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Author Name Susan A. Berson
1410 Pages  
Published date 2019
ISBN no. 978-1-58852-101-9
eBook ISBN no. 978-1-58852-284-9
Condition New
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CHAPTER 1: Assessment, Collection, Settlement and Litigation: An Overview of the Players and the Process
§ 1.01 Introduction
[1] Application of Law
[a] Breakdown of the Internal Revenue Code
[b] Legislative Process
[c] Regulations: Legislative or Substantive, Interpretative, and Procedural
[i] Proposed Regulations
[ii] Temporary Regulations
[iii] Final Regulations
[2] Revenue Rulings, Private Letter Rulings and Revenue Procedures
[a] Definitions
[b] Judicial Deference
[3] Code of Federal Regulations
[4] Internal Revenue Bulletin and Cumulative Bulletin
[5] General Counsel Memorandum
[6] Technical Advice Memorandum
[7] Generic Legal Advice [“GLAs”]
[8] Action of Decision
[9] Chief Counsel Notices
[10] Compliance Officer Memoranda
[11] District Counsel Advice
[12] Field Directives
[13] Field Service Advice (“FSA”)
[14] Information Letters
[15] Legal Memoranda
[16] Litigation Guideline Memoranda (“LGM”)
[17] Office Memoranda
[18] Reviewed Briefs
[19] Service Center Advice
[20] Closing Agreement
[21] Advance Pricing and Mutual Agreements Program
[22] Internal Revenue Service Publications
[23] Case Law
[a] Tax Court
[i] The Effect of Ballard
[ii] Rule 183
[b] U.S. District Court and U.S. Court of Federal Claims
[c] Electronic Filing
[24] General Rules Concerning Deference
[a] Administrative Procedure Act
[b] Mayo Standard
[c] History of Deference
[d] No Deference
[25] Circular 230
[a] Circular 230 Regulations
[i] Individuals Authorized to Practice
[ii] Contingent Fees
[iii] Conflicting Interests
[iv] Sanctions
[v] Duty of Oversight
[vi] Disciplinary Proceedings Are Subject to the Administrative Procedure Act
[b] Category of Reportable Transaction for Patented Transactions
[c] Transitional Penalty Relief Provided to Tax Return Preparers
[d] Form 2848, Power of Attorney
[26] Privileged Communication and Work Product Doctrine
[a] Attorney-Client Privilege
[i] Legal Advice versus Business Advice
[ii] Tax Return Preparation
[iii] The Kovel Doctrine
[iv] Implied Waiver of the Privilege
[v] Crime Fraud Exception
[b] Work Product Doctrine
[c] Tax Practitioner and Client Privilege
[d] Accountant or Audit Workpapers
[i] Tax Reconciliation Workpapers
[ii] Rule 301, AICPA
[iii] Tax Accrual Workpapers
[iv] Uncertainties After Textron
[v] Practice Suggestions After Textron
[e] In Camera Inspection
[27] Adjustments without Audit
§ 1.02 Taxpayer Advocates, Problems Resolution, Taxpayer Services, and Identity Theft Unit
[1] Problems Resolution
[2] Taxpayer Services
[3] Taxpayer Advocate and Form 911
[4] Identity Theft Unit
§ 1.03 Taxpayer Selection and Processing a Tax Return
[1] Filing a Return with the Proper Campus
[a] Campuses, Formerly Known as Service Centers
[b] Where to File a Return
[c] Electronic Filing
[2] Discriminant Function System
[3] Unreported Income
[4] How to Obtain Copies of Documents Taxpayers Have Filed with the IRS
[a] Tax Returns
[b] Types of Transcripts
[i] Account Transcript
[ii] Master File Transcripts, “Tax Mod”
[iii] W2/1099 Transcript
[iv] Backup Withholding
[c] Immediate Transcripts
[i] Online Transcript Delivery System (TDS)
[ii] Practitioner Priority Service Hotline
[d] Home Affordable Mortgage Program Transcript Needs
[e] Receipt of Form W-2
[f] How IRS Credits Payments
[g] Cash Payment Option
§ 1.03A The Modernized Structure of the IRS Follows a Taxpayer Classification System
[1] The Creation of Four Operating Divisions
[2] The Responsibilities and Structure of the Large Business and International Division (LB&I)
[a] The Organizational Structure of LB&I
[i] Industry Director
[ii] Directors of Field Operations
[iii] Territory Managers
[iv] Team Managers
[v] Revenue Agents, Auditors, Revenue Officers
[b] Industry Issue Focus (IIF)
[c] Global High Wealth Industry Group
[d] Comprehensive Case Resolution Program (CCR)
[i] Eligibility Requirements for CCR Participation
[ii] Taxpayer Risks Associated with CCR
[e] Industry Issue Resolution Program (IIR)
[f] Prefiling Agreement Program (PFA)
[i] Eligibility Requirements to Participate in PFA Program
[ii] Content of the L&IB PFA Request

[A] Taxpayer Name and Contact Persons

[B] Annual Accounting Period

[C] Locating Taxpayer’s Staff and Records

[D] Taxpayer’s Business Operations and NAICS Classification

[E] Taxable Period and Filing Date for Return

[F] Issue

[G] Summary of Facts Relevant to the Event or Transaction

[H] Discussion of the Eligibility, Legal Authority, Including Potential Adverse Legal Opinions

