Tag Archives: IRS

IRS 1099-K Notices: has IRS noticed you?

higas-sos-fly-fishing-fly

Remember those pesky 1099-K forms you received earlier this year?  Well, even though IRS gave up on “matching” the income reported on those forms into your business or personal tax returns, they have undertaken something much worse:  a fishing expedition with your name on the bait.

IRS is now sending out four different types of 1099-K notices called “Letters”:

Letter 5035 – a letter hinting that you “may have” underreported your income with no response required.  A shot across the bow.

Letter 5036 – a letter that does more than hint that you have underreported your income – it provides dollar amounts showing that an unusually high percent of your income came from credit cards and 3rd party payers, and demanding a written response in 30 days explaining why you should not file an amended return and which describes your internal controls and cash receipts procedures and other reasons why a high percentage of total gross receipts comes from credit card transactions.

Letter 5039 – a letter which makes the same assertions as Letter 5036 and requires the taxpayer to complete Form 14420 within 30 days to explain why your income reflects an unusually high percentage of credit card and other 3rd party transactions reported on 1099-K.

Letter 5043 – a letter which alleges that compared to others in your industry, you have underreported your income, citing specific percentages and dollar amounts, and demanding a written response within 30 days explaining why you should not file an amended return and which describes your internal controls and cash receipts procedures and other reasons why a high percentage of total gross receipts comes from credit card transactions.

The response-required letters go to the Tax Examiner section of the IRS, so that should give you a clue that if your response is unsatisfactory it is highly likely that an audit will be initiated.

I have a number of concerns about these notices, but my primary one has to do with the fact that the taxpayer is not being notified of an audit.  These 1099-K Letters are an end run around IRS’ obligations to properly inform taxpayers of their rights and duties during an examination, which includes the right to representation.  Taxpayers may blithely respond, or perhaps even ignore these notices without realizing the implications.

Secondly, IRS makes bald-faced assertions in Letter 5043 which allege specific amounts of unreported income, using statistics which are not cited, and which are supposedly based on the industry code used on the tax return.  As we know, these codes are very broad and somewhat outdated, so that your business may be nothing at all like another business using the same catch-all code.  And, where do their statistics come from?  Are they 10 years old or 1 year old?  Knowing how understaffed IRS is, I am going to guess that the statistics used are not recent.

Finally, the whole idea of 1099-K reporting was to tap the underground economy.  That is a very good goal and one that I fully support.  Unfortunately, these 1099-K letters do no such thing.  Instead of matching 1099-K’s into tax returns, the IRS is going after legitimate businesses whose cash receipts model may not fit their idea of the norm.  This approach will have no impact whatsoever on the multitude of eBay sellers, construction contractors, and others who make up a chunk of the underground economy in the U.S.  We need IRS to go back to the drawing board to re-think the 1099-K matching process and come up with a solution that meets the public policy objective from which this requirement originated.

 

 

Heading Toward Tax Season

xena110708As filing season approaches for the 2012 tax year, I am presenting here a few selected tax tips and updates that are often overlooked by traditional tax sources, hopefully brief enough to not induce boredom but complete enough to give you some valuable information:

The 1099 Matching Nightmare Continues

  • 1099-MISC:  Don’t forget to EXCLUDE payments to vendors made with credit cards from your total 1099-MISC payments.  Those payments will get reported to vendors on Form 1099-K.  If you do get 1099s that are wrong, ask the payer to correct the 1099.  If that is a pain, then report the full amount on your tax return, and then back out the erroneous portion somewhere on your expense lines.  And, make sure you can document why the 1099 you received is wrong.
  • 1099-K:  Even though IRS claims it is not now or ever going to match 1099-K payments into your tax returns, there’s a reason you are getting a 1099-K and that is to tap the underground economy by making sure that all businesses are reporting their gross income.  If you report less gross income than is shown on your Form 1099-K you will be subject to IRS inquiry, for which they have developed new notices related to Form 1099-K.  Be sure to provide all Forms 1099-K to your tax preparer so that they can help you avoid receiving these notices.
  • 1099-B:  If you receive broker 1099s related to your investments, you are by now used to receiving corrected 1099s, often long after you have filed your returns.  Due to new basis matching requirements, you will need to seriously consider whether you are better off extending your tax returns while you wait for all the corrections to come through, rather than having to amend your returns later for the corrections, or having to respond to IRS notices.  IRS plans to match all 1099-B reporting on the new Form 8949, first developed in 2011.  There are now 6 different ways to report capital gains and losses, and there are 21 different codes to use when reporting.  Due to the extra time involved, investors should seriously consider consolidating their brokerage accounts in order to save on accounting fees at tax time.

