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Immigration and Taxes

Houston Tax Attorney

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Immigration and Taxes

Immigration and taxes might not seem like two areas that have much in common, unless you’re in the immigration process. With the current political climate, it’s important that anyone going through the immigration process understands the importance of being in compliance with your taxes and what it means for your application.

Why Taxes are Important in Immigration

Anyone that is applying for green card, naturalization, or a favorable exercise of discretion (e.g., cancellation, asylum) must demonstrate good moral character (GMC). As part of establishing good moral character, USCIS will request your tax returns for the 3-5 most recent tax years. The government can go further back to 10 years in some cases, such as for cancellation of removal.

An applicant who fails to file tax returns or pay his or her taxes may be precluded from establishing GMC.

What Types of Tax Issues will Affect my Immigration Application?

Obviously, the failure to file your tax returns or failure to pay the taxes you owe will be major issues for your application.

Additionally, what’s on your tax return may have an impact on the success of your application. If the USCIS officer uncovers inconsistencies in facts submitted on the application, the applicant may be precluded from establishing GMC due to an attempt to defraud the ​Internal Revenue Service (​IRS​)​ by avoiding taxes. The following are types of issues that have precluded applicants from establishing GMC:

  • Failing to file tax returns or filing under false SSNs. The later is a felony in Texas and can be considered a crime involving moral turpitude (CIMT). A CIMT causes a person to be inadmissible to the United States.
  • Unreported cash income. If a large portion of your income comes from cash income that hasn’t been reported on your tax return, the USCIS may question how the income you reported on the return is sufficient to support yourself and your household. Matter of Locicero, 11 I&N Dec. 805 (BIA 1966); Sumbundo v. Holder, 602 F.3d 47 (2d 2010)
  • Single or head of household filing status by a married petitioner.
  • Claiming earned income tax credits (EITC) while not a lawful resident.
  • Falsely claiming dependents on your tax return.
  • Claiming false deductions on the tax return. Meyersiek v. USCIS, 445 F.Supp.2d 202 (D.R.I. 2006)

Can I Apply for Citizenship if I owe Taxes?

This is a question that is asked frequently. The answer is ‘yes’, but only if you have made arrangements for payment. The USCIS office will request a letter from the taxing authority indicating that (1) the applicant has filed the appropriate forms and returns; and (2) has paid the required taxes, or has made arrangements for payment.

What Should I do if I Believe my Taxes Were not Filed Correctly?

You should amend your tax returns for at least a period of 5 years, or 10 years if you’re seeking cancellation of removal. If you have other issues with your application that may put into question good moral character, then you may want to amend tax returns up to 10 years. If you owe additional taxes after filing the amended returns, you should hire a tax professional to assist you in making arrangements with the IRS to resolve tax debt.

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How to Settle IRS Debt

Houston Tax Attorney

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How to Settle IRS Debt

If you’re struggling with tax debt, you’re probably looking to learn how to settle IRS debt. This is a process known as an Offer in Compromise – Doubt as to Collectibility (OIC). While many taxpayers might think this requires “negotiating” or “playing tough” with the IRS, it’s actually all about the numbers. There’s almost nothing you or your tax practicioner can say or do that will affect the outcome of an offer, unless it’s in the Internal Revenue Manual (IRM). Here’s how to settle your IRS debt through an OIC.

Step 1: Determine if you are Current on your Tax Obligations

You must be currently be in full compliance (1), which means:

  • You’ve filed all your tax returns that you are legally required to file
  • You’re having the correct amount of taxes withheld based on your Form W-4 or paying your estimated tax payments for the current year if you’re self-employed
  • Businesses must be making their current quarter’s payroll tax deposits
  • Continue to remain compliant through the rest of the process

Step 2: Calculate your Discretionary Monthly Income

Next, you should calculate your discretionary or remaining monthly income, which is basically your monthly income minus necessary living expenses. See IRS Form 656B for a worksheet. For a lump sum offer, your remaining monthly income over the course of 12 months would have to be more than what the IRS could collect before the expiration of the statute on an installment agreement (more in step 3). If your remaining monthly income over the course of 12 months exceeds your tax debt, then obviously there’s no point in submitting an offer in compromise, unless you’d like to pay the IRS more than you have to.

Step 3: Obtain a copy of your Tax Account Transcripts

Before you can resolve any problem, you need to understand the problem. Simple right? Get a copy of your account transcripts from the IRS for the tax year(s) for which you currently owe taxes. Determine the amount that you owe, including penalties and interest. Then determine the collections statute of limitations (CSED). If your CSED is about to expire, you might want to hold off on submitting an OIC as this will “freeze” the statute.

