PA DOR

Tax Preparer Fails to File Extension To File Request and Taxpayer is Assessed $120,607 Penalty – Court Denies Abatement of Penalty

November 26, 2019 by Frank

Procrastination Cost Taxpayer $120,627

Background

Kristin Intress and Patrick Steffen (taxpayers) were a married couple who filed a joint return for the 2014 tax year. Taxpayers were out of the country at or around the tax filing deadline for 2014, so they arranged to have their tax return preparer file an extension of time to file their 2014 return. The return preparer, at 7:01 p.m. on April 15, 2015, completed a Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, for the taxpayers and queued it up to be filed by her e-file software. However, the preparer failed to hit “send” and the Form 4868 was not electronically received by the IRS by the April 15, 2015, deadline. The tax return preparer did not discover until October 2015 that the extension form had not been filed.

How Expensive Was This Oversight?

As a result, the IRS found that the taxpayers’ return was not filed timely and assessed a $120,607.27 late filing penalty.

IRS Appeals

IRS Appeals Office agreed with examination’s findings that the Supreme Court Boyle case was controlling. After exhausting their administrative appeals with the IRS, the couple paid the penalty on Nov. 1, 2016. In March 2017, they filed a refund and abatement request. The IRS denied the request.

Boyle Case

In Boyle, the Supreme Court held that a taxpayer’s reliance on an agent for tax filing is not reasonable cause for abatement of late penalties should the third party fail to file timely. The Court, citing Regs. Sec. 301.6651-1(c)(1), defined reasonable cause as being “unable to file the return within the prescribed time” notwithstanding the taxpayer’s exercise of “ordinary business care and prudence”. The Court reasoned that the timely filing of required returns is a duty placed on a taxpayer and not on a taxpayer’s agent, and the duty requires no special training or effort on the part of a taxpayer and, accordingly, no assistance from an agent to fulfill. Thus, relying on an agent to file a return is not reasonable.

District Court Findings

The district court found that it could rely upon Boyle because the taxpayers were not required to use tax preparation services. The court observed that, as was the case in 1985, individuals without specialized expertise can still prepare and file their own paper returns, and the decision to use a tax preparation service is within the taxpayer’s control.

Because the same filing options that existed in 1985 (mailing a personally or professionally prepared return) still existed in the year that the taxpayers were audited, the court held that the bright-line rule set out in Boyle had not changed, and, as the Supreme Court stated in its opinion, “reliance [on an agent] cannot function as a substitute for compliance with an unambiguous statute”.

Accordingly, the district court held that the taxpayers were not entitled to an abatement of the penalty. The court concluded that although the IRS relied upon the Boyle case, which was decided at a time when returns were exclusively paper-filed, the holding in that case also applies to e-filed returns.

Reasonableness Outside the Context of Boyle

The court further found that even if Boyle did not apply to e-filed returns, it would not eliminate a taxpayer’s duty to exercise “ordinary business care and prudence.” Therefore, if Boyle did not apply, the court stated, a taxpayer that claimed reliance on an agent as reasonable cause for late filing would still be required to prove that the reliance was reasonable. According to the court, “it would never be reasonable to blindly take someone’s word that he will timely file your taxes”. Thus, because it was unclear that the taxpayers had tried to verify that their tax return preparer had properly filed an extension for their return before the mistake was discovered six months after the extension was supposedly filed, the court determined that the taxpayers’ reliance on their tax return preparer was not reasonable.

Acknowledgements

We wish to acknowledge that this case was brought to our attention by James Beavers in his October 1, 2019 article in the AICPA’s “The Tax Adviser” publication.

Tax Planning Tip #1:

If you use a professional tax preparer, submit your tax information to the preparer as early as possible to minimize your anxiety and to ensure that your tax return is timely filed.

If you would like to discuss your business or personal tax planning, tax preparation and other financial concerns with an experienced tax professional, we invite you to call 610-594-2601 today to make an appointment at our Exton PA CPA office to discuss your situation. You can also schedule a consultation at Click Here.

