Sam Brotman, JD, LLM, MBA October 21, 2020 58 min read

How to Reduce the Risk of an IRS Tax Audit

Every year, the IRS sends out thousands of notices to taxpayers informing them that they have been selected for an IRS audit. Audits are scary situations for many taxpayers. They involve the government prying into your personal financial affairs and requesting sometimes very sensitive financial information from you.

They sometimes provoke feelings of fear and that the taxpayer has done something wrong in the eyes of the government. In addition, audits are time-consuming and can be potentially very costly when you factor in any penalties assessed or any interest on the assessed liability. Even though most honest people who keep good records have nothing to fear, no one likes to be audited. I am often asked as an attorney for things that my clients are able to do to reduce their risk of audit. In order to better serve them, I have put together this multi-part article on audits and tax return red flags.

About Audits

First, I want to explain a little about the process and how audits work. The Examinations Division is the group within the IRS that handles auditing your tax return. The government takes audits seriously, as not only does it help them catch tax cheats, but is also a major source of revenue for the government. According to internal IRS statistics, The IRS collected almost $17.5 billion dollars from its Examination Division in 2009. Audit rates have increased nearly 100% from the year 2000. So, it is fairly easy to conclude that not only are audits not going anywhere, but also the number of people being audited is steadily increasing.

The IRS audits people for a variety of reasons, but mainly it is to find potential tax revenue that was not reported on tax return. This comes in two forms: understated income and overstated deductions. Now the IRS simply does not have the resources to audit everyone’s return. Therefore, it prioritizes based on certain factors about the information reported in the return and the person who filed it. The IRS keeps these factors (and their priority level) are kept under strict secrecy. However, there are several pieces of information that we know and other information that we can infer from the history of returns that have been audited.

When returns are filed, whether by hand or electronically, they are entered into a computer system and processed. The information in the return is then assigned a numeric score under two scoring systems.[1] These scoring systems are known as the Discriminant Function System (DIF) score and the Unreported Income Discriminant Function System (UI DIF) score. DIF scores regard the potential that information in the return would change if it were audited and UI DIF scores regard the potential that the return contains under-reported income. Once returns are scored, the highest scoring returns are separated and reviewed manually by an examination technician who determines which returns should be selected for audit and which line items in particular are in need of extra review. That person also determines the level of audit needed for the particular return in question (simple issues are resolved via the mail, the most complex require a field visit by an IRS auditor).

So the goal is obviously to reduce your DIF and UI  DIF scores enough so that your return avoids the scrutiny of the computer and does not get selected for manual examination. Continue reading for more explanation on how to go about this.

 


[1] See The Examination (Audit) Process, found here: http://www.irs.gov/uac/The-Examination-(Audit)-Process

IRS AUDIT RED FLAGS – PART TWO – COMMON ERRORS THAT LEAD TO IRS AUDITS

In our last section, I gave an overview of what audits are and how returns get audited. In this section, I will begin discussing IRS audit red flags by talking about the most common errors and other things to avoid in order to reduce your chances of an IRS audit.

Mistakes

This is an easy one. If there are mistakes made on the return, it suggests that the taxpayer did not spend proper diligence and care in preparing their return. Mistakes on a tax return mean that things need to be changed and those changes may mean an increase in tax owed to the government. Plus, some mistakes cause the return to get kicked out of the electronic processing system and rerouted somewhere else. That generally requires a human to fix it.

So what types of mistakes are we talking about? You name it. Wrong name, wrong social security number, incomplete/missing information, incorrect math, conflicting entries on a return, tax return does not match other information that was filed with the IRS, and so on and so forth. Tax returns are semi-sophisticated financial documents and, as such, there is generally a high potential for error.

Amended returns fall in the same category of “mistakes” that will probably generate closer scrutiny by the IRS. Filing an amended return, particularly if it results in a significant decrease in tax, is almost guaranteed to get a second look by the IRS. It may not mean that your return will be selected for audit, but most likely someone will take a second look to make sure that the return was done properly. One final word about mistakes is that it is very important to make sure the information in your federal and any state tax returns matches up. The IRS and the state income tax agencies can and do share information regarding tax returns that are filed. A mistake in that arena could potentially mean that both agencies come knocking on your door

“0’s” and Repeated End Numbers

Mistakes are indicative of a lack of care when preparing the return. Zeros, especially double or triple zero, indicate that the tax preparer guessed regarding an expense category or are BSing. I have seen IRS revenue agents (auditors) roll their eyes when they see complicated expense categories come out to a nice even number. Oftentimes, they just know that the taxpayer is not going to be able to substantiate that category fully. In the same regard, guessing and using the same end number over and over again may also raise a red flag with the IRS. I would never advise someone to guess on a tax return, but if you are truly stumped and need to make your most honest recollection about an expense category then you might want to vary those guesses to avoid scrutiny.

