What is an IRS Penalty Abatement and Am I Eligible for One?

There are different types of IRS penalties that can be assessed against you. The most common penalties include those for failing to file a tax return, filing your return late, or accuracy-related penalties if you didn’t correctly state items on your tax return. But were you aware that sometimes, the IRS can issue penalty abatements if you believe you’ve been penalized unfairly?

Civil penalties for underpayment, late filing, or erroneous inaccuracy may be eligible for abatement, but criminal penalties for tax protest and willful violations of the law are not. There is also the first-time penalty administrative waiver program (FTA) that applies in certain cases. Here’s what you need to know about successfully fighting IRS penalties and determining eligibility for the waiver program.

What a Penalty Abatement Does NOT Include

Regardless of whether you are trying to secure an ordinary penalty abatement or relief under the FTA program, penalty abatement procedures are only for the penalties themselves. They do not include interest on unpaid taxes, the amount of the taxes themselves, or any related processing fees such as installment agreement setup charges.

If your abatement request is successful, only the interest charged on the penalty would be abated, opposed to interest on unpaid taxes.

Proving Hardship for Failure to File or Failure to Pay Penalties

The failure to file penalty kicks in if you file your tax return late, or not at all, and is based on 5% of your unpaid taxes every month (up to 25% of your total balance due). The best way to avoid this penalty is to file for a six-month extension prior to the tax filing deadline if you don’t think you’ll get your return filed on time. The extension won’t waive interest, taxes, or penalties for failure to pay or deposit, but it will eliminate the failure to file penalty, which is much higher.

The IRS will consider penalty abatement requests provided that you have reasonable cause for not being able to file or pay your taxes in a timely manner. Valid hardships, such as hospitalization, natural disasters, or fleeing domestic violence, are factored into reasonable cause to get certain civil penalties waived.

Failure to pay penalties result from having an unpaid balance due, with 0.5% being charged every month. Simply lacking funds to pay your taxes doesn’t necessarily equate to hardship to file your tax return on time or pay your tax bill. However, if you have a continuous lack of funds due to disability or chronic illness, a death in the family, or similar hardships, you may be eligible for relief from the failure to pay penalty.

First-Time Penalty Administrative Waiver (FTA Program)

Under the FTA program, you can have failure to file, failure to pay, and failure to deposit penalties waived if you were never assessed penalties in the past three tax years or had them relieved because of reasonable cause. Estimated tax penalty (deposit penalty), as is common with self-employed taxpayers, is the only allowable penalty to bear.

You must also be current on all of your current tax returns or extensions and paid any taxes due (or arrangements like payment plans). If your charges include failure to pay penalties, it’s a good idea to wait until you’ve paid the entire balance before requesting FTA waivers since you don’t need to prove hardship and can get more waived.

FTA waivers are the best option if you meet the above requirements as this request takes less time to process than ordinary penalty abatement, because you don’t need to establish reasonable cause or hardship.

What to Do If You Receive a Dreaded IRS Letter

Article Highlights:

  • IRS Notices
  • CP Series Notice
  • Automated Notices
  • Frequent Errors
  • ID Theft
  • What You Should Do
  • What We Will Do

Now that most tax refunds are deposited directly into taxpayers’ bank accounts, the dream of opening your mailbox and finding an IRS refund is all but gone. However, the IRS still sends letters that can increase taxpayers’ heart rates; because of extensive computer matching, the IRS does most of its auditing through correspondence.

CP-Series Notice – When the IRS detects a potential issue with your tax return, it will contact you via U.S. mail; this is called a CP-series notice. Please note that the IRS’s first contact about a tax delinquency or discrepancy will never be a phone call or email. Such calls and emails are a common tool for scammers; if you get one, simply hang up the phone or delete the email. If you are concerned about the validity of a given message, please call this office.

Most commonly, CP notices describe the proposed tax due, as well as any interest or penalties. The notice will also explain the examination process and describe how you can respond.

These automated notices are sent out year-round, and they are quite common. As the IRS tries to close the tax revenue gap, it has become more aggressive in its collection efforts. In addition, as many taxpayers now use low-quality tax mills or do-it-yourself software, the number of notices sent because of preparer error have increased. Missed checkboxes, misunderstandings of available credits, and overlooked income all add up to more errors.

The first step in this automated process involves matching what you reported on your tax return to the data that third parties (e.g., employers, banks, and brokers) reported. When this information does not agree, the automated collection effort begins.

Don’t Panic – These notices often include errors. However, you do need to respond before the 30-day deadline or else face significant repercussions. The notice may even be related to suspected ID theft. For instance, someone may have gained access to your tax ID (or that of your spouse or one of your dependents) and tried to file a return using the stolen ID. The first step is to determine which type of notice you have received.

A CP2000 notice is very different from the other CP notices (which deal with issues such as identify theft, audits, and the earned income credit,). The CP2000 notice includes a proposed—almost always unfavorable—change to your tax return, and it gives you the opportunity to dispute the proposed change. Procrastinating or ignoring this notice will only cause the IRS to ratchet up its collection efforts, which in turn will make it more difficult for you to dispute the proposed adjustment.

Sometimes, the IRS will be correct. You may have overlooked a capital gain or income from a second job. It is also possible that the IRS has caught someone else using your SSN to work or otherwise stealing your identity. Quite frequently, however, the IRS is incorrect, simply because its software isn’t sophisticated enough to pick up all the information that you report on the schedules attached to your return.

