Penalty Games: Reducing IRS Penalties

1. Penalty Games: Reducing IRS Penalties • All audio is streamed through your computer speakers. • There will be several attendance verification questions during the LIVE webinar that must be answered via the online quiz at the conclusion to qualify for CPE. • For the archived/recorded version of this webinar, there are also 3 review questions per hour and the link to the attendance verification quiz is a final exam on the topics covered during the presentation. • Please note: You will not hear any sound until the webinar begins.

2. Penalty Games: Reducing IRS Penalties Presenter(s): Robert E. McKenzie Arnstein & Lehr LLP Chicago, IL Website: www.mckenzielaw.com Date: June 10, 2014 Time: 2:00-4:00PM Eastern

3. Learning Objectives • Upon completion of this webinar you will be able to: • Identify some of the most common types of collection and accuracy-related penalties • Determine penalty periods and penalty rates • Compute penalties the IRS will assess • Avoid cascading penalties • Define reasonable cause and determine if it can be used for penalty relief • Determine if a taxpayer has exercised ordinary business care and prudence • Identify the IRS’s preferred reasons for penalty abatement and relief • Write an effective request for abatement of penalties • Reduce tax penalties asserted by the IRS against your clients

4. Origins • TP files w/o payment • TP audited • TP loses in Tax Court • TP fails to file and IRS prepares a substitute for Return (SFR)

5. Filed Return • IRS receives return w/o payment and sends a bill in about 5 weeks • Bill includes penalties and interest • Rate dropped to 3% in October, 2011

6. Bad Checks The 2% penalty for bad checks or money orders increases to a minimum of $25 applicable to checks or money orders.

7. FAILURE TO FILE TAX RETURN • 5%: Max 25% • 4.5% if FTP applied: Max 22.5% • Coordination between FTF and FTP Penalty Rates • Minimum Failure to File: The lesser of: $100.00 or 100 percent of the amount required to be shown as tax on the return. After 2008 penalty increased to $135.

8. Failure to Pay Tax (FTP) • 5%: Max 25% • 1% after Sec. 6331 Notice: Max 25% • .25% after acceptance of an installment agreement: 8.5%

9. PENALTY COMPUTATION • Example 1 Failure to File and Failure to Pay Form 1040 • Return Due Date (041599) - Tax year 1998Code Date Received Amount Comments • TC 150 122699 $1,753.00 Amount of tax on return • TC610 112199 $953.00 Payment received with the return • TC660 061798 $800.00 Estimated tax payment

10. PENALTY COMPUTATION • $ 953.00 • x .045 • $ 42.89 Amount per month • x 5 Number of months $214.45 Failure to file penalty

11. Review Questions for Self Study CPE: Now’s the time to answer the review questions 1-3. Click here: http://www.proprofs.com/quiz-school/story.php?title=NzI1Njc1J5M0 *Please leave quiz window open and wait to submit until prompted to complete questions 4-6. Once all questions are complete submit and close quiz window.

12. PENALTY COMPUTATION $ 953.00 X .005 $ 4.77 Amount per month x 8 Number of months $ 38.16 Failure to pay penalty $ 214.45 FTF + 38.16 FTP $ 252.61 Total penalty

13. Fraudulent Failure to File • 15% per month • Max 75%

14. FAILURE TO DEPOSIT PENALTY • ⋅2 percent for deposits 1-5 days late, • ⋅5 percent for deposits 6-15 days late, • ⋅10 percent for all direct payments and those deposits made more than 15 days late , but paid on or before the 10th day following notice and demand. • ⋅15 percent (actually, a 5 percent addition to the 10 percent for late payment above for all undeposited taxes still unpaid after the 10th day following the first balance due notice or the day on which notice and demand for immediate payment is given

15. Cascading PenaltiesIRC Sec. 6656 • Right to direct payments to timely deposits • IRS computer uses an unfair system • Example: • Company owes weekly deposit of $10,000 • Misses first deposit • Pays remainder of deposits on time • IRS applies each deposit to the prior week • 5% penalty on $120,000 = $6,000 • 10% penalty on one deposit of $10,000 = $1,000 • Total penalty $7,000

16. Cascading Failure to Deposit Penalty Correction: One late $10,000 deposit = $1,000 NET SAVINGS: $6,000

17. REASONABLE CAUSE • Any reason that establishes a taxpayer exercised ordinary business care and prudence but was unable to comply with the tax law may be considered for penalty relief.

