Let’s talk a bit about the tax statute of limitations.
There are two limitations periods, and it is the second one that can lead to odd results.
(1) The first one is referred to as the limitations on assessments. This is the three-year period that we are familiar with. The IRS has three years to audit your return, for example. If they do not, then – in general – the opportunity is lost to them.
There are a number of ways to extend the three-year period. When I was young in the profession, for example, tax practitioners would “hold back” certain tax deductions until the client was closing-in on the three years. With a scant few and breathless days remaining before the period expired, they would file amended tax returns, thereby obtaining a refund for the client and simultaneously kneecapping the IRS’ ability to look at the return.
The rules have been revised allowing the IRS additional time when this happens. I have no problem with this change, as I consider the previous practice to be unacceptable.
(2) The second one is the collections period, and this one runs ten years.
Say you filed your return on April 15, 2014. You got audited and the IRS assessed $15,000 on December 15, 2015. The IRS has ten years – until December 15, 2025 – to collect.
There are things that can extend (the technical term is “toll”) the collections period. Make an offer in compromise, for example, and the period gets tolled.
Sometimes tax practice boils down to letting the ten-year period click-off, hoping that the IRS does not initiate action. It happens. A few years ago I had a client who had moved to Florida, remarried and had her new husband involve her in an unnecessary tax situation. It was extremely unfortunate and she was extraordinarily ill-advised. He passed away, leaving her as the remaining target for the IRS to pursue. She had a fairness argument, but that meant as much as a snowball in July to IRS Collections. They have a different mind frame over there.
So I am looking at a case where a taxpayer (Grauer) had an issue with his 1998 tax return. He filed it late (in 2000). That was his first problem. He owed around $40 grand, which quickly became almost $58 grand when the IRS was done tacking-on interest and penalties. That was his second problem. He could pay that much money about as easily as I can fly.
In 2001 he signed a waiver, extending the ten-year collections period.
What makes this point interesting to a tax nerd is that someone would not (knowingly) sign a waiver without something else going on. In fact, Congress disallowed this in the late nineties, responding to perceived IRS abuses - especially in Collections.
Sure enough, the IRS said that he signed an installment agreement in 2001 (around the time of that waiver), but that he broke it in 2006
Grauer said that he never signed an installment agreement.
It was now 2013, and off to Tax Court they went.
The Court looked at the account transcript, which showed that the IRS had issued an earlier Notice of Intent to Levy. This was an immediate technical issue, as the Court would not have jurisdiction past the first Notice. The IRS persuaded the Court that the transcript was wrong.
COMMENT: Your transactions with the IRS go to your “account.” That account is updated whenever a transaction occurs. The posting will include a date, a code, and sometimes a dollar amount and perhaps a meaningful description. Some codes are straightforward, some are cryptic.
The Court next observed that Grauer asserted that he had not signed a payment plan. In legal jargon, this was an “affirmative defense,” and the IRS had to prove otherwise. The IRS argued that its transcript was correct and that Grauer was incorrect.
The Court was a bit flummoxed by this response. The IRS was having it both ways.
The Court told the IRS to “show us the installment agreement.”
The IRS could not.
The Court went on to describe the IRS account transcript as “indecipherable and unconvincingly explained.”
The Court decided for the taxpayer.
Remember: ten years had passed. The waiver needed to attach to something. In the absence of something, the waiver fizzled and had no effect.
The statute had expired.
Did the taxpayer get away with something?
I don’t know, but think about the alternative. Let’s say that the IRS could post whatever it wanted – to speak bluntly, to make things up – to your account. You then get into tax controversy. You are required to prove that the IRS did not do whatever it claimed it did. Good luck to you in that scenario. I find that result considerably more unacceptable than what happened here.
About the author
Steven D. Hamilton is a career CPA, with extensive experience involving all aspects of tax practice, including sophisticated income tax planning and handling of tax controversy matters for closely-held businesses and high-income individuals.