When you receive an IRS notice, your first step should be to immediately contact this office and to provide us with a copy of the notice. We will review the notice to determine whether it is correct, and then we will consult with you to determine how best to respond.

Court of Appeals Rules for Clergy

Article Highlights:

  • Internal Revenue Code Section 107
  • Court Ruling
  • Employee Status
  • Self-employed Status
  • Parsonage Allowance
  • Self-employment Tax
  • Exemption from Self-employment Tax

If you read our previous article related to a Wisconsin District Court ruling, you will recall that the judge in that case had ruled that Sec. 107(2) of the Internal Revenue Code was unconstitutional.

Section 107 of the Internal Revenue Code provides that a minister’s gross income doesn’t include the rental value of a home provided by the house of worship. If the home itself isn’t provided, then a rental allowance paid as part of compensation for ministerial services is excludable. This benefit is generally referred to as a parsonage allowance. Thus, a minister can exclude the fair rental value (FRV) of the parsonage from income under IRC Sec. 107(1), or the rental allowance under Sec. 107(2), for income tax purposes. The Sec. 107(2) rental allowance is excludable only to the extent that it is for expenses such as rent, mortgage payments, utilities, repairs, etc., used in providing the minister’s main home, and only up to the amount of the home’s FRV.

Good news for clergy members: a 3-judge panel of the 7th U.S. Circuit Court of Appeals has unanimously overturned the lower court’s decision and ruled that Sec. 107 is constitutional; therefore, housing allowances continue to be excludable from income tax.

It is unknown whether those who brought the suit will ask the full 7th Circuit to review the case or appeal it to the U.S. Supreme Court and, if so, whether the Supreme Court will take it up.

Here is an overview of how members of the clergy (from all faiths) are taxed on their income. When we refer to “church” in this article, please read that to include mosques, synagogues, temples, etc. Members of the clergy are taxed on not just their salary but on other fees and contributions that they receive in exchange for performing services such as marriages, baptisms, funerals, and masses. As a result, clerics will generally report their income in two ways:

As an Employee – As an employee, clerics will receive a W-2 from the church showing the amount of their income that is subject to tax, any amount paid as a nontaxable housing allowance (discussed later), and any withholding.

Any expenses incurred as a W-2 employee are included on Form 2106 (Employee Business Expenses) and if the cleric also receives a nontaxable parsonage allowance, the expenses must be divided between the taxable W-2 income and nontaxable parsonage allowance. Unfortunately, for years 2018 through 2025 the deduction for employee business expenses has been suspended by tax reform. The suspension affects all employee business expenses, not just those of clergy employees.

As a Self-Employed Individual – Income received other than as an employee of a church is reported as self-employment income. Typically, this would include all income that is not included in the W-2 from the church, including fees charged for services, such as weddings, funerals, and other gatherings. This income and any expenses associated with it are reported on Schedule C and are subject to the self-employment tax.

Parsonage Allowance – As was discussed previously, as the subject of the court ruling, a member of the clergy can qualify to have a rental allowance excluded from his or her taxable income if that allowance is provided as remuneration for services that are ordinarily the duties of a minister of the gospel. The following are the qualifications and details of the parsonage allowance:

  • It is only excludable to the extent that it is used for expenses related to the minister’s housing (e.g., for rent, mortgage payments, utilities, and repairs).
  • The rental allowance is not excludable to the extent that it exceeds reasonable compensation for the minister’s services.
  • The allowance only applies to the minister’s primary residence.
  • The allowance cannot exceed a home’s FRV, including furnishings and appurtenances such as garages, plus the cost of utilities.
  • In advance of the payment, the employing organization must designate the allowance by an official action. If a minister is employed by a local congregation, the designation must come from the local church, instead of from the church’s national organization.
  • The portion of the minister’s business expenses that is attributable to tax-free income is not deductible. This rule does not apply to home-mortgage interest or to taxes that are deductible in full if the minister itemizes deductions.
  • Retired clerics can exclude a home’s rental value or a rental allowance if the home is furnished as compensation for past services and authorized under a convention of a national church organization. However, this exclusion does not extend to the widow or widower of a retired cleric.

Although it is not subject to income tax, a parsonage allowance is subject to the self-employment tax unless the minister is exempt (as discussed below).

Self-Employment Tax – A minister who hasn’t taken a vow of poverty is subject to self-employment tax on income from services performed as a minister.

An ordained minister may be granted an exemption from the self-employment tax for ministerial services only. To qualify, the church employing the minister must qualify as a religious organization under Code Section 501(c)(3). The application for an exemption is filed with Form 4361 (Application for Exemption from Self-Employment Tax for Use by Ministers, Members of Religious Orders, and Christian Science Practitioners).

To claim an exemption from the self-employment tax, the minister must meet all of the following conditions and file Form 4361 to request exemption from the self-employment tax. The minister must:

  • Be conscientiously opposed to public insurance because of his or her individual religious considerations or because of the principles of his or her religious denomination (not because of general conscience).
  • File for noneconomic reasons.
  • Inform the church’s or order’s ordaining, commissioning, or licensing body that he or she is opposed to public insurance, if he or she is a minister or a member of a religious order (other than a vow-of-poverty member). This requirement doesn’t apply to Christian Science practitioners or readers.
  • Establish that the organization that ordained, commissioned, or licensed him or her (or his or her religious order) is a tax-exempt religious organization.
  • Establish that the organization is a church (or a convention or association of churches).
  • Not have previously filed Form 2031 (Revocation of Exemption from Self-Employment Tax for Use by Ministers, Members of Religious Orders, and Christian Science Practitioners) to elect for Social Security coverage.

