Category Archives: Tax Attorney

New Entity EIN and Tax Classification

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Philip Falco
New Entity EIN and Tax Classification

This is one of the most important steps that could impact the entire future of your new business. Take your time before applying for an EIN with the Internal Revenue Service. Severe adverse tax consequences could impact the future of your entity.

Name selection. If you choose a name with Corp, or Inc, the default entity will likely be a C Corporation. Taxpayers almost always do not intend on being C Corporations.

If you choose LLC and you are a sole owner it will most likely default to schedule C on your 1040.

In addition, if you answer questions indicating that you will have payroll, and you very well could, it will trigger the filing of payroll forms typically 940 and 941 with automatic filing dates required, which in turn trigger Colorado state withholding filings, Colorado Department of Labor and Employment, and possibly the Denver Head Tax. In additional, it could trigger worker’s compensation insurance.

Save the letter you get from the IRS CP 575 A for the life of your business.

Tax Tips:

  • Avoid Corp or Inc unless you know exactly what you are doing
  • Be prepared to set up State and local payroll accounts if you have employees
  • Most LLC’s will be on schedule C of your 1040, or form 1065 if you have more than just you as a partner

S Corp Requirements (disproportionate distributions)

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Philip Falco
S Corp Requirements (disproportionate distributions)

The first rule is that shareholders have to choose to be taxed as an S corporation. Shareholders do so by filling out a Form 2553, Election by a Small Business Corporation, that they file with the IRS. See Treas.
Reg. § 1.1362-6(a)(2)(i). Once the IRS approves, the election remains effective indefinitely. § 1362(c); see Mourad v. Commissioner, 121 T.C. 1, 4 (2003), aff’d, 387 F.3d 27 (1st Cir. 2004).

A great many small and medium-sized businesses elect S corporation status because the Code affords them special treatment—income earned by the corporation escapes corporate-level taxation. Mourad, 121 T.C. at 3; see §§ 1363, 1366. That income is instead “passed through” to its shareholders pro rata. See §§ 1363, 1366. But electing to be an S corporation is not enough. The Code has several other requirements. These include having no more than 100 shareholders, having only shareholders who are individuals—or certain trusts or nonprofits—and not having any nonresident alien shareholders. § 1361(b)(1). The parties don’t dispute that Schricker met these requirements.

There’s one other requirement. Section 1361(b)(1)(D) allows a corporation to be an S corporation only if it has no more than one class of stock. What does that mean? Section 1361 doesn’t say, but we know that run-of-the-mill debt isn’t a second class of stock. § 1361(c)(5)(A). And neither are differences in common-stock voting rights. § 1361(c)(4).

The regulation gives us a little more help. It generally treats a corporation as having only one class of stock so long as all the shares confer equal rights to dividends and liquidation proceeds. Treas. Reg. § 1.1361-1(l)(1) (“[A] corporation is treated as having only one class of stock if all outstanding shares of stock of the corporation confer identical rights to distribution and liquidation proceeds”).

The regulation also tells us to determine whether stock confers identical rights to distributions and liquidation proceeds based on the corporation’s governing provisions. Id. subpara. (2)(i). These are
documents like a corporate charter, articles of incorporation, and bylaws. Id. The IRS has said it won’t treat any disproportionate distributions made by a corporation as violating the one-class-ofstock requirement if the governing provisions provide for identical rights. Rev. Proc. 2022-19, § 3.02, 2022-41 I.R.B. 282, 286.

The regulation tells the IRS to focus on shareholder rights under a corporation’s governing documents, not what shareholders actually do. The regulation states that uneven distributions don’t mean that the corporation has more than one class of stock. Treas. Reg. § 1.1361-1(l)(2) (“[A] corporation is not treated as having more than one class of stock so long as the governing provisions provide for identical distribution and liquidation rights . . . .”).

Guilty until Proven Innocent? Tax Court Burden of Proof

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Philip Falco
Guilty until Proven Innocent? Tax Court Burden of Proof

Who has the upper hand in Tax Court, the IRS or the Taxpayer? You decide.

