Sam Brotman, JD, LLM, MBA July 2, 2020 49 min read

The Complete Guide to IRS Audits

What Is an IRS Audit?

It is every small business owner’s worst nightmare … they have been notified by the IRS that they are going to be audited. IRS audits have a lot of bad connotations, but on a very basic level, an IRS audit is the IRS coming in and checking that your tax return was filed correctly. 

What is the IRS looking for during an audit?  Number one, they are looking for any income that was not reported or income that wasn't reported correctly. And number two, they want to see if any expenses and/or credits were not being accounted for properly or not taken appropriately.

One thing to know about audits that is in your favor, is that the IRS has limited resources. People have visions of this huge fleet of IRS field reps who drop in on unsuspecting business owners, but that is not how it works. Unless the IRS believes it has a good chance of digging up (and collecting) a substantial amount of delinquent taxes, they will leave you alone.

My firm, Brotman Law, specializes in helping small businesses succeed against the IRS. We have a proven track record of representing clients in the areas of audits, IRS collections, sales tax, payroll tax and other related issues. 

This article will explain what an IRS audit is, the types of audits, how taxable income is defined, how your tax return is your “mini-autobiography,” how the IRS determines who gets audited and inconsistencies that wave red flags. I will also answer some FAQs at the end of the article.

Types of Audits

There are three types of audits and vary in degree of severity. First, there is the correspondence audit. That is when the IRS finds a small error on your return and asks you to explain it. Then, there is the office audit where you go into the IRS office for a spot audit and proceed from there; either the situation is rectified or more on to a more in-depth investigation.

 

Lastly, and the one that is the most serious, is the field audit. That is the scenario that most people associate with an audit — when somebody from the IRS shows up at the door of your home or office.

How Does the Audit Proceed?

Generally, the IRS audit process starts with an information document request, which will include items like bank statements, invoices and receipts. The auditor requests information surrounding their examination of whatever tax return is under audit. Usually, IRS audits go back three years. The taxpayer will then gather that information and will meet with the auditor to review it.

Many times, by looking at the auditor’s document request, we can tell why the return got audited. Most audits will focus either on the income side of things or on the deduction side of things. Occasionally, they will focus on both.

It is important that you cooperate with the auditor regarding requests for information. This is not the time to challenge them. If you have established a congenial relationship with the auditor, you might be able to persuade them back down in certain areas; maybe to a shorter time frame or maybe they will overlook that you are missing some receipts.

But, do not press your luck. If you refuse to provide the auditor with the documentation they request, they can always get a summons, then you will wind up in district court. You definitely do not want to be there. The IRS can also issue a summons to get information from a third-party, such as your bank.

The taxpayer or their representative will meet with the auditor and the auditor will go through the substantiation with the taxpayer and/or their representative. At the end of the review, the auditor will make adjustments based on what they feel is owed to the government. This will be presented to the taxpayer as an audit report.

The duration of the audit will depend on what the IRS is looking for. Typically, it should take only one or two meetings. However, if the auditor has to spend a lot of time tracking down documentation, it could take much, much longer.

If your audit drags on for many months or you are having multiple meetings with the auditor, then something is seriously wrong. 

That is why it is important that you control the audit, not the other way around. Keep the auditor focused on the main objective and have all of your information available and in a format that makes the auditor’s job easy. 

If the taxpayer agrees with the audit report, then the audit is over. If the taxpayer or the representative disagrees with the report, they may submit additional documentation or work to clarify things in the audit report.

If the auditor and the taxpayer ultimately cannot agree, then the case goes to appeals where the taxpayer can further challenge the audit. 

Presentation Is Important

A quick tip is that if you want to score major points with the auditor, be organized. We always advise our clients to keep all of their documentation as clean and tight as possible. Do not show up with haphazardly-packed boxes that the auditor has to spend time digging through. If you can put all of your materials in a binder with tabs, all the better. 

 

I always tell clients that their tax return is their abridged autobiography. Well, here is the full story. If you can keep things as straightforward as possible for the auditor, the more likely the chips will fall in your favor.

What Constitutes Taxable Income?

