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FinanceExperts.us is an association of the leading authorities in the fields of Accounting, Law, Taxation, Finance, Insurance and related fields who can help you with "tax reduction strategies", "IRS audits defense", "IRS Offers in Compromise", reducing "IRS penalties and interest" and any other tax problems you may be facing. These experts can help you understand 412 and "419 plans" and can offer advice about dealing with "listed transactions", abusive "tax shelters" and "welfare benefit plans".
419 412i "listed transactions" "form 8886" 6707A "tax shelters" "IRS audit defense" "expert witness irs help" "welfare benefit plan help" "419 plan help" "irs penalty abatement" "fight the irs" "412i retirement plans" "tax resolution services" "irs problem solvers" "how to avoid irs audit" "abusive tax shelter help"Some of our prominent members include "Expert Witness" "Lance Wallach", the National Society of Accountants Speaker of the Year and best selling financial author; Ira Kaplan, ESQ., CPA who is the leading legal expert on "welfare benefit plans"; and Ronald Noll, MS, CPA, CEA, the past President of an accounting society that helped Congress write the Taxpayer Bill of Rights.
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"Lance Wallach", Managing Director
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Mill Trust" Benistar "SADI Trust" "Beta 419"
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Ronald L. Noll, MS, CPA, CEA
~ Helped Congress Write the "Taxpayers Bill of Rights"
~ CPA and Investment Advisor for 40 Years
~ Past National President of Accounting Society
~ Author of AICPA Course on Taxation and Use of Private Annuity Trusts
~ Real Estate "Tax Expert" and Investor
~ Expert in Wealth Accumulation, Preservation and Transfer
Ira Kaplan, Esq., CPA,MBA
- One of America’s leading authorities on "419 plans" and "412 plans"
- Expert on fighting "IRS fines and penalties" and "Circular 230" fines for accountants. Contributor to Lance Wallach's "Circular 230" book, (recently published by the American Institute of Certified Public Accountants) and to many of Lance Wallach's numerous other books
- Expert on arbitration hearings and on lawsuits related to bad financial products described and regulated by Sections 419 and 412 of the Internal Revenue Code
Matt Tuttle, MBA, certified financial planner
- Co-authored, with Lance Wallach, a best selling book on advanced financial planning and business strategies that was recently published by the American Institute of Certified Public Accountants.
- Noted speaker and author
Click here to contact this expert.
Frank Jaffee, CFP
- One of New Jersey’s leading financial planners
Click here to contact this expert.
Mel Kushel, CPA
- More than half a century of accounting experience
- Extensive practical business knowledge
- One of Long Island’s leading CPAs
Timothy M. Foster, JD, MST
- Tim Foster's group focuses on leading edge, sophisticated, and safe business strategies that will help business owners structure, operate and maintain their business to take advantage of business and tax laws rather than being encumbered by them.
- Tim is a nationally recognized expert in the areas of strategic tax planning, asset protection strategies, business succession and exit planning, and wealth building strategies.
- Featured speaker at industry trade shows, radio shows, and dozens of featured articles in professional trade journals, and trade publications.
- Tim has worked with business owners in 45 states.
Click here to contact this expert
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Advisor
Accountants, insurance professionals and others need to be careful that they
don’t become what the IRS calls material advisors. If they sell or give advice,
or sign tax returns for abusive, listed or similar plans; they risk a minimum
$100,000 fine. Their client will then probably sue them after having dealt with
the IRS.
In 2010, the IRS raided the offices of Benistar in Simsbury, Conn., and seized
the retirement benefit plan administration firm’s files and records. In
McGehee Family Clinic, the Tax Court ruled that a clinic and shareholder’s
investment in an employee benefit plan marketed under the name “Benistar”
was a listed transaction because it was substantially similar to the
transaction described in Notice 95-34 (1995-1 C.B. 309). This is at least the
second case in which the court has ruled against the Benistar welfare benefit
plan, by denominating it a listed transaction.
The McGehee Family Clinic enrolled in the Benistar Plan in May 2001 and
claimed deductions for contributions to it in 2002 and 2005. The returns did
not include a Form 8886, Reportable Transaction Disclosure Statement, or
similar disclosure. The IRS disallowed the latter deduction and adjusted the
2004 return of shareholder Robert Prosser and his wife to include the
$50,000 payment to the plan. Click here to read more.
