Tag Archive for: taxes

Insights for CPAs to Minimize Audit Risk for Their Clients

If you are a CPA, here are 4 things to help your client reduce the risk of an EDD, IRS, or SBA audit:

1. Confirm that your client’s 1099-K (provided by a merchant processor) does not report gross proceeds from credit card sales that are higher than the amount you are reporting as “gross receipts” on a business income tax return. 

If there is a difference, you may consider adding a statement to explain a legitimate difference. For instance, chargebacks and returns are not subtracted from the amount of “gross proceeds” on the 1099-K form.

2. If you have a client who has more 1099 contractors than employees, have your client provide facts to support these workers have a legitimate and independent business i.e. EIN, business entity, website – something to establish a legit business. 

EDD and IRS typically look under one the following expense categories for contractors to identify contractors that paid by a business: 

  • Schedule C: “commissions and fees”; “contract labor”; or “Legal and professional”; 
  • 1120S (S corp) and 1065 (LLC): typically find these are reported under COGS or under “other deductions” with a label such as “outside services” or “contractors.”

If you prepare a business return where the business has, for instance, 10 independent contractors and only 2 employees (i.e. where the business owners are also officers of the corporation), you should spend time with the company’s management team to analyze whether the 1099 contractors are legitimate under your state’s law and federal law. 

California recently passed a new law called AB5 (effective as of 1/1/2020) that changes the analysis of a worker’s status. AB5 now has a 3-part test that is more difficult for companies to satisfy. 

You will want to review your client’s general ledger and confirm they are properly reporting ALL 1099s. You should confirm that every independent contractor who provides services (over $600) receives a 1099. If one is missed, the Employment Development Department (EDD) may extend a 3-year audit to 8 years and assess an additional penalty, where the penalty may be higher than the tax.

When reviewing the general ledger, confirm the payees are truly contractors and not workers that should be reported as employees.

Insights for CPAs to Minimize Audit Risk for Their Clients

3. If your client is selling a business, the buyer will require the current owner to produce a “tax clearance certificate” from the California Department of Tax and Fee Administration (CDTFA), the agency responsible for collecting and regulating sales tax in California.

We have had numerous audits that commenced during escrow, possibly a result of the Tax Clearance Certificate application that was filed with the tax agency. So, you may want to review your client’s general ledger and confirm that the amount of sales tax reported and paid to the state is accurate and the proper correct sales tax rate was used (that includes both local and city tax), as well as confirming that exempt sales are truly exempt.

4. If your client applied for a PPP loan, and receives a request for information and documents from their bank to substantiate their financials, consider calling a tax attorney to review SBA’s regulations and any questions from the bank. 

The Small Business Administration (SBA) is currently investigating all SBA Payment Protection Program (PPP) loans, regardless of the dollar amount of the loan.

Based on information obtained from SBA, once a request has been made for additional documents following the funding of the loan, there is an active investigation. The response from you, the CPA, and your client will affect whether the case is referred to for potential criminal investigation. This would be the case when the information simply does not support the financials or the requirements of the PPP loan.

Issues that have come up in some of our cases include: 

  • Not having a legitimate work visa
  • Using PPP funds obtained by one company that another company applied for and obtained through SBA

There are significant benefits to a CPA working with our firm. Some include the following: 

  • Our law firm does NOT prepare tax returns. We work with CPAs referring clients to those who need a business/personal tax return.
  • We typically have joint representation during an EDD or IRS audit.
  • We also handle criminal tax investigations to protect you and your client because your communications with an IRS Criminal Investigator are NOT protected by any privilege. However, having an attorney represent your client will ensure the communication and evidence your client provides are protected.

For more information or to get started working with us, contact us today. 

How Taking Advantage of the Tax Deadline Extension May Benefit You

As a result of the ongoing global pandemic, IRS has elected to extend the 2020 tax submission deadline to May 17, 2021. Following last year’s deadline extension to July 15, it was predicted early on that this would likely be the case. 

