When the IRS Knocks August 2011
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Transcript When the IRS Knocks August 2011
SURVIVING THE IRS AUDIT
September 28, 2011
Presenter
Daniel J. Kusaila, Tax Partner
Saslow Lufkin & Buggy, LLP
Agenda
What taxes should a captive be concerned
with?
How do you get to be lucky enough to be
chosen for audit?
Types of Audits
Which tax returns can they audit?
The audit process
FET initiative
Best practices to avoid negative outcomes
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Types of Taxes
--Income tax exams
--Excise tax exams
Both are increasing but for different reasons
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Types of Taxes (cont’d)
Income tax exams – increasing due to the bad economic
times as Companies are reporting net operating losses
or capital losses
Companies are carrying back losses and the size of the
refund causes the IRS to review the tax return
Any refund claim in excess of two million requires Joint
Committee sign-off
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The Chosen One
How Does One Get Selected for Audit?
There are Only Two IRS Audit Projects Directly
Targeted at Captive Insurance
Section 501(c)(15) insurers
Excise Tax (cascading tax)
Most Other Captive Audits Arise During the Audits of
the Operating Companies
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The Chosen One (cont’d)
Large Case
Computer Selection
The Future is in the Technology
Collateral Audits
Affiliates
Partners /Members / S-Corp Shareholder
Officers / Directors
Party to same transaction
Trust / Beneficiary
Referrals
Prior Audit
Informant
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Which Tax Years?
3 years – Normally, the Federal income tax statute of
limitations is open for three years from the filing of the
tax return ( or its original due date if longer)
6 years – The statute of limitations is 6 years if there is a
25% omission of gross income shown on the return and
negligence
Forever – There is no statute of limitations if a false or
fraudulent return with intent to evade tax is filed, or if no
return is filed
Can extend by agreement to a fixed date or indefinitely
(revocable on 90-days’ NOTICE)
All issues vs. restricted
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Audit
Audit
Formal letter starting an audit
• Years
• Taxpayer
Cannot audit the same year twice without
approval
If there were two successive “no change” audits,
the third audit should not be conducted
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Types of Audits
Mail-In Audit
Office Audit (IRS Office)
Informal
Needed items specific in letter
One sitting
Can reschedule if needed
Field Audit
Taxpayer or representative’s office?
Off premises? One coordinator?
Multiple meetings
Large taxpayers – every day for two years
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The IRS Audit Process
The Audit Process
“Initial Contact”
First contact with the taxpayer generally to set up the “initial
interview”
The IRS will contact either:
The corporate officer who signed the return, or
If valid POA for the type of tax and year, then the
representative with a copy of all correspondence to the
taxpayer.
Phone Call followed by a letter
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The Audit Process (cont’d)
The purpose of the initial contact is to:
Schedule the initial appointment,
Establish a reasonable time and place for the initial
appointment and for conducting the examination,
Identify the person(s) to be present at the initial interview,
Discuss the examination process,
Identify the initial issues to be examined,
Discuss records needed, and
Answer the taxpayer's questions or concerns regarding the
audit process.
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The Audit Process (cont’d)
Who Represents the Taxpayer
Internal accountant?
External CPA
Lawyer (usually in background, if at all)
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The Audit Process (cont’d)
I recommend treating the agents with courtesy,
professionally and offering them nice
accommodations rather than a basement or closet.
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The Audit Process (cont’d)
Power of Attorney (Form 2848)
Powers Granted/Restricted
Agreeing to IRS adjustments
Negotiating refund checks
Information Documentation Request (IDR)
Written questions from IRS and request for
supporting documentation
Reply in writing
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Form 4564
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Potential IRS Concerns
The agents many times will have little or no
knowledge of captive operations
They look to find a checklist indicating the types
of information they should look at and will tend
to focus on information that is treated as fact in
many rulings
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Potential IRS Concerns (cont’d)
The feasibility study – the agent is going to want
to review the study to determine why the Captive
was established; be sure to have a discussion of the
business merits and not tax benefits
They will look to determine if we are operating
the captive as we indicated we would in the study
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Potential IRS Concerns (cont’d)
What type of risks are being insured in the captive?
accepted and common types of coverage or are we insuring
other types of risks;
is there a fortuitous event that must occur before the insurance
coverage pays a claim;
is it business risk
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Potential IRS Concerns (cont’d)
What’s the difference and why should it matter?
