Like all creditors, the government must contend with debtor inability to pay. They must also decide how to settle accounts when reasonable minds might differ on the amount owed. Businesses resolve their account receivable challenges with the standard procedure of negotiation and compromise. The government also acknowledges the utility of this process; it promotes an equitable and efficient result for both the IRS and the taxpayer alike. Accordingly, the government has authorized the IRS to negotiate and settle taxpayer liability through the program of Offer in Compromise.
The IRS will agree to an Offer in Compromise when:
- There is a doubt that the IRS can collect the entire amount (doubt as to collectability offers);
- There is a genuine doubt as to the accuracy of the amount owed (doubt as to liability offers); or
- It fosters effective tax administration
The objective of the Offer and Compromise is to reach a settlement that is in the best interest of both the government and the taxpayer. The taxpayer is given a fresh start, and an opportunity to voluntarily comply with any future obligations. For the IRS, compromise presents an alternative to declaring the amount uncollectible or to otherwise engage in a lengthy installment agreement.
Here are the goals that the IRS seeks to accomplish when they accept an offer in Compromise:
- Collect what can be practicably collected at the earliest possible time and at the least cost to the government;
- Reach a settlement in the best interest of both the government and the individual taxpayer;
- Afford the taxpayer a fresh start so that they may voluntarily comply with all future tax requirements; and
- Attain revenue that may not be collected by any other means.
IRM 126.96.36.199 (12-26-19)
Extent and Finality of an Offer-in-Compromise
An accepted offer applies to all tax, penalties, and interest for the years or periods which are included in the offer. Once the IRS accepts your offer, it is settled for good. Unless there was falsification of information or documents; concealment of assets or your ability to pay; or some other important factual misunderstanding, the case cannot be reopened. Reg. §301.7122-1(e)(5); IRM 188.8.131.52.1 (12-26-19).
As indicated above, the IRS is only authorized to agree to an offer only if at least one of the following basis for compromise exists: doubt as to collectability, doubt as to liability, or the compromise fosters effective tax administration. The latter of which is only considered under exceptional circumstances, or if the taxpayer would otherwise become exposed to economic hardship. Lastly, the offer can only be accepted if the IRS has assessed the tax liability; although this does not preclude the IRS from considering an offer in compromise prior to assessment. Reg. §301.7122-1(a).
Doubt as to Liability
A doubt as to liability refers to a case where there is a legitimate dispute about the amount or existence of a tax liability under the law. Consequently, a doubt as to liability would not exist if the liability has been affirmed by a final judgement. Otherwise, there must be sufficient evidence provided to the IRS which supports a determination that the amount assessed warrants doubt as to liability. The minimum offer the IRS will accept varies under the circumstances; depending on the level of doubt raised.
Doubt as to Collectability
This category deals with an inability to pay. Naturally, an inability to pay the assessed tax liability raises doubt as to collectability. In these cases, the IRS will accept an offer which reflects reasonable collection potential (RCP). The IRS determines RCP by assessing whether the taxpayer’s assets and income (present and future) will amount to less than the amount owed. In this calculation, the IRS will also set aside the amount needed by the taxpayer to pay basic living expenses.
In their review of the taxpayer’s assets, the IRS considers whether there are assets available to the taxpayer by transfer; but are out of the government’s reach or otherwise insulated from collection due to state laws on marital property. In considering the adequacy an offer, the IRS generally only considers the assets and income of a non-liable spouse under circumstances where that property is vulnerable to IRS collection anyway.
These circumstances include:
- Property which was conveyed to defraud creditors; or
- Property which is governed by state laws that allow collection of the taxpayer’s liability from the assets and income of the non-liable spouse (e.g., states with community property laws)
Under these circumstances, the assets and income of both the taxpayer and the non-liable spouse will be factored into the offer decision. The assets and income will be considered up to the extent that the taxpayer and non-liable spouse can demonstrate that any further amount would have a material and adverse effect on the standard living on them and their dependents.
The IRS allows for a certain amount that the taxpayer must retain for basic living expenses. This amount is based on two things:
- the National and Local Living expense standards; and
- an evaluation of the specific facts and circumstances of the taxpayer.
