Tax Audits:Practice and ProcessBrent LipschultzJon ZefiStephen J. BercovitchApril 26, 2011
WelcomeWe are pleased to welcome you to today’s webcast. For those requiring CPE   certification, please note: This event ...
Agenda•   Economic & Regulatory Environment•   Pre-Audit Planning•   Managing the Audit Life-Cycle•   Documentation Provid...
Economic Environment•   Understanding the economic environment•   As states across the country consider their budget propo...
Economic Environment                       5
Regulatory Environment•   Transfer Pricing: Pricing between two controlled entities for cross-    border transactions of t...
Regulatory Environment• TP101: Relevant to intercompany transactions and  transfers of profit for goods, services, intangi...
Regulatory Environment• Internal Revenue Code (“IRC”) § 482   – IRS has power to allocate gross income, deductions,     cr...
Regulatory Environment• Treas. Reg. § 1.6662-6(b) and (c) impose transfer pricing  penalties   – 20% of additional tax owe...
Assess Opportunities And Exposures• Domestic and foreign considerations   – U.S. company sets intercompany prices too low,...
Assess Opportunities And Exposures• Domestic and foreign scenarios (cont’d)   – Assurance and tax considerations       • A...
Assess Opportunities And Exposures• When arm’s length is not arm’s length   – Companies often – incorrectly – believe pric...
Emerging IP Issues•   Growing trend among BRIC nations to extend taxing jurisdiction    and concomitant adoption of incons...
Polling Question #1Transfer Pricing is relevant to Intercompany  transactions and transfers of goods, services  and intang...
Pre-audit planning• Corporate income tax – current state issues   o Nexus – multistate      – Payroll nexus           » Co...
Pre-audit planning• Internet based businesses – potential income tax nexus    –   Call center    –   Server    –   Back-up...
Pre-audit planning• Sales taxes and gross receipts taxes• Out of state seller scrutiny (Amazon.com “agency”)        » NY, ...
Pre-audit planning• Service providers   – States moving from “cost of performance” based     taxation to “market based”   ...
Pre-audit planning•   “Economic nexus” - Courts, administrative tribunals, and    tax administrators have embraced Geoffre...
Pre-audit planning•   MBNA Bank -- West Virginia (MBNA, 220 W. Va. 163,    640 SE2d 226, 236 (2006) , cert. denied, 551 US...
Pre-audit planning•   Connecticut Information Pub. No. 2010(29.1), 12/12/10    provides three examples of economic nexus: ...
Pre-audit planning• How is your system sourcing receipts   – Bill to   – Ship to   – Commercial domicile of customer   – C...
Pre-audit planning• How is the system documentation conveyed to the Tax  Department     – State apportionment schedules   ...
Pre-audit planning: sales/use tax• Nexus planning   – May trigger sales tax nexus with no corporation tax     nexus   – PL...
Pre-audit planning: sales/use tax• Sales tax registration    – Officer/responsible party disclosure of social      securit...
Managing the audit life-cycle– State’s process in designating audit targets   • Industry programs   • Auditor expertise & ...
Managing the audit life-cycle –  Third party auditors• “Bounty Hunters” and Contingent fee auditors   – Washington, D.C., ...
Managing the audit life-cycle –    Third party auditors•   The trend to allow for contingent-fee audits could spread    gi...
Managing the audit life-cycle• Pre-audit planning   – What issues arose last audit; and, in other states   – Was the filin...
Managing the audit life-cycle• Initial contact   – Value of meeting at representatives’ offices versus     premises of tax...
Documentation Provided toAuthorities• Timely fulfillment of document requests  –   Pace and timing  –   Execution of waive...
Documentation Provided toAuthorities• Sales tax  – Documentation of sales     •   Invoices     •   “Bundled” services     ...
Documentation Provided toAuthorities • “Overlapping audit” documentation • A note on responsible parties    – For sales ta...
Documentation Provided toAuthorities• Corporation tax  • Documenting “add-backs”     – Documenting arm’s length payments  ...
Documentation Provided to Authorities• 50 –State apportionment data   – No rule that numerators add to 100% - “nowhere inc...
Documentation Provided toAuthorities• Documentation created to comply with FASB  ASC 740-10-25 (FIN48)   – Considered part...
