What Do I Do If There Is a Serious Error on My Return and I Get Audited?

So the first thing that you do is if there's a serious error on the return you need to get an attorney, not a CPA, not a tax preparer, not your brother, you need an attorney. The reason you need an attorney is a serious error on the return carries potential criminal liability and/or at least what we call a civil fraud penalty so you need an attorney to be able to communicate the full extent of the error and you need an attorney because an attorney's communication is protected under attorney-client privilege. So you don't have that same relationship with your CPA or with another tax preparer. Number two is once you identify the error, determine whether or not the auditor is going to catch it. So if the error is fairly obvious, then you're better off if admitting it to the auditor and avoiding the willfulness penalties or avoiding the impression that there's any fraud. So a lot of the times when we have significant underreporting on a tax return, we'll have a client who left off several hundred thousand dollars in income in a particular year who will come out at the beginning of the audit and will state that we have we have discovered an error. We will state that

we accept the responsibility for it and that our focus is getting to the correct amount of tax due. Paying that tax and moving on by doing that, by accepting responsibility, by acknowledging the error and by moving on, the auditor is less likely to penalize you 40-75% of the amount and they're more likely to be lenient. Why? Because you come out and make their job easier. You know essentially walking into an audit, particularly in one that has a serious error, to do the work for the auditor. So the auditor only has to just check our work and rubber-stamp it. Remember an IRS audit is simply a check of the taxes so if we go through and we ferret out all those large errors, we hand it on to the auditor on a silver platter and the all the auditor has to do is sign off on it. Then they're less likely to try and penalize the client because we've taken a step to make things more efficient for the government. It doesn't eliminate the conduct but it helps to minimize it so if you've got a serious error on the tax return, consult with an attorney and then develop a strategy for how you're gonna present to the auditor. If you are going to present to the auditor and then go from there, then oftentimes having an attorney or somebody knowledgeable of the tax procedure and the way audits work will help guide you through that issue and get you out of there with as little liability as possible.


Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law