IRS Examinations Of Cannabis Businesses Expected To Rise In 2022 – Are You Ready For An I.R.C. § 280E IRS Tax Audit?

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While the sale of cannabis is legal in California as well as in a growing number of states, cannabis remains a Schedule 1 narcotic under Federal law, the Controlled Substances Act. As such businesses in the cannabis industry are not treated like ordinary businesses. Despite state laws allowing cannabis, it remains illegal on a federal level but cannabis businesses are obligated to pay federal income tax on income because I.R.C. §61(a) does not differentiate between income derived from legal sources and income derived from illegal sources.

Taxation Of Cannabis Businesses

The Sixteenth Amendment of the U.S. Constitution prohibits the Federal government from taxing “gross receipts”. In Edmondson vs. Commissioner, 42 T.C.M. (CCH) 1533 (T.C. 1981), the Tax Court decided that Jeffrey Edmonson, self-employed in the trade or business of selling amphetamines, cocaine, and cannabis, was permitted to deduct his business expenses resulting from his trade. Discomforted by this outcome, the following year Congress enacted I.R.C. §280E, disallowing all deductions and credits for amounts paid or incurred in the illegal trafficking in drugs listed in the Controlled Substances Act.

Under I.R.C. §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Cannabis, including medical cannabis, is a controlled substance. While I.R.C. §280E disallows cannabis-related businesses to deduct “ordinary and necessary” business expenses, it would be unconstitutional for the IRS to disallow businesses to deduct Cost Of Goods Sold when calculating gross income. This concept was first applied in the Tax Court case of Olive vs. Commissioner Of Internal Revenue, 139 T.C. 19 (2012).

I.R.C. Section 280E IRS Tax Audits

It is no surprise that cannabis businesses are proliferating as more States legalize cannabis and make available licenses to grow, manufacture, distribute and sell cannabis. The IRS recognizes this and it is making these cannabis businesses face Federal income tax audits. IRC §280E is at the forefront of all IRS cannabis tax audits and enforcement of §280E could result in unbearable tax liabilities.

Proving deductions to the IRS is a two-step process:

  • First, you must substantiate that you actually paid the expense you are claiming.
  • Second, you must prove that an expense is actually tax deductible.

Step One: Incurred And Paid The Expense.

For example, if you claim a $5,000 purchase expense from a cannabis distributor, offering a copy of a bill or an invoice from the distributor (if one is even provided) is not enough. It only proves that you owe the money, not that you actually made good on paying the bill. The IRS accepts canceled checks, bank statements and credit card statements as proof of payment. But when such bills are paid in cash as it typical in a cannabis business, you would not have any of these supporting documents but the IRS may accept the equivalent in electronic form.

Step Two: Deductibility Of The Expense.

Next you must prove that an expense is actually tax deductible. For a cannabis businesses this is challenging because of the I.R.C. §280E limitation; however a cannabis business can still deduct its Cost Of Goods Sold (“COGS”). Cost of goods sold are the direct costs attributable to the production of goods. For a cannabis reseller this includes the cost of cannabis itself and transportation used in acquiring cannabis. To the extent greater costs of doing business can be legitimately included in COGS that will that result in lower taxable income. You can be sure the IRS agents in audits will be looking closely at what is included in COGS.

Appealing An I.R.C. Section 280E IRS Tax Audit

Now if your cannabis IRS tax audit is not resolved, the results may be challenged. After the Revenue Agent has concluded the tax examination, the agent will issue a copy of the examination report explaining the agent’s proposed changes along with notice of your appeals rights. Pay attention to the type of letter that is included as it will dictate the appeals process available to you.

The “30-day letter”

The “30-day letter” gives you the right to challenge the proposed adjustment in the IRS Office Of Appeals. To do this, you need to file a Tax Protest within 30 days of the date of the notice. The Appeals Office is the only level of appeal within the IRS and is separate from and independent of the IRS office taking the action you disagree with. Conferences with Appeals Office personnel are held in an informal manner by correspondence, by telephone, or at a personal conference.

The “Notice Of Deficiency”

If the IRS does not adopt your position, it will send a notice proposing a tax adjustment (known as a statutory notice of deficiency). The statutory notice of deficiency gives you the right to challenge the proposed adjustment in the United States Tax Court before paying it. To do this, you need to file a petition within 90 days of the date of the notice (150 days if the notice is addressed to you outside the United States). If you filed your petition on time, the court will eventually schedule your case for trial at the designation place of trial you set forth in your petition. Prior to trial you should have the opportunity to seek a settlement with IRS Area Counsel and in certain cases, such settlement negotiations could be delegated to the IRS Office Of Appeals. If there is still disagreement and the case does go to trial, you will have the opportunity to present your case before a Tax Court judge. The judge after hearing your case and reviewing the record and any post-trial briefs will render a decision in the form of an Opinion. It could take as much as two years after trial before an Opinion issued. If the Opinion is not appealed to a Circuit Court Of Appeals, then the proposed deficiency under the Opinion is final and your account will be sent to IRS Collections.