Post audit planning• Dealing with the auditor, supervisor and  government  – Resolving errors and areas of disagreement  –...
Post audit planning• Protesting the assessment  – Payment and refund?  – Interest costs  – Costs of litigation  – Settleme...
Polling Question #2“Economic nexus” refers to deriving income from a  state under an inter-company franchise  agreement wi...
Federal Audit Trends of High Net  Worth Individuals• Name of the Game: Close the Tax Gap• Playing the IRS audit Roulette  ...
How has the IRS Focused on the  High Wealth Client?• Global Tax Compliance Focuses on High Net  Worth Taxpayers.   – 2008 ...
IRS Global High Wealth Industry    Group Formed in 2009•   IRS announced the formation of group in 2009 “to take a unified...
Scorecard of the High Wealth    Taxpayer Program•   GHW had 2 audits in FY 2010•   11 audits in FY 2011•   78 out of 5,655...
Trend Towards Increased    Transparency•   Increased Transparency with FATCA Compliance in    Effect for Returns filed aft...
Key Trends in Individual Tax Enforcement• Desk Audits increasing• Whistle blower Statute (IRC section 7623(b))   – Enacted...
Key Trends in Individual Tax    Enforcement•   Use of John Doe Summons under IRC section 7602     – Global Banks (UBS & HS...
OVDI Program Summary•   IRS announced program on February 8, 2011 with guidance in form of    FAQ.•   Complete submission ...
Offshore Penalty Framework (5%,    12.5%, 25%)•   5 percent penalty applies also if a Foreign resident was    unaware of U...
Offshore Penalty Framework (5%, 12.5%, 25%)• 5 Percent Offshore Penalty  – Taxpayer did not open account     • Exception i...
Opportunity to Avoid Penalty on  International Compliance Failures• Last Chance Opportunity to Avoid Penalty at No Cost.  ...
High Risk Areas for IRS andState Individual Examinations– Failure to substantiate business expenses and deduction of  busi...
Polling Question #3The government can request documentation of  inter-company and inter-state transactions  when these wor...
Four Myths and Facts Corporate and Individual Tax         Controversies                                53
Representation -- POA• Myth One: Handle the audit in-house. If we  retain a representative, it makes us look  guilty.   – ...
Technical proficiency• Myth Two: Everyone reads the same tax  code and cases. The “law is the law” -- It  makes little dif...
Know your industry• Myth Three: The government holds all the  cards. It has all the power and the resources  to exhaust yo...
Winning on principle• Myth Four: Always defend the principle and  if necessary, pursue a case on principle  through hearin...
Polling Question #4Those who have reported and paid tax on all income  but did not file FBARs cannot file FBARs with a  re...
QUESTIONS?Jon Zefi LL.M., J.D., M.B.A.         Brent S. Lipschultz, CPA, J.D, LL.M.Principal                            Ta...
EisnerAmper LLP is an independent member firm of PKF International Limited
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Tax Audits Practice Process 042611 Webinar Final Sbjzbl042511 (2)

  1. 1. Tax Audits:Practice and ProcessBrent LipschultzJon ZefiStephen J. BercovitchApril 26, 2011
  2. 2. WelcomeWe are pleased to welcome you to today’s webcast. For those requiring CPE certification, please note: This event is CPE–qualified for Accounting Professionals in New York and New Jersey. In order to qualify for your CPE Certificate, you will need to: - Remain logged on for at least 50 minutes - Respond to all 4 polling questions - Complete the survey following the event. A link to the survey will be emailed to you automatically within the hour following the webinar.Within two weeks of this webcast, a CPE certificate will be emailed to all those who meet the above criteria. Also, this event is being recorded. A link to that recording will be available on our website after the event. Finally, if time does not permit an answer to questions posed during the webcast, those questions will be answered offline after the event 2
  3. 3. Agenda• Economic & Regulatory Environment• Pre-Audit Planning• Managing the Audit Life-Cycle• Documentation Provided to Authorities• Post-Audit Planning• Four Myths and Facts about Tax Controversies – Corporate and Individual 3
  4. 4. Economic Environment• Understanding the economic environment• As states across the country consider their budget proposals for the coming year, they continue to face fiscal challenge. The worst recession since the 1930s has caused the steepest decline in state tax receipts on record.• The upcoming fiscal year (FY2012) is shaping up as one of states’ most difficult budget years on record. Thus far, some 44 states and the District of Columbia are projecting budget shortfalls totaling $112 billion.• Already, some 26 states are projecting shortfalls totaling $75 billion for FY 2013 (the year that begins 16 months from now). Once all states have prepared estimates, this total is likely to grow. Thus, significant state shortfalls are expected to persist into the future.• See, Wall St. Journal, March 30, 2011: 4