Effective Tax Administration
Under circumstances where grounds do not exist to justify compromise on the basis of doubt as to liability or doubt as to collectability, the IRS may accept an offer to compromise in order to support effective tax administration when:
- The entire liability can be collected, but would create an economic hardship; or
- Exceptional circumstances exist which cause a detriment to the taxpayer’s ability to voluntarily comply, and compromise would not allow taxpayers to undermine compliance with tax laws
When contemplating an offer in compromise with a basis in effective tax administration, please note that the IRS will consider all of the facts and circumstances of the case; this includes the taxpayer’s complete record of compliance with tax laws.
The agency considers the following factors when evaluating economic hardship:
- The taxpayer is incapable of earning a living because of a long-term illness, medical condition, or disability, and it is reasonably foreseeable that taxpayer's financial resources will be exhausted providing for care and support during the course of the condition;
- Although taxpayer has certain monthly income, that income is exhausted each month in providing for the care of dependents with no other means of support; and
- Although taxpayer has certain assets, the taxpayer is unable to borrow against the equity in those assets and liquidation of those assets to pay outstanding tax liabilities would render the taxpayer unable to meet basic living expenses.
Examples. Here are a few hypotheticals to help illustrate what circumstances would constitute an economic hardship:
The taxpayer has assets sufficient to satisfy the tax liability. The taxpayer provides full time care and assistance to her dependent child, who has a serious long-term illness. It is expected that the taxpayer will need to use the equity in his assets to provide for adequate basic living expenses and medical care for his child. The taxpayer's overall compliance history does not weigh against compromise.
Liquidation of Assets
The taxpayer is retired and his only income is from a pension. The taxpayer's only asset is a retirement account, and the funds in the account are sufficient to satisfy the liability. Liquidation of the retirement account would leave the taxpayer without an adequate means to provide for basic living expenses. The taxpayer's overall compliance history does not weigh against compromise.
Disability and Fixed Income
The taxpayer is disabled and lives on a fixed income that will not, after allowance of basic living expenses, permit full payment of his liability under an installment agreement. The taxpayer also owns a modest house that has been specially equipped to accommodate his disability. The taxpayer's equity in the house is sufficient to permit payment of the liability he owes. However, because of his disability and limited earning potential, the taxpayer is unable to obtain a mortgage or otherwise borrow against this equity. In addition, because the taxpayer's home has been specially equipped to accommodate his disability, forced sale of the taxpayer's residence would create severe adverse consequences for the taxpayer. The taxpayer's overall compliance history does not weigh against compromise.
The IRS considers the following factors to decide whether a compromise would undermine taxpayer compliance with tax laws:
- The taxpayer’s history of compliance with filing and payment obligations required by the tax code;
- Taxpayer’s deliberate tax avoidance efforts; and
- Whether the taxpayer has encouraged others to refuse compliance with the tax laws.
Examples. For a clearer understanding of how taxpayer compliance factors into exceptional circumstances, take a look at these two examples:
In October of 1986, the taxpayer developed a serious illness that resulted in almost continuous hospitalizations for a number of years. The taxpayer's medical condition was such that during this period the taxpayer was unable to manage any of his financial affairs. The taxpayer has not filed tax returns since that time. The taxpayer's health has now improved and he has promptly begun to attend to his tax affairs. He discovers that the IRS prepared a substitute for return for the 1986 tax year on the basis of information returns it had received and had assessed a tax deficiency. When the taxpayer discovered the liability, with penalties and interest, the tax bill is more than three times the original tax liability. The taxpayer's overall compliance history does not weigh against compromise.
The taxpayer is a salaried sales manager at a department store who has been able to place $2,000 in a tax-deductible IRA account for each of the last two years. The taxpayer learns that he can earn a higher rate of interest on his IRA savings by moving those savings from a money management account to a certificate of deposit at a different financial institution. Prior to transferring his savings, the taxpayer submits an e-mail inquiry to the IRS at its Web Page, requesting information about the steps he must take to preserve the tax benefits he has enjoyed and to avoid penalties. The IRS responds in an answering e-mail that the taxpayer may withdraw his IRA savings from his neighborhood bank, but he must redeposit those savings in a new IRA account within 90 days. The taxpayer withdraws the funds and redeposits them in a new IRA account 63 days later. Upon audit, the taxpayer learns that he has been misinformed about the required rollover period and that he is liable for additional taxes, penalties and additions to tax for not having redeposited the amount within 60 days. Had it not been for the erroneous advice that is reflected in the taxpayer's retained copy of the IRS e-mail response to his inquiry, the taxpayer would have redeposited the amount within the required 60-day period. The taxpayer's overall compliance history does not weigh against compromise.
