Calling the IRS? Good Luck! (Because You Will Really, Really Need It)

I need to speak with the IRS regarding four clients. Unfortunately, I need to speak with three different departments within the IRS for these clients. I’ve been attempting to reach the IRS for over a week first thing in the morning (7am PST), late in the day (2-3pm PST), and in the middle of the day (sometime between 10am and 12n PST). In almost all cases I’ve heard this message:

We’re sorry, but due to extremely high call volumes in the topic you’ve chosen we cannot take your call at this time. Please try your call again later.

I did manage to get a human this afternoon. Exactly 3 minutes into my call he vanished, I heard a click, and the call ended. He did not call me back.

For two of my clients, I may be forced to write letters even though the issues are (theoretically) easily resolvable by a phone call. Instead, they’ll likely go in the 5+ million pieces of mail sitting in a trailer and the clients will have to wait (probably a year) for a response, and might have to send another letter.

And I’m calling numbers that are designed for tax professionals with theoretically less hold time. It’s basically impossible to get through on the regular numbers. I tried calling the international IRS contact number and received a busy signal; that’s the first time that’s ever happened to me. For individuals needing tax assistance regarding information from the IRS, the lyrics from Man of La Mancha’s “Impossible Dream” come to mind: “To dream the impossible dream….”

I realize the IRS (along with all of us) are dealing with Covid-related issues. However, this performance is simply unacceptable. I have clients who may be subject to levies who have filed appeals (thus, they are not supposed to be subject to levies) and I cannot speak to anyone at the IRS to have collection activities stopped on their accounts. The IRS can verify this easily during a phone call. But I can’t reach a human.

I am extremely frustrated by this. And there’s no end in sight to this horrible customer service. There’s plenty for the IRS’s new “Chief Taxpayer Experience Officer,” Ken Corbin, to deal with.

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The Looming AUR Disaster from Fraudulent Unemployment Insurance Claims

A story I saw from a Sacramento television station noted that California’s Employment Development Department (EDD) processed millions of fraudulent unemployment insurance claims; indeed, EDD has no idea how many fraudulent claims were filed. EDD is now mailing out Forms 1099-G to note the unemployment paid (unemployment is taxable on the federal level). The Sacramento television station notes that individual who receive a fraudulent 1099-G from EDD should file a fraud claim with EDD so that (hopefully) EDD will issue a corrected 1099-G showing $0 paid in unemployment. Given it’s next to impossible to call EDD and reach a human, I wish you the best of luck in that.

But the story misses the point: Few, if any, of the fraudulent 1099-G’s will be received by the true holder of the social security number. Most of these fraudulent unemployment claims were filed with phony addresses, so the erroneous 1099-G’s being mailed out will be returned to the EDD.

Instead, what’s going to happen is that about 15 months after John & Jane Doe file their tax return (correctly noting their income), the Does will receive an Automated Underreporting Unit (AUR) notice alleging that they didn’t include their unemployment benefits from the EDD on their tax return. The Does will have to write to the AUR unit noting that the information is false. Will the AUR unit realize the issue? The AUR unit does a good job when you point out that the income was reported on the return (and the computer simply missed it). In my experience, the AUR unit does a poor job when you’re trying to show a tax form is wrong: proving a negative is difficult.

I suspect that non-Californians will have an easier time dealing with this issue than Californians. The AUR unit is far more likely to believe that the Does, living in (say) Illinois didn’t receive unemployment from California.

And it’s not just California that was victimized by this fraud. There were news stories of it here in Nevada, and I assume that other states were impacted, too. The fraud will likely lead to a lot of AUR notices in late 2022 to 2023.

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SBA Releases New Simplified Forgiveness Form for PPP Loans

When Congress passed the budget reconciliation act that contained the second Covid-related stimulus, one piece of the legislation was a simplified form for Paycheck Protection Program (PPP) loan forgiveness. Late yesterday, the Small Business Administration released the newest version of Form 3508S, the form that borrowers will need to complete.

This form can only be used if the amount of the PPP loan was $150,000 or less. The form is far easier to complete than the Form 3508EZ and should make applying for forgiveness far easier. It will likely be a few days before lenders are ready to accept the new Form 3508S. (One SBA website states that the Form 3508S can only be used for loans of $50,000 or less; that is wrong. I expect that website to also be corrected in the next few days.)

