On November 20, 2017, the Tax Court issued its opinion in Graev v. Commissioner, 149 T.C. __, reversing a prior decision that sustained a 20% accuracy penalty.  The issue before the Court was whether the IRS has to prove that it complied with Internal Revenue Code §6751(b)(1) in order to sustain a penalty in a deficiency proceeding.  That section requires that certain penalty assessments have to be “personally” approved in writing by the “immediate supervisor” of the IRS employee who initially determines the penalty.  In its earlier opinion, the Tax Court held that the question of compliance was not appropriate for review until after the IRS assessed the penalty, which occurs after deficiency proceedings. Graev v Commissioner, 147 T.C. __ (Nov. 20, 2016).

In March 2017, the Second Circuit in Chai v. Commissioner, 851 F. 3rd 190, held that the IRS, as part of its burden of proving that a taxpayer is liable for a penalty, must prove it complied with §6751(b)(1).  Because Graev is appealable to the Second Circuit, the Tax Court vacated its earlier opinion.  In its most recent opinion in Graev, the Tax Court a) adopted the reasoning of the Second Circuit in Chai and held that the IRS must prove compliance with §6751(b)(1) in a deficiency case, b) made the decision applicable to all cases, not just those appealable to the Second Circuit, and c) determined that the IRS complied since the supervisor of the IRS attorney who approved the notice of deficiency signed off on asserting the 20% accuracy penalty.

The ramifications of the latest opinion in Graev have already been felt.  In four cases that were tried before Judge Holmes that are awaiting decision the IRS moved to reopen the record to present evidence of compliance.  On the day the Graev opinion was issued, Judge Holmes entered orders in all four cases denying the motion.  As he succinctly put it, “What happens if a party with the burden of production on an issue fails to introduce sufficient evidence at trial to meet that burden?  Well, he loses.”  So the penalty won’t be sustained in those four cases.

What does the decision mean for other taxpayers? If they have a case pending in Tax Court that has not yet gone to trial, the IRS will offer into evidence the form approving the penalty, which is easy enough if the IRS complied with the law.  If it can’t produce the paper, the Court will not sustain the penalty.  In cases awaiting decision, the IRS will seek to reopen the record to present evidence of compliance.  It remains to be seen whether other Tax Court judges will follow Judge Holmes’ lead.

What about taxpayers who already lost a penalty issue in Tax Court? Following the Chai decision, a number of taxpayer started raising the issue of compliance with §6751(b)(1) in collection due process cases.  They won’t be able to do so if the penalty was asserted in a notice of deficiency or the taxpayer had the chance to appeal the IRS’s proposed penalty before it was assessed.

So is it a win for taxpayers? Not really.  In his concurring opinion in Graev, Judge Holmes said he’d prefer that the case was decided under the Golsen rule.  Under Golsen, the Tax Court will follow an circuit court’s decision on a rule of law in cases appealable to that circuit, but is free to apply a different rule in cases appealable to other circuits.  Thus, the IRS may raise the issue in cases appealable to other circuits.

ROBERT S. HORWITZ – For more information please contact Robert S. Horwitz – horwitz@taxlitigator.com or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com.


Posted by: Robert Horwitz | January 16, 2018

Tax Court to IRS: You’re Too Late Baby! by Robert S. Horwitz

As part of its crackdown on taxpayers who were not reporting income from overseas assets, in 2010 Congress enacted Internal Revenue Code sec. 6038D. That section requires a taxpayer to provide information about “specified foreign financial assets.”  It applies to tax years beginning after March 18, 2010.  The IRS developed Form 8938, Statement of Specified Foreign Financial Assets, for taxpayers to comply with sec. 6038D.

To show it means business, Congress included penalties for failure to provide the required information: a $10,000 failure to file penalty, an additional penalty of up to $50,000 for continued failure to file after IRS notification, and a 40 percent penalty on an understatement of tax attributable to non-disclosed assets. That’s not what this blog is about.  Congress also extended the statute of limitations on assessment to six years for taxpayers who fail to include over $5,000 of gross income attributable to one or more assets required to be reported under sec. 6038D.

The six-year statute of limitations is contained in Internal Revenue Code sec. 6501(e)(1)(A)(ii). It provides that the IRS has six years within which to assess tax if a taxpayer omits gross income and

(ii) such amount—

(I) is attributable to one or more assets with respect to which information is required to be reported under section 6038D (or would be so required if such section were applied without regard to the dollar threshold specified in subsection (a) thereof and without regard to any exceptions provided pursuant to subsection (h)(1) thereof), and

(II) is in excess of $5,000…

This provision was enacted in 2010 and applies to returns filed after March 18, 2010, and to returns for which the normal statute of limitations had not expired. This is where Mehrdad Rafizadeh comes in. Rafizadeh v. Commissioner, 150 T.C. No. 1 (January 2, 2018).

