Posted by Bishop L. Toups | In Taxes & IRS Audits
This is part 4 of 6 of our in-depth guide to winning your audit.
Table of Contents
There are three types of IRS audits: correspondence, office, and field.
The way the IRS goes about auditing you can produce very different results. A few years back, office audits resulted in additional tax and penalties averaging $1,965 per individual return, correspondence audits $3,817, and field audits a whopping $16,248. For those taxpayers who made more than $100,000 per year, field audits resulted in added taxes, penalties, and interest averaging $35,295!
The correspondence audit is by far the IRS’s preferred method of attack. Seventy-five percent of all IRS audits are by mail. Similar to the Automated Adjustment process described above, a correspondence audit comes by first-class mail. The IRS never notifies by telephone or email at the beginning of an audit. The IRS requests that you mail information or documents instead of meeting with you. This method of auditing is used to verify such things as stock market transactions, real estate sales, and itemized deductions. Amended tax returns are often audited by mail. These audits often result from a mismatch of a third-party payment report on a Form 1099 or W-2.
You should almost always cooperate with an audit by mail and be thankful that you weren’t chosen for a field or office audit. Unless the documents requested are lost or nonexistent, promptly send copies. Don’t send originals—you won’t get them back. It’s possible to call the auditor to discuss your case. Or, write and ask the auditor to call you. A name and telephone number should be listed in the IRS notice you received. As a precaution, send document copies by certified mail, return receipt requested. Always keep photocopies of everything you send to the IRS.
If you have a problem with the correspondence auditor—for example, he is not satisfied with your supporting receipts and canceled checks—you can request that your file be transferred to your local IRS office for a face-to-face meeting. Just making this request may cause the IRS to reconsider. And sometimes, mail audits forwarded to local IRS offices are closed with no adjustments—without even contacting you. If you’re given a meeting with an auditor at the local office, consider it a second chance.
The office audit is announced by a form letter sent by first-class mail to your last known address either setting a time or requesting you to call the IRS for an appointment. The letter tells you the year being audited and often specifies documents you are requested to bring with you, such as receipts and canceled checks. It may also list up to four specific areas the IRS wants to examine—such as rental property income, deducted interest expenses, deducted unreimbursed business expenses, and charitable contributions. At the audit, if you are questioned about unlisted items and you don’t want to answer, just say that you are not prepared to discuss those issues. The auditor will probably drop it or give you more time to get prepared and set a second meeting date.
Thankfully, the IRS doesn’t expect auditors to examine every item on a tax return. Remember—only significant items are selected by classifiers, although IRS examination group managers may modify the list.
By law, the IRS normally has three years to audit you after you file a tax return. So, if the year on your notice is more than three years ago, either the IRS made a mistake or the IRS suspects you of fraud or of substantially understating your income. If you believe it’s a mistake, call the number on the notice and ask that the audit be canceled. If you’re told it is no mistake, then head straight for a tax professional’s office.
If you were audited in either of the two previous years and the IRS made a small, $100 or so, adjustment—or issued a no change report—you may be able to get the audit canceled under the no repetitive audit rule discussed above. Explain the prior audit and the outcome to the clerk; if she seems not to know what you are talking about, ask to speak to a manager. This defense has only limited application, however, and probably won’t work if you report any self-employment income.
In general, the words to live by are, “Don’t hurry, be happy,” and “An audit delayed is an audit well played.” The more time an audit drags on, the better the result in most cases. This is because auditors are under pressure to close files, and they want your cooperation to do it. The later it gets, the greater the pressure. The main drawback of prolonging an audit is that interest and penalties are growing—but this may be insignificant next to the damage caused by a large audit bill.
There are two ways to delay an office audit:
After you get over the shock of reading “We have selected your federal income tax return for examination,” call the IRS phone number on the letter. However, the IRS does not award gold stars for calling as soon as you get the notice and waiting a while is usually a good idea.
Even if you don’t want to delay, when you call the IRS for an appointment, ask for the furthest date available so you have sufficient time to get your records in order. A month or two is common. If you need more time, ask to speak to a supervisor. The Taxpayer Bill of Rights requires that you be given a say in the appointment process.
