The document discusses an upcoming webinar on tax audits that will provide an overview of the economic and regulatory environment for tax audits, the audit process including pre-audit planning, documentation, and post-audit planning, and myths about tax controversies. Attendees can receive CPE credits by participating in polls, remaining online for 50 minutes, and completing a post-event survey. The webinar will cover topics such as transfer pricing regulations, state budget shortfalls, and emerging issues around intellectual property.

1. Tax Audits:
Practice and Process
Brent Lipschultz
Jon Zefi
Stephen J. Bercovitch
April 26, 2011

2. Welcome
We 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. 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. 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. Economic Environment
5

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. 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. 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. 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. 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. 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. 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. 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. Polling Question #1
Transfer Pricing is relevant to Intercompany
transactions and transfers of goods, services
and intangibles.
A) True
B) False
14

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. 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. 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. 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. Pre-audit planning
• “Economic nexus” - Courts, administrative tribunals, and
tax administrators have embraced Geoffrey's theory that
an economic rather than a physical presence can satisfy
the Commerce Clause's “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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Documentation Provided to
Authorities
• 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. Documentation Provided to
Authorities
• 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. Documentation Provided to
Authorities
• “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. Documentation Provided to
Authorities
• 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. 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. Documentation Provided to
Authorities
• 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. 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. 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. Polling Question #2
“Economic nexus” refers to deriving income from a
state under an inter-company franchise
agreement with a franchisee in the state
a) True
b) False
39

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. High Risk Areas for IRS and
State 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. Polling Question #3
The government can request documentation of
inter-company and inter-state transactions
when these work-papers are prepared for tax
accrual purposes
a) True
b) False
52

53. Four Myths and Facts
Corporate and Individual Tax
Controversies
53

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. 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. 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. 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. Polling Question #4
Those who have reported and paid tax on all income
but did not file FBARs cannot file FBARs with a
reasonable cause explanation
a) True
b) False
58

59. QUESTIONS?
Jon Zefi LL.M., J.D., M.B.A. Brent S. Lipschultz, CPA, J.D, LL.M.
Principal Tax Partner
EisnerAmper LLP EisnerAmper LLP
p: 212-891-4064| f: 646-885-4286 p. 212.891.4190 | f: 646.885-4414
e: 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. EisnerAmper LLP is an independent member firm of PKF International Limited