Hot Topics in Tax Law October 26, 2016; 6:00 PM – 8:30 PM Topics in Tax Law - 10.26.16.pdfdesk at...

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Hot Topics in Tax Law

October 26, 2016; 6:00 PM – 8:30 PM I. Please rate each speaker in this session on a scale of 1 - 4

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HOT TOPICS IN TAX LAW

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for October 26, 2016

Program Co-sponsor: NYCLA’s Taxation Committee

Program Chair and Co-Moderator: Carmela Walrond, Law Offices of Spar and Bernstein, PC

Moderator: Nicole Hamlett, Hamlett Tax Law, PLLC

Faculty: Michael J. DeMatos, IRS General Counsel Office; Nina Olson,

National Taxpayer Advocate (NTA); Allan R. Pearlman, Law Office of Allan R. Pearlman, Chair NYCLA’s Taxation Committee; Kristen Bailey, Director of

Collection Policy, IRS

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2.5 Transitional and Non-Transitional credit hours: 2.5 Professional Practice.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2.5 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

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Information Regarding CLE Credits and Certification

Hot Topics in Tax Law October 26, 2016; 6:00 PM to 8:30 PM

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the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

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you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

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Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Hot Topics in Tax Law

Wednesday, October 26, 2016 6:00 PM to 8:30 PM

AGENDA

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM - 8:30 PM Moderator: Nicole Hamlett, Hamlett Tax Law, PLLC

Faculty: Michael J. DeMatos, IRS General Counsel Office; Nina Olson, National Taxpayer Advocate (NTA); Allan R. Pearlman, Law Office of Allan R. Pearlman, Chair NYCLA’s Taxation Committee; Kristen Bailey, Director of Collection Policy, IRS

Law Office of Allan R. Pearlman, 116 W. 23rd St., Ste 500, NY, NY 10011, tel. 646-827-4257 Page 1 © 2016 Allan R. Pearlman

IRS Controversies Overview Allan R. Pearlman, Esq. Law Office of Allan R. Pearlman For NYCLA CLE – Hot topics in Tax – October 26, 2016

1. IRS Collections: What does the IRS do to get paid when a tax debt exists, has not been paid, and remains unpaid (and frequently aging) tax debt? When withholding tax from paychecks, taxpayer-made estimated tax payments, voluntarily offered up payments, like a check enclosed with a tax return being filed, do not cover the full amount due, the IRS then devotes time, effort, and resources to go out and get it, i.e., collect the money.

2. Collections are done primarily on two separate, distinct tracks: “ACS” (Automated Collection Service) or by a Revenue Officer (“RO”)1

a. ACS = A system of computers and telephone operators. The computers track tax debt and taxpayers, and generate notices sent out to taxpayers seeking payment and the telephone operators take the calls when taxpayers call in, responding to those notices. ACS may also make calls out to taxpayers (do they? Not sure)

b. Revenue Officer2 = an individual agent of the IRS tasked with collecting from an individual taxpayer.

3. Key time limits on the IRS in collection matters:

a. Basic reality: time limits are imposed on not just tax payers, but on the IRS as well. Two significant statutes of limitation (“SOL”) on the IRS are 1) the 3-year audit/assess statute of limitations, and 2) the 10-year collection statute:

b. Audit/Assess SOL: From the due date of the tax return (e.g., April 15th) or the date of filing, whichever is later, the IRS has 3 years to assess tax due.

1 Tax debts of $100,000 or more get, or are supposed to get, special treatment, which is outside the scope of this presentation. See Internal Revenue Manual (“IRM”) § 4.4.18 “Large Dollar Cases.” 2 Note distinction in terminology: a Revenue Officer (RO) is NOT a Revenue Agent (RA). Both are crucial to IRS’s functioning; however, each perform distinctly different roles and tasks. A Revenue Officer (RO) is a collection agent working for the IRS, whose bailiwick is to collect unpaid tax due. By contrast, a Revenue Agent (RA) conducts audits (aka “examinations”). The Revenue Agent’s role is to determine the accuracy of a taxpayer’s tax return and therefore what tax, if any might be due. Only after the taxpayer’s tax due has been determined, by way of exam (audit), involving an RA, or otherwise, does a Revenue Officer get involved, in trying to collect the amount the Revenue Agent determined was due.

IRS Controversies Overview

Law Office of Allan R. Pearlman, 116 W. 23rd St., Ste. 500, NY, NY 10011. Tel. 646.827.4257 Page 2 © 2016 Allan R. Pearlman

i. Most common occurrence: IRS accepts TP’s calculation of tax due as reported on tax return.

ii. i.e., TP prepares personal tax return (form 1040) and files it on time, on or about April 15th, or, with an automatic extension, by October 15th, the amount reported on TP’s return stating the amount of tax due, whether fully paid, by way of withholdings from salary, estimated tax payments made during the year, a combination thereof, and/or a payment made at or around the time of filing the tax return, and the IRS simply accepts the taxpayer’s calculation and report of the amount of tax due as stated in the tax return.

iii. Note: if TP never files, the 3-year assessment clock never starts!

iv. Also, if TP never files, IRS will use the information it has to prepare a Substitute for Return (“SFR”), and use that to assess.

1. When the IRS does an SFR to determine the amount of tax due, and assess it, so that it may then go forward to collect, the amount assessed by way of an SFR is frequently higher than what it might have been had TP gathered his or her records and prepared a tax return using TP’s real numbers reflecting TP’s real income and real expenses.

c. Collection SOL: once tax is assessed, the IRS has 10 years to collect.

i. Terminology: the Collection Statute of Limitations is referred to by the IRS as the CSED (pronounced “See-Said”), which stands for “Collection Statute Expiration Date.”

ii. There are events which can stop the CSED clock. E.g.:

1. Filing for bankruptcy;

2. Submitting an application proposing an installment agreement whereby TP would pay off the tax due (or part of it), by way of making monthly payments for a period of time, pursuant to a formal written agreement made between TP and the Commissioner of Internal Revenue;

3. Submitting an application to enter into an Offer in Compromise;



4. On talking to the IRS in collection matters which are being handled by the agency and are therefore administrative.

a. Note for attorneys accustomed to litigating in New York State Supreme Court or in SDNY or EDNY – this is not that. For example:

b. “Ancient Wisdom”: regarding who at the IRS is on the other end of the phone when you call in to discuss client’s situation

i. Nugget of wisdom #1: “Sometimes you get Mother Theresa, sometimes you get Attila the Hun”

ii. Corollary to Nugget #1: “And sometimes you get both Mother Theresa AND Attila the Hun -- in the same person”

iii. Nugget #2: if you don’t like how things are going with the person on the phone, just hang up and call back, you might do better with the next person who answers.

