Tax Problem Attorney Blog

Payroll Tax Fraud Cases Expected To Increase

February 13, 2009 | by Dennis N. Brager

According to a report published by Tax Analysts, Assistant Attorney General Nathan Hochman, announced at a recent American Bar Association (ABA) meeting that the Internal Revenue Service (IRS) and the Department of Justice will be aggressively pursuing businesses with payroll tax problems. Hochman, who is the head tax lawyer for the Tax Division of the Department of Justice, said in tough economic times employers try to save money by not paying their payroll tax liabilities. He also noted that while in the past payroll tax problems have been handled on a civil basis that the IRS is now bringing criminal tax evasion charges, and that judges are handing out harsh sentences. I have previously blogged about the Easterday case in which Jack Easterday was sentenced to 30 months in prison for payroll tax fraud. Apparently there are more criminal payroll tax fraud cases to come.

If your company has payroll tax problems, or you have concerns about tax fraud or tax evasion please contact the tax lawyers at Brager Tax Law Group.

California Franchise Tax Board Innocent Spouse Rules Change

February 9, 2009 | by Dennis N. Brager

Beginning January 1, 2004 the California Franchise Tax Board (FTB) was required, with some limitations, to grant innocent spouse relief to individuals who had previously been granted innocent spouse relief by the Internal Revenue Service (IRS) pursuant to Revenue and Taxation Code Section 18533(h). The idea was that someone who had gone through all of the expense and trouble of obtaining innocent spouse relief from the IRS should not have to go through the same process with the FTB again. After all, portions of the California innocent spouse statute are identical to the federal innocent spouse statute Internal Revenue Code Section 6015. Unfortunately the Revenue and Taxation Code Section 18533(h) expired at the end of 2008.

The California Franchise Tax Board, however, announced that it would apply the same rules as existed under former Section 18533(h) in determining whether or not innocent spouse relief should be granted. However, since there is no longer a statutory basis for doing so if the FTB were to decide for any reason that the old statute didn’t apply a person could no longer appeal to the California Board of Equalization (SBE or BOE) or the courts on the basis that the FTB hadn’t followed Revenue and Taxation Code Section 18533(h) in applying the innocent spouse rules.

If you think that you are an innocent spouse, and would like to arrange a consultation with one of our tax litigation lawyers please contact Brager Tax Law Group, A P.C. Alternatively, if your spouse is requesting innocent spouse relief, and you don’t believe he or she should qualify, our tax attorneys may be able help too.

Tom Daschle Has Tax Problems

February 2, 2009 | by Dennis N. Brager

According to CNN former Sen. Tom Daschle, President Barack Obama’s nominee for secretary of Health and Human Services has some tax problems. CNN says he failed to pay taxes on a car and driver he had been loaned by a wealthy friend, and failed to disclose it on his tax return. At first it was not clear why he should have reported it on his tax return since it sounded more like a gift. However, a later report by The Wall Street Journal says that the car and driver was provided to him by InterMedia Advisors LLP, an investment firm specializing in buyouts and industry consolidation where Daschle served as chairman of the firm’s executive advisory board after he left the Senate. That should have been reported, but there might be a partial offset as an employee business expense, and the firm should have included it on his W-2, or included it on his Form 1099 if he was an independent contractor.

If you have tax problems you can call our tax attorneys whether or not you are a former senator.

Tax Problems Continue For Kerik

January 28, 2009 | by Dennis N. Brager

Bernard Kerik’s tax problems have not stopped. The former New York City police commissioner was indicted on December 2, 2009 on charges that Kerik “corruptly obstructed and impeded, and attempted to obstruct and impede, the due administration of the Internal Revenue laws.” This second indictment supersedes the previous indictment filed November 8, 2007. Among the acts cited in the indictment are filing false federal tax returns, taking fraudulent deductions, failing to report income, and providing false information to his accountants. Kerik has pled not guilty.