IRS Area Counsel are experienced trial attorneys working for the IRS whose job is to litigate cases in the U.S. Tax Court and look out for the best interests of the Federal government. So to level the playing field, it would be prudent for a taxpayer to hire qualified tax counsel as soon as possible to seek a mutually acceptable resolution without the need for trial, and if that does not happen, to already have the legal expertise in place to vigorously defend you at trial.

What Should You Do?

While more States are legalizing cannabis, risks to the cannabis industry still exist. Considering the risks of cannabis you need to protect yourself and your investment. Level the playing field and gain the upper hand by engaging the cannabis tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (including Ontario and Palm Springs) and other California locations. We can come up with solutions and strategies to these risks and protect you and your business to maximize your net profits. And if you are involved in crypto currency, check out what a bitcoin tax attorney can do for you.

Taxpayers Invested In Syndicated Conservation Easements Have A Limited Opportunity To Settle With The IRS

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Taxpayers Invested In Syndicated Conservation Easements Have A Limited Opportunity To Settle With The IRS

Tax Court strikes down four more abusive syndicated conservation easement transactions prompting taxpayers to accept IRS settlement offers in syndicated conservation easement cases or face a higher tax bill.

A conservation easement imposes a restriction on real property, granted in perpetuity, on the use of real property.  The important role of conservation easements is to preserve land, natural habitats, open spaces, and historically important land areas. Conservation easements can include a restriction on the real property that preserves the facade of a building in a registered historic district.

The Internal Revenue Code includes tax incentives for taxpayers to contribute a a real property interest to qualified charitable organization exclusively for conservation purposes. This is referred to as a Qualified Conservation Contribution (QCC).  However, abusive syndicated conservation easement transactions have been of concern to the IRS for several years.

Abusive Syndicated Conservation Easements

Commissioner Chuck Rettig stated: “The IRS will continue to actively identify, audit and litigate these syndicated conservation easement deals as part of its vigorous and relentless effort to combat abusive transactions”.

Typical facts that the IRS has seen which the IRS believes to be support as an abusive syndicated conservation easement structure are as follows:

  1. Promoters syndicate ownership interests in real property through partnerships, using promotional materials to suggest that prospective investors may be entitled to a share of a conservation easement contribution deduction that equals or exceeds two and one-half times the investment amount.
  2. The promoters obtain an appraisal that greatly inflates the value of the conservation easement based on a fictional and unrealistic highest and best use of the property before it was encumbered with the easement.
  3. After the investors invest in the partnership, the partnership donates a conservation easement to a land trust. Investors in the partnership then claim a deduction based on an inflated value. The investors typically claim charitable contribution deductions that grossly multiply their actual investment in the transaction and defy common sense.

The four most recent U.S. Tax Court decisions disallowed conservation easement deductions totaling nearly $21 million.

IRS Syndicated Conservation Easements Settlement Program

On June 25, 2020, the Internal Revenue Service Office of Chief Counsel announced a time-limited settlement offer to certain taxpayers with pending docketed Tax Court cases involving syndicated conservation easement transactions.

The settlement offer would bring finality to these taxpayers with respect to the syndicated conservation easement issues in their docketed U.S. Tax Court cases. The settlement requires a concession of the income tax benefits claimed by the taxpayer and imposes penalties.

Among the key terms of the settlement offer:

  • The deduction for the contributed easement is disallowed in full.
  • All partners must agree to settle, and the partnership must pay the full amount of tax, penalties and interest before settlement.
  • “Investor” partners can deduct their cost of acquiring their partnership interests and pay a reduced penalty of 10 to 20% depending on the ratio of the deduction claimed to partnership investment.
  • Partners who provided services in connection with ANY Syndicated Conservation Easement transaction must pay the maximum penalty asserted by IRS (typically 40%) with NO deduction for costs.