For tax years 2006, 2007, 2008 and 2009, Mr. Rafizadeh had income of more than $5000 from specified foreign financial assets. In March 2010, before the effective date of the statute, the IRS served a John Doe summons.  The summons was resolved in November 2010.  Mr. Rafzideh was one of the taxpayers the IRS learned of as a result of the summons. In December 2014, the IRS issued a notice of deficiency asserting tax and penalties:

Year             2006           2007           2008           2009

Deficiency    $9,045        $10,934      $4,117        $1,619

Penalty         $1,809        $2,187        $823           $324

Mr. Rafizadeh petitioned Tax Court and moved for summary judgment on the ground that the statute of limitations for assessment had run on the 2006, 2007, 2008 and 2009 tax years. He won.

The Tax Court looked to the rules of statutory construction, which requires a court to construe the language of a statute giving the words their ordinary meanings and so that no part of the statute is superfluous, void or insignificant. Section 6501(e)(1)(A)(ii) applies only if the unreported income is from assets for which information “is required to be reported under section 6038D.”  Since there was no reporting requirement for specified foreign financial assets when the returns for 2006 through 2008 were filed, those returns did not fail to report income from such assets.

The Tax Court rejected the IRS’s argument its reading of the statute made the effective date a nullity. The Court pointed out that the provisions regarding effective date applies to all items on a return for which a specified reporting requirement, some of which predate the statute, is not complied with.  Thus its reading of sec. 6501(e)(1)(A)(ii) did not render the effective date a nullity.

ROBERT S. HORWITZ – For more information please contact Robert S. Horwitz – horwitz@taxlitigator.com or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com




This is the first in a series of blogs that will analyze the IRS’s Fiscal Year 2017 Annual Report. This blog will focus on the shift away from easy cases in favor of harder cases such as foreign-account and hidden-income cases that most consider the core of IRS criminal enforcement. Later blogs will take a deeper dive into specific focuses of IRS-CI, to better know what’s coming down the pike in the next few years.

When most people think of an IRS criminal investigation, they think of special agents finding hidden income or going after non-filers. But for many years the typical IRS case instead involved low-level criminals who filed dozens or even hundreds of bogus tax returns to get tax refunds. For example, in 2014, about half of the IRS’s investigations involved non-tax (e.g., money laundering) and drug crimes, and of the half that involved tax crimes, a large percentage were false-return cases. The common perception of a run-of-the-mill IRS criminal case didn’t match with reality.

Recognizing that the IRS’s Criminal Investigations has the same number of agents that it had 50 years ago – when the US population was around 200 million versus 325 million now – the IRS’s new Chief of Criminal Investigation, Don Fort, has appropriately shifted the investigative focus to the more traditional targets of tax investigations which should positively impact overall tax compliance. Fort took over in June 2017, after having spent nearly three years as the second-in-command in CI. Before Fort started setting priorities, the IRS had pushed its scarce resources toward identity-theft and data-breach cases. Unlike most tax cases, identity-theft and data-breach cases can involve multiple defendants and can be relatively “low hanging fruit” when compared to individual income-tax prosecutions. It’s also easy to run up higher numbers of prosecutions when you charge a dozen defendants at a time.

In identity theft cases, organized criminals and individuals traditionally took advantage of a massive security hole in the IRS’s computer system to obtain millions of dollars of fraudulent refunds every year using fake or stolen social security numbers. The IRS has worked to eliminate that hole, which was the inability of the IRS computer system to quickly match up reported payments on tax returns to payments received by the IRS. To get refunds in the hands of taxpayers quickly, the IRS would assume that tax returns were accurate, pay refunds, and then match up W-2s filed by employers to those attached to tax returns to determine which returns were fake. This approach led to billions of dollars per year being paid out in fraudulent refunds, and the IRS tried to prosecute its way out of the problem for many years. That didn’t work, as the computer system was the fix, not prosecutions. Starting in 2018, W-2 forms will include a new verification code to speed up the authentication process. Partly because of the IRS’s improved matching system as well as a surge of indictments against false-return mills, the IRS is touting “significant progress” against identity theft. https://www.irs.gov/newsroom/security-summit-partners-mark-progress-in-identity-theft-battle-prepare-for-2018-tax-season. ID Theft cases alone dropped 75% from 2013 to 2017. Though the number of false returns has dropped, the problem remains a multi-billion dollar hit to the public fisc. The IRS could continue to focus on these cases and cut down on false returns, as even with the reduction in bogus filings losses remain in the billions per year. A more-cynical view of events is that the IRS is simply declaring victory and moving on to more-interesting cases.