IRS takes the position that a business risk cannot be
transferred to another party,
whereas insurance can be
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Potential IRS Concerns (cont’d)
Who are the insureds and what is their
relationship to the Captive?
The IRS is looking to make sure that there is adequate
risk shifting and distribution in the plan;
Generally this is looked at on an entity number basis
Also looking to concentration of risk.
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Potential IRS Concerns (cont’d)
Is the Captive performing any non insurance
activities?
Is the Captive loaning money back to the parent or a related
corporation?
Are there any related party guarantees?
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Potential IRS Concerns (cont’d)
If parent premiums are deducted, determine whether there is a
sufficient amount of unrelated risk assumed by the Captive
Is there a loss portfolio transfer and is there a significant
chance of a significant loss as required for GAAP under FASB
113?
Is the taxpayer taking a consistent position by paying excise tax
for risk ceded to an offshore insurance company that is not
taxed as a U.S. taxpayer?
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Potential IRS Concerns (cont’d)
Tax Exempt interest
Foreign affiliated entities
Policyholder dividends
Alternative Minimum Tax
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Potential IRS Concerns (cont’d)
Did the Captive enter into a finite risk contract
with an offshore reinsurance company that is a
non-Controlled Foreign Corporation? If so,
review the transaction to determine whether
there is significant tax avoidance.
Are Captive assets used as security or as
compensating balance for the liabilities of
another entity?
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IRS Exam Activity
What is the reserving practice of the Captive?
Is the Captive using an actuary to establish
reserves and is the Company setting its
reserves within the actuary’s expected range;
What kind of reserves is the Captive
establishing?
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Audit Process
What we all hope for:
A “No change Letter”
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Audit Process (cont’d)
IRS Proposed Adjustments
Form 5701 used to communicate proposed
adjustment by the IRS
Form 886-A explanation of adjustment
accompanies
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Agreed Issues
If an audit, one or more issues may be settled,
even if other issues are not
Form 870 is used to agree to the settled issues
While in practice this ends the audit of agreed
issues, technically the Taxpayer can file a claim
for refund and the IRS can reopen (if it gets
internal permission for the second audit)
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Unagreed Issues
Notice of Proposed Adjustment (NOPA)
Response to NOPA
Lawyer in Background?
Factual differences – auditors can resolve
Legal differences – auditors cannot resolve
“Hazards of Litigation” – auditors cannot take into account
Technical Advice Request – IRS National Office
Advanced Issue Resolution – early Appeals for an issue
Fast Track – mediation with the IRS auditors, mediated by an
Appeals Officer
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Unagreed issues when the audit is
over
30-day letter
Taxpayer’s Protest
Agent’s Rebuttal
Ex Parte Meeting – Appeals and Examiners
One or more meetings with the Appeals Officer
Control of the Statute of Limitations
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Appeals Conference
Appeals’ mission is to settle cases
Very informal
1 to 3 Appeals Officers
No court reporters or other third parties
Client? / Experts?
First conference – make a good first impression
Settlement – every case has its time
Be prepared to settle when it is time
Don’t make an offer when the other side is not in a position to
evaluate the offer
870-AD - normally neither side is to reopen
Closing Agreement
Post Appeals Mediation
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Taking it to Court
TAX COURT
DISTRICT COURT
CT. OF FED CLAIMS
No
Yes
Yes
Judge / Jury
Judge
Option**
Judge
Place of Trial
Local*
Local
Local*
% Tax Cases
100%
2%
50%
Government
Lawyer
IRS
DOJ
DOJ
Pay First
*Judge
travels from DC ** Option Judge or Jury
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Penalties & Interest
Interest – Second Quarter 2011 – Prepay?
