- 4.90.9.1 Workpapers
- 4.90.9.2 Report Writing
- 4.90.9.3 Penalties
- 4.90.9.4 Ad Hoc Closing Agreements
- 4.90.9.5 Tip Compliance Agreements
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This subsection discusses different workpapers and their functions as used in customer assistance, compliance checks, and employment tax examinations, hereafter referred to as "the workpapers."
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Workpapers and reports provide the basis for the decision reached by the FSLG Specialist. Only on the basis of the material in the workpapers can a reviewer determine whether the customer assistance contact, compliance check, and/or examination was complete and correct. Workpapers should show explanations, analysis and conclusions that the Specialist developed and should be sufficient to show that, generally, no additional comments will be needed in the transmittal letter for any items covered. Workpapers should document that all forms are correctly filed and that potential employer/employee relationships were considered. All notes made before, during, and after the customer assistance contact, compliance check, and/or examination should be included in the workpapers.
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All guidance provided in this section, and that which is referenced in this section, should be applied to customer assistance, compliance check, and employment tax examination workpapers. The same general theories and principles are to be applied equally to all case files that are generated by an FSLG Specialist.
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Workpapers are prepared by the FSLG Specialist so that information will be available for the following purposes:
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Documentation of action taken
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Preparation of necessary reports
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Managerial or technical review
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Use by other reviewers if technical advice is requested or results are appealed
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Authorized review by other governmental agencies
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Information to be used to determine the audit trail and scope of subsequent customer assistance contacts, compliance checks, or examinations
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The importance of workpapers in every case cannot be overemphasized, as they serve to effectively explain the areas covered during a customer assistance contact, compliance check, or examination. Workpapers should include all the evidence gathered by the Specialist to show the work performed, methods and procedures followed and conclusions reached.
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Workpapers prepared by a Specialist may be used in the preparation and review of the report as a reference in cases where the determination is to be litigated, and also as a source of more detailed information about a case, which may be requested later in writing.
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Workpapers are the best evidence of the scope of the customer assistance contact, compliance check, or examination and the diligence with which it was completed. Further, they constitute the background for the determination of the tax liability. Documentation of transactions or other significant events should be complete, accurate, and facilitate tracing the transaction or event and related information from the beginning through completion.
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Properly prepared workpapers must provide adequate documentation to support conclusions. Without sufficient documentation, it is not possible for Field Managers or reviewers to evaluate either the scope of the Specialist’s work or the basis of the actions taken.
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Workpapers should be neat and legible. The legibility of all types of workpapers and reports is an important aspect of the overall quality of the customer assistance contact, compliance check, or examination. Legibility improves comprehension for the reviewer and the taxpayer.
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Workpapers should be headed clearly, showing the name of the taxpayer, the tax year examined or discussed in the case of non-examination cases, the date workpapers were prepared, the name or initials of the Specialist, and the issues or items being examined or discussed. The pages should be indexed, numbered, and securely fastened together.
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Workpapers should always cite legal authority, such as the Internal Revenue Code, applicable regulations and/or court cases to support conclusions.
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The first step in a quality customer assistance, compliance check, or examination is the development of a pre-examination/contact analysis and a work plan of action. The time and effort spent during this phase of the process will result in a high quality, efficient customer assistance contact, compliance check, or examination.
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Specialists must use a workpaper cover sheet to organize the workpapers. They may use Form 4318-A, Continuation of Examination Workpapers. Refer to IRM 4.23.4 for a detailed discussion on the preparation, format, and volume of workpapers. This same direction on format and content should be applied to a Form 5773, if used.
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See IRM 4.90.2 – Customer Assistance, for instruction on workpaper requirements related to customer assistance case files.
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See IRM 4.90.3 – Compliance Check, for instruction on workpaper requirements related to compliance check case files.
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See IRM 4.90.12.8 – Case File Assembly, for instruction on case file assembly for employment tax examinations.