You Have Been Audited Before

There is some debate about this among practitioners. Some people claim that getting audited once and having that audit result in a change opens up the door to future scrutiny down the road to the IRS. However, others claim that once a person has been audited, the Service turns their attention to other taxpayers to widen the number of people they are able to examine. I find fault with both of these rationales and, though I have never had an audit client get audited twice by the IRS (knock on wood), I do not find it hard to believe that some variation of this information may make its way into your DIF or UI DIF score. While this certainly is not a major factor or audit red flag, it is a good reminder for those who have been audited to make sure their I’s are dotted and their T’s are crossed when it comes to their return.

You Use an Unscrupulous Tax Preparer

In contrast, I cannot say enough about the dangers of using someone who fudges numbers on your tax return, who is overly aggressive, or who may just be an all out crook. The IRS Criminal Investigation Division (CID) has been increasingly going after unscrupulous return preparers as a way of ushering compliance from the rest of the community. Think about it: your preparer may magically turn a $300 balance into a $300 refund, but if he is doing it for you then he is probably doing it for everyone. Tax Preparers use an identification number known as a PTIN, so that the IRS can readily and easily identify all the returns that individuals prepare.

The IRS has a number of ways that it discovers crooked preparers. Someone may rat them out to the IRS, usually a former client or former spouse. One of their clients may be audited and the IRS may take a second look at some of the other returns that they have prepared if the audit resulted in extensive changes. Probably not too far off, if it does not already exist at the IRS, is a method to statistically look for patterns in the returns that a person has prepared. 

Regardless of how they are caught, you do not want to be anywhere near that person when they are caught. Tax preparers have been a high priority target of the IRS for many years now (google tax preparer and sentenced to see what I mean). You should absolutely do everything in your power to avoid them, especially if they do not sign the tax returns that they prepare or indicate that the return was self-prepared.

IRS AUDIT RED FLAGS – PART THREE – FREQUENT IRS TARGETS

Here are a few favorite areas that the IRS has been known to target during an audit. Although most of them are unavoidable, just common knowledge of the areas that the IRS looks at should prove to be helpful.

Large Changes in Income

Most of these audit red flags are thought to increase your DIF score; however this is probably one of the main indicators of underreported income. There are many unexpected events in life that can cause changes in income such as a loss in job, a windfall gain, or just unexpected good or bad luck in life. As such, unexpected and significant swings in income can usually be explained fairly easily. However, large inconsistencies in income from year to year may indicate an area of concern to the IRS if the change in income is not readily apparent (i.e. losses of a job would be reflected by a W2). This is because large shifts in income can also be indicative of someone hiding income in a current or past tax year. By taking a closer look at the income earned in different years (as well as the substantiating documents), the IRS can sometimes find discrepancies in what a taxpayer earned vs. what they reported.

Large Refunds/NET Operating Losses

Generally, the IRS has no issue with small refunds because predicting the exact amount of withholdings needed over the course of the year is a difficult task, especially when factoring in deductions. However, large refunds pose an entirely different problem for the IRS and it has nothing to do with them not wanting to write a large check to the taxpayer. 

First, most large refunds are not associated with standard W2 taxpayers, but rather are indicative of large losses on a taxpayer’s return or something that has offset a large amount of tax that the taxpayer would have had to pay. As a result, these issues are usually much more technical than a standard return and, therefore, the IRS will usually want to take a second look at those parts of the return to make sure you are right. 

The good news here is that if your calculations are right, your return will likely quickly come off the manual reviewer’s desk if there are otherwise no other problems. The same issue exists when a taxpayer shows a net operating loss that is carried over from a prior year. Because even many preparers make mistakes when reporting net operating losses on a client’s return, the IRS is likely going to examine this section of the return due to the potential high margin of error.

