Sam Brotman, JD, LLM, MBA November 20, 2020 25 min read

How to Prepare for a California Sales Tax Audit

Preparing and organizing materials for a California sales tax audit is by and large a unique process based on the individual facts and circumstances of a particular matter. Document productions to CDTFA auditors should be in support of whatever the narrative the company is going to present in its defense and, by no means, should you haphazardly produce documents to the auditor. Every action taken in a sales tax audit should be designed to move you as quickly through the audit process as possible with the least amount of liability.

Common Problems in Sales Tax Audit Preparation

Our firm has done a lot of sales tax audits and we can speak very generally about some of the problems that we see most often with our clients or that we have encountered through the years.

Mismatches of Data Need to Get Addressed

When you file a sales tax return, it gets reported to the CDTFA. In the evaluation process to determine whether they are going to audit you, the CDTFA is looking not only at your taxable sales and your total sales, they are looking at your federal income tax returns and they are looking at the information that was reported on your 1099-Ks and any other publicly available information that they can find. 

The biggest problem that people have right off the bat is sales tax returns and federal income tax returns not matching. You are reporting a higher or lower amount of the sales than you are on your federal income taxes.

There may be a natural explanation for it. You may have bookkeeping adjustments, you may have labor built into gross receipts, or you may have sales that were not in California or you may have exempt sales. There could be many reasons, but the problem that we see with clients is the clients fail to match their data and or they go in the audit without a proper explanation for why their data does not match.

The issue with this is that is suggests underreporting of sales tax liabilities, even if such underreporting does not occur. This, by the way, is how the majority of people who are under-reporting sales tax get caught.

Lining up all your primary sources of data (sales tax returns, federal income tax returns, internal accounting, sales summaries from POS, merchant account statements, 1099-Ks, etc…) is critically important so that you can see where the gaps are in information or what needs to be explained. Thinking that the auditor is going to be able to conduct the same analysis and come to the same conclusion about a discrepancy in your data is a fallacy. So, at the outset of the audit, get organized and be prepared to put your ducks in a row.

 

Invoicing Problems Need to Be Dealt With Prior to the Audit

Most invoicing systems were not built to sustain scrutiny from a California sales tax auditor and the second most common error that we see in sales tax audit preparation has to do with invoicing. We see more mistakes on invoicing and it is so hard to build a narrative when you do not have invoices that support it.

To be fair, most of the “mistakes” that we see in the context of audit preparation are benign. Things like not separating shipping charges properly, people not accounting for time and material costs, things being billed individually, or a failure to adjust sales tax rates for the proper district are little and seemingly harmless mistakes in the context of your business operations. However, from a sales tax perspective, it is these little paper cuts that can add up and can lead to serious liability.  

Your invoicing should be screened for issues prior to meeting with the auditor. While we are not recommending that you doctor invoices, we do suggest you perhaps provide some additional context when invoicing mistakes arise. By doing so, you are going to be able to take something that could otherwise turn into a big issue and neutralize it before it even reaches the auditor.

Poor Record-Keeping and How to Overcome it in Sales Tax Audits

This is a killer. Poor record-keeping and the inability to produce accurate primary source data is what dooms most businesses to relying on statistical sampling to complete an audit. Also, the task of refuting that sampling is made harder by a lack of historical books and records or accurate internal accounting.

You must be able to produce supporting documents for your return and potential audit. Here is a listing of some common documents and statements the CDTFA requires you to retain:

  • Resale certificate
  • Purchase orders
  • Bills of lading for interstate commerce
  • Delivery receipts
  • Freight invoices
  • Correspondence

For resellers, whenever you sell an item to be resold by someone else, obtain the appropriate documentation from the purchaser such as a resale certificate. Retain any old certificates as well; maintain and update your records periodically.

Required records:

  • Sales invoices
  • Cash register tapes
  • Sales journals
  • Purchase invoices
  • Exemption certificates
  • Working papers used in preparing your tax return

Record-keeping is one of the first things that we address with a client in an audit setting. We use a phrase called the “integrity of data,” which means that the more complete and fuller the data we provide the government is, the less likely the conclusions drawn in that data are likely to get challenged. You want to first identify any deficiencies in your records and then work to build supporting documentation around them. 

