Statute of Limitations Doesn’t Apply to Tax Fraud

CA-11: preparer’s fraudulent intent sufficient to keep limitations period open
Finnegan, (CA 11 6/11/2019) 123 AFTR 2d ¶ 2019-770
Affirming the Tax Court’s decision, the Eleventh Circuit Court of Appeals has ruled that the fraud exception to the 3-year statute of limitations on assessments applied where a married couple’s returns were fraudulently prepared by their preparer. The court also rejected the couple’s argument that the Tax Court abused its discretion by accepting the preparer’s out-of-court statement admitting his culpability.

Background. Code Sec. 6501(a) generally provides that a valid assessment of income tax liability may not be made more than 3 years after the later of the date the tax return was filed or the due date of the tax return. However, under one of several exceptions, Code Sec. 6501(c)(1) provides that the assessment period remains open indefinitely “in the case of a false or fraudulent return with the intent to evade tax” (the fraud exception).

In Allen, (2007) 128 TC No. 4, the Tax Court held that the limitations period for assessment is extended indefinitely under Code Sec. 6501(c)(1) if the return is fraudulent, even though it was the preparer rather than the taxpayer who had the intent to evade tax. The Court found that the plain meaning of Code Sec. 6501(c)(1) doesn’t require the fraud to be the taxpayer’s. Rather, the Code keys the unlimited extension of the limitations period to the fraudulent nature of the return, not to the identity of the perpetrator of the fraud.

The U.S. Court of Federal Claims has ruled that the Code Sec. 6501(c)(1) open limitation period is restricted to instances in which the taxpayers themselves have the intent to commit fraud. On appeal, the Federal Circuit affirmed. That Court said that the “intent to evade tax” is confined to the taxpayer’s intent. (BASR Partnership v. U.S., (CA Fed Cir 2015) 116 AFTR 2d 2015-5432, affg (Ct Fed Cl 2013) 112 AFTR 2d 2013-6313)

Facts. Tipped off by an informant, IRS discovered a tax return preparer and his associates had prepared hundreds of fraudulent returns every year for 11 years. The fraudulent returns had several common features. They showed large refunds and partnership losses. The large partnership losses flowed through to the individual returns, and there were deductions for contributions to retirement plans. The bogus returns also reflected payments between partnerships and their partners.

The returns of John and Joan Finnegan, prepared by the same return preparer, fit the fraudulent-return mold. For example, they formed a partnership to hold rental property but never transferred ownership of the property to the partnership, nor entered into a partnership agreement. They never wrote checks to the partnership nor did the entity write checks to them. But their returns showed a capital contribution, and large losses caused in part by a guaranteed payment to the partners.

The return preparer was indicted and pled guilty to conspiring to defraud the U.S. and to interfering with the administration of the internal revenue laws. He then testified against one of his former business associates and declared that “[e]ach and every one” of the returns he prepared during the relevant time “contain[ed] some fraudulent entries.” The Finnegans were not part of the grand jury investigation into the return preparer and his associates. Nor were their returns used to support the indictments against the return preparer and his associates.

Roughly five years after the dust settled in the criminal proceedings, IRS issued a notice of deficiency to the Finnegans for the eight years that they submitted fraudulent returns. In their petition to the Tax Court, the Finnegans claimed that IRS had missed the three-year collection window and thus was too late. They claimed the fraud exception didn’t apply because IRS didn’t have enough evidence to show that the Finnegans’ fraudster return preparer had falsely or fraudulently prepared their returns. Citing Allen, IRS responded that the fraud exception to the three-year window applied because there was clear evidence that the return preparer had fraudulently prepared the Finnegans’ returns with intent to evade tax. The Finnegans never challenged Allen.

While the Finnegans’ case was submitted, but before the Tax Court issued its decision, the Federal Circuit affirmed the U.S. Court of Federal Claim’s BASR Partnership holding (see discussion above). IRS notified the Tax Court, and the Finnegans, about the Federal Circuit’s decision.

Tax Court. Relying on Allen, the Tax Court concluded that the fraud exception indeed was triggered, and the three-year window suspended, by the return preparer’s fraudulent intent. (Finnegan, TC Memo 2016-118) The Tax Court didn’t consider whether BASR Partnership undermined the result in Allen, and found that the latter case was controlling. The Tax Court also found that IRS had proven fraud with clear and convincing evidence. The Finnegans’ returns had many of the common elements that the fraudulent return preparer used when filling out bogus returns.

