Sam Brotman, JD, LLM, MBA July 8, 2020 47 min read

Frequently Asked Questions About the IRS Collections Process

If I owe money to the IRS, how do they look at credit cards? 

The IRS takes the position that they are not a bank, so if you owe tax debt they consider themselves to be the superior creditor. Anything that is an unsecured debt, including a credit card debt, the IRS considers itself to be more of a priority than that debt.

When negotiating an IRS payment plan, they will not allow you to write off your credit card expenses. This is a big shock for taxpayers because when going through income minus necessary expenses, a lot of people will list their credit card debt. 

Unless that credit card debt was incurred for business expenses or for something else that the IRS considers necessary, they will not write in minimum credit card payments and will require you to pay a monthly installment agreement payment that is much higher because they are not including the credit card debt in that.

Just keep in mind that the credit card debt is not a saving grace. If you have a substantial amount of credit card debt and it is affecting your cash flow, you are going to want to speak with your attorney or qualified representative to help you.

What do I do if an IRS revenue officer comes to my home or place of business? 

 

IRS revenue officers are field collection agents. They spend about 50 percent of their time in the field going after taxpayers and/or chasing their assets. If a revenue officer shows up at your home or place of business, understand that you are not obligated to talk to them.

The best thing you can do in that case is to get the revenue officer's card, get any paperwork that they have to hand to you and then go see an attorney as soon as possible so that you can deal with the situation. 

Understand that whenever a revenue officer takes the time and energy to come to your home or place of business, it is a fairly serious matter. The IRS views you as a serious collection risk. That is why they have assigned and sent an individual field agent to come see you.

Dealing with a revenue officer generally requires the assistance of an attorney because when things turn south with revenue officers, they often get really tenuous for the taxpayer. 

When you have a situation with a revenue officer, exercise your right to remain silent, get your attorney involved, and let us do the communication going forward. It is the easiest and smoothest way to deal with the situation and to avoid conflict in the future.

What do I do if I have not filed taxes for multiple years?

The first thing to do when you have not filed taxes is to get them filed so you know how much you owe the government and can begin fixing the problem. You need to establish your filing compliance as soon as possible. 

In some cases, we have had situations where clients honestly do not remember what years they have and have not filed for. The appropriate solution in those cases is to call the IRS and to do what we refer to as an analysis.

An analysis is a comprehensive review of your account to determine what returns you filed, what returns you have not filed, what returns the government has filed for you, and any other pieces of information that you need in order to get into compliance. What information does the government have on record for you?

In doing the analysis, you are going to create a roadmap of everything that you need to do to get into filing compliance. Now, just because you have not filed a return in a particular year does not necessarily mean that you are going to do so. 

We see this a lot with older tax years. If you have a return that is close to the statute of limitations on when collection expires and the government has filed for you, you do not want to file a return. Let the statute expire and let that liability wipe itself out.

When we do an analysis, it is not just handing you a list of what returns you need to file, it is going through and actually figuring out the solutions and the solution does not necessarily depend on the IRS claims, although they factor in. The solution is about what the goal is. Do you want to pay the liability? Do you not want to pay the liability? What are your goals for resolving them?

In order to get yourself in filing compliance, we give you that list. You file all your returns and then once the returns have been filed, you are going to get to a number. Once you have that number, you can determine what collection resolution is most appropriate for you. Even if you have not filed 20 years of returns, there is always a solution that you can put in place to make life easier for yourself.

What is a levy? 

A levy is a forcible taking of property. In the context of a collections case, when the government levies you, it takes your property towards the satisfaction of your tax debt. 

The government can levy many different things. They can levy bank accounts. They can levy brokerage accounts and they can levy retirement accounts in certain cases. They can take anything that is a large cash asset from you.

Levies are the most common thing that the government uses in collection cases because they are easy. That is going after low-hanging fruit; it is going after liquid assets, and they are very quick to execute. 

You do not even need a person to execute a levy; a computer can do it. That is what a levy is, and you should be aware of them and take appropriate steps to mitigate them in the course of your collections matter.

What is a tax lien? 

A tax lien is a security interest that the government has in any real or personal property that the taxpayer owns. What does that mean? If you owe an obligation to the IRS or to the state, then a lien is the government's way of protecting its interest in case you would liquidate any property. 

Take a house for example, which we run into most commonly for taxes. If you own a house and if the house has equity and the government puts a lien against it, then when you go to sell that house, the government is going to take its share of what you owe before you get any proceeds.

A lien is just simply protecting the government's interest saying, “Hey, we are the IRS. We are the State of California. We have a right to the equity in this property prior to it being sold.”