Although the improved matching system should cut down on fraudulent W-2s – either fake SSNs or fake W-2s using real SSNs – the IRS hasn’t locked down how it will stop the burgeoning and more-sophisticated source of fraudulent returns: data breaches. Using “spoofing” and “spear-phishing” techniques, fraudsters trick HR departments, tax professionals, and executives into providing accurate W-2 information and race to file fraudulent tax returns and scoop up refunds ahead of real taxpayers. These crimes are the flip side of the same data-breach coin that the IRS and many other data aggregators have faced in recent years; although the IRS stood up two cybercrime units in 2014 in LA and DC, their portfolio is so large that it can’t expect to put more than a dent in any of its emphases, including data breaches.

The upshot of the decline in agents and the shift away from easy cases has led to an expected decline in cases referred by CI for prosecution and cases opened for investigation. However, if Don Fort has anything to say about it, the only tax criminals who will be rejoicing are the ID Theft fraudsters, not traditional tax criminals such as those with hidden offshore accounts, money launderers, and false-return filers. Instead, as will be addressed in the next blog, Fort is bringing data-mining to bear on these targets to select the most-egregious offenders. There’s no silver lining to the decline in IRS cases for many of the traditional targets of tax investigations.

EVAN J. DAVIS – For more information please contact Evan Davis – davis@taxlitigator.com or 310.281.3288. Mr. Davis is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former AUSA of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) handling civil and criminal tax cases and, subsequently, of the Major Frauds Section of the Criminal Division of the Office of the U.S. Attorney (C.D. Cal) handling white-collar, tax, and other fraud cases through jury trial and appeal. He has served as the Bankruptcy Fraud coordinator, Financial Institution Fraud Coordinator, and Securities Fraud coordinator for the USAO’s Criminal Division, and the U.S. Attorney General awarded him the Distinguished Service Award for his work on the $16 Billion RMBS settlement with Bank of America.

Mr. Davis represents individuals and closely held entities in criminal tax investigations and prosecutions, civil tax controversy and litigation, sensitive issue or complex civil tax examinations and administrative tax appeals, and federal and state white-collar criminal investigations including money laundering and health care fraud. He is significantly involved in the representation of taxpayers throughout the world in matters involving the ongoing, extensive efforts of the U.S. government to identify undeclared interests in foreign financial accounts and assets and the coordination of effective and efficient voluntary disclosures (OVDP, Streamlined Procedures and otherwise).

If you’re planning a vacation overseas in 2018 and you owe more than $50,000 in taxes, penalties and interest to the IRS, you have another thing coming. Beginning January 2018 the IRS will start implementing Internal Revenue Code section 7345.  That section was enacted in December 2015.  It says “If the Secretary receives certification by the Commissioner of Internal Revenue that an individual has a seriously delinquent tax debt, the Secretary shall transmit such certification to the Secretary of State for action with respect to denial, revocation, or limitation of a passport pursuant to section 32101 of the FAST Act.”  You’re “seriously delinquent” if you owe more than $50,000 in assessed tax, penalties and interest and the IRS has either a) filed a notice of federal tax lien and your collection due process rights have lapsed or been exhausted or b) the IRS has begun levy action.

There are a couple of exceptions – the IRS cannot certify you for passport revocation or denial if

  • you entered into an installment agreement to pay your tax,
  • collection action has been suspended because of a collection due process proceeding
  • you requested innocent spouse relief.

Certification can be reversed if the tax is paid in full, if the statute of limitations has lapsed, if the taxpayer has requested innocent spouse relief or the taxpayer has entered into an installment agreement or offer in compromise. Certification is also reversed if it was erroneous.  A taxpayer can sue the IRS in district court or Tax Court for a determination that certification was wrong or should be reversed.

The IRS is required to notify a taxpayer if it has requested the State Department to revoke or deny a passport. Notice will be sent on letter CP508C.  If certification is reversed, notice will be sent to the taxpayer on letter CP508R.

So if you owe the IRS more than $50,000 don’t start planning that trip to the South of France just yet. First, pay your past due tax.

