In Richard H. Levin and Linda D. Levin v. Comm’r, T.C. Memo 2018-172, Filed October 15, 2018, the Tax Court ruled that IRS Appeals had acted appropriately in denying taxpayers’ proposal for an installment agreement and sustaining IRS Collections proposed levy action. Taxpayers created a liability for tax year 2010 of $468,696, prior to assessment of penalties and interest. Taxpayers’ representative proposed a payment agreement to the IRS wherein taxpayers would pay their liability within four months. During that time, taxpayers made a $50,000 payment. The IRS issued a final notice of intent to levy, at which point the taxpayers requested a Collection Due Process hearing with IRS Appeals. There is a lengthy narrative in this case regarding the details of financial information. During this time, the Appeals office indicated that the taxpayers must remain compliant with their current tax liabilities in order to qualify for a payment agreement. Taxpayers also requested a face to face meeting with IRS Appeals. IRS ultimately agreed to the face to face meeting – which caused a lengthy delay of over a year. Rather than take advantage of the time to liquidate assets and pay down the tax debt, taxpayers liquidated one of their four homes and paid off other creditors in an amount in excess of the IRS debt – approximately $575,000. These creditors included State taxing authorities and credit cards. They additionally capitalized taxpayer husband’s new law firm in the amount of $281,000. Persistently during negotiations with the IRS, the taxpayers’ representative argued that the filing of a tax lien would have a detrimental effect on taxpayer husband’s ability to earn income in his law firm. The Court ruled that the taxpayers “have repeatedly chosen not to prioritize payment of their 2010 outstanding Federal income tax liability. Indeed their failure to use net proceeds of $843,293 from the sale of their Los Angeles, California home to pay their 2010 liability was particularly brazen.” The Tax Court confirmed the reasonableness of the Appeals’ Settlement Officer to file a notice of Federal Tax Lien and to reject the taxpayers’ proposed installment agreement.
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In the past couple of years, the IRS has dramatically changed its formula for calculating the amount a taxpayer must pay to settle a tax debt. Fundamentally, the changes were favorable for the taxpayer and the IRS appears to better understand that acceptance of an Offer in Compromise likely results in collection of more tax dollars than simply continuing to enforce collection efforts through levies and lien filings. However, the movement towards a more favorable calculation by the IRS of the taxpayer’s ability to pay, and thus the taxpayer’s reasonable collection potential, has actually been further adjusted in a manner that removes some of the initial excitement about formula changes to Offer calculations.
The basis of acceptance of most Offers in Compromise is doubt as to collectability. Basically, the IRS performs an analysis of a taxpayer’s financial situation and if the taxpayer’s ability to pay is less than the amount they owe, then the taxpayer could theoretically qualify for an Offer in Compromise settlement. The ability to pay analysis consists of the calculation of both a taxpayer’s equity in assets and “future income potential.”
A taxpayer’s future income potential for a settlement is typically calculated by performing a monthly financial analysis in which the IRS compares gross earnings to allowable expenses to determine if there is any excess monthly income remaining from which the taxpayer could pay the IRS. If so, this excess income was historically multiplied by a factor – either 48 or 60, to determine the future income potential portion of a settlement Offer. The taxpayer would be allowed to multiply the excess monthly income by 48 if the Offer was for a lump sum settlement, and 60 if the payments were to be made over a couple of years.
Recently, a favorable adjustment was made to the multiplier. Rather than asking the taxpayer to multiply excess income over expenses by 48 for a lump sum Offer, the IRS dramatically adjusted this number down to 12! And, rather than multiplying by 60 for a short term payment Offer over up to a couple of years, the multiplier was altered to 24!
This seemed almost too good to be true. And in part, it was. The IRS clarified, through the adoption of guidance in its Internal Revenue Manual, that even if a taxpayer calculates that he or she qualifies under the new formula, the taxpayer will not qualify for a settlement Offer if the IRS could collect the entire debt through establishment of an Installment Agreement over the statutory period of collections, unless there are special circumstances.
What this means is that at the time of analyzing a taxpayer’s situation, it is important to be aware that even though the formula indicates a taxpayer would qualify for a settlement, if the monthly excess income over expenses would retire the debt under the statute of limitations, then the taxpayer is wasting time submitting an Offer. Furthermore, the taxpayer will be putting the statute of limitations for collection on hold while the defective Offer is under review, and for a period of time after rejection.