Form 4361 must be filed on or before the return’s extended due date for the second tax year when the individual has net self-employment earnings of $400 or more (part of which is from services as a minister). A late application will be rejected.

The time for applying starts over when a minister who previously was not opposed to accepting public insurance (i.e., Social Security benefits) enters a new ministry (e.g., joins a new church and adopts beliefs that include opposition to public insurance). However, the IRS has said that there is no second chance to apply for exemption if a minister is ordained in a different church but does not change his or her beliefs regarding public insurance (i.e., the minister opposed the acceptance of public insurance in both faiths).

Careful consideration should be made before applying for an exemption from the self-employment tax, as once the decision is made, the election is irrevocable.

If you have questions related to any of these issues or how they may apply to your situation, please give this office a call.

What Are the Differences Between an IRS Tax Lien and a Tax Levy?

If you’re reading this, the chances are high that you’re one of the many, many people who have received a notice from the Internal Revenue Service. Some level of correspondence with the IRS is natural ‒ particularly leading up to and in the immediate aftermath of tax season. But if you’ve received notification that the government is about to file a tax lien or tax levy against you, suddenly you’re talking about an entirely different ballgame.

But the most important thing you can do at this point is stay calm. Yes, both of these notices mean that your financial situation has just gotten significantly more complicated. But you do have rights in each scenario that you would do well to protect at all costs.

What Is an IRS Tax Lien?

An IRS tax lien is a very specific type of claim that the government (in this case, the Internal Revenue Service) makes on your property. That property can include but is not limited to real estate and other types of assets. Typically, this is something that occurs when you’re past due on your income taxes and you’ve failed to make proper arrangements to get yourself back up to date again.

A tax lien can affect you in a number of different ways, all of which are less than ideal. Even though tax liens no longer appear on your credit report, your credit rating will still suffer ‒ thus harming your ability to get a loan or secure new credit for your business. Tax liens also usually appear during title searches, which can impact your ability to sell your house or refinance the mortgage you already have.

What Is an IRS Tax Levy?

A tax lien is essentially the first part in a two-step process. That second step takes the form of a tax levy, which involves the actual seizure of the property in question in an effort to pay the tax money you owe. Via a tax levy, the IRS can do everything from garnish your wages, seize assets like real estate or even take control of your bank accounts to get their money.

At the very least, you’re likely to go through wage garnishment ‒ meaning that you’ll be taking home far less money at the end of the week in your paycheck. A 21-day hold might be placed on your bank account in an effort to encourage you to “work things out,” and if you don’t, they may even try to seize your home as a last resort.

Luckily, there are a few things that the IRS CAN’T seize even by way of a tax levy. These include things like unemployment benefits, certain pension benefits, disability payments, workers’ compensation and others.

What Can I Do About Them?

Thankfully, even in the unfortunate event of a lien or levy, you do still have some options available to you.

More than anything, if you CAN pay your tax bill, you SHOULD pay your tax bill. If necessary, get on an IRS payment plan to help you get back up to date. Yes, your past due balance will continue to accrue both interest and penalties until you’ve paid it off. But the choice between paying interest and losing your house isn’t really a choice at all.

It’s also important for you to actively work to protect your rights if you feel it necessary to do so. After receiving either a lien or a levy notice, you can always file an appeal with the IRS Office of Appeals if you feel you’re being treated unfairly. It is within your right to ask for a conference with the IRS agent’s manager so that your case can be reviewed by a fresh set of eyes. If nothing else, this is a great way to make sure that your side of the story is known.

You can also apply for a Withdrawal of the Notice of Federal Tax Lien, which will remove the public notice of a tax lien filing. If the IRS has notified you that any of your property is about to be seized, you can file something called a Certificate of Discharge. This will remove the property in question from the effects of the tax lien, allowing you to sell something like your home (or another asset) without worrying.

All of this can be confusing and stressful. Working with a seasoned tax professional can take negotiating with the IRS off your hands.

A Government Shutdown Isn’t Going to Save You from an IRS Audit

Yes, it’s true that we’re just coming out of the longest government shutdown in the history of the United States. It will take many government agencies – including the Internal Revenue Service – a significant period of time to get back up to speed. But if you think that all this means that the chances of your getting audited are lower than ever, you’re going to want to think again.

According to one recent study, the IRS audited about 0.6 percent of individual tax returns in 2016, which means that your chances of getting that unfortunate letter in the mail were about one in 160. When you expand the definition of a traditional audit to include all of the other types of notices that you may receive to re-examine your taxes or provide backup documentation, for example, that number jumps to about 6.2 percent— or roughly one in 16.

So not only were your chances of getting audited always higher than you thought, but a government shutdown isn’t going to prevent this particular train from running on time. There are a few common IRS audit red flags in particular that you’ll want to know more about as April approaches once again.

The Dreaded Math Errors

A lot of people don’t realize just how much of the IRS’s own processes are automated. When you file your income tax return, that information gets entered into a computer, and a lot of the processing is done before a human ever looks at it — if one ever comes into contact with your return at all.

Therefore, one of the major red flags that will certainly trigger an audit are math errors, because a computer doesn’t care whether the government was shut down or not. A math error is a math error, and if you make one (or multiple), it’ll send up a red flag within the IRS’s system, and an automated notice will likely be issued as a result.

