c26 - 1 comprehensive volume chapter 26 tax practice and ethics copyright ©2010 cengage learning...

C26 - C26 - 11Comprehensive VolumeComprehensive Volume

Chapter 26Chapter 26

Tax Practice And EthicsTax Practice And Ethics

Copyright ©2010 Cengage Learning

Comprehensive Volume


Tax Administration (slide 1 of 3)Tax Administration (slide 1 of 3)

• The IRS is responsible for administration and enforcement of the tax laws– Provides info to taxpayers through publications and

forms with instructions so taxpayers can comply with the tax law

– Identifies delinquent tax payments

– Carries out assessment and collection procedures

• The IRS is responsible for administration and enforcement of the tax laws– Provides info to taxpayers through publications and

forms with instructions so taxpayers can comply with the tax law

– Identifies delinquent tax payments

– Carries out assessment and collection procedures



• In meeting its responsibilities, the IRS conducts audits of selected tax returns– About 1% of all individual tax returns are audited each

year

– Certain tax returns, such as those for high income individuals or cash-oriented businesses, have a much higher audit rate

• In meeting its responsibilities, the IRS conducts audits of selected tax returns– About 1% of all individual tax returns are audited each

year

– Certain tax returns, such as those for high income individuals or cash-oriented businesses, have a much higher audit rate



• To enhance its enforcement efforts, the IRS has focused much effort on:– Developing requirements for information reporting and

document matching

– Increasing pressure on tax advisers

• The IRS has recently undertaken a major reorganization and adopted new operational strategies aimed at improving its efficiency while enhancing its interaction with taxpayers

• To enhance its enforcement efforts, the IRS has focused much effort on:– Developing requirements for information reporting and

document matching

– Increasing pressure on tax advisers

• The IRS has recently undertaken a major reorganization and adopted new operational strategies aimed at improving its efficiency while enhancing its interaction with taxpayers


Organizational Structure of the IRSOrganizational Structure of the IRS


Letter Rulings (slide 1 of 3)Letter Rulings (slide 1 of 3)

• When a tax issue is controversial or involves significant tax dollars, a taxpayer may request a letter ruling from the IRS – The ruling provides a written statement of the position

of the IRS concerning the tax consequences of a course of action contemplated by the taxpayer

• When a tax issue is controversial or involves significant tax dollars, a taxpayer may request a letter ruling from the IRS – The ruling provides a written statement of the position

of the IRS concerning the tax consequences of a course of action contemplated by the taxpayer



• The ruling can only be relied upon by the party requesting the ruling– Other taxpayers may use the ruling as an indication of

the IRS’ position on the matter

• Letter rulings are generally followed by the IRS for the taxpayer who requested the ruling as long as all material facts of the transaction were accurately disclosed in the ruling request

• The ruling can only be relied upon by the party requesting the ruling– Other taxpayers may use the ruling as an indication of

the IRS’ position on the matter

• Letter rulings are generally followed by the IRS for the taxpayer who requested the ruling as long as all material facts of the transaction were accurately disclosed in the ruling request



• Letter rulings may be declared obsolete by the IRS for other taxpayers

• A fee is charged by the IRS for processing a ruling request

• Letter rulings may be declared obsolete by the IRS for other taxpayers

• A fee is charged by the IRS for processing a ruling request


Determination LettersDetermination Letters

• Provide guidance regarding a completed transaction when the issue involved is covered by judicial or statutory authority, regulations, or rulings– Issued for various death, gift, income, excise,

and employment tax matters

• Provide guidance regarding a completed transaction when the issue involved is covered by judicial or statutory authority, regulations, or rulings– Issued for various death, gift, income, excise,

and employment tax matters


Technical Advice MemorandumTechnical Advice Memorandum

• Issued by the National Office to IRS personnel in response to a request by an agent, Appellate Conferee, or IRS executive– May be requested by taxpayer when an issue in dispute

is not treated by the law or precedent and/or published rulings or regulations

– Also appropriate when there is reason to believe that the IRS is not administering the tax law consistently

• Issued by the National Office to IRS personnel in response to a request by an agent, Appellate Conferee, or IRS executive– May be requested by taxpayer when an issue in dispute

is not treated by the law or precedent and/or published rulings or regulations

– Also appropriate when there is reason to believe that the IRS is not administering the tax law consistently


Technical Expedited Advice Memorandum (TEAM)

Technical Expedited Advice Memorandum (TEAM)

• Can be used during an office or field audit– Designed to reflect the position of the IRS in a shorter

time than a TAM otherwise would take– This quicker response time is possible because prior to

submitting the TEAM request• The taxpayer and IRS agree to the facts and conduct a

presubmission conference • Technology, including e-mails and faxes, is used to gather

facts as part of the process• The IRS holds an internal strategic planning meeting,

discussing potential responses to various holdings that could be issued as part of the TEAM