You are considering filing a petition with the United States Tax Court perhaps regarding your Notice of Deficiency post IRS audit. Here are a few rules of play to be aware of.

The IRS’s determinations in a notice of deficiency are generally presumed correct, and taxpayers bear the burden of proving them erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). This puts the main hurdle on the Taxpayer. To put it in common terms, the Taxpayer is presumed guilty, not innocent (these are civil matters, not criminal so this is an analogy). Walking into Tax Court, Taxpayer must prove the IRS’s position is wrong.

All is not hopeless. However, if a taxpayer produces credible evidence with respect to one or more factual issues relevant to the taxpayer’s tax liability, the burden of proof may shift to the IRS as to that issue or issues. § 7491(a)(1). Likewise, the IRS’s determination does not receive a presumption of correctness if the determination is shown to be arbitrary and capricious. Helvering v. Taylor, 293 U.S. 507, 514 (1935); 9 [*9] Cohen v. Commissioner, 266 F.2d 5, 11 (9th Cir. 1959), remanding T.C. Memo. 1957-172. Also, the IRS bears the burden of proving new matters asserted in its answer. See Rule 142(a).

Tax Court proceedings are conducted in accordance with the Federal Rules of Evidence. § 7453; Rule 143(a).

Section 7491(a)(1) provides that if, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the IRS shall have the burden of proof with respect to that issue. See Higbee v. Commissioner, 116 T.C. 438, 440–41 (2001). For the burden to be placed on the IRS under this section, however, the taxpayer must demonstrate that he has: (1) complied with the requirements under the Code to substantiate any item, (2) maintained all records required under the Code, and (3) cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews. See § 7491(a)(2); Higbee, 116 T.C. at 440–41.

CFO and Board Service

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Philip Falco
CFO and Board Service

Chief Financial Officer for your company. Given the dual licensing as a Certified Public Accountant and Attorney, this background and 30 years of business experience is a good fit. Your company could add tremendous value in terms of tax guidance, financial planning, and legal guidance.

For larger companies:

-keeping on track of internal audits

-integrating recommendations into policy

-internal fraud prevention and detection

-Legal exposure prevention.

Smaller companies:

-tax compliance and strategy

-legal compliance

-legal structure

Give us a call to discuss (303) 626-7000

City & County of Denver Taxes

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Philip Falco
City & County of Denver Taxes

So what are these mysterious taxes? Here they are:

Sales Tax – On the purchase price for all sales and purchases of tangible personal property, etc. Return due on or before the twentieth (20 th ) day of each month for sales occurring in the preceding calendar month

Use Tax – There is levied and there shall be collected and paid a tax in the amount stated in this article, by every person exercising the taxable privilege of storing, using, distributing or consuming in the city tangible personal property, or a product or service subject to the provisions of this article, purchased at retail, for said exercise of said privilege, etc. Return due on or before the twentieth (20 th ) day of each month for sales occurring in the preceding calendar month.

Lodger’s Tax –  There is hereby levied and shall be collected and paid a tax by every person exercising the taxable privilege of purchasing lodging, etc. Return due on or before the twentieth (20 th ) day of each month for sales occurring in the preceding calendar month.

Employee Occupational Privilege Tax – There is hereby levied by the city upon and there shall be collected monthly from and paid to the manager by each employee who performs services within the city for any period of time in a calendar month for an employer, an employee’s occupational privilege tax, at the rate of five dollars and seventy-five cents ($5.75) per month for each and every month in which such employee is, for any period of time, so employed. Return due on or before the last day of each month for the taxes required to be remitted for the preceding calendar month.

Business Occupational Privilege Tax – There is hereby levied by the city upon, and there shall be collected monthly from and paid to the manager by, every person engaged in any business, trade, occupation, profession or calling of any kind having a fixed or transitory situs within the city, for any period of time in a calendar month within the city, a business occupational privilege tax in the sum of four dollars ($4.00) per month for the first owner, partner, manager or employee, and the additional sum of four dollars ($4.00) per month for each and every additional owner, partner, manager or employee who performs within the city for any period of time in a calendar month any services or other activities in the operation of such business, trade, occupation, profession or calling within the city. Return due on or before the last day of each month for taxes required to be withheld for the preceding calendar month.

