Los Angeles California Tax Attorney Blog

Los Angeles Tax Attorney:

Here is a quick summary of a recent US TAX COURT case against the Internal Revenue Service . The ruling on this case may apply to other documents filed with the tax court or the IRS including late filed FBAR Voluntary Disclosure Program.

Tax Court Petitioners MADDOX v.
COMMISSIONER OF Internal Revenue Service

TAX PROBLEM:

This case seems to reflect the current trend by IRS Attorneys when dealing with tax court petitions that they receive 90 days after issuance of Notice of Determination arising from IRS Tax Audit or Collection Due Process hearing.

IRS TAX CODE

Internal Revenue Code §6213(a) provides that a petition for redetermination of a deficiency determined by the Commissioner is timely filed if it is filed within 90 days after a notice of deficiency is mailed. Internal Revenue Code §7502 - If a petition is received by the Court after the 90-day period, then the postmark date can be deemed the date of delivery.

IRS MAY CHALLENGE TAX COURT PETITION IF RECEIVED 90 DAYS AFTER MAILING NOTICE OF DEFICIENCY

The IRS moved to dismiss this case on the ground that the petition was not filed within 90 days of the mailing of the notice of deficiency. Taxpayers state the petition was timely mailed even though not received by the Court within the 90-day period. IRS mailed on October 7, 2008, a notice of deficiency to taxpayers. A petition signed by taxpayers’ attorney, dated December 17, 2008, was received and filed by the Court on January 23, 2009, which was 108 days after the mailing of the notice of deficiency. The U.S. Postal Service (USPS) cancellation stamps appeared on the envelope, but the exact date of cancellation was illegible. January 5, 2009, was the 90th day after the mailing of the notice of deficiency. On March 11, 2009, the IRS filed a motion to dismiss for lack of IRS tax court jurisdiction.

TAXPAYER'S TESTIMONY MAY BE SUFFICIENT TO SHOW THAT TAX COURT PETITION WAS MAILED

Taxpayers’ attorney mailed the petition by placing it in the mailroom in his office building before 4 p.m. on Friday, January 2, 2009. The mailroom was locked, and only building tenants and the USPS had access. The outgoing mail was placed in a USPS basket.

Usually, the postmark placed on the envelope in which the petition has been mailed is accepted as evidence of timely mailing and timely filing. In this case, however, the postmark is illegible. Because taxpayer’s petition was received and filed outside the prescribed period, bearing an illegible USPS postmark, it will be considered timely filed only if petitioners can show the date that the postmark was made and that the date was within the 90-day period.

Taxpayers have shown that the envelope was postage prepaid and had a USPS cancellation. Taxpayers also testified that the petition was timely placed in the USPS mail before the expiration of the 90-day period and timely postmarked (illegibly). The envelope was received by the Court and the petition was filed.

The decision was entered against the Internal Revenue Service . The tax court denied the IRS' motion to dismiss tax court case and concluded that the tax court petition was timely postmarked, timely mailed and timely filed.

Note that some documents filed with the IRS may be deemed filed upon receipt while others are deemed filed upon mailing of the document. Check with your tax attorney on the filing variations.

Long Beach Tax Attorney:

Here is a quick summary of a recent US TAX COURT case against the Internal Revenue Service to challenge whether a minor's relative may claim a tax credit.

HENRY LEE SCOTT v.
COMMISSIONER OF Internal Revenue Service

Tax Problem:

The issue for decision is whether taxpayer’s nephew and niece were his qualifying children for purposes of the earned income tax credit (EITC) provided by section 32.

Applicable Internal Revenue Code:

Internal Revenue Code §32(a)(1) allows an eligible individual an earned income credit against the individual’s income tax liability. The credit is increased if the taxpayer has any qualifying children

Internal Revenue Code §32(c)(3)(A). §152(c)(1)(B) sets forth the requirement that a qualifying child have “the same principal place of abode as the taxpayer for more than one-half” of the taxable year.

