IRS Penalty Abatement Letters. Quick Start Guide & Appeals Manual

Transcription

1 IRS Penalty Abatement Letters Quick Start Guide & Appeals Manual

2 IRS Penalty Abatement Criteria The primary IRS penalty abatement reasonable cause criteria center around natural disasters, loss or destruction of vital business records, bad advice from the IRS or an accounting professional, criminal activity, medical issues, substance abuse problems, and other serious circumstances. A couple years ago I developed a standard list of questions to ask clients to assist me in preparing their penalty abatement. This list of questions should be given some serious thought before requesting penalty abatement, as you are more likely to get what you want if your request covers one of these areas: Were any financial records lost or destroyed? Was there any transition in your business that lead to the failure to pay taxes, such as a change of ownership? Was there a death or serious illness that directly affected your ability to work or impacted the operation of your business? Were you the victim of any embezzlement of funds, theft of valuable property, or identity theft? Were there any alcohol or drug abuse issues that affected your business or your personal wage earning capability? Was there a natural disaster that impacted you or your business? Did you rely on the advice of a CPA or IRS employee in making tax decisions? Were there any circumstances that created substantial financial hardship, to the point where either yourself or your business was close to going bankrupt? These questions cover all of the IRS reasonable cause criteria to one extent or another, so finding an answer to your personal or business situation that covers one or more of these questions is the key to a successful penalty abatement application.

3 Writing Your Penalty Abatement Request You can use Form 843, Claim for Refund and Request for Abatement to apply for relief from penalties. However, as a tax practitioner, I never have, not even once. The reason is simply because the form only has room for about two sentences in order to explain WHY you are requesting the penalties to be removed. Therefore, you're going to end up writing a lengthy letter anyway that gets attached to the Form 843. Because of this, I simply write a letter for my clients that includes all the same information as the Form 843. My typical penalty abatement letter is 3 to 5 pages long, and some are even longer. The format of a penalty abatement letter is fairly straightforward. When requesting a penalty abatement, I suggest the following format: 1. Indicate the particular penalty types, tax periods, and penalty amounts that you are requesting to be reduced or removed. 2. Include a very brief introduction about who you are, where you live, your family size, and what you do. For a business, give a very brief description of your business, what it does, and how it does it. 3. Provide the background story to the event that caused the tax bills to go unpaid. Be sure to include very specific details, including names, dates, places, events, etc. 4. After explaining why the taxes weren't paid, explain what actions you took to correct the situation, including an explanation regarding the length of time it took to get the tax situation addressed. 5. For business taxes, explain why other business expenses were paid when the taxes were not. 6. Explain the current state of affairs, including the current status of your personal or business finances, and also the status of meeting your current tax obligations and how you've addressed the back tax liabilities 7. Sign your request under penalties of perjury.

4 Where To Send Penalty Abatement Requests If you have or recently had a Revenue Officer assigned to you, send your penalty abatement request to that Revenue Officer. If you do not have a Revenue Officer: Most of your IRS notices most likely come from one particular IRS service center. Make note of the address of that IRS center, and mail your request their to the attention of Service Center Penalty Appeals Coordinator.

5 Appealing Penalty Abatement Denials If a Revenue Officer or Service Center Penalty Appeals Coordinator denies your request for a penalty abatement, that denial comes with Appeals rights. When filing an appeal of a penalty abatement denial, do the following: 1. Write a letter back to the person that denied your penalty abatement requesting that your request be sent to Appeals for reconsideration. 2. If you have already paid the penalty, include a Form 843, Claim for Refund, for each tax period you are requesting penalty relief for. 3. Include a copy of your original written request for penalty relief, and a copy of the denial letter. Appeals consideration of penalties has an additional interesting possibility other than full abatement; Appeals has the authority to settle penalties for less than what is owed, without going through the Offer in Compromise process. Due to the fact that an Appeals denial of penalty relief comes with the right to sue the Federal government, and Appeals is required to consider the possible of the government having to spend money to defend itself in court, Appeals is granted the authority to settle penalties for less than what is owed based on the potential risk of litigation. In other words, threatening to sue over penalties may actually be to your benefit.

