Wednesday, November 20, 2024

Tax Court Doubles Down on Farhy & IRS Not Having the Right to Assess 5471 Reporting Penalties

The United States Tax Court issued its opinion in Raju J. Mukhi v. Commissioner, 162 T.C. No. 8, where the court affirmed its ruling that the Internal Revenue Service lacked authority to assess $120,000 in penalties against Raju J. Mukhi under Internal Revenue Code Section 6038(b) for failing to file information returns disclosing his ownership of a foreign corporation from 2002 through 2013.

Raju J. Mukhi created three foreign entities between 2001 and 2005, through which he opened several foreign brokerage accounts. From 2005 to 2008, Mukhi transferred and withdrew millions of dollars through these entities.

Raju Mukhi pled guilty in 2014 to subscribing to false U.S. individual income tax returns and failing to file a foreign bank and financial accounts report (FBAR). Mukhi had created three foreign entities between 2001 and 2005, two trusts and a corporation. He failed, however, to timely file: 

  • Forms 3520, Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts, for tax years 2005-2008; 

  • Forms 3520-A, Annual Information Return of Foreign Trust With a U.S. Owner, for tax years 2005-2010; and 

  • Forms 5471, Information Return of U.S. Persons With Respect To Certain Foreign Corporations, for tax years 2002-2013.

The IRS assessed a total of over $11 million in foreign reporting penalties, including over $10.9 million under Code Sec. 6677 for failure to file Forms 3520 and 3520-A, and $120,000 under Code Sec. 6038(b) for failure to timely file Forms 5471. 

The Tax Court upheld the agency's authority to assess nearly $11 million in penalties against Mukhi for failing to report foreign trusts (Form 3520), it wouldn't allow the IRS to penalize him for failing to submit an information form revealing his ownership of Sukhmani Partners II Ltd., one of three foreign corporations Mukhi had created (Form 5471).

IRS Lacks Authority to Assess Section 6038(b) Penalties: The court reaffirmed its previous decision in Farhy v. Commissioner, holding that the IRS does not have the authority to assess penalties under Section 6038(b) of the Internal Revenue Code. The Tax Court made this decision in light of the fact that the U.S. Circuit Court of Appeals for the District of Columbia reversed the Tax Court's decision in Farhy

The circuit court held that the IRS does, in fact, have statutory authority to assess penalties for failure to report control of foreign businesses under Code Sec. 6038(b). According to the D.C. Circuit, the "text, structure, and function" of Code Sec. 6038 show that Congress intended for the penalty to be assessable. After the D.C. Circuit's decision in Farhy, the IRS filed a motion for reconsideration in Mukhi.

In its second look at the IRS' authority to assess Code Sec. 6038(b) penalties in Mukhi, the Tax Court noted that the parties had stipulated the case is appealable to the 8th U.S. Circuit Court of Appeals. Therefore, said the Tax Court, the D.C. Circuit's decision in Farhy is not bi

Despite the ruling on Section 6038(b) penalties, the court upheld the majority of the challenged penalties, which totaled approximately $11 million.

The court addressed various aspects of the collection due process, including the IRS's consideration of Mukhi's offers in compromise and the determination of his reasonable collection potential.

IRS Motion for Reconsideration: On June 7, 2024, the IRS filed a motion for reconsideration, asking the Tax Court to reconsider its holding regarding the Section 6038(b) penalties. The IRS cited the D.C. Circuit's May 3, 2024 decision in Farhy v. Commissioner, which reversed the Tax Court's earlier ruling on this issue.

The Mukhi case is appealable to the Eighth Circuit, while the Farhy case was decided by the D.C. Circuit. This creates potential for a circuit split on the issue of IRS authority to assess Section 6038(b) penalties.

Potential Supreme Court Review: If different circuit courts reach conflicting decisions on this issue, it may eventually lead to a review by the U.S. Supreme Court.