Also, some tax professionals advise getting an appointment on the last day of the week toward the end of the month, in the late morning—just before the auditor’s lunch break—or late afternoon. Friday afternoons are perfect, especially if a three-day weekend is coming up. Auditors do not get paid overtime and look forward to going home as much as you do.
Consequently, the auditor may race through your audit without digging too deep. Much like car dealers, IRS offices track monthly case closings. If you come in near the end of the month and your auditor hasn’t kept pace, he may need to finish your case or else suffer a bad performance review from his manager.
Don’t answer the auditor’s questions on the phone. The auditor might try to speak to you over the phone about the facts of your case prior to your appointment. It’s better to say that you aren’t prepared to talk right now than to give off-the-cuff answers which could come back to haunt you later.
If you can’t go to the IRS offices without great hardship—you are disabled or aren’t capable of transporting large amounts of records—you may request that a tax auditor come to your home or business. This goes against my general advice of keeping the auditor as far away from your stomping grounds as possible.
You might turn an office audit into a mail audit. If there’s a good reason as to why you can’t travel—illness or disability, lack of transportation, or whatever—when you call to schedule your audit, request a correspondence audit.
Many auditors are young, and some are foreign-born with limited English skills. In general, you may have to take extra time to explain some of your deductions or exemptions. If you are a small business person or self-employed, you may have to carefully explain how your particular enterprise functions.
Office auditors start with some easy questions to make sure you are the person under audit (you don’t have to show any identification) and to get some background on you—questions like “Are you married?” or “Where do you live?” Ordinarily, these background questions won’t cause you any problem.
Before meeting an auditor on your own, review IRS Form 4700 Supplement and, if you operate a business, Form 4700 Business Supplement. Both forms are reproduced at the end of this chapter. These internal IRS forms are used as checklists by auditors. They will tip you off to the types of questions you should expect. If any question might be difficult for you to answer, see a tax professional before the audit or consider hiring one to handle the audit for you.
After the background questions, the audit will start in earnest. IRS office auditors don’t waste time in idle chitchat. Every question has a reason, even if it is not obvious to you. The Internal Revenue training manual instructs office auditors to conduct the initial taxpayer interview as follows. (My comments follow in the brackets.)
(1) the initial interview is the most important part of the audit process. The first few minutes should be spent making the taxpayer comfortable and explaining the examination process … [Read that first sentence again; first impressions are vital.]
(3) sufficient information should be developed to reach informed judgments as to:
(a) financial history and standard of living. [See the next section for a lengthy discussion of new IRS lifestyle auditing.]
(b) nature of employment to determine the relationship with other entities. [This means that the auditor may want to look at your partnership or corporation tax returns too, and look for the possibility of any bartering.]
(c) money or property received … determined to be … not taxable … [For instance, did you get loans or inheritances or sell assets during the year?]
(d) potential for moonlighting income. [For example, are you a firefighter who does odd jobs on your days off?]
(4) if warranted … [If after covering the above areas the auditor gets responses or sees things on the return that cause her suspicion, she should go on to find out more about these areas.]
(a) … property owned, including bank accounts, stocks and bonds, real estate, automobiles, etc., in this country and abroad [Asking these kinds of questions used to be optional; it has become common in most audits.]
(b) … purchases, sales, transfers, contributions or exchanges of … assets [Did you buy or sell anything worth in the thousands of dollars?]
(c) the correctness of exemptions and dependents claimed. [If you claimed a large number of dependents, be prepared to explain, especially if any of the dependents are not members of your immediate family.]
(5) remember, the taxpayer is being examined and not just the return. [I can’t overemphasize the importance of this one sentence—it is what an audit is really about.]
Expect the following topics to be covered at an office audit. Not all will apply, but be prepared for the ones that do.
Income. The IRS claims that it loses infinitely more tax dollars from unreported income than from overstated deductions. Once the preliminary questions are over, the auditor will ask point-blank if you reported all your income.
Auditors are taught to probe for side income—moonlighting electricians and homemakers who do child care. They are concerned with the types of income not reported to the IRS by the person who paid you or income from which no taxes were withheld, such as tips or rent from an in-law unit in your home.
Auditors are instructed to probe further into living expenses once omitted income is suspected. For example, the auditor may want to see your insurance policies to see if you have covered expensive items like jewelry, furs, art, and other such assets. Auditors seldom go to this trouble, however.