[I] Competent Authority Activity

[J] Prior Ruling Activity

[K] PFA Issue Resolution Date

[L] Evidence Substantiating the Taxpayer’s Proposed Position on the PFA Issue

[M] Declaration Regarding Perjury Found in Section 4.03

[N] Declaration Regarding Section 4.04

[iii] Filing the PFA
[iv] How the PFA Process Works
[v] Taxpayer Risks Associated with PFA
[g] Compliance Assurance Process (CAP)
[h] Mutual Accelerated Appeals Process (MAAP)
[i] Eligibility Requirements to Participate in MAAP
[ii] The MAAP Process
[iii] Risks Associated with MAAP
[i] Uncertain Tax Positions, “Schedule UTP”
[3] Responsibilities and Structure of the Small Business/Self-Employed Operating Division (SB/SE)
[a] Taxpayer Education and Communication (TEC)
[b] Customer Account Services (CAS)
[c] Compliance
[d] Structure
[e] Comparison of Small Business/Self-Employed (SB/SE) Taxpayers to Large Business and International Taxpayers (LB&I)
[f] Contact Information for SB/SE Personnel
[4] The Responsibilities and Structure of the Wage and Investment Operating Division (W&I)
[a] Communications, Assistance, Research, and Education (CARE)
[i] Media and Publications
[ii] Stakeholder Partnership Education and Communications (SPEC)
[iii] Field Assistance
[b] Customer Account Services (CAS)
[c] Compliance
[d] Contact Information for W&I Personnel
[5] The Responsibilities and Structure of the Tax Exempt and Government Entities Division (TE/GE)
[a] Employee Plans (EP)
[b] Exempt Organizations (EO)
[c] Government Entities (GE)
[d] Contact Information for TE/GE Personnel
[6] Office of Chief Counsel Under the New Structure
§ 1.04 Assessment and Audit Examination Level
[1] Campus Conducts Correspondence Audits
[2] Unreported Income
[a] Automated Information Statements Reconciliation
[b] Balance Sheet Financial Analysis
[c] Bank Deposit Analysis
[d] e-Commerce Analysis
[e] Industry or Market Specific Ratio Analysis
[3] Random Audits via National Research Program
[4] Examination Division in Each of the Four Divisions Conducts Office and Field Audits
[a] General Nature of Agents and Auditors
[b] Practical Considerations Concerning Internal Revenue Service Employee Operations
[5] What to Expect During an Examination
[a] Substantiation and Recordkeeping Requirements
[b] Information Document Requests (“IDR”)
[c] Electronic Records
[6] Top Five Things to Keep in Mind During an Audit
[a] Waiver
[b] Kovel Doctrine
[c] Attorney Invoices
[d] Tax Opinions
[e] Accountant Work Papers
[7] Industry Specialization Program
[8] Market Segment Specialization Program
[9] Internal Revenue Service Information Gathering Resources
[10] Meeting with Agents/Auditors
[a] Agent/Auditor Disposition
[b] Recording Interviews
[c] Non-Lawyer Privilege
[11] “No Change” Letters Versus Adjustments
[12] Statute of Limitations
[a] Financial Disability
[b] Collection
[c] Interest and Penalties
[d] Suspension of Interest on Underpayments
[13] Extending the Statute of Limitations for Tax Assessment
[a] Form 872-A, Special Consent to Extend Time to Assess
[b] Situations Triggering Six-Year Statute of Limitations
[14] Revenue Agent Report
[a] Adjustments
[b] Conference with Team Manager
[c] Disputing an Adjustment
[i] Thirty-Day Letter
[ii] Formal Protest to District Director
[d] Notice of Deficiency/Ninety-Day Letter
[e] Rescission of Notice of Deficiency
§ 1.05 Collection Division
[1] Special Procedures Staff
[2] Revenue Officers
[3] Private Debt Collectors
§ 1.06 Early Referral Program: Examination/Collection to the Appeals Division
[1] Mechanics of the Early Referral Program
[a] Written Request
[b] Instances Where Early Referral Request Will Be Rejected
[2] Procedures After Internal Revenue Service Approval of Early Referral Request
[3] Offer in Compromise, Form 656
[a] Down Payment
[b] Partial Payments with Submission of Offers-in-Compromise
[c] Lump-Sum Offer
[d] Periodic Payment Offer
[e] Compliance a Prerequisite
[f] Requirements for Submission of Offer-in-Compromise
[g] Doubt as to Collection Potential of Tax Liability
[i] Verification of Form 433-A/433-B
[ii] Calculating Value
[iii] Calculating Future Income and Basic Living Expenses
[iv] Dissipation of Assets Rule
[h] Doubt About Existence of Liability and/or Correct Amount of Tax Liability
[i] Promotion of Effective Tax Administration
[j] Fresh Start Initiatives
[4] Review of Form 656 and Form 443-A/Form 443-B
[a] Missing or Additional Information
[b] Evaluation of an Offer
[5] IRS View Regarding Negotiation of an Acceptable Offer
[6] Combination Offers
[7] “Currently Uncollectible” Status
[8] Streamlining the Processing of an Offer
[a] Analysis of Information
[b] Amendments to Offer
[c] Procedures for Acceptance/Rejection of the Offer
[9] IRS Reopening Case Post-Acceptance
[a] Not in the Best Interest of the Government
[10] Appealing a Denied OIC
[11] Criminal Tax Convictions
§ 1.07 Appeals Division
[1] Structure of the Appeals Division Under the Reorganized IRS
[2] Authority of Appeals Division
[3] Submitting a Written Protest to the Appeals Division
[4] Handling the Appeals Conference
[a] Presenting Evidence
[b] Participants
[c] Appeals Officer Preparation Prior to Conference
[i] Communication Between Agent and Appeals Officer
[ii] Documentation of Appeals and Agent Communication
[iii] Appeals Judicial Approach and Culture (“AJAC”) Project
[d] Recording the Conference with the Appeals Officer
[e] Virtual Appeals Pilot Program
[5] Settlement Positions in Negotiating with the Appeals Division
[a] Matters Where Settlement Is Not Possible
[b] Arguments and Concessions for Successful Negotiation
[i] Mutual Concession Settlement
[ii] Split Issue Settlement
[iii] Nuisance Value
[iv] Fast Track Settlement
[6] Evaluation of Settlement Prospects by Appeals
[a] Issue Orientation
[b] The Golsen Rule
[c] Hazards of Litigation
[7] Tactics to Follow Upon Tentative Agreement
[8] Alternative Dispute Resolution
[a] Mediation and the Appeals Division
[i] Cases Where Mediation Should Be Considered
[ii] Initiating Mediation
[iii] Authority of Mediator
[b] Fast Track Mediation and the Appeals Division
[i] Case Where Fast-Track Mediation Should Be Considered
[ii] Initiating Fast-Track Mediation
[iii] Authority of the Fast Track Mediator
[c] Arbitration and the Appeals Division
[i] Case Where Arbitration Should Be Considered
[ii] Initiating Arbitration
[iii] Authority of the Arbitrator
[d] Appeals Mediation Program
[9] Collection Due Process Hearings
[a] Administrative Procedures and Requirements
[b] Hearing Procedures
[i] Taxpayer Challenges
[ii] Notice of Determination
[iii] Seeking Judicial Review of a CDP Notice of Determination
[c] Consequences of Frivolous CDP Hearing Requests
[10] CDP Hearing Appeals to Tax Court
[a] Jurisdictional Requirements
[b] Abuse of Discretion Standard: Procedural and Substantive IRS Errors
[c] Request for Reconsideration of Assessment(s)
[11] Installment Agreements
[a] Form 9465-FS, Installment Agreement Request
[b] Full Payment within 120 Days
[c] Guaranteed Installment Agreement
[d] Processing Time and Agreement Terms
[e] Installment Agreements and Small Businesses
[f] Modifying or Terminating an Installment Agreement
[g] The Job Creation and Worker Assistance Act Amendment Suspends Collection
[h] Effect of Bankruptcy
[i] Abuse of Discretion
[12] Streamlined Online Payment Agreement Application
[a] Process
[b] Fees
[c] Changes to Tax Lien Thresholds
[i] Direct Debit Installment Agreements and Liens
[ii] Fresh Start Initiative Adjustments to IRS Lien Polices
§ 1.08 Economic Substance Doctrine
[1] Judicial History
[2] 2010 Codification and Penalties
[3] Notice 2014
§ 1.08A Sham Transaction Doctrine
§ 1.08B Substance Over Form Doctrine
§ 1.09 Other Sources
[1] Problem Resolution Contacts
§ 1.10 Forms
[1] Form 872: Consent to Extend Time to Assess Tax
[2] Form 872A: Special Consent to Extend Time to Asses Tax
§ 1.11 “Fast” Act
CHAPTER 1A: Litigation
§ 1A.01 Introduction
§ 1A.02 Burden of Proof
§ 1A.03 Prohibited Positions for the Government
§ 1A.04 Federal Rules of Evidence
[1] Scope
[2] Purpose and Construction
[3] Rulings on Evidence
[a] Stipulation
[b] Offer of Proof
[4] Preliminary Questions
[5] Limited Admissibility
[6] Remainder of Related Writings or Recorded Statements
[7] Judicial Notice
[8] Presumptions in General in Civil Actions and Proceedings
[a] Burden of Production and Burden of Persuasion
[b] Effect of Burden of Proof
[9] Applicability of State Law in Civil Actions and Proceedings
[10] Relevant Evidence
[11] Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
[12] Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
[13] Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
[14] Habit; Routine Practice
[15] Compromise and Offers to Compromise
[16] Inadmissibility of Pleas, Plea Discussions, and Related Statements
[17] Privileges
[a] Mechanics
[b] Spoliation
[c] Informer Privilege
[d] Marital Privilege
[e] Fifth Amendment
[f] Attorney-Client Privilege
[i] Corporations
[ii] Others Employed by the Attorney
[g] Waivers of the Attorney-Client Privilege
[h] Non-Lawyer Privilege
[i] Work Product Privilege
[j] Governmental Deliberative Process Privilege
[18] Rule 502: Inadvertent Disclosure
[19] Rule 602: Lack of Personal Knowledge
[20] Rule 603: Oath or Affirmation
[21] Rule 607: Individuals Who May Impeach
[22] Rule 608: Evidence of Character and Conduct of Witness
[23] Rule 609: Impeachment by Evidence of Conviction of Crime
[24] Rule 610: Religious Beliefs or Opinions
[25] Rule 612: Writing Used to Refresh Memory
[26] Rule 615: Exclusion of Witnesses
[27] Rule 701: Opinion Testimony by Lay Witnesses
[a] Rule 702: Testimony by Experts
[b] Rule 703: Bases of Opinion Testimony by Experts
[c] Rule 704: Opinion on Ultimate Issue
[d] Rule 705: Disclosure of Facts or Data Underlying Expert Opinion
[e] Rule 706: Court Appointed Experts
[f] Expert Report Requirements
§ 1A.05 Hearsay
[1] Exceptions to the Hearsay Rule
[a] Prior Statement by Witness
[b] Admissions by a Party Opponent
[c] Co-conspirator Statements
[2] Rule 802: Hearsay Rule
[3] Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial
[a] State of Mind
[b] Recorded Recollection
[c] Business Record Exception
[d] Absence of Record
[e] Public Reports
[f] Absence of Public Record or Entry
[g] Statements in Documents Affecting an Interest in Property
[h] Reputation as to Character
[i] Judgment of Previous Conviction
[4] Rule 804: Hearsay Exceptions, Declarant Unavailable
[5] Rule 804(3)(b): Statement Against Interest
[6] Rule 805: Hearsay Within Hearsay
[7] Rule 806: Attacking and Supporting Credibility of Defendant
[8] Rule 807: Residual Exception
§ 1A.06 Authentication
[1] Rule 901: Requirement of Authentication or Identification
[2] Rule 902: Self-Authentication
[a] Affidavit or Declaration
[b] Electronically Stored Information
[3] Originals Versus Duplicates
[4] Rule 1001: Definitions, Writings, Recording and Photographs
[5] Rule 1002: Requirement of Original
[6] Rule 1003: Admissibility of Duplicates
[7] Rule 1004: Admissibility of Other Evidence of Contents
[8] Rule 1006: Summaries
[9] Rule 1007: Testimony or Written Admission of Party
[10] Rule 1101: Applicability of Rules