Robert S. Horwitz – For more information please contact Robert S. Horwitz – horwitz@taxlitigator.com or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com.

The Perils of Civil and Criminal Tax Penalties: What You Need to Know

The Knowledge Group  

January 11, 2018 – Noon – 1:30 pm (Pacific)

On January 11 at Steve Toscher, Curtis Elliott, Jr. and Steve Mather will be hosting a Knowledge Group Webinar “The Perils of Civil and Criminal Tax Penalties: What You Need to Know.” The Internal Revenue Service is increasingly asserting civil penalties for domestic and international taxpayers and the recent IRS Criminal Investigation Annual Report criminal tax enforcement regarding traditional tax cases is on the rise as well.

This presentation will cover major civil penalties – including international reporting penalties; best practices in (hopefully) avoiding the civil fraud penalty and sanctions for criminal tax fraud and the differences between the two; handling sensitive IRS audits and how to avoid a prosecution referral to the Criminal Investigation Division. The presentation will also discuss the major criminal tax violations, including the pending U.S. Supreme Court case of Marinello dealing with Obstruction of IRS Administration and the role of the Federal  Sentencing  Guidelines in Criminal Tax Enforcement.

Registration information is available at:


Steve Toscher has been representing clients for more than 35 years before the Internal Revenue Service, the Tax Divisions of the U.S. Department of Justice and the Office of the United States Attorney (C.D. Cal.), numerous state taxing authorities and in federal and state court litigation and appeals.

Mr. Toscher enjoys a unique combination of solid criminal defense experience and extensive substantive tax experience to assist individuals and entities subject to sensitive government inquiries.  He has considerable experience as lead counsel in defending criminal tax fraud investigations (both administrative and Grand Jury investigations) as well as in defending criminal tax prosecutions (both jury and non-jury).

Recently, Steve Toscher received a judgment of acquittal in a matter involving allegations of a conspiracy between the client, the client’s independent certified public accountant and others relating to the clients personal taxes as well as those of the clients son and his business enterprise, including the use of a foreign bank account and a foreign trust. Others included in the indictment previously pled guilty and the former accountant testified at trial as a cooperating witness for the Government. This is believed to be among the first unsuccessful prosecutions relating to the use of matter involving use of foreign trusts and foreign financial accounts in the Government’s ongoing, extensive international enforcement efforts.

For more information please contact Steve Toscher – toscher@taxlitigator.com

AGOSTINO & ASSOCIATES –To download two great articles prepared by our very close friends at the Law Firm of Agostino & Associates in Hackensack, NJ ( http://www.agostinolaw.com ), see the Agostino & Associates Monthly Journal of Tax Controversy – http://files.constantcontact.com/f7d16a55201/c21d62be-4a0e-46dc-8d5e-efeebf699f6c.pdf?ver=1514328871000

PROTECTINGTHETAXPAYER FACINGPASSPORTREVOCATION by Frank Agostino, Esq. and Edward Mazlish, Esq. – Some taxpayers subject to passport revocation may have foreign assets. There may be agreements the taxpayer signed in connection with those foreign assets which require the taxpayer to provide his passport number for purposes of linking him to the foreign asset. If the passport is revoked, this may trigger obligations of disclosure for the taxpayer with regard to those foreign assets. The diligent tax professional should raise this issue with the taxpayer, and evaluate any foreign or domestic reporting requirements that might be triggered by a passport revocation that precludes the taxpayer from supplying a valid passport identification to the foreign custodian of the taxpayer’s assets. It may even be necessary to file amended tax returns, depending on the taxpayer’s circumstances.

If a taxpayer owes the Internal Revenue Service (“IRS” or “Service”) more than $50,000 ($51,000 after January 1, 2018) in unpaid tax liabilities (including interest and penalties) he may be subject to passport revocation. Specifically, Congress has given the IRS the ability to request that the State Department deny, revoke or limit the passports of certain delinquent taxpayers. This article explores this new tax collection device and suggests strategies for representing taxpayers facing passport revocation.

What Does the Payment of Taxes Have to Do with Issuance of Passports? What Tax Debts Could Result in the Loss of a Taxpayer’s Passport? What Should a Taxpayer Do to Avoid Passport Revocation? Does Filing for Bankruptcy Stop or Delay Passport Revocation? How Will the IRS Notify a Taxpayer That It is Requesting That the State Department Deny, Revoke, or Limit His or Her Passport? When, If Ever, Should a Taxpayer with a Seriously Delinquent Tax Debt Invoke the Right to Remain Silent? Where and How Does a Taxpayer Challenge the Certification that He or She Has a “Seriously Delinquent Tax Debt”?