Facilities Development Admissions Tax – “Admission” shall mean the right to an entrance and an occupancy of a seat or an entrance alone, of a person who, for a consideration by whatever name known, including involuntary “contributions,” uses, possesses or has the right to use or possess entrance and occupancy of a seat or an entrance alone to any entertainment, amusement, athletic event, exhibition or other production or assembly staged, produced, convened or held at or on any facility or property owned or leased by the city, including, but not limited to, the following facilities: the Denver Coliseum Complex; the Red Rocks Theatre; Phipps Auditorium; the Denver Performing Arts Complex; the National Western Stock Show Complex; and the Colorado Convention Center. Return due on or before the fifteenth day of each month for sales occurring in the preceding calendar month

Telecommunications Tax – There is levied a tax on the privilege of engaging in the telecommunications business within the city upon each business so engaged one and twelve-hundredths dollars ($1.12) for each account of such business regarding a customer for which local exchange telecommunications are provided by said business within the city. Return due on or before the twentieth (20 th ) day of each calendar month for taxes required to be remitted for the preceding calendar month.

Buyer beware!  Returns required upon sale of business; purchaser subject to lien. (a) Any taxpayer who shall sell out a business or stock of goods or shall quit business shall be required to make out a return as provided in this chapter within ten (10) days after the date the taxpayer sold out the business or stock of goods or quit business, and a successor in business shall be required to withhold sufficient of the purchase money to cover the amount of the tax due and unpaid until such time as the former owner shall produce a receipt from the manager showing that the taxes have been paid or a certificate that no taxes are due. (b) If the purchaser of a business or stock of goods shall fail to withhold the purchase money as provided in subsection (a), and the tax shall be due and unpaid after the ten (10) day period allowed, the purchaser, as well as the taxpayer, shall be personally liable for the payment of the taxes unpaid by the former owner. Likewise, anyone who takes any stock of goods or business fixtures of or used by any employer under lease, title-retaining contract or other contract arrangement, by purchase, foreclosure sale or otherwise, takes same subject to the lien for any delinquent taxes owed by such employer and shall be liable for the payment of all delinquent taxes of such prior owner, not, however, exceeding the value of the property so taken or acquired.

Mandatory Filing for LLC’s, Corporations- FinCEN

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Philip Falco
Mandatory Filing for LLC’s, Corporations- FinCEN

Quite simply, assume your entity must file a transparency report with the Financial Crimes Enforcement Network. This report resembles foreign/international transparency forms that we have been filing for years. It is part of the ongoing effort of the U.S. to reign in secret, unreported transactions.
We are authorized to file this report on your behalf if you choose to engage our firm. We will also consult and advise you as to any wrinkles in the process. Being a dual licensed CPA and Attorney firm, we are without question the best choice for this report. The first filing is the most important as it will set a precedent.
In general, the deadline to file is December 31, 2024.
If you have any concerns about past discrepancies, we can consult you. The attorney-client privilege applies.
This filing requirement was enacted under the Corporate Transparncy Act.
For more in-depth on this filing, click our permanent page dedicated to this filing Corporate/LLC Transparency Filings

IRS Pre-Audit Investigations

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Philip Falco

Audit “Flags” – Straight from the Internal Revenue Manual

Large Unusual Questionable Items (LUQs)

The definition of a large, unusual, or questionable item will depend on the examiner’s perception of the return as a whole and the separate items that comprise the return. Some factors to be considered when identifying LUQs are:

  1. Comparative size of the item — an expense item of $6,000.00 with total expenses of $30,000.00 would be a large item; however, if total expenses are $300,000.00, the item would not be generally considered a large item.
  2. Absolute size of the item — despite the comparability factor, size by itself may be significant. For example, a $50,000 item may be significant even though it represents a small percentage of taxable income.
  3. Inherent character of the item — although the amount of an item may be insignificant, the nature of the item may be significant; e.g., airplane expenses claimed on a plumber’s Schedule C.
  4. Evidence of intent to mislead — this may include missing schedules, incomplete schedules, misclassified entries, or obviously incorrect items on the return.
  5. Beneficial effect of the manner in which an item is reported — expenses claimed on a business schedule rather than claimed as an itemized deduction.
  6. Relationship to other items — incomplete transactions identified on the tax return. For example, the taxpayer reported sales of stock but no dividend income.
  7. Whipsaw issues — occur when there is a transaction between two parties and characteristics of the transaction will benefit one party and harm the other. Examples include alimony vs. child support, sale vs. rental/royalty, employee vs. independent contractor, gift vs. income.
  8. Missing items — consideration should be given to items which are not shown on the return but would normally appear on the returns of similar taxpayers. This applies not only to the examination of income, but also to expenses, deductions, etc., that would result in tax changes favorable to the taxpayer.

The foregoing is an excerpt from the Internal Revenue Manual.  These are some of the recommended procedures to IRS Agents when doing background work before a taxpayer is contacted.

The tax return would have been flagged already.  It is now in the hands of the scrutinizing IRS Agent.  These are some of the items the agent will look at closely before contacting the taxpayer.

Click here to read about IRS Audits including IRS letters.

Excerpt from Publication 1, Taxpayer Rights

The process of selecting a return for examination usually begins in one of two ways. First, we use computer programs to identify returns that may have incorrect amounts. These programs may be based on information returns, such as Forms 1099 and W-2, on studies of past examinations, or on certain issues identified by compliance projects. Second, we use information from outside sources that indicates that a return may have incorrect amounts. These sources may include newspapers, public records, and individuals. If we determine that the information is accurate and reliable, we may use it to select a return for examination.

What is a “Willful” Failure to Disclose Offshore Bank Account

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Philip Falco
What is a “Willful” Failure to Disclose Offshore Bank Account

This is the central question as to whether a taxpayer enters Offshore Voluntary Disclosure or Streamline.  It also fixes potential penalties under 31 U.S.C. §5321.

31 U.S.C. 5314 is the statute that requires reporting of foreign bank accounts.  Pursuant to the statute, reporting is required by the following:

  1. a United States Citizen,
  2. a resident of the United States or
  3. a person in, and doing business in the United States.

Incidentally, the term “person” has broad meaning, which includes corporations.

Pursuant to 31 U.S.C. §5321, the amount of penalty shall not exceed $10,000 unless the case is “willful“.  In cases of willfulness, the maximum penalty increases to the greater of  $100,000 or 50 percent of the account balance.  It is also noteworthy that, pursuant to subsection (d), a criminal penalty may be stacked on top of this civil penalty.

A lot is riding on the meaning of “willful” so let’s turn our focus to it.  If you would like to read what is required of the Secretary of Treasure to prove an FBAR case, click here to read the 7 elements.

Legal standard and Burden of Proof

To affix the civil penalty under 31 U.S.C. §5321 the Secretary of Treasury must establish willfulness by the preponderance of the evidence.  This is a lower standard than beyond a reasonable doubt.  The Burden of Proof is on the United States Government.

Meaning of “Willful”

31 U.S.C. §5321 does not define “willful”.  In United States of America v. McBride, 908 F. Supp. 1186 (D.Utah 2012), The United State District Court analyzed the meaning of “willful” as it is used in 31 U.S.C. §5321.  The Court gave heavy weight to the fact that taxpayer signed the tax return.

Signature alone is sufficient proof of a taxpayer’s knowledge of the instructions contained in the tax return form and in other contexts, the Court stated.  This is an inference of “willful” conduct by mere signature alone. The Court went on to analyze the proposition that signature by itself does not prove knowledge, but knowledge may be inferred from the signature and the signature is prima facie evidence that the signer knows the contents of the return.

In either case, taxpayer’s signature shifts the burden of proof to taxpayer to prove non-willfulness.  The Court held that knowledge of the law, including knowledge of the FBAR, requirements, is imputed to taxpayer, which is sufficient to inform taxpayer of the requirement to file Form TD F 90-22.1.  The Court held that signature alone imputed knowledge to taxpayer of the FBAR requirement.