§ 1A.07 Refund Versus Protest Routes
[1] Subjective Application of Variance Doctrine
[2] Tax Court Gives the IRS Ability to Raise Additional Items of Deficiency
§ 1A.08 Benefits and Burdens of Tax Court Versus Federal District Court
§ 1A.09 Federal District Court and Claims Court
§ 1A.10 United States Department of Justice Involvement
[1] Settlement Possibilities
[2] Delegation of Settlement Authority
[3] Classification of Settlement Option Procedure or Standard
[4] Amount at Issue Is Factor in Determining Level of Review
[5] Path of an Offer at the Tax Division
[a] Authority of Trial Section and Appellate Section Chief
[b] Authority of Solicitor General
[c] Authority of Assistant Attorney General
[d] Authority of Deputy Attorney General
[e] Involvement of the Joint Committee on Taxation
[f] Authority of Office of Review
[6] Submitting an Offer
[7] Preservation of Evidence
[a] Sanctions For Loss of Electronically Stored Information in Nonparty’s Possession
[b] Sanctions for Client’s Spoliation
[c] Form of Production
[d] Requests to, and Motions to Compel, Inspection of Opponent’s Computer/Hard Drive
[e] Evidence Supporting Sanctions for Failure to Conduct Reasonable Inquiry and Intentionally Withholding Documents
[f] Expert Testimony
[g] Cautionary Examples
§ 1A.11 Rule 30 (b)(6) Deposition
[1] Background
[2] Obligations
[a] Party Issuing Rule 30(b)(6) Notice
[b] Entity Responding to the Notice
[3] Designation of Witness(es)
[4] Witness Preparation Required
[5] e-Discovery
[6] The Deposition
[7] Privileged Communications
[8] Potential Problems
[a] Location
[b] The Unprepared Witness
[c] The Kitchen Sink Deposition
[d] Manipulating Time Restrictions
[e] Uncooperative Parties
§ 1A.12 Sample Notice of Deposition
§ 1A.13 Checklist, Rule 30(b)(6) Deposition Outline
§ 1A.14 Sample Memorandum Regarding Preservation
CHAPTER 2: The Trust Fund Recovery Penalty
§ 2.01 Introduction
§ 2.02 Statutory Background
[1] Form 941 and Federal Tax Deposit
[2] Trust Fund
[3] Personal Liability
[4] Standard for Imposing Liability Under Section 6672
[5] Limited Liability Company Members
[6] Non-Tax Business Purpose to Planning
[7] Immigration issues in Employment Tax
[a] Form I-9 “Employment Eligibility Verification”
[b] Penalties
[c] Reckless Indifference
§ 2.03 Collection Division
[1] IRS Monitoring of Delinquent Businesses
[2] Investigation of Delinquent Trust Fund Taxes and/or Non-Compliance
[3] Procedures for Investigating Potential Section 6672 Penalty Assessment
[4] Preliminarily Establishing Who Are Responsible Persons
[5] When Third Parties Direct Payments to a Company’s Employees: Surety, Lender, Contractor
[6] Trust Fund Recovery Interviews
[7] Evidence that may Support a Recommendation to Assess Section 6672 Penalty
§ 2.04 Defenses to the Section 6672 Penalty
[1] Transferring the Blame
[2] Lack of Authority
[3] Liability no Longer Exists
[4] Contributory Liability
[5] The Amount of the Assessment is Incorrect
§ 2.05 Success of Collecting a Section 6672 Penalty
§ 2.06 Revenue Officer’s Recommendation of Trust Fund Recovery Penalty Assessment
[1] Practitioner’s Preliminary Analysis of the Recommendation
[2] Procedure Following Recommendation
[3] Form 656, Offer in Compromise
[4] Appeals Post-Mediation for Offer in Compromise and Trust Fund Recovery Penalty
§ 2.07 Delaying an Investigation of Section 6672 Penalty
§ 2.08 Installment Agreements
[1] Considerations for Installment Agreement with a Non-Business Taxpayer
[2] Considerations for an In Business Trust Fund Installment Agreement
[3] Taxpayer Compliance with the Installment Agreement
§ 2.09 Collateral Agreement
[1] Purpose of Collateral Agreement
[2] Guidelines for Securing Collateral Agreements
§ 2.10 Form 911, Application for a Taxpayer Assistance Order
§ 2.11 Appeals Consideration
§ 2.12 Procedures for Examination Division
§ 2.13 Application of Payments and Collection of the Penalty
[1] Designated Payments
[2] Installment Agreements
[3] Accounting for Payments, Abatements, and Adjustments
[a] Payments
[b] Involuntary or Undesignated Payments Involving Trust Fund Taxes
[c] Abatements and Adjustments
§ 2.14 Claim for Abatement
[1] Procedures for Form 843 Claim for Abatement
[2] Grounds for Abatement
§ 2.15 Claim for Refund
[1] The Procedures for Filing a Claim for Refund
[2] Protective Claim for Refund
[3] Collection Activities Should Be Halted
[4] Discussing Settlement with the Tax Division Attorney
§ 2.16 Litigating the Trust Fund Recovery Penalty
[1] Burden of Proof
[2] Mediation Jurisdictions
[3] Factual Inquires Made by the Court in Determining Whether Liability Exists
[4] Defining a Responsible Person
[a] Scenarios of Persons Who Have Been Found Responsible by the Courts
[b] Delegation of Responsibility Is Not a Defense
[c] Bankruptcy Does Not Relieve Liability
[d] Significant Control Determines the Authority to Pay Taxes
[i] Significant Control
[ii] Embezzled Funds
[5] Defining Willfulness Under Section 6672
[a] What Constitutes Knowledge
[b] The Judicially Created Reasonable Cause Exception in Tenth Circuit
[c] Reckless Conduct May Equal Willfulness Under Section 6672
[d] Developments in Court of Federal Claims
[6] Liability for Delinquent Taxes
[7] Conducting Discovery
[8] Electronic Discovery Plan
[a] Document Retention Policy
[i] Taxpayer’s Preservation of Records
[ii] Consequences of Failing to Preserve Records
[b] Departing Employees’ Records
[c] Expenses of Electronic Discovery
[i] General Rule Regarding Expenses
[ii] Cost-Shifting of Expenses
[d] Some Courts Have Adopted Rules Regarding Electronic Discovery
[e] Sanctions for Breaches of Discovery Obligations
[i] Timely Production
[ii] Inadvertent Production and Waiver
[iii] Imposition of Civil and Criminal Sanctions
[9] Confusing Calculations Before a Jury
[10] Injunctive Relief
§ 2.17 Advice a Practitioner May Give a Client to Minimize the Section 6672 Penalty
§ 2.17A Criminal Prosecution
§ 2.17B Reasonable Compensation
§ 2.18 Forms
[1] Collateral Agreement
[2] Form 433-D: Installment Agreement
[3] Form 911: Application for Taxpayer Assistance Order (ATAO)
[4] Form 4181: Questionnaire Relating to Federal Trust Fund Tax Matters ofEmployees
[5] Form 2674: Report of Trust Fund Tax Violations
[6] Form 4183: Recommendation re: Trust Fund Recovery Penalty Assessment
CHAPTER 3: Independent Contractor Versus Employee
§ 3.01 Introduction to Independent Contractor Misclassification
[1] IRS Motivational Factors
[a] The “Tax Gap”
[b] Information from Random Audits
[2] Substance of the Relationship is Key
[3] Consequences of Misclassifying a Worker
[4] IRS Discovery of a Misclassification
[a] Ongoing Audit in the Examination Division
[b] Competitors and Former Workers as InformationSources
[c] Surprise Visits from the Collection Division
[d] Filing Form SS-8
§ 3.02 How to determine a Worker’s Status
[1] Service Industries are Often Targets for Worker Classification Scrutiny
[2] Attorneys and CPAs
[3] Twenty Factor Test
[a] Behavioral Control
[b] Financial Control
[c] Relationship of the Parties
[4] Judicial Scrutiny
§ 3.03 Establishing Relief Under the Safe Harbor of Section 530
[1] Legislative History of Section 530
[2] Safe Harbor’s Filing Requirement
[3] Workers in Substantially Similar Positions
[4] Published Rulings or Judicial Precedent
[5] Prior IRS Examination of the Business
[6] Industry Practice
[a] Defining “Significant”
[b] Defining “Long-Standing”
[c] Landlord-Tenant Analogy
[7] Other Reasonable Basis
§ 3.04 Effect of Section 530 on Employees
§ 3.05 Preliminary Procedures During an Audit Examination of the Worker Classification Issue
[1] Scheduling a Meeting with the Agent
[2] Settlement Negotiations with the Agent
[3] Negotiations with the Appeals Division
§ 3.06 Audit Examination Techniques
[1] Four Steps to Agent’s Analysis
[a] Categories of Employees
[i] Common Law Standard
[ii] Corporate Officer
[iii] Statutory Employees
[b] Analysis of Information
[c] Inquiries to Prepare for in Audit
[2] Classification Settlement Program
[a] Qualifications for CSP Eligibility
[b] Computing CSP Standard Offer
[c] Prospective Worker Classification
[d] Exceptions to the Filing Requirements: Form 940/941 Non-filers
[e] Negotiating a CSP Settlement Offer
[i] Ensuring Future Compliance is a Consideration
[ii] Other Factors Affecting Agent’s Ability to Extend CSP Offer
[f] More than One Offer
[g] CSP Standard Closing Agreement
[h] CSP Offer Rejected or not Applicable
§ 3.07 Audit Techniques Used to Determine if a Worker is an Employee or Independent Contractor
[1] Does the Business Qualify for Safe Harbor?
[2] Fact-Finding Investigation
[3] Adapting the Twenty Factor Test to the Case
§ 3.08 Choosing a Forum for Litigation
[1] Preliminary Considerations of Litigation
[2] United States Tax Court
[a] Field Counsel and Appeals Division Authority over Cases
[b] Pleadings
[3] Expert Testimony
[4] Factual Development is Most Important to Defeating the Government’s Case
[a] Taxicab Industry Example
[b] Summary Judgment Possibilities
[c] Examination Before the Court Action
§ 3.09 Planning to Survive Independent Contractor Scrutiny by the IRS
[1] Written Agreement
[2] Competitor/Industry Information
[3] Form 4667, Examination Changes-Federal Unemployment Tax
[4] Record Keeping
[5] Document Practice Points
§ 3.10 Source Material
[1] Petition to the United States Tax Court
[2] Sample Form 4667
CHAPTER 4: Jeopardy and Termination Assessments
§ 4.01 Introduction to Jeopardy and Termination Assessments
[1] Judicial Review
[2] Taxes Subject to Jeopardy and Termination Assessments
§ 4.02 IRS Investigation Prior to Making Assessment
[1] Areas of Inquiry
[2] Methods for Verification of Income
[3] Review of Books and Records
[4] Accounting Method
[5] Mark-Up
[6] Initial Interview Is Crucial to Setting the Focus of the Audit
[7] Checklists of Issues for Which to Prepare the Client
[8] Agent’s Analysis
§ 4.03 Procedures for Making a Jeopardy or Termination Assessment
[1] Approval Authority
[2] Recommendation for Jeopardy Assessment
[3] Informing the Taxpayer of Assessment and Levying Assets
[a] Jeopardy and Termination Assessment Notices
[b] Jeopardy Levy Notice
[c] Collection Action
[4] Service of the Notice
§ 4.04 Appeal Process
[1] Exhaust Administrative Remedy Requirement
[2] Appeals Division
[3] Arguments in Support of Abatement
§ 4.05 Posting Bond to Stay Collection
§ 4.06 Summary Judicial Review of Assessment
[1] Arranging Payment Pending Judicial Review
[2] Time Period Governing Judicial Review
[3] Standard for Judicial Review Under Code Section 7429 is the “Reasonableness” of the Assessment
[a] Defining Reasonableness
[b] Admissible Evidence For Purposes of Summary Review Under Code Section 7429
[c] Example Illustrating Jeopardy Assessment Prerequisites
[d] Suggestions for Refuting Anticipated Government Arguments
[4] Second Inquiry of Code Section 7429 Summary Review is the Amount of the Assessment
[a] Taxpayer has the Burden of Establishing that the Amount is Inappropriate
[b] Method Used by the IRS in Computing Assessment Amount
[5] District Court’s Determination is Final and Not Open to Appeal
§ 4.07 Complaint for Review of Jeopardy Assessment