FOR THE FULL ARTICLE –  http://files.constantcontact.com/f7d16a55201/c21d62be-4a0e-46dc-8d5e-efeebf699f6c.pdf?ver=1514328871000

FIFTH AMENDMENT PRIVILEGE IN TAX: HOW TO KEEP THE CASE MOVING WHILE PROTECTINGTHE TAXPAYER By Frank Agostino, Esq. and Valerie Vlasenko, Esq. – This column reviews how taxpayers and tax professionals should evaluate IRS information and document requests and when a taxpayer should decline to respond to IRS requests for testimony, documents, and other information. More specifically, this column addresses:

(1) The Fifth Amendment privilege in tax matters and its limitations;

(2) The obligations tax professionals have to their clients and the IRS;

(3) The consequences of invoking the privilege during examinations of offshore transactions; and

(4) The impact that asserting the privilege during an examination has on future proceedings before the U.S. Tax Court (“Tax Court”), U.S. District Courts (“District Courts”), and U.S. Court of Federal Claims, and during Collection Due Process (“CDP”) Cases.

FOR THE FULL ARTICLE – http://files.constantcontact.com/f7d16a55201/c21d62be-4a0e-46dc-8d5e-efeebf699f6c.pdf?ver=1514328871000

AGOSTINO & ASSOCIATES, an internationally recognized tax controversy law firm and the recipient of numerous professional awards and honors with a national practice based in Hackensack, NJ, specializes in tax and tax controversies (civil and criminal), offers in compromise, domestic and foreign voluntary disclosures, tax lien discharges, innocent spouse determinations, forfeitures, estate planning and probate, contract and contract litigation. A firm comprised truly great, caring people diligently representing their clients!

For further information, contact Frank Agostino, Esq., Edward Mazlish, Esq. or Valerie Vlasenko, Esq. directly at (201) 488-5400 or visit http://www.agostinolaw.com

Posted by: Robert Horwitz | December 20, 2017

Is It Debt? Is It Equity? Let the Tax Court Decide by Robert S. Horwitz

A question that frequently arises in tax cases is whether a transaction is debt or equity. As Judge Alex Kosinski recently noted in Hewlett-Packard, Inc. v Commissioner, Dkt. 14-73047 (9th Cir., Nov. 14, 2016), http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/09/14-73047.pdf, it is a “timeless and tiresome question of American tax law”.  In arriving at the answer, which was “we defer to the Tax Court,“ the Ninth Circuit made several digressions.  First the facts.

Normally, a corporation wants an investment to be treated as debt so it can deduct interest. Hewlett-Packard  (HP) treated its investment as equity and claimed millions in foreign tax credits (FTCs).  AIG Financial Products created a Dutch company, FOP, whose sole business was to acquire and hold contingent interest notes.  The common stock in FOP was held by a Dutch Bank, ABN.  HP paid AIG $200 million for the preferred stock in FOP.   It also paid ABN a fee for a put that allowed it to sell the shares to the bank in either 2003 or 2007.   FOP paid Holland taxes on the accrued interest on the notes.  As preferred shareholder, HP received the interest from the notes as dividends and claimed FTCs for the taxes FOP paid.  After claiming millions of dollars in FTCs between 1999 and 2003, HP exercised the put and sold the preferred shares to ABN for a $16 million loss.  Claiming that HP had purchased a tax avoidance scheme, the IRS disallowed the FTCs and the capital loss.   The Tax Court held that the transaction was debt and disallowed the FTCs.  It held that HP failed to meet its burden of proof on the capital loss.  HP appealed.

In affirming, the Ninth Circuit first looked at whether the debt-equity issue was a question of fact, of law or a mix of the two. Based on its past precedent, the Ninth Circuit views it as a question of law, but noted that there is a split in the circuits on the question.  This led to the first philosophical digression:

We hazard a few observations on this split. First, the distinction between fact and law is notoriously fuzzy, and can turn as much on convention as logic. See, e.g., Nathan Isaacs, The Law and the Facts, 22 Colum. L. Rev. 1 (1922). Second, calling this a mixed question rather than a factual one doesn’t add much focus: If it’s a mixed question, we still ask whether the trial court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). But this just means that “[w]hen an appellate court reviews a district court’s factual findings, the abuse of discretion and clearly erroneous standards are indistinguishable.” Id. at 401. Thus, calling this a “mixed question” succeeds only in pushing the conceptual conundrum back one step: Are we reviewing a factual finding or not?