It is noteworthy that the Court analyzed taxpayer’s credibility in detail.  Taxpayer alleged that he did not know he had a legal duty to file FBAR’s, which is common and understandable assertion.  Rather than just dismiss this argument on the basis of his signature on tax return, the Court found taxpayer not credible because of prior testimonial inconsistencies.

Implicitly, there is a defense that taxpayer did not know of FBAR requirements despite signature on a tax return.  After all a signature is prima facie evidence of willfulness, not the end-all and be-all of willfulness.

In the end, “willfulness” is determined by the facts and circumstances of each case that must be analyzed in the context of that particular time period in question.

 

Panama Papers: The Case for FATCA Global Adoption

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Philip Falco
Panama Papers: The Case for FATCA Global Adoption

The disclosure of the Panama Papers promises to cause global unrest as exemplified by the recent protests in Iceland.  As more and more leaders are tied to illicit offshore bank accounts, continued unrest is sure to follow.  FATCA, the Foreign Account Tax Compliance Act, at first appeared to be a time-consuming nuisance for banks is now proving to be a potent weapon of democratic society.

FATCA was implemented to target non-compliant United States taxpayers by forcing banks around the world to report bank balances of U.S. taxpayers to the United States government. U.S. taxpayers of every type must come forward and not only declare foreign accounts but also pay undeclared tax.  It forces all U.S. taxpayers to play by the same rules.  A true democracy cannot be had unless monetary rules are leveled for all involved.

The reportable bank balances are those of United States taxpayers, but not of foreign nationals who have no duty to report under United States laws.  As a result, many of those identified in the Panama Papers were unlikely reportable taxpayers pursuant to FATCA.  Consequently, countries throughout the world would find it prudent to contemplate adopting a FATCA-like disclosure model to maintain peace, disrupt political corruption, and level the monetary playing field.

Judge Learned Hand on Taxes

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Philip Falco

By Philip Falco, Attorney, CPA. In an opinion penned in 1934, Judge Learned Hand endorsed the use of tax planning.  In Helvering v. Gregory, 69 F.2d 809, Judge Learned Hand wrote:

“Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one’s taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands.”

To put it another way, there is no patriotic duty to pay more tax than the least tax payable under the tax code. This is the essence of tax planning in a nutshell.

A solid understanding of the tax code is what it takes to navigate to the least tax payable under the tax law.

Offshore Voluntary Disclosure Initiative (OVDI) (OVDP) Program

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Philip Falco

The clock is ticking on this tax amnesty program provided by the IRS.

Countries from around the world have disclosed or are in the process of disclosing United States account holder information.  If a taxpayer is caught before entering OVDI / OVDP the penalties are draconian.  Penalties likely include criminal prosecution.

If the taxpayer has offshore accounts or properties, it is critical that the taxpayer speak with a tax attorney and not an accountant.  The accountant privilege does not apply to criminal proceedings.  However, the attorney-client privilege does apply to criminal proceedings.  The accountant could be subpoenaed to testify against the taxpayer at the criminal trial.

Philip Falco, CPA, Juris Doctor – Honors will work on your case to gain acceptance in OVDI / OVDP.

Quiet disclosures are not the answer.  This is where a taxpayer begins to file proper schedules on his or her tax return without entering OVDI / OVDP.  The IRS has specifically reserved the right to pursue criminal prosecution in these cases.

Because of the vast disclosures from foreign countries, participation in OVDI / OVDP is becoming more difficult every day.

The disclosures required for  OVDI / OVDP are massive and must be done precisely.  The worst fear would be accusation of a half-truth facing criminal prosecution.

We can prepare the required amendments to your returns and prepare the complete package to the IRS as required by OVDI / OVDP.

In the opinion of Philip Falco, CPA, Juris Doctor, the offshore initiative is the most significant tax development since the 1986 revisions to the internal revenue code that cracked down on tax shelters (revisions to passive activities and at-risk tax rules).