Charitable Contribution Receipts Must Contain Required Language       

Even if you have a “contemporaneous” receipt (one that you have in hand at the time you file your tax returns), it may be defective and result in the complete disallowance of your charitable deductions.  It MUST contain required language concerning whether or not the donor received any goods or services in exchange for a contribution.  If it doesn’t your contribution deduction will be disallowed in full.

W-2 Reminders to include HSA payments and Health Insurance Premiums

Don’t forget to include ALL H.S.A. payments on the W-2 Form, Box 12, not just payments made by employees through a cafeteria plan.  The purpose of this is to make sure that taxpayers are not contributing beyond the maximum amounts allowed in 2012 to their H.S.A. plans.

For 2012, you don’t have to report the value of health insurance premiums on the W-2s if you issue fewer than 251 W-2s.  If issue more than 250 W-2s, you must report the value of the health insurance premiums on Form W-2.  The reporting is “informational only” and is not subject to income or payroll taxes.

City of Portland Business Tax Rental Property Exemption Is Gone, Gone, Gone

If you own a few rental properties in Portland, but have no other business activities you may be blissfully unaware of the long reach of the City of Portland Business Tax.  Beginning in 2012, the City successfully changed its tax code to include ALL rental activity, not just owners with over 9 rental units within the City.  Don’t panic yet:  there’s a new exemption of $20,000 in gross income with 1 or 2 rentals, but you still have to file a special new Form to receive your exemption.  More info is available at the City’s website.  Remember that the City of Portland has its own special version of taxation without representation:  the gross receipts exemption means gross receipts EVERWHERE, including rentals you own in other states and capital gains on ANYTHING except securities, and includes all activities of your spouse if you file jointly, even if your spouse does not live in the City or have any business interests or activities there.

City of Portland School Arts Tax – You owe the City $35

This was the infamous Measure proposed by Mayor Adams which even arts and education groups such as Stand for Children opposed, mainly because only about ½ of the revenue raised will go to fund arts teachers for our public schools.  It did pass, however, so beginning in 2012 a new form is required of EVERY CITY RESIDENT AGE 18 AND OVER, accompanied by a $35 payment, or an exemption request for those below the poverty level.  The City of Portland is administering the tax, and the filing form has not even been developed yet.  However, the city has designated this link which will go live when the forms are ready:   http://www.artstax.net

Taxes in the Twilight Zone

twilight-zone-spiralI love watching Twilight Zone episodes because it is fun to imagine a world where the usual laws of nature are slightly askew and anything becomes possible.  Fanciful minds can do a lot with that.  Yet, some of those episodes are a bit creepy, even scary and sometimes disturbing.

Congress’ failure to act timely to provide any kind of certainty about tax law both for 2012 and for future years has definitely defied the usual laws which govern rational behavior.  Clearly Republican lawmakers would rather tax the poor and middle class than allow taxes to become progressive again on the top 1%, and it is quite clear that they wish to further the shameful increase in wealth and income inequality in the U.S.

Thanks to this failure, we have wandered across the obscure boundaries of normal reality into twilight zone of taxation.  Here is an overview of our current creepy, scary, and disturbing tax system:

Creepy

  • The zero percent tax rate for millionaires.  How is it possible that millionaires could pay no tax even though they have taxable income?  The zero percent rate was carefully crafted by Bush-era policy makers to permit this by allowing ordinary deductions to first offset ordinary income.  If ordinary deductions, such as charitable contributions, mortgage interest, state income taxes and investment management fees offset an investor’s interest income in full, that investor can be in a position to pay zero percent on all capital gain and dividend income up to the bottom of the 15% bracket.  This is up to $70,700 per year (Married Filing Joint) that is being taxed at zero percent.  The rest of us will pay tax on all of our capital gain and dividend income, because we are working for a living, and can’t possibly manipulate our tax bracket to get below the 15% level.  For investors, this is easy to control, through timing of capital gains, and through investment choices such as the use of municipal bonds or non-dividend paying stocks. And, how many working poor do you know that have an investment portfolio?  Creepier still:  Obama’s tax proposal will not impact this bizarre anomaly – the only hope for this provision to die is for us to fall off the fiscal cliff and keep diving.