Because corporate tax planning often “involves abstruse transactions that generalist appellate courts are ill-equipped to untangle ,” the Ninth Circuit decided that the best approach was to defer to the Tax Court.

The Ninth Circuit next discussed its traditional approach to resolving the debt-equity question: application of a non-exclusive eleven-factor test that it described as not a “bean-counting exercise” but a test meant to guide a court in resolving the factual issue. It then digressed on whether the issue is one of intent, as it had intimated in earlier cases:

We think the best way to read our precedent is as follows: Our test is “primarily directed” at determining whether the parties subjectively intended to craft an instrument that is more debt-like or equity-like. A quest for subjective intent always requires objective evidence, hence the eleven factors. On this account, all factors on the list could be described as “evidence of intent.” Direct, objective evidence of intent—say, an email from an executive stating he wishes to create an unalloyed debt instrument—is one of the eleven, and it matters. But assertions of intent don’t resolve our inquiry, which considers all the “circumstances and conditions” that speak to subjective intent. Bauer, 748 F.2d at 1368. Proclaiming an intent to create an instrument that is “debt” or “equity” doesn’t make it so.

Our precedent’s preoccupation with intent is nonetheless a little puzzling, since it suggests that a taxpayer could achieve debt treatment for an instrument that functions as equity (or vice versa), so long as he had the right state of mind in crafting the instrument. Were we writing on a barren slate, we might say that our test is simply directed at determining whether an instrument functions more like debt or equity. There’s nothing magical about intent. Nonetheless, we believe our circuit’s roundabout intent-based test merges with this simple function test in all but a few outlandish cases.

After these musings, the Ninth Circuit had no difficulty reaching its decision: the Tax Court didn’t err in finding that the transaction was best characterized as debt, resulting in the FTCs being disallowed.  The Tax Court also did not err in determining that HP purchased the put as part of an integrated transaction.  The Tax Court’s determination that the “capital loss” was really a fee to participate in a tax shelter was not clearly erroneous.  Thus disallowance of the capital loss was also affirmed.  One part of HP’s agreement with AIG didn’t help its claim that the transaction was not a tax scam:  “A clawback agreement even obligated AIG to compensate HP if HP didn’t get its desired tax results.  HP almost got its desired tax results.”

Along with Pritired 1, LLC v. United States, 816 F. Supp. 2d 693 (S.D. Iowa 2011), and the STARS transaction cases (Bank of New York v. Commissioner, 801 F.3rd 104 (2nd Cir. 2015) aff’g 140 T.C. 15 and 111 AFTR 2nd 2012-1472 (SD NY)), this case involved the IRS’s challenge to what it terms “foreign tax credit generators.” These cases involve complex financial structures whose primary impact is to generate foreign tax credits for major corporations.  It is not the normal debt-equity case in which a taxpayer funds an operating business in which it has an ownership interest.  Maybe what the Ninth Circuit finds “timeless and tiresome” is the shenanigans major corporations engage in to reduce their tax liabilities.

For more information please contact Robert S. Horwitzhorwitz@taxlitigator.com or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com.




As the holidays approach, it is a great time to think about your clients who have had difficulty paying their taxes. Below is a Top 5 list of enforced collection issues to think about this December.

  1. Collection Moratorium / Current Compliance – Although it is not an official policy position, during most of December the IRS limits its enforced collection of outstanding taxes.   This generally means decreased levies, wage garnishments and other seizures. While only temporary, this short break provides an opportunity for your clients to get back on their feet and start the next year (hopefully) by being currently compliant with their estimated taxes and withholdings.
  2. Practitioner Hotline Hold Times – As with the IRS employees that have use-it-or-lose-it time off, your tax preparer colleagues also take time off during December. As of the time of writing this article, the hold time for the practitioner hotline was only 10 minutes! Consider blocking off an hour each of the next few weeks to call the IRS to resolve outstanding collection issues or request account transcripts.
  3. Collection Information Statements – As the filing season approaches after the year end, we will all become much busier with the 2017 tax return filing season. Consider preparing the financial information (Form 433-A for individuals and Form 433-B for businesses) to send to your assigned Revenue officer during December. Gathering the end of year bank statements will also help you get a jump start on fourth quarter information that you will need anyway when preparing the 2017 returns in the coming months.
  4. Payment of Prior Year State Taxes / 2017 Tax Legislation – With the potential limitation of 2018 state tax deductions to $10,000, clients with large outstanding state tax liabilities should consider payment of their prior year taxes before the year end.   While the tax benefit may still be phased out because of alternative minimum provisions that are still applicable for 2017, you should walk through potential payment advantages with your clients. You will potentially be saving them money and you will also be showing them that you are current on legislative issues that may impact them.  Also, please note that this blog post addresses payment of past tax liabilities, but the proposed legislation specifically excludes prepayment of 2018 state income tax liabilities in 2017 to get the state tax deduction before the benefit is substantially limited in 2018.
  5. First Time Abatement of Late Payment Penalties – If you client has otherwise been compliant with taxes, consider whether your client is eligible for late payment penalty abatement. To qualify, the taxpayer must have filed all required returns currently due and paid (or arranged to pay) any tax currently due. Additionally, the taxpayer may not be eligible if they were subject to penalties in one of the three years preceding the tax year that is being collected. See IRM (11-21-2017).

