FINCEN Announces Due Dates for 2016 FBARs

The Financial Crimes Enforcement Network (FINCEN) announced the due dates for 2016 Report of Foreign Bank and Financial Accounts (FBAR, Form 114). The FBAR will now be due on the same day as tax returns with an automatic extension for six months. There is no need to file a separate extension with FINCEN for the FBAR. Basically, this means the FBAR is now effectively due on October 15th.

The new rule was required per an act passed by Congress last year. Kudos to FINCEN in implementing this in the simplest, easiest-to-comply version that was possible.

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My E-Services Follies

The IRS is trying to become a bit more security conscious. As part of their efforts, the IRS is having all e-Services account users who use the IRS’s “Transcript Delivery Service” re-validate their identities. Letters are being sent to impacted tax professionals. I received such a letter last week so I had the joy of re-validating my identity.

The IRS wants tax professionals to do this online using the “Get Transcript” online registration. I started to do this, entering my name, address, date of birth, social security number, and tax filing status. The IRS system said the information I entered wasn’t correct. I tried again, making sure I didn’t make any typographical errors. It was correct. I hit “Enter” and, of course, the IRS said it was wrong. Further, because it was wrong they locked me out of the system for 24 hours.

So I called the IRS e-Services help desk to re-validate my identity. After being on hold for 30 minutes, a gentleman picked up, but told me his computer was down so he transferred me to someone else. The new hold time was going to be an hour, and I had an appointment, so this got pushed back a day.

The next day I tried again online. The IRS application accepted that I knew my name, address, and other information. It accepted that I knew my credit card number. It then sends you a text message on your phone. Just one step was left: Entering that number on the screen and I would be re-validated! I got the text just moments later, entered it in, and…the system crashed.

Well, if it worked once it would work again, right? Wrong. When I entered my name and other personal information the system told me I had mis-entered the information and it was locking me out. I called IRS e-Services. After being on hold for 21 minutes a woman picked up and was able to ask me the same questions that the IRS computer did (I also had to read a code off the letter I had received). I’m now validated as me!

Seriously, I’m underwhelmed by this process. This is a prototypical example of a kluge (“A Workaround or quick and dirty solution that is clumsy, inelegant, inefficient, difficult to extend and hard to maintain.”). There’s no reason the IRS system accepted my personal information only one of four tries (it was entered correctly all four times). There’s no reason it should crash as frequently as it does. If you’re an IRS e-Services user, maybe you’ll get lucky and be able to re-validate your identity online…but don’t count on it.

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How to Go to Jail

A few years ago, Steven Martinez won the coveted (not really) Tax Offender of the Year Award. His scheme was to tell clients that they had an amount due to the IRS and California. He then prepared a second set of tax returns showing a lesser amount due (or a small refund). He had his clients make checks out to his “client trust account.” He filed the second set of tax returns, and pocketed the difference. (He won the Tax Offender of the Year Award for hiring a hit man after his scheme was uncovered.) A New Jersey woman copied Mr. Martinez’s scheme (less the hit man, thankfully) with the expected result.

Doreen Gentile ran an accounting and tax practice in Toms River, New Jersey. As the Department of Justice press release notes,

Gentile admitted that as part of her scheme, she would show her clients a tax return that indicated that they had no tax or refund due, owed a minimal amount of tax, or were due a refund that was far less than the amount to which they were entitled. Gentile then prepared a second set of tax returns, signed without her clients’ permission, that she submitted to the IRS or the State of New Jersey for the full tax refund.

This was not a brilliant scheme by Ms. Gentile. Sooner or later one of her clients would be audited, or the client would obtain a transcript on their own; the return that was filed wouldn’t match their copy of the return. Indeed, inevitably this crime would be discovered and so it was. Ms. Gentile was indicted in 2014 and pleaded guilty to mail fraud and filing a false income tax return last year (she also didn’t include all of her income on her tax return—yes, the funds that were stolen were taxable income to her). She was sentenced earlier today to 37 months at ClubFed; she must also make restitution of $1,863,013.

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Former French Budget Minister Heading to Prison for Tax Evasion

We have yet another late nominee for Tax Offender of the Year. From Paris, France comes the story of Jérôme Cahuzac, former Budget Minister under President François Hollande and soon to be resident of the Bastille French Prison System.

The story begins in the 1990s. Then Dr. Cahuzac (a cosmetic surgeon) had a successful practice specializing in hair transplants. He was elected to Parliament in 1997. Around the same time, the Cahuzacs decided to move some money offshore. It’s apparent that French law here mimics US law: There’s nothing wrong with having foreign financial accounts; however, you better report them and the income you receive. That apparently didn’t happen. Meanwhile, Mr. Cahuzac was appointed to lead a finance commission for Parliament in 2010. In 2013 Mr. Cahuzac served as Budget Minister.

