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How to prepare an IRS Bank Deposit Analysis

The bank deposit analysis is essential to every single IRS audit. 

An IRS Bank Deposit Analysis is a tool used by the Internal Revenue Service (IRS) to help determine whether an individual or business has accurately reported their income on their tax returns. Preparing an IRS Bank Deposit Analysis involves gathering and organizing financial records, including bank statements and other documentation of deposits made into your account(s). 

This process can be time-consuming and may require some effort, but it is important to accurately report your income to the IRS to avoid potential penalties and fines.

In this article, we will provide an overview of the steps involved in preparing an IRS Bank Deposit Analysis and offer some tips for making the process as smooth as possible. Let’s begin with reviewing what an IRS bank deposit analysis includes.

What is an IRS Bank Deposit Analysis?

A bank deposit analysis is where the IRS will analyze all the deposits coming into a bank account that you own, either personal or business, and determine whether those deposits are taxable or non-taxable income. 

It can be difficult to determine the source of cash deposits, as it is not always clear whether the money was received from the sale of a car or from wages earned through work. As a taxpayer or business owner, it is your responsibility to provide documentation to establish the origin of income and determine whether the deposit is considered non-taxable. It is important to accurately report all income to the Internal Revenue Service (IRS) to avoid potential penalties and fines.

How to Start Preparing for an IRS Bank Deposit Analysis

Here are some steps you can follow to prepare an IRS Bank Deposit Analysis:

Gather financial records: Start by gathering all relevant financial records, including bank statements and any other documentation of deposits made into your account(s). This may include pay stubs, invoices, receipts, and other documentation that supports the sources of the deposits.

Organize the records: Next, organize the records in a way that makes it easy to review and analyze the deposits. This may involve sorting the records by account, timeframe, or source.

Calculate the total deposits: Using the financial records, calculate the total amount of deposits made into the account(s) being analyzed.

Identify the sources of the deposits: Determine the sources of the deposits, such as wages, self-employment income, rents, and other sources.

Determine the taxability of the deposits: Review the documentation provided and consider the taxability of the deposits based on the source of the funds and any applicable tax laws.

Prepare the analysis: Using the information gathered, prepare the IRS Bank Deposit Analysis by completing all relevant sections, including a summary of deposits, a breakdown of deposits by source and account, and any supporting documentation.

The IRS Bank Deposit Analysis Process: How It Works

Let’s dive into the key considerations surrounding the IRS Bank Deposit Analysis process. This includes an overview of how the process operates, as well as the types of information that may be requested from taxpayers in the course of the analysis.

Sources of Income

It may be difficult to determine the source and taxability of certain types of income, such as funds transferred from a credit line or money received from escrow. In these cases, it may be necessary to provide additional documentation or seek clarification from the source of the funds to establish the origin of the income and determine its taxability. 

If you receive a check and a copy of it from the IRS, you can use the information on the check to understand where the money is coming from and whether or not it is taxable. It might be helpful to contact the person who wrote the check to confirm the source of the income and why you received it.

Determining Income

The Bank Deposit Analysis is an essential part of every single IRS audit because determining income is essential to every single IRS audit. 

Upon completion of the IRS Bank Deposit Analysis, the IRS will prepare a work paper that compares the total deposits identified in the analysis to the income reported on the individual or business’s tax return. If there is a discrepancy between the two, especially if there is an increase in the total deposits, the IRS may assess additional taxes based on the increase in income. 

This process may be repeated for each year being audited. It is important to accurately report all income on tax returns to avoid potential assessments of additional taxes and penalties.

Additional Years

If IRS selects the first year for audit as a test year and discovers unreported income, it is likely that additional years will also be audited. However, if the amount of unreported income is relatively small or insignificant, IRS may not conclude that the same errors are occurring in other years. It is important to accurately report all income on tax returns to avoid potential assessments of additional taxes and penalties.

Be Careful with Cash

During an IRS audit, it is advisable to devote significant attention to the Bank Deposit Analysis and maintain thorough records, particularly when depositing cash. It can be difficult to trace the source of cash deposits, so it is important to document the origin of the funds through photocopies of checks, contracts, or other relevant documentation. 

Additionally, making a note of the source of cash deposits, such as the sale of a car or the receipt of a contract payment, can help to explain and potentially resolve any issues with the IRS. Accurate record-keeping is crucial in the event of an IRS audit to ensure that all income is accurately reported and to avoid potential assessments of additional taxes and penalties.

