HOW TO FIGHT THE IRS

APRIL 12, 2010 How to Fight the IRS



Brace yourself: The chances of being audited are rising. So if it happens to you, here's what to do—and what not to do.

By TOM HERMAN


Get ready for increased scrutiny by the Internal Revenue Service.


With Washington searching for ways to cut the budget deficit, IRS officials face intense pressure to collect more revenue. The agency plans more audits, especially of taxpayers in high brackets or those who are self-employed and deal in large amounts of cash. The IRS also has turned up the heat in such areas as offshore tax evasion, including undisclosed foreign bank accounts.


More Americans may be audited by the IRS this year, thanks to new pressure on the agency to collect from laggard taxpayers. The Wall Street Journal's former tax columnist Tom Herman explains to Kelsey Hubbard some smart -- and not-so-smart -- ways to fight back.


If you become an IRS target, what should you do?


For many people, the answer may seem simple: Surrender as quickly as possible, no matter how good a case you have.

Even if you are sure you are right and have all the records to prove it, fighting the IRS, one of the most powerful government bureaucracies on the planet, can be the ultimate nightmare. Seemingly routine struggles can drag on for years, leading to endless frustration and sleepless nights. Even those who eventually triumph may wonder if the fight was worth all the time, effort and expense.

But if you're ready for the challenge, there are many smart ways to fight back—and win. Start by keeping comprehensive, well-organized documents. Always scour the IRS's claims for mistakes. Don't get discouraged when dealing with tax officials. If you are convinced you are correct, consider pushing your case up the chain of command. Try the IRS appeals division. You may also get valuable help from the IRS's taxpayer advocate service. Or go to court.

At the same time, there are some classically dumb mistakes to avoid—everything from simply ignoring the IRS to arguing that it somehow is voluntary to pay federal income tax.

Here are some combat tips from lawyers, accountants and "enrolled agents," who are federally licensed tax experts authorized to represent taxpayers at all levels of the IRS.

Hire the wrong tax preparer: Beware of someone who asks you to sign a blank tax return. Or whose fee is based on a percentage of how much you save in taxes. Or who promises to get you a significantly higher refund than anyone else can. People like these are likely to prepare outrageous returns that will land you in deep trouble with the IRS.

The Ostrich approach: One of the biggest mistakes is to bury your head in the sand and ignore IRS notices and letters, hoping the tax collectors eventually will lose interest and go away. "When dealing with the IRS, the best thing someone can do is to maintain regular communication," says Charles P. Rettig, a tax lawyer at Hochman, Salkin, Rettig, Toscher & Perez P.C., in Beverly Hills, Calif. "Whether during an audit or in the tax-collection process, ignoring the IRS is simply a bad idea."


Act professionally throughout the process and reply to IRS correspondence on time. The IRS is very serious about deadlines. Also, "keep a record of all communications and correspondence with the IRS, including proof of delivery, and keep your records organized," says Caroline D. Ciraolo, a tax lawyer at Rosenberg Martin Greenberg LLP in Baltimore.

Frivolity: Some people tell the IRS and judges that it somehow is voluntary to file a federal income-tax return and pay taxes. Or that their wages, tips and other income for personal services aren't taxable. Or that they are residents of a state but not of the United States. Or variations of these themes.


Don't even think of making any of those claims. Tax Court judges routinely label these as "frivolous" arguments, delaying tactics or both. More important, judges often impose stiff monetary penalties on those foolish enough to persist.
Ross MacDonald


Bribery: This is even dumber—and far more dangerous—than frivolity. In a case last year, for instance, a Houston-area resident was sentenced to prison for two years for trying to bribe an IRS agent, according to a report by the Treasury Inspector General for Tax Administration. The U.S. Attorney's office in the southern district of Texas said the man offered the agent $2,500 to reduce his tax liability to around $500 from $49,000. In addition, the man "repeatedly offered the agent pizza from his restaurant as part of the deal."

