Offer in Compromise Regulations §301.7122-1In general
(1) If the Secretary determines that there are grounds for compromise under this section, the Secretary may, at the Secretary's discretion, compromise any civil or criminal liability arising under the internal revenue laws prior to reference of a case involving such a liability to the Department of Justice for prosecution or defense.
(2) An agreement to compromise may relate to a civil or criminal liability for taxes, interest, or penalties. Unless the terms of the offer and acceptance expressly provide otherwise, acceptance of an offer to compromise a civil liability does not remit a criminal liability, nor does acceptance of an offer to compromise a criminal liability remit a civil liability.
(b) Grounds for compromise
(1) Doubt as to liability. --Doubt as to liability exists where there is a genuine dispute as to the existence or amount of the correct tax liability under the law. Doubt as to liability does not exist where the liability has been established by a final court decision or judgment concerning the existence or amount of the liability. See paragraph (f)(4) of this section for special rules applicable to rejection of offers in cases where the Internal Revenue Service (IRS) is unable to locate the taxpayer's return or return information to verify the liability.
(2) Doubt as to collectibility. --Doubt as to collectibility exists in any case where the taxpayer's assets and income are less than the full amount of the liability.
(3) Promote effective tax administration
(i) A compromise may be entered into to promote effective tax administration when the Secretary determines that, although collection in full could be achieved, collection of the full liability would cause the taxpayer economic hardship within the meaning of §301.6343-1.
(ii) If there are no grounds for compromise under paragraphs (b)(1), (2), or (3)(i) of this section, the IRS may compromise to promote effective tax administration where compelling public policy or equity considerations identified by the taxpayer provide a sufficient basis for compromising the liability. Compromise will be justified only where, due to exceptional circumstances, collection of the full liability would undermine public confidence that the tax laws are being administered in a fair and equitable manner. A taxpayer proposing compromise under this paragraph (b)(3)(ii) will be expected to demonstrate circumstances that justify compromise even though a similarly situated taxpayer may have paid his liability in full.
(iii) No compromise to promote effective tax administration may be entered into if compromise of the liability would undermine compliance by taxpayers with the tax laws.
(c) Special rules for evaluating offers to compromise
(1) In general. --Once a basis for compromise under paragraph (b) of this section has been identified, the decision to accept or reject an offer to compromise, as well as the terms and conditions agreed to, is left to the discretion of the Secretary. The determination whether to accept or reject an offer to compromise will be based upon consideration of all the facts and circumstances, including whether the circumstances of a particular case warrant acceptance of an amount that might not otherwise be acceptable under the Secretary's policies and procedures.
(2) Doubt as to collectibility
(i) Allowable Expenses. --A determination of doubt as to collectibility will include a determination of ability to pay. In determining ability to pay, the Secretary will permit taxpayers to retain sufficient funds to pay basic living expenses. The determination of the amount of such basic living expenses will be founded upon an evaluation of the individual facts and circumstances presented by the taxpayer's case. To guide this determination, guidelines published by the Secretary on national and local living expense standards will be taken into account.
(ii) Nonliable spouses
(A) In general. --Where a taxpayer is offering to compromise a liability for which the taxpayer's spouse has no liability, the assets and income of the nonliable spouse will not be considered in determining the amount of an adequate offer. The assets and income of a nonliable spouse may be considered, however, to the extent property has been transferred by the taxpayer to the nonliable spouse under circumstances that would permit the IRS to effect collection of the taxpayer's liability from such property (e.g., property that was conveyed in fraud of creditors), property has been transferred by the taxpayer to the nonliable spouse for the purpose of removing the property from consideration by the IRS in evaluating the compromise, or as provided in paragraph (c)(2)(ii)(B) of this section. The IRS also may request information regarding the assets and income of the nonliable spouse for the purpose of verifying the amount of and responsibility for expenses claimed by the taxpayer.
(B) Exception. --Where collection of the taxpayer's liability from the assets and income of the nonliable spouse is permitted by applicable state law (e.g., under state community property laws), the assets and income of the nonliable spouse will be considered in determining the amount of an adequate offer except to the extent that the taxpayer and the nonliable spouse demonstrate that collection of such assets and income would have a material and adverse impact on the standard of living of the taxpayer, the nonliable spouse, and their dependents.
(3) Compromises to promote effective tax administration
(i) Factors supporting (but not conclusive of) a determination that collection would cause economic hardship within the meaning of paragraph (b)(3)(i) of this section include, but are not limited to --
(A) Taxpayer is incapable of earning a living because of a long term illness, medical condition, or disability, and it is reasonably foreseeable that taxpayer's financial resources will be exhausted providing for care and support during the course of the condition;
(B) Although taxpayer has certain monthly income, that income is exhausted each month in providing for the care of dependents with no other means of support; and
(C) Although taxpayer has certain assets, the taxpayer is unable to borrow against the equity in those assets and liquidation of those assets to pay outstanding tax liabilities would render the taxpayer unable to meet basic living expenses.
(ii) Factors supporting (but not conclusive of) a determination that compromise would undermine compliance within the meaning of paragraph (b)(3)(iii) of this section include, but are not limited to --
(A) Taxpayer has a history of noncompliance with the filing and payment requirements of the Internal Revenue Code;
(B) Taxpayer has taken deliberate actions to avoid the payment of taxes; and
(C) Taxpayer has encouraged others to refuse to comply with the tax laws.
(iii) The following examples illustrate the types of cases that may be compromised by the Secretary, at the Secretary's discretion, under the economic hardship provisions of paragraph (b)(3)(i) of this section:
Example 1. The taxpayer has assets sufficient to satisfy the tax liability. The taxpayer provides full time care and assistance to her dependent child, who has a serious long-term illness. It is expected that the taxpayer will need to use the equity in his assets to provide for adequate basic living expenses and medical care for his child. The taxpayer's overall compliance history does not weigh against compromise.
Example 2. The taxpayer is retired and his only income is from a pension. The taxpayer's only asset is a retirement account, and the funds in the account are sufficient to satisfy the liability. Liquidation of the retirement account would leave the taxpayer without an adequate means to provide for basic living expenses. The taxpayer's overall compliance history does not weigh against compromise.
Example 3. The taxpayer is disabled and lives on a fixed income that will not, after allowance of basic living expenses, permit full payment of his liability under an installment agreement. The taxpayer also owns a modest house that has been specially equipped to accommodate his disability. The taxpayer's equity in the house is sufficient to permit payment of the liability he owes. However, because of his disability and limited earning potential, the taxpayer is unable to obtain a mortgage or otherwise borrow against this equity. In addition, because the taxpayer's home has been specially equipped to accommodate his disability, forced sale of the taxpayer's residence would create severe adverse consequences for the taxpayer. The taxpayer's overall compliance history does not weigh against compromise.
(iv) The following examples illustrate the types of cases that may be compromised by the Secretary, at the Secretary's discretion, under the public policy and equity provisions of paragraph (b)(3)(ii) of this section:
Example 1. In October of 1986, the taxpayer developed a serious illness that resulted in almost continuous hospitalizations for a number of years. The taxpayer's medical condition was such that during this period the taxpayer was unable to manage any of his financial affairs. The taxpayer has not filed tax returns since that time. The taxpayer's health has now improved and he has promptly begun to attend to his tax affairs. He discovers that the IRS prepared a substitute for return for the 1986 tax year on the basis of information returns it had received and had assessed a tax deficiency. When the taxpayer discovered the liability, with penalties and interest, the tax bill is more than three times the original tax liability. The taxpayer's overall compliance history does not weigh against compromise.
Example 2. The taxpayer is a salaried sales manager at a department store who has been able to place $2,000 in a tax-deductible IRA account for each of the last two years. The taxpayer learns that he can earn a higher rate of interest on his IRA savings by moving those savings from a money management account to a certificate of deposit at a different financial institution. Prior to transferring his savings, the taxpayer submits an e-mail inquiry to the IRS at its Web Page, requesting information about the steps he must take to preserve the tax benefits he has enjoyed and to avoid penalties. The IRS responds in an answering e-mail that the taxpayer may withdraw his IRA savings from his neighborhood bank, but he must redeposit those savings in a new IRA account within 90 days. The taxpayer withdraws the funds and redeposits them in a new IRA account 63 days later. Upon audit, the taxpayer learns that he has been misinformed about the required rollover period and that he is liable for additional taxes, penalties and additions to tax for not having redeposited the amount within 60 days. Had it not been for the erroneous advice that is reflected in the taxpayer's retained copy of the IRS e-mail response to his inquiry, the taxpayer would have redeposited the amount within the required 60-day period. The taxpayer's overall compliance history does not weigh against compromise.