Here’s a simple example of how this would work. Assume a taxpayer owes $50,000 in tax debt. If the taxpayer just filed the return, the IRS will have 10 years, or 120 months to collect the debt, with exceptions for extensions of time – such as when an Offer is filed. If the taxpayer has no equity in assets, but a financial analysis shows an ability to pay $1,000 a month, the taxpayer might think a lump sum Offer would be a good way to put the debt to rest forever. Under the lump sum analysis, the future income potential would be $1,000 x 12 or $12,000. With no equity in assets, this is less than the tax debt and would make this look viable. Even the short term Offer looks good as the future income potential would be $1,000 x 24 or $24,000. The settlement would be paid over 24 months, or $1,000 per month.
The reality in the above example is that the Offer will be rejected, absent special circumstances, because the monthly future income potential of $1,000 multiplied by the life of the collection statute exceeds the tax debt as follows: $1,000 x 120 months (or 10 years as the return was just filed) = $120,000. The exception to this is if special circumstances exist as disclosed on submission of the Offer. Generally, special circumstances would include creation of economic hardship, or alternatively, compelling public policy or equity factors, such as health concerns or age, could tip the analysis in favor of settlement, in spite of the above.
Fundamentally, and especially because of the fact that the statute of limitations is placed on hold during a lengthy analysis period (several months), a taxpayer has to be careful to review their particular situation so that submission of an Offer in Compromise doesn’t do more harm than good. If you would like assistance with your tax matter, or the tax situation of a client, please don’t hesitate to contact us.
Tags: Installment Agreement, Collection Statute Expiration Date, Future Income Potential, Partial Payment Installment Agreement, Offer in Compromise, IRS debt, Tax Debt, Internal Revenue Manual, CSED, Protracted Installment Agreement, IRS
have many opportunities to deal with this situation - but the most important thing to remember is that taking action sooner is better than waiting. Your timely response can provide you with an opportunity to review your financial situation and determine if it is best to use other resources to retire your tax debt. Tax liens are not filed right away and as such, it may be in your best interest to borrow against the equity in your real estate. Once a tax lien is filed, which happens in many cases, your likelihood of getting a loan is greatly reduced.
Should you not have the ability to borrow money to pay off the tax debt, the time immediately after filing your return is the best time to analyze your financial situation to determine what options you have. Once the IRS begins to send you notices, they will ultimately issue a Final Notice of Intent to Levy and then they have the right to seize assets and levy income.
If a professional is assisting you with your financial analysis, they are working to put together a Collection Information Statement. This document will allow the person assisting you to determine if you are a candidate to submit a settlement proposal to the IRS - known as an Offer in Compromise. Nobody can tell you that you are a good candidate for a settlement unless they complete a full financial analysis and know how much you owe in taxes, interest and penalties.
The Collection Information Statement is not only utilized to determine if you are a candidate for an Offer in Compromise settlement, but this document is also used to determine what you can pay on an Installment Agreement, a Partial Payment Installment Agreement, or if you are a candidate for the Currently Not Collectible Status.
An Installment Agreement is an agreement to full pay your outstanding balance plus interest and penalties over a period of time. There are instances where you do not have to disclose all of your financials in order to set up an Installment Agreement. This is typically based on the amount you owe the IRS and the amount of time remaining for the IRS to collect the debt - the statute of limitations on collections.
A Partial Payment Installment Agreement is an agreement where you will pay the IRS a monthly payment, but that payment amount would not pay off the entire debt before the IRS statute of limitations to collect runs out. Because there is a possibility that the IRS will not collect all of the tax liability from you, they reserve the right to review your financial situation every couple of years.
In addition to the above, many taxpayers qualify for placement in Currently Not Collectible status. This status is given when you substantiate to the IRS through financial disclosure on a Collection Information Statement that you do not have any equity in assets, nor do you have the ability to make a monthly payment. When placed in this status your debt continues to grow from accrual of interest and penalties. The IRS will review your financial situation from time to time to determine if you can begin paying something toward the tax debt.