Automatic Surrender: Just because the IRS says you owe money doesn't mean that's correct. The agency makes mistakes—plenty of them, even in computing penalties and interest. "I have had several clients receive notices regarding unreported securities sales," says Stephen W. DeFilippis, the owner of West Suburban Income Tax Service in Wheaton, Ill., and an enrolled agent. "In these cases, the clients exchanged mutual funds one for another and didn't realize that's a taxable event." The IRS, he says, sent a notice "including the gross proceeds in income and assessing tax on the additional income."

But the IRS missed a vital point, he says: "The clients brought me these notices, and in each case the mutual-fund exchanges resulted in a loss. So instead of owing a large sum to the IRS, the clients got a refund."

This story shows how foolish it can be to pay what the IRS says you owe without "thoroughly investigating" the subject, says Mr. DeFilippis.


But if the amount in question is relatively small and the issue is confusing, some may conclude it isn't worth the time, trouble and expense of challenging the IRS and may decide to pay in order to make the problem disappear. It depends on the details of each case, including how confident you are of victory and how much time and expense you are willing to devote to the battle.


Smart Moves


GET HELP: Having a smart, well-prepared tax expert on your side can be a tremendous advantage. Not only will they know the ins and outs of the tax code, but also they can take over the often-exhausting job of dealing with the IRS —and help you decide how far to push a fight.

Take the case of Elizabeth Chapman, a 66-year-old poet and writing consultant in northern California. Nearly three years ago, the IRS notified Ms. Chapman that her 2005 federal income-tax return was to be examined. Fortunately, Ms. Chapman had chosen an experienced and highly regarded tax professional, Claudia Hill, an enrolled agent and the owner of a tax-preparation and advisory firm in Cupertino, Calif.

Ms. Hill arranged a meeting with the IRS so that she could present evidence on behalf of Ms. Chapman. Even before that meeting, Ms. Chapman received a note from the IRS saying its calculations showed she owed more than $15,900, Ms. Hill says.

Ms. Hill finally met with the IRS, laid out Ms. Chapman's case, and later sent more material by mail. The IRS eventually responded with a letter saying its new calculations showed Ms. Chapman owed only $151. But Ms. Hill felt confident the correct answer was zero. She asked the IRS agent's manager to intervene—"but to no avail," she says.


Ms. Hill didn't give up. Eventually, an IRS appeals officer concluded Ms. Chapman didn't owe a penny.


Ms. Chapman won another battle in U.S. Tax Court. After hearing about the difficulties she had encountered, the judge ordered the IRS to pay $3,475.06 in fees that Ms. Chapman had incurred. In his opinion, handed down last October, the judge concluded that the IRS had "presented no evidence showing it was reasonable to determine" that Ms. Chapman owed anything. (An IRS spokesman declined comment on Ms. Chapman's case.)

The IRS check finally arrived in March of this year, Ms. Hill says. She says Ms. Chapman "is amazed," adding: "I'm pleased."


Become a Pack rat: Generally, you should keep returns and all supporting documents for at least three years from the original due date, including extensions. Even better, save all records for at least six or seven years. The reason: If you didn't report income that should have been reported, and if it is more than 25% of the income shown on the return, the time period doesn't run out until six years after the return was filed, according to an IRS publication.


But be warned that there is no time limit on the IRS if someone hasn't filed a return, or files a return that is "false" or "fraudulent with intent to evade tax." You should save some records even longer. For example, keep indefinitely documents showing what you paid for investments that you own and haven't yet sold—such as stocks, bonds, mutual funds, art objects or a home, including improvements.


It may be a nuisance, but all that paper could be vitally important if you are challenged by the IRS. The more complete and well-organized your record keeping, the better your chances of prevailing. The case of Ms. Chapman illustrates this lesson. Judge Gerber of the U.S. Tax Court wrote that Ms. Chapman had given the IRS "documentation that reflected that she was entitled to deductions in an amount that was in excess of the amount respondent questioned."