A lien does two things. Number one, it protects the government's interest and number two, liens will go on your public record. When a lien shows up, it has the tendency to either damage the taxpayer's credit and it could be discoverable, so anybody who is applying for a government job or anything with the security clearance will have an issue with the lien.

A lien can impact banking relationships; it can impact loans. If your lenders find out about a lien, and particularly if you have a tax liability that you are not in compliance with, then a lien can be very very damaging. 

We run intp this a lot with people who have professional licenses. If you have placed it through FINRA or even a CC license, a lien causes a lot of problems. If you are a fiduciary and you get a tax lien filed against you, the act of the lien getting filed against you means that or suggests that you may not be up to the task of being a fiduciary.

Liens can be very damaging but let us call them what they are. It is just the government protecting its own interest by filing a piece of paper with the county recorder in order to preserve their rights. 

They are not going to suck any assets out of you and they are not going to levy your bank statements. Levies are levies. Liens are liens. That is what a lien is. A lien is protecting the government's interest in any property and is taking a claim to it.

What is the best strategy to take when being audited? 

The first thing that we say to our clients is that you have the advantage in an audit. The advantage that you have in an audit is number one, you are the taxpayer, and number two, you have access to all the documents. 

The government is put in a position where they are asking you for records. You have the opportunity to control both the scope of the information that is being provided. You get to edit out within that scope; what actually gets provided. You have a lot of choice there.

What I tell our team is you cannot control bad cards. For example, if a tax return has under-reported $100,000 in income, you are probably not going to be able to hide that. The advantage that you get in an audit is you can control the order in which the cards are being dealt. 

The very first thing that we do in an audit is to know why the taxpayer has been audited. We look at the return and then we go through a pre-audit. We put the tax return through more scrutiny than what the IRS is going to put it through.

We are looking for issues that could come up and determining whether they are a big deal, a little deal or not a deal at all. We are actively looking at those issues and we are prescreening things. 

Once we pre-screen things, we develop an audit strategy. This has nothing to do with the IRS. This has to do with how we are going to present the audit to the auditor when the time comes.  For example, in the case of somebody under-reporting $100,000 in income, the first question is, is the auditor going to find it? If the auditor is going to find it, then there is no reason to try to hide the ball.

It is to the advantage of the client in that situation, to just come out and admit that there has been $100,000 under-reported. The reason for that is by coming out in the beginning and saying that, is you are going to avoid all the penalties and all the presumptions that the auditor has about fraudulent action. You are going to get yourself out of much more than you would by trying to hide the ball on one-hundred grand.

If there are things that you can hide the ball from the auditor on, then you are going to present things strategically. For example, if you are missing receipts, then you will provide a general sample. If one tax year looks better than the other, you will present the ‘18 data versus the ‘17 data or vice versa.

Audits are a fluid strategy, but by pre-auditing a tax return, if I organize the material appropriately and then control the presentation, you are going to have a much higher success rate in an audit than if you just show up with a whole bunch of documents and just hand them over to the auditor.

The most important thing that you can do in an audit from a strategic perspective, is to control the flow of information, control the pace of the audit, and to move the auditor through the playing field as you think they should move. Do not have them dictate how the audit goes. 

What is the IRS appeals process like? 

The IRS appeals process is actually reasonably friendly to taxpayers. First of all,  technically, the function of appeals is to be an independent body of the IRS separate from examinations and collections. 

The sole function of appeals is to resolve disputes between the taxpayers and the government and to do so in a mutually beneficial way.

The most common time we run into appeals is usually with respect to when we are filing a tax court petition and trying to work things out through appeals. Most of our audits that we do at the firm will file a tax court petition for and then we will try and negotiate with appeals. 

The benefit of dealing with appeals is that most of the appeals officers are either former collection agents or they are former auditors, so they understand what you are talking about.

You are dealing with professionals, people who know the same playing field as you, and who we can communicate with on a high level and get a lot done. Number two is with appeals, you are dealing with a very high volume of cases because appeals is trying to screen cases out prior to litigation. Trying to resolve disputes has a lot more flexibility.

For example, if you are taking an audit into appeals, appeals is not going to go through bank statements or receipts. Appeals will take a look at the presentation of information and they will make an objective decision independently of the auditor.

The appeals process works like an informal mediation. Neither the collection agent nor the collection agent is there. It is just you and the appeals officer. You state your case. The government's case has been stated through the audit report or through the collections report and appeals tries to negotiate a resolution. By and large, we have had really positive experience within IRS appeals.