As the original deadline has recently passed and the extended deadline draws near, taxpayers are once again in a position to ensure that their information is submitted correctly in a timely manner to avoid the possibility of an IRS tax audit. 

The financial challenges imposed upon many businesses and individuals in the past year + make the possibility of being faced with an audit more intimidating. Many business owners have undergone financial difficulties and are relying on government funding, such as PPP loans or EIDL funding, to stay afloat. That being said, it has come to light that not all government support was claimed with integrity, resulting in an increased rate of audits and in-depth reviews. 

What does the delay in the deadline mean for taxpayers preparing their taxes by the upcoming deadline? 

Is it worthwhile to take advantage of the deadline extension? What are the benefits of doing so? 

Despite the fact that tax day rolls around at the same time every year, many people still leave their filings until the last minute. Last-minute filing can lead to reporting that is rushed, and potentially incorrect as a result. In the event that your taxes are filed incorrectly, you’re likely an easy target for an IRS audit. 

If taking advantage of the extended deadline is the difference between taking the time to review your records to ensure proper filings or potentially filing mistake-riddled taxes, you’re certainly better or taking the extra month to do so. 

Even in a normal year, any taxpayer is eligible for an extension for their tax filings. “Filing Form 4868 gives taxpayers until October 15 to file their 2020 tax return but does not grant an extension of time to pay taxes due.” While Form 4868 allows taxpayers an extension to file, they are still responsible for paying their federal income tax by the original required date, in this year’s case, May 17, 2021. 

When there is an identified issue with your submitted return, it is advisable to complete an amended return. While best practice is to complete your tax return correctly the first time, amendments are available in the event that you or your CPA recognize an issue that was submitted with your return. 

While an amendment might not be ideal to have to prepare and submit, if you know there’s an issue, you’re better off pointing it out before IRS uncovers it. If IRS finds a mistake before you do, you run the risk of an audit. 

Taking the additional time to do things such as consulting a CPA or lawyer, reviewing records and reporting, and verifying that your submission is complete and accurate before submitting. 

Paycheck Protection Program (PPP) funds from SBA, EIDL loans, Employee Retention Credits, and certain debt relief programs have added a level of complexity and challenge for business taxpayers. If you feel that taking advantage of the deadline extension will make a difference in the integrity and correctness of your return, it is worth your while to take the time granted to review the tax options your company has with your CPA and bookkeepers to ensure correct filings. 

If you have been contacted by IRS notifying you of an upcoming audit, reach out to our team of legal professionals for support. We have over 300 cases defending clients in tax audits. For more information, contact Milikowsky Tax Law today. 

What to do If Your Tax Return is Flagged by IRS

Tax season brings on additional stress for many. First, the hurry to get your information prepared and submitted for review by IRS. Then follows the thoughts of whether or not your information was submitted correctly or whether you’ll be faced with an audit. 

Ideally, your taxes will be submitted correctly the first time. That being said, if you recognize an error in your return, you should attempt to submit an amended return as soon as possible. While it’s best to fix any mistakes yourself before IRS discovers them, you still may not be 100% safe from a potential audit. 

While there are multiple various aspects of your return that may trigger an audit, there’s also always a possibility that you may be selected at random for review by IRS as well. Regardless of how careful and precise you are in your tax submissions, no one is ever fully exempt from the threat of an audit. 

What happens if my tax return is flagged by IRS? 

There are multiple types of IRS notices that you may receive. Some may simply be sent to request further information or ask for clarification on an aspect of your return. That being said, some IRS notices will alert you of an upcoming audit. 

Your best bet when you receive a notice from IRS is to be prepared for the worst-case scenario. Should you or your business receive notice of IRS’s intent to conduct an audit, you should not initially panic. It’s important that you reach out to appropriate resources as quickly as possible to give them the opportunity to build a case to support you. 

While your CPA is an excellent partner to organize, prepare, and submit your tax return, in the event of a tax audit you may want to solicit additional support. CPAs are tax experts within their field but that does not directly include defending clients against IRS or EDD audits. In this case, a tax attorney may be a suitable addition to your partnership. 

