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Tax Preparers Beware! 6th Circuit Court of Appeals Affirms Dismissal of Tax Refund Suit Due to Inability to Prove Timely Filing of Amended Return

April 11, 2013,

The 6th Circuit recently taught an expensive lesson to a Michigan couple about carefully following procedure when dealing with IRS Tax Problems. In Stocker v. United States (6th Cir. 2013), the 6th Circuit affirmed the dismissal of Robert and Laurel Stocker's suit against the IRS challenging the IRS' denial of a $64,000 tax refund, holding that because the Stockers could not prove the timely filing of their amended federal tax return under the methods established in Internal Revenue Code (IRC) Section 7502, the District Court for the Western District of Michigan was correct in dismissing the case.

The Stockers' tax problems and subsequent loss of their $64,000 refund occurred because of a seeming minor error. Following an IRS tax audit of a business in which the Stockers had invested and lost money, Mr. Stocker's CPA prepared amended 2003 federal tax returns for the Stockers that entitled them to a $64,000 refund. Mr. Stocker's CPA advised him that the returns had to be mailed by October 15, 2007 to comply with the tax law. Unfortunately, though Mr. Stocker testified that he mailed the returns on that day, he neglected to bring copies of the certified mail receipts to the post office, therefore failing to obtain date-stamped receipts. Apparently this was because although the CPA's office manager prepared postage prepaid, certified mail return receipted requested envelopes for the Stockers she mistakenly retained the customer copies of the certified mail receipts for the 2003 amended returns, rather than giving these copies to Mr. Stocker so that he could present them at the post office as he mailed the returns.

This left the Stockers at a disadvantage when their tax dispute began, as the IRS' records stated that the envelope containing the Stockers' amended 2003 return was postmarked four days late. Compounding the Stockers' tax problems, the IRS failed to retain the postmarked envelope in question. Seeking help in their tax dispute the Stockers brought suit, but the District Court granted the IRS' motion to dismiss for lack of jurisdiction due to the suit being barred as past the three-year period for filing a claim for a tax refund. On appeal, the 6th Circuit affirmed.

The 6th Circuit was unmoved by the Stockers' attempts to prove the mailing date of their return through means other than those set forth in IRC Section 7502. As the IRS' records indicated that the returns were postmarked four days late, the Stockers could not prove timely delivery under IRC Sec. 7502(a)(1), which states that the postmark of the returns establishes the date of mailing. Additionally, Mr. Stocker's failure to obtain the certified mail receipt precluded the use of IRC section 7502(c)(1), which states that the "date of registration shall be deemed the postmark date". The court rebuffed the Stockers' attempts to prove timely delivery through circumstantial evidence; rather, the Court stated that its own precedent prevented any other method of proof. Finally, the court held that the District Court had not abused its discretion in refusing to draw the inference that the Stockers had timely filed their returns because of the IRS' failure to retain the postmarked envelope in violation of internal policy.

Despite the seemingly minor nature of the Stockers' mistakes, the 6th Circuit was highly unsympathetic to their plight. Ultimately, the court reiterated that only certain procedures are available to prove timely filing, and the Stockers' own mistakes precluded them from receiving relief, despite their innocent nature. While calling it "unfortunate" that the Stockers could not prove the timeliness of their return, the court sent a strong message to taxpayers that it was unwilling to make exceptions for even the most innocent of mistakes.

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Treating Employees As Independent Contractors Results in Criminal Tax Conviction

December 3, 2012,

In a criminal tax case last year the United States Court of Appeals for the Eighth Circuit upheld the conviction of a man for willful failure to pay the employment taxes of his healthcare staffing business. U.S. v. McClain (8th Cir. 2011). In United States v. Francis Leroy McLain, No. 0:08-cr-00010 (D. Minn. Jul. 20, 2009) the United States District Court for the District of Minnesota determined that Francis McLain knew he should have classified the workers for his temporary nursing staffing agency as employees but willfully chose not to.