The IRS audit is going to hone in on whether or not you correctly reported your taxable income. Simply stated, taxable income is the combination of income and expenses that determines the amount of taxes you pay. 

Essentially, what the IRS is doing is coming in and just verifying that the information is correct. Like I have mentioned, your tax returns tell a story; it contains a treasure trove of information about you.

It tells whether or not you are married, it tells whether or not you have kids, it tells where you live, it tells where you earn income from, and to some limited degree, what you spend money on.

That is what the government is interested in. When the IRS comes in and audits you, chances are they are auditing you because that story does not match or something does not make sense based on what you are telling the government.

Something Does Not Look Right Here … 

When that story does not match up or when there are additional questions that may yield a result that is favorable to the IRS, they will probably want to audit the return. 

For example, a number of the things that we consider traditional audit red flags are round numbers or increased travel expenses or meals and entertainment deductions. Those items are more likely than not to get picked up by the IRS in an audit.

For example, a taxpayer may have earned a certain level of income over two years and then has a significant reduction in income in the third year. The IRS may want to know why. 

Essentially, the auditor is going through and looking for errors and adjustments that they can make in order to give additional tax to the government. If those errors start to add up or the taxpayer is unable to substantiate the deductions and the income that they took on the return, then the IRS auditor will issue penalties in connection with that.

Another example would be if you earn $30,000 a year and live in Beverly Hills, or perhaps you are a multi-millionaire and live in a low-income neighborhood. That does not make sense and the IRS would want to know why.

Why Me?

There is not much that you can do to reduce your audit risk because the formula for calculating who gets audited and who does not is not common knowledge, but generally speaking, when the IRS chooses to audit the return it means that they are looking to get something back.

If the auditor finds mistakes or if they do not believe that your documentation is properly substantiated on the return, then not only will they assess your tax but they will hit you with additional penalties and interest. In addition, the auditor is often engaged in what we call fishing expedition, which is when they start examining the return line-by-line in terms of looking for more and more errors. 

An auditor who finds errors on a return is more likely to dig and dig and dig and dig until they are satisfied that they found all the errors that could possibly exist on the return.

So, keep that in mind if you are selected for audit, you may not know the reason why.. You may not know why your story is out of sync with the government, but you can at least be reassured that the IRS is not going to undergo an audit unless it has the expectation that you are going to pay more in taxes.

Assume Positive Intent

I would like to believe that most auditors go into the process with good faith. My experience has been more positive than not in this arena. The IRS is like any other organization. There are good people within that organization and there are bad people within that organization. 

Ultimately, the auditor's going to do their job. Good or bad, they are going to go through the audit, they are going to find the mistakes, and they are going to assess how much tax they think is due. The best thing that you can do to mitigate it is to build a plan to make your presentation as mistake-free as possible so that you can get through the audit.

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How Does a Business Get Selected for an IRS Audit?

If you get audited by the IRS, you are probably wondering why. It is a valid concern shared by many small business owners but unfortunately, there is not any easy answer. The IRS audits people for many different reasons, but generally speaking, when the IRS audits an individual or a business, it is expecting to yield additional tax due on a return. 

The IRS has been processing tax returns and auditing people for a very, very long time. It is very good at auditing people and because the government has limited resources, it really focuses on the areas where it thinks it can get the biggest win. The biggest win translates to how much additional tax revenue the IRS can raise through examination. 

At Brotman Law, we have defended all kinds of small business audits and know how to help our clients prepare so they can get through the process with as little disruption and few pain points as possible. We specialize in addressing the tax issues faced by small businesses and are qualified to practice before the IRS.

In this article, I will talk about the IRS process for selecting which taxpayers to audit; including data tests and how concerned you should be if you are selected.

It’s Not Just You … 

The IRS has limited resources. It is trying to maximize those resources to yield as much back to the government as possible and to keep taxpayers in compliance. People get audited for a variety of different reasons, and everybody's tax return, as I like to say, tells a story. A tax return is a wealth of information and gives the IRS plenty of information about your income, your deductions and the way that you live your life.