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This subsection discusses instructions for preparation of examination reports covering employment tax examinations. It also references certain related procedures which are not purely of a report writing nature but which are necessary both for an efficient report writing system and to reduce examination time.
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The Specialist’s report is the record of findings and recommendations regarding the investigation of a taxpayer’s liability for tax. It is the document from which reviewers may determine whether the Specialist has properly developed the case and has correctly applied the law, regulations, etc., to the facts in the particular case. Also, it may become the evidence on which the Government relies in a court case. Since the taxpayer ordinarily receives a copy of the report, it serves as a formal presentation to the taxpayer of the findings and recommendations of the Specialist.
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Preparation of an examination report is a very important part of the Specialist’s duties. The examination report should be clear, concise, and to the point. All adjustments must be properly explained and supported by appropriate references to the applicable laws, regulations, court decisions, rulings, etc., on which the Specialist based his/her findings.
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See IRM 4.23.10 – Report Writing Guide for Employment Tax Examinations, for instruction on the preparation of reports covering examination of employment tax returns.
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The Specialist prepares and provides the examination report to the taxpayer and solicits agreement. If necessary, a cover letter can be drafted by the Specialist when the report is issued by mail.
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The following table provides a list of the most commonly used closing letters and indicates who is responsible for preparing and mailing the letter.
Letter Number Prepared by Mailed by L-569 (Claim Disallowance Letter) Specialist Specialist L-570, (Claim Allowed In Full). Specialist (undated) CPM L-590 (No Change) Specialist (undated) CPM L-905 (Letter Notifying Taxpayer of Partial Refund Claim Disallowance) CPM CPM L-906 (Certified Claim Disallowance Letter) CPM CPM L-950-C or L-950-D Specialist Specialist L-1002, (Notification Letter-Agreed Audit Changes) CPM CPM L-3523, (Notice of Determination of Worker Classification) CPM CPM -
On Form 4668, Specialists should provide the address of the TE/GE closing unit in Dallas.
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Generally, the Specialist should attach to the Form 4668 a listing of each impacted worker and, for each worker, the wage and employment tax adjustment. The list should provide: the worker's name, SSN; amount of adjustment to total compensation, FICA and Medicare wages; as well as related employment tax adjustments.
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See IRM 4.23.10.4, Survey of Employment Tax Return Before Assignment, for instructions on the required procedures to be completed.
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In addition, Form 5596 with disposal code 31 is used by the MA to input and document the EOIC closure. Close on TREES using disposal code 910.
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IRM 4.23.10.5, Survey of Employment Tax Return After Assignment, provides general instructions on procedures to be used for surveys of employment tax returns after assignment.
Note:
Examinations cannot be surveyed and converted to a customer assistance contact.
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In addition, the Specialist should prepare Form 5596, TE/GE Non-Examined Closings, with a disposal code 32 and close on TREES using disposal code 908.
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Form 2503 (Survey After Assignment-Excise or Employment Tax) must be completed on all FSLG cases surveyed after assignment to explain the reason for the survey action.
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Complete the Case Selection Survey and check the box indicating survey in Part II, Section D.
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If the original return is not in the file, then there must be a BRTVU print attached to Form 2503 (prints of BMFOLT or BMFOLR are not sufficient). See also IRM 4.90.12.6 regarding closing cases using a copy of a return.
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Short statute procedures apply to surveys of employment tax examinations. Refer to IRM 4.90.10 for instructions related to use of red folders and Form 895, Notice of Statute Expiration.
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Complete Form 5597, TE/GE IMF/BMF/EPMF Request, to establish an examination for a subsequent period using source code 40. In addition, the Specialist will complete the ESTABLISH steps to establish a new activity on TREES using activity code 465 and source code 40 and submit to manager for approval. The Specialist will also complete Part I of Case Selection Survey (for the subsequent period compliance check case) using the criteria noted for the selection of the original compliance check case and post the office document to the TREES case for this subsequent period.