This case has significant implications for taxpayers with foreign reporting requirements and the IRS's ability to assess certain penalties. It highlights the ongoing legal debate surrounding the IRS's authority to assess penalties under Section 6038(b) and the potential for further litigation and appeals in this area.

Need To Successfully Contest Form 5471,
5472, 8938, & 3520 Late Filing Penalties?


     Contact the Tax Lawyers at

Marini & Associates, P.A. 


for a FREE Tax HELP Contact us at:
www.TaxAid.com or www.OVDPLaw.com
or 
Toll Free at 888 8TAXAID (888-882-9243)


Monday, November 4, 2024

Court Stops Texas Professional from Organizing and Selling “Tax Plans” To Deduct Personal Expenses

According to DoJ, The U.S. District Court for the Northern District of Texas entered permanent injunctions on November 1, 2024 against Charles Dombek and The Optimal Financial Group LLC barring them from promoting any tax plan that involves creating or using sham management companies, deducting personal non-deductible expenses as business expenses or assisting in the creation of “captive” insurance companies. 

The injunctions also prohibit Dombek from preparing any federal tax returns for anyone other than himself and Optimal from preparing certain federal tax returns reflecting such tax plans. Dombek and Optimal consented to entry of the injunctions.

According to the government’s complaint, Dombek is a licensed CPA and served as Optimal’s manager and president. Allegedly, Dombek and Optimal promoted a tax scheme throughout the United States to illegally reduce customers’ income tax liabilities by using sham management companies to improperly shift income to be taxed at lower tax rates, improperly defer taxable income or claim personal expenses as bogus business deductions. 

As alleged by the government, Dombek promoted himself as the “premier dental CPA” in America. The complaint further alleges that in promoting the schemes, Dombek and Optimal made false statements about the tax benefits of the scheme that they knew or had reason to know were false, then prepared and signed tax returns for their customers reflecting the sham transactions, expenses and deductions. The government contended that the total harm to the treasury from the scheme could have been $10 million or more.

Each year the IRS highlights some of the tax scams that put taxpayers at risk of losing money, personal information, data and more. In the IRS’s most recent list it specifically warned taxpayers “to beware of promoters peddling bogus tax schemes aimed at reducing taxes or avoiding them altogether.”

Working with the IRS, the Justice Department’s Tax Division has obtained injunctions against hundreds of unscrupulous tax preparers and tax scheme promoters over the past decade. Information about these cases is available on the Justice Department’s website. An alphabetical listing of persons enjoined from preparing returns and promoting tax schemes can be found on this page. If you believe that one of the enjoined persons or businesses may be violating an injunction, please contact the Tax Division with details.

Have an IRS Tax Problem?


     Contact the Tax Lawyers at

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1st Circuit Holds No 4th Amendment Privilege for Crypto Accounts

Those who thought their cryptocurrency transactions would remain anonymous or a secret from the Internal Revenue Service should think again according to Law360.

Nearly 50 years ago, the U.S. Supreme Court held that information customers voluntarily provide to banks is not subject to Fourth Amendment privacy protections, and therefore can be disclosed to law enforcement. In September of 2024 him, in James Harper v. Daniel Werfel, the U.S. Court of Appeals for the First Circuit expanded this principle to cryptocurrency exchanges.

This ruling, as well as those of various district courts, confirms the ability of the IRS to identify taxpayers engaged in financial transactions involving cryptocurrency exchanges. Much as for taxpayers decades ago who believed their use of Swiss bank accounts would allow them to conceal their income, this ruling is another wake-up call for any who may still have similar thoughts about using digital asset currency exchanges.

The issuance of John Doe summonses remains one of the strongest tools in the IRS' enforcement arsenal. These summonses allow the IRS to obtain information on large numbers of taxpayers in one fell swoop. 

In Recent Years, The IRS Has Issued Such Summonses To
Major Cryptocurrency Exchanges, Such As Coinbase,
Kraken And Circle Financial, Seeking Taxpayer Information.