Eliminate Confusion Surrounding What the Law is:

There is a fair amount of confusion surrounding sales and use taxes. Even among tax professionals, this is a very complicated and highly specialized area of the law. What we see among some of our clients who have tried to start the audit process before hiring a California sales tax attorney to resolve their issues is that there is a fundamental misunderstanding between what they believe the law is or the what right way to do things is and the way that California interprets the law.

People operate under the false assumption that because they pay all their sales taxes in the manner that they think is correct they are not going to have any problems with the auditor. They take the attitude that because they “check the box” on doing what they are supposed to be doing (filing sales tax returns and paying) that they can just show the auditor some documents and everything will be ok.

However, do not forget that there is a reason that California has chosen to audit you and that your audit was no accident. Someone actively selected you for audit based on something that they saw. And, unless you have had an experience person review your sales and use tax compliance recently (and even then), you should always go into a sales tax audit thinking that you have a problem because you will have a problem.

Your problem is that you will have an auditor who is going to look over your books and potentially make a correction that might not be in your favor. Imagine you had a police officer following your car around while you are driving. Do you know chapter and verse of the vehicle code? Are you sure you are not doing anything wrong?

The long and the short of this is that you can prepare for the audit by knowing the law and knowing how to defend yourself if the auditor starts to challenge you. The auditor is not a California sales tax attorney, so you can use the fact that they have no legal training to your advantage in the audit.

The Sales Tax Audit Meeting

If the preparation gets handled correctly and issues are as refined out as possible, the first meeting with the auditor should go pretty smoothly. You are going to want to make the materials produced to the auditor as clean and as easy to work with as possible, even if it requires a bit of extra effort on your part. Auditors prefer electronic data because it is easy to work with and manipulate into their audit reports. We recommend not handing over everything (keep within the scope of the request, but if it is possible to provide electronic data, you want to do so in most circumstances.

Is it a good idea to meet with your sales tax auditor? 

Yes, 100 percent. Go meet your sales tax auditors, spend as much time as possible with them and drive them completely crazy. In all seriousness, the way that we have had the most success in the firm is by face-to-face contact. The more time you spend with these auditors as individuals, the more you get to know them, the more they will like you and the more latitude they will give you.

People naturally do business with people. Once you get to know, like, and trust somebody, then you start to develop a relationship with them. One of the big reasons we are successful is because we deal with these cases over and over and over and over and over again. 

We deal with the same people repeatedly. I might not know every auditor in the San Diego office of the CDTFA but I know a ton of them. It is really important and we have developed that relationship because of face-to-face contact and because an auditor or manager who I am having a disagreement with is not going to take an unreasonable position. 

They know they have to see me again and again and again and again and again. It is not like we are going to take a hard line on this case and hope this person never shows up again because there is a level of contact and a level of familiarity.

If you decide to represent yourself in the CDTFA audit — which I do not recommend — but if you do, you want to have as much contact and as much touch point with your auditor as possible. You are not going to be able to influence them or buy them dinner, or bribe them under that table, but just having that familiarity, developing trust and developing rapport is a very important strategic tactic.

I would absolutely recommend that you go and meet with your sales tax auditor. I would not recommend that you bring them into your business, though. I recommend that you actually go to see the TFA. The meetings will be a lot shorter. You will get the time to interact with them in the conference room, you can walk them through your documents, and you just give them a much better presentation by doing that.

The Alternative to Meeting with the Auditor - CDTFA Managed Audits

A managed audit is when you sit down with the auditor and agree to basically perform a self-audit. A managed audit formulates a plan that is a contract and it is found under CDTFA Form 526. 

A managed audit can be a good idea in certain situations because what you are doing is essentially filling out the auditor's work papers for them. You submit the work papers to the auditor along with some documentation for them to verify and if everything turns out okay, then the auditor will bless the audit.

In doing a managed audit, you have the potential to cut your interest rate in half. That can be pretty good savings depending on how much your liability is. However, the savings in terms of the interest can be outweighed by the length of time and the resources it takes to complete the audit. 

Managed audits take a lot of work and if a client lacks the internal resources to do the audit for the auditor, it can be a huge waste of time, cost and energy.

The managed audit decisions should only be made with a tax representative in terms of discussing the strategy for the audit. Agreeing to a managed audit is a significant burden and can be a huge amount of work, so the decision should not be made lightly.

If you do the managed audit properly and you fill it out and turn it in and it reduces the amount of time that the auditor takes to look at the audit, you can set yourself up for success in certain situations.

How Long Will My California Sales Tax Audit Take?

