Consumer Bankruptcy Journal Fall 2016 | Page 18

FEDERAL AND STATE TAX DISCHARGE Code 420: Red flag for a “sleeping assessment” I often refer to what I call the “sleeping assessment.” This is where the IRS tax account transcript24 shows a Code 420 (the start of an audit), but not a 421 (end of the audit).25 Consider it a red flag to see the 420 but not a 421; an additional IRS assessment may be around the corner, triggering a requirement to report it to the state. Likewise, if the 3-year statute of limitations to assess additional taxes has not expired, the IRS could commence an audit at any time until the SOL expires. (Endnotes) 1 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) 2 Seven U.S. states currently do not have an income tax: Alaska, Florida, Nevada, South Dakota, Texas, Washington and Wyoming. Chris Kahn, Bankrate.com. 3 Ciotti v. Franchot in his capacity as Comptroller of Maryland, Case No. 07-13229-JS (Bankr.Md., 2009) 4 The question was about the dischargeability of the piggy-back assessments, not the original liability or the original tax return. 5 In re Ciotti 638 F.3d 276 (4th Cir. 2011). 6 Green v. IRS 472 B.R. 347, 364 (Bankr. 347 (Bankr.W.D.Tex. 2012 (“The purpose of the “… equivalent report or notice” language in § 523(a) (1)(B) is to preclude the discharge of debt when the debtor failed to file a report or notice that was required in addition to a tax return.”) 7 In re Ciotti 638 F.3d 276 (4th Cir. 2011); In re Green, 472 B.R. 347 18 CONSUMER BANKRUPTCY JOURNAL (Bankr.D.Tex. 2012); Berry v. Mass. Dep’t of Revenue v. Berry (In re Berry) (Bankr.Mass., 2016); In re Nilsen, 542 B.R. 640 (Bankr.Mass. 2015); Moffitt v. Massachusetts (In re Moffitt) (Bankr. W.D. Ky., 2013); McBride v. City of Kettering (In re McBride), 542 B.R. 788 (Bankr.S.D.Ohio, 2015); Pendergast v. Mass. Dep’t of Revenue (In re Pendergast) (Bankr.Mass., 2013); In re Shorton, 375 B.R. 26 (Bankr. Mass 2007); Blalock v. Miss. Dep’t Rev.’ 537 B.R. 284 (Bankr.S.D.Miss. 2015) 8 See In re Green, infra., Nilsen v. Mass. & IRS 542 B.R. 640 (Bankr. Mass 2012), Perry v. U.S. 500 B.R. 796 (Bankr.M.D.Ala. 2013). 9 In re Jerauld, 208 B.R. 183 (B.A.P. 9th Cir., 1997) (failure to file a state-required report is not the same thing as failing to file a return). 10 In re Jerauld 208 B.R. 183 (B.A.P. 9th Cir., 1997) “ … we hold that the failure to file a report is not the same as a failure to file a required tax return, the claim of the FTB is not excepted from discharge under § 523(a)(1)(B)(i).” 11 In re Dahmer, 336 B.R. 784 (Bankr. W.D. Mo., 2006) 12 Olson v. IRS, North Dakota Tax Department, 174 B.R. 534 (Bankr. ND 1994) (relevant statutory language referred to “ … an amended return” or providing “other information.”) (Olson is a pre-BAPCPA opinion and may not be relevant in more recent cases.) definition of a return based on Beard V. Commissioner of Internal Revenue (82 T.C. 766 (1984). See the author’s web page, LateFiledReturn.com. 17 Defining a “return” in an IRS context typically centers on whether it was timely filed (the McCoy issue) or filed in good faith following an IRS assessment. E.g., Earls v. IRS 549 B.R. 871 (Bankr.Ohio 2016). 18 Beard, supra 19 McCoy v. Mississippi State Tax Comm’r 666 F.3 924 (5th Cir. 2012) 20 E.g., Perry v. U.S. 500 B.R. 796 (Bankr.M.D.Ala. 2013) (“No matter what theory the court applies the result is the same.”) 21 Also qualifying as a “return” is a “written stipulation to a judgment or order” 11 U.S.C. § 523(a)(19) (hanging paragraph). Green v. IRS 472 B.R. 347, 361 (Bankr.W.D. Tex 2012). 22 11 U.S.C. § 507(a)(8)(A)(ii). 23 Arkansas attorney Reba Wingfield, frequent lecturer at King Bankruptcy Academy, reminded me of this potential problem. 24 The IRS “Account Transcript,” not a “transcript of return.” 25 This refers to IRS transaction code “420” that appears on tax transcripts for years that were audited. Code 420 indicates an audit was commenced. 13 Berry v. Mass. Dep’t of Revenue (In re Berry) (Bankr.Mass., 2016) 14 Berry, at 7, 8. 15 In re Fahey 779 F.3d 1 (1st. Cir. 2015). This opinion focuses primarily on the McCoy issue. 16 The requirement to sign the document under penalty of perjury is one of the four prongs of the Fall 2016 National Association of Consumer Bankruptcy Attorneys