The Finnegans appealed, on two grounds. First, they argued that the fraud exception was triggered only when the taxpayer intended to evade tax; thus, they claimed the Tax Court erred when it found that the fraud exception was triggered by the return preparer’s intent to evade tax. In other words, they again argued Allen was wrongly decided. Second, they argued that the Tax Court abused its discretion by admitting the return preparer’s out-of-court statements (appearing as a witness in another proceeding against a former business associate, he said every return he prepared during the relevant period had some fraudulent entries), and by accepting the preparer’s affidavit testimony, in which he swore he had knowingly prepared false returns for the Finnegans.

Appeals Court. The Eleventh Circuit Court of Appeals rejected both arguments and affirmed the judgment of the Tax Court. The first argument failed because the Finnegans waived it before the Tax Court. They knew that IRS was relying on Allen and its holding, and they chose not to challenge it. They didn’t challenge it before, during, or after trial. In fact, in testimony, they explicitly told the Tax Court they accepted the result in Allen and were not challenging it.

As to the second argument, the appellate court agreed with the Tax Court that although the statements by the return preparer were hearsay, they satisfied the statement-against-interest exception to the ban on hearsay.

Under this exception, (1) the declarant must be unavailable to testify, (2) the statement must be “so contrary to the declarant’s proprietary or pecuniary interest” that a reasonable person would have made the statement only if he believed it was true, and (3) the statement must be “supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.”

The appellate court ruled that each of these three elements was present. The return preparer wasn’t available to testify, his statements exposed him to criminal and civil liability from former clients, and his statements were corroborated by the Finnegans’ own testimony regarding the preparer’s role, his former business associates’ testimony, and IRS’s investigating agent’s testimony about the preparer’s modus operandi. Thus, the Eleventh Circuit ruled that the Tax Court didn’t abuse its discretion by admitting the return preparer’s out-of-court statements.

References: For when the assessment period remains open indefinitely, see FTC 2d/FIN ¶ T-4127; United States Tax Reporter ¶ 65,014.13.

Pandemic or Nothing Burger?

The pandemic was a world-wide tragedy, a national tragedy and local tragedies everywhere, thousands of people died. It was terrible. The deaths were serious and I’m not making light of any of the genuine tragedies (i.e., retirement homes), but from my perspective, much of the tragedy could have been avoided with better qualified people running those cities & states. The nursing home fiasco was a tragedy. I read recently they accounted for 85% of all deaths. The average barber where I live would be better at running a  government than the people actually running the cities & states. Look at what’s going on in Seattle, New York, Chicago & other cities. Crime & homelessness were pretty big problems in those states & cities already, and now a lot of those cities may not survive. I’m reading about people abandoning big cities. I don’t blame them, but I hope they don’t move here. (Please God, not here.)

Real estate values are dropping in the cities and rising out here where I live. I have the best of all worlds. I have a national 7 figure practice with clients in 46 states & 5 countries, but I live in a spectacular paradise for outdoor enthusiasts. I have a spectacular view from my home, and I’m thinking about putting a $5 million price tag on it and seeing what happens.

For our firm, for all intents & purposes, the pandemic turned out to be a nothing burger.  We were actually busier during pandemic than we’ve ever been. PPP loans kept us busier than one armed paper hangers. That’s a gift that’s going to keep on giving until they’ve all been forgiven.

When pandemic happened, we just picked up a computer & a couple of monitors and took them home. We didn’t lose a day. We expected the biggest problem would be keeping everyone connected, but in the end, we probably over connected. We managed great with Microsoft Teams, Textus, email, regular texts & the old, reliable telephone. I recommend them all. We also kept sent numerous email newsletters to our clients to keep everyone in the loop. Some of them are so happy with us they sent us boxes of candy. (Thank you, we love you.) Believe it or not, sometimes we over communicated. There were times when all the incoming sounded like a machine gun. But such is the price of working with a great staff and a great clientele.

