Episode 48: Fear The IRS

Announcer:                  

 

This is the WealthAbility® Show with Tom Wheelwright, way more money, way less taxes.

 

Tom Wheelwright:       

Welcome to the WealthAbility® Show where we're always discovering how to make way more money, and pay way less taxes. Hi, this is Tom Wheelwright your host, founder and CEO of WealthAbility®. I've said for a long time that you should never have to be afraid of the IRS so long as you have a good tax advisor on your side. I am telling you today something that I've never said before. I think today you should be terrified of the IRS. The changes that are going on at the IRS are so massive, and under-reported by the media that you should be absolutely frightened by the prospect of an IRS audit.

 

Tom Wheelwright:       

Today, we're going to talk about what's going on at the IRS, and how do you sleep at night? How do you possibly sleep at night in an environment, a culture of the IRS, where literally it's like instead of having an IRS auditor be nasty to you, or upset with you, I don't think that's going to happen again. Instead, what they're going to do is they're going to be really nice, and very businesslike, and just as they stab you in the heart and watch you bleed, and they will just be smiling pleasantly while you bleed out. We have two things going on at the IRS right now.

 

Tom Wheelwright:       

The first is they have new money for technology, and that technology allows them to capture information, and data, and make assumptions that they couldn't before. Let me give you an example of that, not in the IRS, but with the state of New York. New York has a lottery like most states do, and of course, that lottery is a state lottery, so they get data from the lottery all the time. Let's say that you own a convenience store in Brooklyn, and you sell a certain number of tickets, and a certain type of tickets. The analysis of that data is such because New York's already using artificial intelligence to learn from data that New York can interpolate from that data of tickets sold, lottery tickets sold, how much money should have been spent at your store.

 

Tom Wheelwright:       

And, they now can send you a notice saying, “Based on your lottery ticket sales, you should have reported X amount of dollars for sales tax. You only reported Y amount of dollars for sales tax, and so, therefore, you owe us the difference.” And then, you have to prove that they're wrong. You have to prove that they're wrong. That is the big difference right now. Remember, under the tax law, all income is taxable unless the tax law says it isn't, and no expenses are deductible unless the tax law says they are. It's presumed that all of your income is taxable, and that's true for sales tax, income tax, any kind of tax based on sales and income. Deductions, expenses are presumed not to be deductible, which means you are guilty until you prove yourself innocent.

 

Tom Wheelwright:       

Well, historically that was just not that a big deal. Everybody knows not that many people are being audited, they don't have that many auditors in place, and they haven't been well trained recently. The budget's not been there, and then when the auditors do come in they're doing their best, but they're really just saying, “Okay, well, we want to make sure that you're substantially compliant.” Kind of my indication as well, if you're 80% compliance with the rules, and you do have business expenses for example, and you can justify that their business expenses, you're not spending it on the spa, and stuff like that, you're not trying to deduct those types of things. You're being clean, and you have 80% of the documentation that you're okay, and that's been my experience in previous audits.

 

Tom Wheelwright:       

That is not going to be the case going forward. What's happening is, first of all, technology is such that they're going to be able to track your expenses. Remember, under Obamacare, the government has the right to look at your bank account. If you take technology, and you take a combination of blockchain, and AI technology that we've talked about on the show before, then what the government can do is they can gather statistics, and they can look at your situation, and say, “Okay, you had this much money come in to your bank account. Statistics would tell us that of that money that came in, because we know that some of it is transfers from other bank accounts. You should have reported X number of dollars of income, and you only reported Y dollars as your income, so we're assessing you a tax on the difference, and you have to prove otherwise.”

 

Tom Wheelwright:       

They don't need an auditor to do that, they don't need somebody to come out into your home, or your business to do that. They are going to be able to do that with technology, and just sending you a letter. Now, you go, “Okay, but what if I say no, I'm not going to pay that?” Well, they have the opportunity to put a lien on your bank accounts, and your possessions, and let me tell you, I had the unfortunate experience of wrongfully having the IRS put a lien against me, and this was years ago, and it was based on payroll taxes, but it was completely incorrect. The IRS was wrong. I had done it directly right, and they put a lien. It took me 10 years to get that lien removed, and in the meantime, I have a lien from the IRS showing on my credit report.