The addition of a tax attorney to your team does not serve to replace the role of your CPA. Rather together, they form a stronger team to represent and protect you in the event of an audit. 

That being said, should you receive notice of an upcoming audit, consulting with your CPA and hiring a tax attorney should be your immediate first response. 

While the receipt of an IRS notice may not have significant effects on you or your business, your safest response is to prepare. In the case of an IRS notice, this likely means reaching out to an experienced tax attorney. Our team of legal experts at Milikowksy Tax Law has significant experience in successfully defending our clients against audits from IRS. To learn more about how we can partner with your existing tax team to support your needs, call or reach out today! 

How Prop 22 Continues to Influence the Gig Economy

After companies including Uber, Lyft, DoorDash, and others spent nearly $200 million campaigning for the addition of a ballot measure exempting them from the previously passed California AB5 ruling. They won, and so began Proposition 22. 

The passing of Proposition 22 protects drivers’ preferences to remain classified as independent contractors with the flexibility to work when, where, and how long they want.

A notable aspect of the passing of Prop 22 is that future reform is limited by preempting local laws and requiring that any tweaks by the state legislature comport with its intent and pass with a seven-eighths supermajority. 

That being said, members of related industries have already begun to see resulting effects since the passing of Prop 22. For example, in December 2020, grocery chain Albertson’s experienced mass layoffs of delivery drivers. Rather than continuing to employ full-time delivery drivers, they opted to hire contractors to provide these services at more affordable rates. 

As time continues to pass following the implementation of Proposition 22 rulings, various states across the country have begun to look to California as an example for the future of the gig economy. 

While many are in favor of the continued growth of the gig-economy as it now stands within California, labor unions across the country still stand to protect employment as it stands. The initial goal of AB5 legislation was intended to protect the rights and benefits of workers and eliminate the ability of corporations to seemingly take advantage of the contractor status. While Prop 22 stood to directly oppose this previously passed legislation, others across varying states see similar legal updates as harmful to employment as we know it nationwide. 

Companies including Uber have been attempting to find a middle ground with labor unions since 2016. Reaching a middle ground would be ideal to support both ends of the spectrum and uphold labor law. Uber initially agreed to minimum wage implementation and offered to establish company-funded driver advocacy groups in exchange for their workers not being classified as employees. 

Shortly after its passing in California, lobbyists that supported the Proposition began their attempt to spread similar policies nationwide. Despite their ongoing attempts to do so, they will face continued challenges to pass similar laws in many states without union support, including New York. 

While this is the case, corporations including Lyft and Uber are continuously involved in conversations to attempt to reach a compromise and establish a middle ground. The ultimate goal would be to establish a model that offers the pairing of new benefits with the flexibility of contract work. 

In the meantime, until a decision is reached for various states and expanded gig economy-based corporations, businesses should be extremely cautious and aware to properly classify their workers. The ongoing conversations and unknown future of the gig economy have opened the door for extensive EDD audits to ensure proper worker classification. 

Should your business be identified as incorrectly classifying workers, you may likely be at risk of facing an extensive audit from EDD. If this is the case and you think that your business may be at risk of an audit, contact John Milikowsky and the legal experts at Milikowsky Tax Law immediately. John and his team have extensive experience successfully defending their clients in audits by both IRS and EDD and are ready to support and protect your business as well. 

Your Tax Day Checklist: How to Prepare to Avoid an Audit

Despite everyone’s awareness that tax day is rolling around each year, many companies still end up leaving their filings until the last minute. As a result, the last-minute filings can easily lead to accidental mistakes when filing. 

Nobody wants to intentionally make mistakes, but especially when it deals with your taxes. Why? Because mistakes on your tax return are often a red flag for IRS to investigate further. 

So how can you properly prepare to minimize your likelihood of an IRS audit? Well, the following tips are a good place to start. 