Step 4: Complete a Financial Analysis

Complete a financial analysis by calculating your reasonable collections potential (RCP). This is a very critical calculation as it determines whether your offer will be ultimately accepted or rejected. The RCP is basically a calculation of your ability to pay which is a combination of your future monthly discretionary income (over a course of 12 or 24) months and what the IRS could potentially collect from seizure of your assets. (2) The IRS will calculate an 80% quick sale value on the fair market value of your assets for purposes of calculating the RCP, minus the loan balance, if any. (3) Your Offer must equal or exceed the RCP to be accepted. (4)

RCP as expressed in a formula:

RCP = (DMI x #MO) + (FMV x 80% – LB)

DMI = Discretionary Monthly Income (Gross monthly income – IRS allowed personal living expenses)

MO = 12 or 24 months (depends on whether you’re applying for a lump sum or periodic payment offer).

FMV x 80% – LB = total equity in assets, or total fair market value x 80% – loan balance

When the calculations show that you are eligible for an Offer in Compromise based on Doubt as to Collectibility, in addition to the financial analysis you should carefully consider the impact of the CSED (Collection Statute Expiration Date). In accordance with IRM 5.8.4.3 Offers should not be accepted where the tax can be paid in full as a lump sum or can be paid under current installment agreement (IA) guidelines, unless special circumstances are identified that warrant consideration of a lesser amount. The offer should be recommended for rejection based on the taxpayer’s ability to full pay under current IA guidelines. In other words if taxpayer has a remaining monthly income and can pay the entire amount of liability before the CSED expires or under a PPIA (Partial Pay Installment Agreement) the IRS could potentially receive a substantially higher amount than the proposed offer, the offer will most likely be rejected as “not in the government’s interest”, provided that no special circumstances exist.

Step 5: Submit your Paperwork and First Payment

If you’ve determined that you have an offer that is acceptable (and also taking into consideration the CSED), then you’ll submit the following to the IRS:

  • Completed and signed Form 656
  • Completed and signed Form 433-A (individuals) or 433-B (businesses)
  • Photocopies of all required supporting documentation
  • A check or money order payable to the “United States Treasury” for the initial payment
    • If making a lump sum offer, you must make a payment of at least 20% of the total offer amount, and the remaining balance to be paid in 5 months. (5) *
    • If making a periodic payment, the first payment must be paid with the offer and the rest within 6 to 24 months per the terms of the offer.*
  • A separate check or money order payable to the “United States Treasury” for the $186 application fee.*

*There are exceptions for taxpayers that qualify as low income.

Mail the above documents to the appropriate IRS processing office in your state.

Step 6: Continue to Make Payments and Remain in Compliance

While your offer is being reviewed (anywhere between 6-12 months or longer), you must continue making payments per the offer terms as if the offer has been accepted. Additionally, you must remain in full compliance with the tax code for 5 years after the acceptance of the Offer. If a tax return is late or a new tax debt is incurred during this 5 year period, your offer is revoked and the complete amount of the existing debt with interest becomes collectible. (6)

The Risks of Submitting an Offer that is Rejected

  1. Applying for an offer in compromise requires you to send complete financial information to the IRS that they would not have had otherwise, including your bank account information, assets, and household expenses. If your OIC is rejected, you’ve just given the IRS all the tools they need to accelerate collections against you.
  2. If the IRS rejects the offer, it will NOT return the application fee or any other payments made with the offer. (7) 
  3. Filling a Offer in Compromise freezes the statute of limitations. If you or your practicioner didn’t consider an imminent collections statute expiration, you’ve probably cost yourself a lot of money that could have been wiped out by the statute expiration. In fact you’ve given the IRS more time to collect since the statute will be “frozen” during the 6-12 month or longer process.

Do I Need to Hire Someone to do this?

As you can see the OIC process is time-consuming and exhausting. Which makes sense – this is tax that you owe and you’re asking the IRS to write it off. This type of relief is not given out easily. If you’re a do-it-yourself type, carefully understand the risks of a rejected offer. You may not need to hire a tax attorney if you are willing to take the time to fully understand the IRS collections process. I honestly don’t know of many people that have the time or patience required to do so.

The only thing worse than making a half-measured attempt yourself is hiring a tax resolution firm. You can expect to pay $5,000 and more in fees in addition to your offer amount. You can identify these firms through their generic sounding business names and dozens of 5 star reviews, often posted by the company. These resolution firms will sometimes refund part of your fees if you don’t qualify, but you’ll still incur a loss for the amount you paid to the IRS, not to mention the valuable financial road-map you’ve now provided to IRS. I would also not hire any tax “professional” that blatantly advertises how much they’ve saved their clients. These are not typical cases, and there’s no government agency verifying these claims (or for you to verify the claims).

The truth is very few taxpayers will have a shot at an offer in compromise. The key for any practitioner is to review the client’s transcripts and financial information. I do not suggest an OIC for clients that do not have a high chance of succeeding, both in the offer itself as well as after the offer is accepted.

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References

1 IRM § 5.8.4.6

IRM § 5.8.5.25

IRM § 5.8.5.4.1

IRM § 5.8.5.28

IRM § 5.8.5.28

IRM § 5.8.9

IRS Topic 204