HOW You Make Your Money

The people who work for the IRS aren’t amateurs; they know that certain types of industries feature more instances of unreported cash earnings than others. This is why another one of the major red flags that could see you on the receiving end of an IRS audit has to do with the industry you’re operating in to begin with.

If you work in the restaurant industry where cash tips are common, for example, you are probably always going to garner more attention from IRS professionals than someone who may have a more rigid salary. Simply being a part of these types of industries automatically raises your odds of being audited, and no government shutdown is going to change that.

Earned Income Tax Credit Audits

In 2018, the IRS actually came right out and admitted that people who claim the Earned Income Tax Credit are twice as likely to be audited than those who don’t. A large part of this comes down to the fact that people sometimes take this credit who shouldn’t, and it costs the United States government about $10 billion per year.

At this point, it’s important to note that taking this credit intentionally when you shouldn’t is fraud, and that is not a situation you want to find yourself in. If you can prove that you took the credit by accident, you don’t necessarily have anything to worry about. But you’ll likely still be audited, and you’re certainly going to have some explaining to do.

Large Charitable Contributions

Finally, one of the biggest red flags that the IRS always looks for when determining whom to audit ultimately comes down, not to charitable contributions as a concept, but to significantly large contributions under peculiar circumstances.

When viewing charitable contributions, the IRS always looks at the amount you gave relative to the overall amount you made during a year. The IRS definitely knows, on average, how much people in certain income brackets are likely to donate. Sure, there are always special circumstances – but if you give two years’ worth of donations in a single year in an effort to maximize the deduction you can take, you’re almost always going to attract the type of attention you don’t necessarily want.

Provided that you’ve got the documentation to back up your donations, you have absolutely nothing to worry about. But a lot of people try to game the system by saying that they gave X amount of dollars in one year when they really gave that money over the last few years, and that is something the IRS will try to put a stop to.

An audit isn’t necessarily a bad thing, especially if you have the documentation to support every move you made and why it was the right one for you at the moment. But again, don’t assume that the government shutdown means that your chances of an IRS audit are practically zero. They never were, but they certainly aren’t now, which is why you’ll always want to make sure that you’ve crossed your T’s and dotted your I’s before you submit your tax return information this year.

Filing a 1099-MISC May Now Apply to Landlords. Are You Collecting the Needed W-9s?

Article Highlights:

  • $600 Threshold
  • Exceptions
  • Form W-9
  • Impact of Tax Reform
  • 1099-MISC Filing

If you use independent contractors to perform services for your business or your rental that is a trade or business, for each individual whom you pay $600 or more for the year, you are required to issue the service provider and the IRS a Form 1099-MISC after the end of the year, to avoid losing the deduction for their labor and expenses. (This requirement generally does not apply to payments made to a corporation. However, the exception does not extend to payments made for attorney fees and for certain payments for medical or health care services.)

It is not uncommon to have a repairman out early in the year, pay him less than $600, then use his services again later and have the total for the year exceed the $600 limit. As a result, you might overlook getting the information needed to file the 1099s for the year. Therefore, it is good practice to always have individuals who are not incorporated complete and sign the IRS Form W-9 the first time you use their services. Having a properly completed and signed Form W-9 for all independent contractors and service providers will eliminate any oversights and protect you against IRS penalties and conflicts.

The government provides IRS Form W-9, “Request for Taxpayer Identification Number and Certification,” as a means for you to obtain the data required from your vendors in order to file the 1099s. It also provides you with verification that you complied with the law, should the individual provide you with incorrect information. We highly recommend that you have a potential vendor or independent contractor complete a Form W-9 prior to engaging in business with him or her.

Many small business owners and landlords overlook this requirement during the year, and when the end of the year arrives and it is time to issue 1099-MISCs to service providers, they realize they have not collected the required documentation. Often, it is difficult to acquire the contractor’s, handyperson’s, gardener’s, etc., information after the fact, especially from individuals with no intention of reporting and paying taxes on the income.

This has become even more important in light of the tax reform’s 20% pass-through deduction (Sec. 199A deduction), since the regulations for this new tax code section caution landlords that to be treated as a trade or business, and therefore to be generally eligible for the 199A deduction, they should consider reporting payments to independent contractor service providers on IRS Form 1099-MISC, which wasn’t generally required for rental activities in the past and still isn’t required when the rental is classified as an investment rather than as a trade or business. This caution was included in IRS regulations issued after the close of 2018, which caught everyone by surprise and left most rental property owners to deal with obtaining W-9s after the fact from service providers and issuing the 1099-MISCs after the due date of January 31, 2019. Each late-filed 1099-MISC is subject to a penalty of $100 if not filed by August 1, 2019.

1099-MISC forms must be filed electronically or on special optically scannable forms. If you need assistance with filing 1099-MISCs or have questions related to this issue, please give this office a call. Also, make sure you have all of your independent contractors or service providers complete a Form W-9 for 2019.

Unforced Errors – The 8 Most Common IRS Tax Penalties and How to Avoid Them in 2019

You know the old line about the inevitability of death and taxes? It’s still true. What isn’t inevitable, however, is the need to pay penalties to the IRS. It happens, but it doesn’t have to, and the main reason that it does is because taxpayers don’t educate themselves about the rules. When you get hit with an IRS penalty, it adds on to a number that you already wish you didn’t have to pay.

To ensure that you get through tax season without unnecessary costs and aggravation, here’s a list of the tax penalties that the IRS most frequently assesses against taxpayers.