California Broker, June 2011
Employee Retirement Plans
By Lance Wallach
412i, 419, Captive Insurance and Section 79 Plans; Buyer Beware
The IRS has been attacking all 419 welfare benefit plans, many 412i retirement plans, captive insurance plans with life insurance in them, and Section 79 plans. IRS is aggressively auditing various plans and calling them “listed transactions,” “abusive tax shelters,” or “reportable transactions,” participation in any of which must be disclosed to the Service. The result has been IRS audits, disallowances, and huge fines for not properly reporting under IRC 6707A.
In a recent tax court case, Curico v. Commissioner (TC Memo 2010-115), the Tax Court ruled that an investment in an employee welfare benefit plan marketed under the name “Benistar” was a listed transaction. It was substantially similar to the transaction described in IRS Notice 95-34. A subsequent case, McGehee Family Clinic, largely followed Curico, though it was technically decided on other grounds. The parties stipulated to be bound by Curico regarding whether the amounts paid by McGehee in connection with the Benistar 419 Plan and Trust were deductible. Curico did not appear to have been decided yet at the time McGehee was argued. The McGehee opinion (Case No. 10-102) (United States Tax Court, September 15, 2010) does contain an exhaustive analysis and discussion of virtually all of the relevant issues. Read more hereLate breaking news: Large 419 plan Millennium files for Bankruptcy.
Recent court cases and other developments have highlighted serious problems in plans, popularly know as Benistar, issued by Nova Benefit Plans of Simsbury, Connecticut. Recently unsealed IRS criminal case information now raises concerns with other plans as well. If you have any type plan issued by NOVA Benefit Plans, U.S. Benefits Group, Benefit Plan Advisors, Grist Mill trusts, Rex Insurance Service or Benistar, get help at once. You may be subject to an audit or in some cases, criminal prosecution.
On November 17th, 59 pages of search warrant materials were unsealed in the Nova Benefit Plans litigation currently pending in the U.S. District Court for the District of Connecticut. According to these documents, the IRS believes that Nova is involved in a significant criminal conspiracy involving the crimes of Conspiracy to Impede the IRS and Assisting in the Preparation of False Income Tax Returns. Read more here
June 2011
The IRS is cracking down on what it considers to
be abusive tax shelters. Many of them are being marketed to small business
owners by insurance professionals, financial planners and even accountants and
attorneys. I speak at numerous conventions, for both business owners and
accountants. And after I speak, I am always approached by many people who have
questions about tax reduction plans that they have heard about. Below are the most
common 419 tax reduction insurance plans.
These come in various versions, and most of them
have or will get the participant audited and the salesman sued. They
purportedly allow the business owner to make a large tax-deductible
contribution, and some or all of the contribution pays for a life insurance
product. The IRS has been disallowing most versions of these plans for years,
yet they continue to be sold. After everyone gets into trouble and the
insurance agents get sued, the promoters of the abusive versions sometimes
change the name of their company and call the plan something else. The
insurance companies whose policies are sold are legitimate companies. What
usually is not legitimate is the way that most of the plans are operated. There
can also be a $200,000 IRS fine facing the insurance agent who sold the plan if
Form 8918 has not been properly filed. I've reviewed hundreds of these forms
for agents and have yet to see one that was filled out correctly.
When the IRS audits a participant in one of
these plans, the tax deductions are lost. There is also the interest and large
penalties to consider. The business owner can also be facing a $200,000-a-year
fine if he did not properly file Form 8886. Most of these forms have been
filled out improperly. In my talks with the IRS, I was told that the IRS
considers not filling out Form 8886 properly almost the same as not filing at
all.
412(i) retirement plans
The IRS has been auditing participants in these
types of retirement plans. While there is generally nothing wrong with many of
the newer plans, the IRS considered most of the older abusive plans. Forms 8918
and 8886 are also required for abusive 412(i) plans.
I have been an expert witness in a lot of these
419 and 412(i) lawsuits and I have not lost one of them. If you sold one or
more of these plans, get someone who really knows what they are doing to help
you immediately. Many advisors will take your money and claim to be able to
help you. Make sure they have experience helping agents that have sold these
types of plans. Don't let them learn on the job, with your career
and money at stake.
