Tax Tips From Manafort Conviction That Might Keep IRS Away

The conviction of former Trump campaign chairman Paul Manafort on eight counts of financial crimes nets the first conviction for Special Counsel Robert Mueller.

Political commentators on both sides are jabbering over this. They also have the guilty plea by former Trump fixer Michael Cohen to talk about. But aside from politics, there are some serious tax lessons here for everyone. And they are surprisingly simple.

The IRS wants you to report your worldwide income on your taxes, and (separately) to report your foreign accounts. That sounds simple, but there has long been temptation with hidden accounts. FBARs, the foreign bank account reporting form Manafort failed to file, have been required by law since 1970, so the requirement is hardly new. It is very easy for the government to win FBAR cases, and the penalties–both civil and criminal–are steep, worse than tax evasion.

Protester Bill Christeson holds up a sign saying “guilty” as the first count of guilty comes in at he trial of former Donald Trump campaign chairman Paul Manafort, at federal court in Alexandria, Va., Tuesday, Aug. 21, 2018. (AP Photo/Jacquelyn Martin)

Much of the scrambling started about ten years ago. The IRS and Justice Department took on Swiss banking, and in 2008, started to win big in court. With huge potential exposure for helping Americans, UBS settled with the U.S. government in 2009 for $780 million. Since then, vast numbers of Swiss and other banks faced criminal charges or made big civil settlements. And American taxpayers have too, with the IRS offshore account collections haul topping $10 billion. For ten years, the IRS has run its Offshore Voluntary Disclosure Program (OVDP), a type of tax amnesty. This program will formally close on September 28, 2018. The IRS Streamlined program will still exist, but Streamlined cases are subject to audits. For the protection of the OVDP, there’s not much time left. 

I’ll bet Manafort wishes now that he had cleaned up his accounts voluntarily before he was in the cross hairs. Another lesson from Manafort is about IRS access to information. Often, they get it. Consider FATCAthe Foreign Account Tax Compliance Act. It penalizes foreign banks if they don’t hand over Americans. The vast majority of foreign countries and their banks comply, so don’t count on bank secrecy anywhere. On top of FATCA, the U.S. has a treasure trove of data from 50,000 voluntary disclosures, whistleblowers, banks under investigation and cooperative witnesses. So the smart money suggests resolving your issues. You can have money and investments anywhere in the world as long as you disclose them.

The biggest lesson from Manafort? Declare all your income and your foreign accounts, and don’t obscure or cover up the facts. Sure, you can make mistakes. But your mistake must be credible. If there are too many oversights or glitches, you might just appear to be willful. Negligence, inadvertence, or mistake is OK. Intent to conceal or to evade taxes is not. Consider that the IRS’s offshore Streamlined program requires one to:

Provide specific reasons for your failure to report all income, pay all tax, and submit all required information returns, including FBARs. If you relied on a professional advisor, provide the name, address, and telephone number of the advisor and a summary of the advice. If married taxpayers submitting a joint certification have different reasons, provide the individual reasons for each spouse separately in the statement of facts.”

If you knew you were supposed to report, the IRS may say you were willful. What’s more, the IRS uses a concept of “willful blindness.”
Essentially, it is a conscious effort to avoid learning about the IRS or FBAR reporting. Willfulness involves a voluntary, intentional violation of a known legal duty. In taxes, it applies for civil and criminal violations. The failure to learn of filing requirements, coupled with efforts to conceal the facts, can spell willfulness.

If you don’t want to end up like Manafort, what other things do you want to avoid? Avoid setting up trusts or corporations to hide your ownership. Avoid filing some tax forms and not others. Avoid keeping two sets of books. Avoid telling your bank not to send statements. Avoid using code words over the phone. Avoid cash deposits and cash withdrawals. You get the idea. Even if you can explain one failure to comply, repeated failures can morph conduct from inadvertent neglect into reckless or deliberate disregard. That may have been part of Manafort’s problem.

via The Tax Lawyer


Receive An IRS Summons? Here’s What To Do

The vast majority of IRS audits involve the big agency telling you what they want to see, and you handing it over. This is most frequently done with what the IRS calls Information Document Requests, IDRs for short. But sometimes matters escalate to an IRS summons. And sometimes the IRS issues a summons to a third party, trying to get information about someone else. If you are issued a summons, in many cases you probably will want to comply. If you don’t, the government can actually sue you. In the vast majority of cases, the government wins these disputes. The government usually gets the data, and it does not like to have to sue to collect it. In that sense, fighting over the data is usually not where taxpayers (or third parties) want to spend their money. Eventually, the merits of the tax dispute must be addressed, and that is generally be the real fight, not the documentary preliminaries.