  5. 5. Economic Environment 5
  6. 6. Regulatory Environment• Transfer Pricing: Pricing between two controlled entities for cross- border transactions of tangible goods, intangible property (“IP”), services, financial arrangements, and global dealings• Arm’s-Length Principle: Prices charged among related entities should be consistent with those that would have been charged between independent parties, under the same circumstances• Comparability: Evaluation of all factors that could affect prices or profits including (i) functions, (ii) contractual terms, (iii) risks, (iv) economic conditions, and (v) assets employed• Best Method: Method producing most reliable measure of arm’s- length result for tangible goods, intangible property, services, and financial transactions• Tested Transaction (or Party): The price or profit measure of the entity under evaluation• Interquartile Range and PLIs: Range of “profit level indicators” for comparable companies within which profits of a tested party should fall 6
  7. 7. Regulatory Environment• TP101: Relevant to intercompany transactions and transfers of profit for goods, services, intangibles, financial arrangements, and global dealings (financial institutions) across any fiscal border – Pervasive to most International Tax and State and Local Tax (“SALT”) planning structures and compliance issues, to capitalize on opportunities that can increase a company’s earnings per share – Global proliferation of Transfer Pricing regulations, documentation requirements, penalties, and enforcement – Increased scrutiny of intercompany pricing principles (e.g., associated with FIN 48), and information sharing among tax authorities 7
  8. 8. Regulatory Environment• Internal Revenue Code (“IRC”) § 482 – IRS has power to allocate gross income, deductions, credits, or allowances between or among related entities if true taxable income is not reported – In the case of any transfer of intangible property, the income with respect to such transfer or license shall be commensurate with the income attributable to the intangible• OECD’s Transfer Pricing Guidelines adhere to similar arm’s-length principles, which are followed by most U.S. trading partners 8
  9. 9. Regulatory Environment• Treas. Reg. § 1.6662-6(b) and (c) impose transfer pricing penalties – 20% of additional tax owed – Substantial Valuation Misstatement • Reassessment of income exceeds $5 million, or 10% of an entity’s revenues • Transfer price is 50% or less, or 200% or more of an arm’s-length price – 40% of additional tax owed – Gross Valuation Misstatement • Reassessment of income exceeds $20 million or 20% of entity’s revenues • Transfer price is 25% or less, or 400% or more of an arm’s-length price• Treas. Reg. § 1.6662-6(d) outlines 10 documentation requirements for transfer pricing purposes, which must be: – Prepared contemporaneous with filing a company’s tax return – Produced within 30 days of IRS request; reasonable cause and effort exception 9
  10. 10. Assess Opportunities And Exposures• Domestic and foreign considerations – U.S. company sets intercompany prices too low, leaving excess profit in foreign jurisdictions (off-setting adjustments can only be made across transactions between same legal entities) – Conversely, prices from an off-shore affiliate to a U.S. subsidiary could have been set too low, rendering a potential foreign tax exposure – U.S. perspective: an arm’s-length results can be determined and be presented on a timely filed U.S. tax return in accordance with Treas. Reg. § 482-1, even if transactions had not occurred at arm’s length – Pros: avoids potential reallocation of income, transfer pricing penalties, and interest charges in the United States – Cons: produces potential double taxation, which can be resolved by Competent Authority or Mutual Agreement Procedure (“MAP”), and creates potential FIN 48 disclosure issues 10
  11. 11. Assess Opportunities And Exposures• Domestic and foreign scenarios (cont’d) – Assurance and tax considerations • Adjustments to prices and deviations from historical treatment are not readily accepted, and could cause local country preparer liability and potential audit exposure issues • Early, anticipatory, and educational coordination and is encouraged to set expectations – Regulatory financial reporting issues • Required estimated corporate filings (e.g., quarterly) may need adjustments • Estimated tax payments may need to be adjusted • Custom duties and reimbursement/payments should be made • Value-added tax ramifications need to be considered 11
  12. 12. Assess Opportunities And Exposures• When arm’s length is not arm’s length – Companies often – incorrectly – believe prices to third-party customers are arm’s length (i.e., “comparable uncontrolled prices”) for intercompany pricing purposes, without adjustments • Functional (e.g., commissionaire/agent v. distribution) • Operational differences (e.g., marketing, research and development, maintaining customer relationships) • Terms of trade (e.g., payment and shipping terms) • Warranty, liability, foreign exchange risks • Geographical markets (e.g., market maturity, competition) • Market levels (e.g., OEMs, wholesale, retail) • Industry (i.e., end markets) • Accounting conventions (i.e., GAAP v. IFRS) 12
