Beware of promoters’ claims that tax debts can be settled through the offer in compromise program for “pennies on the dollar”.
The preferred approach to the IRS is through your tax attorney so that your interests are protected from those at the tax agency who try and gather information from you to use it to your disadvantage.
Unless you have special circumstances (and some Californians do), an offer in compromise (OIC) will not be accepted if the IRS believes that the liability can be paid in full as a lump sum or through a payment agreement.
An offer is an agreement between you and the Internal Revenue Service that settles your tax liabilities for less than the full amount owed.
Usually, the IRS will not accept an OIC unless the amount you offer is equal to or greater than the reasonable collection potential (RCP). The RCP is how the IRS measures your ability to pay and includes the value that can be realized from your assets, such as real property, automobiles, bank accounts, and other property. The RCP also includes anticipated future income, less certain amounts allowed for basic living expenses.
Three Types of OICs
The IRS may accept an offer in compromise based on three grounds:
1. Doubt as to Collectibility – Doubt exists that you could ever pay the full amount of tax liability owed within the remainder of the statutory period for collection.
Example: You owe $20,000 for unpaid tax liabilities and agree that the tax you owe is correct. Your monthly income does not meet your necessary living expenses. You do not own any real property and do not have the ability to fully pay the liability now or through monthly installment payments.
2. Effective Tax Administration – There is no doubt that the tax is correct and there is potential to collect the full amount of the tax owed, but an exceptional circumstance exists that would allow the IRS to consider an OIC. To be eligible for compromise on this basis, you must demonstrate that the collection of the tax would create an economic hardship or would be unfair and inequitable.
Example: You have assets sufficient to satisfy the tax liability and provide full time care and assistance to a dependent child, who has a serious long-term illness. It is expected that you will need to use the equity in assets to provide for adequate basic living expenses and medical care for the child. There is no doubt that the tax is correct.
3. Doubt as to Liability – A legitimate doubt exists that the assessed tax liability is correct. Possible reasons to submit a doubt as to liability offer include: (1) the examiner made a mistake interpreting the law, (2) the examiner failed to consider your evidence or (3) you has new evidence.
Example: You were vice president of a corporation from 2004-2005. In 2006, the corporation accrued unpaid payroll taxes and you were assessed a trust fund recovery penalty as a responsible party of the corporation. You were no longer a corporate officer and had resigned from the corporation on 12/31/2005. Since you resigned prior to the payroll taxes accruing and was not contacted prior to the assessment, there is legitimate doubt that the assessed tax liability is correct.
OIC Payment Options
Usually, you must submit a $150 application fee and initial payment along with the Form 656, Offer in Compromise. You may chose to pay your offer in compromise in one of three payment options:
1. Lump Sum Cash Offer – Payable in non-refundable installments, the offer amount must be paid in five or fewer installments upon written notice of acceptance. A non-refundable payment of 20 percent of the offer amount along with the $150 application fee is due upon filing the Form 656.
If the offer will be paid in 5 or fewer installments in 5 months or less, the offer amount must include the realizable value of assets plus the amount that could be collected over 48 months of payments or the time remaining on the statute, whichever is less.
If the offer will be paid in 5 or fewer installments in more than 5 months and within 24 months, the offer amount must include the realizable value of assets plus the amount that could be collected over 60 months of payments, or the time remaining on the statute, whichever is less.
If the offer will be paid in 5 or fewer installments in more than 24 months, the offer amount must include the realizable value of assets plus the amount that could be collected over the time remaining on the statute.
2. Short Term Periodic Payment Offer – Payable in non-refundable installments; the offer amount must be paid within 24 months of the date the IRS received the offer. The first payment and the $150 application fee are due upon filing the Form 656. Regular payments must be made during the offer investigation.
The offer amount must include the realizable value of assets plus the total amount the IRS could collect over 60 months of payments or the remainder of the statutory period for collection, whichever is less.
3. Deferred Periodic Payment Offer – Payable in non-refundable installments; the offer amount must be paid over the remaining statutory period for collecting the tax. The first payment and the $150 application fee are due upon filing the Form 656. Regular payments must be made during the investigation.
The offer amount must include the realizable value of assets plus the total amount the IRS could collect through monthly payments during the remaining life of the statutory period for collection.
The IRS is not bound by either the offer amount or the terms proposed by you. The OIC investigator may negotiate a different offer amount and terms, when appropriate. The investigator may determine that the proposed offer amount is too low or the payment terms are too protracted to recommend acceptance. In this situation, the OIC investigator may advise you as to what larger amount or different terms would likely be recommended for acceptance.
Payments and Application Fees
When filing an offer in compromise, two separate remittance documents should be sent, one for the application fee and the other for the required offer payment.
The Form 656-PPV, Offer in Compromise Payment Voucher, included in the Form 656, should be completed and attached to any periodic payment(s) that becomes due. Failure to submit any required periodic payments, after the initial payment has been submitted, will result in the offer being declared withdrawn.
The OIC application fee reduces the assessed tax or other amounts due. The application fee will be returned if the OIC is deemed not to be processable. Unless the offer in compromise has been submitted under doubt as to liability or a completed Form 656-A and Offer in Compromise Application Fee and Payment Worksheet is included with the Form 656, the $150 application fee must be included with the offer or the IRS will return the offer.