A frequent question in our IRS Whistleblower cases is how IRS Whistleblower claims are affected by the statute of limitations. In long-running violations of the tax laws, that question can determine how much of past tax liability the IRS may be able to recover.
Yesterday, the Tax Court issued a decision that illustrates what happens when the taxpayer has engaged in fraud. (Joseph B. Williams III v. Commissioner, 2009 TNT 72-11). Because the court found that fraud was established by the taxpayer’s plea to tax evasion, the court ruled that the IRS could recover for liability dating back to 1993-2000, more than six years before the IRS’ notice of deficiency to the taxpayer.
The taxpayer in question, Joseph Bryan Williams, III, was an oil trader for Mobil Oil. In 1993, the taxpayer opened two Swiss bank accounts in the name of a British Virgin Islands corporation. From 1993-2000, the taxpayer had more than $7 million in deposits in these Swiss accounts, which earned more than $800,000 in interest. None of the income was included on the taxpayer’s U.S. tax returns over that eight-year period, the last of which was filed in 2001.
After an IRS investigation, the taxpayer was charged criminally, and he ultimately pleaded guilty to (1) one count of conspiracy to defraud the IRS, in violation of 18 U.S.C. section 371 and (2) one count of criminal tax evasion with respect to each of the eight tax years (1993-2000), in violation of section 7201 of the Internal Revenue Code. In October 2007, more than six years after the last return was filed in 2001, the IRS issued a statutory notice of deficiency for all eight years.
The Tax Court rejected any suggestion that the statute of limitations prevented the IRS from recovering for tax years 1993-2000, since “fraud” was established:
Mr. Williams’s fraud is the threshold issue in this case, not only because his liability for the fraud penalty depends on it, but also because fraud affects the period of limitations for assessment of his liability for the tax deficiencies. Generally, the IRS must assess a deficiency within 3 years of the date on which the tax return that relates to such deficiency was filed. Sec. 6501(a). For the tax years 1993 through 2000, Mr. Williams’s latest-filed return (for 2000) was filed May 15, 2001. However, it was not until more than 6 years later — on October 29, 2007 — that the IRS issued to Mr. Williams a notice of deficiency, which is the first step in the process of assessing a deficiency. If the general rule of section 6501(a) applied, then the IRS would have failed to assess the deficiency within the period of limitations and would be barred from assessing and collecting any of the deficiencies or additions to tax for the 8 tax years at issue. However, if the deficiency was determined “[i]n the case of a false or fraudulent return with the intent to evade tax,” then the IRS may assess such deficiency “at any time.” Sec. 6501(c)(1). Thus, we decide as a threshold matter whether Mr. Williams is liable for fraud under section 6663. (Emphasis supplied).
Because fraud was established, no statute of limitations applied, since “‘[i]n the case of a false or fraudulent return with the intent to evade tax,’ then the IRS may assess such deficiency ‘at any time.'”
In addition, as IRS Whistleblower Office Director Steve Whitlock pointed out in our recent “IRS Whistleblower Boot Camp,” it will not be apparent to whistleblowers that, especially in large cases, the taxpayer may have agreed with the IRS to allow the statute of limitations to be extended. There also may be open audit years that allow the IRS to reach back far more than three years.
In short, there are various reasons why the IRS may be able to recover past tax liability well beyond three years.