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In general, FSLG examines all quarters of a calendar year concurrently, i.e., books and records for the entire year are requested and examined. The taxpayer is entitled to a report that addresses all quarters examined.
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When an examination results in no changes to all quarters, all quarters will be closed "no- change."
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If the Specialist notifies a taxpayer that only one period is under audit and limits the examination to that period, then it is appropriate to issue a no-change report on only that quarter.
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If all employment tax returns examined result in no change, a "no- change" stamp impression will be placed on the reverse side of Form 4318–A (Continuation Sheet for Form 4138, Examination Workpapers Index). If using Form 5772 (EP/EO Workpaper Summary), the Specialist will enter the no-change disposal code on the form.
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The no-change stamp should be approximately 4″ X 1 1/4″ in size and be procured locally. The stamp should be similar to the following
CLOSED NO-CHANGE
Return Form No: Return Form No:
Examining Officer ______________
Letter 590 (C/SC/DO/IN) __________
Years:
Years: Reviewer _______________________ -
Examiners should enter the return form number(s) and period(s) examined, and initial the stamped impression. CPM Reviewer will indicate approval by initialing.
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The Specialist will provide the taxpayer a no-change report on Form 4666 indicating the year(s) and return form(s) examined and closed as no-change. The report should indicate that the findings are subject to managerial approval. The Specialist may draft a custom letter as a transmittal if the no change report is issued by mail. In addition, the Specialist will prepare an undated Letter 590, which will be mailed by CPM.
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In general, when the results of an agreed examination results in changes to some quarters and no change to others, treat the employment tax case as an agreed "change" case. One letter and one report will be issued that addresses the no-change periods and the periods with the changes following the procedures outlined in IRM 4.23.10.12.
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Always use Form 4666 in such reports.
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Report the no-changes in the summary section of Form 4666 by entering the period and return form number, writing "No-Change" in the tax column, and entering a dash in the page column.
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Do not complete Form 4667 or 4668 for the years no-changed. The changes will be reported as usual, including entering the examination results in the summary portion of Form 4666.
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The examination of a taxpayer’s employment tax returns may or may not include the classification of the taxpayer’s workers as employees versus independent contractors.
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Section 530 of the Revenue Act of 1978, as amended, provides that:
Taxpayer may not rely on an audit commenced after December 31, 1996, for purposes of subparagraph (B) [of subsection (a)(2), past IRS audit] thereof unless such audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer.
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Language will be included on information document requests and examination reports to address Section 530 issues including identification of or development of worker classification issues, the specific classes of workers examined, etc. The purpose of this language is to limit Section 530 exposure for subsequent periods to only classes of workers examined.
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Whenever worker classification issues are raised on an information document request (IDR), the IDR must specify the worker classification(s) (including location(s)) that are being examined. In addition, language should be used that limits Section 530 exposure to only classes of workers being examined and that are not reclassified. The following is an example of language that is appropriate when requesting information related to a specific class of workers:
Please answer the following questions related to [CLASS OF WORKER(S)/LOCATION(S)]. The only class of worker that will be examined based upon information provided in response to this document request is [CLASS OF WORKER(S)/LOCATION(S)].
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Upon closing an examination, 530 limitation language will be inserted on Form 4666 to limit 530 exposure to classes of workers audited during the examination. The appropriate 530 limitation language to use will vary depending upon whether any worker issues were audited, and whether a worker classification examination resulted in a worker reclassification. The following scenarios capture the most common examination results.
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Scenario #1: Where the results of the examination includes an employment tax assessment but the examination did not include either the identification of or the development of the worker classification issue, including requests for information or discussion regarding a reclassification issue, the following language will be inserted in the "other information" section of Form 4666. "The examination of your employment tax returns as reflected on this Agreement did not include an examination for employment tax purposes of whether any individuals should be treated as your employees for purposes of Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996."