When that story does not match up, the IRS wants to audit the return. For example, a number of the things that we consider traditional audit red flags — such as round numbers or increased travel expenses or meals and entertainment deductions — are more likely than not to get picked up by the IRS in an audit.

DIF Score

The IRS has developed a statistical body of data points and the relationship that your return has to those data points, dictates how likely you are to get audited.

A taxpayer will file a tax return and that tax return will get scored by two methods. One is called the DIF score and the other is called the UI DIF score. DIF stands for discriminant income function. What the IRS is looking for when it scores returns based on a DIF score is the propensity for error in the taxpayers return. 

For example, if a taxpayer’s claimed expenses are not in line with either their profession or with the level of income that is on the return, or inconsistent with a couple of other factors, then that return will generally receive a high DIF score and be subject to audit. A high DIF score translates to the IRS believing that the return has a higher propensity for error.  

U DIF Score

The U DIF Score is when the IRS is looking at the propensity that the return has a high level of unreported income. The IRS uses those two scores (DIF and U DIF) to select people based on where they fall within a data pool and then they go from there to determine who gets audited. 

This moves on to a manual review and there is a human being who looks through this data and makes decisions. The IRS uses statistics as much as possible to get a pool of returns that feels appropriate for audit, and then selects the "low hanging fruit" —the ones that they think they can get the most money out of.

Should I be Concerned If I Get Audited?

Obviously, if you are being audited by the IRS, you should be concerned, but you do not have to freak out or go into full-blown panic mode. Understand that an audit is a basic check. Keep in mind that due to limited resources, the government cannot audit everybody and is very picky about who it chooses to audit. 

So, the first thing to consider is that if you were selected for an audit, there must be a good reason for it. The IRS sees something in your return that makes them want to ask a question. So, yes, you should be concerned. 

You could assume that either they think that your income is not being reported correctly or that your expenses are not being taken appropriately. The very first questions you need to ask yourself when you receive the audit notice are, “Why am I being selected for audit? What is about my return that makes stand out from all the other people who filed tax returns?”

If you are selected for an audit and you cannot understand why, I would encourage you to reach out to a tax attorney or to another professional to get your return reviewed. Chances are even if you are unaware of why you are being selected for an audit an experienced tax professional will be able to review the return(s) in question and figure out why you were targeted. 

At our firm, we see the same patterns over and over again, so we can probably tell you why you were selected for an audit. Once we have a good idea of the reason, we can help you prepare for the best success of getting through the audit smoothly and minimizing any additional tax liability.

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Should I Represent Myself During an Audit?

If you are going to be audited by the IRS, you might think it is simply a process of pulling some bank statements and invoices and it is a done deal. It does not quite work that way. While you can be applauded for trying to take matters into your own hands, do not get overly-confident.

Even the simplest IRS audits can get very complicated very quickly, and if you are not 100 percent certain of what you are doing, you could wind up in a more precarious situation than you already are. In other words, your business is going to get hit with a debt to the IRS that will include penalties and interest.

At my firm, Brotman Law, many of our small business clients come to us because they have tried to defend an IRS audit on their own and fell flat. A lot of people balk at the idea of paying for a tax professional, be it a tax attorney or CPA, but in the long run, it is a worthwhile investment.

Odds are likely that you could end up paying more to the IRS than you would to an attorney or accountant. We understand the tax nuances of small businesses and have helped many entrepreneurs out of difficult IRS situations.

In this article, we will discuss what can go wrong if you try to defend an audit on your own versus the benefits of working with a seasoned tax professional. We will also talk about the services Brotman Law offers in the area of audit defense and what you can expect to pay. 

Modern Times David vs. Goliath 

Should you represent yourself in an IRS audit? It depends, but not usually. First of all, the mistake that a lot of taxpayers make is they think that they can handle the audit because they think either, A) they are smarter than the auditor or B) the errors on the return are not really that severe. 

The problem with that is, a taxpayer who goes into a situation with an auditor — unless that taxpayer is a tax attorney or a CPA — is probably not going to have the same level of knowledge about how audits work as the auditor.

