I am a CPA and my consumer claimed a questionable Worker Retention Credit score. Now what?

The Inside Income Service introduced in March that its compliance efforts associated to the Worker Retention Credit score had exceeded $1 billion, with the company specifying that “greater than 12,000 entities filed over 22,000 claims that had been improper and resulted in $572 million in assessments.”

In keeping with the IRS, which as of the tip of February 2024 had initiated greater than 386 legal circumstances within the ERC house, enforcement efforts will solely proceed to broaden. IRS Commissioner Danny Werfel has additionally made it clear that the IRS is taking misguided ERC claims severely, not too long ago commenting that the company stays “involved about widespread abuse involving these claims which have harmed small companies.”

Within the face of those eye-popping statistics, and the IRS including ERC fraud to its “Soiled Dozen” listing of abusive tax schemes, the query for accountants throughout the U.S. turns into: “What’s my duty if my consumer presents me with a questionable ERC declare?” Extra importantly, accountants have to ask themselves what private dangers they tackle in the event that they push by way of an ERC calculation they think may very well be inaccurate.

The IRS Workplace of Skilled Accountability launched steering on March 7 concerning how tax professionals can guarantee they’re assembly their Round 230 skilled obligations when coping with a doubtlessly misguided declare from a 3rd get together.

Citing Part 10.22(a) of Round 230, the IRS OPR acknowledged that if “the practitioner can’t fairly conclude … that the consumer is or was eligible to say the ERC then the practitioner mustn’t put together an authentic or amended return that claims or perpetuates a doubtlessly improper credit score.”

The IRS OPR went on to state that, as a greatest follow, tax practitioners ought to contemplate advising their shoppers of the choice to file an amended return, in addition to penalties for noncompliance.

In brief, Part 10.22(a) cited within the steering binds accountants to diligence as to the accuracy of the declare and requires an inexpensive inquiry to substantiate the consumer’s ERC eligibility, in addition to additional inquiry into the credit score calculation if it seems to be incorrect, incomplete, or inconsistent.

IRS OPR Director Sharyn Fisk has been on report cautioning that the company is extra often auditing taxpayers who declare credit that they aren’t entitled to and that the IRS “cannot ignore data that is inconsistent, incomplete or incorrect.”

Fisk has gone on to say that accountants aren’t exercising due diligence in the event that they fail to ask the query of a consumer or a 3rd get together who calculated an ERC, whereas noting that documentation is essential for tax practitioners to guard themselves. 

The American Institute of CPAs has additionally issued warnings to accountants reviewing ERC calculations from third-party suppliers. The AICPA acknowledged in Danger Alert 2.1.23 that if a “consumer’s ERC declare is later denied, the consumer might allege the CPA, by way of its preparation of the tax return reflecting the ERC claimed, tacitly agreed with it, thus negating all prior written warnings supplied to the consumer.”

The AICPA added that, if requested by a consumer to arrange a return utilizing data from a 3rd get together, together with ERC calculations, accountants “ought to first get hold of a signed engagement letter defining which federal and state tax returns require preparation or modification after which consider the knowledge in accordance with skilled requirements.”

By way of components to contemplate when an accountant is vetting an ERC calculation, the IRS has supplied an inventory of “purple flags” for taxpayers and tax practitioners to look out for, which embrace a 3rd get together with the ability to decide ERC eligibility “inside minutes” and enormous upfront charges to say the credit score. 

In brief, accountants who’re seeing a noticeable lack of documentation to help a credit score, or excessively excessive ERC calculation based mostly on what they know of their consumer, ought to take steps to validate the determine, together with consulting with these corporations that specialised in tax credit previous to the COVID-19 pandemic, earlier than shifting ahead.

Return preparers who fail to be aware of these purple flags and both proceed with ERC calculations they know aren’t affordable, or fail to amend an current declare, may face penalties themselves, together with doable disciplinary proceedings from IRS OPR for many who have ignored Round 230, in addition to doable preparer penalties beneath Part 6694 or 6701 of the Inside Income Code.

As acknowledged, the IRS’s ERC enforcement marketing campaign is way from over. And though the company’s Voluntary Disclosure Program for ERC ended on March 22, there are nonetheless some choices out there. Tax practitioners ought to inform their consumer of the choice to withdraw a questionable ERC if monies haven’t but been acquired.

American CPAs can’t, and mustn’t, settle for ERC calculations they really feel lack an inexpensive foundation. Because of this, it’s incumbent upon accountants confronted with questionable ERC figures to ask the correct questions and seek the advice of established tax consulting corporations in an effort to validate the ERC determine at subject.