1. Download the IRS calendar 

There are often more deadlines beyond April 15th. Ensuring your company is aware of any and all deadlines is imperative to ensure you don’t miss important deadlines. For example, depending on your organization type, you may be responsible for submitting quarterly returns rather than just annual. Downloading the IRS tax calendar will send you electronic reminders to ensure that you don’t miss any important due dates. 

2. Understand the potential impact of legislation 

The importance of understanding the impact relevant legislation may have on your business is even more critical given the variety of COVID-related legislation that has affected businesses nationwide. Understanding the impact that the CARES Act and other legislation may have on your business’s tax filings may play a role in ensuring that you don’t over or underpay on your taxes due nor incorrectly declare your personal income. 

Partnering with a CPA or tax attorney can help ensure that your bases are covered and you’re properly prepared to lessen your chance of a potential audit. 

3. Clean your books 

Do your CPA and tax attorney a favor and don’t wait until April to get your finances cleaned up. Maintaining clean and organized financial documentation should be something that your company strives for year-round, not just when the clock is ticking to get your returns submitted to IRS. 

Your Tax Day Checklist_ How to Prepare to Avoid an Audit

4. Document all expenses 

In many cases, businesses may be eligible to deduct qualifying expenses from their returns. That being said, this can only be done if there is proper documentation to prove the qualification of such expenses. The best practice is to document everything. 

5. Prepare your 1099s

Ensuring proper documentation and classification of your company’s workers is critical if you want to avoid a potential audit. While IRS audits are what comes to mind initially when considering the threat of a tax audit, EDD is actively partnering to audit businesses as well. 

Should it come to light that your business incorrectly classified a worker as an independent contractor that should have rightfully been a full-time employee, EDD may decide to audit your business to claim the employee taxes that you owe. 

Once EDD has audited you and has proven that you incorrectly classified your workers, they very well may likely pass you over to IRS to dig deeper into your finances and potentially audit you for criminal liability as well. IRS can then investigate tax fraud for missing payroll taxes owed on W-2 workers but not paid for 1099s and a criminal investigation into insurance fraud for unpaid workers compensation can also be triggered.

Correct classification of your workers can be a make or break in protecting yourself against both EDD and IRS audits. If you’re not sure about the correct classification of your workers, reach out to our team of legal experts at Milikowsky Tax Law for support. 

6. Have liquid capital ready to make a payment 

While it’s not required to pay your annual tax responsibilities in full right away, your business shouldn’t overcommit its savings to a point that you’re scrambling to afford to make your tax payments. Opting into quarterly payments is an option in this regard, however, shouldn’t be taken lightly as pushing off payments down the line can quickly turn into a slippery slope. 

7. Review tax saving opportunities

In addition to classic tax write-offs that may be available to you, it may benefit you to review additional tax-saving opportunities for your business. Some of these may include the following: 

  • Cost segregation
  • Bonus depreciation
  • R&D tax credits

Working with a CPA or other tax professional may help you identify ways to save money while not making yourself a target for a potential tax audit. 

For more helpful tips on conquering this tax season, reach out to our legal tax experts at Milikowsky Tax Law. While your CPA is an excellent partner for preparing and submitting your tax returns, they may require the support of a legal professional in the event of an IRS notice or audit. 

JOhn mIlikowsky EDD DOL Final Ruling

On January 7th, 2021, the US Department of Labor (DOL) announced the updated ruling to clarify its interpretation of independent contractor status as part of the Fair Labor Standards Act (FLSA). 

Overall, the ruling stands largely unchanged from the original ruling which established a tiered test to determine employee versus contractor status as part of the FLSA. The updated proposal establishes a two-part analysis to determine whether a worker’s correct status is that of an independent contractor or employee. The “core factors” stated are as follows: 

  • The nature and degree of control over the work.
  • The worker’s opportunity for profit or loss based on initiative and/or investment.

In addition to the previously mentioned “core factors,” the DOL also lists three other factors to support the analysis. These factors are: 

  • The amount of skill required for the work.
  • The degree of permanence of the working relationship between the worker and the potential employer.
  • Whether the work is part of an integrated unit of production.