Scary

  • The Alternative Minimum Tax affecting some 33 million taxpayers this year, compared to 4 million last year.  Thanks to Congress’ failure to enact the annual “AMT patch” – something it has been doing for decades – means that the AMT exemption amount will revert back to its non-inflation-indexed amount.  This is because the original law failed to index the exemption for inflation.  Rather than fix this permanently, Congress continuously “patches” the exemption amount each year by indexing it to inflation for that year only.  This is because actually fixing the AMT would be far too rational, and remember, we are in the Twilight Zone.  So, millions of taxpayers will see dramatic increases in their tax bills for 2012, and it will especially hit those with incomes between $100,000 and $200,000, with an average increase of about $3,000.  Not only that, failure to patch the AMT has caused IRS to delay being able to finalize its tax forms for 2012.  The latest news from the IRS Commissioner is that one hundred million taxpayers will not be able to file their returns until sometime in March of 2013.

Disturbing

  •  Unfair income matching rules which target low income taxpayers, while failing to tax the bulk of the underground economy.  I have always found it interesting that Congress and the IRS have gone to great lengths to make sure that baby sitters, housekeepers, and child care providers report their income and pay their taxes.  Yet, construction contractors are not subject to 1099 requirements when payments to them are non-business related, such as when they are remodeling your house.  In order to claim a child care credit or compensate your nanny, IRS makes sure that everything gets reported on a W-2 or is otherwise matched to the worker’s tax return.  Also, they are hell-bent on making sure that restaurant servers report their tips.  Why don’t we have these same kinds of requirements for plumbers, builders, and construction contractors.  Ever wonder about how construction workers can be paid “under the table?”  It might be because the contractors themselves are not reporting their income, so paying someone under the table becomes a piece of cake.  Most industry observers are well aware of this kind of outrageous noncompliance, but nothing has been proposed to tax what is probably a huge portion of the underground economy.  I’m not just picking on contractors, though.  A legitimate tax system is one in which all income is taxed, not just the income of the poor and working class.

To Group or Not to Group: That is the Tax Question

IRS recently came out with new rules regarding how taxpayers must elect to group passive and active business and rental activities together.  Grouping a passive activity with an active one can help taxpayers avoid the dreaded “material participation rules” – designed to blur your eyes and make you sleepy and irritable.  Oddly, the passive activity rules upon which this new required grouping election is based were enacted back in 1987 with the infamous Tax Reform Act.  Um…that was 25 years ago. 

 Importantly, for tax years 2011 and forward, the new guidance from IRS makes it necessary for all business owners with more than one “activity” to consider whether and how to apply these rules to their undertakings.  Here is an overview of how the rules work:

  1.  You can group rental or other passive activities with trade or business activities where one is insubstantial to the other and if they constitute an “appropriate economic unit.”  This involves analyzing factors identified in Regulation 1.469-4:  similarities and differences among the business activities, extent of common ownership, geographic location, and interdependence.  (However, you cannot group rental real estate activities with personal property rental activities.)  Example:  a manufacturing S corporation produces waste metals that can be recycled or sold for scrap.  For business reasons, the corporation’s owners form a separate S corporation to handle the recycled material, either selling it or ensuring its proper disposal.  The recycling company’s revenues are miniscule compared to the manufacturing company, and it tends to generate losses.  The owners don’t spend much time managing the recycling company, but if they elect to group the two companies together, they can treat the recycling company as active, never again worrying about the passive activity rules.
  2. You can group a rental activity with a trade or business activity if the rental is to the business, and all the owners have the same ownership percentages in each entity.  Example:  an LLC owns a building, rented out to a printing company, also an LLC.  The owners of the printing company own the rental LLC in the same proportions as their ownership in the printing company.  Each individual owner can decide whether or not to group the two activities together, which results in converting LLC rental losses and income to active status, and avoids suspended rental losses where the owner’s incomes are too high to take advantage of the losses. 
  3. You can’t change or revoke your grouping election unless there is a material change in the underlying facts, or unless the original grouping was clearly erroneous.  You can, however, add to the group.
  4. If you don’t decide which activities to group for 2011 by attaching the required statement, IRS will take the position that nothing has been grouped (but you may carry on with prior groupings and are not required to disclose prior groupings to IRS.)  Grouping elections can be made in future years, but they cannot be retroactive.  Groupings made prior to 2011 will not be disturbed, so long as the taxpayer consistently maintains the grouping.
  5. You must disclose to IRS, by attaching the required statement from Rev. Proc. 2010-13 all:  new groupings for 2011; additions to prior groupings; changes to ANY groupings.  You do not have to disclose grouping elections made prior to 2011.
  6. Grouping elections can be made first at the entity level and then at the individual level, but an owner in an S corporation or partnership cannot un-group an activity that has already been grouped at the entity level.

