  In a few words, they will make your life hell if your records are poor. Often, most taxpayers do not have the correct records, so the first step is to organize their records which will make the audit go much better, and reduce the cost of crazy wild guesses by the tax department in their quest to create a tax bill. Any time a client does not have ample tax records, the tax laws and regulations allow the state to start calculating the taxable sales, and they never come out on the low side.

Seeing that having good records can be so critical to a successful sales tax audit, I spend a lot of time with my clients to organize and improve their sales tax records before the audit begins. They are often shocked at the level of detail we make their records. When the actual audit starts, we (my client and I) sit along with the auditors and be available to answer questions and try to manage the process. Trying to influence the auditor is key, and honey works better than vinegar, if you know what I mean. Most clients are uncomfortable at first being at the sales tax exam, but after a while they understand the value in being there to help reduce their tax bill. Also, by showing our real human side and showing that we will not be bullied around, in all times in a friendly nonetheless productive manner, a positive difference can be had. If the sales tax auditor is being debilitating to constructive progress, then we can ask to speak to the persons supervisor and division group manager if we decide that would be productive. If all else fails, and where the client’s records have no value we try to reach a low tax settlement. In the conciliation conference, a mediation comes about between the taxpayer and tax department to come to a settlement. Often the results of this process are very good, and a reasonable result can be obtained to lower the tax bill to amount that can be paid all at once, or a reasonable payment plan can be established.

Usually, the most panicked and upset clients call me and when they have not filed their tax returns in many many years, and are extremely worried that by this inaction they will be arrested, or worse thrown in prison. Occasionally, clients are audited for non-tax problems ( for example workman’s payment insurance, highway permits) by the IRS or State of New York, and the auditor makes the discovery that the taxpayer has not filed their income tax returns in a long time. This “great” discovery causes a lot of angst to the taxpayer, but usually the IRS and the States are not quick to press charges if the tax returns are filed quickly (see list below of action steps needed). Typically, you only have a criminal tax problem is you intentionally do not pay the right amount of taxes, so usually they issue is manageable. Therefore, non filing typically does not cause the same level of problems are actively avoiding paying taxes, and your almost never going to jail.  Please keep in mind, in New York State it is actually a felony to not file your income tax returns for at least three years in a row where you owe taxes for each of those years. It is not often that NYS Tax uses this law to charge a taxpayer with a crime, but I have seen it applied in hundreds of cases, so it is not overly rare that they do.

a7-300x300The IRS and NYS tax auditors normally take the approach of creating their own estimated version of the income tax return you failed to file (called a substitute tax return), and charging the taxes owed based upon their computation based on limited information. Please keep in mind they have no incentive to lower your tax bill, so their work is suspect. The crucial point is that the substitute tax returns tends to overstate the tax debt amount, since they give you no deductions and use  the highest possible tax rate. As they say, you never get something good for nothing.

The very long standing IRS’s voluntary disclosure policy applies to a taxpayer who: 1) Informs the IRS or NYS that they failed to file a tax return, 2) You make the disclosure prior to being notified by the tax authorities, or before you are under criminal investigation for failing to pay the right amount of taxes, 3) File the correct income tax come returns, and cooperate with the tax authorities (NYS and IRS) in ascertaining their correct income tax liability, and 4) Make full payment of the amount of the sales or income taxes due, or if are unable to make payment in full, to create a monthly tax payment plan for the tax balance owed.

In the event that you are in tough financial times that makes it difficult to pay your tax obligations, and this fact can be verified to the IRS that collecting from you will generate a monetary hardship, the IRS will place your tax account with them into a noncollectable position known by the IRS as conditionally “currently not collectible”. This status could be granted to both people and business corporations. Generally, this classification will be reexamined in one to two years to see if your finances have changed and you are collectable. Through the entire time that your accounts is deemed noncollectable, the IRS will not levy you or ask for payments. Most states do not follow this same rule, unfortunately.

a10-300x300In nearly all taxpayer situations, the IRS collects economic information of your noncollectable position simply by causing the taxpayer two complete comprehensive forms, which are forms 433-A, 433-B, and 433-F, that are used to verify your income and assets and your financial ability to pay your back taxes. These forms are actually challenging to complete properly since you wish to provide correct information used by the Internal Revenue Service to factor your ability to pay, while also making sure the payment plan is not to high in amount and you default it.  The factors the IRS considers is s persons age group, education level, their employment position, the cost of residing in the region of the country the taxpayer lives, medical problems, to name a small number of items they review. The IRS income uses countrywide and regional standards, consequently deviations from the standardized amounts have to be validated for every case.