 

Tom Wheelwright:       

I have a lean from the IRS showing when I go to buy a new home, or a new car, so it affected the amount of interest I had to pay, and this was something that this was just a mistake. Imagine when they now have the power to pull this data, and they're saying, “You owe this money.” Now, what are you going to do? Now, there's going to be procedures for appeal, you're going to go hire a tax advisor, and you're going to appeal this, and you're going to spend time at the IRS, or your advisor's going to spend time at the IRS, way better by the way. They're going to be way much better suited for this, and they're going to sit down, and they're going to have to prove all of your expenses, and they're going to have to prove your income.

 

Tom Wheelwright:       

As it is right now, when an auditor comes, if you get what we call a field audit from the IRS, so remember there are three types of audits. There's a correspondence audit, which we're getting more, and more, and more of, because of technology. There's an office audit, which is where you or your advisor goes to the IRS office. Those are for little things like, they justify your charitable contributions, things like that, and then, there's field audits. That's the full blown audit. I've handled all types of audits before. The audits that we think of when we think of an IRS audit is the field audit. When they come, first of all, of course we've talked about this before. You're going to have them only talk to your advisor, and you're not even going to meet with them.

 

Tom Wheelwright:       

Please do not ever, ever, ever talk to the IRS yourself. That is absolutely a mistake, because you're going to say something that will just raise red flags for them, and cause them to want to audit more, because you don't understand that's not your expertise, is understanding the process, and how to speak to the IRS. That's my expertise, so hire me, hire one of my colleagues, and we'll go in, and talk to you, and we'll handle the IRS audit, but here's what's going to happen. They're going to come probably to my office, not yours, and they're going to sit down, and they already do this. If they come, they're going to say, “I want to see all of your bank statements.” The taxpayer's bank statements.

 

Tom Wheelwright:       

And, you show the bank statements and they want you to prove that all that income, everything, all of the money that came into your bank account is not taxable. You have to prove that it's not 100% taxable. Well, remember, you're making transfers between accounts, especially, if you're an entrepreneur investor, you're putting money back and forth between bank accounts on a fairly regular basis. You might have distributions, for example. Let's take me. I have an accounting firm, and I'm a partner in my accounting firm, and I get distributions from that accounting firm. Well, those distributions aren't taxable. The income on the partnership return is taxable. They're two different numbers.

 

Tom Wheelwright:       

Well. Let's say for example we want to go out, and borrow money and let's say we were to distribute that money. That borrowed money that we distribute is not taxable, but the IRS is going to say, “Prove that it's not taxable.” That's [inaudible 00:09:52] going to your expenses which we're going to talk about in just a minute, but they can go to your expense, and they will, and they absolutely will know. If the IRS comes knocking, you have to prove A, that those expenses are business expenses, B, that you've documented appropriately, and we talked about documentation in the past, but I want to talk about it more today, because I'm going to give you some tips of what you can do by the end of this podcast. I'm going to give you some tips of what you can do to keep the IRS at bay.

 

Tom Wheelwright:       

We've talked about technology, and technology I think is going to replace the IRS auditor for most IRS audits. They're going to be checking your bank accounts, they're going to be checking records, they're already matching against, not just W2's, your wages, and 1099's, your income for your business, but they're also checking things like your mortgage expense, your taxes. I could see that they will look at your mortgage expense say, “Well, that's too high of a deduction based on our new limitations. Prove that you bought that property before 2018, begin 2018 if you bought personal residence, and it was more than $750,000 then you have this new limitation.” I could see them looking at that and saying, “Well, that's too high.”

 

Tom Wheelwright:       

That's what AI will do for the IRS, that's technology. Now, let's talk about the IRS itself. We have a fairly new commissioner, and IRS commissioner, and of course, we all know that the attitude of a company or an organization flows from the top. The prior IRS commissioner was a business turnaround specialist who didn't know much about the tax law, and he frankly was not a very nice man, and I heard him speak a couple of times, never liked him, and so, we kept going, what if we could get a real tax person in that situation that perhaps things would get better? Because, the auditors were just not very nice. I mean, the whole culture of the IRS was not a very pleasant culture.

