As the owner of a small/independent business, you likely will be selected for an audit at some point either by the IRS, state Revenue Department, city, county or a third party audit and collection firm under contract with an Alabama city or county.
If you are selected for an audit, it does not suggest that you have done something wrong. Businesses and individuals are selected randomly, across geographic areas and industries.
Remember at all times, the auditor is working for the government, and/or their company, not for you.
A business could be selected for an audit because of:
· Random selection
· Inconsistent tax reporting
· Improperly using tax exemptions or deductions by individuals or Schedule C taxpayers
· Revenue discrepancies
· Mathematical errors
· A tip received about non-compliance from an employee, former employee, competitor, or a city or county in which you conduct business
“Red Flags” that could trigger an audit
· Rounding to even dollar amounts, such as $100 or $400, rather than rounding to the nearest dollar amount, such as $103 or $412
· Unreported income
· Incomplete information
· Unusually high charitable donations as a percentage of income
· Income taxed on federal but not on state returns (or vice versa)
· Home office deductions
· Filing a Schedule C
· Consistent Schedule C losses indicating possible hobby
· Unusually high entertainment deductions as relate to income
· Low-income with large deductions
· Fluctuating income or sales
Be sure you keep proper documentation on “red flags”. Proper documentation is needed for ALL items or deductions.
Upon first contact from the auditor:
· Call your CPA or tax attorney to notify them you have been selected for an audit.
· Bring your CPA or tax attorney to any meeting including the initial meeting with the auditor.
· Ask the auditor to sign a confidentiality agreement prepared by your attorney that addresses confidential and proprietary information, trade secrets and other sensitive issues
· Ask for a written statement from the auditor regarding the basis for the audit (i.e., who or what drew the attention of the auditor). The auditor is required by law to provide this to you. Insist that the statement be specific.
· Request information regarding encryption and security protocols used by the auditor in securing his or her laptop and in storing/sending your sensitive information.
· Respond quickly to all letters, requests for information and phone calls with advice from your tax professional
· You have the option of having the audit performed at your business or at the office of the CPA or tax attorney. Generally, it is best NOT to have the audit performed at your place of business
· If the audit is performed at your business:
(a) do not leave papers, documents, records in open view
(b) do not leave your computers “up and running” while unattended
(c) if possible, do not place the auditor near employees with whom he or she
can carry on a conversation
(d) have a designated contact person (you or another designated person)
for the auditor to contact regarding questions or needs. The
last thing you want is the auditor to be engaging in discussions
with partially informed or non-informed employees
· If you do not agree with the audit results, ask for an appeal. Generally, you can appeal to the auditor’s supervisor before you go to the formal appeal process
· Read and understand the Alabama Taxpayer Bill of Rights. Ask your CPA or tax attorney to ensure that your rights are being observed during the audit.
· Auditors are reviewing confidential information so request that your information remains at your office or with your tax professional
· Maintain your professionalism, while being polite and friendly
· When responding to questions, be brief and do not elaborate. If you do not know the answer then simply reply “I will have to get back with you on this”. Always be honest.
· If you need additional time to gather the information the auditor has requested, do not hesitate to reschedule the audit.
· If the auditor states the audit of your records will be an “indirect” audit method, contact your CPA or tax attorney immediately
· You can provide auditors electronic copies which should save you money. Never give original documents to an auditor.
· From the date initially contacted by the auditor until the audit and its results are absolutely completed, keep “running” notes, memorandums in a file, or journal of all contacts, discussions, and/or interactions with the auditor. Examples are: (a) met with auditor on x date and y time
include location and who was present, discussion included …
(b) keep hard copies of emails and letters with running log
of phone calls with date and time and discussion of issues
· If the auditor asserts that the law requires you to keep certain records, etc., request a copy of the law, regulation or policy statement
· The auditor may ask you to sign a waiver of the statute of limitations so that older audit periods can remain open during the audit. DO NOT sign the waiver until you consult with your CPA or tax attorney.