Generally, there is no good reason to group rental activities together into one passive group.  Doing so would mean that passive activity losses would remain suspended until each property in the group is finally sold.

Unfortunately, there is neither a bright line test, nor a safe harbor, to help taxpayers determine which activities can be grouped.  So, it’s a good idea to carefully review the rules with your CPA firm to evaluate the best course of action.

My Hideous Tax Reform

(With apologies to economist and author Joel Slemrod, author of the paper, My Beautiful Tax Reform)

As an accountant, I get involved in the practical and tedious task of applying tax laws (and related loopholes) to our clients’ fact situations.  Rarely do accountants get the time to contemplate (or fantasize about) tax reform, nor to consider systems used effectively by other countries.  But, before tax season gets truly underway this year, I have been spending some time educating myself about these matters so that I can combine my practical knowledge with the wisdom of economists and policy analysts around the world.

Professor Slemrod has spent many years evaluating our tax system and expresses the view that a business Value Added Tax (VAT), combined with a highly progressive but simplified individual income tax would deliver the best combination of Fairness and Simplicity (my two objectives for tax reform), and would achieve what he calls “elegance”.  He proposes an individual income tax that would exempt most individuals from filing returns, basically by eliminating all deductions and credits, thus broadening the tax base, and then relying on wage withholding to create the proper and equally applied tax to all labor income.  The VAT tax would apply to ALL business income, and at a flat rate.  Shareholders of corporations would be able to get a credit from the portion of their income already taxed at the corporate level, with the goal being to eliminate all double taxes, and to eliminate all preferential treatment now available through special deductions, credits and business entity selection.

Our current system attempts to tax income (roughly defined as increases in consumption power) by dividing it into 3 pots:  labor income, business income, and income from the employment of capital.  However, there is little consistency in how these different categories actually work.  For example, if I am Mitt Romney and earn my income from “carried interest” I get to pay taxes at a flat capital gains rate of 15%.  If I am Warren Buffet’s secretary, I get to pay taxes at much higher rates, depending on my income and deductions, and I also have to pay social security taxes.  Publicly traded corporations are subject to a double tax whenever they pay dividends to their shareholders, whereas when they pay interest to their bondholders, they are not.  If I lose money on a capital transaction, I can’t deduct the loss unless I have made money on other capital transactions.  If I sell my home at a profit, I can exclude the gain up to $500,000 if I am (legally) married.  If I earn all my income from dividends and capital gains, I might not have to pay ANY taxes.  And, if I am a worker earning a good living, I may be subject to the Alternative Minimum Tax and lose the deductions that my neighbor, who earns less, gets to deduct, thus vastly increasing my marginal tax rate.  These are just a few, selected examples of the way our tax system is both complex and unfair.

Fairness in taxation by definition would have to include progressivity as its underpinning.  In fact, Professor Slemrod rejects consumption taxes outright, as they can never be made progressive enough.  By taxing only consumption, such as through a national sales tax, those who would pay the highest effective rate of tax would be the poor and middle classes, who have to consume certain basic amounts in order to survive.  That would be highly unfair, but would admittedly be a simpler tax to administer than our current income tax.

One reason tax reform is so hideous is that anything that affects the federal system will also affect all the states who are connected to the federal system for purposes of defining and determining taxable income.  Any major reforms at the federal level will require these states to seriously evaluate and reform their own systems of taxation.  Another reason is that by trying to achieve simplicity, one may introduce unfairness, and vice versa.  For example, it might be fairer to measure and subtract inflation before taxing capital gains, but now you have introduced a highly complex calculation into the system.  You can eliminate this problem by using a consumption tax instead of an income tax, but as noted previously, a consumption tax is a regressive tax, and thus, unfair.