• Can be used during an office or field audit– Designed to reflect the position of the IRS in a shorter

time than a TAM otherwise would take– This quicker response time is possible because prior to

submitting the TEAM request• The taxpayer and IRS agree to the facts and conduct a

presubmission conference • Technology, including e-mails and faxes, is used to gather

facts as part of the process• The IRS holds an internal strategic planning meeting,

discussing potential responses to various holdings that could be issued as part of the TEAM


IRS Administrative Powers(slide 1 of 3)


• Examination of records– The IRS can examine a taxpayer’s records to

determine the correct tax due

• Burden of proof– If taxpayer meets the record keeping

requirement and substantiates income and deductions properly, the IRS bears the burden of proof in establishing a tax deficiency during litigation

• Examination of records– The IRS can examine a taxpayer’s records to

determine the correct tax due

• Burden of proof– If taxpayer meets the record keeping

requirement and substantiates income and deductions properly, the IRS bears the burden of proof in establishing a tax deficiency during litigation


IRS Administrative Powers (slide 2 of 3)

IRS Administrative Powers (slide 2 of 3)

• Assessment and demand– The IRS can assess a tax deficiency and demand

payment of a tax

– The assessment cannot be made until 90 days after a “statutory notice of deficiency” is issued to the taxpayer

• During the “90 day letter” period, taxpayer may file a petition with the U.S. Tax court, which prevents the IRS from collecting the amount until after the Tax Court case is resolved

• After assessment the IRS demands payment within 30 days

• Assessment and demand– The IRS can assess a tax deficiency and demand

payment of a tax

– The assessment cannot be made until 90 days after a “statutory notice of deficiency” is issued to the taxpayer

• During the “90 day letter” period, taxpayer may file a petition with the U.S. Tax court, which prevents the IRS from collecting the amount until after the Tax Court case is resolved

• After assessment the IRS demands payment within 30 days




• IRS collection procedures– If the taxpayer does not pay an assessed tax, the IRS

can place a lien on all property belonging to the taxpayer

– The IRS can garnish (attach) wages and salary and seize and sell all nonexempt property by any means

• A taxpayer’s principal residence is exempt from the levy process, unless

– The disputed tax, interest, and penalty exceed $5,000 and

– A U.S. District Court judge approves of the seizure

• IRS collection procedures– If the taxpayer does not pay an assessed tax, the IRS

can place a lien on all property belonging to the taxpayer

– The IRS can garnish (attach) wages and salary and seize and sell all nonexempt property by any means

• A taxpayer’s principal residence is exempt from the levy process, unless

– The disputed tax, interest, and penalty exceed $5,000 and

– A U.S. District Court judge approves of the seizure


IRS Audit Selection(slide 1 of 3)

IRS Audit Selection(slide 1 of 3)

• The IRS does not disclose its audit selection process

• Utilizes mathematical formulas to select returns:– Likely to contain errors and– Yield a substantial amount of additional tax

revenue

• The IRS does not disclose its audit selection process

• Utilizes mathematical formulas to select returns:– Likely to contain errors and– Yield a substantial amount of additional tax

revenue


IRS Audit Selection (slide 2 of 3)


• Examples of audit selection– Certain taxpayers are more likely to be audited

such as:• Individuals with gross income > $100,000

• Self-employed individuals with substantial business income and deductions

• Cash businesses where potential for evasion is high

• Examples of audit selection– Certain taxpayers are more likely to be audited

such as:• Individuals with gross income > $100,000

• Self-employed individuals with substantial business income and deductions

• Cash businesses where potential for evasion is high




• Most audits of individual tax returns are started about two years following the date the return is filed

• Most audits of individual tax returns are started about two years following the date the return is filed


Types of IRS Audits(slide 1 of 3)

Types of IRS Audits(slide 1 of 3)

• Correspondence audits– The return is checked for mathematical accuracy or

clearly erroneous deductions, etc. soon after the return is filed

– In addition, several months after filing, all 1099s and W-2s and other matching information is verified

– If a discrepancy is found in either of these cases, the IRS simply sends the taxpayer an explanatory letter and a bill or a refund

• Correspondence audits– The return is checked for mathematical accuracy or

clearly erroneous deductions, etc. soon after the return is filed

– In addition, several months after filing, all 1099s and W-2s and other matching information is verified

– If a discrepancy is found in either of these cases, the IRS simply sends the taxpayer an explanatory letter and a bill or a refund


Types of IRS Audits (slide 2 of 3)


• Office audits– These audits are frequently limited in scope,

and can be conducted in the IRS office – The taxpayer is generally asked to substantiate

the items requested (i.e., present invoices, canceled checks, etc.)