Offer-in-Compromise: The Process for Making an Offer
In most cases, the IRS will suggest the offer in compromise option with a delinquent taxpayer when:
- Criminal proceedings are not contemplated; and
- An analysis of the taxpayer’s assets, liabilities, income, and expenses shows that payment of the entire tax liability is unlikely (this second factor does not apply to doubt as to liability cases).
Once the IRS has determined these two things, the IRS will bring the offer-in-compromise option to the taxpayer’s attention. The representative will discuss the benefits of an accepted offer and which forms must be filled out. The IRS directs its employees to provide the taxpayer with:
- Form 656 (Offer in Compromise); and
- Publications 1 and 594.
You may also find additional guidance for Form 656 if you take a look at Form 656-B, also known as the Offer in Compromise Booklet.
Other important information which should be considered when contemplating an Offer-in-Compromise submission include the following:
- Taxes can not abated or tax liens released until the amount offered is paid in entirety;
- The taxpayer must remain compliant with filing and payment requirements for five years after the IRS accepts the offer or until the amount offered is paid off, whichever is longer
- All refunds and credits available to the taxpayer before or during the year that the offer is accepted are waived
The IRS will not advise the taxpayer on the amount which might be offered; it is up to the taxpayer to initiate the first proposal. That said, the IRS warns taxpayers that the offer must be made in good faith. The IRS discourages the taxpayer from using the offer in compromise process as a fishing expedition or as a tactic to delay payment. As a show of good faith, the taxpayer may submit some amount of payment with the completed Form 656. Once received, the IRS will treat this amount as a deposit. This amount will only apply it to the liability once the offer has been accepted; unless the taxpayer gives written authorization to apply the payment irrespective of whether the offer is accepted.
Offer Terms and Partial Payment Requirement
A taxpayer may be eligible to offer one of the following payment options:
- Payment in Lump-Sum; or
- Payment in Installments.
While the offer is considered by the IRS, the taxpayer is required to make partial payments. §7122(c). The amount of partial payment required depends on the type of offer proposed by the taxpayer.
For the purpose of an Offer-in-Compromise, a lump-sum cash offer includes single payments as well as amounts paid in five or fewer installments within a five month period. If the taxpayer chooses to make a lump-sum offer, 20% of the offer must be submitted along with the application.
Alternatively, a taxpayer may elect an offer with payments made in installments. This is also referred to as a periodic payment offer. An installment plan refers to all offers where the payment schedule exceeds five monthly payments. However, all installment offers that the IRS accepts must be paid back within 24 months of the offer acceptance.
If the taxpayer selects an installment plan offer, the first installment payment is also required to be sent in with the offer. It is very important that the taxpayer complies with the terms of the self-imposed payment plan while the offer is under consideration. Otherwise, the IRS will treat the offer as withdrawn. §7122(c)(1)(B).
In either case, the advance payment will be applied against the offer if it is accepted, however it will not be refunded should the offer be rejected. Non-compliance with the above-stated requirements for either option will lead to a determination that the offer cannot be processed. Subsequently, the offer will be returned to the taxpayer and the IRS will be permitted to pursue immediate enforcement action. §7122(d)(3)(C).
Certain taxpayer’s may not be required to submit partial payment. These individuals include:
- Low-Income Taxpayers; and
- Taxpayers who have submitted offers based on doubt as to liability
Low-income earners are completely exempt from the partial payment requirement. For Offer-in-Compromise purposes, a low-income taxpayer is an individual with an adjusted gross income that is less than 250% of the applicable poverty line. §7122(c)(3).