According to an article in the Washington Post Kerik had been trying to fend off charges of tax evasion and tax fraud for many months.

Kerik, former US interim minister of interior Iraq, rose to fame in 2004 as President Bush’s nominee to replace Tom Ridge as the Secretary of Homeland Security. After it was discovered he employed an illegal immigrant as his children’s nanny, he withdrew from the nomination process.

IRS Investigation Into UBS Tax Evasion Case Expands

January 28, 2009 | by Dennis N. Brager

According to a report in the Wall Street Journal the Internal Revenue Service (IRS) now believes that the number of UBS clients who hold offshore accounts is higher than the 17,000 originally reported. The IRS believes that UBS helped these clients commit tax fraud by helping them hide their income from the IRS. According to the article UBS is in talks with the Department of Justice to avoid possible felony indictments by paying a penalty in the rage of 1.2 billion dollars.

UBS become front page news when a former UBS executive told the IRS that UBS routinely advised its customers that they weren’t required to disclose their Swiss bank accounts to the IRS. Of course that was a bad bit of advice which could expose people to tax evasion and related charges since U.S. citizens are required to make a disclosure of their offshore bank accounts in two places. First, on Schedule B of their Form 1040 in response to question 7a “At any time during 2008, did you have an interest in or a signature or other authority over a financial account in a foreign country, such as a bank account, securities account, or other financial account?” Second, holders of foreign bank accounts must report their existence on Form TDF 90-22.1.

In July 2008 a District Court judge in Miami granted an IRS summons to turn over the records with the names of US taxpayers who requested their accounts be kept hidden from the IRS. Clearly such records would be part of a chain of evidence that the IRS could use to bring tax evasion charges. UBS has yet to turn over the records, and according to the Journal the IRS is considering whether to ask the judge for an additional order forcing the turnover of the records.

Non-Payment of Payroll Taxes Results in Tax Fraud Conviction

January 13, 2009 | by Dennis N. Brager

Many business taxpayers fail to pay over payroll taxes to the Internal Revenue Service (“IRS”). By doing so they expose themselves to personal liability pursuant to Internal Revenue Code Section 6672 known as the Trust Fund Recovery Penalty (TFRP). Generally, corporate officers, shareholders and others who have the responsibility for withholding and paying over payroll taxes can be held personally responsible for the trust fund portion of the payroll taxes if they willfully fail to pay these amounts to the IRS. Sometimes business owners who are undergoing tough financial times are tempted to take this risk. In my experience the thinking is that if a company doesn’t pay its vendors it will be out of business in short order. On the other hand the IRS tends to be slow about insisting on payment, and it can be months or even years in some situations before the IRS gets serious. Based upon this analysis the business owner decides to take a calculated risk, and hope that business picks up before the IRS shows up.

Jack Easterday found out the hard way that the stakes can be very high indeed. Mr. Easterday was convicted of willful failure to pay over employee payroll taxes in violation of Internal Revenue Code Section 7202. Mr. Easterday’s conviction was upheld by the Ninth Circuit Court of Appeals. United States v. Easterday. The extremely scary part of the decision by the Ninth Circuit was that the Court held that Easterday was guilty even though he may have been able to prove that the company didn’t have sufficient funds to pay the payroll taxes.

If you have payroll tax problems, or any other type of tax problem you can contact the tax lawyers at Brager Tax Law Group.