(d) Procedures for submission and consideration of offers
(1) In general. --An offer to compromise a tax liability pursuant to section 7122 must be submitted according to the procedures, and in the form and manner, prescribed by the Secretary. An offer to compromise a tax liability must be made in writing, must be signed by the taxpayer under penalty of perjury, and must contain all of the information prescribed or requested by the Secretary. However, taxpayers submitting offers to compromise liabilities solely on the basis of doubt as to liability will not be required to provide financial statements.
(2) When offers become pending and return of offers. --An offer to compromise becomes pending when it is accepted for processing. The IRS may not accept for processing any offer to compromise a liability following reference of a case involving such liability to the Attorney General for prosecution or defense. If an offer accepted for processing does not contain sufficient information to permit the IRS to evaluate whether the offer should be accepted, the IRS will request that the taxpayer provide the needed additional information. If the taxpayer does not submit the additional information that the IRS has requested within a reasonable time period after such a request, the IRS may return the offer to the taxpayer. The IRS may also return an offer to compromise a tax liability if it determines that the offer was submitted solely to delay collection or was otherwise nonprocessable. An offer returned following acceptance for processing is deemed pending only for the period between the date the offer is accepted for processing and the date the IRS returns the offer to the taxpayer. See paragraphs (f)(5)(ii) and (g)(4) of this section for rules regarding the effect of such returns of offers.
(3) Withdrawal. --An offer to compromise a tax liability may be withdrawn by the taxpayer or the taxpayer's representative at any time prior to the IRS' acceptance of the offer to compromise. An offer will be considered withdrawn upon the IRS' receipt of written notification of the withdrawal of the offer either by personal delivery or certified mail, or upon issuance of a letter by the IRS confirming the taxpayer's intent to withdraw the offer.
(e) Acceptance of an offer to compromise a tax liability
(1) An offer to compromise has not been accepted until the IRS issues a written notification of acceptance to the taxpayer or the taxpayer's representative.
(2) As additional consideration for the acceptance of an offer to compromise, the IRS may request that taxpayer enter into any collateral agreement or post any security which is deemed necessary for the protection of the interests of the United States.
(3) Offers may be accepted when they provide for payment of compromised amounts in one or more equal or unequal installments.
(4) If the final payment on an accepted offer to compromise is contingent upon the immediate and simultaneous release of a tax lien in whole or in part, such payment must be made in accordance with the forms, instructions, or procedures prescribed by the Secretary.
(5) Acceptance of an offer to compromise will conclusively settle the liability of the taxpayer specified in the offer. Compromise with one taxpayer does not extinguish the liability of, nor prevent the IRS from taking action to collect from, any person not named in the offer who is also liable for the tax to which the compromise relates. Neither the taxpayer nor the Government will, following acceptance of an offer to compromise, be permitted to reopen the case except in instances where --
(i) False information or documents are supplied in conjunction with the offer;
(ii) The ability to pay or the assets of the taxpayer are concealed; or
(iii) A mutual mistake of material fact sufficient to cause the offer agreement to be reformed or set aside is discovered.
(6) Opinion of Chief Counsel. --Except as otherwise provided in this paragraph (e)(6), if an offer to compromise is accepted, there will be placed on file the opinion of the Chief Counsel for the IRS with respect to such compromise, along with the reasons therefor. However, no such opinion will be required with respect to the compromise of any civil case in which the unpaid amount of tax assessed (including any interest, additional amount, addition to the tax, or assessable penalty) is less than $50,000. Also placed on file will be a statement of --
(i) The amount of tax assessed;
(ii) The amount of interest, additional amount, addition to the tax, or assessable penalty, imposed by law on the person against whom the tax is assessed; and
(iii) The amount actually paid in accordance with the terms of the compromise.
(f) Rejection of an offer to compromise
(1) An offer to compromise has not been rejected until the IRS issues a written notice to the taxpayer or his representative, advising of the rejection, the reason(s) for rejection, and the right to an appeal.
(2) The IRS may not notify a taxpayer or taxpayer's representative of the rejection of an offer to compromise until an independent administrative review of the proposed rejection is completed.
(3) No offer to compromise may be rejected solely on the basis of the amount of the offer without evaluating that offer under the provisions of this section and the Secretary's policies and procedures regarding the compromise of cases.
(4) Offers based upon doubt as to liability. --Offers submitted on the basis of doubt as to liability cannot be rejected solely because the IRS is unable to locate the taxpayer's return or return information for verification of the liability.
(5) Appeal of rejection of an offer to compromise
(i) In general. --The taxpayer may administratively appeal a rejection of an offer to compromise to the IRS Office of Appeals (Appeals) if, within the 30-day period commencing the day after the date on the letter of rejection, the taxpayer requests such an administrative review in the manner provided by the Secretary.
(ii) Offer to compromise returned following a determination that the offer was nonprocessable, a failure by the taxpayer to provide requested information, or a determination that the offer was submitted for purposes of delay. --Where a determination is made to return offer documents because the offer to compromise was nonprocessable, because the taxpayer failed to provide requested information, or because the IRS determined that the offer to compromise was submitted solely for purposes of delay under paragraph (d)(2) of this section, the return of the offer does not constitute a rejection of the offer for purposes of this provision and does not entitle the taxpayer to appeal the matter to Appeals under the provisions of this paragraph (f)(5). However, if the offer is returned because the taxpayer failed to provide requested financial information, the offer will not be returned until a managerial review of the proposed return is completed.
(g) Effect of offer to compromise on collection activity
(1) In general. --The IRS will not levy against the property or rights to property of a taxpayer who submits an offer to compromise, to collect the liability that is the subject of the offer, during the period the offer is pending, for 30 days immediately following the rejection of the offer, and for any period when a timely filed appeal from the rejection is being considered by Appeals.
(2) Revised offers submitted following rejection. --If, following the rejection of an offer to compromise, the taxpayer makes a good faith revision of that offer and submits the revised offer within 30 days after the date of rejection, the IRS will not levy to collect from the taxpayer the liability that is the subject of the revised offer to compromise while that revised offer is pending.
(3) Jeopardy. --The IRS may levy to collect the liability that is the subject of an offer to compromise during the period the IRS is evaluating whether that offer will be accepted if it determines that collection of the liability is in jeopardy.
(4) Offers to compromise determined by IRS to be nonprocessable or submitted solely for purposes of delay. --If the IRS determines, under paragraph (d)(2) of this section, that a pending offer did not contain sufficient information to permit evaluation of whether the offer should be accepted, that the offer was submitted solely to delay collection, or that the offer was otherwise nonprocessable, then the IRS may levy to collect the liability that is the subject of that offer at any time after it returns the offer to the taxpayer.
(5) Offsets under section 6402. --Notwithstanding the evaluation and processing of an offer to compromise, the IRS may, in accordance with section 6402, credit any overpayments made by the taxpayer against a liability that is the subject of an offer to compromise and may offset such overpayments against other liabilities owed by the taxpayer to the extent authorized by section 6402.
(6) Proceedings in court. --Except as otherwise provided in this paragraph (g)(6), the IRS will not refer a case to the Department of Justice for the commencement of a proceeding in court, against a person named in a pending offer to compromise, if levy to collect the liability is prohibited by paragraph (g)(1) of this section. Without regard to whether a person is named in a pending offer to compromise, however, the IRS may authorize the Department of Justice to file a counterclaim or third-party complaint in a refund action or to join that person in any other proceeding in which liability for the tax that is the subject of the pending offer to compromise may be established or disputed, including a suit against the United States under 28 U.S.C. 2410. In addition, the United States may file a claim in any bankruptcy proceeding or insolvency action brought by or against such person.