The First Circuit's decision in Harper upheld the IRS' right to issue John Doe summonses to cryptocurrency exchanges, finding that cryptocurrency users do not have a Fourth Amendment reasonable expectation of privacy in their records held by exchanges.

While the use of John Doe summonses isn't new, this is the first time a court of appeals has expressly approved their use. For years, federal prosecutors have been champing at the bit by ramping up investigations of and enforcement against taxpayers who use digital assets to evade tax liabilities.

Harper should serve as a signal to taxpayers and cryptocurrency exchanges alike that the IRS-CI will not be letting up anytime soon.


Have an IRS Tax Problem?


     Contact the Tax Lawyers at

Marini & Associates, P.A. 


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or 
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Tuesday, October 29, 2024

FinCEN Provides BOI Reporting Relief to Victims of Recent Natural Disasters

On October 3, 2024, we posted Only 90 Days Left To File BOI Report, where we discussed that there was only 90 days remain to ensure your business complies with the Corporate Transparency Act (CTA). 

On October 7, 2024 the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) announced that certain victims of Hurricane Milton, Hurricane Helene, Hurricane Debby, Hurricane Beryl, and Hurricane Francine will receive an additional six months to submit beneficial ownership information reports, including updates and corrections to prior reports. 

FinCEN has issued five Notices extending the filing deadlines to for reporting companies that 1) have an original reporting deadline beginning one day before the date the specified disaster began and ending 90 days after that date, and 2) are located in an area that is designated both by the Federal Emergency Management Agency as qualifying for individual or public assistance and by the Internal Revenue Service as eligible for tax filing relief. 

Please refer to the applicable Notice for specific information.

FinCEN is providing this relief to reporting companies that meet two requirements.  

First, the deadline for the reporting company to file an initial or updated BOI report must fall on or between October 4, 2024, and January 2, 2025.  I

Second, the reporting company must have its principal place of business in an area designated both by the Federal Emergency Management Agency (FEMA) as qualifying for individual or public assistance, and by the Internal Revenue Service (IRS) as eligible for tax filing relief as a result of Various Hurricanes.  

If, after the date of this announcement, the IRS designates other areas affected by this natural disaster as eligible for tax filing relief, the reporting companies with their principal place of business in those areas will also receive the same BOI reporting relief from FinCEN automatically, i.e., reporting companies with an initial or updated BOI report due on or between October 4, 2024, and January 2, 2025, with a principal places of business located in these other areas, will also have an additional six months from their original deadline to submit BOI reports.   

For example, the initial BOI report of a reporting company created or registered before January 1, 2024, normally would be due by January 1, 2025.  If such a company has its principal place of business in an area designated both by FEMA as qualifying for individual or public assistance and by the IRS as eligible for tax filing relief as a result of a Hurricane, the company’s initial BOI report is now instead due by July 1, 2025.  

Similarly, the initial BOI report of a reporting company created or registered on July 25, 2024, normally would be due by October 23, 2024.  If such a company has its principal place of business in an area designated both by FEMA as qualifying for individual or public assistance and by the IRS as eligible for tax filing relief as a result of a Hurricane, the company’s initial BOI report is now instead due by April 23, 2025. 

In addition, FinCEN will work with any reporting company whose principal place of business is outside the disaster areas but that must consult records located in the affected areas to meet the deadline.  

Reporting companies with a principal place of business outside the affected areas and that are seeking assistance in meeting their filing obligations should contact FinCEN at  www.fincen.gov/boi.

Need Help Filing Your BOI Report?


     Contact the Tax Lawyers at
Marini & Associates, P.A. 


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or 
Toll Free at 888 8TAXAID (888-882-9243)

 





Shall I Stay or Shall I Go? - IRS Reports That US Expatriations Jumped Nearly 24% During The Third Quarter Of 2024!

The Internal Revenue Service said in its notice that the number of people who expatriated from the U.S. increased nearly 24% during the third quarter of 2024 compared with the previous quarter. 