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Scenario #2: Where an examination assessment will be made and the examination included identification of or the development of worker classification issues, including requests for information or discussion regarding a reclassification issue but there will be no change related to the worker classification issue, language will be inserted in the "other information" section of Form 4666 that specifies the classes of workers examined and limits Section 530 exposure to those classes of workers examined. For example, the following language is appropriate: "The examination of your employment tax returns as reflected on this Agreement included an examination for employment tax purposes of whether [CLASS OF WORKER(S)/LOCATION(S)] should be treated as employees of the taxpayer. Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996 provides that taxpayers may rely on a prior audit commenced after December 31, 1996, when the audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer. Based upon this examination, you may rely only on the audit of [CLASS OF WORKER(S)/LOCATION(S)] for purposes of the prior audit safe haven for satisfying the reasonable basis requirement of Section 530."
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Scenario #3: Where an examination assessment will be made and the examination included identification of or the development of worker classification issues, including requests for information or discussion regarding a reclassification issue, and there will be some, but not all classes of workers reclassified, language will be inserted in the "other information" section of Form 4666 that specifies the classes of workers examined and limits Section 530 exposure to those classes of workers examined and not reclassified. For example, the following language is appropriate: "The examination of your employment tax returns as reflected on this Agreement included an examination for employment tax purposes of whether [CLASS OF WORKER(S)/LOCATION(S)] should be treated as employees of the taxpayer. Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996 provides that taxpayers may rely on a prior audit commenced after December 31, 1996, when the audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer. Based upon this examination, you may rely only on the audit of [CLASS OF WORKER(S)/LOCATION(S)] that did not result in a reclassification for purposes of the prior audit safe haven for satisfying the reasonable basis requirement of Section 530."
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Scenario #4: Where the results of the examination includes reclassification of all workers examined, language will be inserted in the " other information" section of Form 4666 that specifies the classes of workers examined and indicates that no worker classifications are covered under the Section 530 safe haven, because all workers audited were reclassified. For example, the following language is appropriate: "The examination of your employment tax returns as reflected in this report included an examination for employment tax purposes of whether [CLASS OF WORKER(S)/LOCATION(S)] should be treated as employees of the taxpayer. Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996 provides that taxpayers may rely on a prior audit commenced after December 31, 1996, when the audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer. Based upon this examination, you may not rely on the audit of any classes of workers for purposes of the prior audit safe haven for satisfying the reasonable basis requirement of Section 530, because all workers audited were reclassified as employees."
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Scenario #5: Where the examination results in no- change and the examination did not include either the identification of or the development of the worker classification issue, including requests for information or discussion regarding a reclassification issue, the following language will be inserted in the "other information" section of Form 4666: "The examination of your employment tax returns did not include an examination for employment tax purposes of whether any individuals should be treated as your employees for purposes of Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996."
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Scenario #6: Where the examination results in no-change, but the examination included identification of or the development of worker classification issues, including requests for information or discussion regarding a reclassification issue, language will be inserted in the "other information" section of Form 4666 that specifies the classes of workers examined and limits Section 530 exposure to those classes of workers examined. For example, the following language is appropriate:"The examination of your employment tax returns included an examination for employment tax purposes of whether [CLASS OF WORKER(S)/LOCATION(S)] should be treated as employees of the taxpayer. Section 530 of the Revenue Act of 1978 as amended by Section 1122 of the Small Business Job Protection Act of 1996 provides that taxpayers may rely on a prior audit commenced after December 31, 1996, for Section 530 purposes when the audit included an examination for employment tax purposes of whether the individual involved (or any individual holding a position substantially similar to the position held by the individual involved) should be treated as an employee of the taxpayer. Based upon this examination, you may rely only on the audit of [CLASS OF WORKER(S)/LOCATION(S)] for purposes of the prior audit safe haven for satisfying the reasonable basis requirement of Section 530."
