Bankruptcy and Tax Resolution: What You Don’t Know Can Hurt You

I’ve been practicing bankruptcy law for a while now, and I’ve been surprised at how many very good bankruptcy lawyers either give bad tax advice or incomplete tax advice.  I’m also surprised at how many of these good lawyers send clients out the door, because the client has a tax issue that can’t be solved in bankruptcy.

Tax debt is one of the most common and complicated debts that our clients face.  It is also one of the least understood.  Every bankruptcy lawyer can recite the tax discharge rules off the top of their head; but that isn’t enough.  Tax resolution should be part of every bankruptcy lawyer’s tool kit.  Understanding tax resolution is a sound business practice and a sound professional practice for bankruptcy attorneys.  If you don’t have a proper understanding of tax resolution you are losing out on a major source of business, client service suffers, and you increase your malpractice risk.

Some Tax Resolution Background

Tax resolution is the area of tax practice that involves tax debts.  It is discrete from tax preparation and tax planning.  Generally, people who owe $10,000 or more to the IRS will require some professional assistance with their tax debts.  Most people only qualify for the basic streamlined installment plan or the voluntary repayment plan.  However, another large group of people will qualify for the more extensive relief that you can obtain from a partial payment installment agreement, innocent spouse relief, or an offer in compromise.

Tax resolution is a troubled practice area.  You probably recall the TV ads that promised people that they could settle their taxes for “pennies on the dollar.”  Most of those companies were running boiler room operations that preyed on taxpayers’ fear of the IRS.  Those companies are gone now; because the IRS and state regulators shut them down.  However, there are still many fly by night operations bombarding people with direct mail or running PPC ads online.

Tax resolution is also a difficult practice area to fit under any one category.  Tax preparers such as enrolled agents and CPAs can represent taxpayers in front of the IRS; however, they do not necessarily have the background in litigation and negotiation to be effective advocates.  Tax attorneys are often more focused on transactional law, entity formation, and tax planning.  However, bankruptcy lawyers are a great fit for tax resolution; because there is extensive overlap between the two practice areas.

Bankruptcy Lawyers Make Great Tax Resolution Lawyers

Many lawyers assume that in order to be an effective tax lawyer you need an LLM in tax; or at the very least, a full course of tax classes in law school.  That’s probably true if you want to do sophisticated transactional work or sophisticated tax planning.  That couldn’t be further from the truth for tax resolution.

Yes, you need to understand the basics of taxation.  However, most tax lawyers took baby tax in law school.  Even if you didn’t take baby tax, a good Enrolled Agents prep course will give you the background you need in understanding things like the definition of income, allowable deductions, tax basis, pass through entities, gift tax, and the like.

The fact is that the core of tax resolution is virtually indistinguishable from bankruptcy practice.  If you can fill out a bankruptcy petition and confirm a chapter 13 plan, you can setup an installment payment agreement or get an offer in compromise approved.  I won’t get into the mechanics, but I was blown away by how similar the IRS’ tax resolution forms are to the bankruptcy petition.  Also, you’re already familiar with the IRS expense guidelines; because, they are the basis for the means test.

But most importantly, tax resolution and bankruptcy are the same intellectual discipline.  In both practice areas, you are dealing with clients who have debt problems and are under a tremendous amount of stress.  The IRS is probably the most feared creditors out there, except for the maybe the mafia.  However, unlike the mafia, the IRS can be very reasonable and very fair if you know how to talk to them; and the truth is, an IRS collection agent is no more difficult to deal with than a trustee or secured creditor.  It’s the same conversation, just in a different context.

You’re Taking A Risk If You Don’t Understand Tax Resolution

Have you ever told a client to wait out either the tax discharge period before they could file a case or put them into a chapter 13 because they couldn’t wait?  How do you handle cases where the client can’t afford a chapter 13 but can’t discharge all of their tax debt in a chapter 7?  What do you do with a client who is at risk of losing property in a chapter 7, but needs to file to get the IRS off of their back?  Have you ever had a client whose only problem creditor was the IRS?

These are all scenarios that every bankruptcy lawyer has faced.  These are also scenarios where you run the risk of failing to get your client the best possible deal or even of committing malpractice.  This is because tax resolution and bankruptcy are hand in glove with each other.

The new standards for offers in compromise mean that people with non-dischargeable tax debt may get a much better deal if they go through tax resolution, instead of filing a chapter 13.  If you can get the client an offer in compromise and then follow it up with a chapter 7, you may have just saved that client thousands of dollars.  Additionally, you can use an “effective administration” application for offer in compromise for a client who has non-exempt property that is either vulnerable in a chapter 7 or going to pump up a chapter 13 plan payment.  However, you should also know when an offer in compromise application creates the risk of adding to non-dischargeable tax debt.

Also, have your read IRS Circular 230?  Because if you haven’t, you may be surprised to find out that you are already a tax lawyer in the eyes of the IRS Office of Professional Responsibility.  At a minimum, you need to know how the IRS defines “covered opinion” and “reliance advice” before you answer any question about taxes in bankruptcy, particularly if the client has any unfiled tax returns or unassessed taxes.

You’re Losing Business

How many clients have come to you with unfiled tax returns and you sent to a CPA or tax preparer and then they never came back?  How many clients had a tax problem that bankruptcy couldn’t fix?  It happens.

I used to get clients all the time who needed tax returns prepared – very simple 1040s – and I’d tell them to get the returns prepared and then come back and we’d file their bankruptcy; and, then they’d just never come back.  I used to get clients who had a tax problem but couldn’t file bankruptcy for some reason, and I’d say “I’m sorry, good luck.”  I used to get clients who had spent thousands of dollars on useless tax advice, where I could have gotten them the same result or better for a fraction of the cost of what they spent on some boiler room tax resolution service.

Bottom line, a client wants a lawyer who can offer full service debt relief, including tax debts; and they’ll be impressed by a lawyer who not only provides full service debt relief but can take care of their unfiled tax returns at the same time.

Tax used to make me nervous.  Now it is a central part of my bankruptcy practice.  I feel like I’m a better lawyer because I can offer my clients a more complete set of services with a higher level of professional skill.

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