PERILS OF DISASTER TAX REPORTING ERRORS
Casualty reporting errors on tax returns often turn out to be costly. … A disaster after the disaster! Why do they occur?
Many people who experience a catastrophic event face their circumstances with quiet resolution. They just want to move on. The tax reporting is not their first or second concern. These events often result in the destruction of a home or a source of business income. Beyond their facade of strength is often a person in psychological shock, a world shattered. People who experience a catastrophic event are vulnerable and need to rely on professionals who can assist and guide them through the recovery process. They have to make decisions while they are in a state of mind that most people in a comparable situation would be cautioned to refrain from making these major decisions until they are in a better psychological place.
Unfortunately, they must make these major decisions quickly. Family structures are often at risk, living conditions must be addressed. For businesses, customers could be lost. There is a need to return the family (personal and/or business) to pre-event conditions as soon as possible. But usually, it is never the same.
The decisions involve significant assets. The emotional investment in the destroyed assets may be greater than the financial investment.
A methodical pre-planned process is best. If there had been good pre-planning full recovery might be possible, but usually that is not the way it happens. A home is the center of family life, I know from personally having experienced the 1994 Northridge Earthquake near its epicenter. Since then it has been a goal of this tax professional to provide people who experience these traumatic physical losses an unbiased source of income tax information to assist those affected in enduring the process of recovery.
The recovery process is like a three legged stool. The legs in the recovery stool:
1 Settlement of insurance claims,
2 Physical and emotional recovery, and
3 Dealing with the income tax consequences.
From my own experience of dealing with the post-event responsibilities after a large-scale disaster, I know that the first two legs are the ones that need to be handled on a priority basis. The tax consequences cannot be ignored as; but they must be acknowledged early on in the process. Delayed attention may create major tax liabilities that could otherwise be affected. Tax benefits could be lost or impact the recovery finances. Tax returns must be filed annually; there is no provision that relieves taxpayers from filing tax returns during a protracted recovery process. No exclusions or unusual delays are permitted for taxpayers who experience a catastrophic loss.
Most topics I write about discuss the positive ways to deal with these matters. There have been two articles that deal with errors in tax reporting:
“Why can’t it just be done right the first time?”
“Can the IRS make a mistake?”
While the relevant sections of the Internal Revenue Code dealing with these matters are considered “relief provisions,” with compassionate rules that favor the taxpayer and not the collection of taxes, that does not mean that taxpayers cannot “mess up” and unwittingly incur significant tax consequences. Getting tax preparation assistance from someone who does not have a comprehensive understanding of the tax rules for these situations can also lead to problems. Attending to the tax consequences must be addressed starting on day one. Meet with a knowledgeable tax professional to determine and develop a process for recovering that includes maximizing the overall available tax benefits and avoids the pitfalls.
The Internal Revenue Service rules for the deductibility of a casualty loss include specifying what happened in order to claim a loss and defines the documentation required to support the finality of the deduction. When a Disaster is Declared at the federal level, then as tax professionals, we know that it is a casualty under the Internal Revenue Code and it qualifies as an involuntary conversion if a gain arises. Yet, two conditions must be met to claim a casualty loss:
The event (fire, flood, tornado, earthquake…) has occurred and
It is a “closed transaction.”
Once those two conditions have been satisfied, a computed loss has been sustained. Then the loss is deducted in the year it is sustained. It can be complicated to verify what is meant by a “closed transaction.” Generally, that means that the insurance claim process is finalized. This does not necessarily require that all the insurance funds have been disbursed. It does mean that the taxpayer has identified all the proceeds that will be collected and all the sources such as third parties who were negligent, has settled any claims. Sometimes third party responsibility does not come to light until after a tax return has been filed. That creates an adjustment in a subsequent tax year when the third party claim is settled.
Here is a list of income tax return errors created by taxpayers, but mostly created by inexperienced tax professionals.