(h) Deposits. --Sums submitted with an offer to compromise a liability or during the pendency of an offer to compromise are considered deposits and will not be applied to the liability until the offer is accepted unless the taxpayer provides written authorization for application of the payments. If an offer to compromise is withdrawn, is determined to be nonprocessable, or is submitted solely for purposes of delay and returned to the taxpayer, any amount tendered with the offer, including all installments paid on the offer, will be refunded without interest. If an offer is rejected, any amount tendered with the offer, including all installments paid on the offer, will be refunded, without interest, after the conclusion of any review sought by the taxpayer with Appeals. Refund will not be required if the taxpayer has agreed in writing that amounts tendered pursuant to the offer may be applied to the liability for which the offer was submitted.
(i) Statute of limitations
(1) Suspension of the statute of limitations on collection. --The statute of limitations on collection will be suspended while levy is prohibited under paragraph (g)(1) of this section.
(2) Extension of the statute of limitations on assessment. --For any offer to compromise, the IRS may require, where appropriate, the extension of the statute of limitations on assessment. However, in any case where waiver of the running of the statutory period of limitations on assessment is sought, the taxpayer must be notified of the right to refuse to extend the period of limitations or to limit the extension to particular issues or particular periods of time.
(j) Inspection with respect to accepted offers to compromise. --For provisions relating to the inspection of returns and accepted offers to compromise, see section 6103(k)(1).
(k) Effective date. --This section applies to offers to compromise pending on or submitted on or after July 18, 2002. [Reg. §301.7122-1.]
.01 Historical Comment: Adopted 7/18/2002 by T.D. 9007. [Reg. §301.7122-1 does not reflect P.L. 109-222 (2006).
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Part 5. Collecting Process
Chapter 8. Offer in Compromise
Section 5. Financial Analysis
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5.8.5 Financial Analysis
5.8.5.1 Overview
5.8.5.2 Verification
5.8.5.3 Equity in Assets
5.8.5.4 Dissipation of Assets
5.8.5.5 Future Income
5.8.5.6 Payment Terms
Exhibit 5.8.5-1 Deferred Payments Limited by Short Statute
Exhibit 5.8.5-2 Deferred Payments Limited by Small Amount Due
Exhibit 5.8.5-3 Deferred Payments Limited by Application of Payment From Equity in Assets
5.8.5.1 (09-01-2005)
Overview
This chapter provides instructions for analyzing the taxpayers financial condition to determine reasonable collection potential (RCP). IRM 5.15, Financial Analysis Handbook, provides information for the analyzing and verifying of financial information and should be used in conjunction with this section.
5.8.5.2 (09-01-2005)
Verification
A thorough verification of the taxpayers Collection Information Statement (CIS) involves reviewing information available from internal sources and requesting that the taxpayer provide additional information or documents that are necessary to determine reasonable collection potential (RCP).
Collection issues that have been previously addressed during a balance due investigation by field personnel will not be re-examined unless there is convincing evidence that such reinvestigation is absolutely necessary. It is expected that the results of a previous collection investigation will be used and only supplemented when necessary to make a determination on an offer in compromise. Investigative actions that are less than 12 months old may be used to evaluate the offer in compromise.
Example:
If a Revenue Officer has completed a full CIS analysis including verification of assets, income, and expenses and has made a determination of the fair market value (FMV) of assets, equity in assets and monthly ability to pay, this information should not be reinvestigated. The Offer Examiner (OE) should use the Revenue Officer's (RO) determinations to calculate reasonable collection potential (RCP). If the balance due case file does not provide documentation to indicate the source of the offer amount, the taxpayer will be contacted to determine the source of the offer funds
5.8.5.2.1 (09-01-2005)
Internal Sources
Verify as much of the collection information statement (CIS) as possible through internal sources.
When internal locator services are not available, or indicate a discrepancy, request that the taxpayer provide reasonable information necessary to support the Collection Information Statement (CIS).
A full credit report should be requested prior to accepting an offer when the current balance due exceeds $100,000.
Regardless of the amount of the liability the following information sources may be considered:
Internal Sources Review
ENMOD and INOLES Identify cross reference TINs for related business activity not declared on the CIS.
SUMRY, IMFOL and BMFOL Verify full compliance.
RTVUE (IMF) or copy of the last filed income tax return • Compare the amount of reported income to that declared on the CIS.
• Identify past sources of income:
Schedule B — interest and dividends
Schedule C — self-employment income
Schedule D — capital gains or losses
Schedule E — rental or other investment income, net operating loss deduction
Schedule F — farm income
IRPTRO and/or copy of older year income tax returns
•Compare real estate tax and mortgage interest deductions to the amounts declared on the CIS. Higher amounts may indicate present or past real property ownership not declared on the CIS. Lower amounts may indicate property has been recently sold or transferred.
•Identify accounts not reported on the CIS, such as certificates of deposit or investment accounts.
•Verify sources of income, such as employers, bank accounts, and retirement accounts.
•Identify recently dissipated assets.
BRTVUE (BMF) or copy of last filed income tax return • Compare the amount of reported income to that declared on the CIS.
• Compare the value of assets and the amount of reported depreciation to the asset values declared on the CIS.
State Motor Vehicle Records Identify motor vehicles registered to the taxpayer but not declared on the CIS. Also check for ownership in business names.
Real Estate Records • Identify real property titled to the taxpayer but not declared on the CIS.
• Identify property held by transferee, nominee, or alter ego. Also check for ownership in business names.
Credit Bureau Report • Identify past residences and employers.
• Verify competing lien holders, balances due and payment history.
•Identify property not listed on CIS.
5.8.5.2.2 (09-01-2005)
Taxpayer Submitted Documents
Collection Information Statements (CIS) submitted with an offer in compromise should reflect information no older than the prior six months. If during the processing of the offer, the financial information becomes older than 12 months, contact should be made with the taxpayer to update the information. However, in certain situations information may become outdated due to significant processing delays caused by the Service and through no fault of the taxpayer. In those cases, it may be appropriate to rely on the outdated information if there is no indication the taxpayers overall situation has significantly changed. Judgment should be exercised to determine whether, and to what extent, updated information is necessary. If there is any reason to believe the taxpayers situation may have significantly changed, secure a new CIS.
Do not make a blanket request for information. Tailor your request to each taxpayers specific situation. Do not require the taxpayer to provide information that is available from internal sources.
Offer Investigators may receive offers (other than those identified by the "Screen for Obvious Full Pay" process) where the taxpayers have not provided, either proof of payment for certain monthly expenses claimed in Section 9 of Form 433-A, or statements showing current real estate mortgage or motor vehicle loan balance. Often the taxpayers are not actually paying claimed expenses, or they are not allowable under offer program guidelines. For example, taxpayers frequently list their unsecured credit card bills under "secured debt" or " other expenses" . While a taxpayer may have a liability for a court ordered judgment that is senior to the Notice of Federal Tax Lien (NFTL), unless they are actually making payments on that liability it is not considered as an allowable monthly expense.
If taxpayers do not substantiate claimed expenses for Form 433-A categories of health care expenses, court ordered payments, child/dependent care, life insurance, other secured debt, or other expenses, Offers Investigators will complete the Income/Expense Table (IET) assuming that the taxpayer is not making any payments for the particular unsubstantiated expense, except for health care. In those cases, refer to LEM 5.3.1.
When computing equity in real estate or allowable motor vehicles, and the taxpayer has not submitted substantiation of loan balances claimed on the Form 433-A, Offers Investigators should request a credit report and use that loan balance information to determine the current balances of any relevant loans from commercial lenders. If the loan is from a private source, it may be necessary to contact the taxpayer/representative for the information.
If not present in the file when assigned for investigation, appropriate documentation from the chart below should be requested to verify the information on the Collection Information Statement (CIS).
Taxpayer Documentation Review
Wage Earner — wage statements for the prior three months or a current or a statement with current year–to–date figures. • Compare average earnings to the income declared on the CIS.
• Verify adequate tax withholding.
• Identify payroll deductions to ensure the expense is necessary and not claimed again on the CIS.