We recommend the appeals process. We think it is a great process, but obviously it depends on what the issue is. You are certainly going to want an attorney to guide you through that process because the implications are if the process breaks down, presumably the IRS is going to litigate or you are going to take your shot in appeals and that is it. You want to involve an attorney in the appeals process. You want to negotiate with appeals, and then you can go from there.

Will I go to jail if I owe money to the IRS? 

The answer is generally no. We do not have a debtors' prison in this country, so the IRS does not throw people in jail just because they owe money in taxes. Rather, the way the IRS deals with that is by taking an increasingly serious set of collection actions designed to get you back in compliance. 

When people owe money to the IRS, jail time only comes into play when they are willfully avoiding their obligation to pay. As long as you are taking action to get in compliance and are not trying to do things to subvert the IRS, you are probably not going to go to jail for your liability.

However, even with jail off the table, civil collections is not a fun place to hang out. The IRS takes really, really harsh actions against taxpayers in an effort to force them into compliance. Just ask anybody who has ever been through the process. It is definitely not a place you want to stay long-term. 

The best thing you can do from a civil compliance perspective is to move yourself quickly out of that process and into a collections resolution, so that you can operate and have room to breathe, earn income and not worry about the IRS.

Will the IRS take my car? 

The IRS had a long history of doing really nasty things to people in the early-to-mid '90s. One of the things that they would do to people is call them in for meetings and then, they would take their cars while they were in the meetings. They would tow and impound them.

Congress responded and implemented the IRS Reform and Restructuring Act, which does not say that the IRS cannot take your car, but generally speaking, there are protocols in place. The IRS is not just going to come by and sweep your car off the street. However, the IRS does view your car as a physical asset.

If there is value there, the IRS is going to want you to borrow against the car, or they are going to want you to sell that asset, but it is not like they are wandering around in tow trucks and they are just going to lift the car off, or out of your driveway. In addition, for a lot of people, their car is a necessary expense for them or a necessary asset, because it drives them to work.

Generally speaking, IRS agents look at cars as reasonable and ordinary living expenses, because they view them as a part of essential transportation. Yes, the IRS can technically take your car, but no, they are probably not going to.

Can tax debt get discharged in bankruptcy? 

 

Yes, with an asterisk. Number one, it has to be a certain type of tax debt. For example, individual income tax debt can get discharged in bankruptcy. Number two is, it has to abide by certain rules. 

Number one, you have to file a return and accurately list the debt and number two, you have to give the government a reasonable amount of time to collect that debt. Number three, there are certain circumstances where debt is not dischargeable.

Bankruptcy is a good option for distinguishing large tax debts or for debts where you are absolutely 100 percent you are not going to pay. Bankruptcy is also a good option if you are mixing in large tax debts with other forms of liability that you are never ever going to be able to pay. 

However, generally speaking, again, if you have just tax debt, bankruptcy may not be the best option because the IRS has created administrative resolutions for dealing with tax debt that do not involve filing bankruptcy.

In our minds, bankruptcy is usually considered a nuclear option. While it does have its uses, it is definitely worth sitting down, discussing the situation with a tax attorney, and understanding whether or not you are a good candidate to file for bankruptcy and whether or not your tax debt can be taken care of using other methods.

Help me, I have a government agent at my door, what do I do? 

 

The first thing is, do not talk to the agent. Get the agent’s card, get their contact information, figure out who that person is and pause and take a deep breath. 

 

Agents show up at your door for a couple of reasons. Usually three. Number one, you owe them money and they are trying to collect. Number two, they are auditing you, but usually when they are auditing you, they will send a letter saying, "Hey, I would like to set up an appointment so that you can be audited." 

 

It is not like people go through surprise audits. Number three, are criminal investigation people, and obviously, if a criminal investigative agent shows up at your door, you will want to be very careful with what you tell them. The same goes with a civil collection agent. 

 

Somebody paying a surprise visit to you is not really a welcome thing and you are probably not prepared for it. The easiest thing to do is to say, "I cannot talk to you, I need to run this by an attorney. I will have somebody reach out to you and go from there." The agent will not take any offense to that.

Some of them may strong-arm you and may say, "You do not need an attorney, I have a personal matter to discuss with you." Do not listen to it. You are not obligated to talk to that agent, and that agent cannot force you to talk to them.

The best thing that you can do is stop, get the agent's contact information, take their card, and figure out how to go from there. Chances are, you probably know or at least have some inclination of why the agent is showing up, and if you truly do not know why, then that is a big red flag. 

You should have somebody check it out before you start giving information, because you do not want to just give the government information without any context. We want to understand why they are asking for the information, what it has to do with you and how it is going to be used.