Unfortunately for Mr. Cahuzac, news of his foreign accounts came out. It was discovered later in 2013 he had a secret Swiss bank account for ten years (from 2000-2010). That led to his resignation in 2013. Mr. Cahuzac lied to the French Parliament, lied to the French government (not revealing another secret bank account—this one on the Isle of Man–that was used in moving €2.7 Million ($2.85 Million) to the Swiss bank account), and admitted his lies on his own blog. Oops! He was tried and convicted this past September for tax fraud.

Mr. Cahuzac received three years in prison; his wife received two years. Reyl Bank of Geneva, the bank that the Cahuzacs used, was fined €1.875 Million ($1.98 Million). Mrs. Cahuzac received a €100,000 ($106,000) fine; Mr. Cahuzac and two intermediaries he used must also pay a €100,000 fine.

Mr. Cahuzac’s attorney is arguing that the sentence is too long and that they will appeal asking for a lesser sentence. Apparently in the French justice system an appeal opens up both a lesser sentence (what Mr. Cahuzac’s attorney wants) and a longer sentence. In any case, it will like be several months before the appeal is heard.

This is yet another case of the fox guarding the henhouse. Mr. Cahuzac was also barred from seeking public office for five years. The French Socialist Party also kicked him out, and I suspect the chances of his successfully running for office is today zero.

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Iowa Disbands Forfeiture Team; Settles Lawsuit from Poker Players

Back in 2014 I mentioned (in passing) that two poker players had $100,000 seized while simply driving across Iowa on their way home to California. The Iowa Department of Public Safety (the state highway patrol) had a dedicated team on Interstate 80 assigned to seize money from motorists. What were signs of suspicious activity? They included:

– Driving too fast
– Driving too slow
– Driving the speed limit

A better question would have been, “What wasn’t a sign of suspicious activity?”

I am not a fan of civil forfeiture. It’s too easy for it to turn into a funding source for police agencies. The idea of civil forfeiture is to act as a deterrent, not to fund the government. That wasn’t the case in Iowa.

However, that’s in the past. Twin announcements out of Iowa are very good news on the civil forfeiture front. First, the two poker players who had their funds seized had filed a lawsuit alleging their civil rights were violated. Iowa has agreed to settle the lawsuit brought by William (Bart) Davis and John Newmer­zhycky for $60,000. (Iowa had earlier returned $90,000 of the cash that had been seized from the players.)

The second announcement is, in the long-run, more meaningful: Iowa is disbanding its state forfeiture team. The officers have been reassigned to traffic safety and special events. As the Institute for Justice reported,

“Today’s decision is an important step to protect Iowans’ property and due process rights from forfeiture abuse, but the state must do more,” noted Lee McGrath, legislative counsel at the Institute for Justice.

Unfortunately, Iowa still has civil forfeiture laws on the books. Perhaps this settlement and the change in Iowa policy will cause Iowa legislators to end civil forfeiture in the Hawkeye state.

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IRS Appeals Implements Stupid Policy of Not Sending Initial Contact Letters

I have a client who filed a Tax Court petition in late September. She is disputing additional tax from an Automated Underreporting Unit (AUR) notice. She didn’t respond to the initial AUR notice, so the way to resolve this is to file a Tax Court petition and get this in front of IRS Appeals. I have a Power of Attorney for my client; I expected to hear from IRS Appeals in three to five months.

When I got in yesterday morning I had a message from someone identifying themselves as an IRS Appeals officer out of Philadelphia. When I returned the call I discovered he was the assigned Appeals Officer in the case. I also discovered that:

– In the past for a case sent to Tax Court the IRS sent a letter to the petitioner (and her representative) noting that the case was being assigned to an IRS Appeals Officer with the hope of settling the case;
– IRS policy has changed, and these letters are no longer being sent;
– Now the initial contact would be by phone with no letter being sent; and
– Even after my calling the Appeals Officer there’s no way for me to receive correspondence showing that the Appeals Officer has been assigned to the case.

In this particular case I am certain that this Appeals Officer is working on the case (he had details of the case that were not public). However, I do not want to just take the say-so of a voice on the phone. Hasn’t the IRS Appeals Office heard of identity theft? Perhaps they’ve heard of the IRS Phone Scams? This week also is “National Tax Security Awareness Week;” it appears that the IRS Appeals Office should consider how their security appears to tax professionals.

The IRS recently mandated that, “ALL initial taxpayer contacts to commence an examination must be made by mail using approved form letters. [emphasis in original]” Similar rules now apply for payroll tax examinations and FTD Deposit Alerts. The Appeals Office policy of calling first is, to be blunt, stupid.