Principal Place of Residence Determines the Tax Credit

During 2004, 2005, and 2006, petitioner’s sister, Tameka Henderson, and her five children under the age of 19 resided in rented dwellings pursuant to written leases governed by the regulations of the Tennessee Low Income Housing Tax Credit Division. The leases each required that the premises be occupied only by the identified members of the household, which were Henderson and her five children. The leases covered property on Patton Street in Memphis in 2004 and 2005, and Walker Avenue in Memphis in 2006 to 2007. Taxpayer began living with Henderson when he was a teenager, after their mother died. In 2004, taxpayer was 31 years old. He lived with his sister and her children during at least part of 2004 and 2006, even though his name was never listed on the leases. The father of the children died in January 2004. Taxpayer contributed toward support of the children and was available as an emergency contact on records of the children’s schools. On his Federal income tax returns for 2004 and 2006, taxpayer listed one nephew and one niece as dependents and as qualifying children for purposes of the Earned Income Tax Credit. His return for 2004 used the Patton Street address as his address. His return for 2006 used an address on South Fourth in Memphis as his address. The petitions filed in these cases used Walker Avenue as taxpayer’s address. As of October 2007, taxpayer no longer used the Walker Avenue address.

US TAX COURT RULING
It is not improbable that taxpayer lived with Henderson and her children contrary to the terms of the leases. It is likely that after the death of the children’s father in January 2004, taxpayer assumed a paternal role toward his nephews and his niece as well as making payments toward their support. For 2004, therefore, we conclude that taxpayer and the children had the same place of abode for most of the year, that he cared for them as his own, and that they are qualifying children for purposes of the EITC. For 2006, however, there is other evidence suggesting that taxpayer maintained an address separate from Henderson’s. Because neither taxpayer nor Henderson adequately explained when he or they lived at the South Fourth address, we cannot conclude that taxpayer and the children shared the same abode for more than half of that year. Taxpayer’s nephew and niece are not qualifying children for 2006.

Pasadena Tax Attorney:

Here is a quick summary of a recent US TAX COURT case against the Internal Revenue Service to challenge the tax deductibility of medical expenses incurred by taxpayers. The case involves taxpayers who deducted medical expenses related to in-vitro fertilization.

CHRISTINA MARIE THOMPSON MCGRATH, Petitioner v.
COMMISSIONER OF COMMISSIONER OF Internal Revenue Service
, Respondent
Docket No. 3954-08.

IRS Tax Problem
The issue in this case is whether the petitioner is entitled to deduct medical expenses paid on her behalf by another person.

Relevant Internal Revenue Code

Internal Revenue Code §213(a) allows “ as a deduction the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer.”

CAN TAXPAYER DEDUCT MEDICAL EXPENSES PAID ON THEIR BEHALF BY THIRD PARTIES?

In 2005 the petitioner and her husband entered into an agreement for in vitro fertilization services. Petitioner’s father paid $39,542 for the services as a wedding gift to petitioner and her husband. The petitioner and her husband claimed a medical expense deduction of $34,313 of their 2005 individual income tax return, under section 213(a). In 2008 the petitioner received a full refund of the amount paid because the services were not successful. The respondent determined a deficiency in petitioner’s Federal income tax for 2008.

TAXPAYER CANNOT DEDUCT MEDICAL EXPENSES PAID BY A THIRD PARTY

The Internal Revenue Service claimed that the petitioner is not entitled to deduct the amount paid because her father paid for the services on her behalf. The Internal Revenue Service relied on a series of cases holding that taxpayers are not entitled to deduct medical expenses which they did not pay or which were reimbursed by some other source. Decision was entered for the Internal Revenue Service .

Torrance Tax Attorney:

Here is a quick summary of a recent US TAX COURT case against the Internal Revenue Service to challenge the taxability of lawsuit settlement funds. The case involves money settlement received by a taxpayer from a class action against the US Air Force.

KEVIN HENNESSEY v.
COMMISSIONER OF Internal Revenue Service
Docket No. 20484-07.

Tax Problem
The issue is whether a lump-sum amount of money the petitioner received pursuant to a class action settlement agreement is excludable from gross income under section Internal Revenue Code 104(a)(2).

Internal Revenue Code

Internal Revenue Code §61 (a) includes in gross income “all income from whatever source derived” unless excluded by a specific provision of the Code.