See our page on OVDP / OVDI

 

Breaking News: IRS Changes to the Offshore Voluntary Disclosure Program (OVDP)

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Philip Falco

IRS Reduces OVDP Penalty to 5% in non-willful offshore compliance cases.

For eligible U.S. taxpayers residing in the United States, the only penalty will be a miscellaneous offshore penalty equal to 5 percent of the foreign financial assets that gave rise to the tax compliance issue.

Other positive changes for taxpayers living in the United States:

  • Eliminating a requirement that the taxpayer have $1,500 or less of unpaid tax per year;
  • Eliminating the required risk questionnaire;
  • Requiring the taxpayer to certify that previous failures to comply were due to non-willful conduct.

The IRS increases its effort to make OVDP accessible to everyone.  This is a step in the right direction.  The goal is to get taxpayers in compliance.

Non-willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law.

Other good news: If you made an OVDP submission prior to July 1, 2014 you may elect to have your case considered under Streamline so long as a closing agreement has not been executed.

We specialize in Offshore Account Compliance. We represent taxpayers entering the 2012 Offshore Voluntary Disclosure Initiative Program (OVDP)

See our page on OVDP / OVDI

Please contact Philip Falco, CPA, Juris Doctor – Honors to discuss these new measures and how they apply to you (303) 626-7000.

 

Partnership Basis in Contributed Promissory Notes and Guarantees: Tax Tips

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Philip Falco
Partnership Basis in Contributed Promissory Notes and Guarantees: Tax Tips

Your partnership must file a Beneficial Ownership Information Report with FinCEN.  We file those reports for $349.  Here is our page on that report.

Philip Falco, Attorney, CPA tracks inside and outside partnership basis, prepares 1065 Tax Returns and K1’s (303) 626-7000 phil@coloradolegal.com

Partners of a partnership sometimes contribute promissory notes to the partnership.  As an example, a partner drafts a note payable to the partnership promising to pay the partnership a sum of money.  The question then becomes whether the partner has an increase in partner basis for this.  The other question is what is the partnership’s basis in the promissory note.

Another related scenario is where a partner guarantees a partnership debt owed to a third party.  The question is whether this guarantee increases the basis of the partner in the partnership.

Partnerships don’t pay income tax, but they do file  information returns, and partners are supposed to use the numbers from those returns on their own individual returns. See IRC secs. 701, 6031, 6222(a).  Partnership basis is important because it determines where a distribution such as cash is taxed or not.  It also determines the amount of taxable gain or loss upon sale. An increase in a partner’s basis is desirable.  We provide legal and tax services to partnerships.

The value of what a partner contributes to his partnership can be tricky when he contributes something other than cash–like promissory notes or guarantees. a partnership’s basis in property contributed by a partner is the adjusted basis of that property in the hands of the contributing partner at the time of the contribution. IRC sec. 723.

The Tax Court has held that the contribution of a partner’s own note to his partnership isn’t the equivalent of a contribution of cash, and without more, it will not increase his basis in his partnership interest. See Dakotah Hills Offices Ltd. P’ship v. Commissioner, T.C. Memo. 1998-134, 75 T.C.M. (CCH) 2122.

As such, the partner’s basis does not increase and the partnership’s basis in the notes is zero.

However, a guarantee of a partnership debt to a third party does increase a partner’s basis.

For example, in Gefen v. Commissioner, 87 T.C. 1471 (1986) a partner executed a limited guaranty as a condition of her acquisition of an interest in a limited partnership. Under its terms, she assumed personal liability to the partnership’s existing creditor for her pro rata share of the partnership’s recourse indebtedness to that creditor. She also agreed that the partnership could
call on her to contribute to the partnership an amount equal to the partnership’s outstanding debt.  The Tax Court upheld the partner’s increase in basis for her limited guarantee.

This can be a tricky area.  However, here are tax tips:

  1. Consider guaranteeing a preexisting third party debt rather than contributing a promissory note to the partnership.
  2. Document that the partner is providing personal credit to partnership vendors.
  3. The partner should be obliged to make additional contributions under the guarantee.
  4. The guarantee must create a liability to a third party, not the partnership.