Even if the taxpayer is familiar with the law, they are generally not familiar with the way that audits work. The risk is that even if the tax loss is minimal, the taxpayer could potentially put themselves into a damaging situation.

For example, if you are not really used to changing tires and you get a flat tire on the road, yes, you could change the tire yourself. There is the possibility that you will do a reasonably good job in changing the tire and then everything will be okay but there is also the propensity that you might make a mistake.

Avoiding Penalties

If you believe that there is a mistake on your return and if that mistake is significant, meaning you owe $5,000 or more in back taxes to the government, then you may want to consider hiring a representative to help you. Once you get into a situation where there is an audit and adjustments are being made, then the penalty conversation comes into play. The more adjustments that are made on the return, the more it increases the likelihood that the auditor is going to penalize the taxpayer.

Due to the circumstances in a lot of the audits, we are not able to make much of an adjustment in terms of the tax due, but where our firm makes a substantial difference is on the penalty portion. Even in situations where we have taxpayers who under-report millions of dollars in income, oftentimes, we have been able to explain that away or to negate criminal penalties or things.

That is a fairly extreme example but generally speaking in an audit, you are at a strategic advantage by hiring a representative who knows what they are doing because we know what to look for. We can help you through the audit process. We can help you minimize the pain that you are going to go through because we know what the auditor will and will not accept.

Save Time and Money

There are monetary savings to working with a representative. There are also time savings because we make the audit process much more efficient. We will move it along quickly because we know the auditors. We know how they think. We know how their interactions are with their manager. We know the process like the back of our hand because we do this all the time. 

A tax attorney will look at this from a cost-benefit perspective. I will not have a taxpayer hire our firm as a representative unless we think that there is value to be provided.
There is no sense in giving us a retainer and us not being able to do anything for you. There needs to be clear value in what we are providing.

If the auditors are coming to your house or coming to your business, you definitely want a representative. A good representative is worth his or her salt in a variety of situations. I would discourage taxpayers generally from representing themselves in audits unless the issue is very simple and you think it can be resolved through a quick explanation.

Can I Just Use My CPA?

We do not recommend that you use the CPA who prepared your taxes to represent you in an audit. Why? Your CPA may be the best CPA in the world and this conversation is not to suggest anything negative about CPAs whom we work with all the time. CPAs generally are not good in audits because they do not defend a lot of them. 

From a CPA perspective, the CPA is compliance-based and focused most of the time on preparing returns and preparing them accurately. 

The reality of the situation is if there are errors on the tax return the CPA prepared, then there is a natural conflict of interest, because either the CPA either did not do their job right and the tax return was prepared incorrectly, or you did not give the CPA enough good information to begin with. 

The problem is not having your CPA represent you; it is that there is a natural conflict of interest between the person who prepared the return and the taxpayer. When you are sending your CPA into a situation like an audit and there is an error on the return, the auditor is going to turn their questions to the CPA. Most people have a hard time throwing themselves under the bus in the middle of an audit.

In certain situations, if the CPA’s error is severe enough, there are actually preparer penalties that they can get hit with for preparing inaccurate returns. Because of that conflict of interest and because of the fact that CPAs do not really defend audits, I do not recommend sending your tax preparer in to represent you.

I think it is best always to have a neutral third-party representative who can save face, either with the taxpayer or the CPA and it makes the process a lot better. From a strategic perspective, it is much better to use an objective representative versus somebody who has an interest in the return in one way or the other.

Why Should I Hire Brotman Law to Represent Me in an IRS Audit?

If you are looking for a tax attorney to represent you in an IRS audit, we encourage you to contact Brotman Law for a consultation. We have a long track record of successfully defending our clients in IRS audits. 

We have a really good measure of technical skill at the firm, can deal with situations that are extremely complex, and can make simple audits go away very quickly. The strategy and the thought and effort that we put into the preparation work tends to yield very positive results for our clients.

In addition, our team has had a lot of experience with the higher levels of the IRS. We have been in the tax court and we have dealt with the IRS appeals office multiple times. As a result of that, we are very comfortable moving through the tax procedure chain and dealing with IRS examination at all levels.