How did McLain's payroll tax problems morph into criminal tax problems? First, he never filed federal payroll tax returns (Form 941) for the periods from the fourth quarter of 2002 through the fourth quarter of 2005 and only made one payment in December 2002 in the approximate amount of $4,200 for employment taxes although the total amount due was approximately $345,000. McClain's defense was that the nurses were in fact independent contractors and not employees, and even if they weren't he had a good faith belief that the workers were employees.

The courts were not impressed with McClain's arguments since he had a history of misclassifying his temporary nursing staff as independent contractors. In a previous civil tax case involving a predecessor company the IRS argued that McClain willfully misclassified his workers and failed to remit the payroll taxes to the IRS. That lawsuit was eventually settled and the IRS obtained a judgment for the unpaid employment taxes, penalties and interest. As a further part of that settlement McLain agreed that "with respect to any other business similar to the ... entities that he might own, operate, or control in the future, he would treat as employees for tax purposes all workers who performed functions or duties that were the same or similar as the functions or duties performed by the nurses and nursing assistants who worked for the...entities. In other words, defendant McLain was obligated to withhold and pay over employment taxes for the nursing professionals who worked for any of his entitles." In addition, McLain did comply with a Minnesota's statute requiring that nurse staffing agencies like his certify that they are treating their nurses as employees and not independent contractors.

Sometimes it's a gray area whether to treat workers as employees or independent contractors; but the wrong decision can have detrimental consequences to an employer, and its officers, resulting in large payroll tax liabilities and even tax evasion or tax fraud charges. The IRS has a number of criteria they use in determining whether a worker is an employee or an independent contractor and these federal criteria may differ on a state level as well.

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Tax Fraud: Criminal Tax Conviction For Failure to Pay Payroll Taxes Upheld

May 8, 2012,

The criminal tax conviction of a New Jersey couple (the DeMuros) for failure to pay payroll taxes to the IRS was affirmed by the Third Circuit Court of Appeals, United States v. DeMuro (3d Cir. 2012). The willful failure to pay payroll taxes is a violation Internal Revenue Code (IRC) Section 7202, and is punishable by up to five years in prison. Of course the willful failure by a responsible officer to pay trust fund taxes is also a violation of IRC Section 6672, and will result in a trust fund recovery penalty (TFRP) being assessed against the responsible officers. Obviously the criminal tax conviction is much more serious than the assessment of the trust fund recovery penalty.
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The DeMuros failed to pay trust fund taxes for their business of more than $546,000 over 21 calendar quarters from 2002 to 2008, resulting in a 21 count indictment. While that is a lot of money it is easy to see how a failing business could wind up in that situation since it amounts to about $25,000 per quarter, and was spread over a seven year period. A large sum, but not shocking, at least not to tax lawyers, and other tax professionals who see this type of underpayment on a semi-regular basis.

The DeMuros tried to argue that their failure to pay wasn't willful, but to no avail. The IRS pointed to evidence that during the same time period the DeMuros spent over $5 million dollars from their personal and corporate bank accounts. Apparently several witnesses testified at trial about the DeMuros "luxury vacations, nice homes, and [Mrs. DeMuros] substantial home shopping network expenditures," and the DeMuros argued on appeal that the admission of this evidence was "prejudicial." The response from the Third Circuit was: "[w]hile we are sensitive to the effect that evidence of a defendant's liberal spending habits can have on a jury, particularly in these lean economic times, the evidence admitted in this case, i.e. evidence of vacations, jewelry, cars and parties, was not so inflammatory as to carry a great risk of prejudice."

Mrs. DeMuro argued at trial that she was not responsible for paying the payroll taxes. The IRS response was to show that that Mrs. DeMuro had the authority to fire employees and signatory authority over corporate bank accounts.

Interestingly the IRS also called as a witness the Enrolled Agent that represented the DeMuros before the IRS with regard to the payroll tax problems. The Enrolled Agent testified that he had reviewed two appeals that the DeMuros had filed, and that in his opinion they were meritless, and therefore should have been withdrawn. Advice which apparently the DeMuros didn't follow, and the IRS relied on this as evidence of bad faith on the part of the DeMuros.

