Google as a tax investigative tool: Understand what the government might know about you

Before the pandemic, I had met with a New York State agent on a case I was handling and as I introduced myself to her she mentioned in a lighthearted way that she already knew all about me by "googling" me. To add to our "light" mood I asked if she knew what I had for breakfast! It was a good start to a very productive meeting. However, what was clearly evident was how government entities can get into your bones just by "googling" you on the internet. As a former government tax attorney, I know that there are many resources that can be used to get information about a taxpayer. I had a case once involving a taxpayer who submitted a financial statement that was signed "under penalties of perjury"; if memory serves me well, we pursued him for fraud because we found assets (e.g. a boat) that he did not disclose on the form. It is important for clients to understand the vast amount of information that is available to governmental entities just by searching you online as well as information available from the Secretary of State, D&B searches, the local County Clerk's office, etc.

I use the internet to conduct a search as if I were the investigative authority, to give the heads up to my clients what information can be found about them. Clients who have residency audits, income tax audits, etc. have to be made aware that there is a wealth of information accessible to the government regarding their background, their activities, etc. just by doing a Google search. In a residency audit, for example, it is easy to find out the taxpayer's activities as they relate to the state where they reside. They can find out simple things like their address, their phone number, articles written about them and information about businesses they are involved in. But they can also delve deeper, into their social activities if they were featured on their golf club's website or honored at a local event, purchases or sales of real estate featured in the real estate section, or of important art through similar publications. Since the taxpayer bears the burden of proof in such cases, it is important to see what a tax auditor might see, and to be able to address those various issues. Perhaps the information is old and no longer applicable to a client's current circumstances. To be successful in an examination is to be transparent and to act in good faith, that way there is fair dealing and trust. Even though something may exist on the internet, if it can be explained or placed in the proper context, it may not be as important or as relevant as an auditor might think. Unfortunately what happens in Vegas, doesn't always stay in Vegas. It never hurts to "google" yourself once in a while to see what the world sees about you.

The More Things Change, The More They Stay the Same: Views on the Pandemic

For almost seven of the most recent years I have practiced my specialty as both Counsel and as a Partner of multi-specialty law firms and as a Co-Chair of a Tax Department. In addition to my almost eight years of government service with the IRS as a Senior Trial Attorney, and as a Senior Manager in Tax Controversy for a major New York City accounting firm, the pandemic has caused me to reflect on my specialty and my profession in general.

The pandemic has affected me both personally and professionally, as it has millions around the world. In addition to having a close relative pass away from the virus and members of my immediately family contract the virus in spite of being vaccinated, I have other high risk members of my family who continue to walk on eggshells. Having worked remotely since March 2020, many aspects of my personal and professional life became more vivid, what I value most became much more clear. For one, I realized that commuting in traffic to an office close to two hours a day was taking up precious time. Sitting in an office, with windows that never opened, especially in an environment nowadays where just going to the ladies room or down a hallway could pose a health risk, made me realize that I had much better options.

Professionally, I have honed my skills for more than 35 years in my specialized area like a sharp knife, I know exactly what a case will involve, I know exactly who, when and how to call and discuss the nature of a case and issues involved with my adversary (the government), and I acutely understand and anticipate the life of a tax controversy case and resolutions available. I have also encountered so many types of tax issues and cases, it is comforting not to have to reinvent the wheel or guess when a new case arrives at my door. I always joked that I could "do what I do from the Moon" and it's true. Most, if not all, of my work involves telephone calls, facsmiles or snail-mail submissions. (The government does not use email.) I am accessible to clients via my cellphone, email and texts. I have researched and written my own submissions since how those are presented is so important. I also realized that I did not feel comfortable with larger law firm rates that necessarily include hard and soft overhead costs which include rent, staff, benefits, equipment, etc. I could offer my clients the same personalized and professional service without having to support high overhead expenses, and honestly — I like not having that kind of overhead and I pass those savings on to my clients by offering lower rates.

So when the right decision became abundantly clear to me as though having an epiphany, I had no hesitation in opening my own tax law practice with gusto in November 2020. It was a natural progression in this new world we are all experiencing. I know that I am not the only one; many in every kind of professional or business endeavor are re-evaluating how they do business and re-visiting their "why" moment. If anything good has resulted from the pandemic, it is that it has peeled away the everyday routines we took for granted and has revealed our inner core and the bare-bones of ourselves, personally and professionally. And that --- for something rare these past two years -- is a good thing.

Why Hire a Tax Controversy Attorney?

What is Tax Controversy and why is it important to retain a Tax Controversy attorney as opposed to an attorney specializing in a certain area of the law? Why should attorneys and accountants refer cases to a Tax Controversy Attorney?