The IRS defines financial hardship in perhaps a means that you’ll would not. If you don’t have any belongings, as well as your income is actually simply only plenty enough to cover your simple bills there is usually an excellent chance the IRS wouldn’t normally view your income as being a good levy source to focus on and you’d be deemed currently not really collectible “CNC”. For those who have belongings, or middle/high income, this will be more challenging to prove this position although having possessions or retirement assets may not result in not obtaining this status.  However, if the IRS recognizes you to be noncollectable, and you incur a fresh taxes debt, they will start collection activity again.

What you need to prepare for our first meeting really depends on your circumstances, but at the very least you should gather enough information, so you can answer help us answer these two questions. First , which tax return periods have not been filed (a range or estimate is fine), and do you have a general idea of what you owe and to whom?

a5-300x300The reason I need to have information to answer these two answers, and also as a way for you to come to grips with the issue and understand the problem that needs to be solved, is that the amount of tax debt you owe is very important (as I will explain later), and to who you owe it to drives the choices we have to offer to solve the tax issue. The reason the later question needs to be answered is that the various taxing authorities have different rules that they follow when deciding on how to handle a tax matter. For instance the IRS and NYS Tax Dept. have very different rules regarding establishing a payment plan, or filing an offer in compromiser. The amount owed is important, since a payment plan can be set up quickly (1-2 months), versus a offer in compromise settlement takes much longer (5-9 months). The solution required also depends on how old the tax debt is, and your finances. Overall, these issues are not easy, and that’s why we offer a free consultation so you get to know me, and also get some information related to how we would attack the issue.

Below is a list of some basic paperwork to collect before the meeting. Please be aware that we do not need all the letters you received, so a sample is fine since the IRS and NYS tax tends to send out many duplicate items over time. Here is the list.

It is always a good idea to understand how a tax debt may be relieved, and what options are available for you.

In most cases, the amount owed to the IRS is a money issue, and does not cross the line to being a criminal matter of being charged with tax evasion. The IRS will charge interest and penalties on the tax debt, so its critical to try to resolve the issue, through a settlement or quickly paying the debt, before the amount increases beyond your control. The IRS debt is special and should be thought of as having more issues than other debts since the IRS can take money from you bank account, or take your wages when you owe them, and they can do all of this without your permission.

a9-300x300The IRS trains their collection people well, so once they get assigned to your case there will be a lot of work to resolve the matter and they will make your life unpleasant. They will send a ton of notices, and even come to your home to interview you. Its best to be polite, but do not give them any detailed information and tell them you need to hire a tax attorney to resolve the issue. They will request financial information in the Form 433-A, which is for individuals, or the Form 433-B, which is the form for businesses. Along with these forms that will require the last six months of your bank statements, and information to verify your income and expenses, such as copies of bills, mortgage payments, pay stubs etc.

When a taxpayer can not pay the IRS a lump sum payoff for their tax debt, they need to create a payment plan with the IRS. There are a number of options to consider when the payment plan is established. Obviously, it is almost always best to create the lowest monthly payment plan amount as possible and then pay more to get the balance down quickly, but not be at risk of defaulting the payment plan if money is tight. Therefore, there a number of factors to consider to get the correct balance of paying down the debt quickly, and not having a future issue. As with other payment plans that you might establish with a creditor, the amount you will pay will depend on the amount you owe, the amount you can afford to pay, and what assets and income you have.

a10-300x300As an overview, the IRS has many programs that allow for payments of taxes over time. The payment plans are within the discretion of the IRS, which means they decide the amount per month they will accept. Often it takes a lot of hard work to get the IRS to agree on an affordable number. The IRS does not give much flexibility with the monthly payment being late once the payment plan is established. In some rare instances, the payments can fluctuate if the person or business has seasonal income, or income on a non-recurring basis, such a lawyer who gets paid on contingency basis.

