Faced with the situation that you or your company has been misreporting income or miscalculating taxes, you should not stick your head in the sand and hope that it never catches up with you.  You should work with your accountant and attorney and calculate the amount due.

First, the IRS has two voluntary disclosure programs.  The first is for domestic voluntary disclosure of tax issues, which I am discussing here.  The other is a separate program for Offshore Account Voluntary Disclosure (to be discussed in a later post).

While the IRS’s its sometimes referred to as a “program” its really only an internal IRS procedure.  There are many IRS employees that I’ve spoken with that aren’t even aware of the IRS practice. That’s likely because it is so informal. It is set forth in the IRM at 9.5.11.9.

To use the practice, the taxpayer typically sends in the delinquent (or amended) tax returns with payment, if any can be made, along with a cover letter from their attorney explaining the situation and asking for admittance into said program.  The IRS will then consider the voluntary nature of the taxpayer’s disclosure, along with many other factors, into whether it will recommend criminal prosecution, and the imposition of penalties.  The voluntary disclosure practice creates no substantive or legal rights, and its a case by case basis. The disclosure should be “truthful, timely and complete”, and the taxpayer should state that it is willing to cooperate with the IRS to determine the correct tax liability, and the taxpayer makes or attempts to make good faith arrangements with the IRS to pay the tax liability.

A disclosure is “timely” if it is received before:

a.  the IRS has initiated a civil examination or criminal investigation of the taxpayer, or has notified the taxpayer that it intends to commence such an examination or investigation;

b.  the IRS has received information from a third party (e.g., informant, other governmental agency, or the media) alerting the IRS to the specific taxpayer’s noncompliance;

c.  the IRS has initiated a civil examination or criminal investigation which is directly related to the specific liability of the taxpayer; or

d.  the IRS has acquired information directly related to the specific liability of the taxpayer from a criminal enforcement action (e.g., search warrant, grand jury subpoena).

Examples of voluntary disclosures include (from the IRM):

a.  a letter from an attorney which encloses amended returns from a client which are complete and accurate (reporting legal source income omitted from the original returns), which offers to pay the tax, interest, and any penalties determined by the IRS to be applicable in full and which meets the timeliness standard set forth above.

b.  a disclosure made by a taxpayer of omitted income facilitated through a barter exchange after the IRS has announced that it has begun a civil compliance project targeting barter exchanges; however the IRS has not yet commenced an examination or investigation of the taxpayer or notified the taxpayer of its intention to do so.  In addition, the taxpayer files complete and accurate amended returns and makes arrangements with the IRS to pay in full, the tax, interest, and any penalties determined by the IRS to be applicable.

c.  a disclosure made by a taxpayer of omitted income facilitated through a widely promoted scheme regarding which the IRS has begun a civil compliance project and already obtained information which might lead to an examination of the taxpayer; however, the IRS has not yet commenced an examination or investigation of the taxpayer or notified the taxpayer of its intent to do so.  In addition, the  taxpayer files complete and accurate returns and makes arrangements with the IRS to pay in full, the tax, interest, and any penalties determined by the IRS to be applicable.

d.  A disclosure made by an individual who has not filed tax returns after the individual has received a notice stating that the IRS has no record of receiving a return for a particular year and inquiring into whether the taxpayer filed a return for that year.  The individual files complete and accurate returns and makes arrangements with the IRS to pay the tax, interest, and any penalties determined by the IRS to be applicable in full.

Examples of what are not voluntary disclosures include (from the IRM):

a.  a letter from an attorney stating his or her client, who wishes to remain anonymous, wants to resolve his or her tax liability. This is not a voluntary disclosure until the identity of the taxpayer is disclosed and all other elements of (3) above have been met.

b.  a disclosure made by a taxpayer who is under grand jury investigation.  This is not a voluntary disclosure because the taxpayer is already under criminal investigation.  The conclusion would be the same whether or not the taxpayer knew of the grand jury investigation.

c.  a disclosure made by a taxpayer, who is not currently under examination or investigation, of omitted gross receipts from a partnership, but whose partner is already under investigation for omitted income skimmed from the partnership.  This is not a voluntary disclosure because the IRS has already initiated an investigation which is directly related to the specific liability of this taxpayer.  The conclusion would be the same whether or not the taxpayer knew of the ongoing investigation.

d.  a disclosure made by a taxpayer, who is not currently under examination or investigation, of omitted constructive dividends received from a corporation which is currently  under examination.  This is not a voluntary disclosure because the IRS has already initiated an examination which is directly related to the specific liability of this taxpayer.  The conclusion would be the same whether or not the taxpayer knew of the ongoing examination.

e.  a disclosure made by a taxpayer after an employee has contacted the IRS regarding the taxpayer’s double set of books.  This is not a voluntary disclosure even if no examination or investigation has yet commenced because the IRS has already been informed by the third party of the specific taxpayer’s noncompliance.  The conclusion would be the same whether or not the taxpayer knew of the informant’s contact with the IRS.

Typically, if any payments can be made with the returns that are sent it, they should be.  The IRS will send out notices of what is due with time periods to pay.  If the amount is under a certain threshold, the IRS staff can grant a payment plan, but if it exceeds the threshold the IRS refers it to a local Revenue Agent, who typically will require the taxpayer provide information on assets, bank accounts, ownership (if an entity) and if a payment plan is requested, the Agent will usually file a lien to protect the IRS’s interest.