The biggest problem with going fully virtual was actually an unexpected benefit when the schools closed, because everyone was already at home. Today, we are all back at the office, but now everyone has the option of working from home whenever they want. Sometimes there are two or three kids running around the office. But we’ve always been a noisy office, so it works.

I read a survey about how CPA firms are handling everything. My take is about half are doing fine and the rest are not going broke. We have been virtual for years with everything in place. We don’t have very many clients in this very great place where we live, most of them are somewhere else. I’ve been trying to buy practices, and very few good practices are for sale. My gut feeling is very few weathered the storm as well as we did, but very few have already gone broke.  We’ll see how it all breaks over the rest of the year as the economy shakes itself out.

If you’re a CPA and want to sell your practice, get in touch with me. You can save the commission.

For us, we’re happy and optimistic. But this is no time to get sloppy.


One thing is certain, paying more tax than the law requires will not improve your chances of surviving. Re-arranging client affairs & re-organizing client businesses opens doors to extensive tax avoidance. Every dollar saved drops straight to the bottom line as another dollar of cash, profit, working capital & competitive advantage, and improves your chance of surviving the 21st century.

Advice & Strategy You Can Rely On

Let’s face it, you don’t need a CPA, Your CPA doesn’t advise you. Do you really want advice from someone who never did anything besides prepare tax returns? With the imminent collapse of the oil & gas industry and other disruption, you need advice & strategy you can rely on, and that’s us.

Can Your Business Survive Pandemic?

Can your business survive pandemic turmoil?

These are the times that try men’s souls.” [Thomas Paine.]

“There are decades where nothing happens; & then there are weeks where entire decades happen.” [Vladimir Lenin.]

“The task is, not so much to see what no one has yet seen; but to think what nobody has yet thought, about that which everybody sees.” (Erwin Schrödinger.)

This is my area of expertise. All my life I have written, studied & talked about critical times in history that tore away & rebuilt the fabric of society. It was a topic I had extreme interest in & directed my career as much as possible towards. The last time this happened, the Rothschilds rose from poverty in the Frankfurter Judengasse ghetto to become ‘Greater than Kings’. Every monarchy was torn down, by guillotine (French), slaughter (Russian) or revolt (English) & replaced by the administrative bureaucracy that became the Deep State. Now it’s changing again. Resisting won’t work. Going with the flow may. DM me.

I may be the only person in the world fully prepared, trained, experienced with the expertise, intellect, creativity & in-place infrastructure to provide effective guidance to survive & thrive in the chaotic, disruptive 21st century. I may be able to save your bacon.

If you want to survive, DM today.

In my prior life, last week, I was a tax avoidance expert. I can save you enormous amounts of tax. Since them goals have since changed to survival. However, saving tax is not contrary to saving your business. They can work together.

Rule #1. Keep your heads clear when others are losing theirs.
Rule #2.The only thing we have to fear is fear itself.
Rule #3. Nothing is inevitable.
Rule #4. Operate frugally.
Rule #5. This is going to be exciting.


Robert Ellis
(970) 778-1955

• Clients in 46 states & 3 countries
• Thought Leadership
• Mensa
• Genius Intellect
• 4 + decades experience

Crisis Management

Will your business survive COVID-19?

Keep your heads when everyone else is losing their’s. The only thing we have to fear is fear itself. Nothing is inevitable. Right now, everyone is in crisis management. For us, it’s just another day at the office, despite the fact we are now working from home.

Follow this blog to get tips on crisis management to survive the pandemic & the financial meltdown.

Draft in process … Blind Faith

It’s not my purpose to insult business owners & CEO’s, but it is my intention to wake up a few of them to the dangerous road they are following.

There’s an abnormal aberration (but I repeat myself) among business owners & CEO’s that startles me, and quite frankly, shatters my confidence in the long term viability of private businesses in the competitive marketplace. It’s perfectly obvious why the SBA & GAO report that most businesses pay more tax than the law requires, at higher tax rates than the Global 500 pays.

Let me start at the beginning.

Several years ago, I became aware of a little known tactic used primarily by the biggest companies in the world, the Global 500. This was the use of tax strategies to cut their taxes.

I believe that Apple was the first proponent of tax strategies, but I have no idea. It isn’t something that a company would make public.

Large Firms vs Small Firms

Reversion to Mediocrity

Or The Law of Averages.