An initial contact letter (or fax) costs a couple of dollars to send out. It informs the taxpayer and his representative that a specific individual has been assigned to the case, their contact information (address, phone and fax numbers), and gives official notification of the assignment. (It also usually gives the name of the Appeals Officer’s Manager.) The cost for sending out this letter is likely less than five dollars. This is a minimal cost. I don’t know exactly how much the Appeals Officer I spoke to yesterday makes, but I can guarantee he spent more than five dollars worth of his salary proving to me that he was assigned to the case.

Hopefully the powers that be at the IRS will realize that this is a very penny-wise, pound-foolish policy. In these days of identity theft and phony IRS phone calls how am I to know that Appeals Officer Smith really is an Appeals Officer rather than a scammer?

IRS, please reconsider.

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Nominations Due for 2016 Tax Offender of the Year

In a little less than a month it will be time to reveal this year’s winner of the prestigious “Tax Offender of the Year” award. Remember, To be considered for the Tax Offender of the Year award, the individual (or organization) must do more than cheat on his or her taxes. It has to be special; it really needs to be a Bozo-like action or actions. Here are the past lucky recipients:

2015: Kenneth Harycki
2014: Mauricio Warner
2013: U.S. Department of Justice
2012: Steven Martinez
2011: United States Congress
2010: Tony and Micaela Dutson
2009: Mark Anderson
2008: Robert Beale
2007: Gene Haas
2005: Sharon Lee Caulder

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Won’t Be Getting Off for a Dime

Sreedhar Potarazu is apparently very intelligent. He’s an ophthalmic surgeon in Potomoc, Maryland. He’s also an entrepreneur and an author. He’s also likely to be spending a few years at ClubFed.

Dr. Potarazu formed VitalSpring Technologies, Inc., in 2000. Based in McLean, Virginia, the company provided software that purportedly helped to lower costs and improved service quality for health care. VitalSpring changed its name to Enziime LLC late in 2015.

Companies that grow need money, and that was the case for VitalSpring/Enziime. Dr. Portarazu started to skip paying employment taxes to the IRS. As we’ve said before and we’ll say again, if you want to be investigated by the IRS stop making payroll tax deposits; as best as we can tell, the IRS investigates 100% of such failures. Dr. Porarazu started to not fully pay his employment taxes in 2007. From the DOJ Press Release:

In all but one quarter between the first quarter of 2007 and the last quarter of 2011, as well as the second and third quarters of 2015, Potarazu failed to file VitalSpring’s Employer’s Quarterly Federal Tax Return (Forms 941) with the IRS. Potarazu also failed to pay over any of the employment tax withheld from VitalSpring’s employees’ wages in all but one quarter between the second quarter of 2007 and the third quarter of 2011, as well as the third and fourth quarters of 2015.

Not filing employment tax forms (Form 941) won’t stop the IRS from investigating. Once an employee files his income tax return and shows the withholding of federal income tax and the IRS can’t find that withholding, an investigation is guaranteed. The IRS interviewed Dr. Potarazu in 2011 and let him know of the liability (which he apparently already knew about). The employment tax liability totaled $7.5 million.

So the company needed money. There are several good strategies in such a situation: Making a payment plan with the IRS and slowing down growth so the need for money lessens are two that immediately come to mind. Dr. Potarazu raised $32 million from 2009 through 2016. Since the company wasn’t turning a profit, investors needed reassurances about the business. It’s how he raised the money that caused the problems:

Potarazu induced investments from shareholders by making false representations, concealing material facts, and telling deceptive half-truths about VitalSpring’s financial condition, tax compliance, and alleged imminent sale. Potarazu also caused someone to pose as a representative of a prospective buyer on shareholder conference calls to add legitimacy to his claims regarding VitalSpring’s imminent sale.

VitalSpring had not generated a profit since 2009. Nonetheless, Potarazu falsely represented to shareholders that VitalSpring’s financial position and profitability was improving from 2009 to 2015, and that VitalSpring had millions of dollars in cash reserves. To support his scheme, Potarazu presented fake bank statements to some shareholders that showed inflated balances.

Potarazu also concealed from shareholders that VitalSpring owed substantial employment tax to the IRS. Potarazu provided or caused to be provided false corporate income tax returns to some shareholders that overstated VitalSpring’s income and omitted the accruing employment tax liability.

Committing fraud to investors is not a good strategy. And doubling down on it will make things worse:

In November 2014, Potarazu created a Special Review Committee (SRC) in response to a lawsuit filed in Delaware by shareholders that claimed Potarazu misled the victim investors about VitalSpring’s finances, the status of the impending sale, and Potarazu’s compensation. Potarazu provided the SRC with false financial records, fake tax returns, and fake bank statements to induce the SRC to believe that VitalSpring was financially healthy and to cause the SRC to make materially false representations to the Delaware court and victim investors. He also falsely represented that the alleged imminent sale would yield substantial returns to the shareholders, and used this to induce additional investments. Members of the SRC traveled interstate to the Eastern District of Virginia to attend meetings in which Potarazu presented false information for their review.