A significant addition to the DOL’s 1200+ page final rule is the inclusion of specific examples to support businesses in their analysis of worker classification. It should be noted that none of these examples specifically define the proper classification of gig economy workers. While this is the case, the second example listed questions whether a worker that accepts work from an “app-based service” has sufficient opportunity for profit or loss to be considered an independent contractor. The example concludes that since the cost of investment by the service in creating and supporting its app is not relevant to the profit or loss inquiry, the worker should be classified as an independent contractor. 

Up to the present, the interpretation of the myriad guidelines has been grey.  With these clarifying examples, the DOL attempts to create real-world “economic reality” factors. And while they shy away from saying these factors are the hard and fast rules, the following are the examples given in the DOL’s Final Ruling re 1099 Contractor classification.

Example of Control

(b)(1)(i) Example. An individual is the owner and operator of a tractor-trailer and performs transportation services for a logistics company. The owner-operator substantially controls the key aspects of the work. However, the logistics company has installed, at its own expense, a device that limits the maximum speed of the owner-operator’s vehicle and monitors the speed through GPS. The company limits the owner-operator’s speed in order to comply with federally mandated motor carrier safety regulations and to ensure that she complies with local traffic laws. The company also requires the owner-operator to meet certain contractually agreed-upon delivery deadlines, and her contract includes agreed-upon incentives for a meeting, and penalties for missing, the deadlines.

(ii) Application. The owner-operator exercises substantial control over key aspects of her work, indicating independent contractor status. The fact that the company has installed a device that limits and monitors the speed of the owner-operator’s vehicle does not change the above conclusion. This measure is implemented in order to comply with specific legal obligations and to ensure safety, and thus under § 795.105(d)(1)(i) would not constitute control that makes the owner-operator more or less likely to be an employee under the Act. The contractually agreed-upon delivery deadlines, incentives, and penalties are typical of contractual relationships between businesses and likewise, would not constitute control that makes the owner-operator more or less likely to be an employee under the Act.

Example of Profit and Loss Opportunity:

(2)(i) Example. An individual accepts assignments from a company that provides an app-based service linking those who need home-repair work with those who perform home-repair work. The individual is able to meaningfully increase his earnings by exercising initiative and business acumen and by investing in his own equipment. The company, however, has invested millions of dollars in developing and maintaining the app, marketing itself, maintaining the security of information submitted by actual and prospective customers and workers, and monitoring customer satisfaction with the work performed.

(ii) Application. The opportunity for profit or loss factor favors independent contractor status for the individual, despite the substantial difference in the monetary value of the investments made by each party. While the company may have invested substantially more in its business, the value of that investment is not relevant in determining whether the individual has a meaningful opportunity for profit or loss through his initiative, investment, or both.

Example of a W-2 who owns a separate, unrelated business:

(3)(i) Example. An individual worker works full time performing home renovation and repair services for a residential construction company. She is also the part-owner of a food truck, which she operates on weekends. In performing the construction work, the worker is paid a fixed hourly rate, and the company determines how many and which tasks she performs. Her food truck recently became very popular and has generated substantial profits for her.

(ii) Application. With regard to the construction work, the worker does not have a meaningful opportunity for profit or loss based on her exercise of initiative or investment, indicating employee status. She is unable to profit, i.e., increase her earnings, by exercising initiative or managing investments because she is paid a fixed hourly rate and the company determines the assignment of work. While she earns substantial profits through her food truck, that is a separate business from her work in the construction industry, and therefore is not relevant to the question of whether she is an employee of the construction company or in business for herself in the construction industry.

Example of “Degree of permanence”: 

(4)(i) Example. A housekeeper works for a ski resort every winter. At the end of each winter, he stops working for the ski resort because the resort shuts down. At the beginning of each of the past several winters, the housekeeper returned to his prior position at the ski resort without formally applying or interviewing.