Still Have Questions?

Business owners should contact Milikowsky Tax Law if they have any additional questions about how to navigate the IRS audit process.

At Milikowsky Tax Law, we have over a decade of experience working with IRS and tax audits. We’re experts in defending business owners in the face of IRS or other government agency audits.

Interested in learning more? Read on to learn how to respond to an IRS audit.

SBA PPP Loan Paperwork

The Small Business Administration (SBA) has forgiven over 98% of the total Paycheck Protection Program (PPP) loan value that borrowers requested them to forgive; recently, however, SBA has begun to issue more forgiveness PPP loan forgiveness denials.

Many of these recent denials issued by the SBA are not consistent with their own guidelines. Borrowers have received denial letters based on:

  •  Insufficient communication between SBA and lenders
  •  Misapplication of SBA’s Interim Final Rules (IFRs) or affiliation rules
  •  Mistakes by SBA surrounding the loss or misuse of borrower information

Borrowers should be aware that such denials are appealable. Consider challenging forgiveness denials if you believe SBA’s decision is in error.

Read our full guide to SBA’s PPP loan forgiveness denial below to learn more about how to appeal a denial, the criteria required for an appeal, and who can represent your company in the process. 

How Do I Know if My Business’ PPP Loan Forgiveness was Denied?

If SBA denied your application, you will receive an SBA Final Decision Letter in the mail. 

Learn more about what to do if your PPP loan is not forgiven, here.

How Do I Know Why My Business’ Forgiveness Application was Denied?

The first page of the Final Decision letter contains a section indented and in bold that provides the reasons SBA denied your request for forgiveness. It’s important to understand why SBA is rejecting the forgiveness application before taking action- such as appealing the denial.

Who Makes the Decision on PPP Forgiveness?

The decision to deny your PPP loan forgiveness can be made by:

  • Your lender (i.e. bank, credit union)
  • The Small Business Administration (SBA)

How Much Time Do I Have to Appeal a PPP Loan Forgiveness Denial?

You must respond to SBA and submit your appeal within 30 days of the date listed on your SBA Final Decision Letter.  The timeline for SBA forgiveness appeals is inflexible. Once your initial 30-day period expires, you will lose your right to appeal SBA’s denial to forgive your PPP loan.

How Do I Appeal a PPP Loan Forgiveness Denial?

You must appeal denials of forgiveness to the SBA’s Office of Hearings and Appeals (OHA) within the 30-day period. 

File appeals through OHA’s case portal. Filings for PPP appeals received in any other manner may be rejected and not docketed for processing.

SBA states that OHA has jurisdiction over appeals where SBA has provided the borrower with a PPP final loan review decision finding the borrower:

  • Is ineligible for a PPP loan
  • Is ineligible for the PPP loan amount received
  • Used the loan proceeds for unauthorized uses
  • Is ineligible for the PPP loan forgiveness amount determined by the lender in its full or partial approval decision issued to SBA, or
  • Is ineligible for PPP loan forgiveness when the lender has issued a full denial decision to SBA.

Learn more about how to appeal an SBA PPP forgiveness denial, here. 

What Information Do I Need to Provide in the Appeal?

The criteria for an appeal filed with the SBA are strict. According to SBA, appeals must contain:

  • A complete, detailed statement as to why the SBA loan review decision is erroneous, with accurate information and legal arguments supporting the statement;
  • No more than 20 pages (not including attachments)
  • Clearly labeled exhibits and attachments

Due to the strict criteria of the appeal, we recommend hiring a qualified attorney to represent your business and help you to create a strong, successful appeal. 

Who Can Represent My Business in the Appeal Process?

An identified legal representative of the business or a qualified attorney must represent the appeal since the SBA PPP loan is a business loan and not a personal loan. To represent your business, one must be:

  • A shareholder owner 
  • An officer, or
  • An attorney

Who Can’t Represent My Business in the SBA Appeal Process?

The following positions are not legally entitled or allowed to represent businesses in the SBA appeal process:

  • Certified Public Accountants (CPAs)
  • Lenders 
  • General Employees

What if I Lose My Appeal?

Any appeal denied in the Office of Hearings and Appeals will have to go to a higher court. Why? Because SBA is a federal agency. The process of going to federal court can be extremely tedious and expensive due to the strict regulations. 