  13. 13. Emerging IP Issues• Growing trend among BRIC nations to extend taxing jurisdiction and concomitant adoption of inconsistent treatment of structuring transactions• Growing scrutiny domestically of IP migrating structures. See, Joint committee on Taxation, Present Law and Background Related to Possible Income Shifting and Transfer Pricing (JCX-37- 10), July 20, 2010• Structured advance pricing agreement (“APAs”) and use of the Competent Authority Process• Joint taxing jurisdictional studies combined with greater transparency as a result of uncertain tax position disclosure• State conformity issues 13
  14. 14. Polling Question #1Transfer Pricing is relevant to Intercompany transactions and transfers of goods, services and intangibles.A) TrueB) False 14
  15. 15. Pre-audit planning• Corporate income tax – current state issues o Nexus – multistate – Payroll nexus » Computer matching of employees due to payroll withholding, state SUI – Sales receipts nexus » Bright line gross receipts tests in CA, OH, MI, TX – Business location nexus » “Holding out” as an office location • Means nexus in NY • No nexus in CA for a home business office 15
  16. 16. Pre-audit planning• Internet based businesses – potential income tax nexus – Call center – Server – Back-up/disaster recovery vendor – Co-location equipment – Software developers – 1099 or employee• But some states may allow Internet businesses limited income tax immunity. New York: no person will be subject to the corporation franchise tax solely by reason of having its advertising stored on a server or other computer equipment located in New York (other than a server or other computer equipment owned or leased by such person) or having its advertising disseminated or displayed on the Internet by an individual or entity that is subject to the corporation franchise tax. 16
  17. 17. Pre-audit planning• Sales taxes and gross receipts taxes• Out of state seller scrutiny (Amazon.com “agency”) » NY, RI, NC “click-through” sales tax nexus• Gross receipts tax states caution – no P.L.86-272 immunity: – Shipments into TX, MI, OH – Cost of goods sold (TX) versus purchases from other entities (MI). – Ultimate destination (OH) 17
  18. 18. Pre-audit planning• Service providers – States moving from “cost of performance” based taxation to “market based” – The California Franchise Tax Board has released new rules specific to what constitutes “doing business” in California for purposes of the California franchise tax. These rules implement the so-called “factor presence” doing business test enacted in 2009 by California Rev. & Tax Code §23101(b). Sales over $500K triggers nexus • Taxpayer makes irrevocable election to file on market vs. cost of performance based allocation. – Beginning in 2009, sales of services are in Illinois if the services are received in Illinois. 18
  19. 19. Pre-audit planning• “Economic nexus” - Courts, administrative tribunals, and tax administrators have embraced Geoffreys theory that an economic rather than a physical presence can satisfy the Commerce Clauses “substantial nexus” requirement .• Geoffrey involved creation of tax-motivated corporate structures employing related-company transactions to reduce corporate income tax liabilities• The Federation of Tax Administrators advised its members that “the case could become a basis for other state courts to hold companies subject to income and franchise taxes on the basis of economic presence. Companies particularly at risk would be those who provide services, such as financial institutions, and brokers.” 19
  20. 20. Pre-audit planning• MBNA Bank -- West Virginia (MBNA, 220 W. Va. 163, 640 SE2d 226, 236 (2006) , cert. denied, 551 US 1141, 127 S. Ct. 2997 (2007). Applying the economic nexus test, the court concluded that MBNA continuously and systematically engaged in direct mail and telephone solicitation and promotion in West Virginia. Moreover, it had significant gross receipts attributable to West Virginia customers.• Connecticut: As of 2010, a statutory economic nexus standard applies, which is not based on physical presence. A company that engages in active solicitation of Connecticut residents and has significant receipts ($500,000 or more per year) has nexus. 20
  21. 21. Pre-audit planning• Connecticut Information Pub. No. 2010(29.1), 12/12/10 provides three examples of economic nexus: a Midwest Bank soliciting residents; an online financial services firm; and a car loan corporation loaning to customers purchasing at dealerships in CT.• New York: credit card banks are doing business if the bank has – Issued credit cards to 1,000 or more customers with a NY mailing address; or – Merchant contracts that total 1,000 or more locations; or – The sum of customers and merchants is 1,000 or more; or – Receipts of $1 million or more from NY customers – Note: receipts from processing transactions are included 21