 

Tom Wheelwright:       

I can't imagine what it was like working there. It must not have been a nice place to work, that is what I would imagine. Now, fast forward, we have a new IRS commissioner, tax attorney, very well known, very celebrated tax attorney, knows the law, and certainly comes with his own prejudices like anybody would, and starts turning the IRS around from a culture standpoint. Well, it's been interesting to watch, because I think these IRS auditors are going to be much nicer, and much more disciplined from a business standpoint, and I don't think they're going to be belligerent. I think they're going to be very matter of fact.

 

Tom Wheelwright:       

I don't think the IRS auditor is going to stab you in the back. I don't think that's going to happen. I think they've done some of those things in the past, and I don't think they're going to have those practices anymore, because that's this new commissioner. On the other hand, the commissioner wants to make sure that the laws are respected 120%, not 100%, 120%. Meaning that it's not an 80%. If you're 80% compliance, you're okay. No, if you're 80% compliant then 20 percent's going to be disallowed, or you might meet 80% compliance on every item, and if you're not 100% compliance on every item, every item is disallowed. I think you're going to see much more disallowance of expenses, and much more inclusion of income under the current climate at the IRS.

 

Tom Wheelwright:       

On top of that, there are certain areas of the law that this IRS commissioner does not like. They're absolutely on the books. There're laws that are on the books. The commissioner believes this is too good to be true. There's some bad apples, okay, that have kind of taken advantage, and gone overboard on it, and so, instead of saying, “Okay, well, we're going to litigate these in court like we've done in the past, we're going to go after these regular, just follow normal procedures as in the past.” No, no, no, no. What this commissioner very clearly understands, he's an attorney, is that the IRS is the 800 pound gorilla, and the threat of the 800 pound gorilla sitting on you is a very big threat.

 

Tom Wheelwright:       

What he said in certain cases is if you take a certain deduction, even though it may be legitimate, we will absolutely audit you. If you do things we don't like, we will come after you even though you may absolutely be right on the merit. What'll happen? Well, you'll go through the IRS audit process. In many cases, like I said, because of technology, that IRS audit process will be through technology, so there won't be sit down auditors, they're simply going to send you a notice. Now, you have to go through the appeals process. If you've ever tried to get ahold of the IRS, if you've ever tried to resolve something with the IRS, and it's no longer the IRS that is required to come after you, now you have to assert yourself in handling this audit.

 

Tom Wheelwright:       

It could take you years and the cost of defending yourself could be in the thousands and thousands of dollars. Imagine if you had to go to tax court. That's typically where if it's an issue of law, you're going to end up in tax court. Now, it used to be the only time you ever ended up in task court was you'd had a field audit, and somebody sat down with you on this field audit, and you had a disagreement, you went to the supervisor, you had a disagreement there, you went to appeals, you had a disagreement, you couldn't resolve there, so finally you get to tax court. Not a lot of people ended up in tax court.

 

Tom Wheelwright:       

Now, let's suppose that it is presumed that you owe the money through a technology audit, and now you're audited, and they're going to assess you taxes, penalties and interest. You're going to go through this process, and it's going to be expensive. What do you do? I first of all want to make sure everybody's alerted to the fact that the IRS today is different than the IRS was two or three years ago. It wasn't pleasant two or three years ago, but we didn't pay much attention, because less than 1% of returns were being audited. Now, we have technology and that technology is just going to get better, and better, and the IRS has not been given a lot of money for more auditors, but they have been given a lot of money for more technology.

 

Tom Wheelwright:       

So, the technology, it's interesting to me that the Congress has said, “All right, we don't want the IRS go out, and throwing its weight around with taxpayers, and and getting after them on an audit.” Instead, they've given him technology money, which is important, because for example, the IRS should be able to develop its own tax return processing program, which it has, and has actually anticipated to release I think within the next year or so, and I think that's great. I think that's awesome, that kind of technology. At the same time they're developing audit technology, and that audit technology if you look at what states have done that have a little more money, and a little more aggressive like New York, you're going to see that there's going to be more and more audits, but they're going to come through the mail.

 

Tom Wheelwright:       

They're not going to be audits where you sit down, and have the chance of face to face with an auditor. Now, you're going to have support this by by submitting documentation. What does this mean for you? Well, it means that you'd better have the documentation when it is incurred. In other words, your documentation on your tax return, right now as I'm doing this podcast, we're in the beginning of the filing season for the 2019 tax year. It's the beginning of 2020, and we're doing this and the filing season for 2019, so you're about to have your tax returns prepared. You may not know this, but there are thousands of tax preparers who do not maintain any of your records. They take them, and enter them into the tax return, and then they give them back to you.

