Showing posts with label section 6707A Penalty. Show all posts

6707A Penalties & 419 Plans Litigation: A warning for 419, 412i, Sec.79 and captive insura...

6707A Penalties & 419 Plans Litigation: A warning for 419, 412i, Sec.79 and captive insura...: Web CPA The dangers of being "listed" Accounting Today: October 25, 2010 By: Lance Wallach Taxpayers who previously adopted 419 pl...

Tax Shelter Penalty Cases Hurt Thousands of Small Business Owners

Lance wallach

Mar 08

Insurance agents and others sell 412i, 419, captive insurance and section 79 scams to unsuspecting business owners. The IRS considers many of these plans abusive tax shelters, listed transactions, reportable transactions, or what it calls "similar to," which allows them to target the plan. The unsuspecting business owners then get audited by the IRS, lose their deductions, and pay interest and penalties. Then comes the bad news. The IRS comes back and fines the business owners a large amount of money for not properly filing under IRC 6707A. They have even fined hundreds of business owners who have filed. The IRS says that they prepared the forms incorrectly or filed improperly, or lied to the IRS.
Taxpayers must report certain transactions to the IRS under Section 6707A of the Tax Code, which was enacted in 2004 to help detect, deter, and shut down abusive tax shelter activities. For example, reportable transactions may include being in a 419,412i, or other insurance plan sold by insurance agents for tax deduction purposes. Other abusive transactions could include captive insurance and section 79 plans, which are usually sold by insurance agents for tax deductions. Taxpayers must disclose their participation in these and other transactions by filing a Reportable Transactions Disclosure Statement (Form 8886) with their income tax returns. People that sell these plans are called material advisors and must also file 8918 forms properly. Failure to report the transactions could result in very large penalties. Accountants who sign tax returns that have these deductions can also be called material advisors and should also file forms 8918 properly.
The IRS has fined hundreds of taxpayers who did file under 6707A. They said that they did not fill out the forms properly, or did not file correctly. The plan administrator or a 412i advised over 200 of his clients how to file. They were then all fined by the IRS for filling out the forms wrong. The fines averaged about $500,000 per taxpayer.
A report by the Treasury Inspector General for Tax Administration (TIGTA) found that the procedures for documenting and assessing the Section 6707A penalty were not sufficient or formalized, and cases often are not fully developed.
TIGTA evaluated the IRS's effectiveness in identifying, developing, and applying the Section 6707A penalty. Based on its review of 114 assessed Section 6707A penalties, TIGTA determined that many of these files were incomplete or did not contain sufficient audit evidence. TIGTA also found a need for better coordination between the IRS's Office of Tax Shelter Analysis and other functions.

"As penalties are meant to encourage voluntary taxpayer compliance, it is important that IRS procedures for documenting and assessing them be well developed and fully documented," said TIGTA Inspector General J. Russell George in a statement. "Any failure to do so raises the risk that taxpayers will not receive consistent and fair treatment under the law, and could further reduce their willingness to comply voluntarily."

The Section 6707A penalty is a stand-alone penalty and does not require an associated income tax examination; therefore, it applies regardless of whether the reportable transaction results in an understatement of tax. TIGTA determined that, in most cases, the Section 6707A penalty was substantially higher than additional tax assessments taxpayers received from the audit of underlying tax returns. I have had phone calls from taxpayers that contributed less than $100,000 to a listed transaction and were fined over $500,000. I have had phone calls from taxpayers that went into 419, or 412i plans but made no contributions and were fined a large amount of money for being in a listed transaction and not properly filing forms under IRC section 6707A. The IRS claims that the fines are non appealable.
On July 7, 2009, at the request of Congress, the IRS agreed to suspend collection enforcement actions. However, this did not preclude the issuance of notices of assessment that are required by law and adjustment notices that inform the taxpayer of any account activity. In addition, taxpayers continued to receive balance due and final notices of intent to levy, and demands to pay Section 6707A penalties.
TIGTA recommended that the IRS fully develop, document, and properly process Section 6707A penalties. The IRS agreed with TIGTA's recommendation and plans to take appropriate corrective actions. I think as a result of this many taxpayers who have not yet been fined will shortly receive the fines. Unless a taxpayer files properly there is no statute of limitations. The IRS has, and will continue to go back many years and fine people that are in listed, reportable or substantially similar to transactions.
If you are, or were in a 412i, 419, captive insurance or section 79 plan you should immediately file under 6707A protectively. If you have already filed you should find someone who knows what he is doing to review the forms. I only know of two people who know how to properly file. The IRS instructions are vague. If a taxpayer files wrong, or fills out the forms wrong he still gets the fine. I have had hundreds of phone calls from people in that situation.

Lance Wallach, National Society of Accountants Speaker of the Year and member of the AICPA faculty of teaching professionals, is a frequent speaker on retirement plans, financial and estate planning, and abusive tax shelters. He writes about 412(i), 419, and captive insurance plans. He speaks at more than ten conventions annually, writes for more than 20 publications, is quoted regularly in the press and has been featured on television and radio financial talk shows including NBC, National Pubic Radio's All Things Considered, and others. Lance has written numerous books including Protecting Clients from Fraud, Incompetence and Scams published by John Wiley and Sons, Bisk Education's CPA's Guide to Life Insurance and Federal Estate and Gift Taxation, as well as AICPA best-selling books, including Avoiding Circular 230 Malpractice Traps and Common Abusive Small Business Hot Spots. He does expert witness testimony and his side has never lost a case. Contact him at 516.938.5007, wallachinc@gmail.com, or visit www.taxaudit419.com or www.taxlibrary.us.