CHAPTER 5: Refunds, Credits, and Abatements
§ 5.01 Introduction
§ 5.02 Procedural Requirements of Seeking a Refund or Credit
[1] Establishing the Existence of an Overpayment
[a] Re-Audit to Verify Overpayment
[b] Quick Refund or Credit Based on TentativeCarryback Adjustment
[2] Claim for Refund or Credit of Overpayment
[a] Formal Claim for Refund or Credit
[b] Informal Claim for Refund or Credit
[c] Protective Claims
[i] Refund or Credit
[ii] Capital Loss Carryovers
[d] Content of Claim for Refund or Credit (Formal, Informal or Protective)
[i] Setting Forth the Grounds Supporting the Claim for Refund or Credit
[ii] Computations
[e] Amendments to Claim for Refund or Credit
[3] Time Period Limitation on Filing Administrative Claim
[a] Bad Debts and Worthless Securities
[b] Loss Carrybacks
[4] Determining when a Return is Considered Filed
[a] Agreement to Extend Limitations Period
[b] Suspension of Limitations for Filing Claim
[5] Limitations on Amount Allowed for the Refund or Credit
[6] Determining when Payment of Taxes Occurred
[7] IRS Processing of Claim for Refund or Credit
[a] Campus Processing
[b] Division Review
[8] Jurisdictional Requirements of Initiating a Refund Suit
[a] Establishing a Waiver of Sovereign Immunity
[b] Doctrine of Variance
[i] Taxpayer Need Not Raise all Arguments
[ii] Omitted Matter Affects the Amount of Recovery
[iii] Penalties or Interest Intertwined with Underlying Tax
[iv] Amending the Claim for Refund
[v] Government Has Waived its Right to Assert the Variance Doctrine
[c] Burden of Proof
[d] Form 4340: Certificate of Assessment and Payments
[e] Service of Process
[f] Overpayment Interest
[g] Interest Netting
[9] Application of Judicially-Created Doctrines
[a]—Economic Substance Doctrine
[b]—Federal Circuit and Economic Substance Doctrine
[10] The Tucker Act and Tax Refund Suits
§ 5.03 Abatement Claims
[1] Abatement of Taxes and Penalties
[2] Requirements for Abatement of Interest Claims
[a] Defining a Ministerial Act
[b] Time Period of Abatement
[c] Location for Filing Claim for Abatement
[d] Appeals Division
[i] Reconsideration of Claim Disallowed by Campus
[ii] Interest Abatement Coordinator
[iii] Method of Resolution of Claim for Abatement
[iv] Form 2297, Waiver of Statutory Notification of Claim Disallowance
[v] Pending Case in Appeals Division
[vi] Letter Sustaining Full Disallowance of Service Center Claim
[vii] Regional Director Involvement
[e] Tax Court Jurisdiction
§ 5.04 Doctrines Which May Be Invoked to Effect the Period of Limitations
[1] Equitable Recoupment or Setoff
[a] Factors Necessary for Equitable RecoupmentDoctrine to Apply
[b] Recoupment as a Counterclaim
[c] Doctrine of Unclean Hands
[2] Equitable Estoppel
[a] Elements of Estoppel
[b] Government Employee’s Actions or Representations
[c] Utilizing Accountant as Witness
[d] Asserting all Doctrines to Refute Statute of Limitations Bar
[e] Court’s Interest is Not to Undermine CorrectEnforcement of the Law
[f] Pre-Merger Doctrine Between Law and Equity
[3] Equitable Tolling of Statute of Limitations
[4] Mitigation Provisions, Sections 1311 through 1314
[a] Definition of Final Determination
[i] Four Types of Actions
[ii] Date of Final Determination
[iii] Finality of a Court Decision
[iv] Finality of Closing Agreement
[v] Finality of Claim for Refund
[b] Correction of an Error in a Closed Year
[c] Position of the Successful Party
[d] Determination According to one of the Seven Circumstances in Section 1312
[i] Section 1312(1) Double Inclusion of an Item of Income
[ii] Section 1312(2) Double Allowance of a Deduction or Credit
[iii] Section 1312(3) Double Exclusion of an Item of Gross Income
[iv] Section 1312(4) Double Disallowance of a Deduction or Credit
[v] Section 1312(5) Trusts, Estates, Legatees, Beneficiaries and Heirs
[vi] Section 1312(6) Related Corporations
[vii] Section 1312(7) Basis Problems
[e] Related Taxpayer
[f] Determining the Amount of Adjustment After Mitigation is Established
[g] Procedure to Follow for Obtaining Adjustment
§ 5.05 Procedural Requirements for the IRS to Recover an Erroneous Refund
[1] Statute of Limitations for Bringing Suit
[2] Recovery of Interest
[3] Section 6676 Penalty
[4] Burden of Proof
[5] Deficiency Procedures in lieu of Erroneous Refund Suit
§ 5.06 Complaint for Tax Refund
§ 5.07 Forms
[1] Instructions for Form 843
[2] Form 843: Claim for Refund and Request for Abatement
CHAPTER 6: Wrongful Levy
§ 6.01 Introduction
§ 6.02 Third Party must Initiate Challenge Within Two Years of Date of Levy
[1] Two Year Period Applicable After December 22, 2017
[2] Pre-December 22, 2017, Extension Period
§ 6.03 Legal Standards Governing Adjudication of Wrongful Levy Action
[1] Burden of Proof
[2] Interpleader
§ 6.04 Nominee and Alter Ego Theories
[1] Nominee Situations
[2] Alter Ego Situations
[3] Fraudulent Conveyance Situation
§ 6.05 Transferee Theory of Liability
[1] Elements of Transferee Liability
[2] Proving Transferee Liability at Law
[a] Asserting Transferee Liability for Federal Estate Tax Liability
[b] Asserting Transferee Liability Under State Law
[c] Asserting Transferee Liability Under Contract
[d] Asserting Transferee Liability Based on Federal Statutory Law
[3] Asserting Transferee Liability at Equity
[a] Differences Between Elements of Proof for Action at Law Versus at Equity
[b] Additional Equity Remedy: Trust Fund Doctrine
[4] Definition of Transferee Under the Internal Revenue Code
[5] Transferee Acting as Fiduciary Can Be Liable for aPersonal Penalty
[6] Transferee as Limited Liability Company Member
[7] Statute of Limitation for Transferee Liability
[a] Initial Transfer
[b] Subsequent Transfers and Transferees
[c] Transferor’s Actions Can Affect the Expiration of the Statute of Limitations for Assessment
[d] State Law’s Assessment Period May also Affect the Expiration of the Statute of Limitations for Assessment
[e] Death of Transferor or Dissolution of Transferor
[f] Joint Tax Return Filing Affects Statute of Limitation for Transferee Spouse
[g] Tolling the Statute of Limitation
[h] Statute of Limitations for Actions Under Trust Fund Doctrine
[8] Procedures for Litigating the Transferee Liability
§ 6.06 Defenses for Refuting an Assessment Based on Alter Ego/Nominee and Fraudulent Conveyance Theories
[1] Exercise of Dominion and/or Control
[2] No Record Assets
[3] Developing Evidence
[4] Relief Available
§ 6.07 Third Parties and Section 1346(a)(1) Versus Section 7426
[1] The Decision of United States v. Williams
[2] Wrongful Levy Exclusivity After Williams
[a] Lien Versus Levy Distinction
[b] Non-Voluntary Payment of Tax Liability
[3] Substance Versus Form of IRS Collection Activity
[4] Post-Williams Statutory Relief
§ 6.08 Quiet Title, Wrongful Levy, and Real Property
CHAPTER 7: The Reasonable Cause Defense
§ 7.01 The Reasonable Cause Defense
[1] Penalties
[a] Negligence Penalty
[i] Examples of Conduct That Can Cause Penalty to Be Assessed
[ii] Professional Advice, Experts
[iii] Bookkeeper’s Negligence
[b] Frivolous Return Penalty
[c] Accuracy-Related Penalty
[i] Applicability
[ii] Penalty Amount
[d] Substantial Understatement Penalty
[e] Civil Fraud Penalty
[f] Fraudulent Failure to File Penalty
[g] Bad Check Penalty
[h] Estimated Tax Penalty
[i] Failure to Make Deposit of Taxes
[j] Failure to File a Timely Return or Pay Tax Due
[k] Failure to File Information Returns
[l] Failure to Report Tips
[m] Failure to Honor Levy
[2] Employment Taxes
§ 7.02 Administrative Procedure and Assessment
[1] Establishing Reasonable Cause at the RevenueAgent/Audit Level
[2] Practical Planning for Escaping Assertion of CertainPenalties
[a] Techniques
[b] Substantial Understatement Penalty
[i] Non-Corporate Taxpayer
[ii] Corporate Taxpayer
[3] Alternatives for Disputing Penalty Recommendation
[4] Deductibility of Civil Tax Penalties
§ 7.03 Establishing Reasonable Cause in Litigation
[1] Supreme Court Precedent
[2] Being Too Busy Does Not Establish Reasonable Cause
[3] Financial Instability May Establish Reasonable Cause
[4] Affirmative Action by Taxpayer to Comply with the Law Must Be Evidenced
[5] Burden of Proof
[6] Abatement
[a] Erroneous Written Advice of IRS
[b] First-Time Penalty Abatement
[7] Disclosure Statement
§ 7.04 Developing the Case
[1] Checklists of Inquiries Concerning the Delinquencies
[2] Erroneous Calculation of the Assessment
[3] Common Considerations in Reviewing a Client’s Case
§ 7.05 Sample Complaint Requesting Recovery of Employment Tax Penalties
CHAPTER 8: The Innocent Spouse Defense
§ 8.01 Innocent Spouse Defense
§ 8.02 Administrative Procedures
[1] Filing Deadline
[2] Nonrequesting Spouse’s Right to Appeal
[3] Collection Due Process Matters
§ 8.03 Theories of Innocent Spouse Relief
[1] Innocent Spouse Relief
[a] How to Figure the Understatement of Tax?
[b] Erroneous Items
[c] Partial Relief in Proportion to Knowledge
[d] Indications of Unfairness
[e] Significant Benefit Received by the Spouse from the Wrongdoing Spouse
[2] Separation of Liability
[a] Consequences of Tax Avoidance Conduct
[b] Effective Date of Election and Planning
[c] Practical Example of Application of Separation of Liability
[d] Calculation of Separation of Liability
[i] Community Property Laws
[ii] Worksheet for Figuring Innocent Spouse Relief Tax
[3] Equitable Relief
[a] Requirements of Equitable Relief
[b] Application of Equitable Relief
[c] Circumstances Under Which Relief Will Ordinarily Be Granted
[d] Factors for Determining Whether Equitable Relief Will Be Granted
[e] Streamlined Procedures
[f] Legislative History of Equitable Relief
[g] Summary of Requirements for the Three Theories of Relief
§ 8.04 Alternatives to Litigation
[1] CDP Hearing
[2] Economic Hardship for Release of Levy
§ 8.05 Litigation
[1] Federal District Court and Federal Court of Claims
[2] Tax Court Review
[a] Acquiring Jurisdiction of the Tax Court
[b] Authority of Tax Court Over Collection Activities
[c] Notice Requirements to Former Spouse
[3] Bankruptcy Court
CHAPTER 9: Collection Activities Via the Tools of Liens and Levies
§ 9.01 Introduction
§ 9.02 Creation of the Federal Tax Lien
[1] An Overview of the Federal Tax Lien
[2] What Constitutes a Proper Assessment?
[3] What Constitutes a Proper Notice and Demand forPayment?
[4] Taxpayer’s Failure to Pay Liability
[5] Filing of the Notice of Federal Tax Lien
[6] Scope of the Federal Tax Lien
[a] The Government Stands in the Taxpayer’s Shoes
[b] The Federal Tax Lien Attaches to After-Acquired Property
[c] State Exemptions and the Federal Tax Lien
[i] Joint Tenancy
[ii] Tenancy by the Entirety
[iii] Marital Property in Community Property State
[iv] Marital Property in Homestead Exemption State
[v] Registered Domestic Partners in Community Property States
[vi] Trusts
§ 9.03 Priority Issues
[1] Two Step Inquiry
[2] Federal Tax Lien Act of 1966
[3] State Law Considerations
[4] Federal Law
[5] Superpriorities and Instances Where Federal Tax LienMay Be Defeated
[a] Statutory Prescribed Notice Must Be Given
[i] Determining Priority of Interest in Securities
[ii] Determining Priority of a “Purchaser”
[iii] Determining Priority of a Judgment Lien Creditor
[iv] Determining Priority of a Security Interest