(AP Photo/J. David Ake, File)

Many tax disputes end up getting compromised. Of course, there can be times when it is appropriate to clam up and stop cooperating. There may be privilege issues, for example. Third parties often must protect the privacy of their account holders, customers, etc. But for most taxpayers it can be worth considering voluntary compliance. Almost any IRS correspondence is stressful, but when a request for substantiation or documents looks like legal process, stress levels go higher. Usually, the IRS asks for information in an IDR, on IRS Form 4564. You are under no legal obligation to respond, but you generally should. Otherwise, your case with the IRS will escalate. The first way an IRS probe usually escalates is from an IDR to a summons.

An IDR is informal, a list of items the IRS requests from you. The fact that you do not have all the items—or perhaps might not want to provide them all—does not mean you should not respond. If you respond to an IDR with 4 out of 6 requested items, maybe that will satisfy the IRS. Sometimes they may not keep asking, or may accept an explanation why the other items are not included. If you don’t respond at all, you are almost guaranteed to provoke another IRS response. After one or more IDRs, next comes a summons, which the IRS has the power to issue.

When the IRS issues a summons, you can comply, refuse, or ignore it. Alternatively, you can go to court and attempt to quash it. That involves showing you have legitimate legal reasons not to disclose the information. If you refuse or ignore the summons, the Justice Department can get a court order to enforce it. If you still refuse, you could face sanctions for criminal or civil contempt. In all of these ways, a summons to hand over books, records or other data is more potent than an IDR, since it carries the threat of court enforcement. In fact, the mere fact that the IRS issues a summons rather than an IDR sends a stern message. A summons ups the ante, showing that the IRS is playing tough and is willing to go to court.

What grounds can you cite for not complying with an IRS summons? Common grounds are attorney-client privilege or work product protection, but the standards are high. The IRS uses its summons power frequently today, and court fights are becoming more common. Taxpayers generally lose these cases, which means the IRS generally gets the documents in the end. There are some sobering statistics. According to the U.S. Taxpayer Advocate Service, there were only 44 such disputes in 2005. Then, by 2012, the number ballooned to 153. While the number of cases has decreased since 2012, summons enforcement continues to be a significant source of litigation.

The Taxpayer Advocate Service says that the IRS has won 96% of its summons cases during June 1, 2014 through May 31, 2015. With that many cases litigated, many more were probably resolved short of litigation. You should consider those odds when you decide whether and how to fight. With a normal summons, the IRS seeks information about a specific taxpayer whose identity it knows. But the IRS also has the power to issue a ‘John Doe summons.’ A John Doe summons allows the IRS to get the names of all taxpayers in a certain group. The IRS needs a judge to approve it, but recent IRS success that the IRS has had with offshore bank matters may to lead to even more of these blanket IRS summonses in the future.

A John Doe summons is ideal for pursuing tax shelter investors, or account holders at a financial institution. The IRS can claim major successes on this front. The IRS was able to sniff out thousands of American taxpayers with Swiss accounts at UBS with a John Doe summons. The IRS has done the same with other banks (such as HSCB in India). Also, the IRS mostly won its fight for Coinbase customer data. Crypto investors with more than $20,000 generally had their data disclosed to the IRS.

Sometimes, big companies can and do play hardball with the IRS. But for most people, the IRS is eventually going to get the information, at least statistically speaking. As such, fighting over such issues can end up being unwise. It can sometimes even make an IRS dispute on the merits tougher when you get to it.

via The Tax Lawyer

How Much Is $100 Worth In Your State?

Taxes matter, both federal and state. And they can eat up more of your money than you might think. The Tax Foundation has released a map showing the real value of $100 in each state. Prices for the same goods are often cheaper in states like Missouri or Ohio than in states like New York or California. As a result, the same amount of cash can buy you more in a low-price state than in a high-price state.