6 [Date] Internal Revenue Service Center Attn: Abatement Processing Ogden, UT Re: [NAME] (SSN ) & [NAME] (SSN ) To whom it may concern: Please consider this correspondence as an official request for the abatement of Late Filing and Failure to Pay Penalties for [NAME], SSN Forms 1040 for the following tax periods:, and [NAME], SSN, for [YEAR] [YEAR] The taxpayer s failure to file tax returns and pay the associated tax was not due to an intentional disregard for their obligations under the tax code. The taxpayer s family experienced a series of family difficulties during the tax periods in question that left them with significant additional personal responsibilities [Explanation of situation that lead to hardship] [Why the hardship left taxpayer without financial resources to meet tax obligations.] The inability to meet basic living expenses for children should be considered substantial financial loss as used in the definition of the term undue hardship in 26 CFR , quoted here for your convenience: The term undue hardship means more than an inconvenience to the taxpayer. It must appear that substantial financial loss, for example, loss due to the sale of property at a sacrifice price, will result to the taxpayer for making payment on the due date of the amount with respect to which the extension is desired. (26 CFR (b)) Application of the reasonable person standard carries that an inability to properly care for the children in a family due to events completely outside the taxpayer s control does establish a reasonable cause for failure to pay the tax when due because of the presence of an undue hardship. East Winds Industries, Inc. v United States states that, The Code does not bar consideration of financial difficulties in determining whether reasonable cause has been established The case also establishes that, a failure to pay will be considered to be due to reasonable cause to the extent that the taxpayer has made a satisfactory showing that he exercised ordinary business care

7 and prudence in providing for payment of his tax liability and was nevertheless either unable to pay the tax or would suffer an undue hardship if he paid on the due date. In determining whether the taxpayer was unable to pay the tax in spite of the exercise of ordinary business care and prudence in providing for payment of his tax liability, consideration will be given to all the facts and circumstances of the taxpayer s financial situation, including the amount and nature of the taxpayer s expenditures in light of the income (or other amounts) he could, at the time of such expenditures, reasonably expect to receive prior to the date prescribed for the payment of the tax. The taxpayer s non-payment of taxes was not due to an intentional disregard of the taxpayer s obligation, but rather due to an undue hardship as defined in the Internal Revenue Code. Since recovering financially, the taxpayer has made every effort to become current with federal tax requirements and has entered into an Installment Agreement in the amount of $ per month to address the outstanding liability. We request that the abatement of penalties granted based on the facts presented here and within the accompanying enclosures. Under penalties of perjury, I declare that the facts presented in my statement of disputed issues, which are set out in the accompanying statement of facts, schedules, and other attached statements are, to the best of my knowledge and belief, true, correct, and complete. Sincerely,

8 [Date] Internal Revenue Service Attn: [Address] [City], [ST] [ZIP] Fax: [FAX] Re: [COMPANY], TIN [TIN] Dear : Please consider this correspondence as an official request for the abatement of Late Filing, Failure to Pay, and Federal Tax Deposit Penalties for [FIRM] for Forms for the following tax periods: [COMPANY] is a provider of [describe services, products, occupation]. [Some time ago that corresponds to the time tax problems started], [COMPANY] [explain initial circumstances 2 paragraphs max] [Why the problem continued 1 to 2 paragraphs max] [What was done to resolve the problem 1 paragraph max] [Current circumstances and what will prevent future problems] The company s failure to make Federal tax deposits was due entirely to insufficient capital as a result of. The payment of Federal taxes over other absolutely necessary business expenses would have, without a doubt, resulted in closure of the business. Business closure and resulting loss of livelihood would be considered substantial financial loss as used in the definition of the term undue hardship in 26 CFR , quoted here for your convenience: The term undue hardship means more than an inconvenience to the taxpayer. It must appear that substantial financial loss, for example, loss due to the sale of property at a sacrifice price, will result to the taxpayer for making payment on the due date of the amount with respect to which the extension is desired. (26 CFR (b))