Foreign Bank Accounts, Income From Foreign Trusts, Frequent Cross Border Transactions

Even though taxpayers may have perfectly legitimate reasons for engaging in cross border transactions or may own property in other countries, such activities traditionally make the IRS nervous for a variety of reasons. First and foremost, IRS summons authority and the ability of the IRS to demand records from 3rd parties (banks, financial institutions) in foreign countries is extremely limited. Particularly in those countries with strong bank secrecy laws, the IRS may not necessarily ever find out about the existence of these assets unless they are voluntarily disclosed by the taxpayer. 

Furthermore, cross-border transactions and hiding assets and foreign countries are often used methods to evade taxes. As such, the IRS has now required taxpayers to disclose if they have foreign assets on their tax returns (and can seek prosecution if they lie about it) and is particularly cautious of taxpayers that do. Although the IRS will audit not everyone who has assets or transacts business internationally, your risk of audit may increase if you do. 

It should also be noted that the IRS has generally increased enforcement efforts against businesses with locations right on the US/Mexico border, particularly those that may deal with large amounts of cash. If you do operate one of these businesses, you should be informed that these businesses can and frequently do get audited.

Returns Where the Individual Admits They are Participating in a Tax Shelter or Listed Transaction

Yeah, that one is easy.

IRS AUDIT RED FLAGS – PART FOUR – CASH

Cash is a major audit red flag because it creates all sorts of problems for the IRS. It is almost impossible to track cash transactions, can be easily hidden, does not have a clear electronic record to keep track of it, and is difficult for the IRS to verify. One of the big fights that the IRS has been waging for years has been against cash businesses. Hospitality workers who do not report their tips, taxi drivers who collect off-meter fares, retail store owners who sell merchandise off-book, etc…

Cash transactions go unreported by a great many taxpayers, many of whom believe that they do not have the report the cash (wrong) or who figure that the IRS will never know that the taxpayer received cash. Specifically, the IRS targets returns where taxpayers may deal with large amounts of cash and consider it an audit red flag when a return contains a high probability of unreported income. The IRS does this by looking for these three methods of fraud:

Skimming – taking cash from a business prior to it being recorded as a sale. For example, a clerk in a store who does not ring up a transaction and pockets the cash.

Embezzlement – taking cash after a sale has been recorded. For example, a clerk in a store who takes money out of the cash register.

Fraudulent Transfers – A transfer of funds listed as an expense when it actually should be recorded as income. For example, a payment listed as being to a vendor that is actually taken by an owner or employee.

These examples illustrate methods that taxpayers who deal with lots of cash use to cheat the IRS and provide you with a rough idea for the types of things the IRS is looking for when they audit a cash return. As a result, taxpayers who frequently deal in cash will likely receive increased scrutiny by the IRS. 

This audit red flag is raised when the IRS identifies these taxpayers by looking at the occupation code that they indicated when they filed their tax return or what the taxpayer lists as their occupation on page 2 of the tax return. Those returns that have a high likelihood of unreported income or fraud will likely then be subject to audit.

Also, of note, that another audit red flag related to cash (and one that the IRS has been targeting) is those taxpayers who make cash transactions in excess of ten thousand dollars. Banks and other financial institutions are required to fill out currency transaction reports (CTRs) when an individual pays, deposits, or otherwise utilizes over then thousand in cash. In addition, those who deposit lesser amounts to try and avoid the CTR (which is called structuring and is illegal) or who otherwise participate in a suspicious activity risk having a suspicious activity report (SFR) filed against them. It is not clear how exactly these items affect a person’s audit risk. However, it is clear that these documents are reported to and kept track of by the IRS.

IRS AUDIT RED FLAGS – PART FIVE – SCHEDULE A AND E

Charitable Contributions

Inflated charitable contributions are one of the most abused tax deductions and, as such, one of the biggest red flags that a return is deserving of an audit. In addition, many taxpayers fail to include the required schedule for non-cash contributions to charities, which is indicative of either a false deduction or the fact that the taxpayer lacks the proper substantiation requirements under the Internal Revenue Code (resulting in a disallowed deduction). In any event, the IRS often challenges non-cash charitable contributions because there is at least some potential for change and resulting in additional revenue for the IRS.

Medical Expenses

This is not a huge red flag for everyone. As you get older in age, the IRS likely becomes more tolerant of medical expense deductions and, therefore, would be less likely to select you for examination based on this category alone. However, medical expenses are frequently abused by some in the form or another by taxpayers trying to write off cosmetic and other aesthetic procedures as legitimate medical expenses. In addition, medical travel has been a huge potential area for abuse as some taxpayers game the system to try and absorb some of their personal travel costs. 