Most of the errors generated by professionals seem to arise out of a misplaced sense of compassion. They want to create tax refunds for their clients so the clients can increase their chances of recovering from the event. But they don’t see how that decision may become a second disaster two or three or more years later when those tax refunds have to be paid back, often at twice the original benefit that was received. Why? The original tax benefit was received at a low tax rate and the repayment, by the very nature of the calculation, is at a much higher rate.
It is important to understand the difference between the receipt of proceeds and the taxation of those proceeds. Some tax professionals see the receipt of funds after the initial settlement process as automatically taxable. This is not necessarily the outcome.
A taxpayer had a small loss as a result of casualty deduction. Several years later, after a third party was identified and ultimately paid large amounts to those who lost their assets in the original disaster. The CPA made a cavalier decision to have the taxpayer pay tax on 100% of the proceeds that they received from the third party litigation, without regard to the underlying substance of the claim. The result was that the CPA caused the taxpayer to overpay taxes on the proceeds by over $50,000. The IRS agreed that the taxpayer had overpaid taxes and refunded the taxpayer the overpayment after an in-depth office audit of the claim.
In one recent case a taxpayer “saved” approximately $18,000 in taxes over a four year period from a major loss that was carried forward for several years. But, the taxpayer was facing a reversal of those “benefits” that would involve tax liabilities of over $47,000, thus paying back more than 2.5 times the original tax refunds. This was all due to a tax professional not asking the right questions and making large errors in the preparation of the original loss deduction statement. Additionally, the tax professional did not review the possibility of the recovery of the loss or the actual benefit the loss deduction was generating. (In this case the tax preparer sent the taxpayers to me once the loss reversal was brought to her attention.)
Over the past several years I have seen several repetitive errors with results similar to that described in the last paragraph. Some can be corrected at a price and some are unfortunate mistakes that cost the taxpayer dearly and have long-term consequences:
Here are errors where the initial tax deduction was claimed that should not have been claimed.
EXPECTATION of INSURANCE PROCEEDS
Casualty losses have been claimed that do not take into consideration the realistic potential of additional insurance reimbursements. In some cases additional, undisclosed insurance proceeds have actually been received prior to the return being filed and yet the insurance proceeds are ignored or under reported. Such an error can change a loss to a gain with drastic implications for taxpayers.
A loss “flipping” to a gain is not a terrible outcome. The gain can be reported as an involuntary conversion, deferring the gain. Additionally, if the gain relates to a primary residence, up to $500,000 of gain might be subject to total exclusion. But, the computations must be made and the results reported properly on a tax return.
UNDERSTANDING INSURANCE COVERAGE
In some cases the extent of the potential insurance recovery was not adequately analyzed. Expected proceeds were reported that were unrealistically low. This resulted in claiming a casualty loss deduction that subsequently was required to be reported as income. This can be a financial hardship, (Also see the entry in blog [www.AccountantForDisasterRecovery.com]: “Don’t Rush to Deduct” for a detailed discussion of this type of situation.
TIMING the REPORTING of a LOSS
If there is a deductible loss, generally, it is deductible in the year the loss event occurred. Under “disaster” situations the loss can be deducted on a return for the year prior to the year of the actual loss in some instances. For casualty losses, it is rarely deducted in a later year. Yet I have seen losses deducted in the wrong tax year. This is an error and requires a correction. If the loss is not “settled” in the year of the loss event, it may be necessary to delay the deduction to a subsequent year.
DETERMINING COST BASIS
“Cost Basis” is an important component in determining a possible casualty loss deduction. Generally, “Cost Basis” is the amount originally paid for the asset lost. Fair market value (at the date of the event) might be higher or lower than purchase cost. A lower fair market value (at the date of the event) amount, called “Adjusted Cost Basis,” substitutes as the cost when fair market value has declined for personal use assets. Generally, “personal contents” or vehicles are not worth the original purchase cost. Although items like antiques, and artwork may not decline in value.
“Cost Basis” is not the fair market value shown on a recent appraisal used to refinance the home. The erroneous use of an appraisal value can lead to an inflated (overstated) cost basis. That inflated amount can generate an excessive, unsupportable loss claim.