With regard to taxpayers who have submitted an offer based on doubt as to liability, the partial payment requirement is only available to those who have submitted solely on this ground. These are optional waivers which are left to the discretion of the IRS. §7122(c)(2)(c), (d)(3)
Offers in Compromise Before Bankruptcy
This section only applies to those who are considering bankruptcy. If the taxpayer states that they will file a petition for bankruptcy during the offer investigation, the IRS must determine the likelihood that bankruptcy will be filed and what impact the possible filing would have on their ability to collect. In deciding whether the offer is reasonable, the IRS will consider whether the taxpayer has previously engaged in a bankruptcy proceeding or if any tax liabilities can possibly be discharged. Unless there are special circumstances which exist, the IRS will not accept less than the amount they anticipate recovering from a Chapter 7 bankruptcy.
Instructions for Form 656
The taxpayer submits an offer-in-compromise on Form 656 or an acceptable printed photocopy of the form. The taxpayer must provide his:
- full name
- social security or employee identification number
If the offer is for a joint liability, both taxpayer’s name and numbers must be added to Form 656. If more than one taxpayer jointly owes the same liability, they may (but are not required to) submit one form. However, those who owe both joint and individual liabilities must submit two offers. Taxpayers with substantial business interests may also be require to submit a Form 433-B for the business. IRM 184.108.40.206 (05-25-18).
Who Can File an Offer
For the majority of cases, either the taxpayer or a designated representative can file the offer in compromise. See CCA 200115031. However, in cases involving decedents or their estates, an authorized executor must file the offer along with evidence of their authority to do so. With regard to an offer-in-compromise filed for an affiliated group which files a consolidated return, any offer executed in these cases are considered to have been executed by each group member. Lastly, it is usually the person who is authorized to file a refund claim on behalf of the taxpayer who would also have the authority to file an offer-in-compromise for the taxpayer.
Where to Submit Your Offer
Depending on the state of the taxpayer’s residence, the taxpayer will submit to one of the following two process centers listed below.
If you reside in:
AZ, CA, CO, HI, ID, KY, MS, NM, NV, OK, OR, TN, TX, UT, WA
Mail your application to:
Memphis IRS Center COIC Unit P.O. Box 30803, AMC Memphis, TN 38130-0803 1-844-398-5025
If you reside in:
AK, AL, AR, CT, DC, DE, FL, GA, IA, IL, IN, KS, LA, MA, MD, ME, MI, MN, MO, MT, NC, ND, NE, NH, NJ, NY, OH, PA, PR, RI, SC, SD, VA, VT, WI, WV, WY, or a foreign address
Mail your application to:
Brookhaven IRS Center COIC Unit P.O. Box 9007
Holtsville, NY 11742-9007 1-844-805-4980
As briefly touched on earlier, Form 656 requires that the taxpayer indicate all unpaid taxes that the compromise offer should apply to. The taxpayer must check off the square according to the correct populated description which indicates the type of tax and the period or year that the liability arose. If you have mistakenly left out an outstanding liability, you can still make an amendment to include it. However, the amendment must be made before the IRS accepts the offer.
Amount of the Offer
The total amount that the taxpayer would like to offer must be indicated on Form 656. This is the entire amount that the taxpayer offers in settlement of his tax liability. If the taxpayer would like an amount submitted to be paid either on or sometime after notice of acceptance, the taxpayer must clearly indicate the following:
- the amount of any deposit;
- the amount of any prior deposit which is to be applied to the offer; and
- the amount of any subsequent payment;
- and the date on which each payment should be paid
The amount sent in with the offer to cover the initial payment and application fee cannot be labeled a “deposit.” This is significant because this will result in a return of the offer without a right to appeal. The amount must appropriately indicate on Form 656 that it is to be used toward the taxpayer’s liability. The amount offered cannot include refunds owed to the taxpayer, an amount previously paid, or funds attached by a Notice of Levy. IRM 220.127.116.11.3 (03-16-10)
As mentioned above, the taxpayer must submit a partial payments to the IRS while their offer-in-compromise is considered. §7122(c). Here are the partial amounts depending on the offer term selected:
- 20% of the amount proposed for lump-sum offers
- The first installment for those who have made installment offers
For more information on this, please see the Terms and Partial Payment section above.