The 8 Most Common Tax Penalties Assessed

  1. Penalty for underpaying estimated tax payments
  2. Penalty for taking early withdrawals from tax-advantaged retirement accounts, including IRA accounts and 401(k) accounts
  3. Penalty for taking nonqualified withdrawals from 529 plans, health savings accounts (HSAs), and similar tax-favored accounts
  4. Penalty for failing to take required minimum distributions (RMDs) from tax-favored retirement accounts
  5. Penalty for making excess contributions to IRAs and other tax-favored accounts
  6. Penalty for failing to file, or for filing your required tax return after the designated due date
  7. Penalty for failing to pay your taxes on time
  8. Penalty for filing a substantially incorrect tax return or taking frivolous positions on a return

Let’s take a deep dive into each. The more you know, the better you’ll understand how to avoid these mistakes.

1. Penalty for not making estimated tax payments

Where does your income come from? If you’re a W-2 employee whose employer withholds your federal income tax on your behalf, then estimated tax payments are not something you need to worry about. On the other hand, if you get income from which withholding isn’t deducted, then you are legally obligated to submit estimated quarterly tax. Failure to do so is subject to penalty.

Who has to submit quarterly estimated taxes? You do if you’re a part of the “gig” economy which makes part or all of your income from freelance jobs or independent contracting work, or if you’re a retiree who relies on or derives income from Social Security and your personal savings accounts or other accounts whose withdrawals are taxable (or subject to capital gains). Own a small business? If you’re subject to self-employment tax, then you’re supposed to submit it quarterly. Though this requirement is straightforward, most people start their income journey as W-2 employees: they may have no familiarity with estimated quarterly taxes, or if they do they may not be in the habit of paying it and have forgotten. Whatever the reason, the penalties for failure to make these payments can add up pretty quickly.

The government has set up the quarterly payments so that the IRS Form 1040-ES is marked with four dates throughout the year — April 15th, June 15th, September 15th and January 15th (or the next business day if the 15th falls on weekend or legal holiday) of the year that the year’s tax filing is due. In doing so, they have it set up so that the majority of the taxes that are owed are paid throughout the year, though not on a weekly, biweekly or monthly basis the way that W-2 employees withholding is sent in. Failing to send the monies in for each quarter of 2018 is set to be penalized on an annualized basis of 4 to 5 percent. The best way to avoid the penalty is to pay your taxes on the dates that they’re due, calculating the payments accurately enough to represent either 90 (85% for 2018) percent of the actual amount you end up owing or 100% of the amount that was appropriate from the previous tax year. That 100% of the previous year’s amount is acceptable under what is known as safe-harbor, though for those whose income is more than $150,000, the percentage needed is 110% of the previous year’s income tax. Conversely, those who owe less than $1,000 in annual taxes do not get penalized at all. It is important to note that the penalty percentage has jumped to 6 percent as of the first quarter of 2019.

2. Penalty for taking early withdrawals from tax-advantaged retirement accounts, including IRA accounts and 401(k) accounts

Having a retirement account is a smart thing to do, and it’s something that the government has encouraged by allowing for the creation of special tax-advantaged vehicles. These tax advantages represent a tremendous incentive and benefit, but they come with strings: until you are 59 ½, you are not permitted to take money out of those accounts prior to retirement without having to have to pay a hefty 10% penalty.

As important as it is to know about the penalty so that you don’t take money out hastily and without a full understanding of the impact of doing so, but it’s also important to know when you can take the money out without being penalized. You’re permitted to take out up to $10,000 from and IRA for the purchase of a first home, as well as to pay any uncovered, unreimbursed medical bills that add up to more than ten percent of your adjusted gross income from any retirement plan. If you’ve been out of work and received unemployment compensation for a minimum of 12 weeks, you can take out up to $10,000 from and IRA to pay for your health insurance premiums.  Distributions can also be taken from an IRA to pay for qualified higher education expenses, including fees, room and board and of course tuition, all without penalty. And if you’re leaving your job during the same year that you’re turning 55 or older, you can take money out of a 401(k) account from the job that you’re leaving without penalty. The fact that there is no penalty does not negate the income taxes that you would be required to pay on withdrawals from any retirement account.

3. Penalty for taking nonqualified withdrawals from 529 plans, health savings accounts (HSAs), and similar tax-favored accounts

Just as the government works hard to make sure that the retirement accounts they’ve allowed to be tax-advantaged are used as intended, they take a similar approach to other tax-advantaged accounts, penalizing improper use and withdrawals from 529 plans, health savings accounts, and similar vehicles.

  • 529 plans – These plans provide the ability to set aside funds to pay for the cost of college, and were expanded under the recent tax reform act to also allow for funds to grow tax-free for eligible expenses for K-12 education too. Any money that is deposited into a 529 can be withdrawn without penalty as long as the money is going to pay for tuition, books and similar school-related expenses, but if the money is withdrawn for any other purpose, the withdrawn amount is subject to both income taxes on appreciation and a 10% penalty on the entire distribution. One important thing to note: if you have set up a 529 in one child’s name and wanted to use the monies for another child, that is not subject to penalty as long as you change the beneficiary. The same is true for Coverdell ESAs.
  • Health Savings Accounts (HSAs) – These plans were created to assist with the payment of out-of-pocket healthcare expenses. Money deposited into those accounts can grow to be withdrawn tax free as long as they are used for eligible costs; however, if you’re under the age of 65 and you use any of those funds for nonmedical expenses, the withdrawn amount will be subject to a 20% penalty and will also need to be reported on your tax return as income.