IRS’ Coordinated Enforcement Strategy

The IRS has developed a comprehensive, coordinated enforcement strategy to address abusive syndicated conservation easement transactions and has also been working closely with the U.S. Department of Justice to shut down the promotion of them. The IRS has stated that it will continue to disallow the claimed tax benefits, asserting civil penalties to the fullest extent, considering criminal sanctions in appropriate cases, and continuing to pursue litigation of the cases that are not otherwise resolved administratively. Furthermore, this syndicated conservation easement resolution should not be deemed to have any impact on the potential criminal exposure, investigation and/or prosecution of any individual or entity that participated in or assisted or advised others in participating in a syndicated conservation easement transaction in any manner whatsoever.

Some promoters may tell their clients that their transaction is “better” than or “different” from the transactions previously rejected by the Tax Court and that it may be better for the client to litigate than accept this resolution. Therefore, when deciding whether to accept the offer, any such taxpayer should consult with independent tax counsel, meaning a qualified advisor who was not involved in promoting the transaction or handpicked by a promoter to defend it.

What Should You Do?

It should be certain that the IRS is not taking these transactions lightly and that the IRS is ready and willing to litigate any non-settled case to the fullest extent possible thus making taxpayers incur more legal fees and deal with the uncertainty of the outcome of a Tax Court trial. We encourage taxpayers who are in this situation to seek independent tax counsel.  Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), San Francisco Bay Area (including San Jose and Walnut Creek) and elsewhere in California help you.  Additionally, if you are involved in cannabis, check out what a cannabis tax attorney can do for you. And if you are involved in crypto currency, check out what a bitcoin tax attorney can do for you.

Why Hire A Tax Attorney If You Are In U.S. Tax Court For IRC Sec. 280E?

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Why Hire A Tax Attorney If You Are In U.S. Tax Court For IRC Sec. 280E?

IRS Tax Audits in the cannabis industry can be quite tricky. We previously wrote a blog on appealing these audits.

If you are involved in cannabis and dealing with an IRC Sec. 280E or other tax liability issue with the IRS and you are unable to reach a satisfactory resolution working with the IRS directly, then you may need to seek relief in the United States Tax Court. The U.S. Tax Court has jurisdiction over matters involving individual and business tax liability under the Internal Revenue Code, and, while individual taxpayers have the option to appear before the court pro se, most Tax Court litigants will benefit greatly from hiring a Board Certified Tax Attorney to represent them.

What Is The United States Tax Court?

The United States Tax Court is a Federal trial court. Because it is a court of record, a record is made of all its proceedings. It is an independent judicial forum. It is not controlled by or connected with the IRS. Congress pursuant to its authority under Article 3 of the U.S. Constitution created the Tax Court as an independent judicial authority for taxpayers disputing certain IRS determinations. The Tax Court’s authority to resolve these disputes is called its jurisdiction. Generally, a taxpayer may file a petition in the Tax Court in response to certain IRS determinations. A taxpayer who begins such a proceeding is known as the “petitioner”, and the Commissioner of Internal Revenue is the “respondent”.

Although the Tax Court is headquartered in Washington, D.C., its judges preside at trials in 60 U.S. cities, and its Special Trial Judges preside at trials in those cities and 15 additional cities.

How Do You Start A Case In The U.S. Tax Court?

If a taxpayer and the IRS do not agree to the findings of a tax examination, the IRS will send a notice proposing a tax adjustment (known as a “statutory notice of deficiency”). The statutory notice of deficiency gives you as the taxpayer the right to challenge the proposed adjustment in the U.S. Tax Court before paying it. To do this, you need to file a petition within 90 days of the date of the notice (150 days if the notice is addressed to you outside the United States). If you filed your petition on time, the Tax Court will eventually schedule your case for trial at the designation place of trial you set forth in your petition. Prior to trial you should have the opportunity to seek a settlement with IRS Area Counsel and in certain cases, such settlement negotiations could be delegated to the IRS Office Of Appeals.

If there is still disagreement and the case does go to trial, you will have the opportunity to present your case before a Tax Court judge. The judge after hearing your case and reviewing the record and any post-trial briefs will render a decision in the form of an Opinion. It could take as much as two years after trial before an Opinion issued. If the Opinion is not appealed to a Circuit Court Of Appeals, then the proposed deficiency under the Opinion is final and your account will be sent to IRS Collections.

IRS Area Counsel are experienced trial attorneys working for the IRS whose job is to litigate cases in the U.S. Tax Court and look out for the best interests of the Federal government. Therefore, to level the playing field, it would be prudent for a taxpayer to hire qualified tax counsel as soon as possible to seek a mutually acceptable resolution without the need for trial, and if that does not happen, to already have the legal expertise in place to vigorously defend you at trial.