• Office audits– These audits are frequently limited in scope,

and can be conducted in the IRS office – The taxpayer is generally asked to substantiate

the items requested (i.e., present invoices, canceled checks, etc.)




• Field audits– Commonly used for corporate returns and for

returns of individuals engaged in business or professional activities

– These audits are generally conducted at a taxpayer’s home or business

• Field audits– Commonly used for corporate returns and for

returns of individuals engaged in business or professional activities

– These audits are generally conducted at a taxpayer’s home or business


Audit Procedures (slide 1 of 4)Audit Procedures (slide 1 of 4)

• Prior to or at the initial interview, the IRS must – Provide the taxpayer with an explanation of the audit

process and

– Describe the taxpayer’s rights under that process

• IRS representative must suspend the interview if the taxpayer clearly states a desire to consult an attorney, CPA, or enrolled agent

• Prior to or at the initial interview, the IRS must – Provide the taxpayer with an explanation of the audit

process and

– Describe the taxpayer’s rights under that process

• IRS representative must suspend the interview if the taxpayer clearly states a desire to consult an attorney, CPA, or enrolled agent



• The IRS must grant permission to make an audio recording of any interview, upon advance request

• On completion of the examination, the IRS agent will file a revenue agent’s report (RAR) outlining recommended changes to the return (if any)

• The IRS must grant permission to make an audio recording of any interview, upon advance request

• On completion of the examination, the IRS agent will file a revenue agent’s report (RAR) outlining recommended changes to the return (if any)



• The RAR is reviewed internally before the IRS assesses an additional tax

• The taxpayer may accept the RAR or appeal within the IRS

• Appeal within the IRS must be accompanied by a written protest unless:– The amount of tax does not exceed $10,000 for any tax

year

– The adjustment resulted from a correspondence or office audit

• The RAR is reviewed internally before the IRS assesses an additional tax

• The taxpayer may accept the RAR or appeal within the IRS

• Appeal within the IRS must be accompanied by a written protest unless:– The amount of tax does not exceed $10,000 for any tax

year

– The adjustment resulted from a correspondence or office audit



• Settlement with an IRS agent is based solely on the merits of the case, given IRS policy

• Settlement at the IRS appeals level can be based on the “hazards of litigation”—e.g., the likelihood that the courts would agree with the IRS position

• Settlement with an IRS agent is based solely on the merits of the case, given IRS policy

• Settlement at the IRS appeals level can be based on the “hazards of litigation”—e.g., the likelihood that the courts would agree with the IRS position


Offers in Compromise and Closing Agreements (slide 1 of 2)


• Offers in compromise– IRS can negotiate a compromise if taxpayer is

financially unable to pay the tax • May result in IRS accepting less than full amount of

tax due • Final payment of taxes may be allowed through

installment payments

• Offers in compromise– IRS can negotiate a compromise if taxpayer is

financially unable to pay the tax • May result in IRS accepting less than full amount of

tax due • Final payment of taxes may be allowed through

installment payments




• Closing agreements– May be used:

• When disputed issues carry over to future years

• To dispose of a dispute involving a specific issue in a prior year or a proposed transaction involving future years

– Binding on taxpayer and IRS

• Closing agreements– May be used:

• When disputed issues carry over to future years

• To dispose of a dispute involving a specific issue in a prior year or a proposed transaction involving future years

– Binding on taxpayer and IRS


Interest (slide 1 of 3)Interest (slide 1 of 3)

• Congress sets interest rates applicable to underpayments and overpayments of tax– Rate is determined quarterly

– Based on federal short-term rates

• For noncorporate taxpayers– The interest rate for both over- and underpayments is

5% for the first quarter of 2009

• For most corporate taxpayers– The rate is 4 % for overpayments and 5% for

underpayments

• Congress sets interest rates applicable to underpayments and overpayments of tax– Rate is determined quarterly

– Based on federal short-term rates

• For noncorporate taxpayers– The interest rate for both over- and underpayments is

5% for the first quarter of 2009

• For most corporate taxpayers– The rate is 4 % for overpayments and 5% for

underpayments



• IRS deficiency assessments– Interest accrues from unextended due date of

return until 30 days after taxpayer agrees to the deficiency by signing Form 870

– If amount due is not paid within 30 days interest again accrues on the deficiency

• IRS deficiency assessments– Interest accrues from unextended due date of

return until 30 days after taxpayer agrees to the deficiency by signing Form 870

– If amount due is not paid within 30 days interest again accrues on the deficiency