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Failure to Pay Payroll Taxes Leads to Criminal Tax Charges

February 1, 2012,

Last month, while most people were preparing their Christmas lists, Louis Alba, a New York contractor, plead guilty to criminal tax charges of failing to pay over to IRS employment taxes withheld from employee wages in the amount of almost $780,000 over approximately six years. Failure to pay over payroll taxes is considered a felony under Internal Revenue Code (IRC) Section 7202. It is punishable by up to five years in jail, and a fine of up to $250,000.
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In the current economic environment business owners who are strapped for cash sometimes decide to "borrow" from the IRS by not paying the payroll taxes. The theory is that if cash is tight, and the vendors aren't paid there will be no more merchandise to sell, and therefore the business will go under quickly. The same with the landlord; don't pay the rent, and one can expect an eviction notice in short order. The IRS on the other hand moves slowly, and the temptation is to believe that if you have another 6 months or so business will turn around, and the IRS can be paid back.

Unfortunately in many cases that doesn't happen. The IRS doesn't look on this as borrowing; it views the failure to pay payroll taxes as stealing. Even if criminal tax charges are not brought, so-called responsible officers who fail to pay over corporate payroll taxes can be held personally liable under IRC Section 6671. More and more, however, the IRS is bringing criminal tax fraud charges. For the record persons convicted of tax crimes still must pay the taxes. It's not one or the other.

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Felony Criminal Tax Charges Filed Against New York CPA for Non-Payment of Trust Fund Taxes

December 21, 2011,

The IRS has filed felony criminal tax charges pursuant to Internal Revenue Code Section 7202 for willful failure to collect, truthfully account for and pay over trust fund taxes. This is yet another in a series of criminal tax charges being brought against responsible officers who haven't paid over corporate trust fund taxes. In most situations the IRS proceeds against responsible officers who willfully fail to pay corporate trust fund taxes, by assessing the tax directly against the individual under Internal Revenue Code Section 6672. This is generally referred to as the trust fund recovery penalty. Sometimes the IRS goes further and brings criminal tax charges. paper_work.jpg

In this case the defendant is a New York CPA who, according to the information filed in U.S. District Court, failed to pay payroll taxes to the IRS for three years running. Our tax lawyers found this case interesting because the amount of unpaid trust fund taxes was not terribly large. The total the IRS alleged as unpaid was approximately $108,000, fairly small potatoes, as payroll tax cases tend to go.

I thought it was important to blog about this case because clients sometimes assume that the relatively small size of their tax problem will insulate them against criminal tax liability. While that is generally accurate, as this case illustrates, not always.

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Felony Criminal Tax Prosecution Goes Forward

December 20, 2011,

United States v. Quinn (D. KS 2011) is one of several recent felony tax prosecutions, not for tax evasion, but for violation of Internal Revenue Code Section 7202. IRC Section 7202 makes it a felony to willfully fail to collect, account for, or pay over any tax due. In this case Ms. Quinn failed to pay payroll taxes for 7 quarters between 2003 and 2005. She finally got around to paying them in 2010, apparently after the IRS had filed criminal tax charges against her. Ms. Quinn challenged the finding that she failed to pay employment and individual tax and argued that since she had subsequently paid the tax due the charges should be dismissed.old_ball_and_chain.jpg

The court wrote in its opinion that a person has failed to pay taxes if they have not paid the amount due as of the due date, regardless of whether the taxpayer has subsequently paid. In Ms. Quinn's case, she had recently paid the amounts due but this was not sufficient for the court to find her not guilty.

This does not mean that late payment of taxes will never prevent a criminal tax prosecution, and those who have not paid their taxes should seriously consider taking care of a tax problem before it turns into a criminal tax problem. Had Ms. Quinn gotten around to making full payment, or indeed even made good faith installment payments much earlier there is a chance that the case would never have gotten as far as it did.

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Lack of Funds Not a Defense to Criminal Tax Fraud Charges

September 12, 2011,

Criminal tax charges were recently upheld by the Sixth Circuit Court of Appeals against an individual who withheld payroll taxes but failed to pay those amounts over to the Internal Revenue Service ("IRS"). The defendant had been convicted of fifteen counts of Failure to Account for and Pay Over Withholding and FICA Taxes, in violation of 26 U.S.C. § 7202, and three counts of Making and Causing the Making of a False Claim for a Tax Refund, in violation of 18 U.S.C. § 287. The lower court sentenced the defendant in the case to 22 months in prison and 36 months of supervised release and ordered him to pay the amount owed plus penalties.