[A] Defining a Security Interest

[B] Forty-Five Day Rule

[v] Same-Sex Relationships
[vi] Mechanic’s Lienor
[vii] Miscellaneous Interests Which May Be Entitled to Priority over Federal Tax Lien
[viii] Miscellaneous Interests Which Are Not Entitled to Priority over Federal Tax Lien
§ 9.04 Certificate of Subordination of Federal Tax Lien
[1] Prerequisites for Certificate of Subordination
[2] Obtaining Certificate of Discharge or Subordination
[3] Investigation of Application for Discharge or Subordination
[4] Issuing the Certificate of Discharge or Subordination
§ 9.05 Revocation of Certificates of Release of Federal Tax Lien
§ 9.06 Certificate of Nonattachment of Federal Tax Lien
§ 9.07 Withdrawal of the Filed Notice of Federal Tax Lien
[1] Content of the Request for a Withdrawal
[2] Instances Where a Request for Withdrawal Should Be Submitted
[3] Notice of Lien Withdrawal Will Facilitate Collection of the Tax Liability
[4] Withdrawal Based on the Best Interests of the Government and Taxpayer
[5] Installment Agreements and the Notice of Withdrawal
[6] Withdrawal May Be Issued Without Taxpayer Intervention
[7] Credit Report Concerns
§ 9.08 The Special Liens for Estate and Gift Taxes
[1] Special Estate Tax Lien
[a] Property Subject to the Special Estate Tax Lien
[b] Divestment of Property from the Special Estate Tax Lien
[c] Discharge of Property from the Estate Tax Lien
[d] Superpriorities and the Special Estate Tax Lien
[2] Special Gift Tax Lien
§ 9.09 The Levy
[1] IRS Procedures Prior to Issuing Notice of Levy
[a] Procedures for Effective Service of the Notice of Levy
[b] Notice of Levy Requirements and Pre-Levy Review
[2] Duty and Consequences of the IRS Levy
[3] Two Defenses to Failure to Honor Levy
[4] The Nature and Extent of a Notice of Levy
[a] The Effect of a Notice of Levy
[b] Attaching the Levy
[c] Levy Cannot Be Made During Suspension of Statute of Limitations
[d] Levy May Not Be Made When DeterminedUneconomical
[e] Levy May Not Be Made on Date of Summons Appearance Date
[5] Property Exempt from Levy
[a] List of Property Exempt by Statute
[b] Circumstances Allowing Levy on Exempt Property
[6] Property Subject to a Levy
[a] Bank Accounts
[b] Wages and Salary
[c] Retirement Accounts
[d] Insurance Policies
[e] Vehicles
[f] Social Security
§ 9.10 Seizure and Sale of Property Subject to Federal Tax Lien or Levy
[1] Notice of Seizure
[2] Verifying Clear Title and Minimum Bid Price
[3] Notice of Sale
[4] Sale Conducted Within Ten to Forty Days of Notice ofSale
[5] Sale of Property Co-Owned with a Delinquent Taxpayer
[6] Appealing Seizure of Property
[7] Redemption
[a] Time Period for Redemption
[b] Certificate of Sale, Deed of Real Property After Sale
[c] IRS Records of Seizures and Sales
§ 9.11 The Administrative Appeals Process
[1] Overview of the Administrative Appeals Process
[2] Collection Appeals Program
[a] Requesting an Appeal through CAP
[b] Jurisdiction of CAP
[3] Collection Due Process Hearing
[a] Deadline for Requesting a Collection Due Process Hearing
[b] Requesting a Collection Due Process Hearing
[c] Hearing Issues
[d] Judicial Review of Determination
[e] Suspension of Collection and Statute of Limitation
[f] Examples of Taxpayer Situations Where Tax Court Rejected IRS Action
[i] Business Taxpayer’s Financial Hardship Beyond the Taxpayer’s Control
[g] Simultaneous CAP and CDP Requests
§ 9.12 Judicial Proceedings of Tax Liens or Levies
[1] Reducing Assessments to Judgment and Government Foreclosure Action
[a] Reduce Assessments to Judgment
[b] Judicial Foreclosure
[2] Non-government Lienholder Seeking Foreclosure and Discharge of Property from Lien
[a] Government’s Right to Redemption of Property
[b] Procedures for Sale of Property
[c] Request to Release Right to Redeem Property
[3] Interpleader
[4] Declaratory Judgment
[5] Quiet Title
[a] Non-Liable Third Party Lienor as Plaintiff
[b] Delinquent Taxpayer as Plaintiff
[6] Injunctions
[7] Writ of Entry
[8] United States’ Right of Intervention
§ 9.13 Challenging the Validity of a Federal Tax Lien
[1] Checklist of Issues on IRS Procedures for Issuing a Federal Tax Lien
[2] Record Retention
CHAPTER 10: Tax Return Preparers and Tax Shelter Promoters
§ 10.01 Introduction
[1] Ministerial Violations
[2] Uncertain Tax Positions
[3] Tax Preparer Due Diligence Penalty
§ 10.02 Overview of Preparer Penalties and Standards of Conduct
[1] Who May Qualify as a Return Preparer Under the Internal Revenue Code?
[a] Exclusions
[b] Four Categories of Potential Liability under Section 6694
[2] Disclosure Rules and Standards
[3] Preparer Penalty Standards Under the Emergency Economic Stabilization Act of 2008
[4] Negligence
[5] Willful Conduct
[6] Fraud
§ 10.03 Assessment and Appeal Procedures of Preparer Penalties
[1] Assessment and Appeal Rights
[a] Preparer Penalty Assessment Procedures
[b] Appeal Procedures Concerning Preparer Penalties
[2] IRS Development of the Section 6694 Penalty Examination and Assessment
[3] Evaluation of Whether Substantial Authority Penalty Applies
[4] Examples of the Section 6694(a) Penalty Application
[5] Reckless or Intentional Disregard
[6] Understatement of Liability
[a] Degree of Verification of Client Information
[b] Abatement of Preparer Penalty
[7] Unrealistic Position
[a] One-in-Three Rule
[b] Correlation to Substantial Authority Test
[8] Examples of the Section 6694(b) Penalty Application
[9] Circumstances Where Preparer Is Subject to Multiple Penalties
[10] Statute of Limitations
§ 10.04 Overview of the Return Preparer Penalty Program
[1] Program Structure
[2] Penalty Screening Committee
[3] Role of the Return Preparer Coordinator
[4] Role of Revenue Agent or Auditor
§ 10.05 Program Action Cases
[1] Return Preparer Coordinator’s Recordkeeping
[2] Return Sampling
[3] Interviews with the Clients of the Subject Tax Preparer
[4] Accuracy Related Penalty and Reasonable Cause and Good Faith Defense
§ 10.06 Preparer Defenses
[1] Adequate Disclosure Defense
[a] Signing Preparers
[b] Nonsigning Preparers
[i] Advice to Taxpayer and Disclosure Regarding Realistic Possibility Standard
[ii] Advice to Another Preparer and Disclosure Regarding Realistic Possibility Standard
[iii] Advice to Taxpayer and Disclosure Regarding Position Contrary to Rule or Regulation
[iv] Advice to Another Preparer and Disclosure Regarding Position Contrary to Rule or Regulation
[2] Substantial Authority Defense
[3] Reasonable Cause/Good Faith Defense
[4] Reduction of Amount Assessed Where Both Penalties Under Sections 6694(a) and 6694(b) Apply
§ 10.07 Electronic Filing Program
[1] What is the Electronic Program?
[2] Obligations of an Electronic Filer Participant
[3] Penalties for Preparer’s Noncompliance with the Electronic Filing Program Obligations
[a] Disclosure or Use of Information
[b] Preparer Penalties Against Electronic Filers Under Sections 6694, 6695, and 6713
[c] Penalty in Connection with Refund Anticipation Loans
[4] IRS Monitoring of Electronic Filers
[a] Electronic Filer Activities Monitored by the IRS
[b] Procedures for Suspending Electronic Filer from the Electronic Filing Program
[c] Administrative Appeals of Suspension, Revocation, or Denial of Participation in Electronic Filing Program
[5] Director of Practice
§ 10.08 Litigation Involving the Preparer Penalties
[1] Injunction
[2] Refund Suits and Burden of Proof
[3] Disgorgement
§ 10.09 Practical Methods for Developing a Defense in a Preparer Case
[1] Factual Development
[2] Checklist of Criteria for Imposing the Section 6694(a) Penalty
[3] Summary Checklist of Criteria for Imposing the Section 6694(b) Penalty
§ 10.10 Responsibilities and Penalties of Tax Shelter Promoters
[1] Registration Responsibilities, In General
[a] Registration Procedures
[b] Definition of Tax Shelter
[i] Tax Shelter, Generally
[ii] Section 6112, Potentially Abusive Tax Shelter
[iii] Summons Enforcement Developments
[iv] Special Requirements for Confidential Corporate Tax Shelter
[v] Examples of Criminal Investigation