• Refund of taxpayer’s overpayments– If refunded within 45 days after return is filed

or is due, no interest is allowed– If taxpayer files an amended return or a claim

for a refund of a prior year’s tax, interest is accrued from the original due date of the return

• Even then, no interest accrues until a return is filed or, if the return has been filed, if the IRS pays the refund within 45 days

• Refund of taxpayer’s overpayments– If refunded within 45 days after return is filed

or is due, no interest is allowed– If taxpayer files an amended return or a claim

for a refund of a prior year’s tax, interest is accrued from the original due date of the return

• Even then, no interest accrues until a return is filed or, if the return has been filed, if the IRS pays the refund within 45 days


Taxpayer Penalties (slide 1 of 11)Taxpayer Penalties (slide 1 of 11)

• A comprehensive array of penalties are used to promote compliance with the tax law

• Failure to file a tax return – Penalty is 5% per month (up to 25%) on amount

of tax due• Minimum penalty is $135

– If failure is due to fraud, rate is 15% per month (up to 75%)

• A comprehensive array of penalties are used to promote compliance with the tax law

• Failure to file a tax return – Penalty is 5% per month (up to 25%) on amount

of tax due• Minimum penalty is $135

– If failure is due to fraud, rate is 15% per month (up to 75%)



• Failure to pay tax due– Penalty is 1/2% per month (up to 25%) on amount of

tax due

– If failure is after notice of deficiency is received, rate is 1% per month

• Both above penalties can be eliminated if “reasonable cause” exists for failure to file or pay– Failure to file penalty is reduced by any failure to pay

penalty for the same month

• Failure to pay tax due– Penalty is 1/2% per month (up to 25%) on amount of

tax due

– If failure is after notice of deficiency is received, rate is 1% per month

• Both above penalties can be eliminated if “reasonable cause” exists for failure to file or pay– Failure to file penalty is reduced by any failure to pay

penalty for the same month



• Accuracy-related penalties– 20% of portion of tax underpayment due to:

• Negligence or intentional disregard of law • Substantial understatement of tax liability• Substantial valuation overstatement• Substantial valuation understatement

– Penalty applies only if taxpayer fails to show a “reasonable” basis for the position taken on the tax return

• Accuracy-related penalties– 20% of portion of tax underpayment due to:

• Negligence or intentional disregard of law • Substantial understatement of tax liability• Substantial valuation overstatement• Substantial valuation understatement

– Penalty applies only if taxpayer fails to show a “reasonable” basis for the position taken on the tax return



• For purposes of this accuracy-related penalty,– Negligence includes any failure to make a reasonable

attempt to comply with the tax law• Penalty also applies to any disregard of rules and regulations

whether careless, reckless, or intentional• Penalty applies to all taxes except when fraud is involved

• Penalty can be avoided upon showing “reasonable cause”

• For purposes of this accuracy-related penalty,– Negligence includes any failure to make a reasonable

attempt to comply with the tax law• Penalty also applies to any disregard of rules and regulations

whether careless, reckless, or intentional• Penalty applies to all taxes except when fraud is involved

• Penalty can be avoided upon showing “reasonable cause”



• Substantial understatement of tax liability– Occurs when tax understatement exceeds the larger of

10% of amount due or $5,000

– For a C corporation, a substantial understatement occurs when tax understatement exceeds the lesser of

• 10% of the tax due, but at least $10,000

• $10 million

• This penalty applies unless: • The taxpayer has “substantial authority” for the tax treatment

• Relevant facts are disclosed in the tax return

• Substantial understatement of tax liability– Occurs when tax understatement exceeds the larger of

10% of amount due or $5,000

– For a C corporation, a substantial understatement occurs when tax understatement exceeds the lesser of

• 10% of the tax due, but at least $10,000

• $10 million

• This penalty applies unless: • The taxpayer has “substantial authority” for the tax treatment

• Relevant facts are disclosed in the tax return



• Penalty for overvaluation of an asset – Penalty is 20% of additional tax that would have been

due if correct valuation had been used

– Penalty applies if valuation is 150% or more of correct valuation

• Penalty is doubled if the valuation is overstated by 200% or more

– Penalty applies only to extent that resulting tax underpayment exceeds $5,000 ($10,000 for C corporations)

• Penalty for overvaluation of an asset – Penalty is 20% of additional tax that would have been


– Penalty applies if valuation is 150% or more of correct valuation

• Penalty is doubled if the valuation is overstated by 200% or more

– Penalty applies only to extent that resulting tax underpayment exceeds $5,000 ($10,000 for C corporations)



• Penalty for undervaluation of an asset – Penalty is 20% of additional tax that would have been