Reasons To Hire A Board Certified Tax Attorney

For a professional to be good at what he/she does, training and experience are necessary. The more real work experience you get, the more skilled you will be at your job. Most people do not have the adequate legal and tax knowledge to attend hearings or go to U.S. Tax Court without a Board Certified Tax Attorney present. Here are some other benefits of working with one.

Peace of mind

Although you can represent yourself in U.S. Tax Court, you may end up regretting it, especially if the outcome is not good. Having a Board Certified Tax Attorney with you will give you peace of mind irrespective of the case you are faced with. You can be confident that your case is being handled by someone who understands your legal and tax problems better and they will handle your case with utmost professionalism. Additionally, resolving complex tax issues, especially those involving IRC Sec. 280E, requires much more than simply finding the relevant provisions of the Internal Revenue Code. A Board Certified Tax Attorney will be able to conduct the necessary legal research to build a convincing (and legally-sound) argument for the best possible result.

Avoid incriminating yourself

Seasoned tax attorneys will spend time coaching their clients on how to behave and speak while in the U.S. Tax Court. This is important because the behavior and candor of a taxpayer in the courtroom can have tremendous effects on the case. A Board Certified Tax Attorney will go out of his/her way to ensure that you do not incriminate yourself whenever you speak in the Tax Court.

Reduce risks

Getting representation from a Board Certified Tax Attorney will boost the chances of keep your case on track to reaching the best possible result. A Board Certified Tax Attorney has experience handling tax cases in the U.S. Tax Court and they will handle any emerging issues before they become major problems for your case. When things get tough, you will be sure that your tax lawyer has the expertise and specialized training to handle the problem.

Conversant with all court procedures and rules

After filing a petition in the U.S. Tax Court, there are various time, form, and other procedural requirements that apply. An attorney who regularly practices before the Tax Court will be intimately familiar with these issues and will be able to ensure that procedural miscues do not jeopardize your case. Adhering to these procedures is crucial to the outcome of your case.

During your U.S. Tax Court case, the IRS through its counsel may file various motions to try to resolve the case with a finding of liability prior to trial. A Board Certified Tax Attorney will be able to interpret the substantive and strategic intent behind these motions and file appropriate responses with the Tax Court.

In many cases, issues that require resolution in the U.S. Tax Court will have ancillary legal implications as well. A Board Certified Tax Attorney will be able to identify these issues and address them before they lead to unnecessary costs and exposure.

Saving you money

Given the costly legal fees that people pay, it is difficult to believe that a Board Certified Tax Attorney can help you save cash. Most cases filed with the U.S. Tax Court settle. Should you settle your case? If so, when? A Board Certified Tax Attorney will be able to rely on the insights gained from numerous prior U.S. Tax Court cases to help you make informed decisions regarding settling or taking your case to trial.

What Should You Do?

When faced with litigation in the U.S. Tax Court, you need a tax lawyer by your side. Level the playing field and gain the upper hand by engaging the cannabis tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (including Ontario and Palm Springs) and other California locations. We can come up with solutions and strategies to these risks and protect you and your business to maximize your net profits. And if you are involved in crypto currency, check out what a bitcoin tax attorney can do for you.

Appealing An I.R.C. § 280E IRS Tax Audit

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While the sale of cannabis is legal in California as well as in a growing number of states, cannabis remains a Schedule 1 narcotic under Federal law, the Controlled Substances Act. As such businesses in the cannabis industry are not treated like ordinary businesses. Despite state laws allowing cannabis, it remains illegal on a federal level but cannabis businesses are obligated to pay federal income tax on income because I.R.C. §61(a) does not differentiate between income derived from legal sources and income derived from illegal sources.

Taxation Of Cannabis Businesses

The Sixteenth Amendment of the U.S. Constitution prohibits the Federal government from taxing “gross receipts”. In Edmondson vs. Commissioner, 42 T.C.M. (CCH) 1533 (T.C. 1981), the Tax Court decided that Jeffrey Edmonson, self-employed in the trade or business of selling amphetamines, cocaine, and cannabis, was permitted to deduct his business expenses resulting from his trade. Discomforted by this outcome, the following year Congress enacted I.R.C. §280E, disallowing all deductions and credits for amounts paid or incurred in the illegal trafficking in drugs listed in the Controlled Substances Act.

Under I.R.C. §280E, taxpayers cannot deduct any amount for a trade or business where the trade or business consists of trafficking in controlled substances…which is prohibited by Federal law. Cannabis, including medical cannabis, is a controlled substance. While I.R.C. §280E disallows cannabis-related businesses to deduct “ordinary and necessary” business expenses, it would be unconstitutional for the IRS to disallow businesses to deduct Cost Of Goods Sold when calculating gross income. This concept was first applied in the Tax Court case of Olive vs. Commissioner Of Internal Revenue, 139 T.C. 19 (2012).