Terms of Payment
The taxpayer must select the terms of the offer proposal on Form 656. As previously stated, there are two payment options to choose from: a lump-some cash offer or a periodic payment offer. Please see the section above titled Terms and Partial Payments for more information.
Basis for the Offer
The taxpayer must indicate on Form 656 the facts and reasons why the IRS should accept the offer. As discussed in detail above, the facts and circumstances must convince the IRS that one of the following circumstances apply to your case:
- Existence of a Doubt as to Liability
- Existence of a Doubt as to Collectability; or
- Effective Tax Administration
If the taxpayer would like to make an offer with a basis in doubt as to collectability or effective tax administration must also submit either of the following, depending on their applicability to the taxpayer:
- Form 433-A Financial Statement for Individuals; or
- Form 433-B Collection Information Statement for Businesses.
Be sure to check the national and local schedules that indicate the allowances that the IRS provides taxpayers. Again, the IRS also considers the facts and circumstances of the particular case.
The taxpayer must also submit the application fee along with the offer, otherwise it will not be processed. For all offers submitted after April 27, 2020, the user fee is $205. The IRS will take this fee into consideration when determining whether or not the offer is adequate. If the taxpayer attaches a partial payment with the offer, the fee will be applied toward the tax liability. §7122(c)
Similar to the partial payment exception, this fee is inapplicable to offers made by certain low-income earners and individuals who submit their offer based solely on doubt as to liability. §7122(c)(3). For guidelines on who might qualify for the low-income exception, please see the section above labeled Terms and Partial Payments.
The signature(s) required for Form 656 will vary with the parties involved:
- Corporations–– the corporation’s name should be printed on the first line and the authorized officer’s signature and title should be written on the second line
- Spouses with joint liability–– both spouses are required to sign
- Decedent’s Estate–– a qualified fiduciary of the estate may submit the offer
Implications of Form 656
Waiver of Taxpayer’s Claims for Refunds or Credits
When a taxpayer makes an offer-in-compromise, he essentially agrees to waive any refunds or credits he would receive as part of the settlement. Included in this waiver is the taxpayer’s right to any overpayments of tax, interest and penalties from previous periods up to the end of the year that the offer is accepted in.
Forfeiture of Option to File a Joint Return
A taxpayer who is married and files a separate return forfeits the option of filing a joint return with his spouse once the IRS has agreed to his compromise offer.
Under Bankruptcy law, some tax liabilities are dischargeable while others are not. If a tax liability was assessed within 240 days before the date on which the bankruptcy petition is filed, the liability is non-dischargeable. The 240 days is extended even further if the taxpayer makes an offer-in-compromise before filing a bankruptcy petition. The extension makes any tax assessed within 270 days plus the time during which the offer is pending, non-dischargeable. 11 U.S.C. §507(a)(8) As a result, if the taxpayer is considering bankruptcy they should first take this into consideration.
Deemed Acceptance Rule
As long as a taxpayer submits partial payment with the offer, the IRS will be deemed to have accepted the offer if they do not reject it before the date that is 24 months after the date of the offer’s submission. However, this 24-month rule is suspended for any period in which the liability is litigated in court.
Receipt of the Offer
Once the processing center has received the taxpayer’s offer-in-compromise, the IRS will determine whether or not the offer can be processed. An offer may be deemed not processible under one or more of the following circumstances:
- The taxpayer is in bankruptcy;
- The taxpayer did not submit the application fee or initial payment with the offer;
- The liability was previously referred to the Department of Justice;
- The offer relates to liabilities that have not been assessed;
- The collection statute expiration date has expired for the liabilities the taxpayer seeks to compromise;
- The taxpayer has outstanding tax returns; or
- There is no outstanding tax liability.
IRM 18.104.22.168.1 (05-25-18); SBSE-05-0217-0020 (Feb. 23, 2017), revising SBSE-0500416-0015 (Apr. 13, 2016)
Furthermore, an offer-in-compromise must be perfected and also cannot be processed by the IRS if:
- Form 656 is missing a signature
- Balance of any TIPRA shortfall is due at submission of the offer;
- The amount offered is left blank or is zero (unless there are terms present);
- Form 433-A and/or 433-B(OIC) are not entirely and accurately completed;
- Requesting required estimated tax payments from self-employed taxpayers;
- Requesting Federal Tax Deposit 9FTD) payments when appropriate;
- There is a missing signature on a tax return that has been sent with the offer.