5. Billing/Assessment/Dunning/Enforced Collection/ Ripping Money out of the taxpayer

a. CP letters,

b. Final notice of intent to levy (1058 letter; L11 letter, other?),

i. “Loading the Collection Gun”

6. The things that make taxpayers hate and fear the IRS: Enforced Collection:

a. “Levying” –

i. freezing and seizing of bank accounts (Bank Levy),

ii. garnishing wages (Wage Levy),

iii. third party contacts: ordering clients to pay account receivable owed to taxpayer directly to IRS

iv. Forced sale of assets

b. Liens:

i. Notice of Federal Tax Lien (NFTL)

1. Formerly private tax info made public by filing with local recording authority (e.g., County Clerk, in NYC: the City Register” a Notice of Federal Tax Lien



a. Lien attaches to everything

b. Damages / Ruins TP’s credit score

c. Note re Wage Levy: unlike other creditors, IRS can seize > than 10% of gross income

i. IRS as a Super Creditor: Wage garnishment is much more than 10% of income

ii. Describe formula: IRS garnishes all but that fraction of the standard deduction which would be part of that pay period. (e.g., if TP earns 120,000 a year. TP’s standard deduction is 12,000 and TP gets paid once a month, TP’s gross income is 10,000 per month, and TP probably takes home approx. 7,000/mo. An IRS wage levy would take everything BUT the 1000 which is that pay period’s fraction of the applicable standard deduction, even though IRS is taking >85% of TP’s take home pay.

1. See IRS Publication 1494 (tables for figuring amount exempt from levy on wages, salary and other income)

iii. Third parties: direct customers/clients to pay invoices/bills of TP to IRS instead of TP (won’t that boost a person’s business, having the IRS say to customers: don’t pay Johnny Taxpayer’s invoice to you, pay us, because Johnny Taxpayer owes it to us!!)

iv. No court order needed!

7. Stopping, undoing, preventing levy:

a. Pay tax due.

b. Request 120 days hold on enforced collection to give TP opportunity to obtain funds to pay tax debt in full;

c. Timely Request CDP Hearing (“CDP” = “collection due process”)

i. Request made using form 12153

ii. In response to final notice of intent to levy.

iii. TIMELY: Must respond in writing within 30 days of date of the final notice

1. Propose collection alternative less onerous than levying, e.g.,



a. OIC – offer in compromise

b. IA – installment agreement

c. CNC – currently not collectible

d. Untimely Request of CDP, or “Equivalency Hearing” –request for hearing made 31 to 365 days after the date of the final notice of intent to levy.

e. CAP Appeal

8. Possible Resolutions (Summary):

a. Full pay (write a check and be done!)

b. Offer in Compromise (OIC),

c. Installment Agreement (IA)

i. Note: NYS version: “Installment Payment Agreement” (IPA, not the beer)

d. Currently Not Collectible (CNC)

i. Note: NYS version: there is no such status as “currently not collectible” by NYS’s Department of Taxation and Finance (DTF) reckoning. It simply does not exist.

e. Bankruptcy

f. Expiration of Collection Statute of Limitations (IRS terminology, “Collection Statute Expiration Date or “CSED”

9. Offer in Compromise (OIC):

a. Doubt as to Collectability (I can’t pay!)

i. Most common

ii. Detailed financial disclosure (form 433A, B, or F) to determine Reasonable Collection Potential (RCP)

1. RCP or Reasonable Collection Potential = Assets plus income minus living expenses

2. More detailed articulation of the components of RCP:

a. “net realizable equity in assets” PLUS



b. “expected future income” MINUS

c. “necessary living expenses” PLUS

d. amount collectible from third parties AND

e. assets or income available to taxpayer but beyond the reach of the government.

i. IRM § 5.8.4.3.1 Components of Collectability

iii. Note: in addition to standard 433A calculation, IRS also looks at monthly income and expenses

b. Doubt as to Collectability with special circumstances (IRM 5.8.4.2)

i. TP cannot fully pay tax due AND taxpayer proves special circumstances that warrant acceptance for less than the amount of the calculated RCP (reasonable collection potential).

ii. Special Circumstances = Economic Hardship (when a TP is unable to pay necessary basic living expenses (IRM 5.8.11)

c. Doubt as to Liability (I don’t owe it!)

i. Challenge claim of liability by this.

1. One practical strategy: where TP gets audited and loses, challenge loss via 1) application for audit reconsideration and also 2) OIC based on doubt as to liability.

d. Effective Tax Administration:

i. Per the IRS Restructuring and Reform Act of 1998, section 7122(c) of the IRC provides that the IRS shall set forth guidelines for determining when an OIC should be accepted, and those guidelines should include consideration of

1. Hardship

2. Public policy, and

3. Equity.

ii. OICs taking these factors into consideration are called Effective Tax Administration (ETA) offers. (IRC 5.8.11.1)



10. Out of the clouds, Into the weeds with Installment Agreements: Multiple versions3:

a. Streamlined IA

i. With balance due below $25K

ii. With balance due below $50K,

iii. Streamlined IA with Lien Withdrawal

b. Guaranteed IA (Balance due under $10K)

c. Life of the Statute IA (“statute” being the collection statute of limitations or CSED, see below)

d. “Two-step” IA

i. 1-year at lower monthly payment to allow TP time to make adjustments to lifestyle to reflect lower income and obligation to pay, then monthly payment goes up (to come: IRS formal name for this)

ii. Two-step IA can sometimes have a longer initial period, e.g., 18 or 24 months before payment amount rises

e. Part-Pay IA: Some advantages of OIC without as much scrutiny.