To avoid the costly and time-consuming process of going to the federal district court, we recommend hiring a qualified attorney to make sure you’re building a strong appeal for your business.

While each case is unique and this is not an indication of success in other cases nor a promise of results, our team at Milikowsky Tax Law has extensive experience in government audits and cases involving government entities from IRS to SBA and CSLB.  

Contact Milikowsky Tax Law and learn how we can help.

IRS Audit Letter

In the final part of our three-part series “how to respond to an IRS audit in 2022,” the IRS Audit Attorneys here at Milikowsky Tax Law focus on the actual response to Internal Revenue Service (IRS).

Watch the video below to learn more from Milikowsky Tax Law’s Founder and Managing Attorney, John Milikowsky, as he explains how to craft the right response.

The Initial IRS Audit Letter

When IRS sends the initial IRS audit letter, they send Letter 6323 initiating the audit. This initial letter gives small businesses 10 days to contact the assigned revenue agent. The reason for the quick turnaround time is to schedule an appointment with the assigned revenue agent to go through a litany of questions to determine the following:

  • What income do you have
  • What sources were they from
  • Whether you have cryptocurrency
  • What form of bank accounts did you use
  • And more

What Should You Do After Receiving IRS Letter 6323?

After receiving IRS Letter 6323, review your business’s tax return before meeting with a tax attorney. Partnering with a trusted tax attorney will help guide you to understand the scope of what this audit involves. Moreover, this tax attorney can help create your response to the initial letter within the 10-day timeframe.

What Happens If I Don’t Respond to IRS Letter 6323?

Failure to respond to IRS Letter 6323 in a timely manner will result in an Information Document Request (IDR). The IDR includes bank statements along with any other information relating to what is reported on a tax return—or includes whatever additional information IRS has in their database.

Businesses that fail to respond to IRS requests typically result in the following: The government agency will estimate the business’s income along with disallowing most, if not all business expenses and any other deductions. The business’s income is typically a higher amount than what is reported on the income tax return. Why? Because IRS doesn’t have the source information.

Anticipate IRS summoning your bank account because they don’t need a court order to do so. A revenue agent can send a signed document to your bank requesting all of your bank statements, canceled checks, and deposit items in order to estimate what income should be.

They don’t, however, have the ability to receive the source documents for your expenses. If it relates to your business or charitable contributions, the agency will not look into that—which means they will be disallowed.

More times than not, failure to reply to IRS Audit Letter 6323 does not benefit your business. After the audit review, if you do not respond to IRS Letter 6323, the government agency will calculate a much higher number for taxes due than what’s on your tax return. Because of this, it’s encouraged to respond to IRS in a timely manner.

Another negative consequence of failing to respond to IRS is it can increase the scope of the audit to other issues that IRS may not have been originally looking at, as well as additional years than originally intended.

What To Do If You Receive Audit Letter 6323?

If your business receives Audit Letter 6323 from IRS, contact a tax attorney and your CPA. They will help defend your business against the consequences of an IRS audit.

By partnering with a tax attorney and your CPA, you recruit a team of experts who:

  • Comb through your source documents
  • Understand each of your deposit items in your bank account
  • Ensure accurately reported income
  • And more

This way, you are prepared to fight back from IRS claims and come out unscathed on the other side.

An added benefit of partnering with an attorney is protection through attorney-client privilege. If your business misfiled taxes, accidentally or purposefully, you are protected by attorney-client privileges.

Communication with a CPA is not protected in the same way. A trusted CPA, especially if your case leads to any type of fraud or criminal investigation, could be summoned before a grand jury, along with the information requested from him or her.

From day one, speak with a San Diego tax attorney to make sure you have the best strategy implemented, and that your communications are protected.

For more information regarding IRS audits, read our article explaining five signs your business is prepared for an audit by IRS.

Tax Calculation

IRS Letter 6323 and What to Do Before Contacting IRS

Small business owners should be prepared in case the Internal Revenue Service decides to audit your business. Watch part one of our three part series for advice on how to defend your business against a battle with IRS.  In this video, our founder and managing attorney, John Milikowsky explains five things to do before you respond to an IRS audit letter.

Identify the Taxpayer

Before diving into your audit letter, first identify who the taxpayer is on the top left corner of the letter. If the letter is addressed to you as an individual, IRS is primarily looking at your 1040 return.