Interest
Corporate
Large Corporate
Overpayment
Underpayment
Deduct
3%
4%
Yes
1.5%
6%**
Yes
**Underpayment of $100,000 beginning 30 days after 30-day or 90-day letter
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Penalties & Interest (cont’d)
20%
• Disregard of Rules or Regulations
• Negligence
• Substantial Understatement (without Substantial Authority)
40%
• No economic Substance (20% if disclosed)
• Involves Undisclosed Foreign Financial Asset
• 75% Fraud
Exception for Certain Penalties
• Reasonable Cause and
• Taxpayer Acted with Good Faith
Additional Penalties for Reportable Transactions
Potential Disclosure on Form UTP
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Federal Excise Taxes
FET Exam Activity
Federal excise tax examinations are increasing due
to an enforcement initiative regarding the excise
tax.
FET is due whenever a US premium is transferred
offshore and is due again when the foreign insurer
transfers it again
FET rates are 4% for direct business and 1% for
reinsurance
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FET Exam Activity (cont’d)
The exam will involve a review of the reinsurance
treaties placed by the Captive
The examiner is looking for primarily two things:
1) does the placement involve a foreign insurance company,
and,
2) was the form 720 filed and the tax paid.
The tax and form are due quarterly.
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FET Exam Activity (cont’d)
Most US income tax treaties contain a clause
exempting the excise from having to be reported.
If relying on the income tax treaty exemption, be
sure that the foreign company has a valid “closing
agreement” with the IRS in place.
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Interim Guidance Memo SBSE-040909-045 (Excise Taxes)
Procedures for excise tax examiners
IRS indicated it will be auditing foreign captive subsidiaries
Forward all information to International excise tax group
Name and employer identification number (EIN) of the parent company;
Full name and EIN of the captive subsidiary;
Location or country of the captive subsidiary;
Amount of premiums insured with the captive subsidiary; and
Amount of premiums reinsured by the captive subsidiary to reinsurance companies (if known).
Looking to enforce “cascading theory” under Rev. Rul. 2008-15
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Rev. Rul. 2008-15 – Federal Excise Tax
Excise tax under § 4371 has a “cascading” effect
Tax applies to premiums paid to cover U.S. risks
regardless of the nationality of the insuring and/or
reinsuring entities
Applies to payments from one foreign insurance company to another foreign
insurance company if the underlying risks are U.S. situs risks
Ann. 2008-18 sets out a voluntary compliance initiative for foreign insurers
and reinsurers that owe FET on foreign-to-foreign reinsurance transactions
Applies to FET on premiums received on or after October 1, 2008
IRS will not examine cascading tax liabilities from prior periods
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Best Practices
Best Practices
To limit the potential to an unsuccessful
IRS audit, the most important thing is:
To have a knowledgeable team devoted
to the industry (Captive Manager,
Attorney, CPA and Auditor).
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Best Practices (cont’d)
Feasibility Study
Non-Tax Business Purpose
Good Structure, Adequate Capital, Etc.
Strong Team (Captive Manager, Attorney, CPA)
• Good advice
Tax Opinion
• Why consider? FIN 48 or ASC Topic 740,
Uncertain Tax Positions or just Comfort
• IRS Private Ruling?
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Best Practices (cont’d)
Good Records
Documentation
Why a Captive?
Why the Coverages?
Why the Pricing?
Why the Domicile, etc.?
Application
Actuarial Reports
Financial Projections
Corporate Records – Articles, Bylaws, Minutes, etc.
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Best Practices (cont’d)
As the Captive Matures
Update of Business Plan
Review of Structure, Operation, Coverage, Agreements, Pricing,
Capitalization, etc.
Continued Education
Keep Corporate Formalities
CICA Best Practices Book
Periodic Review of Legal, Regulatory and Tax
Document Everything
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