Tax Practice and Procedure and SBSE Update

Transcription

1 Tax Seminar Baruch College December 3, 2012 Tax Practice and Procedure and SBSE Update Bryan Inoue - Area Director, North Atlantic SBSE, Examination Bryan C. Skarlatos, Kostelanetz & Fink, LLP bskarlatos@kflaw.com

2 Mission of the IRS Provide America s taxpayers top quality service by Helping them understand and meet their tax responsibilities; and Enforce the law with integrity and fairness to all 2

3 BUT HOW DOES THE IRS GET ITS TAXES? WHAT IS THE FIRST STEP? 3

4 Assessment The IRC gives the Secretary of the Treasury the authority to make inquiries, determinations and assessments of all taxes. An assessment is made by recording the liability of the taxpayer in the office of the Secretary of the Treasury. 4

5 Like entering an account receivable 5

6 How Do You Get To Assessment? Voluntary Compliance? 6

7 But What If We Don t Comply? 7

8 The U.S. Tax System is based on Self-Assessment That is what tax returns are all about 8

9 Tax Returns Tax Return is the method of self-assessment Tells the IRS how much we owe and starts the process Also starts the statutes of limitations Civil and criminal penalties for failure to file 9

10 But what if we fail to self-assess the correct amount? That s what audits are all about 10

11 Tax Procedure Overview Tax Return / Self Assessment Audit Protest Notice of Deficiency Assessment Audit Notice RAR 30-Day Letter Appeals Tax Court / Final Decision Collection 11

12 Commissioner Shulman last day Fri, Nov 9 Steve Miller Acting Commissioner

13 Hurricane Sandy Impact Suspend Compliance Activity thru Feb 1, 2013 cannot initiate contact unless have appt or statute expiring FEMA disaster areas

14 Return Preparer Program Abusive Promoters

15 Offshore Programs OVDP Treaty cases Non resident, Non Filer U.S. Taxpayer Program

16 CA LB&I Domestic Realignment RI NJ MA NH VT ME NY PA OH WV KY IN AR MO IA IL MN ND SD WY CO NM AZ UT ID NV OR WA AK 9 MT WI DE Manhattan HI VA NC SC DC NE KS MI GA MS OK TX LA FL AL MD CTM NRC HMP FS RFTH

17 CADE 2

18 Flow Thru (Partnership) Strategy National Research Program

19 VCSP

20 Conduct of Audit Acquisition/provision of information Tax return information Internet Informal discussions Information documents requests ( IDRs ) Summonses Third-party contacts 20

21 Things to Watch Out For Sensitive Issues E.g. Schedule C taxpayer, cash intensive business, double set of books, personal expenses, foreign corporations or accounts, etc. Privileges Tax Return Preparer Attorney Client Work Product Fifth Amendment 21

22 OBJECTIVE: TAXPAYER REPRESENTATION The Audit Early Resolution on most favorable basis possible YOUR ROLE Act as a buffer between the client and the IRS Facilitate effective communication Protect client Humanize the audit process Cooperate with the examiner in a timely manner an audit is not intended as an adversarial process Avoid misleading information of any kind Document control make duplicate copies of documents provided 22

23 TAXPAYER REPRESENTATION Pre-Audit Considerations Consider contacting the IRS examiner in advance of the scheduled examination to possibly streamline or limit the initial scope of the examination Review large, unusual or questionable items in the return Review potentially applicable IRS Audit Technique Guidelines 23

24 TAXPAYER REPRESENTATION Pre-Audit Considerations Review returns of all related entities and taxpayers Review returns for other tax years Pattern of errors? (3-year review) Review related State and Local returns Review prior examination reports, if any 24

25 TAXPAYER REPRESENTATION The Audit - Interviews Taxpayer & Preparer Written questions in advance? Timing? (Near end of the audit) Place? (Where is TP comfortable?) Interview techniques - Be comfortable and personable Ask for clarity if you don t understand questions Maintain appearance of cooperation throughout 25

26 TAXPAYER REPRESENTATION The Audit Anticipate tours of business sites Knowledgeable individuals present Explain business practices Should not disrupt business operations 26

27 TAXPAYER REPRESENTATION The Audit Information Document Request (IDR) Timely, narrative responses Summons have there been timely, reasonable responses to the IDRs? Requests to extend the Statute of Limitations? How much time is reasonable? Request restricted extension? 27

28 TAXPAYER REPRESENTATION The Audit Indirect methods of Determining Income Unexplained bank deposit analysis Expenditures exceed known financial resources Cash hoard? Unexplained increases in net worth Mark-Up analysis 28

29 TAXPAYER REPRESENTATION The Audit - Badges of Fraud Conduct during the examination evasive? Multiple sets of books & records? False or duplicate invoices? Concealment Check cashing Pattern of errors 29

30 TAXPAYER REPRESENTATION The Audit Freedom of Information Act Request (FOIA) Form Search FOIA at irs.gov When to file? Where to file? See list of IRS Disclosure Offices at irs.gov Penalty Considerations Reasonable cause reliance? See IRM Introduction and Penalty Relief Disclosure statement Form

31 TAXPAYER REPRESENTATION Post- Audit, NO Agreement with the IRS Examination Findings Request a conference with the examiner s manager or supervisor If IRS issues a 30-Day Letter : Can request an extension of the 30 day period to respond File a Protest within the referenced 30 day period Proceed to Appeals 31