This can include other companies you own or control where the income and/or losses are being reported on your individual return.

If the letter addresses your company’s name, then you can expect a broader audit. A broader audit can impact other shareholders and partners.

Identify the Revenue Agent

After identifying the taxpayer, review who the revenue agent is. The revenue agent can be located either inside of your city or outside of your city.

If the agent is located outside of your city, we recommend you question why.

Recently, we defended a client in a battle against IRS. The client is based in Los Angeles, but their revenue agent was based in Chicago, Illinois. This identified larger issues at play- IRS was potentially looking at not only this tax return but possibly other tax returns as well. In this case, they could be part of a broader, national audit.

Identify the Tax Year Being Audited

Confirm the tax years IRS is auditing. Ask yourself, “Is it a single-year audit?” or “is this audit for more than one tax year?”

Typically IRS will audit three years of tax returns. Initially, they may begin with a single-year audit.  Depending on the results of the audit, they’re may explore other years to identify a trend.

IRS can audit as far back as 6 years, if there’s gross understatement of income. If there is fraud involved, IRS can audit an unlimited number of years.

Typically, if IRS is looking at a 5-year block of time, they are looking at a potential fraud issue- which could lead to a criminal investigation. Before they can determine if a case involves fraudulent activity, IRS will review your returns in detail to identify any incriminating information.

Identify the Issue(s) that Triggered the Audit

Read the audit letter to identify what issue(s) are being identified for audit. This is not an expensive all-inclusive list, however, it is a starting point for IRS.

During an audit, IRS always reviews income on tax returns and evaluates if that information reported was accurate, not understated. How do they evaluate your income statement is accurate? IRS does so by conducting a bank deposit analysis: they collect all of your bank statements, both personal and business, to determine whether you reported the correct amount of income.

When assessing income, there are times income for an individual may be reported in a business account or vice versa. During the audit, IRS ensures they capture all of your transactional information, and that it’s accurately being reported. Anticipate IRS asking for:

  • Bank statements
  • Cancelled checks
  • Deposit images

IRS also looks at your expenses. When looking at your expenses, they are looking for source documents, such as, invoices. They are checking payments, to verify that you not only incurred the expense, but also that you paid for it.

The purpose of gathering this information is to verify the deposits are income and not non-taxable income such as insurance proceeds that would not normally be taxed. The only way IRS can reach that bottom line number is by reviewing the source documents.

Identify the Response Deadline

IRS will identify a deadline by which you must respond  to their letter by. Generally, the revenue agent will give you 10 days to respond to the initial letter- you are not yet providing the documents requested. This initial response serves the purpose of:

  • Contacting the the revenue agent
  • Scheduling an appointment to provide the requested records

During the first appointment, you will go through an interview with your assigned IRS agent. Your agent will walk through a whole litany of questions to understand:

  • The scope of what income looks like for you
  • Whether you received an inheritance for instance
  • Whether you received any large transfers
  • Whether you have any cryptocurrency
  • And more

Best practice is to contact a tax attorney to review the questions ahead of time. Credibility is one of your most valuable assets during an audit. When you first meet with IRS and communicate with them, their agents will judge whether you’re credible and whether the information you’re providing is forthcoming and truthful. If IRS deems you are not, they will launch a deeper dive.

For more information on IRS audits in 2022, read the second part of our series by clicking the link here.

follow our five steps to make sure your business is ready for an IRS audit

Internal Revenue Service (IRS) will flag businesses for an audit when the agency finds suspicious activity in your business’ tax returns. The suspicious activity may be innocent in nature, but IRS performs an audit to ensure your business paid the required taxes. 

Though, occasionally, the agency will randomly audit businesses. This instance is less likely, but can still occur. It’s important to make sure your business is ready no matter the circumstances. 

Oftentimes, businesses are more susceptible to an audit if they:

  • Have foreign assets 
  • Have a cash business 
  • Are self-employed 
  • Have a home-based business 
  • Claim a disproportionate number of deductions 
  • File incorrect or incomplete returns 
  • Have a large number of cash transactions 
  • Earn less than $25,000 or more than $500,00
  • File a Schedule C 
  • Claim a vehicle as 100% business expense 
  • File taxes late 

The rate of audits rose by 50% in 2021, and are projected to stay on this upward trend as the government searches for ways to fund the proposed Build Back Better Bill. How can you prepare for a potential audit before it occurs?. 