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Nevada Tax Amnesty

The Nevada Department of Taxation sent out an email with details on Nevada’s tax amnesty program. You’re thinking, “Taxes in Nevada? There are no income taxes in Nevada.” And that’s absolutely correct, but many businesses do pay taxes in Nevada. The amnesty covers:

Sales and Use Tax, Modified Business Tax, Cigarette Tax, Other Tobacco Products Tax, Liquor Tax, Bank Branch Excise Tax, Insurance Premium Tax, Tire Tax, Live Entertainment Tax (non-gaming), Short Term Lessor (Passenger Car Governmental Service Fee), Exhibition Facilities Fees, Commerce Tax, Transportation Connection Tax, Wholesale Marijuana Excise Tax, Retail Marijuana Excise Tax, Centrally Assessed Property Tax, and Net Proceeds of Mineral Tax.

The amnesty program doesn’t cover all taxes (lodging, real property transfer tax, and locally assessed property taxes are among the taxes not covered by the amnesty.

The amnesty program allows penalty and interest to be waived providing the outstanding tax delinquency meets the following criteria:

  1. The tax was due and payable on or before 6/30/2020, which includes:
    • All monthly tax returns due on or before June 30, 2020
    • All quarterly tax returns due on or before April 30, 2020
    • All annual tax returns due on or before January 31, 2020
  2. The delinquent tax amount is paid in full for the period. If a taxpayer has several delinquent returns but is only able to pay one or more periods, the penalty and interest may be waived for each period provided the tax was paid in full and;
  3. The delinquent tax is paid during the amnesty period of February 1, 2021 and May 1, 2021.

The amnesty begins on February 1st and runs three months. Interested taxpayers should read the Nevada Department of Taxation notice and the FAQ.

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2021 Tax Season to Begin on Friday, February 12th

I have been asked by several clients when they can efile their 2020 tax returns. In most years, tax filing begins in late January. But not this year:

The Internal Revenue Service announced that the nation’s tax season will start on Friday, Feb. 12, 2021, when the tax agency will begin accepting and processing 2020 tax year returns.

The Feb. 12 start date for individual tax return filers allows the IRS time to do additional programming and testing of IRS systems following the Dec. 27 tax law changes that provided a second round of Economic Impact Payments and other benefits.

The IRS is delaying the start of tax filing because of changes to the Tax Code made with the December 27, 2020 tax law changes.

Today happens to be the date that IRS “Free File” begins. However, returns prepared using Free File will not be transmitted to the IRS until February 12th.

As of today, the deadline for filing individual tax returns remains Thursday, April 15th.

UPDATE: A friend reminds me that just because tax returns cannot be filed until February 12th does not mean you should wait on (a) sending return information to your tax professionals and (b) starting work on your 2020 tax returns. Do not wait!!! This is not going to be a fun Tax Season for tax professionals. Get your return paperwork to your tax professionals ASAP. Most tax professionals encourage you to send your tax documents (i.e. 1099s, W-2s, etc.) as you receive them–so do so!

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Final 2020 Estimated Tax Payment Due on Friday

The fourth quarter estimated tax payment for individuals and trusts/estates is due this Friday, January 15th. If you make estimated payments (Form 1040-ES and the state equivalents) you should either mail your payment (using certified mail, return receipt requested) on or before January 15th or pay electronically using EFTPS (requires pre-enrollment) or IRS Direct Pay. Don’t forget your state and local estimated payments (if required); most states have webpay systems that you can use.

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IRS Issuing Erroneous CP14 Notices

One of our clients received a CP14 Notice alleging she owed the late payment penalty (“Failure to Pay under Internal Revenue Code Section 6651). The notice noted he had an unpaid balance of $583 as of July 15, 2020 on 2019 tax of $8,855. The late payment penalty is assessed on the unpaid balance as of the tax filing deadline. If you have paid 90% of the tax due by the tax filing deadline, there is no late payment penalty.

If you do the math you will see that my client paid $8,272 of the $8,855 she owed, or 93.4%. That’s more than 90%, so the late payment penalty should not have been charged. I spoke with an individual at the Practitioner Priority Service (PPS), and this is the second such case he’s seen. However, it’s not happening with all such individuals as another client with a similar balance due did not receive a CP14 notice.

As we tell all of our clients, do not assume a notice from the IRS is correct. Indeed, the last study on IRS notices shows that about two-thirds of IRS notices are wrong in part or in whole. If you have any doubts, ask your tax professional.

In this case, the helpful individual at PPS reversed the penalty, so my client doesn’t need to pay anything. Still, it would be better if the IRS didn’t issue erroneous notices but given everything that happened during 2020 some hiccups are to be expected.