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In the interest of equitable treatment of the taxpayer and effective tax administration, the non-assertion or abatement of civil penalties based on reasonable cause or other relief provisions provided in the IRM must be made in a consistent manner and should conform with the considerations specified in the Internal Revenue Code (IRC), Regulations (Treas. Regs.), Policy Statements, and IRM 20.1, Penalty Handbook.
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FSLG will only assess penalties during examinations. If delinquent returns are secured during a customer assistance contact or a compliance check, assist the customer by explaining reasonable cause criteria and help the taxpayer prepare an explanation for filing a late return.
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During examinations, you must consider and develop reasonable cause when issues arise for the assessment of penalties. Reasonable cause replaced due diligence as the standard for abatement of a penalty. Reasonable cause is discussed in depth in IRM 20.1.1 and in Policy Statement 2-7 (see IRM 1.2.12).
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If the taxpayer provides a valid reasonable cause argument, the Specialist must document his or her position and should not proceed with assessment of the penalty.
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If the Specialist determines that reasonable cause does not exist, then he or she should assess the applicable penalties. The Specialist’s consideration of reasonable cause must be fully documented in the case file and a penalty package must be prepared for closure.
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The Specialist should also focus on educating the entity about the errors and on gaining future compliance. FSLG maintains an ongoing effort to develop, monitor, and revise programs designed to assist taxpayers in complying with legal requirements and, thus, avoid penalties.
Note:
Federal agencies are not subject to penalties per Policy Statement 2-4. However, backup withholding is not a penalty and should be considered when issues arise related to failure to file or furnish Forms 1099.
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See IRM 4.90.4 for additional information about the penalties that FSLG Specialists will most frequently encounter, as well as direction on preparing an information return penalty package.
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This section discusses the procedures and policy for ad hoc closing agreements used in voluntary case resolution and examinations.
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Refer to IRM 8.13.1. FSLG Specialists and Field Managers may consider ad hoc closing agreements to resolve reporting and payment issues for FSLG customers. Ad hoc closing agreements offered during or at the conclusion of an examination will also require involvement of the CPM Closing Agreement Coordinator and the Director, FSLG. The Director, FSLG will sign all ad hoc closing agreements.
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If a taxpayer is not under examination and approaches FSLG field personnel seeking a closing agreement to resolve a prior tax year compliance issue, the matter will be handled by CPM staff.
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If a taxpayer makes contact with a Field Specialist, the Specialist should refer the matter to the CPM Manager.
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If the Specialist received a written request from the taxpayer, the information should be forwarded to CPM using a Form 3210, Document Transmittal to the designated CPM Coordinator at:
Internal Revenue Service
T:GE: FSLG:CPM
1111 Constitution Avenue NW
Washington, D.C. 20224
ATTN: Closing Agreement Coordinator -
After CPM has reviewed the information and accepted the proposed closing agreement, a customer assistance case will be established on the TREES case inventory system.
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If the taxpayer or representative initiate an Anonymous Request without disclosing the name of taxpayer, the case will be controlled by sequential number assigned by the TREES case inventory system.
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FSLG Specialists and Field Managers may consider closing agreements to resolve reporting and payment issues for FSLG taxpayer under examination.
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Before any agreement is offered to a customer, the FSLG Specialist will discuss the issue with the Field Manager.
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If the assigned Specialist determines that a closing agreement is an appropriate resolution to the examination, the Specialist should prepare a memorandum and submit to the Field Manager for concurrence.
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The memorandum should include the rationale for the closing agreement and include the closing agreement amount. After the Field Manager concurs, the terms and provisions of the closing agreement can then be negotiated with the taxpayer.
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If the Specialist and taxpayer agree to the terms of the agreement, the Specialist should submit a draft closing agreement with the approved memorandum to the designated CPM Closing Agreement Coordinator for review with documented concurrence from the Field Manager.
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The closing agreement can only be executed upon receiving approval from the CPM Coordinator. CPM Closing Agreement Coordinator will review the agreement within 5 business days of receipt of and provide any comments to the Specialist.