BE SURE TO READ THE DISCLAIMER PAGE: Tax laws, IRS rules and regulations change frequently. Although we hope you’ll find this information helpful, this blog is for educational purposes only and should not be considered as the rendering of tax, legal or investment advice. The publisher shall not assume liability for any losses, injuries, or damages from the display or use of this information.

About F. Bryan Haarlander, EA, CTRS:

Bryan Haarlander is an IRS licensed Enrolled Agent and who owns and operates a specialized tax services firm serving clients in the western suburbs of Philadelphia, PA, which includes the cities of Chester Springs, Coatesville, Collegeville, Devon, Downingtown, Exton, Frazer, King of Prussia, Paoli, Philadelphia, Phoenixville, Pottstown, Radnor, Reading, Wayne, West Chester in Berks, Chester, Delaware, Montgomery and Philadelphia Counties, as well as clients in Delaware, New Jersey, New York and throughout the continental USA.

A Certified Tax Resolution Specialist, Bryan is well-known for his IRS tax resolution expertise and his book How to Resolve Your IRS Tax Debt Problems.

IRS Reconstructs Income for Taxpayer Who Failed to File Tax Returns for Five Years

November 19, 2019 by Frank

Lack of Adequate Records by Taxpayer Not a Deterrent to Preventing IRS from Reconstructing Taxable Income

Background

Francis Steffan Hayes [T.C. Memo 2019-147] failed to file his tax returns for years 2005-2009 and paid no taxes during that time span. He claimed that he did not maintain adequate records, refused to cooperate with the IRS, and would not present any records to assist the IRS in its audit.

IRS Audit Steps to Reconstruct Income

To reconstruct his income, the IRS (1) summoned accounts in his name at Wells Fargo, PayPal and e-gold; (2) contacted his customers and vendors to determine his gross receipts; and (3) searched for income that he may had deposited elsewhere.

The IRS also included in his unreported income checks and money orders found in the accounts of two of his friends. Most of these checks had been addressed to Mr. Hayes or one of his business enterprises which he had endorsed over to his friends. Since Hayes had unfettered use of these funds when received, they were considered taxable to him. When customer records were subpoenaed, the IRS discovered checks written to Hayes which the IRS included as taxable income to him. The revenue agent who conducted the examination then turned his findings to another IRS revenue agent who prepared substitute for returns for Hayes.

IRS Evidentiary Matter

Gross income includes all income from whatever source derived [IRC Sec. 61(a)]. IRC Sec. 6001 states that taxpayers must keep adequate books and records from which their correct tax liabilities can be determined. When a taxpayer fails to keep records, the IRS has discretion to reconstruct the taxpayer’s income by any reasonable means [IRC Sec. 446(b)].

The IRS was able to demonstrate to the court with its documentation that it had taken the necessary evidentiary steps to reconstruct Hayes’ income and allowing him certain expenses. At this point, the burden of proof shifts to Hayes to prove (by a preponderance of the evidence) that the IRS’ determinations are arbitrary or erroneous.

Taxpayer’s Arguments Before the Court

Hayes represented himself in court and argued various variations on oft-rejected tax-defiance themes and that the returns prepared by the IRS were invalid.

Tax Court’s Findings

The court found in favor of the IRS. It stated that the taxpayer offered only meritless arguments against the IRS’ imposition of additions to tax and failed to show any reasonable cause.

Tax Planning Tip #1:

The best and easiest way to prevail in an IRS audit exam is to have substantiation for the income and expenses shown in your return.

About F. Bryan Haarlander, EA, CTRS:

A Certified Tax Resolution Specialist, Bryan is well-known for his IRS tax resolution expertise and his book How to Resolve Your IRS Tax Debt Problems.

PA Updates Its Corporate Income Tax Nexus Standard

November 7, 2019 by Frank

PA Adopts Wayfair Nexus Decision that Physical Presence is Not Needed for PA to Tax Out-of-State Corporations that Receive an Economic Benefit from Their PA Marketplace Presence

Physically Presence is Not Required

PA declares that corporations do not need to be physically present in Pennsylvania in order to have nexus for corporate tax purposes. Out-of-state corporations doing business in Pennsylvania must file tax reports if they are taking advantage of the Pennsylvania economic marketplace.

