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Sep 21
2010

IRS employment tax audits underway

Posted by Karen1 in tax gapNational Research ProjectIRSemployment taxes

Karen1

About 2,000 firms around the US have received audit letters from the IRS as part of the agency's Employment Tax National Research Project (NRP). If your firm isn't one of them, you can't breathe easy just yet - the agency has indicated that it include a total of 6,000 firms over three years. What's more, the "examinations will be comprehensive in scope," and "employers should have all of their records available to expedite these examinations," the IRS said in announcing the project last November.

While similar to an audit, an NRP is designed to "take a snapshot of a given taxpayer population in order to determine the compliance (with tax regulations) within that population," according to this article by Kevin Packman of Holland & Knight. In addition, the companies studied are chosen at random.

The NRP is the first the IRS has undertaken in 25 years. During that time, the agency noted, business practices regarding employment taxes may have changed significantly, prompting the need for study. In particular, the IRS is looking for data that will allow for a better understanding of just how well corporate tax filers comply with regulations. That way, they can focus their efforts on areas of greatest non-compliance.

Equally important, the agency is looking to boost its knowledge of the "employment tax gap." The tax gap is the difference between the amounts that taxpayers should pay, and the amounts they actually pay on a timely basis. A gap can come about in several ways: non-filing or failure to file a return; underreporting income or overstating deductions; and underpaying the amounts actually owed.

In 2006, the IRS estimated a gap of $290 billion for the year 2001. The bulk of the gap -- 80 percent -- was due to under-reporting income, the IRS said.

In an effort to close the gap, the National Research Project will focus on several subject areas, noted the law firm of Morgan Lewis:

Worker Classification: The question of whether a worker is an employee or an independent contractor keeps rearing its head. From the IRS' point of view, that's probably because they see a fair amount of misclassification of employees at contractors - which means lost tax revenue. An August 2009 GAO report on the topic referred to a DOL study in 2000 which found that between 10 and 30 percent of firms audited in nine states misclassified at least a portion of their employees. In 1984, the IRS estimated that the misclassification of employees meant a revenue loss of $1.6 billion.

Executive compensation: This includes non-salary compensation, like loans, travel, deferred comp, stock-based compensation and more.

Fringe benefits: The fun stuff some execs get, like the use of company aircraft or cars, club dues, and housing, among other perks, will be under the microscope. The audits may even include benefits like gift cards, employer cafeterias and athletic facilities, Morgan Lewis notes.

Payroll taxes: The agents will examine Forms 941, Employer's Quarterly Federal Tax Return. As part of this, they will look at backup withholding, next-day deposit requirements and Form 1099/W-2 compliance, among other issues.

What can a firm do to prepare in case it receives notice that it will be part of the NRP? As a starting point, management should conduct an internal compliance review. That way, they'll have a better idea of potential weak points, and to take steps to resolve issues that could prove to be sticking points during an audit, Packman says.

In addition, all CFOs need to recognize that this project "is the beginning of a long-term emphasis by the IRS on employment tax issues," Packman writes. Once the NRP is wrapped up, the IRS will use the data it has gathered to focus on areas that were shown to have higher rates of noncompliance.

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