Exemptions. Were you entitled to claim everyone listed on your return as a dependent? For instance, if you support elderly parents, take documents showing their expenses and sources of limited income. If you are a divorced parent and claim your child as an exemption, have proof of court-ordered child support payments or costs you paid directly for the child’s benefit. Also, get a copy of your ex-spouse’s Form 8332 to show that she or he didn’t claim the exemption. If, however, you both claimed the exemption, produce your divorce papers showing that you are entitled to it.
Theft and casualty losses. Were you legally entitled to claim losses? Produce a list of items lost plus documentation that the loss occurred—copies of police reports and insurance claim forms are good ways to prove losses to the IRS.
Charitable deductions. Can you verify charitable deductions—particularly if the total exceeded $250? For example, if you dropped $40 into the collection plate every Sunday, you will need more evidence than your own statement. Prove it by getting a letter from your church secretary attesting to your regular attendance and copies of automatic teller withdrawal slips made on Sunday mornings.
Employee business expenses. If you are a wage earner, can you verify any unreimbursed employee business expenses claimed on your return—especially for car, travel, entertainment, and home office? At a minimum, you will need a letter from your employer describing its reimbursement policy—that it pays you back for some expenses, but not for other items or beyond certain limits. Keep receipts and a calendar. If you don’t have a business diary, you can create one after the fact, but you should tell the IRS that it is a reconstruction. Note that the IRS is very picky in the employee expense area.
Itemized deductions. Can you verify large itemized deductions on your Schedule A—such as mortgage interest or medical expenses? You should have mortgage lender statements on IRS Form 1098 and medical bills or canceled checks and bank statements.
Previous audits. IRS records of previous audits are spotty. Your prior audit history may or may not be noted in the auditor’s file. Thus, you will be asked if you’ve been audited and how it came out. Unless you came out clean, tell the auditor that you were audited, but don’t recall the details. If she really wants to dig out the prior report, she might do it. Don’t make it easy by showing her a copy—which might point her toward issues to probe in the new audit.
Other years’ tax returns. Auditors usually ask to see copies of your tax returns for the year before and after the audit year. The reason is obvious—to see if any adjustments are appropriate in those years. Don’t bring other returns to the audit, even though they will probably be on the list of items you are told to bring. Simply say you didn’t bring them with you or couldn’t find them, but make a vague offer to look for them. Just stall—an auditor cannot force you to provide past returns.
Don’t worry about making the auditor mad by not supplying other year’s tax returns. She knows that you never have to provide a copy of a tax return to the IRS once it has been filed. The only qualification is if the IRS denies receiving a return and you can’t prove you sent it. Then you can give the IRS a copy to get on the record. But, in the normal audit situation when the IRS requests a copy of your return, it is not because the auditor is denying that you filed it—it’s because she doesn’t have it.
Even in this electronic age, the IRS doesn’t scan copies of paper tax returns in its computers. Old tax returns are buried in warehouses across the country for ten years and are then destroyed. Yours may be in box 147963a-7 in the middle of Kansas. Unless you filed electronically, it will take weeks or months to find it—and there is no guarantee that it hasn’t been misplaced. Usually, if you don’t come up with a copy of your tax return, the auditor just forgets it. And, even if the auditor eventually finds the return, you will have delayed the process.
Auditors frequently ask you for information not related to the year or areas listed on the audit notice. Sadly, most audit victims blindly provide whatever is asked for, often needlessly providing the rope to be hung with.
The IRS cannot require you to furnish data unless it is directly related to the year under audit. If the auditor asks for something you don’t think pertains, make her explain specifically how it relates to the audit year. If you are given written notice that the audit has been expanded to other years, however, then you must submit information for those years.
Sometimes data on other years’ tax returns—such as loss carryovers or depreciation of assets—does relate to the tax year under audit. In this case, show the auditor only the portion of the other year’s tax
return in question (such as a schedule of depreciation) not the whole return. Similarly, avoid letting the auditor photocopy your records unless you are certain there is nothing harmful in them. Tell her that you don’t see why she needs copies and she will probably back down.