Signs Your Business is Prepared for an Audit

1. You Keep Organized Records 

Recordkeeping is a fundamental part of being prepared for an audit. Keeping receipts, expenses, pay stubs, income, and other financial documents well-organized helps show the auditor proof of monetary movement that supports your tax file.  

This documentation can be physical or electronic –  as long as it’s there. Best practice is to keep the original and provide copies to the auditor in case of accidental damage or misplacement. 

Audits typically go back three years, but at Milikowsky Tax Law we recommend you keep financial records up to seven years back. 

 

2. Your W-2 employees  and 1099 workers are correctly classified

W-2 employees and 1099 workers perform different roles for your business. Therefore, they must be classified accordingly. Misclassification can lead to fines, penalties, and even jail time. 

Why? Because misclassifying an employee as a 1099 independent contractor strips the worker of employee benefits, and the government of payroll taxes associated with having a W-2 employee. 

W-2 employees are hired for specific jobs, work set hours, receive benefits, and have taxes withheld from payroll. 

1099 independent contractors work on a contractual basis, are paid a set fee, do not receive benefits, do not have taxes withheld, and have more work flexibility. 

The “right of control” helps business owners determine worker’s status by answering three criteria:

  1. Behavioral Control: Are you in charge of the manner in which workers perform their duty?
  2. Financial Control: Do you pay regular wages and have the ability to fire the employee?
  3. Relationship to business: Is the employee an essential part of helping your business run?

Assembly Bill 5 (AB-5) implemented at the beginning of 2020, set regulations for 1099 independent contractor classification. Under the new law, all workers are considered W-2 employees unless the independent contractor meets all three of the following conditions

  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  • The worker performs work that is outside the usual course of the hiring entity’s business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Correctly classified W-2 employees and 1099 workers help you avoid further investigation and penalties in an audit. 

 

3. You Use Deductions Claims Appropriately

Tax deductions are implemented to help businesses reduce their taxable income, but what qualifies as a proper deduction? Under IRS, the deduction must be ordinary and necessary. 

According to IRS, “an ordinary expense is one that is common and accepted in your trade or business. A necessary expense is one that is helpful and appropriate for your trade or business. An expense does not have to be indispensable to be considered necessary.” 

A few deductions small businesses can claim include:

  • PPP loans 
  • EIDL and EIDL advance funds 
  • Travel 
  • Office supplies 
  • Home office 
  • Rent 
  • Repairs and maintenance 
  • Utilities 
  • Employee benefits 
  • Employee bonuses 
  • Employee wages 
  • Employee education 
  • Insurance premiums 
  • Charitable donations 
  • Commissions 
  • And more

When looking at claims, IRS matches claim amounts to total income received. If your total claims filed are too high, IRS will suspect some deductions were falsified. 

Accurate claims combined with receipts that prove purchases set you up for IRS audit success. 

4. You Filed Accurate Taxes

Accurate business tax files strengthen your case during an IRS audit. The auditor is looking for errors, omissions, and potential fabrication during the audit process. 

Oftentimes, audits arise because simple mathematical mistakes throw off numbers. By double-checking your return and using exact numbers when you file your taxes, your business will be better prepared for a potential audit. 

During the process, they will crossmatch your business returns and look to see if your business reports match the total income reported by you and by your W-2 and 1099 workers. 

5. You Know When to Use a Trusted Attorney 

A trusted tax attorney can help build your case in the face of an IRS audit. Their expertise will help you

  • Prepare legal defense 
  • Review your documents to identify potential errors or issues  
  • Handle discussions with your auditor 
  • Represent your business before IRS 
  • Develop legal theories that may include “reasonable cause” defense 
  • Help you improve the chances of a successful audit  

Have more questions about IRS audits? Read our article here answering the top 7 questions we receive about IRS audits. 

 

there are signs that your business is ready for an EDD audit

California CPAs should ask their clients who hire 1099s if they have a contractual agreement, invoices, licenses, insurance, and an EIN.

Certified Public Accountants (CPAs) have the most insight into their business owner clients’ daily transactional history. You may find that your clients who have 1099 contractors are now in the grey area of worker classification since it was redefined by AB-5 in January 2020.  