The defendant in the case, Richard Blanchard, did not pay trust fund taxes for approximately 6 years despite withholding taxes from his employees. The case started out as a civil tax audit, but then it became a criminal tax case. Blanchard appealed the decision of the district court, stating that the government failed to prove that he was financially able to pay over the employment tax and that the government must do so in order to show that his failure to pay violated the relevant statute. The appellate court found not only that the government did not need to prove that Blanchard was able to pay the tax, but also that Blanchard's inability to pay that tax would not even constitute a defense to the government's accusations. The court cited previous cases and stated that every individual must conduct his financial affairs in such a way that he is able to pay his tax liability when it becomes due. Thus, Blanchard's conviction and sentence of 22 months plus 36 subsequent months of supervised release were affirmed.

The case is disturbing to the extent that it brings to mind the concept of debtors prison. Business owners need to understand that failure to pay withheld tax over to the IRS may result in criminal tax fraud charges as well as civil tax penalties.

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Payroll Tax Problems Cannot be Solved by Payment after Criminal Tax Charges Filed

March 9, 2011,

A Kansas woman will still face federal criminal tax charges for failure to pay payroll taxes after a federal court ruled the charges should not be dismissed simply because the taxes have since been paid.

As tax litigation attorneys we frequently hear from clients who have been contacted by the IRS criminal investigation division. Their first reaction is, "I will get the taxes paid can you get the IRS to drop the charges?" Unfortunately at that point simply paying the taxes will rarely solve the problem by itself. Payroll taxes cases usually turn criminal because the tax problem has been ignored for far too long.


In this case, the employer was charged with seven counts of failing to pay over trust fund taxes (income taxes and FICA), which had been withheld from employees' pay. The tax violations allegedly occurred between 2003 and 2005. She submitted evidence in 2010 that she had turned over to the Internal Revenue Service all unpaid taxes. She argued the charges should be dismissed since the taxes had been paid.

The government argued payment did not "cure" her of the violations or immunize her from prosecution. It was a novel legal question not addressed in case law. Section 7202 of U.S. tax law states: "Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall . . . be guilty of a felony. . . ."

The defendant noted the law makes no reference to a "due date" or other time frame. Section 7203 does make reference to a time frame when it states "at the time or times required by law or regulations."

The court ruled that the statute's wording "failure to pay over" necessarily encompasses late payments by any common sense standard. Additionally, the court ruled the defendant's interpretation of the law would make it the only area of criminal law in which a crime could be undone at any time until conviction.

The defendant was also charged with two counts of failure to pay individual income taxes, which were not addressed in the court decision.

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Payroll Tax Problems best Handled by Experienced Business Tax Attorney

January 28, 2011,

Our tax attorneys continue to see businesses struggle with payroll tax problems. Whether you have 3 employees or 300, or whether you have downsized in response to the struggling economy, payroll tax audits can cause serious legal and financial problems that can threaten the survival of a business.

The U.S. Department of Justice reports a recent case out of northern Virginia, in which a business owner was sentenced to 19 months in prison for failing to collect, account for, and pay to the Internal Revenue Service more than $200,000 in employee withholding taxes.
He was also ordered to pay $88,826.79 in restitution to the IRS.

The defendant was president of a computer software company. According to the government's allegations, he failed to pay to the government employees' withholdings for Social Security, Medicare and federal income taxes from December 2004 to June 2008.

The case was handled by the Justice Department's Tax Division, the U.S. Attorney for the Eastern District of Virginia, and the Internal Revenue Service.

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Part-Time Bookkeeper Not an Independent Contractor

April 14, 2010,

In a recent worker classification ruling SS8 2010030006 the IRS held that a part-time bookkeeper/general office worker was an employee and not an independent contractor. Generally the existence of an independent contractor relationship is based upon a 20 factor common law test set forth in Rev. Rul. 87-41, 1987-1 CB 298. Some of the factors the IRS took into account were:

The worker performed services at the payor’s place of business as well as her own home
The payer provided all office supplies including telephone, fax machine etc., although the worker provided her own computer, and accounting software.
The bookkeeper was paid hourly
The worker did not receive any benefits
The worker provided services for a period of about 2 years.
The payer’s had obtained a state ruling that the worker was an independent contractor.
The payer and the worker had an oral agreement whereby the worker agreed to independent contractor status
The worker was trained by the payer on some of its proprietary software.
The worker did not hold herself out as being in an independent business.