Just do not talk to the agent. Nothing good will come from talking to the agent until you understand what the situation is. Then you can determine how cooperative you are going to be.

How can you protect a new startup business from personal tax debt? 

To be clear, people and corporations are separate. If I am sitting in front of you with a piece of paper right now, I can draw a circle that represents a person and another circle that represents a business. Those two are separate.

Once a business entity is created, the personal tax liability associated with somebody else should not impact that business. It is not like when you get assessed for tax liability. It can just skip over into an entity unless you have a pizza shop and you shut down the pizza shop and you open up another pizza shop. That would be what we call a transfer reliability or an alter ego.

In the case of a new business that does not have anything to do with a delinquent personal or business tax liability, liabilities just do not skip into businesses. The risk is when you have a situation where you have multiple partners and one of the partners has a delinquent tax liability.

The problem is when the IRS takes collection action against that person they generally put a lien on them. What a lien does in the context of somebody owning a business is it attaches, technically, to the shares of that business. 

Now that does not necessarily have to prevent somebody who has a tax lien from owning a business, but it does potentially have consequences if and when that business is sold.

When you are dealing with this situation, it is obviously very fact-specific. It depends on the size of the business. It depends on the consequences and the nature of the partners. You want to make sure that you plan this out appropriately. 

You, the person who has the tax liability, is appropriately dealing with it even if a lien is in place and the business can still be started. It just takes a little bit of time and effort and planning to get it done.

I would encourage anybody starting a business, and particularly anybody who has historical tax issues, to reach out to an attorney for a consultation. 

They can usually be resolved very quickly, but it is important to do a little bit of planning work at the beginning so you understand what the impact would be on the corporation, if any, at a later point in time.

How does IRS tax debt affect your passport and your ability to travel or live overseas? 

Recently the government has a program that states that if you have seriously delinquent tax debt and if you do not have a resolution in place or otherwise in compliance, then the IRS can report you to the State Department and the State Department can essentially revoke your passport. 

“Serious” usually means liabilities of $50,000 or more that have gone unresolved. The biggest problem with this is that nobody likes to be inconvenienced by having somebody revoke your passport. For anybody with a liability, I strongly encourage you to get in compliance so that your passport is not confiscated

The bigger problem is with people who live overseas. For expats who live in various countries, if their passport gets revoked. Technically, they can get deported and they can either be held indefinitely or for an extended period of time and/or pay huge fines and/or other things and suffer other consequences associated with not having a passport. 

For people who live overseas, this is a huge problem. You want to make sure that you are in tax compliance. You want to make sure that you are taking active steps to resolve your tax issues because if you do not, there is the risk that you will get reported to the State Department and your passport will get revoked and then you will not be able to travel and/or live overseas.

How does tax debt impact the purchase of a house? 

Tax debt can impact the purchase of a house in a lot of different ways. Number one, if there are liens that are filed, it raises a red flag to your potential lender.

Number two, it grants the IRS a security interest in any property that you potentially acquire. Even if a lender is going to facilitate a mortgage, and even if that mortgage has a higher priority than the IRS lien, the IRS lien can still impede the lender's ability to collect equity from the property. 

An IRS lien could be a challenge when trying to obtain a loan for a new home.

In addition, IRS liabilities that are unresolved means that you are not in compliance or do not have a payment plan,and will be looked on unfavorably by lenders. To the extent that you have a liability and that you are out of compliance, the lender may not grant you a loan until you get in compliance.

Lenders are concerned principally with two things. They are concerned with your ability to service the debt and they are concerned with the security interest of their property.

IRS liability threatens both aspects for the lender. It is important that if you are planning on purchasing a house, that you shore up those two areas as soon as possible in order to make your dream purchase come true.

How do you deal with collections issues for high-net-worth clients? 

High-net-worth clients present several challenges from dealing with things from an IRS perspective. The first challenge that you are going to have is that high-net-worth clients do not fall within the IRS's usual guidelines for ordinary and necessary expenses. Take, for example, San Diego. For a single person living in San Diego, the local housing and utility standard is about $2,500 a month.

For high-net-worth clients, this presents a big problem because you are dealing with income levels that are way above the IRS's ordinary standards. The fact of the matter is, is you may have somebody with an $8,000 mortgage or a $10,000 mortgage or $25,000 mortgage. Just because the IRS disallows that $25,000 mortgage or at least a large chunk of it, it does not mean the taxpayer is not actually paying that much for their mortgage.

There are a variety of complicated issues like that that go into representing a high-net-worth client. The trick with high-net-worth clients is being practical about the fact that they could probably pay the IRS liability in full if they are asked to. They may just be running into a temporary cash-flow situation or they may need long-term help to spread out their liability, however large it is, over a period of time.