There is a certain strategy to an audit because an audit and a tax return will ultimately tell a story. The question that you have to ask yourself is who is going to tell that story? Is the auditor going to tell the story or are we going to tell that story? 

The good news is that as you get out in front of an audit and put the investment into the preparation, you can usually save yourself a lot of time, money, and headache as well as mitigate any penalties that are associated with the audit.

Now, obviously, that is a case-by-case basis, but we have a long track record of results. We are really good at advocating on our client's behalf and we are really good at getting people out of audits for less liability than they would have going it alone.

How Much Will It Cost to Have Brotman Law Defend Me in an IRS Audit?

How much is it going to cost?  It depends a lot on why the return was selected for audit and the level of complexity around the return. When a prospective client comes to see me with a tax return that is under audit, my immediate questions are about the nature of the return, how it was prepared, and who the auditor is.

A lot of times, because I have experience dealing with a lot of the auditors, I have a good amount of familiarity with what group they are in and who their managers are. Certain groups of auditors tend to go after certain things, such as fraud examination or complex examination that could yield criminal investigative referrals.

If I look at a return and see the name of an auditor in one of those two categories, my level of scrutiny goes up. However, in most cases, auditors are usually pretty straightforward. You gather the documents that are requested. You present them along with the return and as long as there are no errors, you should be in and out pretty seamlessly.

Yes, there is a reason why the return got audited but as long as you have your substantiation and it matches what you have on the return, then you do not have a problem. In those cases, audits can be pretty low-cost. I can have one of our paralegals organize a return in the way that we would like to present it and have one of our senior attorneys or myself just knock it out.

However, more often than not, particularly with field audits, things get a little more complicated. When we are dealing with businesses or we are dealing with partnerships or we are dealing with situations that are not exactly perfect, then a lot of the focus turns to damage control. Damage control can drive costs.

When clients ask me about cost, I tell them two things. Number one, my firm operates on the efficiency principle. I run a small business, I understand the pain that business owners go through. If I were dealing with an audit and hiring a tax attorney, I would want somebody looking out for my best interest.

I built a firm around solving tax problems as efficiently as possible — not just to provide the lowest-cost solution, but to deliver the most value to our clients. When we approach an audit, I am looking to mitigate a client's cost by spreading the cost of their representation across varying levels of staff.

Expect to Pay From $3,500-$10,000 Per Tax Year

From an estimate standpoint, what I would tell you is that most audits average between $3,500 and $10,000 per tax year we are dealing with. That is a big spread and the reason for that spread is because there are a lot of issues that tend to pop up in an audit.

Audits that are more serious are on a higher end. Most people, assuming that we can get them organized and well-prepared, can usually stick to the lower price points. There are a lot of ways that taxpayers can help their own situation and contribute to the work product to make our life easier.

Ultimately even on the lower end, I would recommend that you have a tax attorney to serve as a mouthpiece in an audit because generally the investment that you are going to make is going to yield some result.

The Three Variables That Drive Audits

Audits are driven principally by three things. Number one is decisions. If you are able to make clear and organized decisions on an audit, it will go a long way to cutting down cost. Number two is documents. To the extent that you have documents that are well- organized and presented cleanly, you can reduce your cost.

Number three is bureaucracy. I do not have any control over the bureaucracy that the taxpayer may face. I cannot control the audit assignments, for example. The good news with bureaucracy, particularly with tax professionals, is that we have a course of dealing with the auditors.

If I have not worked with an auditor directly, then I have probably worked with their manager or I have a relationship with that office in some way, shape, or form. Those relationships during the context of the audit are very valuable. An auditor is not going to sandbag the relationship that they have with me and risk that they may see me in future cases.

Yes, we tend to run into the same people over and over again. That helps keep the auditor in check when dealing with a professional versus dealing with a taxpayer. 

Schedule a Consultation

If you have any questions regarding this, come see us for a consultation.

If you want to, I can review your facts specifically. I can review the audit and I can recommend your best course of action. Ultimately, IRS audit defense is a marathon and not a sprint. It is my job not only to defend you in the audit, but to help you conserve resources and allocate those resources appropriately.