I.R.C. Section 280E IRS Tax Audits

It is no surprise that cannabis businesses are proliferating as more States legalize cannabis and make available licenses to grow, manufacture, distribute and sell cannabis. The IRS recognizes this and it is making these cannabis businesses face Federal income tax audits. IRC §280E is at the forefront of all IRS cannabis tax audits and enforcement of §280E could result in unbearable tax liabilities.

Proving deductions to the IRS is a two-step process:


• First, you must substantiate that you actually paid the expense you are claiming.

• Second, you must prove that an expense is actually tax deductible.

Step One: Incurred And Paid The Expense.

For example, if you claim a $5,000 purchase expense from a cannabis distributor, offering a copy of a bill or an invoice from the distributor (if one is even provided) is not enough. It only proves that you owe the money, not that you actually made good on paying the bill. The IRS accepts canceled checks, bank statements and credit card statements as proof of payment. But when such bills are paid in cash as it typical in a cannabis business, you would not have any of these supporting documents but the IRS may accept the equivalent in electronic form.

Step Two: Deductibility Of The Expense.

Next you must prove that an expense is actually tax deductible. For a cannabis businesses this is challenging because of the I.R.C. §280E limitation; however a cannabis business can still deduct its Cost Of Goods Sold (“COGS”). Cost of goods sold are the direct costs attributable to the production of goods. For a cannabis reseller this includes the cost of cannabis itself and transportation used in acquiring cannabis. To the extent greater costs of doing business can be legitimately included in COGS that will that result in lower taxable income. You can be sure the IRS agents in audits will be looking closely at what is included in COGS.

Appealing An I.R.C. Section 280E IRS Tax Audit

Now if your cannabis IRS tax audit is not resolved, the results may be challenged. After the Revenue Agent has concluded the tax examination, the agent will issue a copy of the examination report explaining the agent’s proposed changes along with notice of your appeals rights. Pay attention to the type of letter that is included as it will dictate the appeals process available to you.

The “30-day letter”

The “30-day letter” gives you the right to challenge the proposed adjustment in the IRS Office Of Appeals. To do this, you need to file a Tax Protest within 30 days of the date of the notice. The Appeals Office is the only level of appeal within the IRS and is separate from and independent of the IRS office taking the action you disagree with. Conferences with Appeals Office personnel are held in an informal manner by correspondence, by telephone, or at a personal conference.

The “Notice Of Deficiency”

If the IRS does not adopt your position, it will send a notice proposing a tax adjustment (known as a statutory notice of deficiency). The statutory notice of deficiency gives you the right to challenge the proposed adjustment in the United States Tax Court before paying it. To do this, you need to file a petition within 90 days of the date of the notice (150 days if the notice is addressed to you outside the United States). If you filed your petition on time, the court will eventually schedule your case for trial at the designation place of trial you set forth in your petition. Prior to trial you should have the opportunity to seek a settlement with IRS Area Counsel and in certain cases, such settlement negotiations could be delegated to the IRS Office Of Appeals. If there is still disagreement and the case does go to trial, you will have the opportunity to present your case before a Tax Court judge. The judge after hearing your case and reviewing the record and any post-trial briefs will render a decision in the form of an Opinion. It could take as much as two years after trial before an Opinion issued. If the Opinion is not appealed to a Circuit Court Of Appeals, then the proposed deficiency under the Opinion is final and your account will be sent to IRS Collections.

IRS Area Counsel are experienced trial attorneys working for the IRS whose job is to litigate cases in the U.S. Tax Court and look out for the best interests of the Federal government. So to level the playing field, it would be prudent for a taxpayer to hire qualified tax counsel as soon as possible to seek a mutually acceptable resolution without the need for trial, and if that does not happen, to already have the legal expertise in place to vigorously defend you at trial.

What Should You Do?

While more States are legalizing cannabis, risks to the cannabis industry still exist. Considering the risks of cannabis you need to protect yourself and your investment. Level the playing field and gain the upper hand by engaging the cannabis tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the Inland Empire (including Ontario and Palm Springs) and other California locations. We can come up with solutions and strategies to these risks and protect you and your business to maximize your net profits. And if you are involved in crypto currency, check out what a bitcoin tax attorney can do for you.