Using 2016 data from the Bureau of Economic Analysis, the Tax Foundation adjusted the value of $100 to show how much it buys you in each state. For example, $100 in South Dakota will buy you goods that would cost $113.25 in a state at the national average price level. In effect, South Dakotans are therefore 13% richer!

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The states where $100 is worth the most are Mississippi ($115.74), Alabama ($115.47), Arkansas ($115.07), West Virginia ($114.16), and Kentucky ($113.90). In contrast, $100 is effectively worth the least in Hawaii ($84.46), the District of Columbia ($86.28), New York ($86.51), California ($87.41), and New Jersey ($88.34). 

Real purchasing power is 34% greater in Mississippi than it is in New York. So if you have $50,000 in after-tax income in Mississippi, you would have to have after-tax earnings of $67,000 in the New York to afford the same standard of living. States with higher nominal incomes also have higher price levels. However, places with a high cost of living pay higher salaries for the same jobs.

Some states, like North Dakota, have high incomes without high prices. Plus, according to the Tax Foundation, residents of North Dakota and Massachusetts  earn approximately the same amount in dollars per capita. However, after adjusting for regional price parity, North Dakotan incomes can buy more.

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Do these dollars cause people to think about moving? You bet. In fact, California’s taxes can be so high – a whopping 13.3% on top of the IRS – that it often seems to invite investors, and business people to move to low-price states. That could be especially true with the new $10,000 ceiling on deducting state taxes, although millionaires leaving California over taxes is nothing new. It sounds smart to make your money in California, but to quickly move out before it is taxed by the Golden State. Other states (notably New York) have a similar problem. But year after year, no state has a bigger and more persistent cadre of would-be tax fugitives than California.

Some Californians look to flee the state before selling real estate or a business. Some get the travel itch right before cashing in shares, a public offering, winning a lawsuit, or settling litigation. Some of the carefully orchestrated deals and moves can work just fine. However, many would-be former Californians have unrealistic expectations about establishing residency in a new state. They also may have a hard time distancing themselves from California. They may not plan on California tax authorities chasing them.

via The Tax Lawyer

How IRS Taxes Kill Plaintiff’s $289M Monsanto Weedkiller Verdict

The news that jurors gave $289 million to a man they say got cancer from Monsanto’s Roundup weedkiller might make you think the plaintiff will get rich. Dewayne Johnson can’t count on the money, as Monsanto says it will appeal. Monsanto faces hundreds of other claims, and may fight hard. But even if Monsanto forks over the money, new tax rules will be as effective as Roundup in swallowing up most of Mr. Johnson’s big verdict. Under President Trump’s tax bill passed in late 2017, there is a new tax on litigation settlements: no deduction for legal fees. Amazingly, many legal fees simply can’t be deducted. That means Mr. Johnson must pay tax even on monies his attorney collects. That is so even though the attorney must also pay tax on the same money. Here’s the bizarre new math.

Dewayne Johnson (C) hugs one of his attorneys, next to lawyer and member of his legal team Robert F Kennedy Jr (R), after the verdict was read in the case against Monsanto at the Superior Court Of California in San Francisco, California on August 10, 2018. (Photo credit: JOSH EDELSON/AFP/Getty Images)

Johnson was awarded $39M in compensatory damages, and $250M in punitive damages. The combined contingent fees and costs Mr. Johnson pays might total 50%. If so, he gets to keep half, or $19.5M of the compensatory award. Since it is for his claimed non-Hodgkin’s lymphoma, that part should not be taxed. Of the $250M punitive award, $125M goes to legal fees and costs, and $125M to Johnson. So before taxes, his take home is $144,500,000. What about after taxes? The $250M in punitive damages are fully taxable, with no deduction for the fees to his lawyer. At 37%, Johnson would lose $92,500,000 to the IRS. That makes his after-tax haul from a $289M verdict only $52M.

Plus, state taxes could take more. California could take over $30M of what’s left, leaving him with less than $20M. Remember, the cap on state tax deductions is now $10,000. Sure, take home pay of $18M is nothing to sneeze at, but it’s a far cry from what most people assume. The shocking result comes from the Trump tax law, which kills off tax deductions for many legal fees. Compensatory damages for physical injuries or physical sickness are still OK. But exactly what injuries are “physical” can sometimes seem like a chicken or egg issue.