(ii) Application. The housekeeper has a long-term and indefinite work relationship with the ski resort under the permanence factor, which weighs in favor of classification as an employee. That his periods of working for the ski resort end at the end of each winter is a result of the seasonal nature of the ski industry and is thus not indicative of a sporadic relationship. The fact that the housekeeper returns to his prior position each new season indicates that his relationship with the ski resort does not end and is indefinite as a matter of economic reality.

Example of Integrated Unit of Production (W-2):

(5)(i) Example. An editor works part-time for a newspaper. The editor works from home and is responsible for assigning and reviewing many articles published by the newspaper. Sometimes she also writes or rewrites articles. The editor is responsible for determining the layout and order in which all articles appear in the newspaper’s print and online editions. She makes assignments and lay-out decisions in coordination with several full-time editors who make similar decisions with respect to different articles in the same publication and who are employees of the newspaper.

(ii) Application. The editor is part of an integrated unit of production of the newspaper because she is involved in the entire production process of the newspaper, including assigning, reviewing, drafting, and laying out articles. This factor points in the direction of her being an employee of the newspaper. This conclusion is further supported by the fact that the editor performs the same work as employees of the newspaper in coordination with those employees. The fact that she does not physically work at the newspaper’s office does not outweigh these more probative considerations of the integrated unit factor.

Example of Integrated Unit of Production (1099): 

(6)(i) Example. A journalist writes articles for a newspaper on a freelance basis. The journalist does not have an office and generally works from home. He submits an article to the newspaper once every 2 to 3 weeks, which the newspaper may accept or reject. The journalist sometimes corresponds with the newspaper’s editor regarding what to write about or regarding revisions to the articles that he submits, but he does not otherwise communicate or work with any of the newspaper’s employees. The journalist never assigns articles to others nor does he review or revise articles that others submit. He is not responsible for determining where his article or any other articles appear in the newspaper’s print and online editions.

(ii) Application. The journalist is not part of an integrated unit of production of the newspaper, indicating independent contractor status. His work is limited to the specific articles that he submits and is completely segregated from other parts of the newspaper’s processes that serve its specific, unified purpose of producing newspapers. It is not relevant in analyzing this factor that the writing of articles is an important part of producing newspapers. Likewise, the fact that he works at home does not strongly indicate either status, because the nature of the journalist’s work is such that the physical location where it is performed is largely irrelevant.

The final ruling will officially go into effect on March 8, 2021, but will not be fully enforced until May 7, 2021. If you have questions about how this legal ruling may apply to you and your business’s use of the employment of independent contractors, reach out to our team of legal experts for support. The legal experts at Milikowsky Tax Law are well equipped and experienced to ensure that you are aware of and guarded against improper classification audits from EDD. 

[siteorigin_widget class=”WP_Widget_Media_Image”][/siteorigin_widget]
triggers edd audit

EDD Audit Triggers

  • Independent contractor filed for unemployment
  • A disgruntled worker (1099 or W2) reported your company to EDD
  • EDD “randomly” selects your company based on a computer algorithm – one factor is the larger % of independent contractors versus employees compared to your company revenue i.e. Company with $2 million in revenue with few or no employees

Minimize risk of EDD audit

Do you hire 1099 contractors? If you are unsure if your workers are properly classified as contractors versus employees, review these questions and the facts to determine if your contractors are misclassified:

  • Does each contractor have an independent business
    • EIN, business entity, business license, website, a client base?  For instance, in construction workers hired by a construction company must have a valid contractor’s license with your State’s Contractor’s Licensing Board.
  • Examine the scope of work each worker performs and compare that to the services your company performs?
  • Do you control your worker?  Control comes in various forms: 
    • requiring workers to report to work at specific times
    • reviewing your contractor’s work 
    • requiring workers to report to you.
    • Requiring workers to wear a name badge or use your company’s business cards
    • An Independent contractor means the worker is working “independent” of your company.
    • How often are your workers paid?
    • Do you have a valid contract with each worker?