CORY STIGILE – For more information please contact Cory Stigile – stigile@taxlitigator.com  Mr. Stigile is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a CPA licensed in California, the past-President of the Los Angeles Chapter of CalCPA and a Certified Specialist in Taxation Law by The State Bar of California, Board of Legal Specialization. Mr. Stigile specializes in tax controversies as well as tax, business, and international tax. His representation includes Federal and state controversy matters and tax litigation, including sensitive tax-related examinations and investigations for individuals, business enterprises, partnerships, limited liability companies, and corporations. His practice also includes complex civil tax examinations. Additional information is available at www.taxlitigator.com

A U.S. person with foreign financial accounts worth over $10,000 during the calendar year is required to file a Foreign Bank Account Report (FBAR). Failing to file can result in either a “non-willful” or a “willful” penalty under 31 USC §5321(a)(5).  If the failure is non-willful, the person can avoid liability under the reasonable cause exception of  §5321(a)(5)(B)(ii):

Reasonable cause exception.—No penalty shall be imposed under subparagraph (A) with respect to any violation if—

(I) such violation was due to reasonable cause, and

(II) the amount of the transaction or the balance in the account at the time of the transaction was properly reported.

In Jurnagin v United States, Ct. Fed. Cl. (Nov. 30, 2017), https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2015cv1534-36-0 , the Court granted the Government’s motion for summary judgment and held that the taxpayers failed to establish reasonable cause for not filing FBARs because they did not review their income tax returns.

The Jurnagins were married in 1966. Mr. and Mrs. Jurnagin were both high school graduates who had taken a couple of college courses.  Mr. Jurnagin obtained a barber license and his wife became a real estate agent.  They were very successful, eventually owning a string of barbershops, ranches in Oklahoma and British Columbia and apartment complexes in the U.S.  Mr. Jurnagin became a Canadian citizen and resided 9-10 months each year in Canada.  His wife spent most of her time in the US watching their U.S. business interests.  They had a bank account in Canada that, in 2006, had a balance of $4 million.  They never filed FBARs reporting the Canadian account.

For 2006, 2007, 2008 and 2009, the Jurnigans used a U.S. accountant to prepare their U.S. tax returns and a Canadian accountant to prepare their Canadian tax returns.   The U.S. accountant provided information to the Canadian accountants.  The Jurnigans never asked their U.S. accountants if they knew anything about international taxation.  They never told their U.S. accountant that they had a Canadian bank account and did not give him statements for the account.  They gave their U.S. accountant annual financial statements that listed the Canadian account.  Their U.S. accountant testified that he knew about the Canadian account from reviewing the statements.

Schedule B, Part III of Form 1040 asks whether the taxpayer had an account overseas and refers to the FBAR form. The U.S. accountant checked “no” to the box.  The Jurnigans never discussed their returns with their U.S. accountant and did not review them before signing, other than to see the amount of tax they owed.

The IRS assessed four $10,000 non-willful penalties against Mr. Jurnigan (one each for 2006, 2007, 2008, and 2009) and four $10,000 penalties against Mrs. Jurnigan. The Jurnigans paid $80,000 and sued for a return of the monies plus interest.  The Government and the Jurnigans filed cross-motions for summary judgment.  The Jurnigans claimed that they had reasonable cause because 1) they hired a competent accountant, 2) they provided the accountant with information and 3) they relied on the accountant.  The Court held that this did not cut the mustard.