If you are the plaintiff with a contingent fee lawyer, the IRS treats you as receiving 100% of the money, even if the defendant pays your lawyer directly. If your case is fully nontaxable, that causes no tax problems. But if your recovery is taxable, all or in part, you could be taxed on more money that you actually collect. Up until the end of 2017, you could claim a tax deduction for your legal fees. In 2018 and thereafter, there is no deduction for these legal fees. Not all lawyers’ fees face this terrible tax treatment. If the lawsuit concerns the plaintiffs’ trade or business, the legal fees are a business expense. If your case involves claims against your employer, or certain whistleblower claims, those legal fees are also OK.

But for other cases, you are out of luck unless you are awfully creative. There are sometimes ways to circumvent these tax rules, but you’ll need sophisticated tax help, and nothing is foolproof. Settlements require advice on the taxation of damage awards, preferably before the case settles. Sometimes, you can justify an allocation of legal fees that is not strictly pro rata, but you need to document it, and the IRS may not agree.

Awards of pre-or post-judgment interest can produce the same tax problems as punitive damages, with no deduction for legal fees. Meanwhile, defendants like Monsanto can deduct the whole $289M on their taxes. With a potential net take home of less than $20M for the plaintiff, that’s a surprising result. One could understand if Mr. Johnson and his lawyers try to devise some kind of creative workaround. After all, a number of states (including California) are being inventive to get around the new $10,000 deduction cap on state taxes. Plaintiffs may have to be equally creative.

via The Tax Lawyer

Trump Tax Law Hurts Injury Suit Settlements

Serious accident cases can produce tax-free money to clients. The injuries might be from an auto accident, slip and fall, medical malpractice, industrial accident, or drug or medical device case. If the plaintiff suffers physical injuries or physical sickness, compensatory damages should be tax free. But this tax-free treatment only apples to compensatory damages. Punitive damages and interest are taxable, and there are key changes under the Trump tax lawTo qualify for tax-free treatment, the injuries must be physical. Emotional distress is not enough, and physical symptoms such as insomnia, headaches and stomachaches are normal byproducts of emotional distress, says the IRS. 

FILE – In this Dec. 22, 2017, file photo, President Donald Trump speaks with reporters after signing the tax bill and continuing resolution to fund the government, in the Oval Office of the White House in Washington.  (AP Photo/Evan Vucci, File)

Exactly what injuries are “physical” is confusing. If you make claims for emotional distress, your damages are taxable. In contrast, if you claim that the defendant caused you to become physically sick, those damages should be tax free. Yet, if it is emotional distress that causes you to become physically sick, even that physical sickness will not spell tax-free damages. However, if you are physically sick or physically injured, and your sickness or injury produces emotional distress too, those emotional distress damages should be tax free.

If you are confused, you are not alone. The chicken or egg distinction can hinge on which words you use. Plus, this area has seen major changes under the Trump tax law. If you are the plaintiff with a contingent fee lawyer, you usually will be treated (for tax purposes) as receiving 100% of the money recovered by you and your attorney. This is so even if the defendant pays your lawyer directly. If your case is fully nontaxable (say, an auto accident in which you are physically injured, where you receive only compensatory damages), that should cause no tax problems.

But if your recovery is taxable, all or in part, you could be in tax trouble. Let’s start with a fully taxable recovery, since the math there is easier to follow. Say you settle a suit for intentional infliction of emotional distress you brought against your neighbor for $100,000. Your lawyer keeps 40%, or $40,000. You might think that you would have $60,000 of income at most. Instead, you will have $100,000 of income. Up until the end of 2017, you could claim a $40,000 miscellaneous itemized tax deduction for your legal fees. You faced limitations on your deduction, but at least it was a deduction.

In 2018 and thereafter, there is no deduction for these legal fees. Yes, that means you collect 60%, but are taxed on 100%. Notably, not all lawyers’ fees face this terrible tax treatment. If the lawsuit concerns the plaintiffs’ trade or business, the legal fees are a business expense. Those legal fees can be deducted ‘above the line,’ the best kind of deduction. Mathematically, it is like not having the income in the first place.

If your case involves claims against your employer, or certain whistleblower claims, there is also an above-the line deduction for legal fees. That means you can deduct those legal fees on the first page of your IRS Form 1040. It is essentially like not having the lawyer fee income in the first place. But outside of employment, specific whistleblower claims, and your trade or business, be careful. You get no tax deduction at all for the legal fees, unless you are awfully creative. There are sometimes ways to circumvent these attorney fee tax rules, but you’ll need sophisticated tax help to do it, and nothing is foolproof.