· If the auditor wants to take the records from your office to another acceptable location for audit purposes, request a dated detailed receipt (prepared by the auditor) for the records. Do not accept a “generalized” receipt. Such a receipt only proves you gave the auditor records, not specific records. In addition, check the receipt against the records before the auditor leaves your office/business with the records. The receipt should be signed by you and countersigned by the auditor.
· If the auditor wants to take the records to another location for the audit, ask “where”? Do not assume the records are going to a government office. Currently, federal, state and local governments are allowing auditors to work out of their homes. If the auditor announces they are working from his or her home, do not agree for your records to be taken to the auditor’s home.
Reason: Irrespective of assurances to the contrary, your business records
contain proprietary information that could be exposed to family and
friends including an unsecured email server.
If you are dealing with an aggressive auditor:
· you may request a delay in the audit
· request a new auditor
· consider recording the audit (requires 10-days written notice that you intend to record)
· politely ask questions
After the audit, the auditor will
· Provide preliminary audit results
· Explain interest and penalties
· May request additional documents
· Explain future reporting requirements
· Make changes to the preliminary audit report based on additional records you provide
· Review any changes to the audit findings
· Explain appeals process and the timely filing requirements for the taxpayer
If you are audited by the State Department of Revenue
· If you are issued a Final Assessment, you have 30 days to appeal to the Alabama Tax Tribunal
· You may represent yourself before the Alabama Tax Tribunal and/or your CPA or tax attorney may represent you
· Review the Alabama Taxpayers Bill of Rights
If you are audited by a private audit and collection firm
· Alabama is one of the few states that allow private audit and collection firms to collect tax dollars
· Private auditing and collection firms audit on behalf of ALL their clients simultaneously. If the largest private firm audits you, be aware that it is on behalf of several hundred cities and counties in Alabama.
· Once you receive the written basis for the audit, ask to deal directly with the particular city or county that may have caused the audit. Have your CPA or tax attorney reach out to the city or county attorney about resolving the issue directly
· Private audit and collection firms are for-profit entities and may operate in several states
· Alabama municipalities and counties sign contracts with private firms to collect a variety of taxes
· Each contract is negotiated individually with a municipality or county for auditing services or business license discovery/recovery services (i.e., comparing telephone yellow pages to the business license tax rolls)
· The contracts may allow private firms to keep a significant percentage of the monies collected (i.e. a contingency fee)
· Because of contingency fee arrangements, private audit, and collection firms are aggressive about taxable nexus (the legal standard for whether a city or county in which you do business but do not reside can tax you.) You and your CPA or tax attorney must be willing to challenge private firms on these issues or risk state-wide exposure for your business license tax liability.
· If you are issued a Final Assessment, you have 30 days to request an administrative hearing (in front of the auditor’s supervisor) or an administrative appeal (which may be in front of another employee or independent contractor of the private auditing company).
New law for audit and collection firms (effective January 1, 2017)
· Auditors are required to identify themselves and you may request a number to call to verify the identity of the auditor
· Taxpayers will be presented a signed and dated written authorization from the municipality or county to the taxpayer upon the initial contact for an audit
· A copy of the contract between the taxing jurisdiction and the third party audit and collection firm will be presented upon the first contact with the taxpayer Included in the contract will be a statement of whether the municipality or county has opted into the Alabama Tax Tribunal
· If a municipality or county has elected out of the Alabama Tax Tribunal, an independent taxpayer advocate will be available to the taxpayer
· Audits under normal circumstances should only occur every three years
· A final assessment will be signed by an official of the county or municipality and presented to the taxpayer
· A private auditing and collection firm is subject to the confidentiality requirements of Code of Alabama Section 40-2A-10.
· If you are unhappy with the conduct or the results of an audit of a third party audit and collection firm, contact elected officials from the city, county or your state legislator with your concerns. (When the contract is up for renewal, it would be helpful for the elected official to hear your concerns before renewing the contract)
Again, remember at all times, the auditor is working for the government, and/or their company, not for you.
If you have additional questions, please contact the NFIB/Alabama State office at 334 264-2261.