IRS Taxpayer Advocate Issues Report

January 9, 2009 | by Dennis N. Brager

Nina Olson, the National Taxpayer Advocate, issued her annual report to Congress in which she lists the 20 most serious tax problems as required by Internal Revenue Code (IRC) § 7803(c)(2)(B)(ii)(III). They are:

1. The Complexity of the Tax Code

2. The IRS Needs to More Fully Consider the Impact of Collection Enforcement Actions on Taxpayers Experiencing Economic Difficulties

Madoff Ponzi Schemes, Securities Fraud and the Internal Revenue Service

January 6, 2009 | by Dennis N. Brager

Once investors get over their initial shock that they were being bilked by Bernard Madoff in a massive Ponzi scheme they will be looking for ways lessen the impact. One of those ways is through the tax laws. Our tax attorneys have identified at least two possibilities. The first is that investors may be entitled to a theft loss pursuant to Internal Revenue Code Section 165. Unfortunately the year the loss can be deducted will probably be the subject of a tax dispute. Generally theft losses are deductible in the year of discovery. However, if there is still a possibility of recovery the deduction may need to be deferred.

Another idea is filing amended income tax returns for the last three years, taking the position that the payments received which had been reported as capital gains, dividends or interest were in fact a return of capital, and therefore non-taxable. This position is supported by Greenberg v. Commissioner, a 1996 case decided by the United States Tax Court. The Internal Revenue Service (“IRS”) believes, however, that the rule in Greenberg only applies in limited situations. IRS Legal Memorandum ILM 200305028. It is likely that those who file amended returns will be subjected to a tax audit, and that barring a change of heart by the Internal Revenue Service will need to hire a tax litigation attorney to assist them.

Generally the tax law allows only three years from the date the original tax returns were filed to file amended returns. For most taxpayers this means that if they act quickly they can file amended returns for 2005, 2006, and 2007.

IRS Revises Foreign Bank Account Report (FBAR) Form 90-22.1

December 19, 2008 | by Dennis N. Brager

The Internal Revenue Service (IRS) has revised Form 90-22.1, Report of Foreign Bank and Financial Accounts, also known as an “FBAR.” Although the FBAR was released in October, it is only required to be used for FBAR filed after Dec. 31, 2008. The purpose of an FBAR is to report a financial interest in, signature authority, or other authority over one or more financial accounts in foreign countries. Failure to file an FBAR can result in criminal tax penalties as well as onerous civil tax penalties. The civil tax penalties can be as high as 50% of the highest balance in an unreported foreign bank account. The FBAR is due on June 30th of each year, and is not filed with the tax return. Instead it is filed with the IRS office in Detroit, Michigan. However, individual filers must check the box on Schedule B of Form 1040 indicating that they have a financial interest in, or signatory over an offshore bank account.

The FBAR has been in the news a great deal lately in light of the IRS’ stepped effort to combat offshore tax evasion. This increased focus on ensuring that U.S. citizens report their offshore bank accounts to the IRS can be seen in several recent developments including the signing of a new tax treaty with Lichtenstein, the indictment of UBS banker Bradley Birkenfeld and the IRS pursuit of holders of UBS Swiss bank accounts. According to published accounts Birkenfeld , who has pled guilty to various tax crimes, is naming names of individuals who held “secret” Swiss bank accounts.

Given the increased probability of being charged with tax fraud or tax evasion U.S. citizens would be well advised to consult a tax attorney to determine whether a voluntary disclosure to the IRS would be the best strategy.

IRS Signs Tax Treaty with Lichtenstein

December 12, 2008 | by Dennis N. Brager

On Dec. 8, 2008 Lichtenstein entered into a tax treaty, which will allow the Internal Revenue Service (“IRS”) access to foreign bank account information even though there is no evidence of tax fraud. The treaty, which is known as a Tax Information Exchange Agreement (TIEA), will provide the United States with access to banks and other information needed to enforce U.S. tax laws. The TIEA will apply in both civil and criminal tax cases. The TIEA provides that information will be provided without regard to whether or not the conduct being investigated would constitute tax fraud under Lichtenstein law. Nor is there any requirement that there be a tax fraud investigation under way in the United States.

The type of information available to the IRS is very broad. For example, the TIEA contemplates Lichtenstein to provide the following non-exclusive types of information:

1. Information held by banks and other financial institutions including nominees and trustees acting in an agency or fiduciary capacity;