Your Right to Challenge the IRS’ Position and Be Heard

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Taxpayers have the right to challenge the IRS’s position and be heard. This is one of ten of rights listed in the Taxpayer Bill of Rights, which clearly outlines the fundamental rights of every taxpayer.

The IRS Says That Taxpayers Have The Right To:

  • Raise objections.
  • Provide additional documentation in response to formal or proposed IRS actions.
  • Expect the IRS to consider their objections timely.
  • Have the IRS consider any supporting documentation promptly.
  • Receive a response if the IRS does not agree with their position.

While the IRS contemplates these rights are in place to assure a fairly administered tax system, in reality that is hardly the case as many people coming to me have expressed their unresolved tax problems and how the IRS has not helped them or is treating them unfairly not giving proper credence to their situation.

When Is The Best Time to Bring In A Board Certified Tax Attorney To Resolve Your Tax Problems?

First and foremost, you need a tax lawyer if you have a dispute with the IRS or any State Tax Agency. Most tax disputes arise in the form of an audit of one or several past tax returns. If the IRS notifies you of an audit, you should hire a tax attorney immediately. Your tax lawyer can communicate with the IRS on your behalf, be present during your audit and help negotiate a settlement, if necessary. Having experienced legal counsel helps ensure that you don’t overpay as a result of your audit.

In some instances, taxpayers ignore letters and warnings from the IRS because they’re scared or don’t know how to respond. In those cases, the IRS may have no choice but to threaten you with criminal charges for tax evasion. If you learn that you’re the target of an IRS criminal investigation, you’ll want to hire a tax lawyer—and do it quickly.

Your tax lawyer can reassure the IRS that you’re taking its investigation seriously, work with the IRS in an effort to help you avoid criminal charges and represent you in court if you are charged with a tax crime.

Second, a tax lawyer’s help can also be invaluable if you’re facing a complicated legal tax situation. This might include instances where:

  • You’re starting a new company and are trying to decide between the various ways to structure your company
  • You’re the executor of an estate and need advice regarding whether and how much is owed in estate taxes
  • You want to challenge the IRS on a tax decision or appeal an audit
  • You receive a Collections Notice telling you that tax is due and/or threatening collection action
  • You want to sue the IRS
  • You think or know that you’ve committed tax fraud

Most people have tax problems because they did not plan how to do business, how to record transactions or how to account and substantiate their expenses or they have taken inappropriate or unjustified risky positions on their tax returns. Being proactive by engaging a tax lawyer to avoid having these problems in the first place would be wise to pursue. Additionally hiring tax counsel early on should assure that you do not blow any appeals or communicate something to the IRS that you later wished you never did.

Questions to Ask When Interviewing Tax Lawyer

At your initial meeting with a lawyer, you’ll want to share the specifics of your situation and then ask the lawyer about his or her experience handling similar matters. Know that lawyers are bound by strict confidentiality rules. Even if you end up hiring a different attorney, the lawyers you meet with cannot share the information they learned with the IRS or anyone else.

Some questions to consider asking your lawyer during your initial meeting:

  • How long have you been practicing law?
  • Do you just practice tax law, or do you also work in other areas of practice?
  • What are your credentials as a tax specialist (such as Board Certified Tax Law Designation, LL.M.(Tax) Degree or C.P.A. License)?
  • Have you previously handled tax situations similar to mine?
  • What’s your assessment of my situation? What works for me and against me?
  • If I hired you, what course of action would you recommend?
  • Do you charge a flat fee or hourly rate, or do you use some other billing structure?
  • Can you estimate my total legal fees?

What Should You Do?

If you have outstanding tax problems or liabilities with the IRS or any State Tax Agency, protect yourself and preserve your right to challenge the tax agency’s position and be heard. Tax problems are usually a serious matter and must be handled appropriately so it’s important to that you’ve hired the best lawyer for your particular situation. The tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), San Diego County (Carlsbad) and elsewhere in California are highly skilled in handling tax matters and can effectively represent you at all levels with the IRS and State Tax Agencies including criminal tax investigations and attempted prosecutions, undisclosed foreign bank accounts and other foreign assets, unreported foreign income and unreported crypto-currency income.

California office of tax appeals

California Starts Implementation Of New Tax Appeals Programs By Establishing The New “Office Of Tax Appeals”

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On June 15, 2017, the California Legislature passed Assembly Bill 102, which transfers nearly all tax administration and appeal functions from the BOE to two new tax departments: the Department Of Tax And Fee Administration (“DTFA”) and the Office Of Tax Appeals (“OTA”).