There are three common ways that you can make payments under the payment plan.

Once you owe taxes to the IRS, they have very specific criteria of what expenses they will allow over the long term when they determine how much they will ask you to pay back per month to repay the debt. To understand the process the IRS uses, it is important to realize they are trying to collect as mush as possible from you, and it does not always matter how much you can afford to pay. From the taxpayers perspective, the goal is to reach a payment plan that from a monetary perspective allows you to live your life in a reasonable manner, and pay down the debt as quickly as possible without incurring unbearable stress.

Tax-HelpOverall, the starting point to determine the amount of your monthly income you can pay each month is determined by the IRS by having you complete either a 433-A, 433-B or 433-F form. These forms are used by individual and business taxpayers. Completing these forms can be very tricky since the IRS does not explain their use in a clear fashion, and often if you just fill them out in good faith you will end up paying them a lot more per month than you can afford. When this happens, most people stop paying their current taxes correctly and the tax issue snowballs into a complete mess.

The IRS national standards for food, and misc. expenses, such as clothing are consistent across the country so that presents a practical problem if you live in an area of the country where the living expenses are high (for instance the metro NY area). There has also established national standards for vehicle expenses, out of pocket health care, and housing. For housing expenses, the IRS does refine the calculation to the state and county level, but in many cases that amount is less than the average person spends for housing. Since it is not easy in most cases to change your housing costs, this is an issue that is not easy to solve. If your costs are within the standard amount, the IRS will not question the expenses so you do not need to prove you paid it.

When a taxpayer asks the IRS to eliminate their tax debt through an offer in compromise, the IRS will look at the persons assets and past income to determine if there is a likely chance that the taxpayer will be able to pay back the total tax owed. In some cases, if the taxpayers income history has been variable, the IRS will want to get a portion of the future income above certain thresholds. This is known as a future income offset agreement. It is not a typical request but it is sometimes part of the settlement with the IRS. The good news is that this may cause the deal to be accepted by the IRS, so it is worth considering.

a9-300x300While this arrangement has certain complexities, the overall idea is that the taxpayer may be able to afford more in the future than what they show they can afford today (on a form 433(OIC), and within certain limits, that they can pay more than the total amount offered if it was paid overtime. While this money is not a certain guaranteed payment to the IRS, it may cause them to be willing to accept the deal with the hope that in the future they may get more. From my experience, the IRS will only look to the next few years, so it would not be the case that five years from now they are still trying to get money from you.

The taxpayer is looking to make a deal to settle their tax debt, so often these additional monies being paid to the IRS is workable to most people. As an example of this concept, say a person owes $100,000 in back taxes (including interest and penalties). They may be currently working and making $60,000 a year from their wages. They have a 401(k) retirement plan that is worth $20,000, but that after taxes are paid they will net about $11,000. It is clear that will not be able to pay back the whole $100,000 owed since the $60,000 in wages only covers normal living expenses. Say the person offer the value of their retirement account of $11,000 plus an additional $4,000, for a total offer of $15,000. It may be that the IRS accepts such an offer if it was made by someone in their sixties, but they would not if the person was forty years old. In the case of the forty year old, the IRS may accept the lump-sum of the $15,000 and then ask for twenty percent of the monies earned for the next three years greater than the wages of $60,000 a year. If the person makes, for instance, $80,000 for the next three years, the IRS would receive the initial $15,000 plus $12,000 ($80,000-$60,000 times 20%), or $27,000, in total.