[B] Jenkins & Gilchrist

[c] Significant Tax Avoidance Purpose
[d] Ordinary Course of Business Exception
[e] Reliance on Counsel
[2] List Retention Requirements of Promoters of Potentially Abusive Tax Shelters
[a] List Retention Requirements
[b] Organizer, Seller, Promoters
[c] Content of List
[3] Disclosures Requirements
[a] Categories of Reportable Transactions
[b] Disclosure Procedures
[i] Bad Faith
[ii] Penalties for Failing to Disclose a Transaction
[iii] Determining the Sufficiency of a Disclosure
[iv] Statute of Limitations for Assessments Relating to Listed Transactions
[c] Protections Afforded to Privileged Communications
[4] Promoters Have Affirmative Duty Not to Provide False Information
[5] Fees
[6] Automated Process for Certain Penalties in Listed Transaction Situations
§ 10.11 Penalties for Failing to Comply with Code Requirements
[1] Penalty for Failure to Comply with Registration Process
[a] Responsibility for the Penalty
[b] Others Who May Be Assessed
[c] Knowledge of Proper Registration
[2] Calculation of the Penalty
[3] Protective Registration
§ 10.12 Use of Lists by the IRS
[1] General Rule: Seven Year Retention Period
[2] How the IRS Uses the Lists
[3] Consequences of Noncompliance with List Retention Requirements
§ 10.13 Lawyer As Witness
§ 10.14 Unreasonable Conduct by the IRS
CHAPTER 11: Recovering Monetary Damages from the Federal Government
§ 11.01 Introduction
§ 11.02 Disclosure of Tax Return Information
[1] Section 6103
[2] Statutory Exceptions to Confidentiality Which Permit Disclosure of Tax Return Information
[3] Disclosure Made in Good Faith Is Not Actionable
§ 11.03 Actual Damages
[1] Overview
[2] Establishing a Causal Relationship Between the Unauthorized Disclosure and Actual Damage
[3] Establishing Proof of Causation
[4] Economic Loss as Element of Actual Damages
[5] Emotional Distress as Element of Actual Damages
[a] Factual Circumstances Where Taxpayer Awarded Damages for Emotional Distress
[b] Factual Circumstances Where Taxpayer Has Been Denied Damages for Emotional Distress
[6] Physical Harm as an Element of Actual Damages
§ 11.04 Punitive Damages
[1] In General
[2] View that Punitive Damages Are Recoverable Only When Actual Damages Are Proven
[3] View that Punitive Damages Award Does Not Require Showing of Actual Damages
[4] Defining What Constitutes a Willful Disclosure
[5] Defining What Constitutes Gross Negligence
[6] Establishing Willful Disclosure and Gross Negligence for Punitive Damage Award
§ 11.05 Recovery Under the Privacy Act of 1974
§ 11.06 Government’s Right of Set-Off
§ 11.06A Whistleblower Awards
[1]—IRS Processing of Whistleblower Claim
[2]—Amounts of Awards and “Collected Proceeds”
§ 11.07 Recovery for Damages for Failure to Timely Release a Federal Tax Lien
§ 11.08 Recovery for Damages for Unauthorized Collection Actions
§ 11.09 United States Must Be Named as Defendant
§ 11.10 Constitutional Torts
[1] Qualified Immunity Defense of Government Employees for Constitutional Violations
[2] No Relief When Other Remedies Available
[3] No Relief or Torts in the Assessment and Collection Context
[4] Factual Circumstances Where Relief Was Afforded for Constitutional Tort
§ 11.11 Recovery Pursuant to the Federal Tort Claims Act (FTCA)
§ 11.12 No Right to Jury Trial in Actions Brought Under Sections 7432 and 7433
CHAPTER 12: Recovering Administrative and Litigation Expenses from the Government
§ 12.01 Introduction
§ 12.02 Pre-Suit Review of Award for Administrative Costs
[1] Recovery of Costs Incurred
[2] Jurisdiction
[3] Procedures for Recovering Administrative Costs
[4] Filing Deadline for Recovery of Administrative Costs
[5] Time Period During Which Costs Are Recoverable
[a] Qualified Offer
[b] Qualified Offer Period
[6] Appeals Division Determination
[7] Settlement of Claims for Attorneys’ Fees
[a] IRS Processing of Terms of Agreement
[b] Example of Agreement on Administrative Cost
[c] Computation of the Litigation and Administrative Cost Award
[i] Submission of Required Documentation and Information
[ii] Non-Attorney Fees
§ 12.03 Appealing the IRS’ Disallowance or Partial Disallowance of an Award
[1] Procedures for Appeal
[2] Section 6673
§ 12.04 Post-Litigation: Seeking Reasonable Litigation and Administrative Costs and Fees
[1] Section 7430, in General
[2] Defining Reasonable Administrative Costs
[3] Defining Reasonable Litigation Costs
[4] Qualifications for an Award
[5] Examples
[a] What Constitutes a “Substantially Justified” Position by the Government
[b] What Does Not Constitute a “Substantially Justified” Position by the Government
[6] Who Can Qualify as a Prevailing “Party” for Purposes of Recovering Litigation Expenses?
[a] Estate as a Party
[b] Debtor-in-Possession as a Party
[c] Creditor of Delinquent or Challenging Taxpayer Is Not a Party
[7] Exhausting Administrative Remedies
[a] Participating in the Appeals Division Conference
[b] Statement from IRS that Pursuit of Administrative Remedies Unnecessary
[8] Unreasonably Protracting Proceedings
[9] Determining Whether a Party is a Prevailing Party
[10] Court Discretion in Award
[11] Evidence Supporting Reasonable Litigation Fees Award
[12] Burden of Proof
[13] Suits Where Recovery of Reasonable Litigation Fees Should Be Sought
[14] Determining Whether the United States Can Offset a Section 7430 Award
[15] Recovering Attorneys’ Fees in Bankruptcy Court
§ 12.05 Sanctions
[1] Government Award of Fees as Sanction Against Taxpayer
[2] Taxpayer Awarded Sanctions Against Government
[3] Fraud on the Court
§ 12.06 Practical Advice
§ 12.07 Checklists
[1] Evidentiary Checklist for Recovery of Fees in Administrative Proceeding
[2] Evidentiary Checklist for Recovery of Fees in Civil Tax Litigation
CHAPTER 13: Criminal Tax Investigations
§ 13.01 Introduction
§ 13.02 Example of a Typical CID Investigation
[1] Phase One
[2] Phase Two
[3] Phase Three
[4] Phase Four
[a] Specific Item or Direct Method
[b] Bank Deposit Method
[c] Net Worth and Expenditures Method
[d] Taxpayer Should Be Given an Opportunity to Provide Needed Information
[5] Phase Five
§ 13.03 The Structure and Purpose of CID
[1] General Duties
[2] Marijuana Businesses
[3] Offenses Investigated by CID
[a] Fraud
[b] Tax Evasion
[i] Defining Evasion of Tax
[ii] Proving Existence of a Tax Deficiency
[iii] Boulware v. United States
[iv] Avoidance of Tax Versus Evasion of Tax
[v] 2018 Marinello case: Conviction for Obstruction or Impeding Tax Administration Requires Knowledge Nexus
[c] Filing False Income Tax Return
[d] Willful Failure to File Return, Supply Information, or Pay Taxes
[e] Failure to Collect or Pay Over Taxes
[f] Fraud and False Statements
[g] Offers in Compromise
[i] Alleged Fraudulent Offers
[ii] Joint Investigations
[iii] Offers in Pending Criminal Investigations
[iv] Offer Post-Conviction
[h] Bank Secrecy Act Violations
[i] IRS Role
[ii] Treasury Summons
[4] Triggers for Criminal Investigation
[a] Gathering “Affirmation Indications of Fraud” During Civil Examination
[b] Suppression of Evidence Gathered in Civil Examination
[5] Special Agent Responsibilities
[a] Strike Force/Racketeer Program
[b] Activities Special Agents Can Engage in Prior to Investigation Being Officially Authorized
[6] Responsibilities of Service Center Criminal Investigation Branch
[7] Three Categories of Investigations Conducted by a Special Agent
[a] General Investigation
[i] Authorized General Investigation Techniques
[ii] Techniques Relating to Potential Fraudulent Refund Schemes
[b] Primary Investigations
[c] Subject Criminal Investigations
[i] Memorandum Recommending the Initiation of an Investigation
[ii] Group Manager’s Case Initiation Factors
§ 13.04 Civil Audit/Assessment Pending Criminal Investigations
[1] Due Process Concerns
[2] Civil Versus Criminal Violations
[3] Civil Penalties that May Arise During Criminal Investigation
[4] Parallel Civil and Criminal Investigations
§ 13.05 Taxpayer Information that May Be Disclosed by Special Agent in Conducting Investigation
§ 13.06 Guidelines Special Agent Must Follow in Conducting Investigation
§ 13.07 Fifth Amendment Privilege
§ 13.08 Miranda Warning
§ 13.09 Fourth Amendment
[1] Probable Cause
[2] Requirement of Particularity
[3] Examination of the Scope and Execution Method
[a] Mandated Recordings
[b] Duration of Recording
[4] Notice, Inventory Return
[5] Suppression and Standing
[6] Applicability of “Good Faith” Exception
§ 13.09A Privileged Communications/Documentation
[1] Attorney/Client Privilege
[2] Accountant/Client Privilege
[a] Section 7525 of the Internal Revenue Code
[b] Extension of Attorney/Client Privilege to Accountants
[c] Accountant/Client Privilege Recognized by State Law
[3] Attorney Work Product
[4] Corporate Privileges
§ 13.10 Information Gathering Tools Used by Special Agent
[1] Summons Power, Generally
[2] Third Party Record-Keeper Summons
[a] Motion to Quash Summons
[i] Standing
[ii] Grounds for Seeking to Quash Summons

