Taxpayer Options to Make Peace with the IRS
From amended returns to audits in New York
on October 29, 2020
Updated on February 8, 2021
When it comes to filing your own taxes, getting it wrong can lead to some serious consequences, including civil or criminal charges.
You may expose yourself to penalties if the IRS finds your mistakes, says Bryan Skarlatos of Kostelanetz & Fink. Civil penalties are usually equal to 20% of the tax you should have paid. “It can add up,” Skarlatos adds.
The good news? If you do want to proactively fix a negligent mistake, you can file a qualified amended return, or QAR. “It eliminates the possibility of civil penalties,” he says.
But that won’t cover a person who knowingly filed incorrectly. Willful errors on your taxes can result in criminal prosecution, jail time, or the civil fraud penalty, which is equal to 75% of the tax you avoided.
“If it was willful, then you should consider correcting it in a special way that will help mitigate the chance that you could be criminally prosecuted,” Skarlatos says. “The main way is what’s called making a voluntary disclosure.”
Once the IRS has begun an audit, voluntary disclosures are no longer an option. “If it’s an issue that’s raised in the audit, then you’ve just got to resolve it during the audit,” Skarlatos adds. “You hopefully argue about whether or not there should be penalties.”
However, taxpayers do have time to work out a resolution with the IRS. “The audit process is definitely a process,” says David K. Spencer of the Law Offices of David K. Spencer. “There’s a very involved procedural sequence of steps.”
Generally, you will get an audit letter and then speak with an auditor. If you agree with the initial decision? “Just pay them, and you’re not going to have any problems,” says James O. Druker of Kase & Druker. If you disagree, you can fill out the provided form, attach your explanation and supporting documents, and return it to the IRS via certified mail. “Typically, if they have erred, they’ll accept it, make a correction and send you a new notice,” he says.
If that notice still doesn’t seem correct, you can file an appeal. “And the IRS appeals people are the best part of the whole IRS system,” Druker says. “They’re fair, they’re smart, they get a grasp on things, and they do the right thing.”
Not all disputes are easily negotiated, however. “If it’s willful and they find out about it, they’re going to be a lot more hard-ass about it,” Skarlatos says. “There’s a principle at stake. You lied to the IRS and now they’re going to go after you.”
And if the problem can’t be resolved in the audit or through negotiation with IRS agents, it may go to tax court, where a judge will hear both arguments and issue a decision.
Time is critical. “A lot of these things are on 30-day or 60-day or 90-day timelines,” Spencer says. “And if you come to me 32 days later, I’ve lost my legal right to appeal. Without a time machine, there’s nothing I can do.”
A tax attorney tends to be most useful well before a controversy comes into play. “I would say I do more work proactively than I do reactively,” Spencer says, “and we add more value there. Our tax planning and tax strategy is the aspect of getting ahead of this process and making sure that you are comfortable in the positions you’re taking and that you’re not making these mistakes.”
Whether it’s a lawyer or another type of representative, you should always have someone on your side in an audit, Skarlatos says. “The taxpayers should not handle their own audit in 99% of the cases,” he says. “It should be either the tax return preparer, an accountant, [or] an enrolled agent. Or, if enough money is involved or if it’s criminal, the lawyer.”