18. Ordinary Business Care and Prudence Ordinary • Ordinary business care and prudence includes making provision for business obligations to be met when reasonably foreseeable events occur. • Facts and circumstances showing the taxpayer exercised ordinary business care and prudence (taking that degree of care that a reasonably prudent person would exercise), but nevertheless was unable to comply with the law

19. Reasons for Penalty Relief • Although the IRM provides: • “When considering the information provided in the following subsections, remember that an acceptable explanation is not limited to those given in IRM 20.1. Penalty relief may be warranted based on an "other acceptable explanation," provided the taxpayer exercised ordinary business care and prudence but was nevertheless unable to comply within the prescribed time.” See IRM 20.1.1.3.2.2, Ordinary Business Care and Prudence. • Your chance of prevailing is better if you cite to one of there favorite reasons

20. REASONABLE CAUSE • Death, Serious Illness, or Unavoidable Absence Pg. 14 • Fire, Casualty, Natural Disaster, or Other Disturbance Pg. 15 • Unable to Obtain Records Pg. 16 • Mistake was Made Pg. 16 • Erroneous Advice or Reliance Pg. 17 • Ignorance of the Law Pg. 18 • Forgetfulness Pg. 18 • Statutory Exceptions or Waivers Pg. 19

21. Statutory Exceptions

22. REASONABLE CAUSE • Undue Hardship Pg. 23 • Written Advice From IRS Pg. 26 • Oral Advice From IRS Pg. 26 • Advice from a Tax Advisor Pg. 27 • Official Disaster Area Pg. 28 • Service Error Pg.28

23. Reasonable Cause Assistant • When you request reasonable cause relief IRS personnel use a computer program: Reasonable Cause Assistant (RCA) to determine if relief is appropriate. Pg. 28 • RCA relies on the skill set of the person completing the computer generated questionnaire. • You can enhance your clients chances of prevailing by citing to the IRM & concisely setting forth the facts of your case because it will reduce the chances of operator error.

24. First Time Abatement • RCA provides an option for penalty relief for the FTF, FTP, and/or FTD penalties if the taxpayer has not previously been required to file a return or if no prior penalties (except the Estimated Tax Penalty, TC 17X) have been assessed on the same MFT This First-time Abate (FTA) aspect is an Administrative Waiver and does not carry any Oral Statement Authority (OSA) dollar threshold. • The FTA Administrative Waiver can only apply to a single tax period for a given MFT. • For example, if a request for penalty relief is being considered for 2 or more tax periods on the same MFT and the earliest tax period meets FTA criteria, penalty relief based on FTA only applies to the earliest tax period, not all tax periods being considered. Penalty relief for all subsequent tax periods will be based on the showing of reasonable cause (and absence of willful neglect).

25. Abatement Request • Submit separate for each period • Ask for abatement based upon reasonable cause in first paragraph • Statement of facts • Law • Discussion • Conclusion

26. Sec. 6404 • Suspension of P&I. The time period where IRS suspends charging P&I until a taxpayer has been notified of the additional tax is extended from the current 18 months to 36 months effective for notices after November 25, 2007 • Interest immediately after the IRS proposes a deficiency • Exception: tax shelters

27. Review Questions for Self Study CPE: Now’s the time to answer the review questions 4-6. Click here: http://www.proprofs.com/quiz-school/story.php?title=NzI1Njc1J5M0 *Once all questions are complete please submit and close quiz window.

28. Questions? Robert E. McKenzie Arnstein & Lehr LLP Chicago, IL Website: www.mckenzielaw.com

29. Thank you for participating in this webinar.Below is the link to the online survey and CPE quiz: http://webinars.nsacct.org/postevent.php?id=13529Use your password for this webinar that is in your email confirmation. You must complete this survey and the quiz or final exam (for the recorded version) to qualify to receive CPE credit. National Society of Accountants 1010 North Fairfax Street Alexandria, VA 22314-1574 Phone:  (800) 966-6679 members@nsacct.org