i. From irs.gov: “This new payment option became possible with the passage of the American Jobs Creation Act of 2004 signed into law on October 22, 2004. The new legislation includes language amending Internal Revenue Code 6159 to allow the IRS to enter into installment agreements that result in full or partial payment of the tax liability. “Prior to enactment of this legislation, taxpayers that could not fully pay their outstanding tax liabilities could only enter into an agreement with the IRS if it resulted in full payment of the liability. This left taxpayers unable to meet this criterion with limited payment options. “Taxpayers who are being considered for a PPIA must provide complete and accurate financial information that will be reviewed and verified. Taxpayers will also be required to address equity in assets that can be utilized to reduce or fully pay the amount of the outstanding liability.

3I did not fully appreciate how many variants there are of an installment agt.



“In addition, taxpayers granted PPIAs will be subject to a subsequent financial review every two years. As a result of this review, the amount of the installment payments could increase or the agreement could be terminated, if the taxpayer’s financial condition improves.” http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Legislation-Allows-Partial-Payment-Option

11. Currently Not Collectible (CNC) Status

a. This is the IRS’s formal recognition that one “cannot get blood from a stone”

i. Where financial analysis shows that TP’s income is less than his or her expenses, and therefore there is no leftover funds after covering TP’s monthly allowable expenses, the IRS will place TP into Currently Not Collectible (CNC) status and stop enforced collection activity.

ii. i.e., IRS will stop levying and leave TP alone, generally for two years or if IRS obtains information that TP’s income rises above a certain level.

iii. The idea here is to allow TP time to get into better financial condition

iv. Note that New York State does not have a currently not collectible status; closest alternative is for TP to pay 10% of their gross income monthly (if self-employed) or each pay period if employed. If the taxpayer is allowed to make the payments him or herself, this is called Income Execution First Service; if NYS directs the employer to deduct from paycheck and pay to NYS, this is an Income Execution Second Service.

12. “Fresh Start” Program:

a. Tax Liens: Amount of tax debt accumulated before IRS will generally file a NFTL has increased to $10,000.

i. IRS may still exercise discretion to file NFTL on smaller amounts, but per the Fresh Start Program, the general starting point is up to $10K.

ii. If TP sets up a DDIA (Direct Debit Installment Agreement) and has a payoff schedule of 72 months or less, IRS will consider a written application for the withdrawal of a previously filed NFTL; hence, the

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Legislation-Allows-Partial-Payment-Option





IRS might withdraw filed notice of federal tax lien before the tax debt is paid off!

1. Therefore TP may begin repairing his or her damaged credit score far sooner than what has normally been allowed.

b. Installment Agreements: IRS has expanded “streamlined installment agreements”4 to permit installment agreements without providing detailed financial disclosure. Taxpayers owing up to $50,000 can set up 72-month direct debit installment agreements, often without providing a detailed financial statement.

i. Allowing streamlined treatment for tax debts up to $50,000 is a significant expansion of this easier procedure.

ii. Also, extending the time frame to an up to six-year (72 month) payout makes an installment agreement resolution significantly more accessible to taxpayers than it used to be.

1. IRS Tax Tip 2013-57: http://www.irs.gov/uac/Newsroom/IRS-Fresh-Start-Program-Helps-Taxpayers-Who-Owe-the-IRS/

c. Offers in compromise have also been made more accessible.

13. Lien subordination to get financing to pay tax debt

a. Lien release v. Lien withdrawal

14. Penalty abatement

a. “First time’s free, kid”: Generally, TP must show “Reasonable Cause” (i.e., a good excuse) for why TP got into the kind of trouble he or she did which led to the imposition of penalties.

b. However, there is also a provision for a First Time Abate (“FTA”) See IRM 20.1.1.3.6.1 “First time is free, kid” abatement

c. Reasonable cause abatement

i. The three “c’s”:

1. compliance, (TP is now in compliance with filing and paying)

2. cure, (TP has cured whatever the problem was which got TP into trouble so that problem will not arise again)

4 [to come: history of “streamlined installment agreement.”]

http://www.irs.gov/uac/Newsroom/IRS-Fresh-Start-Program-Helps-Taxpayers-Who-Owe-the-IRS/

http://www.irs.gov/uac/Newsroom/IRS-Fresh-Start-Program-Helps-Taxpayers-Who-Owe-the-IRS/



3. cause (TP has “reasonable cause” for the problem in the first place, e.g., divorce, disaster, disease, death of a spouse, child or parent. Note: not being able to pay alone is not good enough, is not “reasonable cause” by IRS reckoning)

15. “You make me laugh, sir!” – Interest abatement

a. IRS does not abate interest, except by way of reduction of underlying tax assessment;

i. “can’t do it, interest is statutory” they frequently say

1. Exception: IRS gives wrong advice in writing to TP which leads to delay resulting in accrual of interest

a. This is very infrequent

ii. Tax resolution professional who promises to get rid of “interestandpenalties” – this is what the public wants, and is something which the IRS does not give. Penalties might get abated, interest will not be abated.

1. But kernels of truth:

a. When underlying tax is reduced, the interest and penalty associated with that portion of the tax assessment which has been reduced also goes away.

b. Interest can be abated where TP can prove that delay leading to interest accrual was the fault of the IRS or the result of bad advice given to TP by IRS provided that it is given in writing (good luck getting this)

c. Note NYS practice re compromising interest and penalty, below.

b. Surprisingly, NYS sometimes does abate interest and penalty, e.g., in OIC negotiations, NYS sometimes offers to compromise tax debt wherein TP pays full amount of the actual tax assessed, and then forgives the interest and penalty.

i. Note: some tax controversy professionals believe that unicorn sightings are more common than NYS OIC applications being approved; however, the author of this outline has witnessed NYS in fact compromise a taxpayer’s New York state tax debt.