9 The taxpayer suffered significant financial investment loss as a result of customers slow or no-paying, and has amounts far in excess of the federal tax liability that will never be recovered in court, and therefore the taxpayer is having to personally absorb the expenses of contracts that it was never paid on but for which work was completed. Application of the reasonable person standard carries that loss of revenue due to events completely outside the taxpayer s control that directly impact the principal business activity does establish a reasonable cause for failure to pay the tax when due because of the presence of an undue hardship. East Winds Industries, Inc. v United States states that, The Code does not bar consideration of financial difficulties in determining whether reasonable cause has been established, and it does not differentiate between trust fund taxes and non-trust fund taxes. The case of East Winds Industries, Inc. v United States also establishes that, a failure to pay will be considered to be due to reasonable cause to the extent that the taxpayer has made a satisfactory showing that he exercised ordinary business care and prudence in providing for payment of his tax liability and was nevertheless either unable to pay the tax or would suffer an undue hardship if he paid on the due date. In determining whether the taxpayer was unable to pay the tax in spite of the exercise of ordinary business care and prudence in providing for payment of his tax liability, consideration will be given to all the facts and circumstances of the taxpayer s financial situation, including the amount and nature of the taxpayer s expenditures in light of the income (or other amounts) he could, at the time of such expenditures, reasonably expect to receive prior to the date prescribed for the payment of the tax. Internal Revenue Manual Section lists four items to consider when determining if ordinary business care and prudence were exercised. These four items are: 1. The taxpayer s demonstration of reasonable cause; 2. The taxpayer s compliance history; 3. The length of time between non-compliance and subsequent compliance; 4. The circumstances beyond the taxpayer s control. For each of these items, the taxpayer exercised ordinary business care and prudence as demonstrated by: 1. Reasonable cause is demonstrated by the above discussion concerning the company s financial hardship; 2. The taxpayer s prior compliance history is strong, in that it did not accrue liabilities until, creating the financial hardship; 3. The length of time between compliance and non-compliance has only been the time during which the taxpayer simply had insufficient revenue to meet the majority of their obligations, including Federal tax payments, which forced job losses and significant economic loss to the taxpayer;

10 4. The circumstances beyond the taxpayer s control include the failure of customers to pay timely and entirely. The taxpayer s non-payment of taxes was not due to an intentional disregard of the taxpayer s obligation, but rather due to an undue hardship as defined in the Internal Revenue Code. Since recovering financially, the taxpayer has made every effort to become current with Federal tax requirements, has become current and compliant with filing and Federal Tax Deposit requirements, and has full paid the outstanding tax, penalty, and interest in full. We request that the abatement of penalties granted based on the facts presented here and within the accompanying enclosures. Under penalties of perjury, I declare that the facts presented in my statement of disputed issues, which are set out in the accompanying statement of facts, schedules, and other attached statements are, to the best of my knowledge and belief, true, correct, and complete. Sincerely,

11 [Date] Internal Revenue Service Attn: [Address] [City], [ST] [ZIP] Fax: [FAX] Re: [COMPANY], TIN [TIN] Dear : Please consider this correspondence as an official request for the abatement of Late Filing, Failure to Pay, and Federal Tax Deposit Penalties for [FIRM] for Forms for the following tax periods: [COMPANY] is a provider of [describe services, products, occupation]. [Some time ago that corresponds to the time tax problems started], [COMPANY] [explain initial circumstances and why the affected person was so important to the company or family 2 paragraphs max] [Why the problem continued 1 to 2 paragraphs max] [What was done to resolve the problem medical explanations may be needed 1 paragraph max] [Current circumstances and what will prevent future problems] Internal Revenue Manual section establishes seven criteria to consider when evaluating a request for penalty abatement based on serious illness and unavoidable absence: 1. The relationship of the taxpayer to the other parties involved; 2. The date of death (if applicable); 3. The dates, duration, and severity of illness; 4. The dates and reasons for absence; 5. How the event prevented compliance; 6. If other business obligations were impaired; 7. If tax duties were attended to promptly when the illness passed, or within a reasonable period of time after a death or absence.

12 For each of these items, the taxpayer demonstrates reasonable cause criteria as follows: 1. The of the corporation was directly affected by the severe illness; 2. A death was not a factor in this matter; 3. Illness initiated in , but was not properly diagnosed until was nearly completely incapacitated from to, and ; 4. from was largely absent from the business during much of the period until, to varying degrees; 5. The illness prevented compliance due to [MEDICAL IMPACT]; 6. Numerous other business obligations were impaired, such as accounts receivable, accounts payable, payroll processing, acquisition of new customers, payment of routine bills, and other normal business activities; 7. Tax duties were promptly addressed after began to recover, and the overwhelming chore of recreating records, filing past due returns, and otherwise organizing financial records was such a burden that eventually brought in outside professional assistance, upon which the business became current and compliant. The taxpayer s non-payment of taxes was not due to an intentional disregard of the taxpayer s obligation, but rather due to serious illness and unavoidable absence as defined in the Internal Revenue Code. Since recovering to a mentally functional state, has done everything possible to correct the tax situation, and continues to remain current and compliant and make timely Installment Agreement payments in the amount of per month. We request that the abatement of penalties be granted based on the facts presented here and within the accompanying enclosures. Under penalty of perjury, I declare that I have examined this request, accompanying schedules, exhibits, affidavits and statements and to the best of my knowledge and belief it is true, correct, and complete. Sincerely,