•Identify deductions to savings accounts, credit union accounts, or retirement accounts.
Self-employed — proof of gross income (invoices, accounts receivable, commission statements, etc.) for the prior three months. • Compare average earnings to the income declared on the CIS.
• Identify deductions to ensure the expense is necessary and not claimed again on the CIS.
Three (3) current months of bank statements that show the monthly transactions, withdrawals, and deposits. Compare deposit amounts to income reported on the tax return and CIS. Question deposits that exceed reported income and unusual expenses paid. Consider asking for the cancelled checks and deposit items for a specified time frame if questionable items cannot be adequately explained.
Retirement account statements and brochures, brokerage account statements, securities, or other investments Identify the type, conditions for withdrawal, and current market value.
Life insurance policies •Identify the type, conditions for borrowing or cancellation, and the current loan and cash values.
• Verify the amount of the required premiums and ensure payments are being made.
Motor vehicle purchase or lease contracts, statements from the lender indicating the payoff amount Verify equity and monthly payment expense.
Real estate warranty deeds, mortgage deeds, HUD closing statements, statements from the lender indicating the pay off amount Identify the type of ownership, amount of equity, and monthly payment expense.
Homeowners or renters insurance policies and riders. • Compare the insured value to the value declared on the CIS.
• Identify high value personal items such as jewelry, antiques or artwork.
Financial statements recently provided to lending institutions or others. Compare the financial information on the CIS to those submitted to other lending institutions.
Divorce court orders. Verify disposition of assets in the property settlement.
Court orders for child support and proof of payment. Verify responsibility for child support, that the payments are actually being made, and the length of time payments are required to be made. A copy of the court order is not critical or required if the taxpayer does not provide supporting documentation that payments are being made. In those cases, the payment will be disallowed as an expense. If the payment is to be allowed, a copy of the Court Order must be secured.
5.8.5.3 (09-01-2005)
Equity in Assets
Proper asset valuation is essential to determine reasonable collection potential (RCP).
Field calls may be made to locate or personally ascertain the condition of assets.
Assets will not be eliminated or valued at zero dollars simply because the Service may choose not to take enforcement action against the asset, even though the net result is rejection of the offer and reporting the case currently not collectible.
5.8.5.3.1 (09-01-2005)
Net Realizable Equity
For offer purposes, assets are valued at net realizable equity (NRE). Net realizable equity is defined as quick sale value (QSV) less amounts owed to secured lien holders with priority over the federal tax lien.
Quick sale value (QSV) is defined as an estimate of the price a seller could get for the asset in a situation where financial pressures motivate the owner to sell in a short period of time, usually 90 calendar days or less. Generally, QSV is an amount less than fair market value (FMV) but greater than forced sale value (FSV). FSV is defined as no less than 75% of FMV.
Normally, quick sale value (QSV) is calculated at 80% of fair market value (FMV). A higher or lower percentage may be applied in determining QSV when appropriate, depending on the type of asset and/or current market conditions. If, based on the current market and area economic conditions, it is believed that the property would quickly sell at full FMV, then it may be appropriate to consider QSV to be the same as FMV. This is occasionally found to be true in real estate markets where real estate is selling quickly at or above the listing price. As long as the value chosen represents a fair estimate of the price a seller could get for the asset in a situation where the asset must be sold quickly (usually 90 calendar days or less) then it would be appropriate to use of a percentage other than 80%. Generally, it is the policy of the Service to apply QSV in valuing property for offer purposes.
When a particular asset has been sold (or a sale is pending) in order to fund the offer, no reduction for quick sale value (QSV) should be made. Instead, verify the actual sale price, ensuring that the sale is an arms length transaction, and use that amount as the QSV. A reduction may be made for the costs of the sale and the expected current year tax consequence to arrive at the net realizable equity (NRE) of the asset.
5.8.5.3.2 (09-01-2005)
Jointly Held Assets
When taxpayers submit separate offers but have jointly owned assets, allocate equity in the assets equally between the owners. However:
If… Then…
The joint owners demonstrate their interest in the property is not equally divided Allocate the equity based on each owner's contribution to the value of the asset.
The joint owners have joint and individual tax liabilities included in the offer investigation Apply the equity first to the joint liability and then to the individual liability.
See IRM 5.8.5.3.11(4) below for the treatment of assets held as tenancies by the entirety.
5.8.5.3.3 (09-01-2005)
Income-Producing Assets
When determining the reasonable collection potential (RCP) for an offer that includes business assets, an analysis is necessary to determine if certain assets are essential for the production of income. When it is determined that an asset or a portion of an asset is necessary for the production of income, it may be appropriate to adjust the income or expense calculation for that taxpayer to account for the loss of income stream if the asset was either liquidated or used as collateral to secure a loan to fund the offer .
When valuing income-producing assets:
If… Then…
There is no equity in the assets There is no adjustment necessary to the income stream.
There is equity and no available income stream (i.e. profit) produced by those assets There is no adjustment necessary to the income stream. Consider including the equity in the asset in the RCP.
There are both equity in assets that are determined to be necessary for the production of income and an available income stream produced by those assets Compare the value of the income stream produced by the income producing asset(s) to the equity that is available.
Determine if an adjustment to income or expenses is appropriate.
An asset used in the production of income will be liquidated to help fund an offer Adjusting the income to account for the loss of the asset.
A taxpayer borrows against an asset that is necessary for the production of income, and devotes the proceeds to the payment of the offer Consider the effect that loan will have on future expenses and the future income stream.
The taxpayer is either unable or unwilling to secure a loan on the equity in income producing assets Compare the equity in the assets with the income produced by those assets. Determine if an adjustment to income stream is appropriate to account for the potential loss of the assets.
These considerations should be fully documented in the case history. For example:
If… Then…
A self-employed construction tradesman sells a truck, which he used to haul materials, and devotes the proceeds to the offer Consider allowing the expected cost of delivery services as a business expense.
A tradesman borrows against the truck instead of selling it and devotes the proceeds to the offer Consider allowing the loan repayment as a business expense.
A loan cannot be secured and loss of the truck would create an economic hardship When special circumstances warrant acceptance of less than RCP, document the circumstances and recommend acceptance to the authorized official in Delegation Order No. 5-1 (formerly DO 11, Rev. 29).
An outside salesman has a luxury car when all that is necessary is a moderate value sedan The equity should be included in the offer. Consider allowing only a portion of the loan repayment that would be required to purchase a moderate value replacement vehicle.
An outside salesman has a luxury car but no ability to make installment payments for purchase of a moderate value replacement vehicle The equity should be included in the offer. When special circumstances warrant acceptance of less than the RCP, document the circumstances and recommend acceptance to the authorized official in Delegation Order No. 5-1 (formerly DO 11, Rev. 29). Determine the acceptable amount of a special circumstances offer by allowing the taxpayer to retain only enough equity to purchase a moderate value replacement vehicle.
A business owns a vacation property, which is used for annual board meetings. The equity should be included in the offer. Do not allow any loan repayment.
5.8.5.3.4 (09-01-2005)
Assets Held By Others as Transferees, Nominees, or Alter Egos
A critical part of the financial analysis is to determine what degree of control the taxpayer has over assets and income in the possession of others. This is especially true when the offer will be funded by a third party.
When these issues arise, apply the principles in IRM 5.17.1, Legal Reference Guide for Revenue Officers, or request a counsel opinion.
It is not necessary to actually seek or obtain any specific legal remedy in order to address these issues in an offer.
If the taxpayer has a beneficial interest in the asset or income stream then the value should be reflected in the reasonable collection potential (RCP).
5.8.5.3.5 (09-01-2005)
Cash
Review checking account statements over a reasonable period of time, normally three months.
Note:
Determine if there are funds in the account that are not spent on a monthly basis. Generally this would be the amount reflected on each month's statement when the account is at its lowest point. Treat overdrafts as a zero balance. This should represent the amount available in the account each month after all deposits and withdrawals. Average the lowest daily ending balance on each of the three statements and use this amount as the value of the account. This amount will be added to the AET as an asset, however, it cannot be valued for less than zero.