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Clarity on Whether Cryptocurrency Must be Reported on the FBAR

A vexing question has been whether or not foreign cryptocurrency exchanges must be reported on the FBAR. At a conference in 2019, a representative from FINCEN said no; however, the instructions on the FBAR imply they should be reported.

At the very end of December, FINCEN issued Notice 2020-2:

Currently, the Report of Foreign Bank and Financial Accounts (FBAR) regulations do not define a foreign account holding virtual currency as a type of reportable account. (See 31 CFR 1010.350(c)). For that reason, at this time, a foreign account holding virtual currency is not reportable on the FBAR (unless it is a reportable account under 31 C.F.R. 1010.350 because it holds reportable assets besides virtual currency). However, FinCEN intends to propose to amend the regulations implementing the Bank Secrecy Act (BSA) regarding reports of foreign financial accounts (FBAR) to include virtual currency as a type of reportable account under 31 CFR 1010.350.

So today a foreign cryptocurrency exchange that has solely cryptocurrency does not have to be reported on the FBAR. However, let’s say you use HypotheticalForeignCrypto.com, and you had any ‘cash’ balance of any fiat currency in your account during the year and you otherwise meet the FBAR filing requirements; that account would have to be reported.

Additionally, this does not change the FATCA (Form 8938) reporting rules. For purposes of IRS Form 8938, a foreign cryptocurrency exchange still must be reported.

Finally, it’s clear from the notice that FINCEN will soon be issuing a regulation that states that a foreign cryptocurrency exchange must be reported. That likely won’t impact 2020 FBARs but will probably impact 2021 FBARs (filed in 2022).

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It’s Time to Generate 2020 1099s

It’s time for businesses to send out their annual information returns. These are the Form 1099s that are sent to to vendors when required. Let’s look first at who does not have to receive 1099s:

  • Corporations (except attorneys)
  • Entities you purchased tangible goods from
  • Entities you purchased less than $600 from (except royalties; the limit there is $10)
  • Where you would normally have to send a 1099 but you made payment by a credit or debit card

Otherwise, you need to send a Form 1099 to the vendor. The best way to check whether or not you need to send a 1099 to a vendor is to know this before you pay a vendor’s invoice. I tell my clients that they should have each vendor complete a Form W-9 before they pay the vendor. You can then enter the vendor’s taxpayer identification number into your accounting software (along with whether or not the vendor is exempt from 1099 reporting) on an ongoing basis.

This year will be the first year we’ll be using the new Form 1099-NEC to report nonemployee compensation instead of reporting this on Form 1099-MISC. Form 1099-NECs have a filing deadline of February 1, 2021 (for reporting 2020 nonemployee compensation). Form 1099-MISCs are used for all other 1099 reporting except interest, dividends, capital gains, etc. Payments of rent, royalties, advertising, crop insurance proceeds, substitute payments in lieu of dividends, attorney proceeds, other income (including gambling winnings not reporteable on a Form W-2G), and nonqualified deferred compensation are just some of the items reported on a Form 1099-MISC.

Remember that besides the 1099 sent to the vendor, a copy goes to the IRS. If you file by paper, you likely do not have to file Form 1099-MISC with your state tax agency (that’s definitely the case in California). However, if you file 1099s electronically with the IRS you most likely will also need to file them electronically with your state tax agency (again, that’s definitely the case in California). It’s a case where paper filing might be easier than electronic filing.

IMPORTANT: The IRS is not sending Form 1099-NECs to state tax agencies. Thus, if you have a state filing requirement for your Forms 1099-NEC, you must separately file this with your state tax agency.

If you wish to file paper 1099s, you must order the forms from the IRS. The forms cannot be downloaded off the Internet. Make sure you also order Form 1096 from the IRS. This is a cover page used when submitting information returns (such as 1099s) to the IRS. WARNING: It is taking the IRS months to fill these orders. We ordered our paper 1099s in October; we have yet to receive them. It is likely too late to order them from the IRS and meet the February 1st deadline. Most tax professionals have software that can file 1099s directly with the IRS and state tax agencies; there are also services you can find that will do this for you.

Note also that sole proprietors fall under the same rules for sending out 1099s. Let’s say you’re a professional gambler, and you have a poker coach that you paid $650 to last year. You must send him or her a Form 1099-NEC. Poker players who “swap” shares or have backers also fall under the 1099 filing requirement (issuing form 1099-MISC).

Remember, the deadline for submitting 1099-NECs for “Nonemployee Compensation” (e.g. independent contractors) to the IRS is now at the end of January (though we get an extra day this year, because the 31st falls on a weekend): Those 1099s must be filed by Monday, February 1st.