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Once approved, the agreement must be signed by the taxpayer in triplicate. All copies must be identical and have original signatures. Signed copies will be forwarded to the Director for final execution.
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The role of the CPM Coordinator is to ensure the voluntary closing agreement process is consistent throughout FSLG and to provide a contact point for FSLG.
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The CPM Coordinator will be responsible for reviewing all draft closing agreements in open exam cases and providing any necessary feedback. The CPM Coordinator will also be responsible for obtaining initial concurrence from the FSLG Director.
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The CPM Coordinator will work directly with taxpayer and their representative in cases where the taxpayer is not under examination. In these cases, the final closing agreement will be reviewed by the CPM manager and may be reviewed by Chief Counsel.
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The CPM Coordinator will maintain a database and hard copy file of closed voluntary closing agreements. The file will include an original Form 906, Closing Agreement, and all necessary supporting documentation.
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Upon receipt of approved closing agreement copies with signature of the FSLG Director, the case will be closed using normal examination closing procedures per IRM 4.90.12, if all other exam issues are resolved. All closing agreement copies with original signatures will be retained in the case file closed to CPM. CPM will retain one copy with the case file, one copy for the Director's office and forward a copy to the taxpayer..
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Payments received with closing agreements will be posted to the account by completing Form 3244-A, Payment Posting Voucher, as instructed in IRM 4.90.12.11.4.
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A completed Form 3198-A, Special Handling Notice, will serve as the transmittal of the completed case file.
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Form 3870, Form 4668 and Form 8485 will be prepared and used to input the closing agreement assessment. Completed Form 3198-A will serve as the transmittal of the closed case file. Payments are processed on Form 3244-A as per IRM 4.90.12.11.4.
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Cases will be closed via CPM Review to the Dallas closing unit.
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CPM will forward one signed copy of the agreement to the taxpayer, retain a copy of the closing agreement in the case file and retain a copy of the agreement for the FSLG Director's Office.
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The Classification Settlement Program (CSP) establishes procedures that will enable taxpayers and the IRS to resolve worker classification cases as early in the administrative process as possible, thereby reducing taxpayer burden. The procedures also ensure that the taxpayer relief provisions under section 530 of the Revenue Act of 1978 are properly applied. By utilizing the CSP, the FSLG Specialist can offer a government entity under examination a worker classification settlement using a standard closing agreement.
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All examinations that involve worker classification issues must follow the CSP procedures. The CSP and procedures are explained in IRM 4.23.6.
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Generally, regular examination case closing procedures apply with a few additional requirements. Those additional requirements are outlined in IRM 4.23.6.14. In part, the additional instructions provide for preparation of a CSP Settlement Memorandum; preparation of Form 906, Closing Agreement, using standard CSP language; and changes to the audit report.
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CPM Review will forward one copy of Form 906, the CSP Settlement Memorandum, and the audit report to the designated FSLG CSP Coordinator at:
Internal Revenue Service
T:GE: FSLG:CPM
1111 Constitution Avenue NW
Washington, D.C. 20224
ATTN: CSP Coordinator
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The role of the FSLG CSP Coordinator is to ensure the CSP is consistent throughout FSLG and provide a contact point for FSLG.
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The CSP Coordinator will maintain a file of closed CSP information. The file will include an original Form 906, Closing Agreement, settlement memorandum, and audit report.
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The CSP Coordinator will be responsible for monitoring CSP and providing summary information to the Director, FSLG.
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IRM 4.23.7 provides information about employment taxes on tip income, tip agreements, employment tax tip examinations, etc. While tip income among government employees is not common, FSLG Specialists should consider as a possible area of non-compliance tips provided to employees of a food and beverage establishment that is operated by a government, such as a city-operated museum or convention center restaurant. Baggage handlers at a city-operated airport and employees at a city-operated golf course, recreation center, or tourist service, etc. may receive tip income as well.
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Developing a tip compliance agreement using the parameters outlined in IRM 4.23.7 may be appropriate.