JANUARY 2009

    IRS Small Business and Self-Employed Division Will Emphasize Enforcement Activities
    over the Next Year
    By Lance Wallach

    Over the next 12 months, the Small Business and Self-Employed Division (SB/SE) of
    the Internal Revenue Service will focus on taxpayer services and increased
    enforcement.  SB/SE owns the majority of the tax gap.  Enforcement has a necessary
    presence when you are talking about tax administration.
    However, that enforcement will recognize that there are taxpayers who cannot
    properly prepare their tax returns, taxpayers who will not properly prepare their
    returns and some who truly need assistance with compliance.  That is coupled and
    balanced with, in many cases, education and taxpayer services.  How such
    “recognition” will occur is unclear.

    Some of the areas SB/SE will be examining include pass through entities, high income
    filers and abusive transactions.  S corporations are likely to receive particular
    scrutiny.  Further review would not be limited to S corporations, but would extend to
    pass through entities like partnerships, which can expect to receive a “significant
    amount of attention” because SB/SE has found an area of abuse and would like to
    curb what is called a growing trend of abusive transactions. There also will be a
    renewed effort to address high income filers, typically classified as those with an
    adjusted gross income of over $200,000.

    Bruce Hink, who has given me permission to utilize his name and circumstances, is a
    perfect example of what the IRS is doing to unsuspecting business owners.  What
    follows is a story about Bruce Hink and how the IRS fined him $200,000 a year for
    being in what they called “a listed transaction”.  In addition, I believe that the
    accountant who signed the tax return and the insurance agent who sold the
    retirement plan will each be fined $200,000 as material advisors.  We have received a
    large number of calls for help from accountants, business owners and insurance
    agents in similar situations.  Don’t think this will happen to you?  It is happening to a
    lot of accountants and business owners, because most of these so called listed,
    abusive plans, or plans substantially similar to the so-called listed, abusive plans are
    currently being sold by most insurance agents currently.

    Recently I came across a case where a small business owner is facing $400,000 in IRS
    penalties for 2004 and 2005 for his 412i plan. ( IRC6707A)

    In 2002, an insurance agent representing a 100 year-old well established insurance
    company suggested the owner start a pension plan.  The owner was given a portfolio
    of information from the insurance company, which was given to the company’s
    outside CPA to review and give an opinion on. The CPA gave the plan the green light
    and the plan was started for tax year 2002.

    Contributions were made in 2003. Then the administrator came out with amendments
    to the plan, based on new IRS guidelines, in October of 2004.  

    The business owner’s agent disappeared in May of 2005 before implementing the new
    guidelines from the administrator with the insurance company.  The business owner
    was left with a refund check from the insurance company, a deduction claim on his
    2004 tax return that had not been applied, and without an agent.  

    It took 6 months of making calls to the insurance company to get a new insurance
    agent assigned. By then, the IRS had started an examination of the pension plan.  
    Asking advice from the CPA and local attorney (who had no previous experience in
    such cases) made matters worse, with a “big name” law firm being recommended and
    over $30k in additional legal fees being billed in three months.  

    To make a long story short, the audit stretched on for over 2 ½ years to examine a 2
    year old pension with 4 participates and $178,000 in contributions.   

    During the audit, no funds went to the insurance company, which was awaiting IRS
    approval on restructuring the plan as a traditional defined benefit plan, which the
    administrator had suggested and which IRS had indicated would be acceptable.  The
    $90,000 2005 contribution was put into the company’s retirement bank account along
    with the 2004 contribution.  

    In March of 2008, the business owner received an apology from the IRS agent that
    headed the examination.  

    The IRS denied any appeal and ruled in October 2008 that the $400,000 penalty would

    Could you or one of your clients be next?

    Even this sympathetic IRS agent thinks there is a problem with the IRS enforcement of
    these Draconian penalties.  Below is one of her emails to the business owner who
    was fined $400,000.

    From: Kowalski Jean M <>
    Date: Tue, Mar 4, 2008 at 7:12 AM
    Subject: RE: Urgent
    To: Bruce Hink <>
    Thanks Bruce - yes - please just overnight them to the Grand Rapids address.  Once again, I'm
    sorry about this.  Basically, our Counsel told us that we needed language specific to the IRC
    6707A penalty in order for that statute to be extended.  I will ask the Reviewer to hold off an
    extra day.

    I'm also very sorry that this is getting you down. Deeply sorry.  Its very difficult for me as well -
    before I started working this project (412(i)) I was doing audits of 401(k) and profit sharing
    plans.  If there was an error in the plan, the employer would just fix it and the audit was over.  
    There wasn't anything controversial or adversarial about it - and I felt like I was helping people -
    employers and plan participants.  I really liked my job.  In two years time, that has completely
    changed.  I know its not very "professional" to make such confessions - so forgive me.  But I
    guess I just wanted you to know that I really sympathize with your situation - and have been
    doing whatever I can to help.  I know that having this hanging over your head can't be fun - but
    as this project goes forward - I think that the IRS is going to have to soften their position
    somewhat - so these delays may be to your benefit.
    Also, I'm not really supposed to be sending emails to you - but when I went through the file I
    couldn't find a good phone number for you.  Could you just send me a note or an email with a
    current phone number?

    Looking to receive the signed 872s on Thursday.  If you have any questions at any
    time - please call me at 616-235-1297.  I'm usually in the office in the mornings.  

    Lance Wallach speaks and writes about benefit plans, and has authored
    numerous books for the AICPA, Bisk Total tape, and others. He can be reached
    at (516) 938-5007 or For more articles on this or other
    subjects, feel free to visit his website at

    The information contained in this article is not intended as legal, accounting,
    financial or any other type of advice for any specific individual or entity. You
    should seek such advice from an appropriate professional.

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IRS Small Business
& Self-Employed Division will
Emphasize Enforcement Activities over the Next Year

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