If you are asked if you filed all other years’ tax returns and you haven’t, reply that you will check your records and get back, or simply shrug your shoulders. Don’t lie. If you want to avoid this question altogether, hire a tax professional to go to the audit in your place. Unless you have told him otherwise, he should answer that as far as he knows you filed all tax returns when due. Unless the auditor has reason to believe otherwise, she almost always just moves on.
Expect to spend from one to four hours with the office auditor. In most IRS offices, two audits per day are set for taxpayers with a small business and four audits where there is no self-employment income. Auditors must write up their findings between appointments, so they must keep moving and can’t scrutinize every piece of paper. An auditor wants to zip through your audit and get you out the door every bit as much as you want to leave.
It is okay not to resolve all audit issues at one meeting. Auditors often ask for something you didn’t bring. No problem. Just ask for a reasonable amount of time to submit it (15 to 30 days) and mail it in with a letter to jog the auditor’s memory explaining how it helps your audit. To be sure the auditor got what you sent, call four or five days later and ask. If she wants voluminous records or you are concerned that she may not understand what you send, request another face-to-face meeting.
If you don’t want the auditor to see a particular item, you can vaguely promise to send it in but conveniently forget to—the auditor may forget it, too. If he doesn’t forget, you will probably not lose any more than you would have had you cooperated.
Any IRS auditor will tell you she is overworked. Because the IRS doesn’t pay bonuses or overtime, there is little incentive for her to break her back on any case. Her job performance is judged on how many files she closes a month. The Taxpayer Bill of Rights forbids the IRS to evaluate auditors on the dollars produced from their audits. Judging auditors on the number of files closed, however, probably produces much the same result. There is evidence that IRS managers give bonuses, however. Prior to 1998, auditors were evaluated by their yield—the total dollar amount of the tax adjustment on an audit, divided by the number of hours the auditor spent on the examination. For example, in the Northern California District, an auditor had to produce $1,000 in taxes for each hour the auditor devoted to a case. Hopefully, these days are gone.
A heavy caseload can work to your advantage. Auditors don’t have the time to go over every tax return with a fine-tooth comb. Auditors often miss taxpayer errors that could have resulted in large adjustments in the IRS’s favor.
If you get a letter notifying you of an audit and asking to meet at your home or business, you have been picked for a field audit.
If you get a phone call from the IRS. Before getting notice by mail, you might get a call from someone saying she is from the IRS and wants to audit you. Politely tell her you want notification in writing to make sure she is really with the IRS. Refuse to discuss anything with her until you get a notice in the mail. Don’t worry about upsetting her; you are within your rights. Some agents like to catch you off guard, in the hope you’ll say something revealing.
Field audits are the big leagues, whereas correspondence and office audits are the minors. The IRS puts its best auditors here and expects them to pay their keep. In fact, field audit tax bills are, on average, eight times higher than those from office audits.
Local IRS audit managers make the final decision as to who gets field audited. Normally, it is the self-employed, owners of multiple real estate rental properties, or people with exceptionally complex tax returns. Also, corporation, partnership, estate, gift, and trust tax returns are always field, not office, audited.
Revenue agents who conduct field audits must have a college degree in accounting or a minimum of 24 semester hours of college-level accounting courses. At IRS audit training, they are taught techniques similar to detectives—looking for clues to see if your tax reporting matches the home you live in, your business and investments. If you live in a $700,000 home, drive a Range Rover, and report only $20,000 income from your dental practice, she will dig deep.
The initial notice you get will probably be signed by a revenue agent. The letter will either set a date for the audit or ask you to call to arrange it. An attachment will list items the IRS wants you to produce at the meeting. However, the list should not be taken as inclusive— everything is fair game in a field audit. A revenue agent can probe into any area of your tax return as well as your financial or personal life. Remember that you, not just your tax return, are under the IRS microscope.
Carefully consider when and where you want the audit to be held. The Taxpayer Bill of Rights (see The Taxpayer Bill of Rights) gives you the right to have a say in when an audit is to be scheduled. You should be given sufficient time to prepare and convenient date. The IRS doesn’t start before 7:30 a.m. and won’t go beyond 5 p.m., weekdays only. Field audits last a minimum of four hours and may go into dozens of meetings extending over a year’s time.
Agents prefer to come to wherever your records are kept. Ordinarily, this is at your business, if you are self-employed. So if you work at home, the IRS will want to come there. If a representative will handle the audit for you, the agent can go to that person’s office if requested.