Given the fact that the IRS has the power to levy your wages or seize assets if they issue a Final Notice of Intent to Levy, it is important to be aware of the status of collections of your tax debt. When the Final Notice of Intent to Levy is issued, the taxpayer has the right to have the matter reviewed by Appeals Division of the IRS. This review is independent of the Collection Division and the reviewing officer has the ability to establish one of the plans above. Sometimes this is advantageous as the taxpayer's matter is assigned to a single caseworker rather than a service center where the taxpayer has less of an opportunity to work directly with an IRS employee.
As can be seen from the above, there are many options to deal with your tax obligations. The situation can only get better by dealing with it sooner. If you have tax liabilities you can't pay, please contact us. We would be happy to provide you with guidance to determine how best to proceed.
Since its inception in 2005, this collection resolution has become a common way to resolve IRS problems in our office. Given the fact that the Offer in Compromise program only solves a relatively few taxpayers’ problems (offer acceptance has been fewer than 15,000 Offers accepted a year in the past few years), it is necessary to explore other resolutions when assisting a taxpayer with a delinquent balance.
In 2005 Congress allowed the IRS to enter into installment agreements that only partially pay a tax liability. This was accomplished by amending Internal Revenue Code section 6159. It is Congress’ reference to “partial collection” of the tax debt that caused the IRS to label this type of agreement Partial Payment Installment Agreement (PPIA).
The statute requires that in order to enter into one of these agreements, the IRS must “review the agreement at least once every 2 years.” Congress was balancing the need to collect revenue now by entering into a payment agreement with a taxpayer that would not fully pay the debt, against the possibility that the taxpayer may have more means to pay later. As such, the IRS will review the taxpayer’s status at a later date to determine if he or she can pay more.
A few things have to happen in order to establish a PPIA. The taxpayer must complete a full financial analysis to determine an ability to pay. During the course of this financial analysis, the IRS will review the taxpayer’s equity in assets. Because the PPIA will not pay the entire debt based on the payment amount at establishment, the IRS will expect the taxpayer to either liquidate or borrow against equity in assets before establishing a PPIA. It is not an absolute requirement that the equity be borrowed against or liquidated; however, the taxpayer must seek to take these actions before the PPIA will be established.
In order to understand the concern of the government when establishing a PPIA, it is important to understand the statute of limitations for collection of a tax debt. An important date in the analysis of any delinquent taxpayer’s tax debt is the Collection Statute Expiration Date
(CSED). This is the date on which the IRS loses the ability to collect a tax debt, or the collection statute of limitations. This date is generally 10 years from the date of assessment, which is when the tax return is processed or the IRS creates a balance for the taxpayer. Some actions stop the running of this statute, such as the filing of a bankruptcy, a submission of an Offer in Compromise, or a variety of appeal actions before the IRS. Therefore, you can’t assume that you know the exact date of the CSED based on a return filing date.
After equity in assets is addressed, the IRS will review the taxpayer’s future income potential. This number is generally the taxpayer’s gross monthly income less allowable expenses. If equity is addressed and the taxpayer has some ability to pay, but not enough to fully pay the tax debt before the CSED, then the taxpayer would generally qualify for a PPIA.
A simple example would be a taxpayer that owes the IRS $50,000. If that taxpayer had $20,000 of equity in her home, she would be expected to try to establish she can’t borrow against it. If this is the case, then the IRS would look at her future income potential. If the CSED is 60 months and the taxpayer can pay $300 per month, the IRS would establish a PPIA knowing that at the time of establishment of the PPIA, the taxpayer would only pay $300x60 = $18,000. The IRS would review the agreement at least every two years to determine if the taxpayer could pay more.
In the above example, and all PPIAs, once the CSED expires, all remaining tax debt is closed out and not collected by the IRS. In other words, the taxpayer effectively pays less than the total tax debt, though there is no technical settlement.
The PPIA is a good option that removes many taxpayers from risk of enforcement actions like levy and seizure. A tax lien is typically filed at the time of establishment of the PPIA if one has not already been filed. Further, like many other resolutions, if the taxpayer fails to remain compliant with his return filings and current year tax payments, he will default the PPIA even if he is making payments.
Should you have questions about Partial Payment Installment Agreements or any other resolution options for delinquent IRS matters, feel free to contact our office.