Determine the taxpayers interest in bank accounts by ascertaining the manner in which they are held and applying the principles described in IRM 5.17.1, Legal Reference Guide for Revenue Officers.
If analysis of the bank statements and/or discussions with the taxpayer reveal that an adjustment to the balance is appropriate based on unusual expenses that are necessary for the production of income or the health and welfare of the taxpayer, consider adjusting the balance. The case file should clearly document these determinations.
Analyze the statement for any unusual activity, i.e. deposit in excess of reported income, withdrawals, transfers, or checks for expenses not reflected on the Collection Information Statement (CIS). The Offer Investigator should question these inconsistencies, as appropriate.
Review savings accounts statements over a reasonable period of time, normally three months.
If the account has little withdrawal activity use the ending balance on the latest statement as the asset value for the AET.
If it is apparent that the account is used for paying monthly living expenses, treat it as a checking account and follow the instructions in paragraphs (1) through (4) above to determine its value.
If analysis of the bank statement reveals recently dissipated funds, see 5.8.5.4 below for a full discussion of the treatment of dissipated assets.
If the taxpayer offers the balances of accounts to fund the offer, allow for any penalty for early withdrawal and the expected current year tax consequence.
Verify whether deposits in escrow or trust accounts are actually held for the benefit of others.
For funds on deposit with the offer in compromise, allow as an encumbrance any amount borrowed under the provision that, if the offer is not accepted, it must be repaid.
5.8.5.3.6 (09-01-2005)
Securities
Financial securities are considered an asset and their value should be determined and included in the reasonable collection potential (RCP) when investigating an offer.
When the taxpayer will liquidate the investment to fund the offer, allow any penalty for early withdrawal and the current year tax consequence.
To determine the value of publicly traded stock, research a daily paper or inquire with a broker for the current market price. Then, allow for the estimated costs of the sale to arrive at the quick sale value (QSV).
To determine the value of closely held stock that is either not traded publicly or for which there is no established market, consider the following methods of valuing the company and assign a proportion of the company's value to the taxpayers stock:
Secure and verify a Collection Information Statement (CIS).
Review recent year's annual report to stockholders.
Review recent year's corporate income tax returns.
Request an appraisal of the business as a going concern by a qualified and impartial appraiser.
When a taxpayer holds only a negligible or token interest, has made no investment and exercises no control over the corporate affairs, it is permissible to assign no value to the stock.
5.8.5.3.7 (09-01-2005)
Life Insurance
Life insurance as an investment is not considered necessary. However, reasonable premiums for term life policies may be allowed as a necessary expense.
When determining the value in a taxpayers insurance policy, consider:
If… Then…
The taxpayer will retain or sell the policy to help fund the offer Equity is the cash surrender value.
The taxpayer will borrow on the policy to help fund the offer Equity is the cash loan value less any prior policy loans or automatic premium loans required to keep the contract in force.
5.8.5.3.8 (09-01-2005)
Retirement or Profit Sharing Plans
Funds held in a retirement or profit sharing plan are considered an asset and must be valued for offer purposes.
Contributions to voluntary retirement plans are not a necessary expense. Review of the retirement plan document is generally necessary to determine the taxpayers benefits and options under the plan.
When determining the value of a taxpayers pension and profit sharing plans consider:
If… And… Then…
The account is an Individual Retirement Account (IRA) or Keogh Account The taxpayer is not retired or close to retirement Equity is the cash value less any expense for liquidating the account and early withdrawal penalty.
The account is an Individual Retirement Account (IRA), 401(k), or Keogh Account The taxpayer is retired or close to retirement Equity is the cash value less any expense for liquidating the account and early withdrawal penalty. The plan may be considered as income, if the income from the plan is necessary to provide for necessary living expenses.
The contribution to a retirement plan is required as a condition of employment The taxpayer is able to withdraw funds from the account Equity is the amount the taxpayer can withdraw less any expense associated with the withdrawal
The contribution to an employer's plan is required as a condition of employment The taxpayer is unable to withdraw funds from the account but is permitted to borrow on the plan Equity is the available loan value.
Any retirement plan that may not be borrowed on or liquidated until separation from employment The taxpayer is retired, eligible to retire, or close to retirement Equity is the cash value less any expense for liquidating the account and early withdrawal penalty, or consider the plan as income if the income from the plan is necessary to provide for necessary living expenses.
The plan may not be borrowed on or liquidated until separation from employment The taxpayer is not eligible to retire until after the period for which we are calculating future income The plan has no equity.
The plan includes a stock option The taxpayer is eligible to take the option Equity is the value of the stock at current market price less any expense to exercise the option.
When the taxpayer will liquidate the retirement plan to fund the offer, allow any penalty for early withdrawal and the current year tax consequence.
When the taxpayer will borrow against the retirement plan to fund the offer, allow any penalty for early withdrawal and the current year tax consequence.
5.8.5.3.9 (09-01-2005)
Furniture, Fixtures, and Personal Effects
The taxpayers declared value of household goods is usually acceptable unless there are articles of extraordinary value; such as, antiques, artwork, jewelry, or collector's items. Exercise discretion in determining whether the assets warrant personal inspection.
There is a statutory exemption from levy that applies to the taxpayers furniture and personal effects. This exemption amount is updated on an annual basis.
Note:
This exemption applies only to individual taxpayers.
When determining the value consider the following:
If… Then…
The taxpayer qualifies as head of household, single, or married Grant a reduction in the value of personal effects for the levy exemption amount.
The property is owned jointly with any person who is not liable for the tax Determine the value of the taxpayers proportionate share of property before allowing the levy exemption.
Some of the furniture or fixtures are used in a business They are not personal effects, but they may qualify for the levy exemption as tools of a trade.
5.8.5.3.10 (09-01-2005)
Motor Vehicles, Airplanes, and Boats
Equity in motor vehicles, airplanes, and boats must be determined and included in the reasonable collection potential (RCP). The general rule for determining net realizable equity (NRE), as discussed in IRM 5.8.5.3.1 above, applies when determining equity in these assets. Unusual assets such as airplanes and boats may require an appraisal to determine fair market value (FMV), unless the items can be located in a trade association guide. The case file should document how the values were determined.
Generally, it is not necessary to personally inspect automobiles used for personal transportation. When it appears reasonable, accept the taxpayers stated value. No further investigation is required except for vehicles that are three years old or newer with no lien. For these vehicles, consult a trade association guide and discount the fair market value (FMV) to 80% to arrive at the quick sale value (QSV).
Example:
When investigating an offer in the year 2003, a 2001 model year is 3 years old or newer.
When these assets are used for business purposes they may be considered income producing assets. See IRM 5.8.5.3.3 above for a full discussion on the treatment of income producing assets.
5.8.5.3.11 (09-01-2005)
Real Estate
Equity in real estate is included when calculating the taxpayers reasonable collection potential (RCP) and in an acceptable offer amount.
When determining equity in real estate, the fair market value (FMV) of the property must be established. FMV is defined as the price a willing buyer will pay for the property, given time to obtain the best and highest possible price. The following methods may be used to establish FMV:
Recent purchase price or an existing contract to sell
Recent appraisals
Real estate tax assessment
Market comparable
Homeowners insurance replacement cost
Once the fair market value (FMV) of real estate is established, a determination regarding a reduction of value for offer purposes must be made. Procedures outlining reduction to quick sale value (QSV) are discussed in IRM 5.8.5.3.1 above. If the value of real estate is reduced beyond 80% or if FMV is not reduced to QSV, the case file should document the basis for the value used.
For real estate and other related property held as tenancies by the entirety when the tax is owed by only one spouse, the taxpayers portion is usually 50% of the property's net realizable equity (NRE).
5.8.5.3.12 (09-01-2005)
Accounts and Notes Receivable
Accounts and notes receivable are considered assets unless a determination is made to treat them as part of the income stream when they are required for the production of income. When it is determined that liquidation of a receivable would be detrimental to the continued operation of an otherwise profitable business, it may be treated as future income.
To determine the value of accounts receivable:
Consider discounting the value of accounts that are over 90 calendar days past due.
When the receivables have been sold at a discount or pledged as collateral on a loan, apply the provisions of IRC 6323(c) to determine the lien priority of commercial transactions and financing agreements.