One of the biggest telltale signals of potential abuse is when medical expenses (or Schedule A expenses in general) rise as income rises or there is significant medical expense for someone who is younger and does not have a history of high medical expense deductions. Again, many taxpayers are entitled to and legitimately have high medical expenses. However, like most other Schedule A deductions, there is often great potential for abuse.

Losses From Rental Property/Complex Rental Income and Expenses

Rental property has been a particular subject for abuse in recent years with the dramatic changes in the housing market. As such, many people have been unscrupulously padding losses into their investment properties to help offset income from other sources. This happens frequently with those who have portfolios with multiple properties and who may be unfairly using losses to offset large gains. In some cases, these losses can be fairly substantial and result in a significant tax loss to the government. 

Rental property losses in the first year or even the first few years will not necessarily trigger an audit, particularly because of the illiquidity in the housing market, but sustained losses draw scrutiny from the IRS. Think of it this way: Why would someone continue to dump money into a losing investment year after year for a purpose other than to generate a tax loss (i.e. no significant business reason)? Also, abnormal losses for a certain year may also raise a red flag particularly with frequently abused/misreported expense categories such as repairs and maintenance (the IRS will audit you for capital expenditure treatment).

 IRS AUDIT RED FLAGS – PART SIX – EMPLOYEE AUDIT RED FLAGS

Unreimbursed Employee Expenses

Unreimbursed employee expenses are perceived to be one of the most common IRS red flags. The IRS frequently reviews unreimbursed employee expenses in audits, as they are widely considered a high abuse category for W2 employees. As a practitioner when reviewing an audit client’s tax return, I often do a quick calculation to determine what percentage of adjusted gross income (AGI) do unreimbursed employee expenses total. Anything over five percent (5%) and I make sure to ask my client about the nature of the expenses taken. 

Think of it this way: an employer is not likely to pay you a salary only to turn around and make you spend more than five percent (5%) of it on the cost to do your job. If that is the case, these expenses are usually reimbursable to the employee by their employer. The problem with unreimbursed employee expenses is that many people either throw personal use expenses into this category or add things that are not tax deductible (like dry cleaning expense). 

The IRS is catching on quick, however, by not only monitoring your total Schedule A expense (as a percentage of income), but by also looking at others who have your occupation and flagging the outliers for additional screening. Given the history of abuse associated with this category, it is important to be vigilant when totaling your expenses to make sure they meet the requirements of the Internal Revenue Code. Be prepared for the government to take a look at these expenses, as they are one of the common IRS red flags.

Home Office Deductions for Businesses That Have are Not Run From the Home

If I were asked to name three IRS red flags where I saw clients get challenged and usually resulted in a change, this category might top my list. Home office deductions and the associated expenses for individuals whose company has a primary location somewhere else tends to trap taxpayers who are not completely familiar with the nuances of the code. Many people misinterpret the rules associated with the deduction while others simply abuse or try and game the system.

The most difficult arguments to make with the IRS are with those taxpayers who receive a W-2 and are someone else’s employee while still claiming a substantial home office deduction for the use of their business. It is really hard to make an argument, absent special circumstances, that an employer either does not provide a suitable primary office location for the employee’s position or does not reimburse them for the out of pocket costs associated with setting up a home office. 

Furthermore, some occupations statistically do not normally require home offices. It therefore seems obvious that IRS red flags may be raised when you are in one of these professions and claim a home office deduction on your tax return. Just be careful when claiming the deduction and always keep good records (including photos of the office environment). If you claim the deduction, know that you are likely increasing your chances of an audit and be prepared for a potential uphill battle.

 IRS AUDIT RED FLAGS – PART SEVEN – SCHEDULE C EXPENSES

Claimed Business Meals, Entertainment, and Travel Expenses (Particularly International Travel)

This one is probably a close second on the categories that are challenged by the IRS as meals, entertainment, and travel (MET) deductions are one of the most frequently used and abused deductions.

As such, high MET deductions, especially when not supported by substantial business revenue to justify the expense, will likely increase your risk of an IRS audit.

Risk of audit

First, there is an extremely thin line between what an allowable business expense is and what is not. The test under the Internal Revenue Code is an expense that is both ordinary and necessary in the line of business.

Ordinary and necessary under the Code are two separate requirements and are terms of art among practitioners. This means that what is ordinary and necessary for one profession may not be ordinary and necessary for another and subject the latter to an IRS audit.

