If you haven’t read Part 1 of this blogpost, you might appreciate the background in that post. That post dealt primarily with the concepts of communication during the audit. However, the concepts below should be helpful even without the benefit of Part 1. This post focuses on the concepts of preparation and presentation during the audit.
Fully develop the facts and law after learning from the Revenue Agent what issues are being audited. Before negotiating with the IRS, consider doing at least the following.
- Look at all alternatives which will solve the client’s problems.
- Prepare a separate memo on each issue, setting forth the facts and the law. Start each memo on a separate page. You can then give those memos, if necessary, to the Revenue Agent to help resolve the issues. The memo should include issues, summary, facts, law and conclusions. In these memos stay away from attacking the IRS and telling them why they are wrong. The memo should be positive and tell why the facts and/or law are in favor of the client.
- If necessary to comment on the position of the IRS, do so at the end in a brief paragraph.
After accomplishing all of the above, the next step is making the presentation to the Revenue Agent.
- Ask the Revenue Agent to submit document requests for documents and records of the client. This will eliminate any misunderstanding as to what documents the Revenue Agent is seeking, and eliminate any confusion between you and the Revenue Agent over what is wanted. In addition, it will give you a record of what was asked for and when it was given to the Revenue Agent and returned. The Revenue Agent should only be given documents that are relevant to the issues being audited. Make arrangements with the Revenue Agent for the copying of documents, and determine who will bear the costs of copying.
- Agree on the place for the audit. It is essential that the place of the audit be in a place that is best for the taxpayer. In most cases, the Revenue Agent should never interview the client. On the other hand, you should interview the client in detail, regardless of whether you prepared the tax return or are familiar with the taxpayer. This interview will help prepare for the audit.
- Establish a time limit for the audit. Ask the Revenue Agent to hold material questions preferably until the end of the audit. In most audits the Revenue Agent will answer most questions by examining the documents requested. In smaller, less complicated examinations, be available to answer questions as they arise. In larger and more complex examinations, arrange with the client to have a procedure for advising them regarding the progress of the audit. Ask the Revenue Agent to provide a written list of the adjustments he intends to propose prior to meeting with the Revenue Agent to discuss the proposed adjustments.
- Presentation to the IRS is extremely important. In most cases this should be done at the end of the audit at a settlement conference. However, it may be necessary to present some information as the audit progresses, such as the memos mentioned earlier. Even the most prepared representative can fail, if the manner in which the facts and law are presented is not done properly. There is no easy answer as to how to prepare and present cases to the IRS. Each case is different, and good preparation and presentation comes through experience in dealing with the IRS and knowledge of the tax laws and IRS procedures.
- Meet with the Revenue Agent at the conclusion of the audit to resolve issues. If unable to resolve issues with the Revenue Agent, then request a conference with the Revenue Agent’s Group Manager. If unable to resolve the issues at the audit level, submit the client’s position in writing. If the case is settled at the audit level, the client will be required to sign Form 870 (Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment) or Form 4549 (Income Tax Examination Changes). Both of these documents waive the client’s right to go to Appeals or the United States Tax Court.
If the taxpayer cannot settle with the Revenue Agent, the taxpayer will be sent a 30-day letter, at which time the taxpayer may request an appeals conference. This action requires preparing a protest to fully set forth the client’s case. If the case has been properly prepared at the examination level, much of the work necessary to prepare the protest will be completed. Since IRS Appeals has broad authority to settle cases, it is likely at least some concessions will be received by the client at IRS Appeals. Should the client be unsuccessful at IRS Appeals, then the client may file a petition in the United States Tax Court without first paying the tax. In the alternative, the client may pay the tax, file a claim for refund, and sue the United States for a refund in either the United States District Court or United States Claims Court.