Closely examine accounts of significant value that the taxpayer is not attempting to collect, or that are receivable from officers, stockholders, or relatives.
To determine the value of a note receivable, consider the following:
Whether it is secured and if so by what asset(s)
What is collectable from the borrower
If it could be successfully levied upon.
5.8.5.3.13 (09-01-2005)
Inventory, Machinery, and Equipment
Inventory, machinery and equipment may be considered income producing assets. See IRM 5.8.5.3.3 above when it is determined that liquidation of these assets would be detrimental to the continued operation of an otherwise profitable business.
To determine the value of business assets use the following:
For assets commonly used in many businesses such as automobiles and trucks, the value may be easily determined by consulting trade association guides.
For specialized machinery and equipment suitable for only certain applications, consult a trade association guide, secure an appraisal from a knowledgeable and impartial dealer, or contact the manufacturer.
When the property is unique or difficult to value and no other resource will meet the need, follow local procedure to request the services of an IRS valuation engineer.
Consider asking the taxpayer to secure an appraisal from a qualified business appraiser.
There is a statutory exemption from levy that applies to an individual taxpayers tools used in a trade or business. This exemption for tools of the trade generally does not apply to automobiles. The levy exemption amount is updated on an annual basis.
5.8.5.3.14 (09-01-2005)
Business as a Going Concern
Evaluation of a business as a going concern is sometimes necessary when determining reasonable collection potential (RCP) of an operating business owned individually or by a corporation, partnership, or LLC. This analysis recognizes that a business may be worth more than the sum of its parts, when sold as a going concern.
To determine the value of a business as a going concern consider the value of assets, future income, and intangible assets such as:
Good will
Ability or reputation of a professional
Established customer base
Prominent location
Well known trade name, trademark, or telephone number
Possession of government licenses, copyrights, or patents
Generally, the difference between what an ongoing business would realize if sold on the open market as a going concern and the traditional reasonable collection potential (RCP) analysis is attributable to the value of these intangibles.
Request the assistance of an IRS valuation engineer when a difficult or complex valuation is necessary.
When determining reasonable collection potential (RCP) for an individual taxpayer that has an interest in a business entity, flexibility should be used with consideration given to the taxpayers control over the business.
5.8.5.4 (09-01-2005)
Dissipation of Assets
During an offer investigation it may be discovered that assets (liquid or non-liquid) have been sold, gifted, transferred, or spent on non-priority items and/or debts and are no longer available to pay the tax liability. This section discusses treatment of the value of these assets when considering an offer in compromise.
Note:
The scope of an offer investigation should not be expanded beyond the requirements defined in IRM 5.8.5.4, for the sole purpose of attempting to locate dissipated assets.
Once it is determined that a specific asset has been dissipated, the investigation should address whether the value of the asset, or a portion of the value, should be included in an acceptable offer amount.
Inclusion of the value of dissipated assets must clearly be justified in the case file and documented on the ICS/AOIC history. Justification should include an analysis of the following facts:
When the asset(s) were dissipated in relation to the offer submission,
How the asset was dissipated,
If the taxpayer realized any funds from the dissipation of assets,
How any funds realized from the dissipation of assets were used,
The value of dissipated assets and the taxpayers interest in those assets.
When the taxpayer can show that assets have been dissipated to provide for necessary living expenses, these amounts should not be included in the reasonable collection potential (RCP) calculation.
For Example:
Dissolving an IRA account to pay for necessary living expenses during unemployment
Using bank accounts to pay for medical expenses
An asset that was dissipated and the funds were used to purchase another asset that is included in the offer evaluation.
If the investigation clearly reveals that assets have been dissipated with a disregard of the outstanding tax liability, consider including the value in the reasonable collection potential (RCP) calculation.
Note:
The examples below are only guidelines and the value of the dissipated assets should not automatically be included in the calculation of the RCP. Each particular case must be evaluated on it's own merit and with the factors in (3) above in mind. In addition, if the tax liability did not exist prior to the dissipation or the dissipation occurred prior to the taxable event giving rise to the tax liability, a taxpayer cannot be said to have dissipated the assets with a disregard of the outstanding tax liability. For example, if a taxpayer withdraws funds from an IRA to invest in a business opportunity but does not have any tax liability prior to the withdrawal, the fact that taxes are not withheld from the distribution does not result in the value of the funds being included in the RCP calculation.
For Example:
Dissolving an IRA account to pay unsecured credit card debt
Sale of real estate and "gifting" the funds from the sale to family members.
A recent refinancing of equity in property and using the funds to pay unsecured debt.
If the taxpayer cannot or will not provide information showing the disposition of funds from dissipated assets, consider including a portion or all of these values in an acceptable offer amount.
5.8.5.5 (09-01-2005)
Future Income
Future income is defined as an estimate of the taxpayers ability to pay based on an analysis of gross income, less necessary living expenses, for a specific number of months into the future. The number of months used depends on the payment terms of the offer.
For cash offers — project for the next 48 months.
For short term deferred offers — project for the next 60 months.
For deferred payment offers — project for the number of months remaining on the statutory period for collection.
Detailed instructions for calculating future income are contained in IRM 5.8.5.5.5 below.
Consider the taxpayers overall general situation including such facts as age, health, marital status, number and age of dependents, highest education or occupational training, and work experience.
Retired Debts — A taxpayers ability to pay in the future may change during the period it is being considered because necessary expenses may increase or decrease. Adjust the amount or number of payments to be included in the future income calculation, based on the expected change in necessary expenses.
Example:
The taxpayer may pay off an auto loan 24 months from the date the offer is accepted. This would increase the monthly future income by the amount of the loan payment. Child support payments may stop before the future income period is complete because the child turns a certain age. It is expected that these retired payments would increase the taxpayers ability to pay.
Note:
Inclusion of retired debt should not be added automatically in the calculation of the reasonable collection potential (RCP). The Offer Investigator should use judgment in determining whether inclusion of the retired debt is appropriate based on the facts of the case; such as special circumstance or Effective Tax Administration (ETA) situations. In all instances, the case histories should be documented to support the inclusion and/or exclusion of the retired debt.
Some situations may warrant placing a different value on future income than current or past income indicates:
If… Then…
Income will increase or decrease or current necessary expenses will increase or decrease Adjust the amount or number of payments to what is expected during the appropriate number of months.
A taxpayer is temporarily unemployed or underemployed Use the level of income expected if the taxpayer were fully employed and if the potential for employment is apparent. Each case should be judged on its own merit, including consideration of special circumstance or ETA issues.
Example:
Underemployed – If a taxpayer is a teacher but recently moved and is currently working as a janitor until a teaching position becomes available; or has been hired and does not begin work until the school season begins, is considered to be currently underemployed.
A taxpayer has a sporadic employment history or fluctuating income Average earnings over several prior years. Usually this is the prior 3 years.
Note:
This practice does not apply to wage earners.
A taxpayer is elderly, in poor health, or both and the ability to continue working is questionable Adjust the amount or number of payments to the expected earnings during the appropriate number of months. Consider special circumstance situations when making any adjustments.
A taxpayer will file a petition for liquidating bankruptcy Consider reducing the value of future income. The total value of future income should not be reduced to an amount less than what could be paid toward non-dischargeable periods, or what could be recovered through bankruptcy. When considering a reduction in future income also consider the intangible value to the taxpayer of avoiding bankruptcy.
Below are some examples on when it is and is not appropriate to income average. Judgment should be used in determining the appropriate time to apply income averaging on a case by case basis. All circumstances of the taxpayer should be considered when determining the appropriate application of income averaging, including special circumstance and Effective Tax Administration considerations.
The examples below are instances when income averaging may or may not be appropriate.
Example:
A taxpayer is a commissioned sales person and the income varies year to year. It would be appropriate to income average in this case.
Example:
Mr. taxpayer was on a fixed retirement and Mrs. taxpayer had not worked for over 2 1/2 years with no promise of future employment. Do not average income for the spouse during past employment.
Example:
The taxpayer had been unemployed for over a year and provided proof that Social Security Disability was the sole source of income. Do not apply income averaging in this case.