As a tax attorney who has been through many payroll tax audits I know it can be difficult to prove that a worker is an independent contractor to the satisfaction of the Internal Revenue Service or the California Employment Development Department (EDD).

Nevertheless payers who are subject to a payroll tax audit have a variety of defenses including the so-called safe harbor provisions of Section 530 of the Revenue Act of 1978. This underused provision of the law allows for workers who fail the 20 factor common law test be treated as independent contractors provided the following requirements are met:

1. For federal employment tax purposes the payer never treated the
individual as an employee for any period, nor did it ever treat workers holding
substantially similar positions as employees;

2. All federal tax returns (including Form 1099) are filed on a basis
consistent with the taxpayer's treatment of the individual as not being an
employee; and

3. A reasonable basis existed for classifying the individual as an independent
. Reasonable basis includes:

a. Reliance on judicial precedent or revenue ruling;
b. Previous IRS tax audit;
c. Long-standing recognized practice of a significant segment of the
industry; or
d. Any other reasonable basis.

If your company is contacted by the EDD or the IRS for a payroll tax audit or any other tax problem call the former IRS tax attorneys at Brager Tax Law Group, A PC.

Tax Fraud Results in 22 Years and $181 Million

June 9, 2009,

Frank L. Amodeo has serious criminal tax problems. The U.S. Department of Justice announced that he has been convicted in one of the biggest employment tax fraud cases in Internal Revenue Service (IRS) history. The penalties for these criminal tax charges exceed 22 years and he will be required to pay a judgment of $181 million dollars.

Amodeo collected federal withholding taxes through his numerous payroll tax companies, and then knowingly neglected to forward this tax money to the IRS. Consequently, he was charged and convicted with five felonies: willful tax evasion (totaling $181 million); obstructing an agency proceeding (by intentionally defrauding the IRS in their attempt to collect payroll tax); and conspiring to commit wire fraud, to obstruct an agency investigation, and to impede the IRS. Amodeo was forced to surrender more than $1 million cash, three homes, several luxury automobiles, commercial real estate, a Lear Jet, and his corporations in attempt to fulfill his outstanding tax debt.

While this may have been one of the larger tax fraud cases on record, people have gone to jail for tax evasion for much smaller cases.

If you have any tax problems, including potential tax fraud or payroll tax problems, contact the tax controversy lawyers at Brager Tax Law Group, A P.C.

Payroll Tax Fraud Cases Expected To Increase

February 13, 2009,

According to a report published by Tax Analysts, Assistant Attorney General Nathan Hochman, announced at a recent American Bar Association (ABA) meeting that the Internal Revenue Service (IRS) and the Department of Justice will be aggressively pursuing businesses with payroll tax problems. Hochman, who is the head tax lawyer for the Tax Division of the Department of Justice, said in tough economic times employers try to save money by not paying their payroll tax liabilities. He also noted that while in the past payroll tax problems have been handled on a civil basis that the IRS is now bringing criminal tax evasion charges, and that judges are handing out harsh sentences. I have previously blogged about the Easterday case in which Jack Easterday was sentenced to 30 months in prison for payroll tax fraud. Apparently there are more criminal payroll tax fraud cases to come.

If your company has payroll tax problems, or you have concerns about tax fraud or tax evasion please contact the tax lawyers at Brager Tax Law Group.

Independent Contractor or Employee Brochure Release by IRS

October 30, 2008,

The Internal Revenue Service (IRS) has released IRS Publication 1779 with guidance for workers to help them determine whether they are employees or independent contractors. Interestingly IRS Publication 1779, which is only two pages does not specifically mention the 20 factor test set forth in IRS Revenue Ruling 87-41, 1987-1 C.B. 296. Instead it groups various factors into three categories—Behavioral Control, Financial Control and Relationship of the Parties. For example under the category Behavioral Control it states that “if you receive extensive instructions on how work is to be done this suggests you are an employee.”