As an attorney for IRS Chief Counsel, my responsibility was to handle whatever case I was assigned.  I had to resolve or litigate the matter, no matter what the issue.  Every case was different, every case had different types of taxpayers or entities, every case had different facts, hence different issues.  Every case required research into that particular fact situation and legal issue.  You studied it, you evaluated it, you analyzed all the angles, and you formulated a strategy.  It would not have made sense to only know one type of issue, because there were so many different tax issues and different taxpayers.

          Granted, there were hot issues then, like TEFRA partnership cases.  We had test cases that litigated the reasonableness of actuarial assumptions in defined benefit plans, another hot issue at the time.  Hot issues then became FBARs and foreign reporting, conservation easements, micro-captives, the list is long. Now the hot issue is the taxation of cryptocurrency. Times change, laws change, the issues change.  Anyone in tax controversy understands this. Accountants are keenly aware of the constant change in tax laws and regulations. The hot tax issues of the day change and you have to be prepared to take on new issues, unusual fact situations, and new tax laws in order to resolve cases. Do you want someone who knows how to serve up today’s favorite flavor or do you want someone who knows how to serve all the flavors, formulate new ones, and understands how the whole ice cream factory works?  It makes a difference. Even now there are attorneys who claim to be experts in cryptocurrency, but do not have the breadth of experience to understand how the tax regulatory or enforcement system really works.

            Through the years I have learned that the most important skill a tax controversy attorney needs is experience with the process, how the taxing authorities “think” and how they will approach a case and understanding all of the options for addressing the case. Knowing how to research any issue and to use the right resources to do so.  Knowing how to analyze the facts of the case, whether it is a small business or a multinational corporation, and to apply the law to those particular facts.  Knowing how the taxing authority operates, how to read regulations and pronouncements they issue, how to navigate the system, who to call, how to negotiate and speak with them. It is important to understand where they are coming from and finding common ground if there is any; if there isn’t common ground, it is important to know how to take all necessary steps to challenge their position and protect the client’s interests because tax litigation is different than other litigation forums.  

             I often compare it to the medical profession.  If you have a myriad of problems, you would be mistaken to just go to a gastroenterologist.  He would see it only through his lens when it could be an endocrine problem or even an infectious disease problem.  Similarly, a surgeon may want to do surgery, when perhaps another physician might recommend physical therapy instead.  If you see the issue through only one narrow lens, the suggested resolution may not be the best option or the only option.  For example, a real estate attorney may be very good at what he does, but if he has a case that becomes a tax controversy matter, he could easily prejudice his client’s case and even lose a slam-dunk case if he doesn’t know how to navigate the process properly with the taxing authorities.  I’ve seen attorneys and accountants who were very competent in their specialties but who defaulted on serious tax deadlines resulting in assessments against their clients, causing cases to go to collection, for example.  They may have worried they’d lose the client if they referred it, or that they would get complaints from the client about the cost of seeking help from a tax attorney. However, that is penny-wise and pound-foolish. Had they referred the case to a tax controversy attorney, they could have continued to be a valued resource regarding the merits of the case, yet the client would have been better served and protected.   

            It does not matter what tax issue you have or what kind of entity you are, if your case becomes a “tax controversy” with a taxing authority, always seek out an experienced tax controversy attorney as early as possible in the process to protect your rights and to achieve the best outcome.

Tax Problems? Never Be Embarrassed to Seek Professional Help –You are in Good Company

As a tax attorney with many years of experience both within and outside the government, I have experienced both sides of the equation.  In addition to analyzing  and litigating complex legal principles in the Tax Court on behalf of the government, I often had to listen to “hard luck cases” and try to understand how and why taxpayers could possibly end up in their predicament. Being in the ivory tower of government can sometimes remove you from business realities and make you believe that there is evil intent involved when a taxpayer gets into a fix. Stories would begin to all sound the same, and it would become hard to trust a “sob story”; granted there were indeed cases of fraud and misdeeds, but my experience since then has shown a less nefarious reality.  For many years I have had to similarly listen to my clients’ situations and have myself had “real life” experience in running my own business as well as assisting others in doing the same.  It became clear that the slippery slope downward into the abyss can simply happen to anyone due to circumstances beyond their control and does not necessarily involve an evil intent to avoid or evade taxes.

     Some situations can of course seem to be self-inflicted, through mismanagement and poor choices, but many situations – especially with economic downturns – have involved formerly financially stable individuals or companies who tried to do everything the right way.  Due to circumstances beyond their control, they entered the abyss of not being able to meet financial obligations, including tax obligations.  When governmental entities fail to timely pay their private contractors, when businesses fail to pay their suppliers or independent servicers because they themselves are not being paid, when customers fail to pay for goods or services, there is a chain reaction.  Businesses who cannot collect their receivables cannot meet their payroll, pay their equipment leases, pay their rent or commercial mortgage, the list goes on.  The failure of one leads to subsequent failures of others to in turn meet their obligations. Unfortunately, just to keep their enterprises going, some often pay the “tax man” last or not at all.  Some cannot stomach laying off long-term devoted loyal employees with families in order to save on payroll costs, so the choices become very difficult. This happens on the individual level also – should one pay their mortgage or their estimated taxes?