You may want to hire a tax attorney to review your facts, records, and your state’s laws to ensure you are in compliance.  

For instance, on January 1, 2020, California enacted a law called AB5 that changed the requirements for companies hiring independent contractors.

how long does an edd audit last

How long does an EDD audit last?

If EDD selects your company for an audit of your contractors, you can expect the audit to last between 3 months and 9 months.  

The purpose of an EDD audit

The purpose of an EDD audit is to determine if your workers are really employees and the audit starts when you receive a letter titled “Inquiry Regarding Records” that includes a “Pre-audit Questionnaire.”

Why does the audit take so long?

EDD requests a lot of records including your federal income tax return, W2s, payroll returns, 1099s, and your company’s financials. 

EDD will also interview your contractors to compare the facts you provide with the information given by your contractors.

The more independent contractors you have hired during the audit period, the more time it will take EDD to complete its investigation.

How far back can EDD audit you?

Generally, EDD audits cover a 3-year period (12 payroll periods or quarters).  However, if EDD discovers you have workers who you did not report on payroll or provide a 1099, (for instance you paid them in cash and have no records or poor records of the payments), EDD can expand the audit to 8 years.

edd crim investigation

In short, yes. If you are paying workers who are not reported on a 1099 or W2 (for instance you are paying workers in cash and have no record of their payroll or payments), EDD may assess a fraud penalty and could open a criminal investigation. If your contractors are misclassified and should be employees, then you likely do not have WC insurance, which is insurance fraud.

What is more common are investigations of construction contractors who hire unlicensed works.

This investigation will then involve the Contractors State License Board (CSLB). A case can start with CSLB or EDD and the two generally work together. If CSLB or EDD find misclassified and unlicensed workers, the cases will then be referred to the District Attorneys Office in your City for possible criminal prosecution. These cases include workers’ compensation insurance fraud because your company did not have workers’ compensation insurance to cover these workers.

If you find yourself in this situation, contact a qualified tax attorney before providing any information to an investigator.

Our office has significant experience and has represented contractors who were under investigation. These investigations involve a detailed factual and legal analysis of tax law and a deep understanding of how to navigate an EDD and CSLB investigation.

triggers irs audit

San Diego Tax Attorney, John Milikowsky

IRS selects returns for audit based on numerous criteria. Here are some common ways your return can be selected for an audit:

  1. You fail to report income that reported on a W2 or 1099 (this can be from a sale of real estate, 1099-S; non-employee compensation as an IC; 1099-MISC now a 1099-NEC (non-employee comp); or withdrawing proceeds from a retirement account, 1099-R)
  2. You fail to report all of the income received by your business. For instance, if your company receives credit card payments, your merchant provider will send you a 1099-K every year. The 1099-K will summarize the gross proceeds you received each month and the total for the year. If the gross proceeds you report on your return are less than the 1099-K income, this may indicate you are underreporting your income. There are many legitimate explanations for why your gross income is less than the amount on your 1099-K.  But how you report and explain the difference in your tax return can make a difference between being selected and not being selected for an audit.
  3. You amend your income tax return to claim a refund.
  4. If you have a business, reporting a loss for more than 1 year can trigger an audit especially if the loss will offset other income reported on your tax return.
  5. Having a business that is really a hobby such as placing a yacht or aircraft in a business entity and reporting a loss. The question here is whether this is a business or a hobby. A business will have an intent to make a profit and you will be expected to establish you are attempting to get clients and have necessary and ordinary business expenses.

Other ways: IRS has an algorithm and assigns a score to your return. Based on that score, IRS may select your return for examination and send your file to an IRS office in your local city.

If you receive a letter from IRS confirming your return has been selected for examination, contact a qualified tax attorney to review your return and identify the items that will likely be investigated so you can be prepared before communicating with IRS. Having a game plan is critical. You want to be honest but prepared when speaking with IRS.

John D. Milikowsky

Founder of Milikowsky Tax Law

We keep businesses in business.