Do not wait for IRS to come and get you, or
for your client to sue you. Time is of the essence. Most insurance
professionals need help to correct their improperly completed Form 8918 or to
fill it out properly in the first place. If you have not previously filled out
the form it is late, and therefore you should immediately seek assistance.
There are plenty of legitimate tax reduction insurance plans out there. Just
make sure that you know the history of the people with whom you conduct
business.
Remember, if something looks too good to be true,
it usually is. Be careful.
Lance Wallach, the National Society of
Accountants Speaker of the Year, speaks and writes extensively about retirement
plans, Circular 230 problems and tax reduction strategies. He speaks at more
than 40 conventions annually, writes for over 50 publications, is quoted
regularly in the press, and has written numerous best-selling AICPA books,
including Avoiding Circular 230 Malpractice Traps and Common Abusive Business
Hot Spots. Contact him at 516.938.5007 or visit www.vebaplan.com.
The information provided herein is not intended as
legal, accounting, financial or any other type of advice for any specific
individual or other entity. You should contact an appropriate professional for
any such advice.
Lance Wallach Newsletter July 2011
419, 412i, Captive Insurance and section 79 plans continue to get large IRS fines.
By Lance Wallach
Life insurance agents recently have started pushing the newest variety of high ticket items. After the IRS has almost put 419 plans out of business and severely curtailed abusive 412i plans they needed another way to sell large commission life insurance policies. Many of the promoters of the 419 and 412i plans are now promoting section 79 and captive insurance plans. They claim that these plans allow businesses to tax deduct life insurance. These promoters as in the past claim, that most of the benefits would be for the business owners. I have been an expert witness in many cases against these abusive plans and my side has never lost a case.
Recently my office has been receiving over fifty calls per month from people that are being threatened with large IRS fines. Most of these people (including CPAs) do not understand why this is happening. These fines are primarily the result of greed. Insurance company, insurance agent, plan promoter and even IRS greed. Insurance companies are always looking for ways to sell large amounts of life insurance. Taxpayers are constantly looking for larger tax deductions. Insurance agents want to earn large life insurance commissions. The IRS has started additional enforcement action against taxpayers and accountants. Read more hereHow to Avoid IRS Fines for You and Your Clients
Published: 2010/2011
By Lance Wallach
Beware: The IRS is cracking down on small-business owners who participate in tax-reduction insurance plans sold by insurance agents, including defined benefit retirement plans, IRAs, and even 401(k) plans with life insurance. In these cases, the business owner is motivated by a large tax deduction; the insurance agent is motivated by a substantial commission.
A few years ago, I testified as an expert witness in a case in which a physician was in an abusive 401(k) plan with life insurance. It had a so-called “springing cash value policy” in it. The IRS calls plans with these types of policies “listed transactions.” The judge called the insurance agent “a crook.”
If your client was currently is in a 412(i), 419, captive insurance, or Section 79 plan, they may be in big trouble. Accountants who signed a tax return for a client in one of these plans may be what the IRS calls a “material advisor” and subject to a maximum $200,000 fine.Read more here!
Offshore International Today Aug 2011
FBAR Offshore Bank Accounts and Foreign Income Attacked by IRS
By: Lance Wallach
You may want to think about participation in the IRS’ offshore tax amnesty program (called the Offshore Voluntary Disclosure Initiative). Do you want to play audit roulette with the IRS? Some clients think they are too small to be prosecuted. They are wrong.
To the average businessperson, only the guys with tens of millions secretly stashed in Swiss bank accounts get prosecuted. Don't tell that to Michael Schiavo. He was just prosecuted for hiding money in a Swiss account back in 2003. How much money does the IRS say he hid? A whopping $90,000. That’s it.
But wait, there is more to the story. Schiavo attempted to do a quiet disclosure during the 2009 amnesty but instead of filling out the amnesty paperwork, he simply trusted that by coming forward voluntarily he could avoid criminal prosecution. He was wrong on all counts. Nothing is too small for the IRS, and nothing is too old.
“So, to save a whopping $40,624 in taxes, this guy risked a felony conviction and prison time, not to mention steep penalties that could very easily eat up the entire $90,000, and also his criminal and civil defense costs.