In order to restore legitimacy and moral authority to our government and its system of taxation, the current system MUST be reformed, and it must become fairer and simpler, yet still provide adequate funds.  Any steps in those directions are to the good, hideous or not.  President Obama’s recent budget proposals include some movements in the right direction:  indexing and making permanent AMT exemptions,  taxation of carried interest as ordinary income (too bad, Mitt), and simplification of the earned income credit.  However, when you read the summary of the President’s budget (spanning 215 pages) you start to feel pretty queasy.  More and more tax expenditures (credits and deductions) are being proposed in a desperate effort to insert more fairness into the system, but the end result is more, and much more, of the same highly complex and unfair system that we currently have.  Can we give up our favorite deductions and tax credits in exchange for lower and more progressive tax rates?   What might be beautiful is restoring the portion of total income taxes once borne by corporations in 1950 (30% of total revenues) from the shockingly low 7% today, something which could be achieved through a VAT tax.

Tax Reform: Lies, Damned Lies, and Statistics

There are a number of ideas being parlayed by presidential candidates, policy makers, and politicians regarding how to reform the U.S. tax code.  Unfortunately, none of the ideas mentioned recently are new, nor do they address the fundamental reasons to reform the code, those being:  Fairness and Simplicity, which I am capitalizing here as a way of elevating these concepts above other policy goals (involving unfairness and complexity).

History can be a great teacher.  But, numbers CAN lie, and everyone has an agenda, including me.

But, let’s take a look at history and see if we can put it in today’s context.  First, let’s look at tax rates.  Currently, the top marginal rate is half of what it was in 1975 on incomes over $375,000 – 70% vs. 35%.  All of the other rates are lower as well, but not by nearly as much.  So, the bulk of the benefits of the tax bracket “flattening” has gone to those in the top tax bracket (not surprised, are you?)

Now, what about tax deductions and tax credits?  These are also known as “Tax Expenditures” in the world of tax policy making.  They are special tax breaks designed to benefit only certain taxpayers, such as the oil and gas industry, home owners, or low income workers with families.  Tax Expenditures have risen 43% in the 3 years spanning 2006 to 2009 (think:  George W.), and have risen 78% over the last 30 years.  What this means is that Fairness has gone out the window, replaced by taxation bent on favoring certain taxpayers and disfavoring others.  One taxpayer’s tax on the same income may bear no resemblance to another taxpayer with the same income due to the existence of these special deductions and credits.

Now let’s look at where the taxes come from today vs. where they came from 60 years ago.  Employment taxes as a share of the total tax burden have risen 400% in the last 6 decades, going from 10% of total revenues in 1950 to a whopping 40% of total revenues today.  Conversely, corporate tax revenues as a percent of total revenues have dropped 428%, going from 30% of total revenues to 7% in 2010.  Meanwhile, total individual taxes (not payroll taxes) as a percent of total tax revenues have remained fairly steady for the last 60 years, at about 42%.  The rest of the tax revenues come from estate, gift, and excise taxes, and these have fluctuated over the years, but overall, contribute a much lower percentage to total revenues than they did in 1950.

It is quite striking to note that despite all the tweaking and complexity of the current tax code, individuals still bear, overall, about the same burden that they did 60 years ago.  The difference is in the mix.  Working people of all income levels now bear a much larger burden of the total budget than they did 60 years ago.  They contribute not only payroll taxes but income taxes as well.  Their total federal effective tax rate can easily exceed 45% if they are self-employed and in the middle class. Wealthy individuals who do not work and derive most of their income from capital gains and dividends enjoy a much lower tax rate. Some of them enjoy a ZERO rate.  And, in 2009, the top 10% of taxpayers, those with adjusted gross income exceeding $112,000 paid an overall average tax rate of just 18%.  It should be noted however, that those with AGI below the median income of $32,000 (the bottom 50%) paid an average rate of only 1.85% (remember this doesn’t include payroll taxes).  It is somewhat shocking to note that the incredibly low AGI number of $32,000 represents ½ of the taxpaying population, and it supports the recent census information indicating that nearly 50% of all Americans are living at or near the poverty level.  The biggest beneficiary of the tax burden shift among taxpayers has been corporations, however.  Maybe now that they are “people” we should tax them as individuals.  That would raise a lot of revenue.

Oddly, tax revenue as a percentage of GDP has remained fairly constant at about 18% for the last 30 years.  So, while tax revenues have been stable despite all the tweaking (an estimated 4,000 changes to the code just last year), the federal deficit has been skyrocketing, and WHO PAYS is really the question to ask yourself.

We are very far away from Simplicity and Fairness.  The recent proposals to lower rates and take away some deductions (charitable contributions and home mortgage interest) would further skew the Fairness meter, being another boon for the super wealthy.  However, taking away deductions does move us toward Simplicity.