Appeal: If you feel you have a bulletproof case but are getting nowhere with an auditor, stay calm—and consider asking to speak to that person's manager. If that doesn't help either, consider taking your case to an IRS appeals office. An IRS publication says "most differences" between taxpayers and the IRS that reach the appeals level are settled. For details, see IRS Publication 556.

TRY THE ADVOCATE: You may also consider taking your case to the IRS Taxpayer Advocate Service, or TAS, an organization within the IRS created to help taxpayers resolve problems, as well as advocate for changes in the system.

You may be eligible for help if you have tried to resolve your tax problems through normal IRS channels and haven't gotten anywhere, or if you believe an IRS procedure isn't working as it should, such as an amended return that hasn't been processed, an advocate spokesman says.

The service also may be able to help taxpayers whose problems are causing financial woes or significant cost, including the expense of hiring a pro to represent them. Among the classic types of cases accepted by the TAS are those in which a taxpayer is experiencing, or is about to experience, a financial hardship due to an IRS action, such as a lien, levy or seizure, or some IRS inaction, such as a delayed or lost refund check, a spokesman says. For details, see the IRS Web site (www.irs.gov/advocate) and IRS Publication 1546, or call 877-777-4778.

Partial Pay: If you can't pay everything you agree that you owe, consider arranging to pay through an installment plan. Try the online payment agreement option on the IRS Web site to see whether you qualify.


If you are facing a financial crisis and have no hope of repaying everything you owe, consider asking the IRS to settle for some lesser amount. Getting the IRS to agree to an "offer in compromise" usually is difficult. But the IRS recently announced "new flexibility" in considering offers from taxpayers facing "economic troubles, including the recently unemployed."

Specifically, IRS employees "will be permitted to consider a taxpayer's current income and potential for future income when negotiating an offer in compromise," the IRS said. "Normally, the standard practice is to judge an offer amount on a taxpayer's earnings in prior years." However, the IRS said it may also require the taxpayer to agree to pay more "if the taxpayer's financial situation improves significantly."

More broadly, an IRS spokesman says the agency is "continually working to reduce taxpayer burden by seeing to it that tax issues are resolved in the least costly and most expeditious manner possible."

He points out that the IRS earlier this year "began rolling out a series of streamlined and simplified notices, designed to reduce the potential for confusion."


GO TO COURT: Most people who decide to slug it out with the IRS in court do so by filing a petition with the U.S. Tax Court, which is based in Washington, D.C., but holds trials in many cities around the nation. If you pick this court, you usually don't need to pay the amount in dispute while your case is pending there, according to the court's Web site (www.ustaxcourt.gov). That site has details on how to get your day in Tax Court, what types of cases the court accepts and answers to other frequently asked questions.


"In many cities, there are low-income-taxpayer clinics that will offer free representation in tax disputes," says Ms. Ciraolo of Rosenberg Martin Greenberg. "Also check to see if there is a U.S. Tax Court pro bono program" in your area.


If the Tax Court decides you do owe some tax, or if you settle or agree to some tax liability, the law generally says interest runs on unpaid tax from the date it was originally due until paid in full, the court says. "Interest also runs on some penalties."


But the Tax Court isn't your only option. Instead, you could choose to go to federal district court or the U.S. Court of Federal Claims. Generally, though, those courts will hear tax cases only after you have paid the contested amount and filed a refund claim with the IRS. See IRS Publication 5.


Picking the right court can be tricky. The answer will depend on the intricacies of your dispute and other factors, such as prior decisions made by those courts on the issues in your case.


Lobby Congress: This is a very long shot. But occasionally, someone comes up with a compelling story that attracts press coverage and leads to tax-law changes. During the 1990s, Congress approved changes in the "innocent-spouse law" after lawmakers were moved by the plight of numerous divorced or separated couples who had filed joint returns and where one, usually the woman, later argued she was being saddled with taxes that rightly should be paid by the other person. The changes were designed to make it easier, in certain circumstances, for one spouse to be relieved of the liability.


Mr. Herman, a former Wall Street Journal tax columnist, is a writer in New York. He can be reached at reports@wsj.com.


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