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Proposed Legislation to Combat Identity Theft and Override Loving

Posted on Sep. 15, 2015

We have written extensively on the separate but at times related issues of identity theft and refund fraud. Last week, for example, guest poster Rachael Rubenstein wrote an update on identity theft issues; the post generated spirited comments including one by Bob Kamman essentially suggesting that lots of the blame lies with Congress and the administrations for failing to step up and provide the means necessary for the IRS to step into the 21st century, unlike Bob’s example of  tax administration powerhouse Estonia. Senate Finance staffers gobbling up our posts and comments have sprung to action, with the Senate Finance Committee scheduling an open executive session tomorrow at 10 AM to mark up a bill designed to “prevent identity theft and refund fraud.”  (link to the session is here)

My ear is not to the DC ground but the bill has the bipartisan support of the Chair, Senator Hatch, and ranking Democrat Senator Wyden. A press release announcing the mark up is here; a description of the Chair’s mark up can be found here, and a summary can be found here.

Some of the key proposals in the legislation include requiring the IRS to reduce burdens on identity theft victims. The IRS would also be required to consider and report on measures it is taking to detect and combat identity theft and also study the possibility of allowing someone to file an affidavit blocking the e-filing of returns.

I have previously discussed how thieves take advantage of the IRS look-back compliance model and how earlier matching of information returns before issuing refunds is a crucial measure that can give the Service the means to stop the outflow of funds through identifying discrepancies. Importantly, the legislation includes a number of measures to give the IRS the power to move away from that model. For example, it would push up the filing of W-2, W-3 and 1099 MISC to 15 days after the due date for payee statements, as well as require the IRS to study the possibility of moving up deadline for other information returns. The bill also facilitates the means to get the IRS off its look-back model through requiring many small businesses to transition from paper W-2 and 1099 filing to e-filing and mandates that e-prepared returns that are paper filed have a scannable code allowing the IRS to process the return information more efficiently. Moreover, as the summary describes, the bill allows the IRS to access data in the National Directory of New Hires “for the sole purpose of identifying and preventing false or fraudulent tax return filings and claims for refund.”

There is more in here too, including an increase in penalties on preparers who improperly use taxpayer information and an override of Loving by giving Treasury authority regulate all aspects of tax practice, including paid tax return preparers. It also gives IRS the authority to revoke PTINs of preparers.

This legislation has the potential to be a game changer for tax administration. While the passage of the legislation is unlikely to be a walk in Lahemma perhaps the confluence of high profile cyber thefts and apparent bipartisan support will begin to tip the scales away from those who view the tax system as an open cookie jar.

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