The Number Of People Losing Or Renouncing Their U.S. Citizenship Increased to 2,123 For the 3rd Qtr of 2024.
A 25% Increase From The 2nd Quarter of 2024.

Included on the list are those who lost U.S. citizenship under Internal Revenue Code Section 877(a) and Section 877A, according to the notice, as well as long-term residents who are treated as losing citizenship under Section 877(e)(2).

According to CNBC the top reason why Americans abroad want to dump their U.S. citizenship include:
  • Nearly 1 in 4 American expatriates say they are “seriously considering” or “planning” to ditch their U.S. citizenship, a survey from Greenback Expat Tax Services finds.  
  • About 9 million U.S. citizens are living abroad, the U.S. Department of State estimates.
  • More than 4 in 10 who would renounce citizenship say it’s due to the burden of filing U.S. taxes, the Greenback poll shows.


Should I Stay or Should I Go?


Need Advise on Expatriation?
 

Contact the Tax Lawyers at 
Marini & Associates, P.A.   


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www.TaxAid.com or www.OVDPLaw.com 
or 
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IRS Adds New Unit to Increase Audit Rates for Partnerships, S-Corporations And Trusts!

In IR-2024-276, dated October 22, 2024 the Internal Revenue Service announced the new pass-through field operations unit announced last fall has officially started work in its Large Business and International (LB&I) division to more efficiently conduct audits of pass-through entities.


The Creation Of A New Unit Specifically Devoted
To Ensuring Compliance Of Pass-Throughs Of
Every Size And Form, Including 
Partnerships, S-Corporations And Trusts,
Reflects The IRS’s Broader Efforts To Focus More
Attention And Resources On An Area That
Has Historically Been Under-Scrutinized.

Previously, pass-through exams were divided between LB&I and the Small Business/Self-Employed (SB/SE) division based on the size of the entity. Going forward, revenue agents in pass-through field operations will be assembled into geographically based teams that are responsible for primary exams of pass-through entity returns. LB&I will be responsible for starting pass-through exams, regardless of entity size. SB/SE will continue to examine pass-through entities as part of a related exam of a tax return.

Consolidating the case-working expertise and removing the entity-size barrier helps the IRS achieve its goal of increased audit rates in this complex area, streamlines workflows and provides a more consistent experience for taxpayers.

"The establishment of pass-through field operations is a significant step in our goal to increase fairness in enforcement while improving service,” said IRS Commissioner Danny Werfel. 

A pass-through is a business entity in which the profits “pass through” to the owner(s) of that business and are taxed at the individual tax rate. They are frequently used by higher-income groups and can be complex tax arrangements.

"This combination of LB&I and SB/SE’s diverse expertise is an important milestone,” said Holly Paz, LB&I Commissioner. "This group will undoubtedly have a lasting impact as we continue building a modern pass-through compliance structure that is passionate about taxpayer service and fair enforcement.”

The IRS has also embarked on other important changes to help dedicate resources and support to this complex compliance space.

  • The IRS launched examinations of 76 of the largest partnerships with average assets over $10 billion that includes hedge funds, real estate investment partnerships, publicly traded partnerships, large law firms and many other industries. These audits can take years depending on the size and complexity of the partnerships.
  • IRS Chief Counsel announced the creation of a new associate office that will focus exclusively on partnerships, S-corporations, trusts and estates. This office will be drawn from the current Passthroughs and Special Industries (PSI) Office.

The stand-up of pass-through field operations meets one of the priorities of the Strategic Operating Plan under Objective Three: Fairness in Enforcement. 


It is also a significant part of the overall expanded enforcement efforts that focus on high-income and high-wealth individuals, partnerships and large corporations that have seen sharp drops in audit rates during the past decade.


Have an IRS Tax Problem?


     Contact the Tax Lawyers at

Marini & Associates, P.A. 


for a FREE Tax HELP Contact us at:
www.TaxAid.com or www.OVDPLaw.com
or 
Toll Free at 888 8TAXAID (888-882-9243)