While the publication appears to be aimed at workers rather than employers, an employer could be lulled into a false sense of security by relying on the publication since among other things it fails to mention that even though an employer does not actually exercise control, if the employer maintains the legal right to control the worker those workers may well be employees.

Nor does the publication mention that Section 530 of the Revenue Act of 1978 also known as the “safe harbor rules” allows employers to treat individuals as independent contractors even if they do not qualify under the common law rules. For more information on that topic see our article Independent Contractor Treatment for Workers is Broadly Available.

If you are an employer and the IRS or the California Employment Development Department (EDD) has challenged your treatment of workers as independent contractors, or you have other payroll tax problems, contact the tax problem attorneys at Brager Tax Law Group for assistance.

Expect IRS Payroll Tax Crackdown

September 10, 2008,

According to the Government Accountability Office (GAO) the Internal Revenue Service (IRS) hasn’t been doing a very good job collecting payroll taxes. Payroll taxes are amounts that employers withhold from employee wages for federal income taxes, Social Security, and Medicare (so called trust fund taxes) as well as the employer’s matching contributions. The willful failure to pay these payroll taxes is a violation of the criminal tax law, a felony punishable by up to 5 years in jail under Internal Revenue Code (IRC) Section 7602.

The GAO study found that over 1.6 million businesses owed over $58 billion dollars in uncollected payroll taxes. The GAO concluded that the IRS didn’t file tax liens quickly enough, and that it didn’t go after the owners of businesses for the trust fund recovery penalty (TFRP) fast enough. The report also suggested that the IRS wasn’t seizing business assets often enough, pointing out that there were only 667 seizures in fiscal 2007, down from over 10,000 in 1997. The report was a rather scathing indictment of the IRS, and various U.S. Senators were quick to jump on the "bash the IRS bandwagon." Senator Norm Coleman called on the IRS to “ratchet up its efforts” to recover billions in unpaid payroll taxes, and to hold “tax cheats” accountable.

The IRS responded that among other efforts it is developing and testing streamlined procedures to file injunctions against business with repeat payroll tax problems, and shut them down quickly. Apparently this would include employers whose principals were previously assessed a trust fund recovery penalty, as well as those who have operated multiple entities with payroll tax problems.

If your business has payroll tax problems you are at risk of the IRS putting you out of business, and assessing the trust fund recovery penalty resulting in owners, and officers having substantial personal tax liability. If you would like assistance in dealing with these, and other types of tax problems contact the Los Angeles California tax attorneys at Brager Tax Law Group, A P.C.

Disqualified Employment Tax Levy

August 22, 2008,

One of the important protections from the Internal Revenue Service ("IRS") is a taxpayer’s right to obtain a hearing with the IRS Appeals Division before an IRS collection officer can issue a tax levy. This hearing is known as collection due process, or CDP hearing. CDP hearings are permitted by virtue of Internal Revenue Code Section (IRC) Section 6330. Congress thought that some taxpayers were abusing the CDP hearing process to delay the collection of payroll taxes. As a result Section 8243(a) of the "Small Business and Work Opportunity Tax Act of 2007" amended IRC 6330(f) to permit a tax levy without first giving a taxpayer owing payroll taxes a pre-levy CDP notice if the levy is a “disqualified employment tax levy.” A “disqualified employment tax levy” is defined in IRC section 6330(h) as a tax levy served to collect the payroll tax liability of a taxpayer if that taxpayer or a predecessor requested a CDP hearing under IRC section 6330 for unpaid employment taxes arising in the two-year period prior to the beginning of the taxable period to be collected by the tax levy.

Earlier this year the IRS issued an internal memorandum intended as a temporary guidance to IRS revenue officers until the Internal Revenue Manual can be updated to reflect these changes. The memo is helpful in that it contains a chart to help determine whether a tax period is subject to the disqualified employment tax levy rules.

If you have a payroll tax problem contact California Certified Tax Specialist Dennis Brager for a consultation.