Be sure to read “What an IRS Office Auditor Looks For” and “Primary Issues in an Office Audit,” above— that information applies here as well. This section covers other issues likely to come up at a field audit.
Revenue agents’ primary focus is to find unreported income and personal expenses claimed as business deductions. Field audits typically zero in on the following areas of your business and personal lives:
Unreported income. This is the auditor’s number one concern. An agent is particularly suspicious if your business or profession has a lot of cash transactions. This is why so many restaurant, bar, liquor store, laundromat, and grocery store owners are audited. The IRS is always looking for the skimming of cash off the gross receipts of the business.
To ferret out unreported income, the IRS uses indirect methods of detection, unless you furnish direct evidence, such as confessing to the auditor that you didn’t report everything you earned.
There are four common methods the IRS uses to probe for income. All four methods have been challenged in federal court; all four methods have survived the challenge. Each one is explained below, with possible defenses you can raise.
Some business owners take great pains to skim receipts, but then stupidly put that money into their bank accounts. Financial records can easily be obtained by the IRS from your bank or stockbroker if you don’t produce them voluntarily. Revenue agents almost always perform a bank deposit analysis early on in a field audit.
Do your own bank deposit analysis before the audit. Make notes on your bank statements that explain the source of the deposits. There can be any number of explanations when deposits exceed taxable income—loans, redeposits of bad checks, transfers between accounts, inheritances and gifts received, sales of assets, and the like.
Defense. Check the IRS’s math for mistakes. And, again, the funds may have been from nontaxable sources or from cash on hand from income from prior years. Also, if you have several accounts, chances are some of the deposits reflect transfers of money between accounts. Adding up deposits leads to double-counting, a common mistake.
An auditor may ask you to verify your tax basis in an asset used in your business or sold by you. “Basis” is the figure from which the IRS calculates how much depreciation you get or profit or loss you’ve made on the sale of an asset. Essentially, tax basis starts with the amount you paid. To this figure, add the cost of improvements and tax benefits, such as rollover of gains from property exchanges, and subtract costs such as the depreciation taken on equipment or rental property. If you received a gift, the tax basis is figured from the date of the original purchase. For property you inherit, the basis is the property’s value on the date of the death. A detailed explanation of tax basis is in Tax Savvy for Small Business, by Frederick W. Daily (Nolo).
Avoid holding an audit at your home or business, even if you have nothing to hide. Maybe you really earn only $20,000 but appear to live much better. It could be that you inherited a $700,000 house from your aunt, rebuilt your BMW from junkyard parts, and made a few good investments. Assuming you have paperwork to prove all this, you should have no problems with the IRS, right? Well, maybe not. These are the kinds of things that can cause the auditor to dig deeper until she finds something to justify her efforts.
Here are some tips on how to keep the IRS auditor away from your home or business.
Taxpayer Bill of Rights. The Taxpayer Bill of Rights gives small business owners the right to refuse an audit on their business premises if an audit would virtually shut the business down. In this case, request the audit to be held at the IRS office or at your tax professional’s place. If denied, complain to the agent’s manager and then, if necessary, to the Taxpayer Advocate Service.
Tax professionals. If you give a qualified representative a signed Form 2848, Power of Attorney, he can insist that the audit is at his office, not yours. The representative must be the audited tax return’s preparer, or an enrolled agent, CPA or attorney, and he must be in possession of your business records.
If the IRS holds the audit at your place, don’t make it too comfortable. This doesn’t mean that you should stick the agent in an unheated storeroom, but you don’t have to give up your personal office, either.
Even if the audit is held at your tax professional’s or an IRS office, however, an agent has the right to observe your business premises. She may want to verify tax return items by spot-checking your inventory or seeing that you use equipment you tax deducted. Remember—auditors are trained to be nosy and routinely want to eyeball business operations.
Before the IRS shows up, remove any items that might cause suspicion, like the picture of your Chris-Craft, Lear jet, or alpine ski cabin. If the agent wants to tour your business, try to schedule it at a time when employees or customers aren’t present. This keeps the agent from talking to your employees and tipping them off that you’re being audited. An employee’s innocent remark could do a lot of harm, and a vengeful one could stab you in the back. Don’t let the agent wander around on her own—stay by her side.