– Penalty applies if the valuation is 65% or less than the correct amount

• Penalty is doubled if the reported valuation was 40% or less than the correct determination

– The penalty applies only to an additional transfer tax liability in excess of $5,000

• Penalty for undervaluation of an asset – Penalty is 20% of additional tax that would have been


– Penalty applies if the valuation is 65% or less than the correct amount

• Penalty is doubled if the reported valuation was 40% or less than the correct determination

– The penalty applies only to an additional transfer tax liability in excess of $5,000



• Appraiser’s Penalty– When a valuation penalty arises due to reliance on an

appraisal and the appraiser knew the appraisal would be used as part of a tax or refund computation, then the appraiser pays a penalty equal to the lesser of:

• 10% of the tax understatement, but at least $1,000, or

• 125% of the gross income received by the appraiser from the engagement (e.g., the appraisal fee collected)

• Appraiser’s Penalty– When a valuation penalty arises due to reliance on an

appraisal and the appraiser knew the appraisal would be used as part of a tax or refund computation, then the appraiser pays a penalty equal to the lesser of:

• 10% of the tax understatement, but at least $1,000, or

• 125% of the gross income received by the appraiser from the engagement (e.g., the appraisal fee collected)


Taxpayer Penalties (slide 9 of 11Taxpayer Penalties (slide 9 of 11

• Penalty for Improper Refund Claim– If a refund claim is filed and later found to exceed the

final amount allowed by the IRS or a court, a penalty of 20% of the disallowed refund results

• The penalty is waived if the taxpayer can show a “reasonable

basis” for the refund claim (i.e., probably a 20% chance that a court would allow the refund)

• This penalty is meant to discourage the taxpayer from overstating the amount of the refund requested from the IRS

• Penalty for Improper Refund Claim– If a refund claim is filed and later found to exceed the

final amount allowed by the IRS or a court, a penalty of 20% of the disallowed refund results

• The penalty is waived if the taxpayer can show a “reasonable

basis” for the refund claim (i.e., probably a 20% chance that a court would allow the refund)

• This penalty is meant to discourage the taxpayer from overstating the amount of the refund requested from the IRS



• Civil fraud penalty– 75% penalty on any underpayment resulting

from fraud by the taxpayer– For this penalty, burden of proving taxpayer

civil fraud “by a preponderance of evidence” is on the IRS

• Civil fraud penalty– 75% penalty on any underpayment resulting

from fraud by the taxpayer– For this penalty, burden of proving taxpayer

civil fraud “by a preponderance of evidence” is on the IRS



• Criminal penalties– Various monetary fines and/or imprisonment

may be assessed– Burden of proof is on IRS to show guilt

“beyond the shadow of any reasonable doubt”

• Criminal penalties– Various monetary fines and/or imprisonment

may be assessed– Burden of proof is on IRS to show guilt

“beyond the shadow of any reasonable doubt”


Estimated Taxes(slide 1 of 3)


• A penalty is imposed for failure to pay estimated taxes– Applies to individuals, corporations, trusts, and certain

estates– Penalty is not imposed if tax due < $500 for

corporations, $1,000 for all others• Quarterly estimated tax payments should be paid

on 15th day of the 4th , 6th , and 9th months of the current year and the 1st month of the following year– Corporations must make the last quarterly payment by

the 12th month of the current year

• A penalty is imposed for failure to pay estimated taxes– Applies to individuals, corporations, trusts, and certain

estates– Penalty is not imposed if tax due < $500 for

corporations, $1,000 for all others• Quarterly estimated tax payments should be paid

on 15th day of the 4th , 6th , and 9th months of the current year and the 1st month of the following year– Corporations must make the last quarterly payment by

the 12th month of the current year




• An individual’s underpayment of estimated tax is the difference between the estimates that were paid and the lesser of :– 90% of the current-year tax, – 90% of the tax on an annualized income basis, and – 100% of the prior-year tax

• If prior-year AGI > $150,000, the required payment for the prior-year alternative is 110 %

• For 2009, 100% requirement is reduced to 90% if > half of year’s gross income came from a small business (fewer than 500 employees and AGI < $500,000)

• An individual’s underpayment of estimated tax is the difference between the estimates that were paid and the lesser of :– 90% of the current-year tax, – 90% of the tax on an annualized income basis, and – 100% of the prior-year tax

• If prior-year AGI > $150,000, the required payment for the prior-year alternative is 110 %

• For 2009, 100% requirement is reduced to 90% if > half of year’s gross income came from a small business (fewer than 500 employees and AGI < $500,000)




• A corp.’s underpayment of estimated tax is the difference between the estimates paid and the lesser of:– The current-year tax, – The prior-year tax, and – The tax on an annualized income computation