16. NOT “he said, she said,” but instead, “ASED,” “CSED,” and “RSED”



a. Subtitles or explanation of these acronyms: IRS acronyms for potentially relevant statutes of limitations:

i. “ASED” refers to the Assessment Statute of Limitations: the deadline for IRS to assess tax due, or “Assessment Statute Expiration Date” (ASED)

1. Frequently not an issue, however, where there may be a question about the accuracy of a tax return, the IRS has three years from the date of filing that return to audit and then assess the tax due.

2. 3 year clock starts from either the date a return was filed OR the due date for filing, whichever is later – hence, examples:

a. Filing due date is April 15th; 2015 and taxpayer files return on April 15, 2015, ergo, the ASED is April 14, 20185; OR

b. Filing due date is April 15th; 2015 BUT, taxpayer files return on September 1, 2015, ergo, ASED is not until August 31, 2018

ii. “CSED” refers to the time limit for the IRS to collect statute expiration date (this can be crucial

1. 10 years (from what? Answer: From assessment of tax

2. clock stoppers, e.g.

a. Timely CDP hearing request

b. Bankruptcy petition

c. Submission of application for Installment agreement until acceptance or rejection.

iii. “RSED” = “Refund Statute Expiration Date”

17. Coming Soon: Private Debt Collectors. “Authorized under a federal law enacted by Congress in December 2015, Section 32102 of the Fixing America’s Surface Transportation Act (FAST Act) requires the IRS to use private collection agencies for the collection of outstanding inactive tax receivables.” https://www.irs.gov/businesses/small-businesses-self-employed/private-debt-collection

5 Check this: day counting and reckoning deadlines: are IRS practices and rules the same as NY state’s civil practice rules, i.e., you don’t count the day you start on? Cites in IRC, IRM, Regs, case law?

https://www.irs.gov/businesses/small-businesses-self-employed/private-debt-collection

https://www.irs.gov/businesses/small-businesses-self-employed/private-debt-collection



18. When things go really wrong, consider seeking a Taxpayer Assistance Order from the Office of the Taxpayer Advocate.

a. The Taxpayer Advocate is an independent ombudsman, an agency within the agency of the IRS, designed to attempt to find a resolution where the usual channels of problem resolution have broken down and failed.

b. Criteria for Taxpayer Advocate involvement include:

i. The taxpayer is experiencing economic harm or is about to suffer economic harm

ii. The taxpayer is facing an immediate threat of adverse action;

iii. The taxpayer will incur significant costs if relief is not granted (including fees for professional representation);

iv. The taxpayer will suffer irreparable injury or long-term adverse impact if relief is not granted;

v. The taxpayer has experienced a delay of more than 30 days to resolve a tax account problem;

vi. The taxpayer did not receive a response or resolution to their problem or inquiry by the date promised;

vii. A system or procedure has either failed to operate as intended, or failed to resolve the taxpayer’s problem or dispute within the IRS;

viii. The manner in which the tax laws are being administered raise considerations of equity, or have impaired or will impair the taxpayer’s rights;



ix. The NTA (National Taxpayer Advocate (?)) determines compelling public policy warrants assistance to an individual or group or taxpayers.

c. Request relief from the Office of the Taxpayer Advocate by way of form 911, “Request for Taxpayer Advocate Service Assistance (and Application for Taxpayer Assistance Order).

We’re only getting started! • For legal representation, or

• To invite Allan Pearlman to speak at your event, or

• A free subscription to the newsletter, Life, Law and Taxes

Contact me at the address listed below..

And thank you!

10/24/2016

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Program Chair and Co‐Moderator: Carmela G. Walrond, Law Offices of Spar and Bernstein, PC

Moderator: Nicole Hamlett, Hamlett Tax Law, PLLC

Faculty: Michael J. DeMatos, IRS Office of Chief Counsel;

Nina Olson,National Taxpayer Advocate (NTA);

Allan R. Pearlman, Law Office of Allan R. Pearlman, Chair NYCLA’s Taxation Committee;

Kristen Bailey, Director of Collection Policy, IRS

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Introduction

The Internal Revenue Service Restructuring and Reform Act of 1998 created IRC §§6330 and 6320, Notice and Opportunity for Hearing Upon Filing of Notice of Lien/ Levy. IRC §§ 6330, 6320.

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CDP Triggers These hearings known as Collection Due Process hearings (“CDP”)

may be requested upon the receipt of any IRS notices which state “Your Right to a Hearing” including: Notice of Federal Tax Lien Filing (“NFTL”) and Your Right

to a Hearing Under IRC §6320;

Notice of Intent to Levy and Notice of Your Right to a Hearing;

Notice of Jeopardy Levy and Right of Appeal;

Notice of Levy on Your State Tax Refund ‐ Notice of Your Right to a Hearing; and

Final Notice ‐ Notice of Levy and Notice of Your Right to a Hearing.

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Notice of Intent to Levy, CP504

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Notice of Intent to Levy, CDP 504

What May Be Raised at CDP CDP hearings allow taxpayers to raise issues relating to

the collection of the tax liability, including: Appropriateness of the collection actions;

Collection alternatives (e.g., installment agreement, offer in compromise, request for “currently not‐collectible” status);

Spouse defenses under IRC § 6015;

The existence or amount of the underlying liability, but only if the taxpayer did not receive a notice of deficiency or otherwise have an opportunity to dispute the tax;

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Procedural Requirements In addition to the IRS issuing a Notice and Demand

to the taxpayer, the IRS must provide notice to the taxpayer concerning his/ her right to a CDP hearing under IRC §6330/6320 after it has:

Filed the first lien; or

Before its first intended levy for the particular tax and tax period

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Procedural Requirements (cont) The notice must comply with the following

requirements: Sent to taxpayer’s last known address (Graham v.