This is a relatively simple math equation. It is just about managing cash flow and convincing the government to take less based on certain lifestyle choices. That is not a hugely complicated problem. Although depending on the income level of the person we are dealing with, it does get a little technical.

The harder part of the problem is factoring the human equation because a lot of times  you are dealing with a revenue officer or with another IRS employee who makes less than $100,000 a year and living in California.

When you are dealing with somebody who makes under $100,000 a year and you are dealing with somebody who makes $100,000 or more a month, the income inequality and the wealth discrimination that occurs become really challenging. 

The IRS agent may say, "This person makes more in a month than I do in a whole year. Why are they unable to pay their taxes?" The reality is that it is slightly insensitive to the particular person's situation.

In my experience, when a client has more money, their situation is more complicated. They have more moving pieces. They have more investments. They have more businesses. 

 

From an IRS perspective, this creates a big challenge. The biggest issue for high-net-worth clients is protection. You want to protect a client and their assets against the imposition of the government or prevent the government from coming in and trying to kill the goose that lays the golden eggs.

A lot of government agents have not run businesses before. They do not have real estate investments. They do not have partnerships. They do not have a variety of things that high-net-worth clients have. 

From their perspective, when they see large liabilities, when they see large amounts of income, the tendency is, "Well, why are they not able to pay us and  pay us biw?" The biggest part of what we do at our firm is help translate the situation between the client and the IRS in terms the IRS can understand.

That is the challenge with high-net-worth clients. If you are a high-net-worth person, and a high-net-worth person can basically be described as anybody who has an income of $20,000 a month or more. If you fall within that category, then we are going to have to do some a little bit of complex defense when it comes to your collections matter. If not, the IRS will come in.

The IRS will mandate terms that there is no way that you can accept, and then there will not be an agreement between the solution that you propose and the solution the government proposes. 

I would encourage you to sit down with either me or another tax attorney, address the situation, and try and find common ground. It does not have to be complicated. 

It does not necessarily have to be expensive. By putting a plan in place and executing it, it is going to lead you on the path to better success and then navigating through your tax issue.

If I owe money to the IRS, how will the IRS look at expenses for college-age children and private educational expenses?

Here is the bad news. When factoring in an IRS payment plan or when negotiating a collection resolution, the IRS does not include any expenses that you have for your college-age children or any private educational expenses.

The reason for this is that the government views those expenses as luxury items, even though most taxpayers in that situation would disagree. A lot of the pushback that we get from taxpayers is, "Well, if it is a choice between paying for taxes and sending my kids to college, I am going to send my kids to college."

While I understand that sentiment as a parent myself, you have to understand that the IRS employees that you are going to negotiate with often make a salary that is a lot less than yours, so you are dealing with somebody who would also view that expense as a luxury item.

This is particularly true for kids who are over the age of 18. The IRS considers those children to be adults and therefore kicks them out of the nest. Now, with that said, it does not mean that you cannot get an allowance for educational expenses or for supporting college-age children. 

There are some tricks and tips for doing that. You are going to have to be very careful about how you list those expenses in the financial statement. Rather than go into that, what I recommend that you do is contact a qualified representative or a tax attorney and have us walk you through how to best include those expenses and how to get the resolution that you are ultimately seeking.

If I owe money to the IRS,are they going to take my house? 

Let us start by saying that, yes, the IRS can take your house. If you are living in a house, and you own that house free and clear, and you owe money to the government, the IRS is either going to want you to borrow against that asset or they could potentially seize that asset. 

That is a scary thought, but for example, if you are living in a multi-million dollar home and owe the government a million dollars, they are not going to want you to continue to live in your multi-million dollar home and owe the government a million dollars, so there is going to be a little bit of give and take there.

However, the good news from the perspective of most taxpayers is, number one, it is not very popular for the IRS to kick people out of their primary residences. Seizing primary residences and kicking people out of their homes does not play out very well in the media. 

The IRS does not usually seize principal residences unless there are extreme or extenuating circumstances. Number two is, there is a lot of paperwork involved in seizing a house. The IRS agents have to fill out a whole bunch of forms. Those forms have to get multiple signatures on them.

They have to go through an attorney, and they have to go through a court process in order for the IRS to foreclose in your home. That is a lot of work. The IRS agents much prefer to go after low-hanging fruit. They go after cash assets. They go after bank accounts, they go after stock accounts, they go after wages, they go after things that they can very easily seize. 

While they can take your house, that is not the first play in the IRS's playbook. Generally speaking, if you are proactive in resolving your tax liabilities, your house is generally safe.

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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