4. Penalty for failing to take required minimum distributions (RMDs) from tax-favored retirement accounts

If you are a person who has been dedicated to putting money into your 401(k), your IRA, or another retirement account, then the idea of taking money out before you feel like you need it will just feel wrong. Unfortunately, the government requires that you do so once you hit a certain age. The IRS’ rules say that once you are 70 ½ you have to take what is known as a required minimum distribution, a percentage that is based on a published table that factors in your life expectancy and how much your account holds. As much as you might want to let your money continue to grow, the government wants to limit the amount of tax-deferred growth that each taxpayer can realize and start claiming its portion of the money you’ve been keeping it from taxing: that’s the reason for the requirement.

No matter how much you’d prefer not to touch your principal, the IRS takes an aggressive approach to make sure that you do so: the penalty for failure to take the amount out on the government timetable is more than significant – it’s 50% of the amount that you were supposed to take out, and if you don’t take out the right amount then you’re going to have to pay half of whatever you should have taken out but didn’t. The annual deadline is December 31st, though for the first year that you owe you have until April 1st to take the withdrawal. Not only do you have to make sure that you make your payment on time, but you have to calculate it correctly, and that can be somewhat complicated because the amount changes each year as your life expectancy and the value of your account shift. The good news is that the bank or investment company where you’re holding your money is generally equipped to assist with the calculation, and can even make things easier by arranging for automatic dispersals. Setting this up makes a lot of sense, as it eliminates the emotional twinge of writing a check and makes sure that it gets done so you can avoid that draconian penalty. However, the IRS does have the power to waive the penalty if you can show reasonable cause for failing to take the distribution and have a made a corrective distribution before applying for a penalty waiver.

5. Penalty for contributing too much to tax-favored accounts

Have you ever heard the phrase “they get you coming and going?” It may have been written for the IRS. Just as you’re learning that they’ll penalize you for not taking out enough money, you find out that they’ll also penalize you for depositing too much. Tax-deferred accounts like IRAs and 401(k)s limit the amount that you can contribute each year, and if you end up putting in too much, you’re going to be hit with a 6% charge. Though that penalty is a significantly lower percentage than is imposed for not taking the annual required minimum distribution, the amount can grow over the years if it isn’t addressed: if you make the mistake of leaving the excess funds in the account, you’ll face the same penalty each year until it’s been withdrawn. That can add up quickly, especially if you aren’t aware of the mistake you made until the government hits you with the penalty several years later.

The solution is to review the amount that you’ve deposited to make sure that there is no overage, and if there is to take it out before the deadline for your tax return. If you’ve filed an extension, then you’ve also extended the deadline for the withdrawal. This penalty applies to all tax-deferred accounts that limit the amount of money you can deposit in a given year.

6. Penalty for failing to file, or for filing your required tax return after the designated due date

The tax deadline is set in stone every year. It’s in the news; it’s on the IRS website and your tax forms. There’s no escaping it, and if you try, then you’re going to get penalized. Some people miss the deadline because they are procrastinators or they just forgot, while others make the mistake of thinking that if they don’t send in paperwork, then they won’t have to pay. Whatever the reason, you’re going to end up getting caught one way or another and having to pay the penalty. Those who run on the idea of “if I don’t send them my name and income then they’ll never know that I owe them money” fail to realize that the entity that provided that income also is required to send in paperwork to the government. When there is no tax return filed to match the tax information filed by your employer or investment, the government is going to begin an audit, and you’ll be in far bigger financial trouble than you would have been if you’d filed a return and let the government know that you couldn’t afford to pay what you owe. Failure to file results in penalties that add up quickly: 4.5% of the tax due will be assessed and added to your tax liability for each month that you’re late, up until you pass the five-month mark and hit the maximum penalty of 22.5%. There is also a minimum penalty amount of smaller of $210 or 100% of your tax due where it greater the percentage amount.

7. Penalty for failing to pay your taxes on time

In all fairness, some people don’t file their tax return because they don’t have the money available to pay what they owe. The truth is that the amount that is penalized for failing to file is much more than what you would be penalized if you did file without paying. Though you’re looking at a penalty one way or another, it makes sense to file, even without sending in the money that you owe.

We’ve already gone over the 4.5%  monthly penalty for failure to file, up to a maximum penalty of 22.5%. On top of the failure to file penalty, there is 0.5% penalty per month for failure to pay to bring the total penalty for failing to file and pay for the first five months to 5% per month. However, If you get your paperwork on time without actually sending in a payment, you avoid the 4.5% late filing penalty. Even after the first 5 months, the late payment penalty continues to accrue until the tax is paid.  One important thing to remember is that the requirement to pay begins on the tax due date – even if you request an extension for filing your return, the clock starts ticking on the non-payment penalty on the tax deadline date. If you’re at all able to send in money, then do so – even if it’s only a portion of what you owe.

For those who are suffering from financial difficulties, the IRS offers installment arrangements to make things easier. Though penalties are still likely to be tacked on to your tax liability, setting up an arrangement will prevent you from getting into arrears with the government and stop them from initiating a collection action. There are also negotiations available for those who provide proof of their inability to pay. The government is willing to help and does help many taxpayers, offering compromises where appropriate. You’re much better off coming forward, submitting all necessary paperwork on time, and asking for help.