Comm’r, T.C. Memo. 2008‐129);

By certified mail return receipt, hand delivery, hand‐delivery, or last known place of business.

For Notice of Federal Tax Lien filings, the IRS notice must be sent not more than five business days after the day of filing the lien notice. IRC §6320(a)(2)

For levy notices, the IRS notice must be issued at least thirty days before the day of the proposed levy. IRC §6330(a)(2).

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Procedural Requirements (cont) Levy action is suspended by law. IRM 5.1.19.3.3

Collection may deem levy action appropriate in a CDP hearing or EH case if:

Collection is at risk (e.g. collection statute expiration date is imminent and the taxpayer is dissipating assets or pyramiding additional liabilities), For Example, Jeopardy Levy IRC § 6331(d)(3);

The taxpayer raises only frivolous issues; or

The taxpayer is solely seeking to delay the collection process.

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How does a tax debt arise? In order for the IRS to begin collections, the tax must

first be assessed by any of the following means:

Self‐assessment ‐ A filed tax return or an amended return showing tax due. (IRC § 6201(a)(1)). A different unit processes amended tax returns.

Trust Fund Recovery Penalty ‐ If the taxpayer fails to remit employment taxes, the IRS will propose a trust fund recovery penalty assessment against the Responsible Person. (IRC § 6672)

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How does a tax debt arise? Audit ‐ The IRS may assess additional tax based on

many grounds including the disallowance of or the finding that certain taxable income was not included. After Deficiency proceeding if applicable: IRS matches information returns with a taxpayer’s tax

identification number and discovers income that was not included on a return and assesses additional tax.

Substitute for Return ‐ If the taxpayer fails to file a return and the IRS matches information returns with taxpayer’s tax identification, the IRS can prepare a Substitute for Return (SFR) assessing the tax. (IRC § 6020(b)

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How does the IRS proceed with collection?

Once the tax is assessed and the taxpayer fails to pay the tax liability, the IRS will begin collections by issuing a series of five notices.

Taxpayer should respond to each of the IRS notices.

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First Notice The tax practitioner should first determine whether or not the tax amount

is correct or still due.

Tax Practitioner’s grounds for abating or reducing the tax include:

The underlying tax liability is incorrect The Statute of Limitations for Assessment has expired. (IRC § 6501) The Statute of Limitations for Collection has expired. The IRS has ten

years from the date of a timely assessment to collect the tax through a levy or begin a proceeding in court. (IRC § 6502)

The taxes were discharged in bankruptcy. (11 U.S.C. §§ 727, 1141)

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First Notice (cont) Trust Fund Recovery Penalty. The taxpayer may not be the Responsible

Person for the failure to remit employment taxes and the IRC failed to notify the taxpayer in writing by mail to his/ her “last known address.” (IRC § 6672(b)(1)). Mason v. Commissioner, 132 T.C. 14 (2009); Barry v. Commissioner, T.C. Memo. 2010‐57.

Penalty Abatement ‐ The penalties for failure to file or pay may be abated based on an administrative waiver (IRM 20.1.1.3.3) or reasonable cause (IRC § 6651(a)(2) and (3)).

Innocent Spouse Relief ‐ Taxpayer may be an innocent spouse; thus, taxpayer is not liable for the tax due on the joint tax return. (IRC § 6015).

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Second Notice Once the tax practitioner determines that the tax is

valid and owing, the tax practitioner will need to determine the appropriate collection alternative.

Taxpayer has the right to propose a collection alternative at any time.

An Installment Agreement may be appropriate.

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Second Notice (cont) Tax Practitioner needs to determine whether to

request a penalty abatement now or to wait until the Final Notice of Intent to Levy (5th Notice).

Taxpayer may make voluntary tax payments to reduce the tax and interest until a formal installment agreement is granted.

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Third Notice “Immediate Action is Required”

Taxpayer may request a collection alternative.

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Fourth Notice “Notice of intent to seize ‘levy’ your state tax refund or

other property” The taxpayer is given notice that unless the tax is

paid in full, the IRS will file a Notice of Federal Tax Lien shortly.

The Notice of Federal Tax Lien filing is a public filing and can have detrimental effects on the taxpayer’s credit and business reputation.

If Taxpayer’s strategy is to take out a loan to full pay the tax liability, taxpayer may appeal the lien filing by filing a Request for a Collection Appeals Program (Form 9423). See PART V, infra.

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Fourth Notice (cont) Once the lien is filed, the taxpayer may seek to have the lien

withdrawn for any of the following reasons: Notice was filed prematurely;

Taxpayer entered into an installment agreement and the tax liability is less than $50,000;

Tax Liability between $50,000 and $100,000 IRS streamline the processing of Installment Agreements. The test schedule to run through September 30, 2017 by the IRS.

Withdrawal may facilitate tax collection; or

Best interest of taxpayer and government.

See IRC § 6323(j); I.R.M. 5.12.9.

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Fifth Notice Final Notice of Intent to Levy and Taxpayer’s

Right to a Collection Due Process Hearing” Because a lien is not self‐executing, the IRS will take

further action to enforce the lien, such as a levy or a judicial action to foreclose on the lien.

The 5th Notice gives taxpayer the right to request a hearing. Taxpayer should request a Collection Due Process hearing

within 30 days from the date of the Final Notice of Intent to Levy. (Form 12153 )

If the Request for a CDP is not timely filed, IRS will pursue enforcement action.

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Re‐Open Your Case Pay the amount due in full and file a claim for refund. If the IRS disallows your claim, you will have the right to appeal at that time.

Request an Audit Reconsideration. You MUST submit new information the IRS did not previously consider in the original IRS Audit. Publication 3598

File an Offer in Compromise ‐ Doubt as to Liability, IRS Form 656‐L

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CDP Hearing Collection Due Process cases are handled by the

IRS Appeals Office. Taxpayer will meet with an IRS Appeals Officer

or Settlement Officer to discuss the case. In order for Appeals to consider collection

alternatives, the taxpayer must be in filing and estimated tax payment compliance for the current year. Taxpayer may be required to file a Form 433, if applicable. Exception: If a levy will cause an undue hardship and must

be immediately released, the Taxpayer is not required to prove compliance as a pre‐requisite for a hearing. SeeVinatieri v. Commissioner, 133 T.C. No. 16.