If you own foreign assets, then you have certain US income tax filing rules that you must follow if the account balance in the account exceeds $10,000 (for instance the FinCen Form 114). The IRS filing requirement for foreign assets require that you disclose substantial foreign assets, and almost always include the income from the foreign asset in your US tax return. Once the account balance is over $10,000 USD, than you also need to review the rules and see if you need to file any other tax forms, such as the Form 8938 as part of your Form 1040 series tax return.

a7-300x300These rules are complex, so there are many taxpayer’s that never knew about these tax filing requirements, since they were not informed by the banks that held the asset, or their accountants. For these people, the IRS has a program that is helpful since it allows you to get back into compliance, avoid the penalties for late filing, and pay the correct taxes owed. The program is generally known as the IRS Streamlined Offshore Voluntary Disclosure Program (OVDP). It has one set of rules if you are a US resident, and another set of rules if you are not a tax resident of the United States. Filing under theses program has many complexities, so your submission has to be well thought out to get the maximum benefit. To complete the submission under this program, you need to disclose the last six years of balances of assets you owed overseas, and the last three years of income earned by filing a Form 1040X and FinCen 114. In general, the reduced penalty under this program is 5% of the asset balance, plus the taxes owed plus interest, for US residents, and a lessor penalty if you are a nonresident taxpayer.

The penalties you avoid by filing under these programs are very substantial, so it is worth investigating if these programs are a good fit for your circumstances. In certain cases, the failure to file certain foreign asset or income tax forms (such as Forms 8938, 5471, 5472, 3520, 3520-A) can result in a $10,000 civil penalty, up to 50% of the account balance per year for not filing the correct form. The IRS tends to be very harsh with penalties for foreign asset issues, so paying the 5% penalty (in most US resident cases) is often the wise choice for the relative certainty that it provides. The criminal penalties related to tax evasion, and filing a false return, typically would not be avoid by filing under the streamlined voluntary disclosure program since this program is for taxpayers who made an honest mistake, and not taxpayers who motive tax evasion.

It appears that the credit bureaus may be changing their policies and removing tax liens from credit reports. Often, when a person has a tax issue that is greater than $50,000 (for their federal taxes), the IRS will insist on filing a notice of tax lien in the county that you reside. Having a tax lien on your credit report has a substantial negative impact on your FICO score, so it is great news that it may not be a factor considered by banks in the future. Just to be clear, this change does not impact that you actually have a lien, or that the IRS files a notice of the lien, it only impacts your credit score and credit report.

a8-300x301-299x300As background, the tax lien is public notice that the Internal Revenue Service has a lien against your real and personal property. There are a few methods to remove the lien. The most obvious is to pay the debt owed. Once you full pay the debt, the IRS typically removes the federal tax lien notice in 30 days from the date you paid off the debt.

When you are not in the position to full pay the debt, there are other methods to deal with the tax lien notice. The first is a federal tax lien discharge which removes the tax lien from a specific piece of property. For instance, say you have a piece of real property that is encumbered by a federal tax lien. You may ask the IRS to discharge that lien so you can transfer the property to another party, as part of a sale of that property. It can happen in instances where you have no equity in the property, but it best to get rid of the property since it costs to much to keep. The other method is to ask the IRS to subordinate the lien. The IRS lien subordination does not take the lien off the property, but it does lower its standing in line, so a superior bank loan can be ahead of the lien. This is useful since banks will insist on being first in line for the equity in the property in cases where they lend you money. Lastly, (but not least) is a withdrawal of the federal tax lien. The method may be somewhat moot now that tax liens may be falling off credit reports. This method requires asking the IRS to withdraw the notice of federal tax lien even though the debt was not paid. Often the IRS would agree to this once the tax debt amount went below $25,000 (if you already had a payment plan). This method was a result of the 2011 IRS Fresh Start initiative, and has proven to be very useful. Another variety of the same type of technique, would be when you never had a payment plan before, all your tax returns were filed, and your tax debt in total is less than $50,000. In this case, you would also need to be paying the IRS under  direct debit payment plan, and never had a payment plan before. If you meet all these requirements the IRS would typically not insist on having a tax lien filed.



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