The smart taxpayers are the ones coming forward and not having to look over their shoulders for the next 10 years.
Time is running out. The tax amnesty runs through August but it takes at least days to jump through all the hoops. We will also fight hard to reduce the penalties down even more. Remember, the IRS can go as low as 5%. Don’t want this to happen to you? Visit www.taxadvisorexpert.com today!
IRS Audits 419, 412i, Captive Insurance Plans With Life Insurance, and Section 79 Scams
By Lance Wallach June 2011
The IRS started auditing 419 plans in the ‘90s, and then continued going after 412i and other plans that they considered abusive, listed, or reportable transactions, or substantially similar to such transactions.
In a recent Tax Court Case, Curcio v. Commissioner (TC Memo 2010-115), the Tax Court ruled that an investment in an employee welfare benefit plan marketed under the name “Benistar” was a listed transaction in that the transaction in question was substantially similar to the transaction described in IRS Notice 95-34. A subsequent case, McGehee Family Clinic, largely followed Curcio, though it was technically decided on other grounds. The parties stipulated to be bound by Curcio on the issue of whether the amounts paid by McGehee in connection with the Benistar 419 Plan and Trust were deductible. Curcio did not appear to have been decided yet at the time McGehee was argued. The McGehee opinion (Case No. 10-102) (United States Tax Court, September 15, 2010) does contain an exhaustive analysis and discussion of virtually all of the relevant issues.
Taxpayers and their representatives should be aware that the Service has disallowed deductions for contributions to these arrangements. The IRS is cracking down on small business owners who participate in tax reduction insurance plans and the brokers who sold them. Some of these plans include defined benefit retirement plans, IRAs, or even 401(k) plans with life insurance.
In order to fully grasp the severity of the situation, one must have an understanding of Notice 95-34, which was issued in response to trust arrangements sold to companies that were designed to provide deductible benefits such as life insurance, disability and severance pay benefits. The promoters of these arrangements claimed that all employer contributions were tax-deductible when paid, by relying on the 10-or-more-employer exemption from the IRC § 419 limits. It was claimed that permissible tax deductions were unlimited in amount.
In general, contributions to a welfare benefit fund are not fully deductible when paid. Sections 419 and 419A impose strict limits on the amount of tax-deductible prefunding permitted for contributions to a welfare benefit fund. Section 419A(F)(6) provides an exemption from Section 419 and Section 419A for certain “10-or-more employers” welfare benefit funds. In general, for this exemption to apply, the fund must have more than one contributing employer, of which no single employer can contribute more than 10% of the total contributions, and the plan must not be experience-rated with respect to individual employers.
According to the Notice, these arrangements typically involve an investment in variable life or universal life insurance contracts on the lives of the covered employees. The problem is that the employer contributions are large relative to the cost of the amount of term insurance that would be required to provide the death benefits under the arrangement, and the trust administrator may obtain cash to pay benefits other than death benefits, by such means as cashing in or withdrawing the cash value of the insurance policies. The plans are also often designed so that a particular employer’s contributions or its employees’ benefits may be determined in a way that insulates the employer to a significant extent from the experience of other subscribing employers. In general, the contributions and claimed tax deductions tend to be disproportionate to the economic realities of the arrangements.
Benistar advertised that enrollees should expect to obtain the same type of tax benefits as listed in the transaction described in Notice 95-34. The benefits of enrollment listed in its advertising packet included:
- Virtually unlimited deductions for the employer;
- Contributions could vary from year to year;
- Benefits could be provided to one or more key executives on a selective basis;
- No need to provide benefits to rank-and-file employees;
- Contributions to the plan were not limited by qualified plan rules and would not interfere with pension, profit sharing or 401(k) plans;
- Funds inside the plan would accumulate tax-free;
- Beneficiaries could receive death proceeds free of both income tax and estate tax;
- The program could be arranged for tax-free distribution at a later date;
- Funds in the plan were secure from the hands of creditors.
The Court said that the Benistar Plan was factually similar to the plans described in Notice 95-34 at all relevant times. In rendering its decision the court heavily cited Curcio, in which the court also ruled in favor of the IRS. As noted in Curcio, the insurance policies, overwhelmingly variable or universal life policies, required large contributions relative to the cost of the amount of term insurance that would be required to provide the death benefits under the arrangement. The Benistar Plan owned the insurance contracts.