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CDP Request should include:

IRS Form 12153

IRS Form 2848

Cover Letter

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CDP Cover Letter Request for a face‐to‐face transcribed conference at the local IRS Appeals Office.

Request for de novo review of the tax, penalty and interest, if applicable.

A request for the memorandum required by IRC §6751(b) with respect to the assessment of penalties, if applicable.

A request for penalty abatement request, if applicable.

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CDP Cover Letter Should contain a statement of all pertinent and potential issues.

Request for the right to amend the request

Request for the right to supplement the CDP request.

Request for no ex‐parte communication between IRS employees working on the same or related cases unless it is beneficial for resolution of the case to allow such ex parte communications.

Taxpayer’s proposed collection alternative, if applicable

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Preparing for CDP Hearing Giamelli v. Commissioner, 129 T.C. 107, 111 (2007).

Review all information about taxpayer’s case: Request updated IRS transcripts

Practitioner Priority Service

Review the IRS’ administrative file pursuant to the Freedom of Information Act Request.

Conduct searches for taxpayer’s assets, liabilities, and background via Google, credit reports, public record

searches, lawsuits, liens, etc.

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Collection Appeals Program (CAP)You may go through the CAP process if you've received any one of the following notices:

Notice of Federal Tax Lien

Notice of Levy

Notice of Seizure

Denial or Termination of Installment Agreement

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Collection Appeals Program (CAP)

If you choose to go through the Collection Appeals Program (CAP) process then you cannot go to Tax Court

on the Appeals' decision.

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CAP Procedures If your only collection contact has been a notice or telephone call: Call the IRS telephone number shown on your notice

Explain why you disagree and that you want to appeal the decision

Be prepared to offer a solution

Before you can start the appeals process with the Office of Appeals you will need to first discuss your case with a Collections manager

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CAP ProceduresIf you have already been in contact with Revenue Officer:

Explain why you disagree and that you want to appeal the decision

Be prepared to offer a solution

Before you can start the appeals process with the Office of Appeals you will need to discuss your case with a Collections manager

Complete Form 9423, Collection Appeals Request

You have 2 days from your conference with the Collections manager to submit Form 9423 to the Revenue Officer.

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Collection Alternatives Currently Not‐Collectible

Installment Agreements

Offers in Compromise

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Currently Non‐Collectible (CNC) For taxpayers where collection of the liability would create a hardship by leaving them unable to meet necessary living expenses.

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Installment Agreements “Fresh Start” Streamlined Installment Agreements for $50,000 or less tax balances

Streamlined Installment agreement for tax debt of between $50,000 to $100,000 – test program by the IRS until September 30, 2017.

Partial pay installment agreement ‐When taxpayers cannot full pay delinquent tax liabilities within 60 months, taxpayers may be allowed to pay their liabilities over a prescribed period of time.

In‐Business Trust Fund Express Installment Agreements (IBTF ‐ Express IA)

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Offer in Compromise “Fresh Start” Offer‐in‐compromise ‐ IRS is authorized to compromise tax liability. IRC § 7122(a). IR‐2012‐53 (5/21/2012)

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Offers in Compromise Pros: an offer‐in‐compromise allows for the full

satisfaction of an outstanding tax debt for less than the full amount.

levy is not permitted while an offer in compromise application is pending IRC § 6331(k) ;

Cons: The statute of limitations is extended:

During the pendency of the Offer, including appeal:

For 30 days following the rejection of an Offer;

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Offer in Compromise Requirements Visit irs.treas.gov/oic_pre‐qualifer to see if your clients

are eligible for an offer in compromise. The website provides step‐by‐step instructions to determine eligibility.

Completed Form 656 or 656L and Form 433‐A (OIC) (individuals) or 433‐B (OIC) (businesses);

Taxpayer must not be in bankruptcy;

Taxpayer must be in compliance with all filing and current tax payment requirements;

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Offer Requirements (cont) Submit $186 non‐refundable processing fee (waivable if

the taxpayer qualifies for low‐income certification);

Lump Sum Payment ‐ Pay 20% non‐refundable payment required at time of offer; (this payment is non‐refundable if the Offer is rejected, and is waivable if the taxpayer qualifies for low‐income certification)

Periodic Payment ‐ Pay 1st month of Offer (while the IRS considers the Offer, the taxpayer is required to make the monthly offer payments)

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What is an IRS Appeal?

Request by taxpayer when they do not agree w/ IRS decision.

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Other IRS Appeals

Denied Offers in Compromise

Denied Penalty Abatement request

Trust Fund Recovery Penalty

Denied Innocent Spouse Relief

Disagreement of Installment Agreement terms

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IRS Appeals Office Designed to resolve disagreements between the Taxpayer and IRS Examinations or Collections without legal action.

Designed for independent review of IRS determinations.

Independent office within the IRS.

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Mission StatementThe Appeals mission is to resolve controversies

without litigation, on a basis, which is fair and impartial both the Government and the taxpayer and in a manner, which will enhance voluntary compliance and public confidence in the integrity and efficiency of the Service.

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Appeals Jurisdiction

Pursuant to Reg. §601.106, this Administrative Branch of the IRS generally has final power and authority of the IRS to determine audit liabilities of taxpayers.

Non‐docketed cases

Docketed cases

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Non‐Docketed Cases Taxpayer has filed a protest to an Area Office’s proposed action involving:

Additional taxes

Refund disallowance (Reg § 601.106(a)(1)(ii), (d)(2)(ii))

Rejection of an Offer in Compromise (Reg §601.106(a)(1)(ii)

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Docketed Cases

Taxpayer has filed a Petition in the United States Tax Court

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Pre‐Assessment JurisdictionPre‐assessment cases over which Appeals may

have jurisdiction:

Federal income

Estate

Gift

Employment

Excise taxes

Additions to the tax, additional amounts and penalties under Reg. 601.106(a)(1)(ii)

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Post‐Assessment Jurisdiction

Post‐Assessment penalties provided in Reg §601.106(a)(1)(ii)(c), (iii)

Written protest is required.