8. Penalty for filing a substantially incorrect tax return or taking frivolous positions on a return

The IRS understands that mistakes happen: people have trouble with mathematical calculations or misunderstand definitions, and when that happens, and they discover the errors, they generally send out a letter notifying the taxpayer of their mistake and are open to hearing explanations. Sometimes they forgive the mistake and allow a correction to be made, and in other cases, they impose a penalty, usually no more than 20% of the underpayment for innocent errors. When the penalty is that high, it’s generally an indication that the government has reason to believe that the mistake represents legal negligence. It can also be a reflection of the magnitude of the underpayment, with larger underpayments resulting in more significant penalties.

However, none of these penalties are as significant as what you will face if the government has reason to believe that your underpayment was intentional.

Purposely understating the information on your tax return to minimize your liability constitutes civil fraud, and subjects you to 75% penalties of the amount that you underpaid. Of course, you will also still be on the hook for the amount that you should have paid in the first place if your tax return had been accurate and reflective of your real income. The IRS has little patience for either fraud or for what they refer to as frivolous tax arguments meant to help people evade paying what they owe. Depending upon the individual situation, some taxpayers are penalized with no concern for the amount that they actually owed, and are required to pay a flat rate of $5,000.

These penalties are what results from civil fraud, but that is not the worst penalty you can face. The IRS has the right to charge a person who perpetrates significant underpayment or tax evasion as a criminal fraud subject to jail time in addition to economic penalties. Where the line between civil tax fraud and criminal tax evasion is drawn is subjective, but assume that when the government can prove that you purposely tried to get out of paying what you owe, you’re going to be held accountable in a way that’s going to hurt. Lying on a return is considered a form of perjury, and there are plenty of tax evaders who have been forced to spend years in jail and to pay hundreds of thousands of dollars in penalties.

IRS Penalties Are A Entirely Preventable Problem

Though the list of penalties provided here is not exhaustive, it gives you a good idea of where you can get into trouble, as well as how to avoid trouble. Learn the requirements, follow them, and when in doubt, seek help. It’s also important to know that if you do get yourself into trouble, you’re much better off facing your situation then trying to pretend they don’t exist. A tax professional will guide you through the process and help you find your best answers.

Getting the W-4 Right Is Important

Article Highlights:

  • W-4 Complications
  • Working Spouse
  • Adjusting Refund
  • Other Income and Tax Issues

As they do at the beginning of every year, employers will be requesting employees to complete the IRS Form W-4. Its purpose is to provide employers with the information they need to determine the amount of federal income taxes to withhold from an employee’s paycheck. So, it is very important that the form be completed correctly.

The problem is that as simple as the form looks, getting those entries on the form to produce the desired withholding amount can be tricky. The passage of the tax reform added additional complications, and the IRS has delayed a major revision of the W-4 until the 2020 tax year. In the meantime, taxpayers must get along as best they can using the old version of the W-4.

Even though the W-4 form itself appears to be simple, the instructions come with an extensive worksheet, which may or may not produce the desired results. In addition, there are other issues to consider, such as:

  • Perhaps you desire to have a substantial refund when your taxes are completed next year. This generally requires custom W-4 adjustments, to produce excessive withholding. Keep in mind: when you have a large refund, you have provided Uncle Sam with an interest-free loan.
  • Your spouse may also work, and your combined incomes may put you in a higher tax bracket. Although the IRS provides a special worksheet for married taxpayers if both spouses work, it may not always provide the desired results.
  • In addition to payroll income, you may also have self-employment income, which is subject to both income tax and self-employment, and so you may require a combination of payroll withholding and estimated tax payments, adding additional complications to the W-4.
  • These are just the tip of the iceberg, as there may be investment income or losses, business losses, tax credits, special deductions and loss carryovers, just to name a few more situations that could impact your tax prepayments and withholding for the year.

If you are concerned about getting your withholding correct, please contact this office. We can project your 2019 tax liability and complete your W-4 after taking into account multiple employments, a working spouse, self-employment income and other tax issues unique to your specific tax situation.

IRS Giving a Break to Some Taxpayers Who Under-prepaid Their 2018 Taxes

Article Highlights:

  • Tax Reform
  • Prepayments
  • W-4
  • Safe Harbor Payments
  • Penalty Waivers & Exceptions
  • Mitigating the Penalty

Taxpayers are required to pre-pay their taxes for any tax year through payroll withholding, estimated tax payments or a combination of the two. Employees and retirees generally accomplish this through withholding, and self-employed individuals and those with investment income by paying quarterly estimated payments.

The late-2017 passage of tax reform that became effective for 2018 and its radical changes added considerable confusion for taxpayers trying to determine how much they should prepay for 2018. This confusion was made worse because the existing W-4 that employees complete and that their employers use to determine the correct withholding was designed for prior law and does not work well with the new tax law. As a result, there has been ongoing concern by the IRS that many taxpayers will end up owing tax this year when they file their 2018 returns, even though they got a tax reduction due to the tax reform changes, simply because their pre-payments through withholding and estimated tax payments were not enough.

For most of 2018, the IRS was issuing alerts that taxpayers may be under-withheld because of tax reform and the fact the W-4 could no longer be relied upon to produce a correct withholding amount.

Taxpayers whose pre-payments are less than certain safe harbor amounts are penalized. Those safe harbors are:

  • 90% of the current year’s tax liability or
  • 100% of the prior year’s tax liability (110% where the prior year AGI is over $150,000 ($75,000 if married and filing separate returns).