Auditors frequently challenge the “necessity” of entertainment expenses and often win (categories that result in a high percentage of changes usually get challenged).

In addition, many people mistakenly believe they can write off all expenses associated with travel or with entertainment if it is business related.

Not true.

I have often found in my experience that meal/entertainment/travel expenses are one of the categories that taxpayers are least likely to be able to substantiate. Taxpayers either:

Think logically about meals/entertainment/travel and the profession that your expenses are associated with. Very few professions require international travel or substantial meals and entertainment expenses.

Mileage and other car and truck expenses

We should start with the bad news.

If I could pick one area where my clients frequently fail to provide proper substantiation, it would be business miles. Revenue agents (and the code) require documentation in the form of a mileage log, but I have known very few people who actually log mileage.

The worst part is because so few taxpayers keep proper mileage documentation then they usually estimate this category by using (you guessed it) numbers that end in a few zeros. The IRS has been onto mileage for years and it is one of the areas I see targeted most in an audit.

Major vehicle expenses (absent a profession that requires frequent travel) are a big target for the IRS.

However, the good news is that is where the bad news stops.

Revenue agents will use the internet to confirm business locations, but other than a few isolated instances I have not seen too many challenge your expenses much further.

Professions with high mileage

Those professions with natural high mileage (truck drivers, real estate agents, and sales people) are also usually less likely to face strict scrutiny. Furthermore, unless the expenses appear excessive, I have not seen too many people audited solely on mileage or business use of vehicles alone.

This is most likely because many taxpayers have professions that require driving of some sort, and the IRS, absent any other audit red flags, just does not have enough resources to check everyone’s mileage log.

Just be careful when writing off car/truck expenses and mileage and, if it appears to be excessive for your profession, make sure to record a mileage log as reconstructing one later can be challenging.

IRS AUDIT RED FLAGS – PART EIGHT – SCHEDULE C LOSSES AND SCHEDULE B AND D

Small Businesses Losses/Schedule C Losses (Especially Over Multiple Consecutive Years and Low Income/High Deduction Types of Businesses)

Many of my frustrated, wage earning, tax preparation clients ask me all the time if they can lower their tax liability by starting a “business” and deducting their expenses. I caution against this idea for several reasons. For starters, most taxpayers fail to consider the material participation requirement when launching their new business. As such, they deduct income that should be characterized as a passive loss against active income and get nailed by the IRS in an audit. Think about it: How many people do you know with full time jobs that spend 750 hours or more in another business? Probably not too many.

In addition, side businesses that show losses in multiple years are subject to review for actual profit motivation under the hobby loss rules, which the IRS can and does audit regularly. Just because you love making arts and crafts projects in the garage or enjoy racing cars on the weekend does not mean that you are engaging in these activities with the motivation of making a profit. The IRS knows this and DIF score may increase especially with a for side businesses with an element of fun in them (travel writer, beer/wine making, horse racing, any sort of professional gambling, etc…) The IRS has been onto this trick for several years now and will audit businesses that show losses or that have the appearance of trying to off-set legitimate tax liability.

IRS Audit Risk in Frequent Stock Trades and Complex Schedule D and B Transactions

I hate to say there is a bias against those who trade stock, but frequent stock trading has a very high margin of reporting error and might earn you a review of your tax return by the IRS. There is nothing wrong with frequent trading and a good tax preparer can actually make the reporting pretty straight forward (many brokerages have gotten a lot better with the information contained in their statements. 

However, because of the complexity that occurs from some transactions or the difficulty in properly calculating basis for stock trades (and therefore appropriate gain and loss), the IRS sometimes will want to take a second look at your return to make sure this has been done accurately. However, these issues are often time consuming and difficult, so I personally have not seen too many returns subjected to an IRS audit on the basis of stock trading alone unless there is a mistake on the return.

A word to the wise for traders though. I hope that if you are dealing in frequent trades or asset sales that you have a tax attorney, CPA, or someone else knowledgeable to prepare your returns. Although mistakes can and do happen, they are significantly reduced when you hire a preparer comparable to the level of sophistication of the tax return. In most cases, if you follow this rule, you should be fine. 

However, make sure especially in this instance to save all documentation relating to any stock trades or the sales of that asset (especially how you valued it). This will make or break you should you have to undergo an IRS audit.