• For the prior-year alternative– The prior tax year must have been a full 12 months, and– A nonzero tax amount must have been generated for that year– For large corporations (taxable income of $1 million or more in

any of the 3 immediately preceding tax years) • Can use this alternative only for the 1st installment

• A corp.’s underpayment of estimated tax is the difference between the estimates paid and the lesser of:– The current-year tax, – The prior-year tax, and – The tax on an annualized income computation

• For the prior-year alternative– The prior tax year must have been a full 12 months, and– A nonzero tax amount must have been generated for that year– For large corporations (taxable income of $1 million or more in

any of the 3 immediately preceding tax years) • Can use this alternative only for the 1st installment


Other Penalties (slide 1 of 3)Other Penalties (slide 1 of 3)

• False Information with Respect to Withholding– A civil penalty of $500 applies when a taxpayer claims

withholding allowances based on false information

– A criminal penalty for willfully failing to supply information or supplying false or fraudulent information is an additional fine of up to $1,000 and/or up to one year of imprisonment

• False Information with Respect to Withholding– A civil penalty of $500 applies when a taxpayer claims

withholding allowances based on false information

– A criminal penalty for willfully failing to supply information or supplying false or fraudulent information is an additional fine of up to $1,000 and/or up to one year of imprisonment



• Failure to Make Deposits of Taxes and Overstatements of Deposits– A penalty of up to 15% applies for failure to pay the

FICA and income tax amounts withheld from wages of employees

– A 100% penalty applies if the employer’s actions are willful

– In addition, the employer remains liable for the employees’ income and payroll taxes that should have been paid

• Failure to Make Deposits of Taxes and Overstatements of Deposits– A penalty of up to 15% applies for failure to pay the

FICA and income tax amounts withheld from wages of employees

– A 100% penalty applies if the employer’s actions are willful

– In addition, the employer remains liable for the employees’ income and payroll taxes that should have been paid



• Failure to Provide Information Regarding Tax Shelters– A tax shelter organizer must register the shelter with

the IRS before any sales are made to investors• A penalty of up to $10,000 is assessed if the required

information is not filed with the Service

– The shelter organizer must also maintain a list of identifying information of all its investors

• Failure to fully and truthfully maintain the list can result in a penalty of up to $100,000 per investment

• Failure to Provide Information Regarding Tax Shelters– A tax shelter organizer must register the shelter with

the IRS before any sales are made to investors• A penalty of up to $10,000 is assessed if the required

information is not filed with the Service

– The shelter organizer must also maintain a list of identifying information of all its investors

• Failure to fully and truthfully maintain the list can result in a penalty of up to $100,000 per investment


Statutes of Limitations (slide 1 of 2)Statutes of Limitations (slide 1 of 2)

• In general, any tax imposed must be assessed within 3 years of filing the return (or, if later, the due date of the return)– Exceptions to the 3 year rule include:

• If no return is filed or a fraudulent return is filed, there is no statute of limitations

• If taxpayer omits gross income > 25% of gross income stated on the return, statute of limitations is extended to six years

• In general, any tax imposed must be assessed within 3 years of filing the return (or, if later, the due date of the return)– Exceptions to the 3 year rule include:

• If no return is filed or a fraudulent return is filed, there is no statute of limitations

• If taxpayer omits gross income > 25% of gross income stated on the return, statute of limitations is extended to six years


Statutes of Limitations (slide 2 of 2)Statutes of Limitations (slide 2 of 2)

• Refund claims– Must be filed within 3 years of filing the tax

return or within 2 years following payment of the tax, if later

– A 7 year period applies to refund claims relating to bad debts and worthless securities

• Refund claims– Must be filed within 3 years of filing the tax

return or within 2 years following payment of the tax, if later

– A 7 year period applies to refund claims relating to bad debts and worthless securities


Circular 230 (slide 1 of 4)Circular 230 (slide 1 of 4)

• Generally, practice before the IRS is limited to CPAs, attorneys, and enrolled agents– In limited situations, other parties may be allowed to

practice before the IRS• A taxpayer may always represent himself or herself• Employees may represent their employers• Corporations may be represented by their officers• Partnerships may be represented by any of the partners• Trusts, receiverships, guardianships, or estates may be

represented by their trustees, receivers, guardians, or administrators or executors

• A taxpayer may be represented by whoever prepared the return for the year in question

• Generally, practice before the IRS is limited to CPAs, attorneys, and enrolled agents– In limited situations, other parties may be allowed to

practice before the IRS• A taxpayer may always represent himself or herself• Employees may represent their employers• Corporations may be represented by their officers• Partnerships may be represented by any of the partners• Trusts, receiverships, guardianships, or estates may be

represented by their trustees, receivers, guardians, or administrators or executors

