Showing posts with label Eleventh Circuit. Show all posts
Showing posts with label Eleventh Circuit. Show all posts

Tuesday, July 15, 2014

Marijuana Dispensaries Who Pay Taxes in Cash Get Penalized

If you are a marijuana business, regardless of whether you are operating within state law, you have major tax and banking headaches.  Banking and most tax laws are governed by Federal law, which deems these activities illegal.  One challenge commonly faced by marijuana businesses is the lack of access to the banking system, because banks don't want to deal with businesses illegal under federal law.

Without banks, dispensaries pay the government in cash, but face a penalty for the cash payments.  This situation highlights the hypocrisy of the government's tax and drug policies, requiring payment on the one hand, punishing you for paying on the other.  A recent case filed in U.S. Tax Court by a Colorado dispensary, Allgreens LLC, is the most recent challenge to this Catch-22 created by the government. Unfortunately, the IRS is probably going to win because it is just following the letter of the law here - a change to the tax or the drug laws is necessary for a fix.

Financial institutions generally refuse to open accounts for marijuana businesses due to the intersection with federal law and, once the bank finds out a customer is involved in marijuana activities, will also drop accounts for the existing customers who have such businesses. 
Banks do not want to risk the FDIC revoking its deposit insurance and other federal agencies cracking down on them for knowingly depositing monies from businesses deemed illegal drug trafficking activities under federal law.

Without many banking options, marijuana businesses are forced to operate primarily in cash. As a result, these businesses may have little option other than to make their tax payments in cash.  This means they are unable to make their deposits through the Electronic Federal Tax Payment System.  The IRS penalizes businesses and people who pay their payroll taxes in cash.   The IRS is assessing a ten percent penalty on marijuana dispensaries for paying their federal employee the only way they can.  

The IRS cannot efficiently deal with large amounts of cash, so it imposes penalties in the payroll tax situation.  This is confounding because these businesses are simply paying their taxes using the same currency created by our federal government, which would be acceptable in other situations (e.g., auctions and individual income tax payments under IRM 21.3.4.7).   Dispensaries want to follow the law and pay over payroll taxes and, due to no fault on the part of the dispensaries, the IRS penalizes them an additional ten percent.  While the IRS has suggested alternative methods for paying their taxes, these are likely inconsistent with federal anti-money laundering laws, requiring the use of unnecessary third parties (the use of additional steps that mask the true nature of illegal income in certain situations can be considered money laundering).

Given these current challenges, the IRS should waive this ten percent penalty for marijuana businesses at least on a temporary basis until there is greater clarity whether a reasonable cause exception is available.  Unless and until these businesses have sufficient access to the banking system to meet their obligations under the Internal Revenue Code, the IRS's imposition of penalties is simply unfair.

If you have any questions, please do not hesitate to contact the Wilson Tax Law Group.

Friday, June 20, 2014

IRS Suffers Defeat in Appeals Court as Jury's Finding of Return Preparer Penalty Reversed

The IRS suffered a major defeat last week in the Eleventh Circuit Court of Appeals, in Carlson v. United States, Case No. 12-13736 (June 13, 2014), as the appellate court reversed in part and vacated and remanded in part a decision from a Florida district court holding a tax preparer liable for penalties under Code Section 6701.  The eleventh circuit held that the burden of proof was not the usual minimum of a "preponderance of the evidence" (sometimes described as "more likely than not") but the higher "clear and convincing evidence" usually applied in civil fraud cases.  (Note: the clear/convincing standard is lower than the "beyond a reasonable doubt" standard.)  Appellant, Frances Carlson, was a return preparer for Jackson Hewitt tax services.

Section 6701(a) of the Internal Revenue Code, 26 U.S.C., provides for a penalty to be imposed on any person:

(1) who aids or assists in, procures, or advises with respect to, the preparation or presentation of any portion of a return, affidavit, claim, or other document,
(2) who knows (or has reason to believe) that such portion will be used in connection with any material matter arising under the internal revenue laws, and
(3) who knows that such portion (if so used) would result in an understatement of the liability for tax of another person.
Under IRS Section 6701(b), the penalty is $1000 for essentially every return that the tax preparer knew was claiming a false understatement of tax, but the penalty is limited to one imposition for each year involving a particular taxpayer. For example, if a return preparer prepares knowingly false returns for Jimmy in 2010, 2011, and 2012,  and a knowingly false tax return and a false amended return for Jane in 2010, the return preparer would be penalized $3000 for Jimmy's three returns but only $1000 for the two filed for Jane.

In finding against the IRS, the Court noted several facts which implied that, even though Carlson prepared tax returns as her job for Jackson Hewitt, she was unsophisticated in tax matters and was not well educated or particularly well trained.  Rather, she relied mainly on a software program.  Nonetheless, she prepared 200-300 returns in her first year.  In her second year, she was promoted to corporate returns!  (Although the IRS is the loser in this case, it certainly doesn't reflect well on Jackson Hewitt either.  It does serve as a valuable reminder that a big name is no guarantee that the individual preparing your returns is very qualified.  The other big box preparation service, HR Block, on the other hand, if I recall right, spent a great deal of its advertising last year on how experienced some of its preparers were, perhaps trying to fight this perception.)

Her boss at JH was arrested in 2006 for drug and money laundering charges.  (Wow!)  The IRS later investigated the preparation business, at which time Carlson stopped working there, but had prepared more than a thousand returns during her tenure.  The IRS penalized her for 40 of those returns, she paid 15% down and sued in district court for a refund (which is unique to certain penalties).  The DOJ saw fit to defend only 27 of those 40 in a jury trial.

As you can see, Carlson is actually fairly sympathetic in this case.  The government's decision to litigate when there was a possible adverse decision on a purely legal issue was a hazardous one.  There is a saying in litigation that "bad facts make bad law."  If the DOJ was trying to avoid making bad law, this may have been the wrong case to push.

Contrary to the government’s argument, Section 6701, even though it doesn't use the word "fraud,"requires proof of fraud before penalties can be imposed.  Essentially, knowledge that a false item would make a false refund is fraud.

The case was remanded for a whole new trial.  The appeals court held the government was required to prove by clear and convincing evidence that the individual had actual knowledge that the returns she prepared for others contained an understatement of tax.  Thus, the instruction to the jury on the lower standard of proof was improper.  In a full sweep for the return preparer, the appeals court found the government's case wanting under any standard.  There was simply insufficient evidence to support the jury’s verdict that a tax preparer was liable for penalties under Section 6701.

 Further, government presented no evidence that the preparer knew that twelve of the returns understated the correct tax. The government was required to show that the preparer knew that the returns were fraudulent; it was insufficient for the government to show only that the returns contained errors.

In contrast, the preparer presented substantial evidence that she did not know the returns she prepared understated the correct tax. Moreover, the simple fact that many of the preparer's customers either failed to substantiate their deductions during the audit or were not cooperative during the IRS's later audit was not evidence that those clients had not presented substantiation to the preparer (or misled the preparer) at the time the returns were prepared.  A jury could not reasonably infer that the preparer knew the returns contained understatements based only on those clients' conduct during audits.

This case represents a major "win" legal victory for this particular return preparer and a terrible defeat for the government.  However, the "win" is not that great if you consider the public shame the IRS has brought on the return preparer and Jackson Hewitt and the likely loss of business it may have caused her practice.  Hopefully, this case gives enough guidance to prevent similar cases from being pushed forward by the DOJ and IRS unnecessarily.

The Wilson Tax Law Group has extensive experience in return preparer penalties and criminal defense of tax return preparers. Please feel free to contact our firm with any inquiries on similar issues or any other tax problems.