[A] Third Party Record-Keeper

[B] Summons to Taxpayer

[3] John Doe Summons
[a] Use of John Doe Summons for Offshore Accounts
[i] The Court’s Authority to Compel a United States Bank to Produce Offshore Records
[ii] John Doe Summons for Records in 2000 Involving Traditional Caribbean Tax Havens
[iii] John Doe Summons for Records in 2002 Involving more than Thirty Countries
[b] Reporting Requirements for Use of Offshore Account
[c] Offshore Voluntary Compliance Initiative
[i] First IRS OVDP Initiative
[ii] Other IRS OVDP Initiatives
[iii] Two Offshore Voluntary Disclosure Program Options: “Regular” OVDP and OVDP Streamlined Compliance Procedures

[A] Certification of Non-Willfulness

[B] “Non-Willful” Conduct

[d] Collection from Offshore Accounts
[i] The Government Must Establish Jurisdiction over the Taxpayer
[ii] Methods for Collecting the Tax Debt from Offshore Assets or Taxpayer Overseas
[iii] Defenses to Collection of Offshore Assets

[A] Court Lacks Jurisdiction

[B] Expatriation of Citizenship

[e] Use of John Doe Summons for Gift
[f] Use of John Doe Summons Involving Virtual Currency
[4] Government Enforcement of Summons
[a] Elements the Government Must Prove to Establish Enforcement Is Proper
[b] Taxpayer’s Burden After Government Establishes Powell Requirements
[5] Compulsion Order
[a] Procedures for Obtaining a Compulsion Order During Investigation
[b] Procedures for When a Witness Reappears in Response to an Adjourned Summons
[c] Summons Enforcement Procedures Prior to Requesting a Compulsion Order
[d] Perjury or False Statements Made by Witness
[e] Compelled Testimony Should Be Safeguarded by the IRS
[f] Prosecution of a Witness Subject to a Compulsion Order
[g] Use of Information Obtained Through Compulsion in Civil Matters
[h] Denial of Compulsion Order Request by Justice Department
[6] Immunity
[a] Use and Derivative Immunity
[b] Seeking Immunity for a Witness’ Act of Production
[7] Search Warrants
[a] Excluding Evidence Obtained from a Search and Seizure
[b] Required Evidence
[i] Probable Cause
[ii] The Warrant Must Describe with Particularity Items To Be Seized and the Criminal Conduct Alleged
[iii] Reckless or Deliberate Material Misrepresentations
[iv] Improper Execution of the Search Warrant
[c] Contempt
[8] Electronic Surveillance and Interception
[a] Consensual Monitoring
[b] Developing Arguments in Defense of Taxpayers Subject to Federal Wiretaps
[9] Electronic Tracking Devices (Beepers)
[10] Pen Registers and Trap and Trace Devices (Grabbers)
[11] Informants
[12] Mail Covers
[13] Hardware and Software Evidence
§ 13.11 Record-Keeping Resources of Taxpayer Information
[1] Currency Transaction Reports
[2] Suspicious Activity Report (SAR) Forms
[3] Report of Cash Payments Over $10,000 Received in a Trade or Business
[4] Social Security Administration
[5] State Department
[6] Securities and Exchange Commission (SEC)
[7] Comptroller of Currency
[8] Customs Records
[9] Bureau of Alcohol, Tobacco and Firearms Records
[10] Federal Bureau of Investigation Records
[11] Drug Enforcement Agency Records
[12] United States Postal Service Records
[13] Financial Crimes Enforcement Network (FinCEN)
[a] Virtual currency
[b] Information Sharing
[14] Financial Institutions
[a] Report of Foreign Bank and Financial Accounts (FBAR)
[b] Forms 5471 and 5472
[c] Silent or Quiet Disclosures
[d] FBAR IRS Examination, Fast Track Settlement, and Appeals
[i] Examination
[ii] Appeals Division
[15] FinCEN, Financial Institutions, and the USA PATRIOT Act
[a] Certification Must Be Completed by IRS
[b] Financial Institution’s Discovery of Suspicious Account or Transaction
[c] Protecting Information that Is Shared
[d] Likelihood of Suspicious Activity Report
[16] Foreign Corrupt Practices Act (FCPA)
[17] Hiring Incentives to Restore Employment (“HIRE”) Act / Foreign Account Tax Compliance Act (“FATCHA”
§ 13.12 Special Agent’s Prosecution Report
[1] History of the Taxpayer
[2] Taxpayer Contacts
[3] Theory of the Case
[4] Reconciliation of Books and Records to Tax Returns
[5] Other Evidence for Use in Criminal Proceedings
[6] Evidence of Intent
§ 13.13 Taxpayer Conferences with the Government
[1] Conference with the Special Field Agent and Group Manager
[2] Conference with Field Counsel
[a] Items the Practitioner Should Address at Conference with the Government
[b] Field Counsel Referrals for Prosecution
[3] Conference with the Tax Division
[4] Conference with the United States Attorney’s Office
§ 13.14 Expedited Plea
[1] Taxpayer’s Representative Must Initiate Plea Discussion
[2] Justice Department Authority and Jurisdiction
[3] Evidentiary Analysis
[4] Affect of Plea Negotiations on Civil Liability
[5] Citizenship
[a] Good Moral Character
[b] Tax Conviction as Aggravated Felony
[i] Tax Returns Filed Jointly
[ii] Spousal Elections
[c] “Particularly Serious Crime”
[d] Adjustment of Status Tax Scrutiny
§ 13.15 Bank Secrecy Act: Title 31 Referral Guidelines for Civil Penalties
[1] Severity of Violations
[2] Inconsequential Violations
[3] Disclosure of Tax Return Information Based on Related Statute Test
[4] Criteria for Determining Whether Bank Secrecy Act Violations Warrant a Penalty Referral
[5] Mitigating Factors to Offer in Defense to Bank Secrecy Act Violations
§ 13.16 Grand Jury Matters
[1] Function of a Grand Jury
[2] Challenging a Grand Jury Subpoena
[3] IRS Initiation of a Grand Jury Investigation
[4] Initiation of Grand Jury by Department of Justice
[a] Department of Justice Policy
[b] CID Assistance In Grand Jury Initiated by Government Attorney
[5] Grand Jury Secrecy
[6] Use of Subpoenas Duces Tecum in Grand Jury Investigation
[a] Testimony and Documents
[b] Required Records Doctrine
[c] Establishing the Scope of the Subpoena Served Upon a Corporation
[d] Document Production by Corporation
[e] Consider Whether an Appearance Before the Grand Jury to Produce Documents is Actually Necessary
[f] Retain Separate Counsel for the Company
[g] Preparation of Witnesses for Testimony Before the Grand Jury
[h] Interviews of Witnesses After Their Appearance are Permitted
[i] Waiver of the Attorney Client Privilege and Work Product Doctrines
[7] Immunity
[a] Application of the Fifth Amendment Privilege
[b] Timing
[i] Burden
[ii] Adverse Inference
[c] Informing the Grand Jurors About Immunity of a Witness
[d] Transactional Immunity Automatically Denied
[e] Criteria for Granting a Request for Immunity
[f] Civil and Criminal Contempt
[i] Civil Contempt
[ii] Criminal Contempt
[8] Informants
[9] Grand Jury and the Corporate Taxpayer
[a] Avoid Destruction of Evidence by Sending Freeze Letter
[b] Advise Employees of Their Rights
[c] Initial Conference with the Prosecutor
[d] In-house Investigations
[i] Conducting an Investigation via Outside Counsel
[ii] Conducting an Internal Investigation Without Outside Counsel
[10] IRS Final Report on Grand Jury
[11] Inappropriate Prosecutorial Actions
[12] Sentencing Guidelines
§ 13.17 Criminal Tax Prosecution
[1] Dual and Successive Prosecution
[2] Pleas After Arrests
[3] Indictment
[4] Information
[5] Complaint
[6] Warrant or Summons
[7] Preliminary Hearing
[8] Arraignment
[9] Invoking the Fifth Amendment During Discovery and/or Trial
[10] Discovery and Inspection
[a] The Brady Doctrine
[b] Henthorn Requests
[11] Trial Preparation Methods
[12] Sentencing in Criminal Tax Prosecutions
[a] Federal Sentencing Guidelines
[i] Determining the Offense Level
[ii] Defining the Tax Loss
[iii] Use of Sophisticated Means to Impede Discovery of Offense
[iv] Defendant Derived Substantial Portion of Income From Tax Offense
[b] Good Faith Defense
[c] Presentence Investigation
[d] Guilty Plea Analysis
§ 13.18 Taxpayer Defenses
[1] Preparation for the Taxpayer Interview with the Special Agent
[a] Questions to Ask Special Agent
[b] Agreement to Produce Records
[c] Attending the Taxpayer Interview with the Special Agent
[2] Selective Enforcement
[3] Production of Evidence
[4] Cooperation with the Special Agent
[5] Affidavits
[6] Voluntary Disclosure Policy
[7] Attacking the Method of Proof Used by CID
[a] Net Worth Method
[b] Prior Accumulations of Income in Previous Years
[c] Gifts, Inheritances, Loans
[d] Use of Forensic Accountants
[8] Statute of Limitations
[9] Suppression of Evidence as Remedy for Improper Use of Immunized Testimony During Prosecution
[10] Suppression of Evidence Due to Prosecutorial Misconduct
[11] Under Seal
[12] Appeal of Conviction or New Trial
§ 13.19 Forfeitures
[1] Seizures
[2] IRS Internal Forfeiture Procedures
[a] Counsel Assistance Provided in Administrative Forfeiture Cases
[b] Advertisement
[c] Notice of Seizure Letter
[d] Declaration of Forfeiture
[e] Inquiries from Parties
[f] New Evidence Must Exist to Support Reversal