Recently several members of Congress have called upon the IRS to waive underpayment penalties for 2018. On January 16, 2019, although not waiving the penalties entirely, the IRS did change the current year safe harbor from 90% of the 2018 tax liability to 85%, providing a break for some taxpayers.

Even if you don’t meet one of the safe-harbor exceptions, a waiver of the penalty for 2018 may apply if you:

  • Retired (after reaching age 62) or became disabled in 2017 or 2018.
  • You did not make payments because of one of the following situations and it would be inequitable to impose the penalty:
    a. Casualty
    b. Disaster, or
    c. Other unusual circumstance.

There are two other exceptions to the penalty for 2018:

  • If the total tax shown on your 2018 return minus the tax that was withheld is less than $1,000, you will not owe a penalty.
  • If you had no tax liability in 2017, were a U.S. citizen or resident alien for all of 2017, and your 2017 return was for a full 12 months (or would have been had you been required to file), you won’t be charged an under-prepayment penalty.

In addition, where your tax liability and /or tax pre-payments were uneven, the penalty amount may be mitigated by figuring it on a quarterly basis.

If you have questions or would like to make sure your withholding and estimated payments are adequate for 2019, please give this office a call.

Important – Rental Owners! Guidance Related to the 20% Pass-Through Deduction

Article Highlights:

  • 199A 20% Pass-Through Deduction
  • Rental Safe Harbor Qualifications
  • Books & Records
  • 250 Hours
  • Contemporaneous Record
  • Triple Net Leases
  • Vacation Home Rentals
  • Double-Edged Sword

Ever since tax reform was passed, over a year ago, taxpayers have been uncertain whether rental property will be classified as a trade or business for purposes of qualifying for the new IRC Sec 199A 20% pass-through deduction (commonly referred to as the 199A deduction).

Finally, on January 18, 2019, the IRS issued a notice which provided “safe harbor” conditions under which a rental real estate activity will be treated as a trade or business for purposes of the 199A deduction.

It’s important to note that this notice prescribes several conditions that must be met for a rental real estate enterprise (a tax term introduced by the IRS in this notice) to be deemed to be a trade or business and eligible for the section 199A 20% deduction. For purposes of this safe harbor, a rental real estate enterprise is defined as an interest in real property held for the production of rents and may consist of an interest in multiple properties.

Failure of the taxpayer to satisfy the requirements of this safe harbor does not preclude a taxpayer from otherwise establishing that a “rental real estate enterprise” is a trade or business for purposes of section 199A. The following are the requirements that must be satisfied for the safe harbor:

  1. Separate books and records must be maintained for each rental real estate enterprise;a. A real estate enterprise can consist of a single or multiple real estate rentals.
    b. Commercial and residential rentals cannot be combined in the same real estate enterprise.
  2. For years prior to 2023, at least 250 hours of rental services must be performed by the taxpayer and workers for the taxpayer for the year in question with reference to each rental real estate enterprise.A three-year lookback rule applies for taxable years for 2023 and following. It specifies that the taxpayer must meet the 250-hour requirement for the rental enterprise for any three of the five prior consecutive taxable years; and
  3. The taxpayer must maintain contemporaneous records, including time reports, logs, or similar documents, to document the following:a. hours of all services performed;
    b. a description of all services performed;
    c. dates on which such services were performed; and
    d. who performed the services.

    Because the safe harbor requirements were issued after the close of 2018, the requirement for contemporaneous records for 2018 will not apply.

    Rental services that may be counted toward the 250 hour requirement include: (i) advertising to rent or lease the real estate; (ii) negotiating and executing leases; (iii) verifying information contained in tenant applications; (iv) collecting rent; (v) daily operation, maintenance, and repair of the property; (vi) management of the real estate; (vii) purchase of materials for operation such as repairs; and (viii) supervision of employees and independent contractors.

    However, rental services do NOT include financial or investment management activities, such as arranging financing; procuring property; studying and reviewing financial statements or reports on operations, planning, managing, or constructing long-term capital improvements; or hours spent traveling to and from the real estate.

    Rental services counted toward the 250 requirement may be performed by owners or employees, agents, and/or independent contractors working for the owners.

Triple net Leases are not eligible for safe harbor. Real estate rented or leased under a triple net lease agreement is not eligible for this safe harbor. A triple net lease includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to be responsible for maintenance activities for a property in addition to rent and utilities. Also ineligible for the safe harbor is a property leased under an agreement that requires the tenant or lessee to pay a portion of the taxes, fees, and insurance, and to be responsible for maintenance activities allocable to the portion of the property rented by the tenant.

Vacation rentals are not eligible for safe harbor. Real estate used as a residence by the taxpayer for any portion of the taxable year is not eligible for the safe harbor rules.

The Statement must be attached to the tax return. A statement signed by the taxpayer, or the person responsible for keeping the records with personal knowledge of them, must be attached to the return declaring that all of the safe harbor requirements have been met and must include the following language: “Under penalties of perjury, I (we) declare that I (we) have examined the statement, and, to the best of my (our) knowledge and belief, the statement contains all the relevant facts relating to the revenue procedure, and such facts are true, correct, and complete.”

Double-edged sword. The 199A deduction is 20% of a taxpayer’s qualified business income from all of the taxpayer’s trades or businesses subject to certain limitations. Many rentals do not show a profit and a rental that is treated as a trade or business that shows a loss for the year will reduce the qualified business income of other trades or businesses of an individual, and as a result, reduces the 199A deduction of that individual.

If you have questions regarding rentals as a trade or business or other issues related to this new 199A deduction, please give this office a call.