In my next post, I’ll take on what I would do to bring about tax reform.  In the meantime, although I might be using statistics for my “damned lies,” every fact in this blog post was taken from one of three sources:  the Congressional Budget Office, the Joint Committee on Taxation, and the Internal Revenue Service.

The Coming 1099/IRS Matching Nightmare

2011 heralds the beginning of several new 1099 requirements, including the new Form 1099-K, new Form 1099-B, and new requirements for 1099-MISC. 

New IRS Form 1099-K requires 3rd party settlors of merchant credit card and other payment transactions, such as Paypal, to report those payments to all payees who receive at least $20,000 per year in payments and who have more than 200 transactions per year.  The new form requires reporting the totals by month, so that fiscal year filers can still be subject to IRS matching.  It doesn’t matter who the payee is:  a person, a corporation, an LLC, a trust, or a partnership—all of these entities will begin receiving these new forms in early 2012 for amounts paid to them in 2011. 

The amounts reported on these forms MUST MATCH the amounts reported on the entity’s tax returns.  A new line for reporting these totals has been inserted in all relevant IRS schedules and forms.  If the amounts do not match, the payee will receive an IRS notice assessing tax on unreported income.  Which, of course, was the whole purpose of this new requirement – to tap into the underground economy, and very specifically, Ebay and other on-line sellers who have long been suspected of not properly reporting their income to IRS.

Related to this new requirement is a change to the rules for reporting payments to service providers using IRS Form 1099-MISC.  Beginning in 2011, payers must EXCLUDE any credit card or Paypal-type payments made to vendors when reporting their 1099 totals for 2011.  This is because the vendor will theoretically already be receiving a 1099-K which includes all credit card and other 3rd party payments.  IRS has modified its instructions for Form 1099-MISC to reflect this new requirement, but it is highly likely that many 1099 issuers will not bother to read this year’s instructions.  That is why we expect the coming 2012 1099 season to result in many, many unmatched 1099s, and thus many IRS notices to taxpayers.  More work for us accountants, yes?

In addition to these two new requirements, another new 1099 form will be required for 2011 – new IRS Form 1099-B.  The 1099-B has historically been used to report gross proceeds from sales of securities.  Now, the new Form 1099-B will also potentially include cost basis information, separate reporting for “covered securities”, “non-covered securities”, wash sale reporting, short sales, and a number of other items.  It will mean that instead of receiving one 1099-B from your broker, investors will receive multiple 1099-Bs which must be analyzed and reconciled to year-end reports, and then must flow to new Schedule D – consisting now of potentially 6 new types of transactions, separately reported on new Form 8949:  short term sales of securities with cost basis reported, short term sales of securities without cost basis reported, all other short-term securities transactions; and the same break-downs for long-term sales of securities.  In addition, for EACH transaction, taxpayers must indicate one of 21 NEW CODES to tell IRS more information about the transactions.

IRS will then attempt to match the totals reported on the new Schedule D and Form 8949 to the filed 1099-B.  Because these requirements are both new and highly complex, we anticipate many, many matching errors and plenty of IRS notices to deal with.  In addition, investors can anticipate that their tax return preparation fees will increase substantially this year.  Essentially, all broker transactions will be analyzed and reported in 6 separate ways, instead of one, and investors who have multiple brokerage accounts will want to consider whether now is the time to consolidate their accounts.  CPA firms are going to be very busy.  Meanwhile, are you having nightmares yet?

Update (2/24/12):  IRS has now announced that they will NOT attempt to match any 1099-K payments for 2011, 2012, nor into the future.  Here is the quote from their website: “IRS announced in October that separate reporting of these transactions for other business receipts or income payments is not required for 2011. Taxpayers should follow the form instructions for reporting their gross receipts or sales. Report items that qualify as a trade or business expense on the appropriate line item of Schedules C, E and F. There will be no reconciliation required on the 2012 Form 1099-K, nor do we intend to require reconcilation in future years. [Added 2/10/12]” .

 

When Pigs Fly: Waiting for Real Tax Reform

We all know that it is not fiscally possible to cut the national deficit/debt without raising someone’s tax bill.  I’ll include corporations in my definition of someone, since they are now “persons” with free speech rights.  The outlandish and bizarre tax code we currently labor under has been tweaked and pummeled into an unrecognizable amalgam of convoluted provisions, some of them well-meaning, but most not thoroughly or even barely understood by experts, much less by taxpayers.