  22. 22. Pre-audit planning• How is your system sourcing receipts – Bill to – Ship to – Commercial domicile of customer – Consignment sales – FOB terms – Sourcing bundled transactions – software delivery with telephone or on-line maintenance services – Software delivery bundled with market data/information services 22
  23. 23. Pre-audit planning• How is the system documentation conveyed to the Tax Department – State apportionment schedules – Prior audit history• “Inconsistent” positions? – State tax statues with different sourcing rules – Difference in taxing schemes – “Benefit of the services” versus “cost of performance”• State amnesties and voluntary disclosure 23
  24. 24. Pre-audit planning: sales/use tax• Nexus planning – May trigger sales tax nexus with no corporation tax nexus – PL 86-272 protection unavailable for sales tax – Can be liable for unbilled sales tax – Caution where business model is Internet driven/cloud computing nexus can be triggered by employee in state despite intangible product delivery – Information services can be taxable --- 16 states 24
  25. 25. Pre-audit planning: sales/use tax• Sales tax registration – Officer/responsible party disclosure of social security numbers – Non-US responsible parties with no SSN – Current “responsible parties” listed on state tax registration documents? – LLC’s – who is the responsible member• State amnesties and voluntary disclosure• Compliance as an exit strategy 25
  26. 26. Managing the audit life-cycle– State’s process in designating audit targets • Industry programs • Auditor expertise & specialization – New York – separate Sales/Use and Corporation Tax audit – New Jersey – auditors perform global audit of all taxes • Voluntary disclosure programs 26
  27. 27. Managing the audit life-cycle – Third party auditors• “Bounty Hunters” and Contingent fee auditors – Washington, D.C., New Jersey, Kentucky, Louisiana, and Alabama have entered into contracts with a “bounty hunter” firm resulting in assessments that can reach $200 million. These assessments are based on “transfer pricing” audits that may ignore a taxpayer’s tax return and instead focus on estimating a taxpayer’s income attributable to a jurisdiction by examining financial statements and other publicly available data. . 27
  28. 28. Managing the audit life-cycle – Third party auditors• The trend to allow for contingent-fee audits could spread given the support by private audit firms coupled with state budget pressures to downsize government agencies and the pressure to raise needed tax revenue• Contingent-fee-based auditors are supporting legislation in several states that would require state tax agencies to enter into contingent-fee audit contracts.• Contingent-fee audits are viewed by corporate taxpayers (and some courts) as unfair, hostile, and bad public policy because the auditors have a financial stake in the outcome of the audit. 28
  29. 29. Managing the audit life-cycle• Pre-audit planning – What issues arose last audit; and, in other states – Was the filing position changed to conform to the audit result – Identify exposure • Expense purchases from out of state • “American Express” purchases lacking Invoice documentation • Reimbursed expenses lacking documentation • Leasehold improvements • Fixed asset additions • Sales: “bundled” transactions, sourcing, application of proper tax rates, etc. 29
  30. 30. Managing the audit life-cycle• Initial contact – Value of meeting at representatives’ offices versus premises of taxpayer – Manufacturing exemptions – Statutes of limitation -- executing waivers – Description of the taxpayer’s business • Website information readily available to the government • State access to various data bases provides auditors with information• Working with the supervisor – “Do’s and don’ts” 30
  31. 31. Documentation Provided toAuthorities• Timely fulfillment of document requests – Pace and timing – Execution of waivers of statutes of limitation – Value of cordial relationship – Negotiate issues as they arise, do not anticipate – Regulate auditor’s access to information • Electronic records – a two edge sword – Freedom of Information Requests 31
  32. 32. Documentation Provided toAuthorities• Sales tax – Documentation of sales • Invoices • “Bundled” services • Tax separately stated • “Gratuities”, shipping & handling, etc. included in tax base – Use tax documentation • Expense purchases on Amex frequently not documented with corresponding invoices 32
  33. 33. Documentation Provided toAuthorities • “Overlapping audit” documentation • A note on responsible parties – For sales taxes New York requires separate waiver against responsible party (Bleistein case – New York State) – A “member” of an LLC can be automatically a responsible party 33