If the agent asks to see any records during an observation, tell her that they are not readily available, are at home, or are at your tax professional’s office. She won’t start opening your file cabinets to verify the truthfulness of your assertions.
An auditor does not have the right to enter your home to see your home office or for any other reason. If you don’t let her inside, however, she may legitimately retaliate by disallowing a home office deduction.
The tax code gives the auditor wide latitude and authority to pry into your financial affairs. The basic tools in the auditor’s kit are the interview, summons, IRS and other government files and contacts with third parties, like your bank, who have knowledge of your finances.
Information Document Request. Along with your audit notice may come a separate form called an Information Document Request or IDR. An auditor commonly issues multiple IDRs if the audit, usually a field audit, continues beyond one meeting. An IDR is a written solicitation of records or other papers either in your possession or accessible to you. Typically, bank statements and canceled checks are listed on an IDR. The IRS knows the truth of the words of a former U.S. Supreme Court justice that “a person can be defined by the checks he writes.” Ordinarily, you will be given until a follow-up audit appointment or a few weeks to mail these things to the auditor. A sample IDR follows.
Just because the IRS issues an IDR doesn’t mean that you have to produce the items requested. You may decline unless the items are really relevant to your audit. For instance, the IRS commonly uses IDRs to request copies of other years’ tax returns—which normally you don’t have to supply. If in doubt, don’t furnish the item on the IDR and see if the auditor pursues it. If she does, ask her to justify how it relates to the year selected for audit. If you believe she is crossing the line, just say no. An IDR is merely an informal administrative request—it does not carry any legal force. If what is being requested may seriously hurt or even incriminate you, see a tax attorney before responding.
Summons. If the IRS doesn’t get information from you voluntarily—through an IDR—it may issue a summons. (Internal Revenue Code §§ 7602(a) and 7604(b).) A summons is a legally enforceable order and is not to be taken lightly. It orders you to appear before the auditor to answer questions and to bring certain documents. You can raise legal objections to a summons, including:
In the rather unlikely event you get a summons, contact a tax lawyer. If you don’t comply, the IRS may bring you before a federal court judge in a summons enforcement proceeding. The judge can order you to produce the documents listed in the summons or face a heavy fine or even a jail sentence. It should give you comfort to know that the IRS rarely goes to this trouble, preferring to compromise or back down.
When you don’t give the auditor information that she has requested, she has three choices:
Third-party summons. An auditor can issue a summons to get information from banks, employers, business associates, and anyone else. Auditors routinely summons records from others when you don’t cooperate, or when the auditor wants verification of the information you have given. You must be notified in writing when a third-party summons is issued and you have a right to object. Practically speaking, however, you can’t stop a third-party summons.
Never tell another person not to comply with an IRS summons of your records. That is illegal and could get you both into serious trouble.
IRS files. Your previous tax returns, audit reports, and tax account history can be accessed by auditors. The auditor might first ask you for this information. As discussed above, you don’t have to give everything requested to an auditor. Because a lot of IRS information on you is not accessible by computer, it isn’t all that easy for an auditor to get older IRS records. Recovering items from IRS record storage facilities could take months. As a rule, auditors don’t go to this trouble unless they mistrust you or feel that a large adjustment—tax bill against you—will result.
Other government and public records. Auditors have direct computer access to the Treasury Enforcement Communication Systems, or TECS, computer, which has all kinds of data on you. TECS is not public, so you can’t be sure what is in the files. The auditor can also access your Social Security Administration, passport office, and postal service records. Auditors can view local and state public records showing ownership of vehicles, boats, airplanes, real estate, and business entities you might be involved in. Private databases such as LexisNexis and credit reporting agency files contain a wealth of personal data about all of us and are accessible to auditors. As a rule, office auditors don’t make these types of searches, but field agents, who conduct audits at homes or businesses, often do.
Third-party contacts. Auditors can send letters or call or visit businesses and people who have dealt with you, such as the secretary of a church where you claimed a charitable contribution. First, they must give you Notice 1219A, Notice of Potential Third Party Contact. You can legally object to these contacts, at least in theory. If the auditor reveals personal or financial information about you to the third party, you can file a complaint with the IRS that your right to privacy has been violated by an unauthorized disclosure.
Continue to part 5
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