The growing and shameful income and tax inequality in this country is now finally a topic of conversation among policy makers, thanks to the emerging “Occupy” movement.  Will this new dialogue impact tax policy?

Before the Occupy movement took hold, the showdown staged by Republican politicians over the debt ceiling sent shock waves and uncertainty throughout the financial markets all over the world.  Their insistence on cutting the debt/deficit without “raising taxes” was a frightening spectacle, and its premise was not only cynical and dishonest, but completely out of touch with reality.  Every single federal budget report by every single expert in the field points to the stark and frightening realities of the budget debt/deficit–we can’t grow out of it, we can’t spend out of it, and we may not even be able to tax our way out of it.  It is that bad.

I have been waiting for decades for real tax reform.  I started my career before the advent of the passive activity rules, which I mark as the beginning of the end for sanity in the world of taxation.  While it was important to curb the tax shelter abuses of the early 1980’s, the complexity of the passive activity loss rules opened the door to the idea that, with enough rules, regulations, court cases, and private letter rulings, tax planning can become a game only for the wealthy.  Any poor schmuck who can’t afford my fees is doomed.

While tax complexity was increasing, the income gap between the super-rich and the rest of the population continued to grow, grow and grow.  Then, during the Bush years, the super-rich finally received their blessings from on high.  Many multi-millionaires now find themselves in the ZERO percent tax bracket.  Also, during this time the Alternative Minimum Tax went out of control and began hitting middle and upper middle income taxpayers.  Yet, a family with the just the right mix of tax goodies will have a tax liability that bears no resemblance to another family with the exact same income.

Some people say that fairness is subjective.  No, it isn’t.  Fairness is something that society can agree on, just as we can agree on what is a crime and what isn’t.  The current tax system is patently unfair.  Hence, it has no moral legitimacy.  When this happens, you get the Occupy movement.  So, tonight I’ll count pigs flying while I dream about real tax reform.  Maybe pigs can fly.

Going Postal: Proving You Filed Your Tax Returns On Time

Recently we were alerted by one of our clients that, after waiting in line at the post office, he was unable to get a date stamp from the postal clerk on the tax returns he was posting for mail.  Another client informed us that after waiting in line at the airport post office to drop off her tax returns in the “big blue bag” she was informed by the postal workers that even though she was dropping the returns off before midnight, they could not guarantee that the returns would be date stamped for that day, because there were so many returns, they weren’t sure if they would “get to them.” 

After much investigation, we learned that different things happen to different people depending on which post office you visit.  The USPS still offers “hand canceling” of mail, but apparently only if they are not busy and/or are in a good mood that day.  By obtaining the hand canceled date stamp on your tax return envelope, you might be able to meet one of the IRS’ criteria for proving timely filing of a tax return:  the postmark date on the envelope (assuming the envelope is saved by IRS).  The only other methods accepted by IRS are certified mail and registered mail, more expensive and more of a hassle for most people, but necessary in some cases.

While the advent of e-filing has eliminated this issue for most taxpayers, there are still occasions when one must file a paper return.  Late filing penalties are not an issue if you are filing an individual return and don’t owe any taxes.  However, if you do owe taxes and the IRS determines that you have filed late, you are on the hook for a minimum 5% penalty for each month the return is late, up to a total of 25%.  In addition, you will incur late payment penalties and interest.  So, proof of timely filing a tax return can be critical if you owe taxes.  And, S corporations and partnerships now have substantial penalties for late filing, depending on the number of K-1′s per return ($195 per month times the number of K-1s, up to 12 months total – ouch!).

In addition, you need proof of timely filing if you are close to the end of a statute of limitations period, as in the case of filing amended tax returns.  In this case, we always recommend using certified or registered mail as there could be significant tax or refund issues that necessitate proof of timely filing.  Also, if you file your returns more than 2 years after they are due, but are expecting refunds, you will forfeit those refunds, so any late filed returns within the 2 year statute should be sent certified or registered to prove that you have the right to receive your refunds.

So, if you don’t live near a rural post office, with happy-go-lucky postal employees, you should plan on using certified or registered mail for any documents where proof of the mailing date is critical.

The Postman Cometh: Responding to IRS Notices

The IRS sends out millions of taxpayer notices each year.  However, IRS notices are sent ONLY via the U.S. Postal Service, never by email or any other means of communication.  So if you receive an email purportedly from the IRS, it is bogus. (You can forward these bogus emails to your state’s attorney general for fraud investigation.  Don’t open them!)

