Charles Read, CPA, USTCP, IRSAC
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Of the six billion dollars in employment tax penalties levied by the IRS in 2018, over half according to the “IRS Data Book” were abated after being questioned by taxpayers or their representatives. So the odds are good that the IRS is wrong or made a mistake. What do you do to get an abatement?The normal problems with payroll taxes are:
- Failure to file or failure to file timely.
- Taxes underreported.
- Taxes under deposited.
- Taxes deposited late.
Any of these can create a situation where the taxing agency charges penalties and interest against a business and then sucks up subsequent tax deposits, creating additional late and short payments and simply exacerbating the situation.
Read the notice from the IRS (we are just going to refer to the IRS but everything applies to state and local notices as well). It should tell you why they are charging a penalty and interest and how it is calculated. If the notice does not layout that information, you may have well missed or not received the first notice from the IRS. That is not at all unusual. If you don’t have the first notice, then call or write the IRS and get all the information from them. Also, ask them to fax or send you a “Statement of Account” for the period and type of tax in question. This will show you what they have on the IRS file, without regard to whether it is correct or not.
Failure to File or Failure to File Timely
The IRS says you never filed a return. They will estimate taxes due in an amount they know exceeds what would be reasonably due based on your account. They do this to get your attention. Many people, if the estimated amount were too low, would just pay it. The IRS does not want that to happen so they always overestimate. They may in fact create a substitute return on their own volition and file it for you. Then they send you the penalty and interest notices based on the fictional return they created. If they do so, get with your local CPA to file correct returns for reconsideration.
The answer to a failure-to-file penalty is to send a copy of the return. If you filed it by certified mail send a copy of the receipt when it was sent proving the date and a copy of the return receipt showing it was received.
If you didn’t send your return by certified mail, then in your accompanying letter talk about your history of filing on time and explain that this return was surely just misrouted. If you have collateral proof of the filing date, like a canceled check that was sent with the return, quote that information, or even include copies. If the return was due on the 15th and the check attached cleared your bank on the 18th that is pretty convincing that the report was actually there by the 15th.
Find out why they say that your taxes were underreported. Check your numbers against their numbers. Have they transposed a number when they hand-entered the return? That happens with a manual entry on returns and even with computer scanning of handwritten returns or those with strange type fonts. Have they apparently pulled a number out of their hat? That has been known to happen. Mistakes happen on your part and on the part of the taxing agencies.
They say you made fewer or smaller deposits than you reported. Check their list and dates of deposits against yours. Don’t accept their word for when it was made. You have the proof in your files. We have noticed a real problem in the past; EFTPS payments are not being shown with the date in the electronic file the same as on the “IRS Statement of Account.” How that got messed up is beyond me and we have not seen it recently. Prepare the data showing your proof that the payments were made on time, bank deposit slips, canceled checks, EFTPS confirmations, or whatever proof you have. Package up copies and send them to the IRS with a letter of explanation, and a request for them to update their records. If in fact, you missed a deposit, it happens, make immediate payment and then ask for an abatement anyway. Cite valid reasons why the deposit could have been inadvertently missed. Discuss steps you have taken to make sure it won’t happen again. There is a first-time administrative abatement and if you have not had a penalty in three years or so they should abate the penalty automatically.
Late Deposit of Taxes
See the preceding “Underdeposited Taxes” section and do the same thing, only with dates. Document, document, and document; send letters. Don’t give up. Just because the first person at the IRS turns you down, that literally means nothing and frankly, it is expected. The IRS almost always turns down the first request for abatement of a penalty. Dealing with the IRS is a long series of no’s followed by a single yes. When you do get the yes, shut up and walk away.If you have a valid business reason that a penalty has occurred in spite of due diligence on your part the IRS is supposed to abate the penalty. There is no quota system that IRS employees have to meet for bringing in revenue but sometimes you may feel that way. You have what you think is a valid reason why you have not committed “gross negligence” or “willful neglect” and they don’t agree with you. The IRS and other taxing agencies deal with people all the time who try to create “good cause” to get out of penalties. Some of these people lie to try to get out of penalties, others get abusive toward the agency employees. The men and women working for the IRS (and all other taxing authorities) are almost without exception trying to do their job as they are instructed to. If you think they are being unreasonable, you have avenues to appeal to a higher authority. Feel free to do so. The employees should not make your life hard for doing so, in fact, they may be happy to get the case off their desk and on to someone else’s desk.Another thing agency employees may do is to offer a reduced penalty. For example, some mitigating circumstances may be present. Or they will offer to abate penalties on two quarters if you pay the third. This allows the employee to clear the case. All of the employees at the taxing agencies are overworked and have large caseloads. They are constantly being pushed by their supervisors to clear cases. It may be tempting to accept an offer of a reduction, and if you are really in the wrong, take the offer. But it may not always be a good idea to accept. You may well be able to do better. Keep writing letters and filing documents at the higher and higher levels until one reasonable person says yes. Then, take that yes and run.
Can an ordinary citizen do this? Sure! Is it easier for a payroll tax professional? Sure! The IRS is far more likely to listen to a CPA than a citizen. The CPA knows the law and the agency procedures. He knows how to get to the next level of authority for an additional reconsideration. An ordinary citizen may not. The CPA is also far less likely to get emotionally involved than the citizen whose pocket is being emptied.
Your payroll service provider should have CPAs on staff to handle these situations for you. If not, seriously consider a payroll service provider that does. Because when, not if, the IRS, or you, make a mistake; your regular CPA will charge you his full rate to solve problems that should be solved by your payroll provider for little or nothing. Besides, if your regular CPA was an employment tax expert he would probably be doing your payroll already.