Internal Revenue Code §104 (a)(2) excludes from gross “amount of any damages received (whether by suit or agreement and whether as lump sum or as periodic payments) on account of personal physical injuries or physical sickness”.

IS MONEY FROM LAWSUIT SETTLEMENT TAXABLE?
Mr. Hennessey and other officers, whom the U.S. Air Force selected for involuntary separation because of congressionally mandated personnel reductions in the Armed Forces, filed a complaint in the U.S. Court of Federal Claims. The plaintiffs claimed that the Board in charge violated their equal protection rights under the Fifth Amendment to the U.S. Constitution because it improperly considered race and gender in selecting officers for involuntary separation. The class action case was settled and each member received a lump-sum payment. When petitioners filed their tax return, they did not include in income the lump-sum payment.

IRS TAXES ALL COMPENSATION UNLESS EXCLUDED BY SECTION 104(a)(2)

The lump-sum payment was not compensation for physical injuries or physical sickness that Mr. Hennessey might have suffered as a consequence of any actions taken by the U.S. Air Force. Therefore, the exception of Internal Revenue Code §104 (a) (2) is not applicable. The decision was entered for the Internal Revenue Service .

Los Angeles Tax Attorney:

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US Tax Court - Tax Attorney

Internal Revenue Service IRS TAX and United States Tax Court US TAX COURT released information regarding tax fraud related scams using the name of the IRS and US Tax Court.

Tax Court Scam

In this scam, an e-mail that appears to come from the U.S. Tax Court contains a petition involving a court case between the IRS and the recipient. The document instructs the recipient to download other files. The downloads transfer malware, or malicious code, to the recipient’s computer.

There are various types of malware, which, for example, can hijack a victim’s computer hard drive to give someone remote access to the computer, or can search for passwords and other information and send them to the scammer.

The truth is that the Tax Court is not e-mailing notices to anyone who currently has a case before the court. Visit the court’s Web site at http://www.ustaxcourt.gov/ for more information. Recipients are advised to avoid clicking on any links in the e-mail and to delete the e-mail.

How Scams Work

To lure their victims, phishing scams use the name of a known institution, such as the IRS, to either offer a reward for taking a simple action, such as providing information, or threaten or imply an unpleasant consequence, such as losing a refund, for failing to take the requested action.

The goal of the scams is to trick people into revealing personal and financial information, such as Social Security, bank account or credit card numbers, which the scammers can use to commit identity theft.

Typically, identity thieves use a victim’s personal and financial data to empty the victim’s financial accounts, run up charges on the victim’s existing credit cards, apply for new loans, credit cards, services or benefits in the victim’s name, file fraudulent tax returns or even commit crimes. Most of these fraudulent activities can be committed electronically from a remote location, including overseas. Committing these activities in cyberspace allows scammers to act quickly and cover their tracks before the victim becomes aware of the theft.

People whose identities have been stolen can spend months or years — and their hard-earned money — cleaning up the mess thieves have made of their reputations and credit records. In the meantime, victims may lose job opportunities or may be refused loans, education, housing or cars.

What to Do

Anyone wishing to access the IRS Web site should type www.irs.gov into their Internet address window, rather than clicking on a link in an e-mail or opening an attachment, either of which may download malicious code or send the recipient to a phony Web site.

Those who have received a questionable e-mail claiming to come from the IRS may forward it to the following address: phishing@irs.gov. Use the instructions contained in an article on this Web site titled “Protect Yourself from Suspicious E-Mails or Phishing Schemes.” Following the instructions will help the IRS track the suspicious e-mail to its origins and shut down the scam. Find the article by entering the words “suspicious e-mails” into the search box in the upper right corner of the page.

Those who have received a questionable telephone call that claims to come from the IRS may also use the phishing@irs.gov mailbox to notify the IRS.

The IRS has issued previous warnings on scams that use the IRS name to lend the scam legitimacy. More information on identity theft, phishing and telephone scams using the IRS name, logo or spoofed (copied) Web site is available this Web site. Enter the terms “phishing,” “identity theft” or “e-mail scams” into the search box in the upper right corner of the page.