There are more than one hundred different kinds of notices that IRS can send out.  The most important thing to do when you get an IRS notice is to IMMEDIATELY open it, read it, and then take action.  Often, you will only have 30 days to respond.

These notices can be audit notifications, requests for payment, or any one of the following more common kinds of notifications, as indicated in the upper right hand corner of the notice:

CP 102: A math error was found on certain forms (such as Forms 941, 942, 943, 944 or 945 returns) that you filed, and the IRS believes you owe more tax.

CP 138: The tax you overpaid on one tax return was applied to another return where you owed tax.

CP 165: Your check for your FTD or estimated taxes was returned. This notice asks for the payment, plus a bad check penalty of two percent (the minimum penalty is $15).

CP 205: You used the wrong taxpayer identification number on your FTD coupon.

CP 2000: Issued for verification for unreported income, payments, or credits.  These are generated when IRS computers cannot match information from 1099s, 1098s, etc. to information on your tax return.

CP 2100: To notify the payer/filer of incorrect information, and to remind them of their obligation to solicit the correct information, so they can file correctly in the future. The notice also reminds them of their responsibility to backup withhold if the information is not provided.

CP 2501: A discrepancy was found between what you reported as your income, credit or deduction and what IRS records show.

We tell our clients to forward all IRS notices to us upon receipt.  We prefer to prepare the response, and we have one CPA in our firm who is our designated “notice responder”.  In our own experience, about 80% of the notices our clients receive are incorrect.  So, definitely do not panic if the IRS says you owe them gazillions of dollars. 

Most of the notices we receive are the CP-2000 (1099 matching) notices and the CP 2400 (incorrect estimated tax payments listed on the return).  These notices are easily resolved with proper correspondence, via regular mail, of course.

The IRS, the AICPA, QuickBooks, and You

Earlier this year the IRS announced that it would begin demanding a business’ QuickBooks data file during all future audits conducted by the agency.  In the past, CPAs and their clients would often export the accounting software’s general ledger and other financial information to Excel, and then provide this information to the IRS during an audit, as a way to limit IRS access to non-accounting information.  IRS was satisfied with this until recently when it began to realize the wealth of information that is contained within a company’s software data file – much of which may be unrelated to the year being audited, but may in fact reveal information that could be useful to IRS in evaluating information reported on tax returns.

The IRS has long regarded electronic records as being suspect:  “Electronic records, are, in general, considered less reliable than their paper counterparts due to the ease with which they can be manipulated” according to the recently updated Internal Revenue Manual.  Bingo.  What is so helpful about having the QuickBooks file to audit is the existence within the file of an “audit trail” – a function which cannot be disabled by the users, and which records every keystroke by date, time, and user name.  By studying this audit trail, IRS can determine whether transactions were altered, deleted, or modified, and how often, by whom, and when.

Many CPAs have expressed concern over this new approach because their clients routinely make errors in QuickBooks which have to be corrected after the fact.  They were worried that IRS would regard these errors and corrections as indicative of deceit or fraud, when in fact they are only indicative of incompetence.

Enter the AICPA.  Earlier this year, the AICPA sent a memo to IRS asking for their clarification on their position regarding providing “an exact copy of the original electronic data file…and not an altered version” to IRS auditors.  The AICPA wanted to know whether such a file could be condensed so as not to provide prior year data, but only the data for the year under audit, and whether CPAs are being exposed to potential malpractice claims by inadvertently turning over unrelated data contained within a client’s QuickBooks file.  Some CPAs have gone ahead and either condensed the QuickBooks file or had a software company perform a “redaction” of the file, to remove prior year information.  Anecdotal evidence indicates that this is okay with the IRS, however, it has yet to officially comment on the AICPA’s questions.

So far, the IRS is only training its auditors on the use of QuickBooks and Peachtree during an audit, but it may expand its training to other software packages if it sees a need.  Since QuickBooks has the market share, with a reported 85% of the total, IRS was smart to choose QuickBooks as its first software package to use in its new approach to auditing electronic records.

Now you can count the IRS as yet one more reason not to use QuickBooks.  But, if you are already using QuickBooks or Peachtree and you are about to be audited, but sure to contact your CPA so that they can help you in providing only the information that IRS is entitled to receive during the audit, and nothing more.  And, since QuickBooks is kind enough to provide you with an audit trail, make good use of it by strictly adhering to user log-ins and passwords for each unique user of the system.