Changes in IRS Exam and Appeals Procedures (and their impact on R&D Tax Credits)

Transcription

1 Changes in IRS Exam and Appeals Procedures (and their impact on R&D Tax Credits) Hosted by Bryan Auernig, Director Presented by Peter Mehta, Managing Director Tax Credit Co. September 22, 2015

2 Introductions Peter Mehta Managing Director, Research & Development Tax Incentives Peter s 20 years of experience in tax controversy and R&D tax credit matters includes all aspects of tax controversy from Exam through the Appellate-level with both the IRS and California State taxing authorities. His experience includes audit examinations, technical advice requests, preparing and reviewing protests, IRS Appeals proceedings, and refund claims. Bryan Auernig Director, Business Development 7+ Years In Tax Incentive Field Former ADP Sales Executive specializing in CPA focused channel Regular contributor to CPE and speaking engagements 2

3 Agenda New IDR Enforcement Process Appeals Judicial Approach and Culture (AJAC) Impact on R&D Tax Credit Studies Questions 3

4 New IDR Enforcement Policy

5 Overview Improve ability to gather information timely Reduce need for summons enforcement Effective date: March 3, 2014 Multiple directives issued: June 2013 directive (LB&I ) November 2013 directive (LB&I ) February 2014 directive (LB&I ) 5

6 New IDR Enforcement Process IRS issues draft IDR Examiner meets with Taxpayer to discuss issue and need for IDR Within 10 days examiner issues draft IDR and discusses response date with Taxpayer If there is no agreement as to due date, IRS will establish a reasonable due date. 6

7 New IDR Enforcement Process IRS issues final IDR with due date If no response, then IRS may grant extension of up to 15 additional business days. If no response received by end of extension date then then enforcement procedures kick in Delinquency notice (Letter 5077) Taxpayer has 10 business days to respond unless Territory Manager grants additional time. Pre-Summons letter (Letter 5078) Territory Manager meets with the supervisor of taxpayer s point of contact explaining that presummons letter will be issued Signed by Territory Manager with copy to IRS counsel Issued to the person that is the immediate manager of the taxpayer s point of contact with the IRS. Response time = 10 business days unless Territory Manger grants extension Counsel and DFO notified Summons If no response within 14-day period, then IRS may institute summons procedures pursuant to IRM section

8 Ramifications How will Rules be applied If IDR contains multiple questions what is a complete response Can an IDR be severed so that different questions have different completion dates? What levels of management are involved at each stage of the process? E.g. Small tax departments with flat hierarchy does IRS intend to engage CFO or CEO in the IDR process. 8

9 Strategies for Dealing with New IDR Process Address IDR management issues at opening conference Resource limitations Logistical issues (ex. foreign documentation) Expected absences/leave of key personnel Work collaboratively with IRS during issuance phase Establish informal process to ensure that examiner informs taxpayer of intent to issue draft IDR Have multiple draft IDRs issued for the same issue Have IDRs severed with multiple due dates Be ready to escalate issues to IRS management if due dates are unreasonable 9

10 IRS Perspective Loss of discretion Additional work Creates unnecessary tension between IRS examiners and taxpayers Counsel has expressed concern about ability to process summons 10

11 Taxpayer Perspective Pros Taxpayers have input in drafting IDRs IRS must tailor IDRs less chance for fishing expeditions Taxpayer will have input into reasonable due dates Cons Shortened response times cannot kick the can down the road Severe penalties for non-compliance 11

12 United States v. Clarke (June 2014) Impact of United States v. Clarke (June 2014) is unclear Facts: IRS tried to issue summons during contentious audit The taxpayer argued that summons was issued in bad faith and wanted to cross-examine the IRS agent at an evidentiary hearing IRS argued that under existing law, IRS agents were protected from cross-examination by filing an affidavit that they acted in good faith; there was no right to cross-examine the agent Supreme Court ruled that if a taxpayer makes a prima facie case of possible bad faith they have right to cross-examine agent at an evidentiary hearing 12

13 Appeals Judicial Culture and Approach (AJAC)

14 Overview Appeals to have quasi-judicial role in settling cases Rationale: Appeals is not extension of exam Not fact finders Cases should be fully developed before reaching Appeals All pertinent evidence well documented Easy to follow audit trail Contains the evidence needed to support the proposed adjustments Effective date: July

15 Overview Changes from prior law Appeals will not raise new issues Appeals will not open closed issues (i.e., agreements between Exam and taxpayer regarding certain issues). Implications for Taxpayers Appeals generally will not return cases to Exam unless: Protest is deficient (ex. no protest, does not meet requirements of Publication 5, etc.) Taxpayer introduces new evidence or information 15

16 Appeals will Consider Hazards of Litigation Factual hazards of litigation Appeals will consider settling cases based on factual hazards (i.e., uncertainty as to what facts a court would find to be true) If the case is not fully developed (i.e., poor audit or no audit) and the taxpayer does not raise new evidence this should result in taxpayer favorable settlement If the taxpayer introduces new evidence or information then Appeals will return case to Exam If Appeals concludes that the taxpayer is trying to game the system by introducing new evidence multiple times or unreasonably delays the process, then Appeals may settle based on factual hazards of litigation (likely taxpayer unfavorable settlement) 16

17 Impact on R&D Tax Credit Studies

18 IRS Push-Back on Under Developed Cases Changes in Exam/Appeals have put greater scrutiny on deliverables New IDR Enforcement: Requires quicker turnaround on IDRs AJAC: Appeals will not consider new evidence Impact Compressed time frame to respond to IDRs IRS expects completed study be provided at the beginning of audit Taxpayer cannot afford to wait until audit to provide complete documentation IRS exam teams will not allow taxpayers to perfect their studies during audit Exam more apt to close R&D audits early if case unsubstantiated Appeals will not consider new evidence 18

19 Recommendations for Taxpayers Taxpayers should reconsider Appeals strategy Not recommended for taxpayers to wait until Appeals to present key facts or introduce new evidence Important for taxpayers to understand what IRS looking for during audit Audit taxpayer methodology Evaluate taxpayer credibility Evaluate quality of positions taken Review substantiation of qualified projects at business component level Review allocation of time spent on qualified and non-qualified project activities Audit should drive deliverables 19

20 Best Practices Gate review process: Gate 1 requires methodology be signed off before any fieldwork conducted Dedicated R&D audit specialist integrated at beginning of study: Improves quality and increases success audit drives deliverables Bring the right team to the right job: Cross functional team of legal, tax and industry specialists Increased IRS credibility upon audit Gain buy-in from taxpayer s engineering senior management (don t have CPAs speak with engineers) Ensures highest level of quality 20