Example:
The taxpayer was incarcerated and unable to work for the past 4 years and provided proof that a relative was paying for all expenses, including child support payments. The taxpayer had no skills or promise of work in the near future but was planning on attending trade school to improve his chances of getting a job. Do not include income from the 4 years of employment prior to the incarceration. In this case, the income and expenses would be zero. Consideration should be given whether it would be in the best interest of the Government to accept the offer or to place it in Currently Not Collectible (CNC) status.
Example:
The taxpayer recently began working after several months of unemployment. Use the most recent 3 months pay statements to determine future income. Do not income average.
In some instances, a future income collateral agreement may be used in lieu of including the estimated value of future income in reasonable collection potential (RCP). When investigating an offer where current or past income does not provide an ability to accurately estimate future income, the use of a future income collateral agreement may provide a better means of calculating an acceptable offer amount. Future income collateral agreements should not be used to enable a taxpayer to submit an offer in a lesser amount than the current or past financial condition dictates. However, if the future is uncertain, but it is reasonably expected that the taxpayer will be receiving a substantial increase in income, it may be appropriate.
Example:
A taxpayer is currently in medical school and it is anticipated that upon graduation income should increase dramatically. See IRM 5.8.6.3.1, Future Income, for instructions on completing collateral agreements.
Example:
A taxpayer recently secured a job as an attorney with a starting salary at $80,000 per year, with potential for significant increases in salary.
5.8.5.5.1 (09-01-2005)
Allowable Expenses
Allowable expenses as defined in IRM 5.15.1, Financial Analysis Handbook, are those expenses that are necessary for the production of income or for the health and welfare of the taxpayers family. That handbook also contains national and local standard expense amounts designed to provide accuracy and consistency in determining a taxpayers basic living expenses. The standards are updated periodically based upon Bureau of Labor Statistics and Census Bureau information.
National and local expense standards are guidelines. If it is determined that a standard amount is inadequate to provide for a specific taxpayers basic living expenses, allow a deviation. Require the taxpayer to provide reasonable substantiation and document the case file.
Example:
A taxpayer with a physical disability or an unusually large family requires a housing cost that is not anticipated by the local standard. Require the taxpayer to provide copies of mortgage or rent payments, utility bills and maintenance costs to verify the necessary amount.
Generally, the total number of persons allowed for national standard expenses should be the same as those allowed as dependents on the taxpayers current year income tax return. There may be reasonable exceptions. Fully document the reasons for any exceptions.
Example:
Foster children or children for whom adoption is pending.
A deviation from the local standard is not allowed merely because it is inconvenient for the taxpayer to dispose of excessively valued assets. In some situations, taxpayers may be expected to make life-style choices that will facilitate collection of the delinquent tax.
5.8.5.5.2 (09-01-2005)
Treatment of Non-Business Transportation Expenses
Transportation expenses are considered necessary when they are used by taxpayers and their families to provide for their health and welfare and/or the production of income. Employees investigating offers in compromise are expected to exercise appropriate judgment in determining whether claimed transportation expenses meet these standards. Expenses that appear to be excessive should be questioned and, in appropriate situations, disallowed.
Operating Expenses — Allow the full operating costs portion of the local transportation standard, or the amount actually claimed by the taxpayer, whichever is less .
Note:
Substantiation for this allowance is not required.
Ownership Expenses — Expenses are allowed for purchase and/or lease of a vehicle, with different rates established for a first car and, if allowed, a second or more cars.
Taxpayers will be allowed the local standard or the amount actually paid, whichever is less. Generally, auto loan and/or lease payments will not continue as allowed expenses after the terms of the loan/lease have been satisfied. However, depending on the age and/or condition of the vehicle, the complete disallowance of the ownership expense may result in a transportation expense allowance that does not adequately meet the necessary expenses of the taxpayer.
Therefore, in situations where the taxpayer owns a vehicle that is currently over six years old and/or has reported mileage of 75,000 miles or more, an additional operating expense of $200 will generally be allowed for the collection period that remains after the loan/lease has been "retired" plus the operating expense.
Note:
This also applies to those taxpayers that have no loan/lease on a vehicle over six years old and/orhas reported mileage of 75,000 miles or more.
Example:
The taxpayer, who lives in the Midwest Region, owns a 1995 Ford Taurus, with 90,000 reported miles. The vehicle was bought used, and the auto loan will be fully paid in 30 months, at $300 per month. In this situation, the taxpayer will be allowed the ownership expense until the loan is fully paid; i.e., $300 plus the allowable operating expense of $231 per month (unless less is claimed), for a total transportation allowance of $531 per month. After the auto loan is "retired" in 30 months, the ownership expense is not applicable; however, at that point, the taxpayer will be allowed a $200 operating expense allowance, in addition to the standard $231, for a total operating expense allowance of $431 per month.
Example:
The taxpayer who owns a 1998 Chevrolet Caviler with 50,000 miles, will be allowed the standard of $231 per month (unless less is claimed) plus $200 per month operating expense (because of the age of the vehicle), for a total operating expense allowance of $431 per month.
5.8.5.5.3 (09-01-2005)
Conditional Expenses
Conditional expenses are defined in IRM 5.15, Financial Analysis Handbook, as those that may be allowed when the tax will be paid in full by an installment agreement. For offers purposes, the full amount of the tax will not be collected; therefore, the rules for conditional expenses are different.
The one year rule which allows time for a taxpayer to adjust current expenses to meet the terms of an installment agreement is not allowed for Offers in Compromise.
The purchase of discretionary investments is not allowed.
Example:
Payroll savings plans, purchase of whole life policies, mutual funds or voluntary retirement plan contributions.
Repayment of loans incurred to fund the offer and secured by the taxpayers’ assets are allowed when those assets are of reasonable value and necessary to provide for the health and welfare of the taxpayers family. The same rule applies whether the equity is paid to tax before the offer is submitted or will be paid upon acceptance of the offer. See IRM 5.8.5.3.3, Income-Producing Assets, to determine when to allow repayment of loans on those assets used to fund the offer.
Repayment of student loans secured by the federal government is allowed only for the taxpayers higher education. If student loans are owed but no payments are being made, do not allow them.
Education expense is allowed only for the taxpayer and only if it is required as a condition of present employment. Expenses for dependents to attend colleges, universities or private schools are not allowed unless the dependents have special needs that cannot be met by public schools.
Child support payments for natural children or legally adopted dependents may be allowed, based on the taxpayers situation, even when they are not court ordered. Regardless of whether they are court ordered, if no child support payments are being made, do not allow them.
Monthly payments to state or local taxing agencies should not be allowed as a necessary expense, even if the state or local taxing agency has a lien that was choate prior to our lien or is collecting funds via a wage attachment or approved installment agreement. State and federal lien (regardless of priority) attach simultaneously to after acquired property. In general, if the federal tax lien attaches to after acquired property simultaneously with a competing perfected lien, the federal tax lien will take priority (see IRM 5.17.2, Legal Reference Guide). Since future earnings of the taxpayer are after acquired property the Service has first right to the earnings. Explain to the taxpayer that although the payment may be allowed in an installment agreement where the tax will be paid in full, it will not be allowed for computation of an acceptable offer amount because the Federal government has priority rights to the funds.
Note:
State or local liens may enjoy a priority in fixed payment streams such as annuity payments. If necessary, consult with area counsel to determine lien priorities.
Charitable contributions are not allowed.
Payments being made to fund or re-pay loans from voluntary plans will not be allowed. Taxpayers who cannot repay these loans will have a tax consequence in the year that the loan is declared in default and that consequence should be estimated and allowed as an additional tax expense on the IET for the required number of months necessary to cover the additional tax consequence. Request the taxpayer or their representative estimate the tax ramification of the failure to re-pay the loan or the Offers Investigator may request assistance from the Examination function or Customer Service to determine the tax consequences.
5.8.5.5.4 (09-01-2005)
Shared Expenses
This situation can happen one of two ways:
Separate offers are submitted by two or more persons who owe joint liabilities and/or separate liabilities and who share the same household.
An offer is submitted by a taxpayer who shares living expenses with a not liable person.