There was no sale pending. Dr. Potarazu even made up emails from a purported bank employee and provided a buyer with a link to a phony website. And he used some of the money from investors for his personal use.

Dr. Potarazu pleaded guilty to inducing interstate travel to commit a fraud and failing to account for and pay over employment taxes. He’ll be sentenced next year and will likely have plenty of time at ClubFed to write a second book.

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Your Tax Professional, A Cop

Las Vegas Police Department Logo

When I flew to visit my mother for Thanksgiving, I had to show my driver’s license to get through TSA security at the Las Vegas Airport. That’s not a surprise. When I prepare my mother’s tax return for 2016, I am required to note my mother’s drivers license number, the date it was issued, the date it expires, and the state it was issued by. No, I am not making this up.

I have become a cop. And I’m not happy about it.

The IRS (with the tacit support of tax software companies) has pushed this requirement on to tax professionals. Sure, it only takes two minutes to enter this information (four minutes if married filing jointly), so for a return it’s not that big of a deal. Multiply that by 500 returns, and you have 1,000 minutes. That’s nearly seventeen hours of work (likely more, as most of my clients are married).

Yes, this will aid in preventing some identity theft. Yes, some states have already required this information. (I know that Alabama did for 2015 tax returns.) Yes, I won’t need to reenter this for 2017 tax returns (unless the driver’s license information changes). But this is another 17 hours I don’t have during tax season.

Unfortunately, there’s more. When Congress passed the PATH Act, Congress increased due diligence requirements on tax professionals when preparing returns where taxpayers claim the Earned Income Credit, the Child Tax Credit, the Additional Child Tax Credit, and/or the American Opportunity Tax Credit. The instructions note that tax professionals must,

Meet the knowledge requirement by interviewing the taxpayer, asking adequate questions, contemporaneously documenting the questions and the taxpayer’s responses in your notes, reviewing adequate information to determine if the taxpayer is eligible to claim the credit(s) and in what amount(s)….[emphasis added]

We don’t have many clients that take the Earned Income Credit. However, we have plenty of clients that take the Child Tax Credit (and/or the Additional Child Tax Credit) and the American Opportunity Credit. Tax professionals must now conduct an interview. Once again, there goes ten to fifteen minutes of time (that’s our estimate of the interview length). If we have 100 clients who take these credits, that’s another 21 hours of work.

Together, that’s nearly a 40-hour week. Yes, 2016 tax returns will cost more to prepare.

But that’s not all. Consider John and Jane Doe. They have a very simple return: W-2 income, a few deductions, and the usual 2.2 children. They drop off their paperwork in late March, and are surprised to discover they will go on extension. “Why?” they ask. That’s because their tax professional doesn’t have any interview spots available until after the April tax deadline.

The actions of the IRS and Congress have laudable goals. Reduction of identity theft and eliminating people incorrectly claiming tax credits are good ideas. However, because of the additional work, most taxpayers are going to discover that tax professional’s deadlines are very strict for 2016 returns. I know ours will be.

If you are a tax professional it’s probably worth revising your Engagement Letters to note these new requirements. And if you happen to have a spare cloning machine, please call me.

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At Least His Name Was Right on the Return

Steven H. Young of St. Petersburg, Florida didn’t like to pay taxes. Well, most of us don’t like to pay taxes but we do because it’s the law. Mr. Young decided that veracity wasn’t needed when filing tax returns.

Mr. Young was self-employed in real estate, and he prepared his own tax returns. He was married, but filed as “Head of Household.” That was strike one. Mr. Young did not do business with a company in the Dominican Republic; however, he created his invoices that showed a phony lease and phony expenses to that company. That was strike two. Mr. Young was audited, and the audit didn’t go particularly well; the IRS subpoenaed records from Bank of America. Mr. Young came up with the not-so-brilliant idea of writing a phony letter to Bank of America, and telling the bank to send the records to a different address—an address he opened in an IRS’s employees name. That was the third strike, and IRS Criminal Investigation and the Treasury Inspector General for Tax Administration pounced. Mr. Young pleaded guilty earlier this year; he was sentenced today to 21 months at ClubFed.

I could have called this story, “Count the felonies.” Lying to an IRS employee is another felony, so Mr. Young should count his lucky stars he will only enjoy a little under two years at ClubFed. A helpful hint to those at home: Don’t emulate Mr. Young!

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