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Tax Court Determines IRS Actions Do Not Violate Restrictions on Second Examinations

Posted on Jan. 23, 2018

The moral of the story in Planty v. Commissioner, T.C. Memo. 2017-240 is that if you ask the IRS to take another look at your return you cannot successfully claim that this “look” is a second examination of the return subject to the rules and approvals that limit the IRS’s ability to take a second look. In this case, the IRS examined the taxpayers’ return and seemed to have some difficulty coming to the final answer. After some fits and starts, the IRS made a determination and an assessment of $2,755. I could not determine from the description of the case how the IRS obtained permission to make the assessment but it does not seem to be a troublesome aspect of the case for the parties or the court.

After the IRS made the assessment and before paying the additional assessed tax, the taxpayers immediately submitted a Form 1040X claiming a refund of $1,560. The IRS treated the Form 1040X as a request for abatement. After looking at the request, the IRS decided that the taxpayer really owed a corrected tax liability of $64,704. Petitioners concede that the adjustment is correct subject to their argument that the adjustment resulted from an impermissible second examination of the tax year. Additionally, the IRS imposed an accuracy related penalty on this additional tax.

Second Exam

The Court states that “we may deal summarily with petitioners’ claim that they were subjected to an impermissible second examination of their 2010 return.” The Court cites to IRC 7605(b) which sets out the rules on second exams. The Code does not prohibit second exams but does require that the IRS go through a high level approval process. Most of the time the IRS will not do this because it spotlights that the original examiner and exam manager made a large mistake and provides proof of the mistake to their high level manager. Bureaucrats do not like to highlight their mistakes to high level management since doing so has a tendency to suppress future advancement and current bonuses.

In response to the taxpayers’ argument that the IRS engaged in an impermissible second examination, the IRS responded that IRC 7605 has “no bearing upon the Commissioner’s authority to examine tax returns already in his possession.” The Court points out that it would have been very difficult for the IRS to make a determination regarding their claim for refund without pulling the return and looking at it. Since the IRS was looking at the return to satisfy petitioners’ own request, doing so did not run afoul of IRC 7605.

Petitioners’ actions here point to the problem taxpayers have when they want to file an amended return. They think they are due a refund which they would like to receive ASAP; however, making the request for the refund will cause the IRS to scrutinize their return. Here, the quest for a $1,500 refund results in a $64,000 liability, plus a 20% penalty for good measure. Petitioners should have waited to file their request until the statute of limitations on assessment was about to expire. Had they waited, the IRS would still have denied their refund request but would not have hit them with the large assessment. Their impatience proves very costly.

So, the lesson here is not only should you not argue about an impermissible second exam when you have caused the IRS to look at the return but you should not make the request with gobs of time left on the assessment statute of limitations.

Accuracy Related Penalty

Taxpayers here not only brought unnecessary attention on their return costing themselves over $60,000, but they ramped up the liability to the point where the IRS felt obliged to penalize them adding insult to injury regarding their mistake for filing the Form 1040X too early. The Court finds that taxpayers’ return contains an understatement of the tax. It states that based on the proof provided by the IRS, taxpayers’ only hope of averting the penalty is to mount a credible defense based on substantial authority, adequate disclosure, or reasonable cause.

Taxpayers’ understatement resulted from their erroneous claim of almost $150,000 of real estate losses. The Court quoted from the regulations on the standard for substantial authority which requires that “the weight of authorities supporting the treatment is substantial in relation to the weight of authorities supporting contrary treatment.” The Court also pointed out that this is an objective and not subjective standard, and that the existence of a legal opinion does not by itself create substantial authority. Here, the IRS disallowed the loss because of the passive activity loss rules. As authority, taxpayers pointed to an opinion from a tax attorney and the failure of the IRS to notice the issue when it first looked at their return.

Unfortunately, at trial taxpayers did not call the tax attorney to testify. So, the Court says it does not have any evidence to know why she gave the advice and whether her opinion had a basis in tax authorities that would allow the taxpayers to meet the substantial authority test. The Court also finds that the failure of the IRS to notice the issue initially does not constitute substantial authority pointing to provisions in the regulations on precisely this point.

The Court points out that adequate disclosure has no effect unless the return position has a reasonable basis and the failure of the tax attorney to testify leaves the Court without an ability to determine if there was a reasonable basis. With respect to reasonable cause, the taxpayers admitted that the tax attorney did not prepare their return and they could not show that the return preparer gave them advice with respect to this item that could cloak them with a reason for taking the erroneous position on their return.

Conclusion

The penalty portion of the opinion follows routine patterns but points to the need to obtain the testimony of any tax professional upon whom the taxpayer relies for the position taken on the return. It is not clear that taxpayers would have won if the professional had testified, but without the testimony a loss on the penalty issue was almost a foregone conclusion costing the taxpayers another $10,000 on top of the over $50,000 liability they picked up by filing the amended return.

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