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Jurisdictional Amount IRC §6405

No monetary limit on jurisdiction.

Over‐assessments exceeding $1M are subject to review by Chief Counsel and Congressional Joint Committee on Taxation

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Appeals Triggers

30‐day Letter following Audit of individual, corporation, partnership, or other tax return; or

Issuance of lien, levy, or seizure; or

Proposed issuance of lien, levy or seizure; or

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Appeals Triggers (cont) Proposed rejection or termination of Installment Agreement; or

Proposed rejection of Offer in Compromise; or

Full or Partial disallowance of claim for refund pertaining to issue not previously considered by the Appeals office; or

Denial of innocent spouse petition; or

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Appeals Triggers (cont) 60‐day letter proposing assessment of a Trust Fund Recovery Penalty; or

Denial of Penalty Abatement; or

Filing of a Tax Court Petition in cases where Taxpayer did not have an opportunity for an Appeals conference.

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Written Protest

Taxpayer must specifically request that its case be considered by Appeals

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Small Case Request $25,000 or less per tax period

Less formal

Less detailed than written protest

Must indicate not agreed adjustments and reasons for disagreement

Form 12203 Request for Appeals Review

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Written Protest Required if total amount of any tax period,

$25,000 or more.

Must be filed within 30 days of the date of the 30‐day letter

Fact‐oriented

Documents and affidavits in support should be attached

Should appear to be ready for trial

Taxpayer bears burden

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Written Protest (cont) No strict form, but must include:

1. The name, address and telephone number of the taxpayer;

2. Statement that you want to appeal IRS findings to the Office of Appeals;

3. A copy of the letter received showing proposed change(s);

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Written Protest (cont)4. The tax period(s) or year(s) involved;

5. List of each proposed item with which taxpayer disagrees;

6. Reason(s) for disagreement;

7. Facts that support position on each item;

8. The law or authority, if any, that supports position on each item;

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Written Protest (cont)9. The penalties of perjury statement as follows:

‘Under the penalties of perjury, I declare that the facts stated in this protest and accompanying documents are true, correct, and complete to the best of my knowledge and belief.”

10. Taxpayer or Representative’s signature under the penalties of perjury statement

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Written Protest (cont) Should include the following in or with the protest:

Point‐by‐point responses to the examiner’s positions or unagreed terms

Copies of supporting documentation

Affidavits

Appraisals

Computations

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Written Protest (cont) If Representative signs the protest on taxpayer’s behalf, Representative must:

State that Representative submitted the protest; and

State whether the representative knows personally the facts stated in the protest and accompanying documents are true and correct.

Duly executed Power of Attorney (Form 2848) must be attached to the protest

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Written Protest (cont)

• Send protest to the function (Exams or Collections) that made determination being protested.

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Preparation Representation Pro Se, by an Attorney, CPA, or EA

Generally, practitioner should request a face‐to‐face meeting with IRS Appeals Officer

Documentary evidence not already provided should, to the extent practical, be made available to the Appeals Officer prior to the conference.

Witnesses, such as an appraiser, should be made known to the Appeals Officer well in advance of the Conference.

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Ex‐Parte Communications Appeal Officers may not have ex‐parte communications with other IRS employees that could appear to compromise independence of Appeals.

Rev. Proc. 2012‐18

Gregory Drake v. Commission, 125 TC 201(2005)

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Appeals Conference Hazards of Litigation standard used by Appeal Officers

Factors include: Credibility of evidence; Whether facts can be proven; Whether law is ambiguous, and degree of ambiguity or uncertainty;

Whether taxpayer met requirements to shift burden of proof to IRS;

Likelihood the Court would rule in favor of taxpayer, given facts and law.

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Appeals Conference (cont) Appeals Conferences are informal

Testimony not taken under oath

No stenographer

Facts required in form of affidavit or declared true under penalties of law

Additional info sometimes requested

More than one conference may be required

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Appeals Conference (cont) Should the parties fail to reach an agreement:

Appeals Officer prepares an Action/Transmittal memorandum, which discusses settlement offer, and what settlement range Appeals Officer considers acceptable.

Issues 90‐day letter signaling the termination of efforts to resolve dispute administratively

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Disagree with Determination

If taxpayer disagrees w/ Appeals determination, IRS may issue Notice of Deficiency (in a deficiency case).

The taxpayer may then file a petition in Tax Court.

Taxpayer may pay in full and sue for a refund in U.S. District Court or U.S. Court of Federal Claims.

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Who is TAS? Voice at the IRS

Ensure taxpayers are treated fairly, and know and understand their rights

Free help to guide taxpayers through the process of resolving tax problems

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When to contact TAS TAS can help if you can't resolve your problem with the IRS and:

The problem is causing financial difficulties for taxpayer, your family, or their business.

Taxpayer faces (or their business is facing) an immediate threat of adverse action.

Taxpayer has tried repeatedly to contact the IRS but no one has responded to them, or the IRS hasn't responded by the date promised.

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How to contact TAS Each state has at least one Local Taxpayer Advocate who is independent of the local IRS office and reports directly to the National Taxpayer Advocate.

Taxpayer can also call this toll‐free number to find out if TAS can help them: 1‐877‐777‐4778.