Under the new bill, all workers are automatically classified as W-2 employees unless they meet all three of the following criteria

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact
  2. The worker performs work that is outside the usual course of the hiring entity’s business
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

We frequently see cases of inadvertent contractor misclassification that are flagged by The Employment Development Department (EDD). EDD audits are most commonly triggered by: 

  • Independent contractors filing for unemployment benefits 
  • Employee complaints 
  • Late tax filings 
  • Random verification audits 

If the agency finds any misclassified workers during the audit, it results in fines, fees, and penalties that can be damagingly high if left unaddressed. 

Keeping this in mind, here are questions you can ask your clients to ensure that their 1099s are correctly classified, and help your clients reduce the risk of an EDD Misclassification Audit: 

  • Do your 1099s do similar jobs to your W-2s?
  • Do you have a contractor agreement with all of your 1099s?
  • Do your contractors Invoice you?
  • Does your contractor have a license?
  • Do they have insurance? 
  • Do they have an EIN?

Here’s an overview of how each question can provide more insight for your clients. 

Do Your 1099s do Similar Jobs to Your W-2s?

1099 independent contractors who perform similar jobs as W-2 employees may be considered an employee during an audit unless there is a clear distinction between the two. Make sure there are clear distinctions between the two. The W-2 employee works regulated hours, has specific job functions, is provided work equipment, and is told when and how to perform their job duties. They also receive employee benefits and do not have a clear end date for the work performed. 

On the other hand, 1099 independent contractors have flexible working hours, flexible job requirements as dictated through the contract, must provide their own working equipment, can work for multiple employers at the same time, and are not directly managed on job functions. They do not receive employee benefits and have a clearer job end-date. 

For example, one of your business owner clients may have a marketing coordinator who is classified as an employee. Your client may want to hire a marketing agency for a website redesign as a 1099 independent contractor. While both the marketing coordinator and the marketing agency perform job functions under the marketing umbrella, their job functions and classifications are different. 

The coordinator develops and executes the client’s marketing strategy specifically for your client’s company for as long as they work in that specific role. The hired marketing agency will perform the website redesign for your client until the project is complete. Once finished, the partnership is completed. While the marketing agency is working on your client’s website redesign, they can simultaneously work for other companies. 

Do You Have a Contractor Agreement With all of Your 1099s?

The independent contractor agreement outlines specific details for the job the independent contractor will perform. It is the working arrangement between the client and the contractor that typically includes:

  • A description of the job or service provided by the contractor
  • Payment details (this can include information about retainers, deposits and billing) 
  • The length and term of the project or service 

Do Your Contractors Invoice You?

Invoices help keep records of payments, type of work performed, and hours worked. Having organized records of invoices between the contractor and the client helps EDD verify that the independent contractor is indeed an independent contractor. 

Clients who put 1099s on scheduled payroll put themselves at risk for a misclassification audit. W-2 workers should be placed on payroll, not 1099s. 

Does Your Contractor Have a License?

Some workers (such as healthcare professionals and construction workers) are required to provide proper licenses to work. Failing to hire workers with proper licensure can open your client’s business to hefty fines and penalties from EDD. 

If your client hires contractors who don’t have licenses do they have: 

  • A website?
  • A social media presence? 
  • A marketing budget?

These are all important factors to consider. 

Do They Have Insurance? 

Independent contractors provide their own insurance to cover liability, worker’s compensation, or other risks to help them protect their business. If your client is insuring their independent contractors, this is a sign they may actually be W-2 employees. 

Do They Have an EIN?

An EIN is an Employer Identification Number. This is a unique tax identification number for businesses in the United States to pay state and federal taxes. Asking independent contractors without an EIN to provide one is a simple way to further ensure they are 1099s.

All of these factors add up to a robust defense against a misclassification audit by EDD. By fixing any misclassification errors ahead of time, CPAs can save their business owner clients the hefty fines and penalties associated with EDD audit findings. Want to learn more about the EDD audit process? 

Read our article on what to expect in an EDD audit here. 

 

California CPA's should ask their clients the right questions to help them avoid triggering an EDD audit

does IRS wants to look at your bank account?

Bank accounts serve as a tool for personal and private finances. In the past, bank accounts were not typically investigated or monitored by the Internal Revenue Service (IRS) unless a taxpayer experienced an audit. However, following a proposal by the Biden Administration, IRS can now look into your bank account. 

Watch our full video below for a detailed explanation of why IRS wants to look into bank accounts.