If I did not do that, I would not be doing my job. That is the best thing I can tell you in terms of cost and in terms of preparing you for the task of hiring a representative to defend you in an audit.

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I Owe HOW Much? How to Challenge an Audit Report

At long last, you have received your audit report. And … to your dismay … you owe money … a lot of money to the IRS. Not only are there back taxes and interest, but the penalties are insane! So, if you disagree with the amount you owe, do you have any recourse? The answer is … yes.

 

At Brotman Law, we specialize in helping small businesses solve their tax problems and that includes guiding them through the appeals process. The appeals process is complex and needs an experienced hand to help you minimize your tax liability and knock back the penalties.

 

This article will discuss the appeals process, how it works and what you can expect as an outcome.

Working Things Out With the Auditor

At the end of an IRS audit, the auditor issues an audit report, and you have basically two options. You can agree with the audit report and the audit's over. You can disagree with the audit report, and then have the options of working with the auditor to try and resolve the disagreement, or go into the Office of Appeals.

The IRS is tough when it comes to disputed audits. Usually, by the time the auditor has gone through the trouble of drafting and issuing an audit report, they are less likely to change their position. The better avenue is to appeal directly to the auditor's manager. 

This is sort of a gamble depending on the issue and the likelihood of the auditor to get backed by their manager. But, at least with the manager, you may have the option of resolving the audit as agreed versus taking the case into appeals.

Moving Into Appeals

Now with appeals, unlike the state, the auditor is not really involved in the process and you usually get into appeals within a month or two. Once the auditor has issued the report, their part is over. Unless there is additional documentation that gets submitted during appeals, the appeals officer does not have anything to do with the auditor, and neither do you. The decision here is a tactical one. Do you stick around and work things out with the auditor, or do you go into the IRS Office of Appeals?

The answer to that is multifaceted. It depends on the facts, it depends on the circumstances and it depends on how far apart you and the auditor are. The important thing is that you make a strategic decision with respect to that issue and try to reduce your liability as much as possible.

What Is the Appeals Process?

IRS appeals are supposed to be an independent body that is neutral and that is designed to resolve disputes with the IRS prior to going to tax court. In reality, appeals is staffed with former auditors and former collection agents. In our firm, we have had a lot of positive experiences in the course of appeals. I like dealing with appeals and I find that the appeals process is generally fair and impartial and usually yields a pretty good result depending on the circumstances. 

During the day of the appeals conference, you and the appeals officer or perhaps your representative and the appeals officer will meet, go through the issues in the audit, and try to reach a resolution. 

The appeals officer will allow you to submit additional documentation, but anything that was not submitted in the audit is going to have to go to the auditor for review. The appeals officer is not the auditor. 

The appeals officer is not going to open up the audit; their goal is to try to reach a settlement to avoid the case going into tax court. That does not mean the appeals officer is going to back down, but it does mean they are willing to weigh the risks of litigation and can potentially move the needle in your favor. 

In our experience, IRS appeals is a great way to resolve tax issues, even when there is a disagreement after the audit.

The Docket Appeal

The other way to get a new appeal if you disagree with the audit report, is by filing a docket appeal, which is when you wait for the audit result to finalize and elect not to go into appeals. Then, the IRS will send you what they call a notice of deficiency stating, "You did not elect to go into appeals. We are going to assess you based on your audit." 

Based on that notice of deficiency, you could file a tax court petition and go into tax court. Prior to going into tax court, so you do not have to litigate, you can go into appeals that way.

In our experience, we find that process to be a little bit more helpful because once you file a tax court petition and enter into appeals that way, the district council is involved. District council is more apt to settle the case. It is to the IRS's advantage to resolve your audit protest before moving into litigation.

Seek Experienced Representation

Just keep in mind, the auditor does not have the final word on this. The key is to make sure that you are prepared and have all of your records in order — neatly organized and easy to follow. Keep your audience in mind, which will be appeals officers and possibly, tax court. 

By the way, if you do decide to appeal your audit, make sure you hire an attorney who has experience dealing with the tax court so that you can be prepared to go the distance if you absolutely have to.

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Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

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