Starting January 1, 2018, California State tax appeals will be heard by the Office Of Tax Appeals (“OTA”). Created by the Taxpayer Transparency And Fairness Act Of 2017, the OTA will replace the appellate process once handled by the State Board of Equalization (“BOE”). The BOE handles the enforcement of various types of state taxes – most notably Property Taxes and California Sales & Use Taxes. The OTA will hear and determine all appeals that involve corporate income tax, corporate franchise tax, personal income tax, sales tax, and use tax. If a taxpayer disagrees with the audit findings involving any of these taxes which are reflected on a Notice Of Action or a Notice Of Determination, the taxpayer may file an appeal with the new OTA by the “appeal date” listed on said notice. As of October 1, 2017, any such notice that gets issued will include an insert containing information about appeal rights and the OTA’s contact information. As of October 1, 2017 all appeals need to be filed with OTA, and beginning January 1, 2018, OTA’s three-member panels will hear and determine all appeals. The BOE will cease hearing these appeals after December 31, 2017.

Old System Was “Politically Connected”

The BOE was constitutionally created in 1879 with a mandate that property taxes would be fairly assessed and collected across California. Since that time, the BOE’s statutory authority has been expanded to administer the state’s sales and use tax and numerous other state taxes and fees. In addition, the Board, comprising four members elected from districts and the statewide-elected State Controller, also hears and decides tax disputes. Until the change in the law, California was the only state in the United States where administrative tax disputes were heard by elected representatives. Not only was it allowed but also it was encouraged that taxpayers (or when represented, their attorneys) contact each government official sitting on the five-member BOE panel in ex-parte communications to promote the taxpayer’s position in advance of the hearing.

Designed To Promoted Fairness

On June 15, 2017, the California Legislature passed Assembly Bill 102, which transfers nearly all tax administration and appeal functions from the BOE to two new tax departments: the DTFA and the OTA. The BOE still retains its constitutional duties which going back to its historical roots is the oversight of property taxes and assessment of state-assessed properties. Both the DTFA and OTA would be under the control of respective directors, each appointed by the governor and subject to confirmation by the California Senate.

The DTFA will be based in Sacramento and will administer state and local sales and use taxes, fuel and tobacco excise taxes, and a variety of other taxes and fees. The new law has no impact on State income tax audits which will still be conducted by the Franchise Tax Board (“FTB”) or employment tax audits which will still be conducted by the Employment Development Department (“EDD”). OTA would hear sales and use tax appeals from the DTFA and personal and corporate income tax appeals from the FTB.

The OTA was designed by the State Legislature to operate independent of any other State tax office and provides a venue where disagreements concerning the application of California State tax law can be resolved on a fair and impartial basis for both the taxpayer and the government. The OTA is supposed to take a fresh look at a taxpayer’s case and consider the strengths and weaknesses of the issues in the taxpayer’s case. The advantage of appealing a California State tax audit to this level provides the taxpayer with the opportunity to reach a mutually acceptable settlement without expensive and time-consuming court trials. This approach follows what the IRS and over half the State Tax Agencies have been doing for many years.

Within the OTA, there will be tax appeals panels consisting of three administrative law judges (ALJ’s). These ALJ’s must have state tax experience and each be a member of the California bar. OTA headquarters will be in Sacramento, with hearing offices in Sacramento, Fresno, and Los Angeles. The ALJ’s must issue written opinions for each appeal.

Although the OTA is not a judicial body or a tax court, it is now a step in California Tax Procedure for taxpayers to challenge tax audit decisions. Furthermore, decisions of the OTA can be appealed to California Superior Court for a “de novo review”. “De novo” is a form of appeal in which the court holds a trial as if no prior trial had been held.

Looking To Appeal A California State Tax Audit Report To The Office Of Appeals?

When taxpayers disagree with the findings of their California State tax audits, they may usually appeal to the OTA. The auditor agent will issue a Notice Of Determination to a taxpayer, which essentially provides the taxpayer with the opportunity to file a Tax Protest requesting his or her case be heard by the OTA. Hiring an experienced tax attorney should make a difference in getting the best possible result. The attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. with locations in Orange County, San Francisco and elsewhere in California know how best to communicate directly to tax appellate bodies including the OTA and build a persuasive case on your behalf because we know how to present your case with legal argument and tax authority.

Looking To Appeal An Audit Report To The IRS Office Of Appeals? Let us help you

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When taxpayers disagree with the findings of their IRS audits, they may usually appeal to the IRS Office Of Appeals. The IRS agent will issue a “30-day Letter” to a taxpayer, which essentially provides the taxpayer with up to 30 days to file a Tax Protest requesting his or her case be heard by an Appeals Officer.

