I Haven't Filed A Tax Return in
What Should I Do?
often I get calls from individuals that haven't filed a tax return in years. Believe it or
not, in 1992, I had a client who hadn't filed since the Kennedy Administration!
first question I am usually asked is "Will I go to jail?" Except in very rare
cases, no. What the IRS wants is for you to file the delinquent returns. It's possible
that the IRS has already filed returns for you. Under section 6020(b) of the Internal
Revenue Code, the IRS may file a Substitute for Return (SFR) when you don't file a return
on your own. An SFR is usually not a good thing since it is calculated at Single or
Married Filing Separate rates even though you may be qualified to file Married Joint or
Head of Household. However, since the IRS has no return, they choose the highest tax rate,
not the one you would choose for yourself.
also doesn't give you dependents you would ordinarily claim. If you have four children, it
doesn't matter. Because the IRS files for you, you only get your own personal exemption.
You also don't get the benefit of any itemized deductions such as mortgage interest, state
or property taxes you paid, charitable contribution or health care expenses. Why? Because
the IRS basically takes your income, taxes it at the highest rate, deducts any Federal tax
you paid and that's that. And it can get worse. If you have 1099 (self-employed) income,
you don't get any business expenses.
IRS has already filed an SFR, that isn't the end. While the law doesn't force the IRS to
accept a return you file after an SFR has been done, I have never seen a case where the
IRS hasn't accepted the return. Once the IRS accepts the return, the tax is reduced to
what is shown, but of course, penalties and interest still apply. However, because the tax
is reduced (often by a huge amount) the penalties and interest are reduced as well.
about if the IRS hasn't filed a return for you? The same basic rules apply. Simply file a
return just like any other one. If you don't have the information to file (W-2s, 1099s
etc.), in most cases we can get the documents from the IRS. It takes up to 45 days, but
the IRS usually has wage and withholding information going back at least seven or eight
of you, no records are available because no 1099s or W-2s were ever issued. This is often
true for sole proprietors. In that case, hopefully you have records to show your income
and expenses. We'll also use bank statements if you have those available. Assuming
that all of your income was deposited into your bank account, that is a good way to track
your income, too. If you can't produce those records, all is not lost. I recommend that my
clients "back into" their net income by estimating what it would have taken for
you to meet your monthly expenses. For example, let's say that you have no records for
1995, but you know that your rent was $1,000 per month, you had a car payment of $200,
insurance was $50, food and clothing averaged $300 per month, etc. We'll add up those
monthly figures and multiply by 12. It isn't the greatest way to file a return, but it
works in a pinch.
are due refunds, filing the returns will close your case. Under current law, refunds more
than three years old are lost nor can they be applied to other tax due. If you owe taxes,
penalties and interest will be tacked on. The failure to file penalty is a maximum of 25%
of the tax due on each return. It is not unusual to see the penalties and interest exceed
the tax due on returns more than 3 years old. In fact, if the taxes go back 10 years, the
total may be 3 or 4 times the tax due. Yikes! For more information on your options, visit
the payment agreement and Offer in Compromise pages.
You may also be
wondering how many years back you should file. If you assume you should file ALL
delinquent returns no matter how many years you haven't filed, you may be
incorrect. In fact, the IRS often doesn't require that all delinquent returns be
filed. For that, we look at Internal Revenue Service Policy
Statement P-5-133 which addresses delinquent returns.
The statement states that "Taxpayers failing to file tax
returns due will be requested to prepare and file all such returns. Where it is
determined that required returns have not been filed, to the extent to which
compliance for prior years will be enforced will be determined by reference to
factors ensuring evenhanded administration of staffing and other Service
resources." Also included is the statement that, "Normally, application
of enforcement criteria will result in enforcement of delinquency procedures for
not more than 6 years." However, there may be exceptions based on the level
of non-compliance, when additional years are required for resolution.
In addition, if you contemplate filing an Offer in
Compromise, you should be aware that ALL tax returns must be filed in order to
be eligible for an Offer. If all returns are not filed (unless a return was not
legally required to be filed) you cannot file an Offer.