Or Reversion to the mean.

Stunningly to casual observers, statistically, mathematically & realistically, the larger a tax firm is, the shoddier their performance. The smaller a firm is, the more likely they will outperform the larger firm.

But that doesn’t automatically make a small firm better than a larger firm. It depends on the average competence of their staff. In fact, I’d expect, generally speaking, large firms will generally outperform smaller firms. But that’s 100% due to their in-house processes, or operating manuals, and their insistence on operating according too those manuals & operating procedures. But that’s 100% due to my disappointment with the Lack of genuine competence among private practitioners. CPA profession.

Most people believe it’s just the opposite; that you can expect better results from larger firms than smaller firms. But that’s not the case.

Here’s the deal, the more people you have, the more difficult it is to hire top notch people. Eventually, 100% of the time, as your staff grows, your average performance will begin slipping as the talent you hire becomes less & less talented … It’s impossible to staff a large firm without that occurring.

But at Ellis we realized that earlier on, and we had some disappointing experiences that drove the point home. Now we keep our key staff we rely on, we keep it at a dozen or less. All of them are very bright people. That’s our culture. If they’re not bright, they’ll leave.

So we can keep our performance high when larger firms can’t.

A typical firm begins to grow because the owners are bright and outperform most competition. As the firm begins to grow, at first they just let it grow. But, after a few embarrassments, they begin limiting what staff can do. Eventually, they build operating procedure manuals which limit staff even more. Staff gets constrained but the owners sleep can sleep at night. They used to be known for their performance; now they’re known for being big.

The have reverted to mediocrity, just as statistics tell they will.

The lesson is, don’t be so eager to have a large, sophisticated tax & accounting firm. Look for a small to medium firm. Their performance is better.

Relationship Marketing is Evil

Or, tax professionals aren’t as good as they think they are. [Link]

We don’t know why businesses & their CEO’s hire the tax professionals the hire. But we know there’s a wide differential between the best person in the tax profession and the worst, or even an average professional. That won’t surprise anyone, but the amount of difference will startle you.After stumbling across an article in Business Insider about the surprising difference between a leading talent and an average talent, I did quite a bit of research and came up with this report [Here.] which I published a year ago. The Definitive Study on Human Performance.

RELATIONSHIP Marketing is a tool of the devil. It has wracked misery everywhere it gets a foothold. People who market by RELATIONSHIPs can’t be trusted because they don’t have your interests at heart, they are driven only by their own pecuniary interests. In a rational world, there would be no RELATIONSHIP marketing.

Every tax firm would be marketing on the basis of the RESULTS they get for their clients. But we obviously don’t live in a rational world. By leaps & bounds, the prevalence is, the average business selects tax professionals on the basis a

RELATIONSHIP. And they evaluate their tax professionals every year on the basis of that RELATIONSHIP. ELLIS achieves better results than the typical professional tax firm. We perform better than every firm that preceded us. We know that because we compare our returns with the previous guy’s returns.

Then one day we read in the Huffington Post and in a GAO report that most private businesses pay more tax at a higher rates than the Global 500. Subsequently we read a similar report from the SBA. But apparently no business read them. Because they are still paying more tax than the law requires at tax rates higher than the tax rates paid by theGlobal 500.

When I approach them about becoming their tax professional, these are the typical results. “I already got a a tax person. ‘Have a CPA already. “Robert, thanks but I have a company and friend that’s done them for years. “I’ve had the same great tax guy for years.”

We obviously don’t live in a rational world. In a rational world your taxes should be as low as they could possibly be because everyone would select a pax professional on the basis of RESULTS. But, that isn’t what they do. When I approach them with statistics showing that 99% of businesses pay more tax than the law requires, I get a blank stare. I get replies like , “I’ve used my guy for 27 years.” Or, “My tax guy is a good friend.” Never even a mention about results.

I don’t know what they think. Maybe they think I’m lying. Maybe they think they’re the one exception in a hundred. Maybe they don’t want to embarrass their tax preparer. But I suspect, they simply don’t care. They simply don’t want to know, the head in the sand approach. They just want to get out of the conversation as quickly as they can.

99% of private businesses pay more tax than the law requires. The rest don’t pay any tax.