What about a case that is partially taxable and partially tax-free? Remember, punitive damages and interest are always taxable, even if your injuries are 100% physical. Suppose you are injured in a car crash. Thereafter, you collect $50,000 in compensatory damages and $5 million in punitive damages. The $50,000 is tax free, but the $5 million is fully taxable. What’s more, you can’t deduct your attorney fees. If you pay a 40% contingent fee, $2 million of that $5 million goes to the lawyer, with the client netting $3 million. But the tax law says the client receives (and must report) the full $5 million.

via The Tax Lawyer

IRS & FATCA Hunt Offshore Accounts

Unless you have been living under a rock for the last 10 years, you know that the IRS cares about offshore bank accounts. You have to declare them, and report the interest you earn even, if you don’t receive a Form 1099 from the foreign bank. One of the key ways the IRS can get your information is FATCA, the Foreign Account Tax Compliance Act. FATCA goes to the source, requiring offshore financial institutions to report Americans and make sure they pay the IRS. Institutions that don’t rat out Americans face a series of stiff penalties. Some people have offshore accounts, interests in offshore trusts, or just signature power but no beneficial interest in an account. All of these require disclosure.


If you are a U.S. citizen or resident and have a foreign bank account anywhere, it is no longer secret. There’s no universal answer how to deal with bank queries. But how to deal with the IRS is relatively clear. You must report worldwide income on your U.S. tax return. If you have an interest in a foreign bank account, check “yes” (on Schedule B).

Worldwide income means everything, including interest, foreign earnings, wages, dividends and other income. If your income is taxed somewhere else, you might be entitled to a foreign tax credit. If you are living and working abroad, you might be entitled to an exclusion from U.S. tax for some or all income earned abroad. But you still must report it.

You also must file an FBAR annually if the aggregate of your foreign accounts exceeds $10,000 at any time during the year. FBARs have actually been in the law since 1970, but did not become as important until more recently. Another form under FATCA is IRS Form 8938, and it is part of your tax return. In general, it requires reporting where your foreign assets exceed $50,000 in value. It covers many assets not covered by FBARs too.

If you fail to report your worldwide income or fail to check the foreign account box, it can be considered tax evasion and fraud. The statute of limitations is six years. Plus, the statute of limitations never expires on tax fraud, so the IRS can pursue you many years later for back taxes, interest and penalties. If you failed to report income, your civil liability to the IRS can include a 20% accuracy-related penalty or a 75% civil fraud penalty. Failing to file an FBAR can carry a civil penalty of $10,000 for each non-willful violation. If willful, the penalty is the greater of $100,000 or 50% of the amount in the account for each year you didn’t file.

Filing a false tax return is a felony that can mean up to five years and a fine of up to $250,000. Failing to file FBARs can also be criminal, carrying fines up to $500,000 and up to ten years in prison. Fortunately, the IRS has had several amnesty programs. The longest running of these programs is the Offshore Voluntary Disclosure Program, but it is ending in September. It offers a kind of bulletproof amnesty with a kind of no-questions asked approach. And for that reason, the announced September 28, 2018 closure date is causing an uptick in people joining before it is too late. The other IRS amnesty known as the Streamlined program is less expensive but also less certain. And that program is continuing.

Some people don’t want to pay the penalties these amnesty programs require, prefering a “quiet” disclosure. That usually involves amending tax returns and filing FBARs outside the IRS amnesty programs, hopefully without drawing attention to what you are doing. The IRS frowns upon this practice, and says it will treat you harshly if it catches you. But a few people are comfortable doing it and it can be better than doing nothing. Plus, if you don’t owe U.S. taxes (because of foreign tax credits, for example), filing past due FBARs is usually not grounds for any penalties. Even if you didn’t report your offshore income on your tax return or disclose your account, you may be able to recompute your taxes.

Civil and criminal penalties for failing to file FBARs are worse than tax penalties. That’s one reason filing FBARs can make a huge difference even if minor errors on your tax returns are not corrected. You can avoid penalties if you had “reasonable cause” for not filing FBARs, but the grounds for waiving penalties aren’t terribly clear. And it gets harder and harder to claim ignorance. Depending on how serious your past problems are, some people just start filing accurate tax returns and FBARs prospectively.