How long does it take to complete the review of all of the documentation and tests? Sales tax audits take a lot of time; at least six months. Sometimes, they can stretch out to nine months. There are usually multiple rounds of back-and-forth particularly with statistical sampling, when things get complicated. That is generally the way that things will flow during the course of the audit. 

Again, the most important time in the audit is the beginning, because you are setting the tone for the audit. You are creating a plan and then it is just about executing it.

If you do that, the audit process hopefully should work in your favor. Again, my advice in a sales tax audit is to always retain an expert. You need to have somebody in your corner who is going to go through these issues with you, help you develop your plan, negotiate with the auditor and make sure the statistical sampling is fair. That is really, really critical for many reasons.

What you do not want is when the audit starts to get off-track, because that is where a lot of the problems get kicked up. The clean-up for that is much more expensive, much more time-consuming, and much more of a headache than if you just did it right the first place. 

Challenging the Tax Auditor’s Findings - After the Sales Tax Audit

Once the auditor has finished their investigations, there will be an exit Exit Conference where the findings are reviewed, and the auditor will prepare a Report of Field Audit or a Report of Investigation. A CDTFA supervisor may be in attendance as well.

Once the findings are presented, you have the chance to disagree with the findings and explain why. You will be given time to gather documentation and present any information you think supports your case.

After you have made your argument, the auditor may do one of three things:

  • Adjust the findings
  • Request more evidence
  • Arrange another meeting to discuss your case

After the official report is filed, you will later receive A Notice of Determination (billing), which will outline the taxes and/or fees you owe or A Notice of Refund.

If the CDFA owes you a refund, they will first check to make sure that you do not have any other outstanding tax liabilities with any state agency. If you do, the refund will be applied to that tax debt. If you do not, they will issue a refund warrant usually within four to eight weeks of the Report of field audit.

If you do have a sales tax liability assessed against you and do not plan to appeal, you will need to pay the amount due within 30 days of the assessment.

If you fail to pay within that time period, you will be charged a penalty of 10 percent of the amount owed. Interest is also charged on the amount owed and the interest rates vary. Persistent failure to pay will expose you to aggressive collection actions by the CDTFA such as liens, levies or seizure of property and assets.

If you still disagree with the findings, you will need to file an appeal (“petition for redetermination”) within that 30 day period. The CDTFA has a long appeals process, and at each stage you will be required to make your case. 

In an audit situation, the reality is that you are generally assumed guilty until proven innocent.

Meeting with the CDTFA Supervisor

If the supervisor was not present at your exit conference, you may now request a meeting with that person if you and the auditor are unable to reach an agreement about the audit findings.

You will again have the opportunity to present your information and reasoning while the auditor prepares a Report of Field Audit or a Report of Investigation. The CDTFA supervisor will analyze both sets of data.

If you are still unable to reach an agreement on the outcome of the audit, you may meet with a CDFA representative within 10 days of your meeting with the CDTFA supervisor.  Otherwise, you may consider meeting with the District Principal Auditor (DPA) to discuss your disagreement with the audit.

The DPA is actually relatively helpful in resolving issues or clarifying the CDTFA’s position on them.

Afterward, you will have a follow-up meeting with the California Department of Tax and Fee Administration representative and make your presentation once again. At this point in the process, if you and the CDTFA continue to disagree about the audit and the case remains unresolved, the CDTFA will issue a Notice of Determination, and you may enter the Appeals process.

Appeals Process and Settlement

Once the Notice of Determination has been issued, you have 30 days to file a Petition for Redetermination using Form CDTFA-416. You may, instead, file your own petition but it must contain the following elements:

  • It must be in writing
  • Identification of the amount or amounts you are contesting
  • Statement of the specific grounds or reasons you believe the tax is not owed
  • Your signature as the taxpayer or the signature of your authorized representative

If you prefer, you can also request an oral hearing in front of the CDFA. You may also request an appeals conference where you can present your case.

At this point, you have the option to make a Settlement Review Request instead using Form CDTFA-393.

If you are not proposing a settlement and the case remains unresolved, there is a final step you can take.

Judicial Proceedings

You must go to court and attempt to prove your case. However, at this point, you are required to pay the proposed tax in full, although you will not be asked to pay any interest now. 

The request for a judicial proceeding is a request for the court to review your information and the results of the audit. If the court finds in your favor, you will be refunded the tax you paid. If not, you will now be asked to pay the interest and any penalties as well.

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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