 

Tom Wheelwright:       

And, they don't maintain any copies or any records whatsoever. Not should, or if, but when the IRS then sends you a notice, because their statistics show that you owe more money, not because they've matched item for item, not because of a W2 that didn't match up, but because your income that you reported in your business doesn't match up with their statistically designed income that they think you should have reported in your business. Now, how are you going to show the IRS? Where's that documentation? Are you maintaining it? Because, your preparer may not be. Now, I suggest two things. First of all, maintain all of your documentation. I'm going to give you a couple of examples where I think that people are lacks in their documentation in the next couple of minutes.

 

Tom Wheelwright:       

So, you need to maintain it. I believe very strongly that you're preparer needs to maintain the documentation. In our office we prepare every tax return as if it's going to be audited. I used to think maybe that's overkill. I do not think that's overkill anymore at all. I think we're going to be closer to 100% of audits. If you think about, we've done podcasts on blockchain technology. W?hat is blockchain? Blockchain is a system where every transaction audits every other transaction, so we won't need auditors. Well, you think the IRS is not going to use blockchain technology to audit? And, they get to use statistics as well, so they get to say, “Well, look, here's the information we do have. Based on this information we do have, your income should be X, or Y, or Z, and that's not what you reported.”

 

Tom Wheelwright:       

Or, “Your deductions should be X, or Y, or Z, and that's not what you reported.” We're going to have to be much more careful going forward. I believe it needs to start right now, because the culture of the IRS right now is, “If you're doing something that we don't like as the IRS, we're going to threaten to come sit on you, and it's going to be not come sit on you in person. It's going to be sending you a notice, and then, you have to prove that that notice is wrong, and if not, we're going to put a lien on you.” It is an 800 pound gorilla, and it's a real threat, much more so than it's been in the past and it was never fun in the past.

 

Tom Wheelwright:       

What do you do? Let's talk about the most important thing you've got to do after you'd decided I'm not going to cheat, so please do not cheat. Do everything ethically, morally, legally. You now still have to document it. We've talked in previous podcasts about what's a business deduction. There're four tests, business purpose, ordinary, meaning, typical, necessary, meaning it's, helps you increase your profit. Those are the first three. I think the fourth test is going to be more important than ever, and the fourth test is documentation. Let me give you an example. Let's say that you have a business, or you have real estate investments, and you go out, and go see one of your properties in your car, or you go have a meal, you have lunch with a business associate to talk about the property or the business.

 

Tom Wheelwright:       

Well, you have to document that. First of all, as example, let's say that you get to the restaurant, and you've had your meal, and everything, and the bill comes, and you look in your wallet, and you don't have your business credit card. You only have your personal credit card. You go, “Not the end of the world. I'll get reimbursed by my company.” Totally legit. Okay, if you have an accountable plan is totally legit. What's an accountable plan? Well, an accountable plan is a specific document between that the business has on hand, the agreement with the employee, that they will reimburse within a certain period of time, and that the employee will submit the documentation along with an expense report explaining the who, what, when, where, and why of that expense.

 

Tom Wheelwright:       

You can't just anymore say, I've got this credit card expense, so therefore I'm just going to reimburse myself, and not document everything as if you were working for a big company. A big company, you wouldn't go out, and spend money, and then, submit the expense without all the receipt, and documentation, because the company will say, “No, you don't get to deduct that. I mean, you don't get to submit that, or we're not going to pay it.” Now, let's say you go through, you have an expense report, you document it, you have your receipt, you document who, what, when, where, and why on the receipt. You scan it, you submit it all to your employer, which may be you, and then, you get reimbursed for it. The same would be true for home office. Home office should be reimbursed under an accountable plan.

 

Tom Wheelwright:       

Now, you have to have a plan in place as well. The plan, you just go to your tax advisor, and they should be able to give you a sample accountable plan. You must be reimbursed. What if you're not reimbursed? Well, now under the new law, the rule is that employee business expenses are not deductible. Under the new law employee business expenses are not deductible, so you don't get to just go say, “Well, it's not a big deal, because the IRS disallows it at the business. I'll just take it. They'll just put it on my 1040.” No, that's not what will happen. It will now be not deductible at all. Let me give you another example. Let's say that you're a partner in a CPA firm, law firm, or some other business venture.