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How to contact TASCity Address Phone FaxAlbany 11A Clinton

Avenue, Suite 354, Albany, NY 12207

518-292-3001 855-818-4817

Brookhaven 1040 Waverly Avenue, Stop 02, Holtsville, NY 11742

631-654-6686 855-818-5701

Brooklyn 2 Metro Tech Center, 100 Myrtle Avenue- 7th Floor, Brooklyn, NY 11201

718-834-2200 855-818-4818

Buffalo 130 South Elmwood Avenue, Room 265, Buffalo, NY 14202-2464

716-961-5300 855-818-4821

Manhattan 290 Broadway, 5th FL., New York, NY 10007

212-436-1011 855-818-4824

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Faculty Biographies

Carmela Walrond is an associate at Spar Bernstein. Carmela works with clients to prepare tax returns, ease tax burdens, resolve loan worries and prevent wage garnishment issues. While in college, Carmela began helping impoverished taxpayers in her community with their taxes through a local volunteer program. Since then, she has spent over ten years working with both corporations and individuals. Carmela has been successfully resolving a range of matters in front of the IRS on behalf of her clients. Carmela is also highly knowledgeable with immigration tax issues that are related to various immigration matters. She re a BS in Accounting at Rutgers University and a JD from Rutgers Law School

Nicole Hamlett is the principal at Hamlett Tax Law, PLLC. She is a dedicated and diligent Tax Professional with extensive Tax Controversy experience, providing solutions to taxpayers for voluntary compliance, audit representation, audit reconsideration, and advocating on their behalf before the Internal Revenue Service. She received a Bachelor’s Degree, Business Administration and Management, Computer Information Systems from Manhattan College, JD from Hofstra University School of law and a LLM in Tax Law from New York Law School.

Michael DeMatos is an attorney at IRS Office of Chief Counsel. He received a BA from Rutgers University and a JD from Hofstra University School of Law.

Nina E. Olson, the National Taxpayer Advocate (NTA), is the voice of the taxpayer within the IRS and before Congress. She leads the Taxpayer Advocate Service (TAS), an independent organization inside the IRS that helps taxpayers resolve problems and works for systemic change to mitigate problems experienced by groups of taxpayers. Throughout her career, Ms. Olson has advocated for the rights of taxpayers and for greater fairness and less complexity in the tax system. In calling for fundamental reform in 2012, she wrote, “A simpler, more transparent tax code will substantially reduce the estimated 6.1 billion hours and $168 billion that taxpayers spend on return preparation” and “reduce the likelihood that sophisticated taxpayers can exploit arcane provisions to avoid paying their fair share of tax.” Ms. Olson was appointed to the position of National Taxpayer Advocate in January 2001. Under her leadership, the NTA’s Annual Report to Congress has become an important vehicle for change. It is one of two reports the NTA is required by statute to deliver each year, and outlines the most serious problems facing taxpayers. The IRS has implemented hundreds of recommendations she has made for administrative change. Members of Congress have introduced bills to implement dozens of her recommendations for legislative change, and 15 of them have been enacted into law. In June 2014, the IRS adopted the Taxpayer Bill of Rights for which Ms. Olson had long advocated, grouping dozens of existing rights in the Internal Revenue Code into ten broad categories of rights, thereby making them clear, understandable, and accessible for taxpayers and IRS employees alike. Tax Analysts recently honored Nina Olson as one of ten Outstanding Women in Tax for 2016. This recognition reflects Nina Olson’s influence on the work of legislators, tax administrators and tax professionals across the globe. She gave the 2013 Woodworth Lecture, sponsored by Pettit College of Law at Ohio Northern University. Ms. Olson is a member of the American College of Tax Counsel and delivered the group's prestigious Griswold Lecture in January 2010. The non-profit Tax Foundation selected her to receive its Public Sector Distinguished Service Award in 2007. Money magazine named her one of 12 "Class Acts of 2004," and Accounting Today magazine has named her one of its Top 100 Most

Influential People in the accounting profession each year since 2004. Prior to her appointment as the NTA, Ms. Olson founded and served as Executive Director of The Community Tax Law Project, the first independent § 501(c)(3) low income taxpayer clinic in the United States. From 1975 until 1991, she owned a tax planning and preparation firm in Chapel Hill, North Carolina. An attorney licensed in Virginia and North Carolina, Ms. Olson served as the chair of the American Bar Association (ABA) Section of Taxation’s Low Income Taxpayers Committee as well as the Pro Se/Pro Bono Task Force of the ABA Section of Taxation's Court Procedure Committee. She is the 1999 recipient of both the Virginia Bar Association's Pro Bono Publico Award and the City of Richmond Bar Association's Pro Bono Award. Ms. Olson graduated from Bryn Mawr College, cum laude, with an A.B. in Fine Arts. She received her J.D., cum laude, from North Carolina Central School of Law and her Master of Laws in Taxation, with distinction, from Georgetown University Law Center. Ms. Olson has served as an adjunct professor at several law schools.

Kristen Bailey is the Director of Collection Policy for the Internal revenue Service.

Allan R. Pearlman brings to bear 16 years of experience that spans working for both federal and state court judges and working in private practice litigating to protect and assert the rights people and businesses to now help taxpayers who have been targeted and are hunted by the IRS. He is a former staff attorney for the United States Court of Appeals for the Second Circuit and former Senior Court Attorney for the New York State Supreme Court. In addition to his tax practice, he writes and argues civil and criminal appeals and major motions at the trial level. He also handles more general trial-level civil litigation. His practice encompasses working as a “lawyer’s lawyer” on behalf of other attorneys and for the general public as well. Allan is a member of the Appellate Courts Committee and the Executive Committee of the Cyberspace Law Committee, both of the New York County Lawyers Association. He is also a member of the New York State Bar Association, the New York City Bar Association, and the American Bar Association. In 1996, the Criminal Justice Committee of the New York County Lawyers Association awarded him their Public Service Award for writing an essay on the criminal justice system. Allan attended the University of Michigan, Ann Arbor where he received a Bachelor of Arts in American Culture. While attending University of Michigan, he was awarded two Hopwood Writing Awards. He received his Juris Doctor from Rutgers Law School, where he was a staff member and then Lead Articles Editor of Rutgers Law Journal. While a law student he published two articles in Rutgers Law Journal. He also was awarded two American Jurisprudence Awards for excellence in Moot Court and in Jurisprudence. He is admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the United States District Courts for the Southern and Eastern Districts of New York, and the courts of the State of New York.

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