Wayfair Decision

As reported in our July 24, 2018 blog, the U.S. Supreme Court decision in South Dakota v. Wayfair would have a profound affect on the nexus standard. “Nexus” being the amount of contact a business would have in a state before being subject to that state’s taxes. Whereas the former standard that a business needed a physical presence in a state before the state could tax it, Wayfair replaced the physical presence test with an economic test.

Pennsylvania states that the decision in Wayfair v. South Dakota made certain that no physical presence standard exists to limit the ability of a state to impose a net income tax on an out-of-state taxpayer. The decision confirmed that out-of-state corporations are doing business in the Pennsylvania and/or carrying on activities in Pennsylvania to the extent they are taking advantage of the economic marketplace. Taxpayers taking advantage of the economic marketplace will be required to file tax reports if they meet the minimum nexus thresholds under the U.S. Constitution.

Economic Presence Test

Pennsylvania will require taxpayers with economic nexus to file corporate tax reports after 2019. Pennsylvania will presume taxpayers without a physical presence have to file a corporate net income tax report if they have $500,000 or more of direct or indirect gross receipts sourced to the state. The presumption is rebuttable.

The gross receipts must be from the:

sale, rental, lease, or licensing of tangible personal property;
sale of services; and/or,
sale or licensing of intangibles, including franchise agreements.

amended law revised the definition of “transient accommodation” to limit it to the rental of a room, group of rooms, or other living or sleeping space for the lodging of occupants, including but not limited to residences or buildings used as residences, that is either:

Obtained through a transient space marketplace; or
Is a professionally managed unit.

The PA Department of Revenue recognizes that taxpayers with or without physical presence in the Commonwealth can still potentially claim exemption from the imposition of the Corporate Net Income Tax under the provisions of P.L. 86-272. Taxpayers claiming P.L. 86-272 (physical presence) protection should still file a tax report and complete the necessary schedules to claim the exemption. Corporation Tax Bulletin 2019-04, Pennsylvania Department of Revenue, September 30, 2019.

Tax Planning Tip #1:

States will continue their efforts to tax out-of-state businesses rather than face the wrath of in-state business when taxes are increased. If you have not already consulted with your tax adviser to determine if you have nexus exposure, you need to do so.

Tax Planning Tip #2:

While reading this post, keep in mind that other states have already changed their nexus standard from physical presence to an economic benefit test, or are considering doing so, thus your activities outside of PA may be creating nexus in those states where you have activities. Refer to Tax Planning Tip #1.

About F. Bryan Haarlander, EA, CTRS:

A Certified Tax Resolution Specialist, Bryan is well-known for his IRS tax resolution expertise and his book How to Resolve Your IRS Tax Debt Problems.

Utilities – PA DOR Continues Assault on Home Office Deduction

December 11, 2018 by Frank

Utilities – PA DOR Continues Assault on Home Office Deduction

PA Dept. of Revenue’s Revised Onerous Requirement

for Reporting Sales Tax on Utilities

In our March 17, 2015 posting, we discussed that taxpayers who claim a home office deduction would be required to pay sales tax to the Pennsylvania (PA) Department of Revenue (DOR). We pointed out that personal residential use of electric, gas and oil are not subject to PA sales tax. When a taxpayer uses a portion of their personal residence for business purposes (i.e., the home office), the residential usage is transformed to commercial usage. Since commercial usage is subject to PA sales tax, taxpayers claiming the home office would have a PA sales tax liability.

For pre-2018 tax years, to pay the sales tax to PA, taxpayers would simply report the sales tax on line 25 on page two of the PA-40 individual income tax return. The PA DOR recently announced that only residential use tax can be reported on that line.

Initially, the DOR announced that taxpayers claiming a home office would need to register with the DOR for a sales/use tax account to remit the tax and make separate periodic filings with the DOR using the E-Tides system. After an outcry by tax practitioners about this onerous approach, the DOR listened, but unfortunately, decided upon another onerous approach.