Read on to learn why IRS wants to look into your account, what information they’re looking for, and how this financial reporting will work.

Why Does IRS Want to Look into Your Bank Account?

IRS’ goal is to find account holders who use personal checking accounts to avoid paying full tax amounts and narrow the tax gap.  

What is the Tax Gap?

The tax gap is the difference between taxes owed and taxes collected. According to the U.S. Department of Treasury, the tax gap amounts to approximately $600 billion annually and has exceeded $7 trillion in unpaid taxes over the last decade. The U.S. Department of Treasury also claims the wealthiest one percent of Americans alone evade over $163 billion in taxes each year.

How Will This Financial Reporting Work?

According to the U.S. Treasury, banks and financial institutions will include “just two additional numbers to the information that they already supply to taxpayers and the IRS.” 

What Information Will IRS Look At?

The “two additional numbers” IRS is asking banks and institutions to report are:

  1. The total amount of funds deposited into the account over the course of the year
  2. The total amount of funds withdrawn from the account over the course of the year

How Will IRS Use This Financial Information?

IRS will compare the annual tax flow of account holders against their tax returns to determine if the account holder is likely paying the full amount of taxes or if the account holder should be audited. 

What Other Financial Information Will IRS Look at?

The Treasury claims “the scope of this information sharing is extremely limited.” Further, the Treasury reiterates that banks will not share individual spending or transactions, nor will IRS have the ability to track such transactions.

In short, no individual spending information will reviewed–only the total sum of deposits and withdrawals. 

What Other Information Does IRS Already Have Access To?

The IRS obtains information on taxpayers from sources such as:

  • Filed tax returns
  • Third parties, such as the Social Security Administration
  • Information statements about the taxpayer under their Social Security number, such as W-2 forms and Form 1099

From this information, IRS likely already knew about each taxpayer’s accounts,  but will now know what funds are going in and out of those same accounts as well.

What Are the Risks of IRS Looking into Bank Accounts?

IRS looking into personal checking accounts can lead to additional and unnecessary audits as well as violate bankers’ privacy.  There are multiple explanations for why money coming into your bank account–whether business or personal–is not income.

How Can IRS Looking into Bank Accounts Affect Small Business Owners?

Banks reporting deposits and withdrawals to IRS may lead to additional audits for small business owners (SBOs)–even if the SBOs are paying their taxes fully and correctly. 

For example, a small business owner may deposit $1,000,000 into their bank account but only report $600,000 of income. The bank will report the $1,000,000, exposing the difference between the original deposit and the amount the SBO reported; this difference could potentially lead to an IRS audit as the IRS will want more information on the unreported income. More specifically, IRS will want to know if the SBO should be paying taxes on the $400,000. 

However, there are several reasons that an SBO may deposit income and not report the full deposit amount, such as:

  • There may be non-income items deposited into the account. 
  • The SBO might have taken money from a credit line, a loan, or transferred money between accounts.

How Is This Financial Reporting Different Than IRS Audits?

During our client’s audit processes, our office performs a bank deposit analysis. We’ll add up the total deposits for the year, review the total cash flow, and compare that to the tax return. If these two figures are off, we’ll meet with the client to discuss the discrepancies and ask them to justify whether each deposit is or is not income. 

In an audit, IRS will conduct a similar analysis. 

However, the difference is that IRS only had access to this information in an audit instead of on a day-to-day level. IRS shouldn’t have access to the banking information of all Americans with accounts in the United States; it is an unnecessary invasion of privacy. 

Do you know what to do if your business’ tax return was flagged for an audit by IRS? Learn more here.

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California Assembly Bill 5 (AB-5) took effect on January 1, 2020, and is the new standard by which employers must classify employees. Small business owners (SBOs) should familiarize themselves with AB-5 and the ABC test to avoid employee misclassification and potential penalties from the Internal Revenue Service (IRS).

What is Assembly Bill 5 (AB-5)?

Assembly Bill 5, commonly referred to as AB-5, is a piece of legislation that extends employee classification status to some independent contractors, requiring that hiring entities reclassify these workers as employees based on the strict criteria outlined in the ABC Test.

What Caused Assembly Bill 5?

Assembly Bill 5 was inspired by the April 2018 Dynamex Case—when Dynamex reclassified all employees (previously classified as W-2s with all the associated perks) as independent contractors to save employee costs– before being signed into law by Governor Gavin Newsom in September 2019.