The Office Of Appeals is independent of any other IRS office and provides a venue where disagreements concerning the application of tax law can be resolved on a fair and impartial basis for both the taxpayer and the government. The Appeals Officer will take a fresh look at the case and consider the strengths and weaknesses of the issues in your case. The advantage of appealing your IRS audit to this level provides us with the opportunity to reach a mutually acceptable settlement without expensive and time-consuming court trials.

Using a tax attorney to help with an appeal can significantly increase your chances of getting a better outcome. Many times individuals don’t realize that appeals can go both ways, you may actually end up being owed money after the appeal. A tax attorney can analyze your situation and find the best approach to take in order to get the best outcome. The IRS actually prefers working with professional tax representatives because it makes their job easier and helps the process move along more efficiently, which can actually result in a more favorable decision.

We will communicate directly with the Appeals Officer and build a persuasive case on your behalf because we know how to present your case with legal argument and tax authority. Of course, if we cannot reach agreement with the Appeals Officer, then we have the opportunity to appeal the case to the U.S. Tax Court.

Description: The Law Offices Of Jeffrey B. Kahn, P.C. has helped many people minimize or avoid adjustments from IRS appeals. Working with a tax attorney is the best bet for minimizing adjustments that would create liability to the IRS

Appealing the Results of a Tax Audit

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Every taxpayer who is being examined in a tax audit has the right to dispute the auditor’s final determination.  You do not have to accept the auditor’s findings if you believe any or all of the adjustments are wrong and/or penalties should not be imposed.  Your best bet is to contact a California tax attorney who can effectively start the appeals process. Many people who have lost an IRS audit have seen the amount they owe in taxes reduced or even eliminated after hiring a tax lawyer in San Diego or elsewhere to help with them challenge the auditor’s decision.

Once the auditor issues the final determination, you have up to 30 days to file an appeal with the IRS. By working with a tax attorney, an effective and complete written protest letter is prepared and filed with the IRS Office Of Appeals challenging the determination. The IRS Office Of Appeals is a division of IRS that is separate from the Examination Division that performed your initial audit. This is done to ensure a level of transparency and fairness during the appeals process.  Within the next few months the IRS Office Of Appeals will notice you and your representative that the appeal as been assigned to an Appeals Officer.

The appeals process can be complex especially when the issues involve the correct interpretation and application of sometimes archaic tax provisions.  Therefore, you want to make sure you are prepared for your appeals hearing in order to secure the most favorable result. This includes collecting all of your relevant tax records and information ahead of time. You’ll also want to try and get as much information about the original tax audit as possible. You can file a Freedom of Information Act request on the auditor’s records — this will let you know the information they based their original decision on.

Even if your appeal has been denied or you disagree with the decision of the Appeals Officer, you are not out of options. The Law Offices Of Jeffrey B. Kahn, P.C. can help you to file a Petition in Tax Court to get the amount you owe reduced or eliminated. Many people who have lost their appeal have had the amount of their tax debt lowered by disputing the proposed adjustments in Tax Court.

The Law Offices Of Jeffrey B. Kahn, P.C. has helped many people appeal their tax audit. Working with a tax attorney is the best bet for reducing or eliminating the amount you owe.

Small Business Owners Can “Fast Track” Audit Process

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The Law Offices Of Jeffrey B. Kahn, P.C. has some news of particular interest to small business owners. The Internal Revenue Service has given small businesses a chance to expedite the audit process with its new Fast Track Settlement program. Under the terms of the program announced by the IRS in November 2013, small business owners can work with their IRS audit attorney to avoid the formal litigation or administrative appeal process. In most cases, the FTS program means that audit issues are taken care of within 60 days.

The Fast Track Settlement program is modeled on a program that has previously existed for medium-sized and large-sized businesses with more than $10 million in annual income. A pilot version of the program started in 2006 and was expanded in 2008 and the IRS is now extending it to all small business owners.

It’s important to keep in mind that the Fast Track Settlement program doesn’t guarantee a positive resolution to your dispute which is why you’ll still want to hire IRS tax attorneys who understand the regulations to fight on your behalf. But what this program offers is to speed up the entire process, saving small businesses from potentially lengthy and costly litigation.

Although the Fast Track Settlement is presided over by an IRS appeals officer who is supposed to be acting as a “neutral party”, that Appeals Officer will not be able to provide you with any guidance or advice.  Because of this, it’s a good idea to work with an experienced San Diego tax lawyer with the Law Offices Of Jeffrey B. Kahn, P.C. to represent you during this phase of the process.