As a golfer, I have a zero handicap – as in my handicap is that I have zero talent. I'm a scratch golfer. Every time I tee off, I scratch my head at how badly I suck. My pre-shot routine involves giving my golf ball the last rites. When I walk by the golf ball display at Dick's Sporting Goods, I hear the balls gossiping, “I hope he doesn't pick me.” I may stink at golf, but I'm pretty good at keeping clients from making bogeys with the I.R.S.
What should you do if you owe the I.R.S. money and can't afford to pay? I get this question a lot. It comes in the context of delivering a tax return with a significant balance due. The obvious question clients ask is “Should I get a filing extension for my tax return until I can get the money to pay?” This question stems from confusing an extension of time to file with an extension of time to pay.
When you receive an extension of time to file your return, you don't get an extension of time to pay your tax balance due. At first glance, this doesn't make sense. After all the reason most people need a filing extension is that they don't know what they might owe. Nonetheless, if you are asking for an extension of time to file your returns, you are required to make a good faith estimate of any potential balance due. You are also required to pay that balance due by April 15th. The reason behind this requirement is that a taxpayer should never put in a better position by paying taxes late. If getting an extension to file meant an extension of time to pay, no one would ever file and pay by the original due date. We would all pay as late as possible.
When you get a filing extension and end up owing money by the time you finally do file the returns, the I.R.S. assesses both interest and a penalty for paying late. You don't get a penalty for filing late, but there is a significant penalty for paying late. The I.R.S. Even has the right to disallow a filing extension if you don't make a good faith effort to determine and pay your tax liability by April 15th. As a practical matter, I have never seen them disallow a filing extension for this reason. However, Virginia routinely disallows filing extensions when the final balance due exceeds 10% if the total tax liability on a return. People, who file Virginia returns with filing extensions but with large balances due, pay both late filing and late payment penalties along with interest from May 1st, the original filing deadline for Virginia returns.
If you have your tax returns completed by the original due date, file them on time even if you owe money. Yes, you are going to get nasty notices from the I.R.S., but there is no good reason to risk paying additional penalties by filing for an unneeded extension. In fact, until you get the first nasty notice from the I.R.S., you can't call them to arrange for a payment agreement anyway. If your balance due is relatively small, less than $10K, you can file form 9465 with your completed tax return and propose a monthly payment to settle your liability.
If you owe a really significant balance, greater than $10K, pay what you can when you file the return, and then begin working on a payment arrangement once you get the first balance due notice. Until you get that first notice, no one at the I.R.S. can help you with a payment agreement since you don't have a tax liability until the return has been processed. If you are going to owe taxes to both the I.R.S. and a state, pay the smaller of the balances due in full if you can. Dealing with one tax authority is painful enough. Dealing with two sets of nasty notices is more than most people can bear.
If you owe the I.R.S. more than $10K but less than $50K, I have some good news. Within the last couple months, the I.R.S. instituted a streamlined procedure for reaching payment agreements. Previously, balances of this size required a lot of paperwork and negotiating payment agreements followed a very similar procedure to making an offer in compromise – not good news.
I worked on one case for eight months. Every time I thought we were approaching an agreement, the I.R.S. would request updated financial information, and we basically started all over again. I felt like the guy in hell who bends over to take a drink from a lake only to have the lake recede as his mouth approaches the water. One day during tax season, I called the I.R.S. expecting another extended stay in hell. Instead, I had an agreement in twenty minutes. The next morning I read in a tax newsletter about the streamlined procedure. We were proposing a three year payment schedule. The procedure allows for five year repayment. Once in awhile we catch a good break in the tax business.
If you owe more than $50K, you probably need an attorney with bankruptcy experience. No, that doesn't sound happy. With really large balances due, the I.R.S. requires one or more of the series 433 forms. Wages earners complete one of the series and self employed taxpayers complete a different set. The 433 series forms let the I.R.S. establish the amount you can afford to pay. The forms are a form of personal financial statement that includes all of your assets, liabilities, income, and expenses. That doesn't sound so bad except for being a paper chase.
However, once you have completed the forms, the I.R.S. doesn't just subtract your reported expenses from your income to determine the amount you can pay. They compare your expenses against a table of allowable expenses and then use the smaller amount. For instance, if your mortgage payment is $4k, but the allowable housing payment is $2K, they use $2K in the payment calculation. Yes, that might just create a problem with your mortgage company. When calculating the amount you can pay, the I.R.S. doesn't care if paying their calculated affordable payment means you lose your house. That is why you need the bankruptcy attorney. Negotiating a payment agreement on a balance greater than $50K will take months and be expensive in professional fees. You can easily pay $15K in fees to get a payment agreement on a $60K tax balance due.
I haven't given you a lot of good news in this blog entry. The best advice I can give you is don't owe the I.R.S. a lot of money. Yes, I am a master of the obvious. However, I see a lot of business owners get into deep tax trouble by denial. This past tax season, an owner of an IT firm made $150K in profits and never considered making a tax payment during the year. It was his second year in operation. His first year his company lost money and consequently he owed no taxes. In the second year, he felt he needed all of the profit just to pay his normal living expenses. After all $150K doesn't make you rich in northern Virginia. Before starting his company, he made nearly $250K as an employee for a government contractor. Between Social Security, Medicare, and regular income taxes, he incurred a tax liability of $40K. Now he's in serious tax trouble. He knew he was digging a big tax hole. An hour of tax planning with me during the year would have shown the size of the hole, but he was in denial. Another year of this behavior and he'll be in bankruptcy.
The RG III era of Washington Redskin history has begun. I'm trying my best to be enthusiastic, but here's a question for you. How many running quarterbacks have won a Super Bowl? The number is somewhere between zero and zero. Steve Young and John Elway won Super Bowls, but not until long after their running days were over. Whether RG III's tenure is more successful than RG I's (Rex Grossman) will depend on the other draft selections this year. I'm most impressed with the offensive line picks. Super Bowls wins start with the big uglies in the trenches.
Thanks for reading! For serious tax and accounting advice, please visit our S&K web site at www.skcpas.com.
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