  34. 34. Documentation Provided toAuthorities• Corporation tax • Documenting “add-backs” – Documenting arm’s length payments » Royalties » Inter company services, rent, etc. • Separate filing states • Combined return states – New York State & City » Documenting indirect & direct expenses attributable to • Subsidiary capital • Investment capital 34
  35. 35. Documentation Provided to Authorities• 50 –State apportionment data – No rule that numerators add to 100% - “nowhere income” – May not be required to provide to auditor• Request for tax accrual work papers – U.S. v. Textron (!st. Cir., en banc, 2009) held that a taxpayer’s tax accrual work papers were not protected under the work product doctrine. The IRS was accordingly entitled to the work papers in conducting its tax shelter investigation.• Accounting firm’s opinion on structuring a sale – Mass. Comm’r of Revenue v. Comcast Corp. (Mass. 2009) held that certain memoranda prepared by an accounting firm were protected from disclosure because the taxpayer had the prospect of litigation in mind when it requested advice, and but for the litigation the memoranda would not have been generated. 35
  36. 36. Documentation Provided toAuthorities• Documentation created to comply with FASB ASC 740-10-25 (FIN48) – Considered part of tax accrual work papers. See, IRS Chief Counsel Memo AM 2007-0012 (Mar. 22, 2007).• Documentation establishing the record for potential appeal 36
  37. 37. Post audit planning• Dealing with the auditor, supervisor and government – Resolving errors and areas of disagreement – Evaluating alternatives – Adversarial tone versus cooperation • Understanding the government’s audit programs, revenue situation, likelihood of settlement 37
  38. 38. Post audit planning• Protesting the assessment – Payment and refund? – Interest costs – Costs of litigation – Settlement options to be analyzed – Understanding the timing and duration of potential appeals – Future options for resolution after protest – A means to identify nexus issues and audit exposure 38
  39. 39. Polling Question #2“Economic nexus” refers to deriving income from a state under an inter-company franchise agreement with a franchisee in the statea) Trueb) False 39
  40. 40. Federal Audit Trends of High Net Worth Individuals• Name of the Game: Close the Tax Gap• Playing the IRS audit Roulette – Audits of Individuals earning in excess of $10 million increased by 73% in 2010 – Audits of individuals earning between $5 to 10 million, increased by 54% in 2010 – Audits of individuals earning over $1 million increased 15% in 2010 • 1 out of every 12 individuals were audited through the Wage and Investment Division or the Small Business/Self-Employed Division – IRS audited 1.58 million tax returns in 2010, or about 1.11% of returns it received. – IRS audits are double what they were in 2010
  41. 41. How has the IRS Focused on the High Wealth Client?• Global Tax Compliance Focuses on High Net Worth Taxpayers. – 2008 Study with Foreign Tax Administration with 14 countries participating with report published in September 2009 – “Engaging with High Net Worth Individuals on Tax Compliance” – Study recommended the following: • Understand aggressive tax planning • Creating a dedicated examination unit with industry expertise • Utilization of global information sharing – Why focus on HNW Taxpayers? • Often create complex and intricate business structures • Pay large portion of total income tax compared to population • High income taxpayers lead to aggressive tax planning
  42. 42. IRS Global High Wealth Industry Group Formed in 2009• IRS announced the formation of group in 2009 “to take a unified look at the entire web of business entities controlled by high wealth individuals which will enable the IRS to better assess the risk such arrangements pose to tax compliance and the integrity of the tax system”• A subset of the Large Business & International group and staffed with revenue agents, international examiners, and flow – through specialists; including interaction with industry specialists, economists, and valuation specialists• Group is coordinated through Chief Counsel’s Office• Holistic Examination Approach with overwhelming IDR – Audits are set up like large case business audits with a hierarchy of government team managers
  43. 43. Scorecard of the High Wealth Taxpayer Program• GHW had 2 audits in FY 2010• 11 audits in FY 2011• 78 out of 5,655 agents have been assigned to the Global High Wealth Industry Group (1.4% of total revenue agents of L B &I) – IRS official at recent conference indicated that group is staffed with 100 employees who are investigating 250 business entities with 40 active cases• For FY 2011, agency has targeted 122 returns with 11 GHW returns reviewed in FY 2011• Commissioner Shulman has publicly stated that the HWTP is a “game –changing strategy for the IRS that will give the agency a unified look at the entire complex web of business entities controlled by a high net worth individual.• Information reported by Transactional Records Access Clearinghouse (TRAC) through end of March 2011.