Following Curcio, as the Court has stipulated, the Court held that the contributions to Benistar were not deductible under section 162(a) because participants could receive the value reflected in the underlying insurance policies purchased by Benistar—despite the payment of benefits by Benistar seeming to be contingent upon an unanticipated event (the death of the insured while employed). As long as plan participants were willing to abide by Benistar’s distribution policies, there was no reason ever to forfeit a policy to the plan. In fact, in estimating life insurance rates, the taxpayers’ expert in Curcio assumed that there would be no forfeitures, even though he admitted that an insurance company would generally assume a reasonable rate of policy lapses.
The McGehee Family Clinic had enrolled in the Benistar Plan in May 2001 and claimed deductions for contributions to it in 2002 and 2005. The returns did not include a Form 8886,Reportable Transaction Disclosure Statement, or similar disclosure.
The IRS disallowed the latter deduction and adjusted the 2004 return of shareholder Robert Prosser and his wife to include the $50,000 payment to the plan. The IRS also assessed tax deficiencies and the enhanced 30% penalty totaling almost $21,000 against the clinic and $21,000 against the Prossers. The court ruled that the Prossers failed to prove a reasonable cause or good faith exception.
More you should know:
- In recent years, some section 412(i) plans have been funded with life insurance using face amounts in excess of the maximum death benefit a qualified plan is permitted to pay. Ideally, the plan should limit the proceeds that can be paid as a death benefit in the event of a participant’s death. Excess amounts would revert to the plan. Effective February 13, 2004, the purchase of excessive life insurance in any plan is considered a listed transaction if the face amount of the insurance exceeds the amount that can be issued by $100,000 or more and the employer has deducted the premiums for the insurance.
- A 412(i) plan in and of itself is not a listed transaction; however, the IRS has a task force auditing 412i plans.
- An employer has not engaged in a listed transaction simply because it is a 412(i) plan.
- Just because a 412(i) plan was audited and sanctioned for certain items, does not necessarily mean the plan engaged in a listed transaction. Some 412(i) plans have been audited and sanctioned for issues not related to listed transactions.
Companies should carefully evaluate proposed investments in plans such as the Benistar Plan. The claimed deductions will not be available, and penalties will be assessed for lack of disclosure if the investment is similar to the investments described in Notice 95-34. In addition, under IRC 6707A, IRS fines participants a large amount of money for not properly disclosing their participation in listed, reportable or similar transactions; an issue that was not before the Tax Court in either Curcio or McGehee. The disclosure needs to be made for every year the participant is in a plan. The forms need to be properly filed even for years that no contributions are made. I have received numerous calls from participants who did disclose and still got fined because the forms were not filled in properly. A plan administrator told me that he assisted hundreds of his participants file forms, and they still all received very large IRS fines for not properly filling in the forms.
IRS has been attacking all 419 welfare benefit plans, many 412i retirement plans, captive insurance plans with life insurance in them and Section 79 plans.
Lance Wallach, National Society of Accountants Speaker of the Year and member of the AICPA faculty of teaching professionals, is a frequent speaker on retirement plans, abusive tax shelters, financial, international tax, and estate planning. He writes about 412(i), 419, Section79, FBAR, and captive insurance plans. He speaks at more than ten conventions annually, writes for over fifty publications, is quoted regularly in the press and has been featured on television and radio financial talk shows including NBC, National Pubic Radio’s All Things Considered, and others. Lance has written numerous books including Protecting Clients from Fraud, Incompetence and Scams published by John Wiley and Sons, Bisk Education’s CPA’s Guide to Life Insurance and Federal Estate and Gift Taxation, as well as the AICPA best-selling books, including Avoiding Circular 230 Malpractice Traps and Common Abusive Small Business Hot Spots. He does expert witness testimony and has never lost a case. Contact him at 516.938.5007, lawallach@aol.com or visit www.vebaplan.com.
Lance
Wallach
68 Keswick Lane
Plainview, NY 11803
Ph.: (516)938-5007
Fax: (516)938-6330 www.vebaplan.com
National Society of Accountants Speaker of The Year
The information provided herein is not intended as legal, accounting, financial
or any type of advice for any specific individual or other entity. You should
contact an appropriate professional for any such advice.