      The key here is that this is happening more and more often, to the most upstanding citizens formerly sailing through and now just trying to get by.  Many find themselves in foreclosure or on the verge of bankruptcy. It can be a state of chaos that is embarrassing to admit, it feels like failure, a weight that presses on your chest where you cannot sleep at night.  I’ve seen the most seasoned professionals and business leaders nearly break in half from the pressure of these responsibilities, feeling they have no control over the outcome, all the while trying to “do the right thing.”

       This is where I come into the picture.  Never be so embarrassed or defeated that you feel you cannot seek help, because there is help.  First, as a licensed attorney, I am obligated to keep everything confidential, so there is no need to be concerned that your financial or tax problems will ever be disclosed; unlike many other professions, I am bound by attorney-client privilege.  Second, you might find this hard to believe, but both the IRS and New York State at their core do want taxpayers to remain solvent and viable income-producing and tax-paying entities.  It is in the government’s best interest to keep the tax revenues flowing.  If they can in any way assist in helping you to “make good” on past liabilities and also keep you on the right track for now and in the future, that is the ultimate goal. They simply want compliance, and my job is to reach a consensus on how to get a taxpayer into compliance and to take care of unpaid liabilities.  There are options to accomplish this and to achieve peace of mind.  It is a matter of having someone to navigate the process for you, take that pressure off of you, and to reach a resolution on your behalf.  Never be embarrassed to seek help, even if you have never needed to do so before. I can only reassure you by saying, you are NOT the only one.  

Are You the Cobbler Whose Children Have No Shoes?

This saying may be seem like an outdated reference, but it couldn’t be more relevant today.  The advantage of my being a solo attorney with my specialized niche is that a significant part of my practice consists of other professionals who find themselves in a fix with the taxing authorities and do not want their colleagues to know of their troubles.  You would be surprised how common this is.  These are lawyers, accountants, entertainers, journalists, engineers, investment bankers, real estate developers, architects, and other high profile business people who are top notch in their fields of expertise but who have done everything but taken care of their tax “shoes” if you want to put it that way. 

One of my first clients in solo practice after I left IRS Office of Chief Counsel was the founding member of a very well-known law firm that found himself in a fix involving an ancillary business venture and an unscrupulous business partner on whom he reasonably relied.  I was able to abate hundreds of thousands in penalties and he was extremely thankful.  There is no greater satisfaction than resolving a case favorably for a professional colleague who needs my help and relies on my commitment to the attorney-client privilege.  Since that day I have continued to get referrals and calls from similarly situated professionals who rely on me for my expertise and confidentiality; I have also resolved their cases continuing to build goodwill. 

 For those professionals who would be considered “sophisticated taxpayers” by the taxing authorities, it is not uncommon that sometimes they can get themselves into a tax fix.  Pumping personal funds into their businesses to keep them afloat is no more of a “noble” choice than someone who foregoes their medications to buy food.   This of course is not a legal basis for an excuse, but the reality is many are put in the position of choosing the lesser evil.    I believe some governmental authorities acknowledge the domino effect:  if the taxpayer fires all of their employees and goes bust, surely the taxes paid would pale in comparision to the government’s payment of unemployment compensation, food stamps, and other subsidies to fill the void left by a bankrupt company, not to mention the lost taxes that would have been paid by the gainfully employed.   It is truly in the government’s best interest to help these taxpayers, so they can continue to be revenue producing entities and compliant taxpayers.  

In my experience over these many years, I truly believe the taxing authorities, particularly in the wake of the Great Recession and now the Pandemic, are keenly aware of this, hence the many types of programs offered to resolve cases implemented in recent years.  Installment Payment options have increased, OIC rules in some ways have been eased, Appeals settlements are available, certain thresholds to qualify for programs have been raised.  I believe they realize that killing the goose is not the best option if they want more eggs.  As long as I can bring a taxpayer into compliance for the future, achieving terms of settlement that are reasonable (and do not ensure default), the taxing authorities seem willing to resolve a case to get the revenues flowing again when a company seems viable.  Of course, I must add the caveat that each case stands on its own facts, and not every case will be treated the same, particularly if the taxpayer’s actions are egregious, are part of a lengthy pattern of non-compliance or he/she is not acting in good faith.  Other issues may also be involved that require a different approach.  But overall, I think there is hope for the cobblers out there and their shoeless children and I am available to help get them back on their feet.