  44. 44. Trend Towards Increased Transparency• Increased Transparency with FATCA Compliance in Effect for Returns filed after March 18, 2010• Final FBAR Rules Broaden Taxpayer reporting especially for employees and officers with signature authority• Basis Reporting to IRS required in 2010 Good News: Obama signed into law on April 14,2010 H.R. 4 which repealed the requirement for businesses to file Form 1099 for payments of goods and services aggregating at least $600 to a single payee (including corporation) beginning in 2012.
  45. 45. Key Trends in Individual Tax Enforcement• Desk Audits increasing• Whistle blower Statute (IRC section 7623(b)) – Enacted as part of Taxpayer Relief and Heath Care Act of 2006 • Permits larger payouts in case of a reported individual whose gross income exceeds $200,000 and the amount of tax (plus penalties, interest, and additions to tax) in dispute exceed $2 million. • IRS must issue an award amount between 15 to 30 percent of the collected proceeds • First enhanced whistleblower award paid in 2011• IRS is examining unregulated tax return preparer market to identify ghost preparers – 700,000 paid preparers have registered with IRS for PTIN, expectation of 1 million to 1.2 million preparers
  46. 46. Key Trends in Individual Tax Enforcement• Use of John Doe Summons under IRC section 7602 – Global Banks (UBS & HSBC) – California State Board of Equalization for information on intra-family property transfers to focus on gift and estate tax non-compliance• Exchange of Information Agreements entered into with 70 Countries – US Treasury Department announced the entry into force of the Agreement with Panama – Agreements with Monaco, Gibaltar, and Liechtenstein have gone into effect• Joint Tax Audits (currently 3 cases cited)• IRS Offshore Voluntary Disclosure Program (Round two)
  47. 47. OVDI Program Summary• IRS announced program on February 8, 2011 with guidance in form of FAQ.• Complete submission by August 31, 2011 (Revenue Agent assigned after package is completed) – Original, Amended, and prior amended tax returns – Informational returns, e.g., 5471, 3520 – FBARs for 2003-2010 – Foreign Bank statements for accounts > 500K, otherwise accounts must be made available upon request – Signed statute extensions (tax and FBAR)/special POA• Payment of Tax, interest, accuracy related penalty and if applicable failure to file and pay penalties are required with submission – IRS will work out a deal if genuine financial hardship• Compliance Nightmare- Must file back returns starting in 2003- 8 years under the new program- Agreeing to the assessment of tax and penalties for all years is part of the resolution offered in order to get the reduced penalty.