IRS AUDIT RED FLAGS – PART NINE – MARGINS

Continued from IRS Audit Red Flags – Part Eight – Schedule C Losses and Schedule B and D

As you have probably learned by now, the IRS is an organization that is heavily reliant on statistics. The Service only has a limited amount of resources and must therefore pursue only those avenues that are most effective for increasing tax revenue. Tax returns are a treasure trove of information though and the Service has become increasingly sophisticated at utilizing that information to make itself more effective. This is not just limited to individual taxpayers, but also groups of taxpayers who live in the same area or who have similar jobs in similar industries. It collects enough statistical data to come up with median figures or ranges of where it expects taxpayers to be in certain categories and audits those who are outliers. 

For example, let’s say the median income for a household in Beverly Hills, California was $200,000 per resident. If you are a taxpayer that filed a tax return claiming only $50,000 in income, it would be safe to assume that you might attract the attention of the IRS.

Similarly, a taxpayer who made tens of thousands more than the median income in a given area would also likely arouse suspicion within the IRS. The same reasoning also holds true with taxpayers in similar industries. Plumbers making hundreds of thousands of dollars or CEOs pulling in just over minimum wage will also likely be subject to audit. Certain professions also carry higher audit risk than others. Audit Technique Guides published by the IRS can also provide some clues as to what the IRS views at professions with a higher proclivity for abuse (http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Audit-Techniques-Guides-(ATGs)).

The IRS also likely uses statistics to look for likely IRS audit red flags with businesses by comparing their margins. As an attorney, one of the first things that I look for when a small business owner approaches me about representing their business in an audit is what their margin percentages are.

Gross Margin Percentage = (Revenue – Cost of Goods Sold) / Revenue

Net Margin Percentage = Net Profit / Revenue

There is not necessarily a magic number for what your margins need to be. Every business is run differently and will have different margin percentages based on their annual revenue and their expenses. However, even though businesses will all vary on their margin percentages, margin percentages for a particular sector among similar businesses will largely be within a certain range. The IRS knows this and IRS audit red flags may be raised for businesses that are outliers, either with margins that are too low or too high. For your own edifice on what traditional margins are for your industry, there are many sources online that will tell you.

Let me show you how margins can work against you on your tax return. Say I own Convenience Store A. I file a tax return indicating that I made a 10% percent profit from the store after my expenses. No problem there. Now let’s say that Convenience Stores B, C, D, E, F, and G all file tax returns showing a 30-35% profit. That is quite a step up from 10% profit. There are several possible explanations here. I could be a bad businessperson. My revenue might be the same as these stores, but perhaps I am not keeping my expenses or my cost of goods sold in check. 

Consequently, I could have the same expenses and show less revenue because of a loss of business. Both of those are perfectly logical explanations. However, if I am not keeping up with my competitors, I am likely not going to stay in business for very long. I could also be skimming cash from the registers and underreporting income (decreasing my revenue) or inflating my cost of goods sold (reducing taxable profit) or inflating my operating expenses (also reducing taxable profit). In contrast, if I start showing 75% profit, I am either the world’s greatest convenience store operator or there is a serious impropriety with my business.

My point is that you operate in the audit danger zone if you are outside the generally accepted range for businesses that are similar to yours. Tax cheaters will often try and bury deductions into other expense categories to not make them stand out or will make sure there is no paper record of them taking money out of the cash register. However, if they go too far outside the lines, it is probable that they will raise some IRS audit red flags and their margins that will eventually catch up to them. 

IRS TAX AUDIT RED FLAGS – PART TEN – THE SELF EMPLOYED

I love the entrepreneurial spirit that many small business owners have and have dedicated my life to helping them solve their tax, legal, and business problems. Why they require my help is that many of them, as great as they are at whatever they do, fail to keep their house in order when it comes to their internal affairs. They do not keep their receipts, do not pay themselves a reasonable salary, fail to maintain accurate records, guess on expense categories, and generally make lots of other mistakes. I love my clients, have come to accept this about them, and work hard to keep their house in order. 

Unfortunately, there is usually a lot of upkeep associated with a small business and many people fail to keep it together. This is no secret among attorneys and tax practitioners, and, unfortunately no secret from the IRS. Unlike a straight W2 employee, small business tax returns are much more complicated and leave a lot of room for error. This error often translates into tax loss for the IRS and, therefore, makes small business owner tax returns a frequent target of IRS review. Statistically, they are just more likely to get popped.