Generally, the assets and income of a not liable person are excluded from the computation of the taxpayers ability to pay. One notable exception is in community property states. Follow the community property laws in these states to determine what assets and income of the otherwise not liable person are subject to collection of the tax.
Regardless of community property laws, the Offers Investigator should secure sufficient information concerning the not liable person to determine the taxpayers proportionate share of the total household income and expenses. Review the entire household's information and:
Determine the total actual household income and expense.
Determine what percentage of the total household income the taxpayer contributes.
Determine necessary and allowable expense amounts using the rules in this chapter and IRM 5.15, Financial Analysis Handbook.
Determine which expenses are shared and which expenses are the sole responsibility of the taxpayer.
Apply the taxpayers percentage of income to the shared expenses.
Verify that the taxpayer actually contributes at least this amount to the total household expense.
Do not allow the taxpayer any amount paid toward a not liable person's discretionary expenses.
When the taxpayer can provide documentation that income is not commingled (as in the case of roommates who share housing) and responsibility for household expenses are divided equitably between co-habitants, (as documented by rental agreements, bank statement analysis, etc.) the total allowable expense should not exceed the total allowable housing standard for the taxpayer. In this situation, it would not be necessary to obtain the income information of the non-liable person(s), however sufficient financial information must be secured to verify the total household expenses and prove that the taxpayer is paying his/her proportionate share. The investigating employees should exercise sound judgment in these situations to determine which approach is most appropriate, based on the facts of each case.
Note:
In the situation where the taxpayer is renting an apartment or room and the owner of the property is the non-liable person, the rental agreement or signed statement from the owner of the property should support the decision to not require the owner to divulge any personal information regarding income or household expenses. In these cases, the investigating employee should accept the information provided by the taxpayer and make a determination based on that information.
If an in-house verification is conducted on the non-liable person, this information cannot be relayed to the taxpayer. This is not a Unauthorized Access (UNAX) violation but would be considered disclosure if any information is shared with someone other than the non-liable person in question.
5.8.5.5.5 (09-01-2005)
Calculation of Future Income
Generally, the amount to be collected from future income is calculated by taking the projected gross monthly income less allowable expenses and multiplying the difference times the number of months remaining on the statutory period for collection.
For cash and short term deferred offers, when there are less than 48 or 60 months remaining on the statutory period for collection, use the number of months remaining. To determine the amount collectible from future income on a deferred payment offer through the life of the statutory period for collection, take the following steps:
Subtract allowable expenses from the monthly income to determine the monthly installment amount.
Determine the valid Collection Statute Expiration Date (CSED) for each tax period included in the offer.
Sort the tax periods by earliest CSED.
For each tax period, determine the number of months remaining on the statutory period for collection. Begin with the day the offer was determined to be processable and end on the CSED. Round partial months up to the nearest whole month.
For each tax period, determine the number of installments that may be applied before running out available funds. Round partial payments up to the nearest whole payment.
Calculate the number of installments applied to each period. For succeeding periods, do not count months on the CSED that were used for applying installments to prior periods.
Caution:
If the allowed payment terms call for the first installment to begin later than 30 calendar days from acceptance, there will be one less month available to apply payments.
Add the number of installments applied to all the periods and multiply the sum by the monthly installment amount to arrive at the total amount collectible from future income. For examples of situations where the amount that may be applied to a period is limited. See Exhibits 5.8.5-1 through 5.8.5-3.
5.8.5.5.6 (09-01-2005)
Deferred Payment Offer in Compromise Received After Collection Statute Expiration Date Extension
Taxpayers that previously extended the Collection Statute Expiration Date (CSED) in connection with an installment agreement, may request approval of a deferred payment offer in compromise (DPOIC).
On March 24, 1998 the Service issued procedures that limited the length of CSED extensions. See IRM 5.14, Installment Agreements , for further instruction on the policy of the Service.
By policy, if extensions granted prior to October 18, 1999:
resulted in collection periods longer than 15 years; and,
a deferred payment offer in compromise (DPOIC) is later submitted on the balance due accounts (subject to the extension), then, for the purpose of reviewing the DPOIC request, CSEDs are considered to be the later of the following:
The original CSED (10 years from the tax assessment upon which the liability is based); or,
5 years from the date of acceptance of the offer in compromise.
IDRS will not reflect any adjustments based on these procedures; therefore, it is essential that case histories be fully documented and reflect the following statement:
"Time left prior to the CSED (per IDRS) was not used for computation of the deferred offer payment amount, per IRM 5.8.5.5.6. "
Note:
These procedures do not apply to extensions up to 6 years, but only applies to CSED extensions longer than 5 years as agreed to prior to October 18, 1999 and were granted in conjunction with an installment agreement.
5.8.5.6 (09-01-2005)
Payment Terms
Payment terms are negotiable, but should provide for payment of the offered amount in the least time possible. If a taxpayer is planning to sell asset(s) to fund all or a portion of the offer, the payment terms for the offer should provide for immediate payment of the amounts received from the sale. If the taxpayer is planning to borrow a portion of the money, the Offer Investigator should determine when the loan will be received and the payment terms of the offer should provide for payment of the borrowed portion at the time the funds are received.
For those taxpayers who agree to shorter payment terms, fewer months of future income is required:
Payment Type Payment Terms Number of Months Future Income Required
Cash Within 90 calendar days 48
Short term Deferred Within 2 years 60
Deferred Payment Within time remaining on the statute Number of months remaining on the statute
There are three possibilities for deferred payment terms:
Payment of an amount equal to the net realizable equity (NRE) in assets within 90 calendar days and payment of the future income amount by monthly installments over the time remaining on the statutory period for collection, or
Payment of a portion of the net realizable equity (NRE) in assets within 90 calendar days and payment of the balance of the equity in assets and the future income amount by monthly installments over the time remaining on the statutory period for collection, or
Payment of the entire compromise amount by monthly installments over the time remaining on the statutory period for collection.
Note:
A third party source of funds may be required to make the portion of the monthly payment that is greater than we determined the taxpayer can afford from future income.
Exhibit 5.8.5-1 (09-01-2005)
Deferred Payments Limited by Short Statute
For example, the taxpayer has accrued the following tax liability:
MFT–Period CSED Liability
30-9312 07/20/2005 $29,000
30-9412 07/20/2005 $61,000
30-9512 09/27/2006 $ 8,900
30-9612 09/20/2007 $ 7,400
The offer was determined processable on May 31, 1999. The taxpayer has no equity in assets and can pay $300 per month.
MFT–Period Months on the statute Installments Due Installments Applied
30-9312 74 96 74
30-9412 74 203 0
30-9512 87 29 14
30-9612 99 24 12
Total 99
The amount collectible from future income is: $300 times 100 months = $30,000.
Exhibit 5.8.5-2 (09-01-2005)
Deferred Payments Limited by Small Amount Due
For example the taxpayer accrued the following liability:
MFT–Period CSED Liability
30-8912 07/20/2000 $100,000
30-9512 09/27/2006 $ 1,200
30-9612 09/20/2007 $ 600
The offer was determined processable on May 31, 1999. The taxpayer has no equity in assets and can pay $300 per month.
MFT–Period Months on the statute Installments Due Installments Applied
30-8912 14 333 14
30-9512 87 4 4
30-9612 99 2 2
Total 20
The amount collectible from future income is $300 times 20 months = $6,000.
Exhibit 5.8.5-3 (09-01-2005)
Deferred Payments Limited by Application of Payment From Equity in Assets
For example the taxpayer accrued the following liability:
MFT–Period CSED Liability
30-8912 07/20/2000 $30,000
30-9512 09/27/2006 $ 1,200
30-9612 09/20/2007 $ 600
The offer was determined processable on May 31, 1999. The taxpayer has $30,000 equity in assets which he will pay within 90 calendar days and can pay $300 per month which he will begin paying within 30 calendar days.
MFT–Period Months on the statute Installments Due Installments Applied
30-8912 13 0 0
30-9512 87 4 4
30-9612 99 2 2
Total 6
After applying the $30,000 payment for the equity in assets, the amount collectible from future income is $300 times 6 months = $1,800. Reasonable collection potential is $31,800.
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