The information provided herein is not intended as legal, accounting, financial or any type of advice for any specific individual or other entity. You should contact an appropriate professional for any such advice.

Guidance on applying the Section 6707A penalty provisions

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, DC 20224
LARGE BUSINESS AND INTERNATIONAL DIVISION
LB&I Control No.: LB&I-20-0211-001 Impacted IRM: 20.1.1,20.1.5

January 19, 2011
MEMORANDUM FOR INDUSTRY DIRECTORS DIRECTOR, FIELD SPECIALISTS DIRECTOR, INTERNATIONAL BUSINESS COMPLIANCE DIRECTOR, INTERNATIONAL INDIVIDUAL COMPLIANCE
~~

FROM: Cheryl P. Claybaugh /s/ Cheryl P. Claybaugh
~ Director, Pre-Filing and Technical Guidance

SUBJECT: Amended IRC Section 6707A Penalty -Interim Procedures

The purpose of this memorandum is to provide guidance on applying the Section 6707A penalty provisions amended by the Small Business Jobs Act of 2010 that was enacted on September 27, 2010. The amount of the penalty was changed, but the application of the Section 6707A penalty did not change. The amendment applies to penalties assessed after December 31,2006.
Prior to the Act, the amount of the penalty was unrelated to the tax shown on the tax return as a result of the reportable transaction. Under the amendment, the penalty is "75 percent of the decrease in tax shown on the return" as a result of the reportable transaction. The maximum penalty in the case of a listed transaction is $100,000 for a natural person and $200,000 for all other taxpayers and in the case of a non-listed reportable transaction is $10,000 for a natural person and $50,000 for all other taxpayers. The minimum penalty for both listed transactions and non-listed reportable transactions is $5,000 for a natural person and $10,000 for all other taxpayers. Procedures are being developed to centralize processing of closed cases (i.e. calculation of new penalty amounts, processing of partial abatements, and notices to impacted taxpayers). Revised case processing procedures for open and future cases will be developed.

Class Action Filed against CJA and Associates and Fidelity Security Life

Hartford, CT: A consumer fraud class action lawsuit has been filed against Chicago-based CJA and Associates and Kansas City, Missouri-based Fidelity Security Life Insurance Company (FSL).

The lawsuit alleges that CJA and FSL breached fiduciary duties in duping small business owners into investing millions of dollars of employee retirement benefit money in FSL annuities when up to 95% of the initial money invested was being siphoned off in commissions and fees.

The so-called Section 412 (e)(3) plans are under attack from the IRS as illegitimate attempts to avoid federal taxes. The lawsuit alleges that by advising investment in these plans CJA and FSL breached federal laws governing advice given to employee benefit plans.

The Future of Life Settlements

Lance Wallach

President, VEBA Plan

Lance Wallach is the National Society of Accountants Speaker of the Year and the President of VEBA Plan, a New York based accounting, insurance, financial, and estate planning consulting firm. Some of Mr. Wallach's national engagements have included National Association of Attorney... Full Profile

By Lance Wallach Many insurance professionals now think that the life settlement market is ending. Agents assisting their clients in the sale of their unneeded life insurance policies have no doubt been frustrated by the lack of bids in the current life... Read More

And what about the lawsuits that have started? The life settlement market saw double-digit annual growth for a decade until 2008. When the financial crisis hit, global markets and credit evaporated, and the life settlement markets came to a standstill. How did this happen to a market that was supposedly not correlated to other markets?

The life settlement market has long been touted as a non-corollary asset class. Even today many promoters looking to raise funds from investors still highlight this investment benefit. I have always doubted everything about the market and have urged people to stay away. How would you know if Tony Soprano is buying your mother’s life insurance policy? I am a member of the Sons of Italy. I was awarded membership even though I am Jewish. Why? Because I am a friend of the President of the local chapter.

Interest rates and stock market prices impact the portfolios of life insurance carriers. The solvency of a life insurance company directly impacts its ability to meet death claims. Why would life settlements be immune? If carriers like AIG teeter on the edge of financial ruin, then credit risk becomes a primary concern for life settlement investors. You may have heard that an ‘A’-rated carrier has never failed to pay a death claim. This is a great lie. The insurance company is usually no longer rated ‘A’ by the time they fail to pay.

I think that the life settlement market will not have any future source of funds within two years.

Life insurance companies have been attacking the market for years. Their vast experience in underwriting has already proven victorious as table changes in 2008 damaged the Net Asset Value of all life settlement funds. Their lobbying against life settlements has also been successful. Overly burdensome and poorly written life settlement regulation in various states has simultaneously increased the operating expenses for life settlement firms and decreased the opportunity for the consumer.

Life insurance companies are adjusting their COI rates higher and blaming life settlements for the change. They will sell insurance to preserve and protect wealth, yet the very products they sell are backed by investments mired in mountains of debt, equities with high P/E ratios, and issued in a currency that is deeply flawed. Even though many carriers survived the Great Depression, our financial markets are considerably more complex today than they were then and this may cause many carriers to soon find themselves with big problems in the future.

Lance Wallach, CLU, ChFC, the National Society of Accountants Speaker of the Year, also writes about retirement plans, 412(i) plans, and 419 plans. He speaks at more than ten conventions annually, writes for over fifty publications, and is quoted regularly in the press. He has authored numerous books for the AICPA, Bisk TotalTape, Wiley and others. Mr. Wallach does expert witness work and his side has never lost a case.

The information provided herein is not intended as legal, accounting, financial or any other type of advice for any specific individual or other entity. You should contact an appropriate professional for any such advice.