• A taxpayer may be represented by whoever prepared the return for the year in question



• Circular 230 prescribes rules governing practice before the IRS – Includes prohibitions against:

• Taking a position on a tax return unless there is a realistic possibility of it being sustained

• Taking frivolous tax return positions

• Circular 230 prescribes rules governing practice before the IRS – Includes prohibitions against:

• Taking a position on a tax return unless there is a realistic possibility of it being sustained

• Taking frivolous tax return positions



– Also contains requirements to:• Disclose nonfrivolous tax return positions that fail

the realistic possibility standard

• Inform clients of penalties likely to apply and ways they can be avoided

• Make known to clients any error or omission the client may have made

• Submit records lawfully requested by the IRS

– Also contains requirements to:• Disclose nonfrivolous tax return positions that fail

the realistic possibility standard

• Inform clients of penalties likely to apply and ways they can be avoided

• Make known to clients any error or omission the client may have made

• Submit records lawfully requested by the IRS



– Also contains requirements to: (cont’d)• Exercise due diligence in preparing and filing tax

returns accurately

• Not unreasonably delay disposition of matters before the IRS

• Not charge an “unconscionable fee” for representing a client before the IRS

• Not represent clients with conflicting interests

– Also contains requirements to: (cont’d)• Exercise due diligence in preparing and filing tax

returns accurately

• Not unreasonably delay disposition of matters before the IRS

• Not charge an “unconscionable fee” for representing a client before the IRS

• Not represent clients with conflicting interests


Preparer Penalties (slide 1 of 4)Preparer Penalties (slide 1 of 4)

• The Code provides penalties to discourage improper actions by tax practitioners

1. A penalty for understatements due to taking an unreasonable position on a tax return– The penalty is imposed if the tax position:

• Is not disclosed on the return and there was no substantial authority (i.e., a greater than 40% chance) that the tax position would be sustained by its merits on a final court review, or

• Is disclosed on the return and there was not a reasonable basis (i.e., probably a 20% chance) for the position

– The penalty is computed as the greater of • $1,000 or • One-half of the income of the practitioner that is attributable to the

return

• The Code provides penalties to discourage improper actions by tax practitioners

1. A penalty for understatements due to taking an unreasonable position on a tax return– The penalty is imposed if the tax position:

• Is not disclosed on the return and there was no substantial authority (i.e., a greater than 40% chance) that the tax position would be sustained by its merits on a final court review, or

• Is disclosed on the return and there was not a reasonable basis (i.e., probably a 20% chance) for the position

– The penalty is computed as the greater of • $1,000 or • One-half of the income of the practitioner that is attributable to the

return



2. A penalty for willful and reckless conduct – The penalty applies if any part of the understatement of

a taxpayer’s liability on a return or claim for refund is due to:

• The preparer’s willful attempt to understate the taxpayer’s tax liability in any manner

• Any reckless or intentional disregard of IRS rules or regulations by the preparer

– The penalty is computed as the greater of • $5,000 or • One-half of the income of the practitioner that is attributable

to the return or claim

2. A penalty for willful and reckless conduct – The penalty applies if any part of the understatement of

a taxpayer’s liability on a return or claim for refund is due to:

• The preparer’s willful attempt to understate the taxpayer’s tax liability in any manner

• Any reckless or intentional disregard of IRS rules or regulations by the preparer

– The penalty is computed as the greater of • $5,000 or • One-half of the income of the practitioner that is attributable

to the return or claim



3. A $1,000 penalty ($10,000 for corps.) is imposed against persons who aid in preparation of returns they know (or have reason to believe) would result in an understatement of tax liability of another person– If this penalty applies, neither the unreasonable position

penalty (item 1) nor the willful and reckless conduct penalty (item 2) is assessed

3. A $1,000 penalty ($10,000 for corps.) is imposed against persons who aid in preparation of returns they know (or have reason to believe) would result in an understatement of tax liability of another person– If this penalty applies, neither the unreasonable position

penalty (item 1) nor the willful and reckless conduct penalty (item 2) is assessed



4. A $50 penalty is assessed against the preparer for failure to sign a return or furnish the preparer’s identifying number

5. A $50 penalty is assessed if the preparer fails to furnish a copy of the return or claim for refund to the taxpayer

6. A $500 penalty may be assessed if a preparer endorses or otherwise negotiates a check for refund of tax issued to the taxpayer

4. A $50 penalty is assessed against the preparer for failure to sign a return or furnish the preparer’s identifying number

5. A $50 penalty is assessed if the preparer fails to furnish a copy of the return or claim for refund to the taxpayer

6. A $500 penalty may be assessed if a preparer endorses or otherwise negotiates a check for refund of tax issued to the taxpayer