For personal use real estate, the land, land improvements and structures are considered as a single “integral unit” by the IRS. To demonstrate what that means, assume twenty years ago a lot was purchased for $300,000 and a home and landscaping were added at an additional cost of $350,000 for the home and $50,000 for the landscaping. A total investment of $700,000 is the cost basis. At the time of the casualty loss that destroyed all of the structures but none of the landscaping, the property was valued at $1,000,000. After the casualty, the remaining land and landscaping had a value of $400,000. The economic loss was $600,000 ($1,000,000 less $400,000). The deductible loss would be $600,000 as that is less than the total $700,000 cost. After the loss there is a remaining cost basis for the land and landscaping of $100,000 ($700,000 cost less $600,000 loss). The inclusion of the land and landscaping cost is allowed for personal use real estate even though the loss computation results in $250,000 of the original land and landscaping cost being written off as part of the loss.
VALUATION OF ASSET BEFORE and AFTER the CASUALTY EVENT
The two values of fair market value (immediately before and immediately after the loss event), seem to be taken very “lightly” by some tax professionals. The importance of these amounts cannot be overemphasized. These amounts will have an important impact on the overall loss computation. There are two accepted methods of arriving at the amounts. However, when the Form 4684 is filled out to report the loss in a tax return, there is no declaration required as to the method that was selected. The method selected is only understood when supporting documentation is presented to a tax examiner. Much of the documentation should be included in the tax return; with e-filing, this supporting material would be a PDF attachment. It may be too late if the material is not included in the e-filed return. At that point the tax examiner may conclude that while one method was intended to be used, the documentation does not adequately support the deduction method. In fact, the IRS does not select the method used, but, if the method intended is not supported by the facts, the IRS will then make the selection based on what the facts appear to support. Usually, that means reducing the deduction. Here are the rules and how they are often violated:
The difference between the two amounts (“value immediately before the event” and the “value immediately after the event”) is the “economic loss.” The deductible loss is the lower of the “economic loss” or the “actual cost basis” of the property lost. In both instances the results are reduced by the amount of the insurance proceeds realized or estimated to be realized. If the “loss” less the insurance proceeds is greater than zero, there is a deducible loss. For personal losses, the loss will be reduced by $100.00 and 10% of Adjusted Gross Income. Adjusted Gross Income for individuals is the amount on the bottom of page one of Form 1040.
To arrive at the two amounts (“value immediately before the event” and the “value immediately after the event”), there are two acceptable methods described in the tax law. Case law acknowledges that it is not likely that these two methods will generate the same result.
“COST of REPAIRS” VALUATION METHOD (Not preferred by this tax professional)
In some cases the “cost of repairs” may be a useful method to arrive at a possible loss. Using this method requires that you “back” into the “value immediately after the event.” The reason is that the cost of repairs is subtracted from the “value immediately before the event” to arrive at the “value immediately after the event.”
That sounds simple. Not necessarily though. Some people think this method avoids the necessity of getting an appraisal. For a small loss being charged against a large cost basis, the cost of repairs might be used. For most insured losses, the insurance will probably cover the repairs and thus there will be no deductible loss. But for most personal residence disaster losses the lack of an appraisal does not work. The lower of the appraised value before the loss or the cost basis of the property is the upper limit of the possible loss. In the recent real estate market, it was quite possible that the “value immediately before the event” could be less than the cost basis.
A major problem in the execution of the “cost of repairs method” is actually embodied in its name: the “cost of repairs method.” It is not the “estimated cost of repairs method,” or “the estimated cost to be spent to fix and improve the property damaged method.” The costs must actually be incurred prior to claiming the deduction and only those costs required to bring the property back to its pre-event status will be considered in the computation of the cost of repairs. It is unlikely that the repairs are an exact replication of the damaged property. The tax law specifies that only those repair costs that return the property to its prior condition may be used in the computation of the cost of repairs. Deciding not to replicate some portion of the original property reduces the potential deduction. Making an alternative repair that is an efficient, but not a duplication of the original feature or structure can also be a problem as it does not return the property to its pre-event condition. In many cases, no repairs are made. Instead the taxpayer acquires a replacement property. If no repairs are made, no deduction is allowed.