Here are the deadlines for 2020 information returns:

  • Monday, February 1st: Deadline for mailing most 1099s to recipients (postmark deadline);
  • Monday, February 1st: Deadline for submitting 1099-NECs for Nonemployee Compensation to IRS;
  • Monday, March 1st: Deadline for filing other paper 1099s with the IRS (postmark deadline);
  • Monday, March 15th: Deadline for mailing and filing Form 1042-S; and
  • Thursday, April 1st: Deadline for filing other 1099s electronically with the IRS.

Remember, if you are going to mail 1099s to the IRS send them certified mail, return receipt requested so that you have proof of the filing.

Also note that most 1099s must be mailed to recipients. Mail means the postal service, not email. The main exception to this is if the recipient has agreed in writing to receiving the 1099 electronically. I consider this the IRS’s means of trying to keep the Post Office in business.

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It’s Time to Start Your 2021 Mileage Log


I’m going to start the new year with a couple reposts of essential information. Yes, you do need to keep a mileage log:

Monday will be the first business day of the new year for many. You may have resolved to keep good records this year (at least, we hope you have). Start with keeping an accurate, contemporaneous written mileage log (or use a smart phone app–with periodic sending of the information to yourself to prove that the log is contemporaneous).

Why, you ask? Because if you want to deduct all of your business mileage, you must do this! IRS regulations and Tax Court rulings require this. Written is defined as ink, so that means you need a paper log or must be able to prove your smart phone log is contemporaneous.

The first step is to go out to your car, and note the starting mileage for the new year. So go out to your car, and jot down that number (mine was 98,235). That should be the first entry in your mileage log. I use a small memo book for my mileage log; it conveniently fits in the center console of my car. It’s also a good idea to take a picture of the odometer and email that picture to yourself. This will give you a time-stamp showing you accurately noted your beginning mileage.

Here’s the other things you should do:

On the cover of your log, write “2021 Mileage Log for [Your Name].”

Each time you drive for business, note the date, the starting and ending mileage, where you went, and the business purpose. Let’s say you drive to meet a new client, and meet him at his business. The entry might look like:

1/4 90315-90350 Office-Acme Products (1234 Main St, Las Vegas)-Office, Discuss requirements for preparing tax return, year-end journal entries.

It takes just a few seconds to do this after each trip, and with the standard mileage rate being $0.56/mile, the 35 miles in this hypothetical trip would be worth a deduction of $20. That deduction does add up.

Some gotchas and questions:
1. Why not use a smartphone app? Actually, you can but the current regulations require you to also keep a written mileage log. You can transfer your computer app nightly to paper, and that way you can have the best of both worlds. Unfortunately, current regulations do not guarantee that a phone app will be accepted by the IRS in an audit.

That said, if you backup (or transfer) your phone app on a regular basis, and can then print out those backups, that should work. The regular backups should have identical historical information; the information can then be printed and will function as a written mileage log. I do need to point out that the Tax Court has not specifically looked at mileage logs maintained on a phone. A written mileage log (pen and paper) will be accepted; a phone app with backups should be accepted.

2. I have a second car that I use just for my business. I don’t need a mileage log. Wrong. First, IRS regulations require documentation for your business miles; an auditor will not accept that 100% of the mileage is for business–you must prove it. Second, there will always be non-business miles. When you drive your car in for service, that’s not business miles; when you fill it up with gasoline, that’s not necessarily business miles. I’ve represented taxpayers in examinations without a written mileage log; trust me, it goes far, far easier when you have one.

3. Why do I need to record the starting miles for the year?
There are two reasons. First, the IRS requires you to note the total miles driven for the year. The easiest way is to note the mileage at the beginning of the year. Second, if you want to deduct your mileage using actual expenses (rather than the standard mileage deduction), the calculation involves taking a ratio of business miles to actual miles.

4. Can I use actual expenses? Yes. You would need to record all of your expenses for your car: gas, oil, maintenance, repairs, insurance, registration, lease fees (or interest and depreciation), etc., and the deduction is figured by taking the sum of your expenses and multiplying by the percentage use of your car for business (business mileage to total mileage driven). Note that once you start using actual expenses for your car, you generally must continue with actual expenses for the life of the car. Be careful if you (or your family) have multiple vehicles. You will need to separate out your expenses by vehicle.

So start that mileage log today. And yes, your trip to the office supply store to buy a small memo pad is business miles that can be deducted.



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