IRM 22.214.171.124 (02-09-18) See Rev. Proc. 2003-71, 2003-36 I.R.B. 517, §§4, 5.01.
Withholding of Collection
After the IRS has received the offer-in-compromise, they will generally stop collection activity in most instances. However, an offer-in-compromise does not guarantee that collection efforts will be stopped. The IRS may proceed with collection enforcement if it decides that the offer has not been made in good faith. This may happen in instances where the offer is seen as frivolous or an effort to delay. Reg. §301.7122-1(g)(1)-§301.7122-1(g)(1)(4); IRM 126.96.36.199 (12-26-19); IRS Policy Statement 5-97, IRM 188.8.131.52.16 (7-10-59). Additionally, the IRS may levy to collect liability during an offer-in-compromise while evaluating the offer if they determine that the liability amount is in jeopardy. Reg. §301.7122-1(g)(3)
A decision on whether or not the offer will be processed is made as soon as possible. For offers submitted with a payment, a decision must be made on processability within 24 hours. Case building is completed for all offers within 16 calendar days. If the IRS finds that the offer is eligible to be processed, but has not been perfected, the IRS may reach out to the taxpayer in order to request the missing information needed. Otherwise, the offer will be returned without any further correspondence. IRM 184.108.40.206 et seq. (02-09-18.
Review of the Offer
As you might recall the IRS determines RCP by assessing whether the taxpayer’s assets and income (present and future) will amount to less than the amount owed. Therefore for a successful offer, the taxpayer must offer an amount that is equal to the realizable equity in assets plus the value of future ability to pay
In order to decide whether the taxpayer offer is adequate for doubt as to collectability cases, the IRS must make a determination on the value of the taxpayer’s assets. The IRS determines a quick sale value for the assets under consideration. A quick sale value refers to the amount of money that the seller can expect when they must sell an asset quickly due to financial constraints. Accordingly, the quick sale value will be less than the fair market value.
As a general rule of thumb, the IRS directs it’s employees to use 80% of the fair market value to determine the quick sale value. Of course, this is just a general rule and may be modified depending on the asset. Additionally, in the case that an asset is sold the IRS will verify and use the actual sale price instead in their calculation.
In their evaluation of future income, the IRS will consider the following factors applicable to the taxpayer:
- Profession or trade
- Age and Experience
- Marital Status
- Past and Present Income
IRM 220.127.116.11 (03-23-18)
The IRS will also consider whether there is a chance that the taxpayer’s income will increase, allowing him to pay the tax liability. IRM 18.104.22.168 (9-30-13)
Negotiating an Acceptable Offer
The IRS examiner will carry out an investigation of the taxpayer’s assets and income to make a determination on whether the amount offered in compromise accurately reflects RCP (reasonable collection potential). Specifically, the examiner will investigate the following assets:
- Cash on hand, including analysis of checking and saving accounts (IRM 22.214.171.124 (03-23-18));
- Value of stocks and securities of closely held entities (IRM 126.96.36.199 (03-23-18));
- Value of Life Insurance Policies (IRM 188.8.131.52 (03-23-18));
- Pension and profit-sharing plans (IRM 184.108.40.206 (03-23-18));
- The value of taxpayer’s furniture, fixture, and personal effects (IRM 220.127.116.11 (03-23-18));
- Equity in motor vehicles, airplanes, and boats (IRM 5.8.12 (03-23-18));
- Receivables, machinery, and equipment (IRM 18.104.22.168 (03-23-18)); IRM 22.214.171.124 (10-22-10));
- The value of all real estate––unless held by the taxpayer and a non-liable spouse as tenants by entirety, in which case the IRS includes 50% of the property’s equity (IRM 126.96.36.199 (03-23-18))
- The value of a business as a going concern (IRM(IRM 188.8.131.52 (03-23-18)).
Finality of the Agreement
An offer in compromise is only considered accepted once the taxpayer has been notified of the acceptance by the IRS in writing. Acceptance of an offer-in-compromise settles all liability included in the offer for good. Reg. §301.7122-1(e)(5)