It is possible that the repairs are not completed prior to the due date for filing the return. This situation results in the return having to be filed without the deduction. A statement should be included in the original return addressing the general facts of the loss without claiming a loss. Once the costs have been incurred and tallied, the return for the year of the loss cannot be amended to report the loss; the loss is deducted on the return for the year the repairs are completed, that is when it is “settled.” became settled. n most cases this process eliminates the ability to claim a loss on the return for the year prior to the year of the loss that is allowed in federally declared disasters. Additionally, the potential tax reductions are not available to the taxpayer to help pay for the rehabilitation of the property until later.
“APPRAISAL” VALUATION METHOD
The “appraisal method” is the better method to use; it does not have the problems of the “cost of repairs” method. But, for real property the “appraisal method” requires two actual appraisals by a qualified appraiser. Both appraisals can be incorporated into one appraiser’s report. The appraiser would provide the value immediately before and immediately after the event. In the case of major destruction, there may be problems for the appraiser to be able to arrive at opinions on the value after the loss. There may be temporary losses in value due to “temporary buyer resistance” that cannot be included in the value of the damaged property after the loss event. A qualified professional will have the expertise to complete the assignment.
I have prepared a report that is available to appraisers that discusses the unique requirements of “disaster appraisals” to conform to IRS rules.
For personal property, the appraisal may not be important unless there are high value items that were lost or damaged.
A problem arises when the tax professional does not instruct the taxpayer to secure the requisite appraisals. In that case the tax professional may simply pull amounts for the two values “out of the air” without actual substantiation – a tax professional is not an appraiser. This “expedient” action forces the taxpayer into the “cost of repairs” method but without the required support. As explained above the cost of repairs method requires certain performance and other documentation. Since the repairs have not been completed and the amount of the loss probably has no relation to the actual qualified cost of repairs, the taxpayer has significant tax reporting risks that have been created by the tax professional. The taxpayers may have lamented that they could not afford the cost of the appraisals and the tax professional wanted to help the client. Even though the tax professional has the best of intentions, the worst of results looms over the head of the taxpayer, loss of deduction, penalties and interest as well as a difficult IRS examination process.
One other appraisal problem looms over the taxpayer. How do you get an appraisal of a piece of real estate that prior to the disaster when the property is completely destroyed in the disaster? Sometimes photos are available. Maybe the appraiser has had prior recent experience with the property. Maybe there are county building permitting records that might be useful. In most cases the appraiser will be able to surmount the difficulties.
Sometimes, to assist a client, the tax professional will ignore or fail to discuss with the client the possibility of receiving additional compensation for the loss. The potential additional receipts may be sought from the insurance company or a third party who is believed to have some culpability for the loss. As pointed out above, the loss deduction is allowed once it is “sustained.” To be “sustained” the loss must have occurred and it must be a “closed transaction.” The transaction is closed only once all claims for compensation have been resolved or clearly abandoned.
Here are more details on these situations.
INSURANCE POLICY “REFORMATION”
There are several possible situations that provide additional proceeds in the process of settling an insurance claim.
There are various situations where the insurance company may agree to “reform” the insurance policy. Generally, reformation means retroactively changing the policy coverage to increase the benefits available to the policyholder either by increasing coverage or applying the benefits of a higher quality policy. Reformation could arise as a result of a clear determination that the policy limits or endorsements listed on the contract declaration page were unrealistic or incorrect based on what the policyholder thought was included and the owner apparently had no reason to exclude such coverage. To achieve the reformation, it might require a negotiation marathon by the policyholder, or it may require the assistance of an attorney. If this process is commenced, the transaction is not closed until the case is settled or clearly abandoned.