  48. 48. Offshore Penalty Framework (5%, 12.5%, 25%)• 5 percent penalty applies also if a Foreign resident was unaware of U.S. citizenship• 12.5% Penalty- Penalty for Accounts less than $75,000• 25% Penalty – Applies to all offshore holdings that are related to tax non- compliance regardless of form and character of assets • Includes real estate, art or intangible assets • Undisclosed business accounts and entire value of a foreign business potentially included in penalty regime • Tax non-compliance includes failure to report income from asset and failure to pay US tax with respect to funds used to acquire • Foreign real estate can be included in penalty base if real estate purchased with offshore funds even prior to 2003 – Global balance sheet review will be required under this program – No de minimus exceptions to unreported income (Q&A 33) • Even a $1 of tax could face a multi-million penalty
  49. 49. Offshore Penalty Framework (5%, 12.5%, 25%)• 5 Percent Offshore Penalty – Taxpayer did not open account • Exception if bank required a new account to be opened upon the death of the account owner – Taxpayer exercised only “minimal, infrequent contact” with account – No withdrawals or deposits over $1,000 in any year, and – Can demonstrate all applicable US taxes paid on principal amount in account (with a presumption applied for deposits prior to January 1, 1991) – “Hold Mail” and participation in investment decisions will disqualify from 5% penalty.
  50. 50. Opportunity to Avoid Penalty on International Compliance Failures• Last Chance Opportunity to Avoid Penalty at No Cost. – Taxpayers failing to file foreign informational returns but who have reported all income and paid the tax with respect to the transactions related to CFC or foreign trust, for example, can file the late returns without penalty so long as the returns are filed by August 31, 2011. – Those who have reported and paid tax on all income but did not file FBARs can file FBARs with Detroit with a reasonable cause explanation . Now is the time to review cross-border transactions an investments to determine whether there are any reporting failures before the IRS initiates any audits
  51. 51. High Risk Areas for IRS andState Individual Examinations– Failure to substantiate business expenses and deduction of business expenses prior to becoming a going concern– Failure to keep track of tax basis of asset sold– Failure to keep diary of time to prove material participation in a business or qualifying real estate professional– Hobby Loss Dispute– Failure to substantiate charitable expenses– Failure to Transfer Title to Trusts or to Charity– Failure to Keep Diary if performing services abroad– Section 911 Exclusion– Failure to File foreign informational reporting including FBARs (TD 90-22.1)– Failure to obtain qualified appraisals on gift and estate tax transfers– Residency audits (day count & permanent abode)
  52. 52. Polling Question #3The government can request documentation of inter-company and inter-state transactions when these work-papers are prepared for tax accrual purposesa) Trueb) False 52
  53. 53. Four Myths and Facts Corporate and Individual Tax Controversies 53
  54. 54. Representation -- POA• Myth One: Handle the audit in-house. If we retain a representative, it makes us look guilty. – Fact: Today’s tax environment is complex and laws, rules and policies are subject to interpretation. The government is quite accustomed to dealing with representatives. A representative can be a valuable “buffer”. 54
  55. 55. Technical proficiency• Myth Two: Everyone reads the same tax code and cases. The “law is the law” -- It makes little difference which representative might be selected – Fact: How the rules are applied to your specific company and industry – including the unwritten rules -- may make the difference between winning and losing a tax controversy. 55
  56. 56. Know your industry• Myth Three: The government holds all the cards. It has all the power and the resources to exhaust you. – Fact: There is an advantage to the taxpayer who is more aware than the auditor of the unique business, contract, accounting, and billing practices of their special industry. Specific practices can often dictate the tax result – it may be a matter of educating the auditor. 56
  57. 57. Winning on principle• Myth Four: Always defend the principle and if necessary, pursue a case on principle through hearings and appeals. – Fact: From time to time, issues of principle can arise where the auditor is taking a novel position, trying out an untested “ad hoc” theory, or simply being arbitrary. Know when to agree or disagree. It’s a judgment call whether to resolve a case or appeal it, when a principle is at stake 57
  58. 58. Polling Question #4Those who have reported and paid tax on all income but did not file FBARs cannot file FBARs with a reasonable cause explanationa) Trueb) False 58
  59. 59. QUESTIONS?Jon Zefi LL.M., J.D., M.B.A. Brent S. Lipschultz, CPA, J.D, LL.M.Principal Tax PartnerEisnerAmper LLP EisnerAmper LLPp: 212-891-4064| f: 646-885-4286 p. 212.891.4190 | f: 646.885-4414e: jon.zefi@eisneramper.com e: brent.lipschultz@eisneramper.com : Stephen J. Bercovitch, J.D. Director EisnerAmper LLP p: 347-735-4611| f: 212-682-7919 e: stephen.bercovitch@eisneramper.com 59
  60. 60. EisnerAmper LLP is an independent member firm of PKF International Limited

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