[3] Quick Release of Property Procedures
[4] Administrative Review
[a] Petition for Mitigation or Remission
[b] Mitigation
[c] Remission
[d] Notice Sent to Claimant
[e] Request for Reconsideration of Denial of Petition for Mitigation
[5] Judicial Forfeiture
[a] Claim of Ownership and Cost Bond
[b] Field Counsel Processing and Referral of Claim and Cost Bond
[6] Role of the United States Attorney’s Office
[a] Settlement Possibilities
[b] Authorization to Initiate Judicial Action
[7] Judicial Action
[a] Venue
[b] Burden of Proof
[c] Constitutional Concerns
[8] Defenses to Forfeiture
[a] Due Process
[b] Double Jeopardy
[c] Property Reported on Taxpayer’s Tax Return
§ 13.19A Multiple or Dual Representation Problems
[1] Potential for Ethical Dilemma
[2] Disqualification Upon Showing of Conflict of Interest
[3] Government Motion to Disqualify Counsel
[4] Conflicts of Interest Resulting in Disqualification
§ 13.20 Recovering Attorney Fees in a Criminal Case
[1] Defining a “Prevailing Party”
[2] Burden of Proof
[3] Final Judgment
[4] Net Worth Requirement
[5] The “Position of the United States”
[6] Discovery of the Conduct of the Government May Be Allowed
[7] Scope of Record
[a] Conduct Unsupported by the Law
[b] Conduct Unsupported by the Facts
[c] Use of Charge or Prosecution for Wrongful Purpose
[8] Deadline for Filing Claim
[9] Common Government Arguments to Refute Award Under Hyde Amendment
[10] Statutory Loophole of Special Circumstances Making an Award Unjust
[11] Practical Advice
[a] Build a Record
[b] Alert Court to Government’s Improper Conduct
[c] Track the Government’s Conduct with its Policies
[d] Extract a Concession Not to Reindict/Reprosecute
[e] Restitution
§ 13.21 Title 18 Bootstrap
§ 13.22 Sample Petition to Enforce Summons and Accompanying Declaration of Revenue Agents
§ 13.23 Form 8300: Report of Cash Payments Over $10,000 in a Trade or Business
CHAPTER 14: Bankruptcy and the IRS
§ 14.01 Introduction
[1] The Estate
[2] Separate Entity in Chapters 7 and 11
[a] Defining the Estate
[b] The Bankruptcy Estate Tax Liability
[c] Filing Applicable Returns and Paying Tax Liability
[d] Trustee and the Estate
[e] Individual Debtor/Taxpayer
[3] Bankruptcy Rules
§ 14.02 Government Players in the Bankruptcy Process
[1] Special Procedures Function
[2] United States Department of Justice
[3] Field Counsel
§ 14.03 Bankruptcy: The Process
[1] Automatic Stay
[a] Adequate Protection
[b] Relief from the Automatic Stay
[2] What May Be Discharged?
[a] Priority Taxes
[i] Employment Taxes
[ii] Excise Taxes
[iii] Affordable Care Act
[b] Equitable Tolling
[i] “Three-Year Look-Back Period”
[ii] Offer in Compromise (“OIC”) Tolling Circumstances
[iii] Collection Actions and Challenges
[c] Penalties
[i] Dischargeable Penalties
[ii] Non-Dischargeable Penalties
[d] Interest
[e] Excise Tax or Penalty?
[3] When a Tax Return Is Not a Return for Dischargeability Purposes
[a] Substitute for Return
[b] Tax Returns and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
[c] Return Filed Within Two Years of Petition
[d] Fraudulent Tax Returns
[e] Dismissal Due to Failure to File Returns
[4] What Is the Effect, If Any, of a Federal Tax Lien?
[5] Exempt Property
[6] Notice of Levy Requires Harmonization of Bankruptcy Code and Internal Revenue Code
[7] Tenancy by the Entirety
[a] Bankruptcy Claims
[b] Individual Claims
[c] Joint Claims Not Exempt
[d] Sale of the Nondebtor’s Interest
[e] Effect of Liens Perfected Prior to Creation of Tenancy by the Entirety
[8] Employment Tax Payments
[9] Turnover Requirement
[10] Implementing an Offer-in-Compromise Prior to and During the Bankruptcy
[11] Determinations of Tax Liabilities
[a] Request for Prompt Determination from IRS
[b] Bankruptcy Court
[12] Application of the Doctrine of Sovereign Immunity
[13] Damages for Violations of the Automatic Stay
[a] Establishing a Violation of the Automatic Stay
[b] Two Procedures for Seeking Damages Against the IRS
[c] Compensatory, Punitive and Actual Damages
[d] Recovery of Attorneys’ Fees
[e] “Non-Willful” Violation of Automatic Stay
[14] Effect of Confirmation
[a] Chapter 11 and Confirmation
[b] Chapter 13 and Confirmation
[15] Effect of an Order of Discharge from the Bankruptcy Court
[a] Effect of Discharge on Lien Holders
[i] General Rule for Lien Holders
[ii] Providing for Lien Holders
[b] A Federal Tax Lien Survives In Rem
§ 14.04 Determinations by Bankruptcy Courts of Income Tax Consequences
[1] In General
[2] Case or Controversy
[3] Analysis of Short-Year Election in Chapters 7 and 11
[a] Mechanics
[b] Tangible Benefits
[4] General Requirements for Confirmation
[a] Chapter 11, Generally
[b] Chapter 13, Generally
[c] Chapter 7, Generally
§ 14.05 Internal Jurisdiction and Settlement Authority Between the IRS and the Department of Justice
[1] Before or After Objection to a Proof of Claim Is Filed
[2] Before an Objection to a Proof of Claim Is Filed
[3] After an Objection to a Proof of Claim Has Been Filed
[4] Special Assistant United States Attorneys and Assistant United States Attorneys
[5] Department of Justice, Tax Division
[6] Burden of Proof
[7] Service of Process
§ 14.06 Practical Considerations
§ 14.07 Complaint to Determine Tax Lien Priorities
§ 14.08 Practice Tips
[1] Using the Taxpayer Advocate to Avoid Unreasonable Revenue Officer
[2] Post-Bankruptcy Activity
[3] Litigating Tax Liabilities
[4] Innocent Spouse Relief May Allow Debtor/Spouse to Escape Liability
[5] Counsel Client Regarding Consequence of Bankruptcy Filing
[6] Willful Evasion in the Context of Luxury Purchase
[7] Ordering Transcripts of Debtors’ Tax Accounts/Periods
[8] Foreclosure by Lender and Consequences
[9] Asserting the Fifth Amendment
[10] Divorced or Divorcing Couples, Only One Spouse in Bankruptcy
[11] Post-Petition Interest in Chapter 13
§ 14.09 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
[1] Retirement Plan Exemptions
[2] Education IRAs
[3] Notice of Request for Determination of Taxes
[4] Discharge of Estate’s Liability for Unpaid Taxes
[5] Rate of Interest on Tax Claims
[6] Repeat Bankruptcy Filers
[7] Chapter 13 Discharge
[8] Chapter 11 Discharge
[9] Tax Court Stay Provision Limited
[10] Periodic Payment of Taxes Under Chapter 11
[11] Avoidance of Statutory Tax Lien Prohibited
[12] Payment of Taxes in the Conduct of Business
[13] Tardily Filed Priority Tax Claims
[14] Return Defined, “Hanging Paragraph”
[15] Return Must Be Filed to Confirm Chapter 13 Plans
[16] Tax Disclosure Standards
[17] Setoff of Tax Refunds
[18] Dismissal for Failure to Timely File Returns
[19] Homestead Exemption
[20] “Means” Test
§ 14.10 Dischargeability Checklists
§ 14.11 Recovering Attorney’s Fees
§ 14.12 Debt Forgiveness Situations Creating Tax Debt
[1] Outside of Bankruptcy
[2] Debtor in Bankruptcy
[3] When to Use the Form 982
CHAPTER 15: Access to Information from the Federal Government
§ 15.01 The Freedom of Information Act
[1] FOIA Legislative Structure
[a] The “Reading Room” Provision of FOIA
[b] FOIA Requests
[2] Procedure for Making an FOIA Request
[3] FOIA Exemptions
[a] Exemption 2: Internal Personnel Rules and Practices
[b] Exemption 3: Information Exempt Under Certain Laws Other Than FOIA
[i] Application of FOIA Exemption 3 with Section 6103
[ii] Haskell Amendment Exception
[iii] Grand Jury Information Also Falls Within Exemption 3
[c] Exemption 4: Trade Secrets and Commercial or Financial Information
[d] Exemption 5: Internal Communications
[i] Government Deliberative Process Privilege
[ii] Attorney-Client Privilege
[iii] Work-Product Privilege
[e] Exemption 7: Investigatory Files
§ 15.02 The Privacy Act
[1] Legislative Purpose of the Privacy Act
[2] Exemptions Under the Privacy Act
[3] Submitting a Privacy Act Request
[a] Disclosure Litigation Division
[b] IRS Evaluation of Sufficiency of Request
[i] Verification of the Requester’s Identity
[ii] Verification That Request Complies with Regulations and Description of Records Sought Is Sufficient
[iii] Tracking Down Records Sought and/or Initiating Action on Request
[c] IRS Response Granting Request Under the Privacy Act
[d] IRS Response Denying Request Under the Privacy Act
[e] Evaluation of Request for Amendment of Record Under the Privacy Act
[f] Review of Refusal to Amend Record Under the Privacy Act
[4] Advance Pricing Agreements Between Corporate Taxpayers and the IRS
§ 15.03 Section 6110: Access to Government Documents
§ 15.04 Judicial Review of FOIA and Privacy Act Requests
[1] Venue
[2] Burden of Proof
[3] Complaint
[a] FOIA Action
[b] Privacy Act Action
[4] Tax Division, Department of Justice
[a] Disclosure Litigation
[b] Requests for Tax Division Records
[5] In Camera Review of Withheld Materials Is Discretionary
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