Privileged CommunicationsPrivileged Communications

• Communications between attorney and client are protected from disclosure to other parties (such as the IRS and the tax courts) – Similar privilege of confidentiality extends to tax

advice between a taxpayer and tax practitioner

– Not available for matters involving: • Criminal charges

• Questions brought by other agencies, such as the Securities and Exchange Commission

• Promoting or participating in tax shelters

• Communications between attorney and client are protected from disclosure to other parties (such as the IRS and the tax courts) – Similar privilege of confidentiality extends to tax

advice between a taxpayer and tax practitioner

– Not available for matters involving: • Criminal charges

• Questions brought by other agencies, such as the Securities and Exchange Commission

• Promoting or participating in tax shelters


AICPA Standards For Tax Services (slide 1 of 6)


Statement No. 1: Tax Return Positions– Under certain circumstances, a CPA may take a

position that is contrary to that taken by the IRS• Must have a good faith belief that the position has a realistic

possibility (i.e., probably a one-in-three chance) of being sustained

• Fully advise client of the risks involved and the associated penalties

– The CPA should not take a questionable position based on the probabilities that the client’s return will not be chosen by the IRS for audit

Statement No. 1: Tax Return Positions– Under certain circumstances, a CPA may take a

position that is contrary to that taken by the IRS• Must have a good faith belief that the position has a realistic

possibility (i.e., probably a one-in-three chance) of being sustained

• Fully advise client of the risks involved and the associated penalties

– The CPA should not take a questionable position based on the probabilities that the client’s return will not be chosen by the IRS for audit




Statement No. 2: Questions on Returns– A CPA should make a reasonable effort to

obtain from the client, and provide, appropriate answers to all questions on a tax return before signing as preparer

• Reasonable grounds may exist for omitting an answer

Statement No. 2: Questions on Returns– A CPA should make a reasonable effort to

obtain from the client, and provide, appropriate answers to all questions on a tax return before signing as preparer

• Reasonable grounds may exist for omitting an answer




Statement No. 3:Procedural Aspects of Preparing Returns– In preparing a return, a CPA may in good faith

rely without verification on information furnished by the client or by third parties

• The CPA should make reasonable inquiries if the information appears to be incorrect, incomplete, or inconsistent.

• The CPA should refer to the client’s returns for prior years whenever appropriate

Statement No. 3:Procedural Aspects of Preparing Returns– In preparing a return, a CPA may in good faith

rely without verification on information furnished by the client or by third parties

• The CPA should make reasonable inquiries if the information appears to be incorrect, incomplete, or inconsistent.

• The CPA should refer to the client’s returns for prior years whenever appropriate




Statement No. 4:Estimates– A CPA may prepare a tax return using

estimates received from a taxpayer if it is impracticable to obtain exact data

• The estimates must be reasonable under the facts and circumstances as known to the CPA

• When estimates are used, they should be presented in such a manner as to avoid the implication of greater accuracy than exists

Statement No. 4:Estimates– A CPA may prepare a tax return using

estimates received from a taxpayer if it is impracticable to obtain exact data

• The estimates must be reasonable under the facts and circumstances as known to the CPA

• When estimates are used, they should be presented in such a manner as to avoid the implication of greater accuracy than exists




Statement No. 5: Recognition of Administrative Proceeding or Court Decision– As facts may vary from year to year, so may the

position taken by a CPA– In these types of situations, the CPA is not

bound by an administrative or judicial proceeding involving a prior year

Statement No. 5: Recognition of Administrative Proceeding or Court Decision– As facts may vary from year to year, so may the

position taken by a CPA– In these types of situations, the CPA is not

bound by an administrative or judicial proceeding involving a prior year




Statement No. 6: Knowledge of Error– A CPA should promptly advise a client upon

learning of an error in a previously filed return or upon learning of a client’s failure to file a required return

• The error or other omission should not be disclosed to the IRS without the client’s consent

• If the past error is material and is not corrected by the client, the CPA may be unable to prepare the current year’s tax return

Statement No. 6: Knowledge of Error– A CPA should promptly advise a client upon

learning of an error in a previously filed return or upon learning of a client’s failure to file a required return

• The error or other omission should not be disclosed to the IRS without the client’s consent

• If the past error is material and is not corrected by the client, the CPA may be unable to prepare the current year’s tax return


If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact:

Dr. Donald R. Trippeer, [email protected]

SUNY Oneonta

If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact:

Dr. Donald R. Trippeer, [email protected]

SUNY Oneonta

c26 - 1 comprehensive volume chapter 26 tax practice and ethics copyright ©2010 cengage learning...

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