LAW SUITS – INSURANCE or OTHER NEGLIGENT PARTIES
In some instances it may be necessary to file a lawsuit against the insurance company or a third party believed to be responsible for the loss. The settlement may be consistent with the property loss and therefore treated as additional insurance proceeds. Or, the settlement or court judgment may be for damages that have nothing to do with the loss covered listed in the insurance policy or the actual damages and necessitate further analysis to determine if they are separately taxable or part of the property claim.
In all situations, an understanding of the full potential for proceeds may not be known at the time of filing a tax return. However, if negotiations are still in process or consideration is being given to filing a lawsuit, then the claim is not settled, the transaction is not closed.
The opposite may be true also, the original coverage may have been correct, but it turns out to be inadequate. The claim is in process but all proceeds have not been paid. The policyholder believes that all policy limits will be paid, but that still leaves a loss that will not be paid by insurance. In that case it is not unreasonable to deduct the remaining loss in excess of the coverage even though the insurance proceeds have not been fully paid. It is imperative in these situations to understand all available insurance coverage limits and assume that all of these limits will be paid. Once the policy limits are believed to be paid and there are still losses, those losses can be deducted, while waiting for the collection of the unpaid limits.
“DEEMED ELECTION TO REPLACE”
(But no deemed election to select replacement)
Sometimes the taxpayer decides to “hide” the insurance proceeds. The typical statement that is uttered: “The insurance company is not issuing a Form 1099, no one will know that I have received this (very large) check” (except that the deposit appears in the bank account). In such a case the “Deemed Election” comes into play.
Here is the “compassionate side” of the regulations: The “Deemed Election” is a special, but dangerous relief provision in the IRS regulations. If, as a result of the claim process and a determination of the cost basis of the property lost, there is a gain (the proceeds exceed the cost basis of the property lost), the taxpayer / policyholder has two choices.
The taxpayer may make an election to defer the gain and accept the reporting responsibilities that come with that election including complying with the replacement process.
Or, the taxpayer can report the gain as taxable income and pay the tax.
But what happens if the taxpayer does neither?
The IRS regulations state that in a case where nothing is done, the taxpayer has made an undeclared election to defer the gain.
It is referred to as a “deemed election” as the taxpayer is deemed to have made the replacement election when no actual election is made. This article does not have enough room to go into details, but this “deemed election” is very dangerous as taxpayers who depend on it (knowingly or unknowingly) make additional assumptions that the IRS does not agree to in the regulations. This “deemed election” can result in a delayed financial disaster if it is relied upon. If the “deemed election” is used, subsequent corrective measures must be taken to eliminate risk for the taxpayer. Sometimes those corrective actions may be barred by statute or time limits expiration
The “deemed election” is a possible first step relief for taxpayers who decide not to tell the IRS anything about the transaction. But it has numerous dangers. If there is a gain, make a definitive decision, either specific deferral of the gain or pay the tax, do not rely on the “deemed election.”
Most of what has been discussed in this article is not covered in any publications distributed by the IRS as aids for taxpayers who want to prepare their own “disaster tax returns.” Most tax professionals do not have the time to learn all the intricacies of disaster income tax reporting. If you need assistance, discuss with the tax professional the depth of their understanding in this area of the tax law.
All rights to reproduce or quote any part of the chapter in any other publication are reserved by the author. Republication rights limited by the publisher of the book in which this chapter appears also apply.
JOHN TRAPANI, Certified Public Accountant
2975 E. Hillcrest Drive #403, Thousand Oaks, CA 91362
(805) 497-4411 E-mail John@TrapaniCPA.com
Website: www.TrapaniCPA.com, Blog: www.AccountantForDisasteRrecovery.com
This is a general discussion of tax law. The application of the law to specific facts may involve aspects that are not identical to the situations presented in this material. Relying on this material does not qualify as tax advice. The analysis of the tax consequences of any event is based on tax laws in effect at the time of the event.
This material was updated on February 7, 2017
© 2012 and 2017, John Trapani, CPA