 

Tom Wheelwright:       

And, let's say that you've got an agreement with your partner that you know what? There are certain expenses we're going to pay ourselves, and you may even have a company that owns your partnership. You may have set up a partnership to run the business, and then, you may have your own S corporation. Now, let's say that your S corporation now pays for your home office, and let's say that you have an accountable plan, so between your S corporation, and your home office, so you get reimbursed by your S corporation for your home office. You're done, right? No, there must be an agreement between the partner, which in this case would be the S corporation, and the partnership that the partner is going to take on expenses on behalf of the partnership.

 

Tom Wheelwright:       

In this case, having an office is an expense of the partnership. I think everybody would agree that you need an office that's an expense of the partnership. The fact that you're paying it as the partner as opposed to having the partnership reimbursement, what that means is that if you don't have an agreement between the partner, and the partnership that the partner's going to take on certain expenses, you don't get to deduct those expenses. What about self-employed health insurance? Let's say you have a health insurance plan, and let's say it's just you and your spouse, and you have this health insurance plan.

 

Tom Wheelwright:       

Remember, the company you own, if you're getting health insurance, or something else from it, you're both an employee, and an owner, or in other words, both the employee, and the employer. Well, what the IRS says is what you have to do is you have to include that health insurance in your employees W2, you're the employee, in your W2, and then the employee, you, the shareholder, takes it on your own, 1040, your own personal tax return as a deduction. I can't tell you how many times I've seen businesses that just paid the health insurance, and didn't pick it up in the W2. Well, I think in the past that was not that big a deal, because the IRS would say, “Well, that's okay. Either way it's okay. It's not the end of the world.”

 

Tom Wheelwright:       

I don't think that's going to be the case anymore. I think we have to pay attention. I think we have to pay much more attention to following, not just the rules for deductibility, but following the guidelines that the IRS gives for how to prove it's deductible. This is about how do you prove it's deductible? Because it is not deductible until you've proven it's deductible, and that is the way IRS's audits will happen in the future and it will happen mostly by mail. It will be technology, it will not be individuals, which actually is much more difficult to defend, because now you have to prove it. On the other hand, it could be much easier, because if you do follow every single dot, every single line, cross every single T, the IRS then will be forced to accept it, so that's what we do.

 

Tom Wheelwright:       

When they threaten an audit, it's okay. They've threatened an audit. Yeah, they're an 800 pound gorilla. Yeah, it's not going to be fun, but if you've prepared your tax return, and documented as if you are going to be audited anyway, just pull it all out, and send it to them. It's not a big deal. Have your tax advisor sent it to them, please. Okay, because you'll tend to send too much or too little, but handling that audit when you're well-prepared, even with the 800 pound gorilla saying, “We're going to assert ourselves even more.” I mean, for example, there are areas where the IRS has now said that if you take a deduction, even though it's a legitimate deduction, and you take a particular deduction on your return, we're going to audit you.

 

Tom Wheelwright:       

Well, that's just a threat of an 800 pound gorilla, and there are some that they say, “We're going to audit 100% of those who take this deduction. Even though it could be 100% legitimate deduction, we're going to audit you.” Okay, so be prepared. Look, folks, if you're not afraid of the IRS, then you're setting yourself up for trouble. If your tax preparer is afraid of the IRS, then you are setting yourself up for trouble. If you have a tax preparer who's afraid of the IRS, get a new tax preparer right now. Now's your chance. Run away. Go get a new tax preparer, because your tax preparer had better be ready for that audit. Ask your tax preparer, “Tell me what kind of documentation you're maintaining on my behalf.”

 

Tom Wheelwright:       

Because, between technology, and the new culture of the IRS, your chances of being audited I think is going up exponentially on a daily basis. Just be ready. Know that when you are completely ready with the right documentation, with everything properly recorded, and ready for that audit, you'll have no problem sleeping at night, and you're going to make way more money, and pay way less tax. Thank you for listening to the  ® Show. Please subscribe on iTunes, and leave a five star review if you enjoyed the show. We want to hear from you, so please also share your comments and your feedback. This is about you, and your money, and your taxes.

 

Announcer:                  

You've been listening to the WealthAbility® Show, with Tom Wheelwright, way more money, way less taxes. To learn more go to wealthability.com.