The Court looked to the regulations under the Internal Revenue Code defining “reasonable cause.” To establish reasonable cause, a taxpayer must act with ordinary business care and prudence in ascertaining her tax liability. In ruling for the Government, the Court assumed that the Jurnigans’ accountants were competent and that they knew about the Jurnigans’ Canadian account.  This was not enough to show ordinary business care and prudence.  Despite their Canadian residence and business interests, the Jurnigans did not ask their U.S. accountant how this impacted their U.S. tax obligations and they did not discuss the Canadian account with him.

They also did not review their income tax returns. Citing Williams, 489 F. App’x 655 (4th Cir. 2012), for the proposition that a taxpayer is charged with knowing what is in her tax return, the Court stated that the Jurnigans should have read their returns before signing.  If they had done so, they would have seen that the returns incorrectly checked the “no” box and would have noticed the reference to FBAR forms.  This would have led them to tell the accountant about the Canadian account and ask about the FBAR Form.  The Jurnigans did not do this.   While reliance on the advice of a tax professional can establish reasonable cause, the Jurnigans never requested or received advice about any filing requirements due to their Canadian account.  The Court noted that their U.S. accountant testified that he was unaware of the FBAR requirement and thus the Jurnigans could not have relied on him.

The [Boyle] Court acknowledged that “[w]hen an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice.” Boyle, 469 U.S. at 251 (emphasis in original). Such “reliance” however, “cannot function as a substitute for compliance with an unambiguous statute.” Id. The Court thus held that “failure to make a timely filing of a tax return is not excused by the taxpayer’s reliance on an agent, and such reliance is not ‘reasonable cause.’”

The moral of the case is that taxpayers are obligated to read their income tax returns before filing and bring any errors to their return preparer’s attention. The Court in its opinion did not mention the second part of the “reasonable cause” exception, which is that the taxpayer filed an FBAR that reported the balance in the account.  Thus, even if the Jurnigans had discussed their Canadian account with their U.S. accountant and he had given erroneous advice, it would not have gotten them out of the penalty.

ROBERT S. HORWITZ – For more information please contact Robert S. Horwitz – horwitz@taxlitigator.com or 310.281.3200  Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com

A defendant convicted of a tax crime can be ordered by the district court to pay the IRS restitution equal to the amount of the tax loss. As part of the 2010 Firearms Excise Tax Improvement Tax, Congress added sec. 6201(a)(4) to the Internal Revenue Code.  That section authorizes the IRS to “assess and collect the amount of restitution *** for failure to pay any tax***in the same manner as if such amount were such tax.”  The assessment of restitution is not subject to notice of deficiency procedures.  The IRS claims it can assess interest from the due date of the return plus failure to pay penalties on the amount of restitution without a notice of deficiency. In a case of first impression the Tax Court told the IRS “NO.”

In 2011, Samuel and Zipora Klien each pled guilty to one count of filing a false income tax return. The district court ordered them to pay restitution of $562,179 for 2003-2006.  They paid the restitution amount.  In 2012, the IRS assessed the restitution amount under IRC sec. 6201(a)(4), plus interest from the due dates of the return and failure to pay penalties.  When the taxpayers failed to pay the interest and penalties, the IRS filed a Notice of Federal Tax Lien (“NFTL”).  The taxpayers protested on the ground that the penalties and interest were not properly assessed. IRS Appeals sustained the NFTL and the taxpayers petitioned the Tax Court.

The Court focused on the meaning of “in the same manner as if such amount were such tax,” which the Court noted is in the subjunctive mood.  The Court found that 6201(a)(4) was adopted for the sole purpose of enabling the IRS to assess the restitution amount, thus creating an account receivable against which any restitution payment can be credited.  The section was not meant to make the restitution amount a “tax.”  Interest on the other hand is assessed and paid on “tax imposed by” the Internal Revenue Code.  Failure to pay penalties are imposed for failure to timely pay tax.  Since restitution is not a “tax,” assessments of restitution “do not generate” interest or penalties.

The Court refused to defer to the Internal Revenue Manual provisions that state that interest and penalties are assessed on restitution. The Court did offer some solace to the IRS: if it wanted to assess penalties and interest it could do so after the taxpayers’ correct civil tax liability was finally determined.  The case is Klein v. Commissioner, 149 TC No. 15 (Oct. 3, 2017), available at https://www.ustaxcourt.gov/UstcInOp/OpinionViewer.aspx?ID=11428.

ROBERT S. HORWITZ – For more information please contact Robert S. Horwitz – horwitz@taxlitigator.com or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at http://www.taxlitigator.com




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