However, the IRS may ask about the lack of prior FBARs and of prior tax returns disclosing a foreign account. If they ask questions, you should respond through your attorney. And remember, never lie to the IRS. There continues to be confusion and noncompliance involving foreign bank accounts. For anyone facing these issues, ignoring them is not a good idea. Ideally, get some professional advice and get your situation resolved.

via The Tax Lawyer

Bank Letters About Foreign Accounts: What To Do

If you have a bank account outside the U.S., chances are you will receive a letter saying that your bank must hand over the details of any American accounts, including yours. The letters vary by country and by individual institutions. But the overall message is that the IRS is about to get your information. As unnerving as this is, FATCA is real, and ignoring offshore accounts isn’t wise. You might think your accounts are not big enough to be noticed, but it is not worth the risk.

Many American citizens and Green Card holders are receiving letters (and in some cases even phone calls) from their banks about their American status. Some ask for your U.S. tax ID, and ask you to verify that you are fully tax compliant with the IRS. Some don’t require a response, and just say your information will be sent. Some say the bank will close your account if you don’t respond favorably. But what if you aren’t up to snuff with the IRS?


FATCA—the Foreign Account Tax Compliance Act—is America’s global disclosure law. It penalizes foreign banks if they don’t hand over Americans. The vast majority of foreign countries and their banks comply, so don’t count on bank secrecy anywhere. On top of FATCA, the U.S. has a treasure trove of data from 50,000 voluntary disclosures, whistleblowers, banks under investigation and cooperative witnesses. So the smart money suggests resolving your issues. You can have money and investments anywhere in the world as long as you disclose them.

You must report worldwide income on your U.S. tax return. If you have a foreign bank account, you must check “yes” on Schedule B. You may also need to file an IRS Form 8938 with your Form 1040 to report foreign accounts and assets. Yet tax return filing alone isn’t enough. U.S. persons with foreign bank accounts exceeding $10,000 in the aggregate at any time during the year must file an FBAR—now rebranded as a FinCEN Form 114—by each June 30. Tax return and FBAR violations are dealt with harshly. Tax evasion can mean five years in prison and a $250,000 fine. Filing a false return? Three years and a $250,000 fine.

Failing to file FBARs can be criminal too. Fines can be up to $500,000 and prison can be up to ten years. Even civil FBAR cases are scary, with non-wilful violations drawing a $10,000 fine. For willful FBAR violations, the penalty is the greater of $100,000 or 50% of the amount in the account for each violation. Each year you didn’t file is a separate violation. Those numbers can add up fast and easily be much worse than the 27.5% penalty that generally applies under the IRS Offshore Voluntary Disclosure Program. With the range of penalties, it is sensible to consider reacting to a FATCA letter carefully. For example, you might at first be tempted to tell the bank you’re compliant even if you’re not. This seems dangerous. The bank or the IRS will find out, maybe not right away, but eventually.

You also might consider failing to respond or just closing your account. Again, this is dangerous. Banks routinely turn over the names of closed accounts, so that hardly solves the problem. Plainly, joining one of the IRS amnesty programs and telling your bank you’ve done it is the safest choice. The primary program is the Offshore Voluntary Disclosure Program (OVDP). You pay back taxes and penalties but you will not be prosecuted. The other program is the IRS’s Streamlined program.

Under changes announced by the IRS in June of 2014, the Streamlined programs are a good deal. They can apply not only to overseas Americans but also to those living in the U.S. The Streamlined program is far less expensive than the OVDP if you qualify. Although the Streamlined program does not have the certainty of the OVDP, this IRS Offshore Amnesty Program may be right for you.

Filing amended tax returns and FBARs outside of the IRS programs is considered a “quiet” disclosure, and the IRS warns against it. Just filing properly on a prospective basis is also not the best choice. After all, there is a risk your past non-compliance will be noticed. Don’t take any action without considering your profile, facts, numbers, actions and risk tolerance. Although the chance of a terrible result might be fairly small, terrible in this case really can mean terrible. Get some advice and try to get your situation resolved in a way that makes sense for your facts, risk profile, and pocketbook.

via The Tax Lawyer