Under current guidelines, taxpayers will be asked [Read more…] about Utilities – PA DOR Continues Assault on Home Office Deduction

PA Aggressive Sales Tax Approach on Used Car Sales

October 23, 2018 by Frank

PA Aggressive Sales Tax Approach on Private Used Car Sales

Motor Vehicle Understated Value Program (MVUVP)

It has come to our attention that individuals who are purchasing a vehicle in PA via a private sale may receive a notice in the mail that they are being assessed PA sales tax in an amount greater than six per cent (6%) of the purchase price.

A tax practitioner shared the following story with us: I had a client who purchased a car from a former employer for the blue book value with adjustment for the high mileage (over 200,000). The PADOR sent the individual an assessment for what the DOR felt the car was worth. In response, the taxpayer sent PA documentation to support the purchase price. The documentation included Kelly’s Blue Book Value, an appraisal from a car dealership, photos of the odometer and the inside and outside of the vehicle. Despite the documentation sent to the DOR, the DOR sent monthly deficiency notices to the taxpayer.

The MVUVP allows the PA DOR to assess additional sales tax [Read more…] about PA Aggressive Sales Tax Approach on Used Car Sales

PA Department of Revenue – Audits versus Desk Reviews

July 12, 2018 by Frank

PA Department of Revenue

Audits versus Desk Reviews

Arbitrary & Capricious? Business Owners Be Aware!

Is “tomato” pronounced “tomahto” (the British pronunciation) or “tomayto” (the American pronunciation)? Does anybody care? According to the DailyWritingTips.com, because of the song, tomayto, tomahto, the expression is often used to express an “unimportant difference.”

However, when it comes to the PA Department of Revenue (DOR), there’s a MAJOR difference between it conducting an audit and a desk review. The PA DOR alternatively refers to its underreporting program as a “review”, “desk review”, and “desk audit review”. On June 5, the Allentown Morning Call published an article about Business Tax Cheats Zapped for $6 Million of PA Revenue Investigators. The PA DOR is currently focusing its audit examinations on taxpayers who underpay their sales tax and income tax by using zappers. Zappers are software programs that delete selected sales from the business’s point of sales (POS) operating system. Some of the sophisticated zappers tell the business owner how many dollars in sales were zapped so the owner can pocket those sales, and some zappers adjust inventory numbers to support the under-reported sales. The use of zappers is FRAUD and the PA DOR is justified assessing and prosecuting tax cheats. Taxpayers who are audited by the PA DOR are subject to normal examination procedures and appeal rights.

The issue is whether assessments stemming from reviews are fair. The current reviews being conducted are of a Schedule C business’s gross receipts (to determine if the proper amount of income tax is being paid) and total sales reported per the business’s sales tax filings (to determine if the proper amount of sales tax is being remitted). The DOR has stated that it uses analytics to justify its findings of underreported sales. Due to the reporting of credit card sales by banks (IRS Form 1099-K), the DOR may extrapolate what the total sales are based on the credit card sales, the difference being unreported cash sales. The DOR also uses sales information gleamed from other taxpayers. So if you have a business in Western PA that experiences 10% cash sales, the DOR conceivably may find that your cash sales are really 40% of total sales based on (1) a similar business in the Philadelphia area (whose demographics are entirely different than yours) or (2) using analytics based on an unrealistic or flawed statistics. That’s comparing apples to oranges and not comparing tomaytos to tomahtos.

During these reviews, the DOR is requesting that the taxpayer prove that the underreported sales do not exist. This is logically fallacious! The DOR is asking the taxpayer to prove the non-existence of sales in place of providing adequate evidence for the existence of those unreported sales. The burden of proof should be on the DOR, the party making the assertion. Shifting the burden of proof is the fallacy of putting the burden of proof on the person who denies the assertion being made. The source of the fallacy is the assumption that something is true unless proven otherwise. So if the taxpayer is unable to convince the DOR (or another PA agency) that there were no unreported sales, PA assesses the taxpayer.

How does a taxpayer appeal the findings of a desk review? According to the DOR, when a review is performed, the taxpayer does not have the same examination procedure rights that are provided to a taxpayer who is audited. Defending against the review findings is difficult since [Read more…] about PA Department of Revenue – Audits versus Desk Reviews