The Worst Advice Dealing With a Tax Issue

Colleagues having problems
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Craig W. Smalley, EA
Founder/CEO
CWSEAPA LLP
Columnist
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I had an appointment with a client about two weeks ago with a real estate agent who happened to be taxed like a C-Corporation and was using a name that the State of Florida doesn’t allow.

First of all, the problems with the company from a state point of view are that real estate agents that become corporations must be named whatever name is on their real estate license, and they must either be a Professional Association, or a Professional Limited Liability Company. A Professional Association (PA) is like a Professional Corporation in other states and the company has to be limited to only the sales of real estate and can’t do anything else.

Then, we ran into the tax issue. The only thing that they can do, unless they want to pay a flat 35% as a professional service corporation, is to be taxed as an S-Corporation.  

This company was a C-Corporation, but the tax preparer didn’t calculate the 35% tax on the income. In addition, they put down that the taxpayer was paid $85,000 on a W-2 Form. 

It didn’t shock me when, during our appointment, the next letter she showed me was a lien in the amount of $49,000 against the corporation. Note that the IRS can match up salary with a tax return. Not to mention that the NAISC Number stated that the taxpayer was a real estate professional. 

So, the IRS removed the $85,000 in wages and calculated the taxes at 35%. It was July by the time that I met her and her corporate tax return was on extension. What was my plan? 

First of all, form a Professional Association. Complete an IRC § 351 Tax-Free Exchange by transferring the assets from the first corporation to the other corporation. Dissolve the first corporation, and start running things correctly.

Why would I give that advice? Going back to Corporations 101, unless we are talking about payroll taxes, once a corporation is dissolved there can be no claims brought against it. The only thing that the IRS could possibly do is state that the IRC § 351 transfer was done under fraudulent conveyance. However, the comeback to that would be that the taxpayer got bad advice, and it wasn’t until they got a second opinion that they knew what the other tax accountant had done to them. 

Is this a risky strategy?  Not really.  With all of the budget cuts, I highly doubt the IRS will go after this client. 

Secondly, the client has a tort against the old accountant for getting her into this mess to begin with. I have written several articles about how tax preparers, at the very least, should take some sort of test that evaluates their competency, but to just simply make up numbers and tack them onto a tax return should be criminal. 

The only thing I know to do is to complain to the Office of Professional Responsibility, but will that get this tax professional to stop preparing returns?  Hardly, but an injunction from a judge might.

About Craig Smalley

About Craig Smalley

Craig W. Smalley, MST, EA, has been in practice for almost 23 years. He has been admitted to practice before the IRS as an enrolled agent and has a master's in taxation. He is well-versed in US tax law and US Tax Court cases. He specializes in taxation, entity structuring and restructuring, corporations, partnerships, and individual taxation, as well as representation before the IRS regarding negotiations, audits, and appeals. In his many years of practice, he has been exposed to a variety of businesses and has an excellent knowledge of most industries. He is the CEO and co-founder of CWSEAPA PLLC and Tax Crisis Center LLC; both business have locations in Florida, Delaware, and Nevada. Craig is the current Google small business accounting advisor for the Google Small Business Community. He is a contributor to AccountingWEB and Accounting Today, and has had 12 books published on various topics in taxation. His articles have also been featured in the Chicago Tribune, New York Times, Yahoo Finance, Nasdaq, and several other newspapers, periodicals, and magazines. He has been interviewed and been a featured guest on many radio shows and podcasts. Finally, he is the co-host of Tax Avoidance is Legal, which is a nationally broadcast weekly Internet radio show.

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Aug 23rd 2017 23:41

Great article! I have found a fair amount of difficulty paying my contractors using a i 1099 form, but I will take this advice into consideration.

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