The moral here comes back to one of my favorite borrowed sayings that “an ounce of prevention is worth a pound of cure.” If you own a small business then it really does pay to keep good and accurate records and translate those records into accurate financial statements and tax returns. I know there are a million things to worry about with your small business. Emergencies and minor crises pop up every day and some people simply have too much on their plate to worry about record keeping. 

However, by keeping up with these things or by outsourcing them to someone else, you will save yourself the day that the IRS comes knocking at your door. If I live in Seattle and it is more likely to rain there, I will probably buy an umbrella. If I move to Northern Minnesota, I will probably invest in a good winter coat. Similarly, if I am in the profile of people that may have one of the highest margins of error on their tax returns and are statistically more likely to get audited, it would probably be a good idea to take out some audit insurance in the form of good recordkeeping should that day ever come. I am not saying it will, I am saying just in case.

In conclusion, no one can be 100% certain of what their audit risk is or can fully audit proof their tax return, but prudence is the best way to safeguard yourself. Be mindful of where the dangers are, keep honest and accurate records (especially for major events), and if the IRS does ever come around, you can rest easy and know that you really have nothing to worry about.

 HOW TO PREVENT AN IRS AUDIT

Full disclosure here, the IRS does not reveal the exact criteria that it uses to audit a tax return. However, this closely guarded statistic is not so much of a secret anymore. Not surprisingly, the government uses statistics to analyze tax returns and to determine which taxpayers it selects for IRS audits. Shameless self-promotion alert: I have also written a pretty comprehensive list of the factors that the IRS that are known by tax attorneys as “audit red flags.” However, in this post, I want to discuss perhaps the most important factor in avoiding an IRS audit: essentially making it bulletproof from the scrutiny of the IRS.

Here’s a quick recap about how IRS audits work. All tax returns are processed into a computer, where they are assigned two scores: a DIF score (assessing the potential changes on a tax return [i.e. increased revenue]) and a UDIF score (assessing the potential that there is unreported income on a tax return). Returns with high scores are sent to an IRS reviewer, who manually examines a return to determine its potential for audit. Those that are selected by the reviewer are sent to local field offices where a revenue agent will conduct an IRS audit. Those not selected by the reviewer are tossed back into the pile (so to speak) and are safe from audit.

The fact of the matter is that the IRS can only conduct a certain amount of IRS audits per year, so it selects the tax returns that are most likely to yield revenue or that contain the greatest potential for error for additional review. Think of it from the government’s perspective: why would they devote manpower, time, and limited resources toward auditing a return that is likely not going to yield them additional revenue? Answer: they probably won’t.

So, how does this all relate to you, your tax return and avoiding an IRS audit? Simple. When preparing your return this year, ask yourself this question: DOES MY TAX RETURN MAKE SENSE? Is all my income accounted for and reported correctly? Do the deductions listed on my Schedule A (where you itemize) make sense? Do I have excessive charitable contributions for someone of my income level (especially in comparison to the past three years)? Do my business expenses make sense (are you a plumber that wrote off international travel) and are they likely to be considered ordinary and necessary by the IRS?

Do you see where I am going with this? Most of the tax returns that come across my desk as a tax attorney that have been selected by the IRS for audit have some burning questions that I cannot answer off the bat. They are like the video ads in Starship Troopers that keep asking, “Would you like to know more?” (Yes, I was able to make a Starship Troopers reference in a tax article). If your return comes across my desk and I am left asking questions, then that’s probably the reason your return was selected for an IRS audit (i.e. the manual reviewer had those same questions).

So spend the extra time to make sure that everything on your return makes sense and, if it doesn’t, then the IRS allows you to attach a supplemental statement to return that explains certain items. Little used by tax professionals and individuals preparing their returns, these statements can actually help you avoid an audit by giving you a chance to explain items that may be problematic on the return. 

More than that though, is that a well-written articulate statement written about an item on a tax return sends a message to the reviewer that the person on the other end of this return has the ducks in a row. And if that person is prepared to defend their return, then there is a good chance that auditing that return will lead to no change, and if it leads to no change (hint: the IRS likely does not want to audit it).

So here is the takeaway: if your return makes sense and everything is well explained, then you will likely never encounter the pain of going through an IRS audit (hiring people like me, digging out old records, devoting significant time and expense). My advice here is to take the extra time going over everything to make sure everything on your return is in order. Hire a competent CPA or tax attorney, like this guy, to prepare your return. Go through the motions now and save yourself a lot of trouble later.

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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