Read on to learn how Dynamex ruined it for everyone.

What Businesses Does AB-5 Affect?

AB-5 affects all small businesses and small business owners. Most prominently, AB-5 impacts SBOs who hire 1099 independent contractors and their operations in California.

How Does AB-5 Affect Businesses?

Through AB-5, the California Employment Development Department (EDD) places the burden of proof on businesses to show that workers are correctly classified as 1099 contractors.

The misclassification of employees can lead to:

  • High fines
  • Penalties
  • And back tax payments

How Do I Correctly Classify 1099 Independent Contractors?

AB-5 introduced the ABC test as a stricter guideline to determine how to classify a worker as a 1099 independent contractor. 

What is ABC Test?

Check out our video below for an in-depth explanation of the ABC Test.

The ABC test is a set of requirements that the worker must meet to be classified as a 1099 independent contractor instead of a W-2 employee. The worker must meet all three criteria of the ABC test to be correctly classified as an independent contractor:

  1. The worker is free from the control and direction of the hiring entity in connection to the performance of the work.
  2. The worker performs work that is outside the usual course of the hiring entity’s business.
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

If the contractor fails to meet any of the criteria in the ABC test, they are automatically classified as a W-2 employee instead.  

How To Meet The ABC Test Criteria 

When classifying your 1099 independent contractors according to the ABC Test, gather the following information to make sure they are classified correctly.

The First Criteria

  • Gather information on project deliverables and how they are delivered.
  • Have your contractor submit an invoice.
  • Keep correspondence about project timelines recorded in a clear and accurate manner.
  • Ensure you’re not placing requirements on your 1099 contractors regarding how they perform their work. For instance, do not tell the workers what to do or specify reporting requirements. 
  • Document and file scope of work (SOW) from your contractor.

The Second Criteria

  • Compose a definition of your contractors’ line of work.
  • Compose your definition of your business’s line of work (i.e. what products or services does your company provide?)

The Third Criteria

  • Verify if your 1099 has insurance.
  • Ask if they have a legal entity.
  • Check if they have associations, unions, or other affiliations.
  • Review their professional certifications.
  • Gather their business card, website, and a list of other clients the contractor has worked for.

What is the Borello Test?

Before AB-5 was signed into law, the Borello test was used to determine if an employee should be classified as a 1099 independent contractor or a W-2 employee. The Borello test was established by the Supreme Court in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989). The test relies on 13 factors to determine employee classification.

Even with new AB-5 regulations, the Borello test can still be a useful resource to help classify employees.

EDD provides the full Borello test worksheet with the following questions to help guide classification:

  1. Do you instruct or supervise the person while he or she is working?
  2. Can the worker quit or be discharged (fired) at any time?
  3. Is the work being performed part of your regular business?
  4. Does the worker have a separately established business?
  5. Is the worker free to make business decisions that affect his or her ability to profit from the work?
  6. Does the individual have a substantial investment in their job which would subject him or her to the financial risk of loss?
  7. Do you have employees who do the same type of work?
  8. Do you furnish the tools, equipment, or supplies used to perform the work?
  9. Is the work considered unskilled or semi-skilled labor?
  10. Do you provide training for the worker?
  11. Is the worker paid a fixed salary, an hourly wage, or based on a piece-rate basis?
  12. Did the worker previously perform the same or similar services for you as an employee?
  13. Does the worker believe that he or she is an employee?

Answering “yes” to questions 1-3 would provide a strong indication that the worker is an employee. Answering “no” to questions 4-6 would indicate that a worker is not in business for themselves and would likely classify as an employee. Questions 7-13 indicate important factors to be considered.

While answering “yes” to any one of the questions may indicate that a worker should be classified as an employee, no single factor is enough to determine classification independently.

The full worksheet provided by EDD provides further clarification on certain factors and circumstances.

If completing the provided worksheet does not provide sufficient clarification for employers, EDD also offers the ability to request a written ruling by completing a seven-page form called Determination of Employment Work Status. The form supports any business entity looking to determine if a worker is an employee or an independent contractor.

How Do I Avoid Misclassification?

You can avoid misclassification by carefully analyzing the arrangement you have with your worker in relation to the guidelines described in the ABC test and regulations set forth by AB-5.

To learn more, read on about how to hire an independent contractor.