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Failure to File Tax Returns

Believe it or not, it is a federal and NYS crime to intentionally not file your tax returns by the annual tax return filing deadline date. In NYS, it is considered a misdemeanor for each year that you intentionally do not file a tax return timely and rises to a felony when three or more consecutive years of tax returns go unfiled. Even though it is uncommon for the IRS and NYS Department of Taxation and Finance (DTF) to pursue criminal sanctions for the failure to file tax returns, it is not unheard of, and it has happened before. The tax professionals at McLaud Law P.C. have represented hundreds of taxpayers with unfiled tax returns, some of whom were criminally investigated and/or prosecuted for the failure to file tax returns timely.

Careful management and decisive action are the keys to safely dealing with a situation of unfiled tax returns. If handled properly, the risk of unfiled tax returns turning criminal can be kept low in most cases. It is also possible to achieve other relief that makes the financial burden of getting back into compliance with the tax law less severe.

New York State has an amnesty program for people with unfiled returns or underreported tax that the DTF has not yet discovered. If the DTF has sent notices or estimated assessments for the tax type and period of the unfiled returns, you will not be eligible for the program, so it can be critical to apply to the amnesty program right away, as it is impossible to know when the DTF will discover the issue on its own. Once accepted into the program, the benefits it offers are 1) protection from criminal prosecution for the tax issues disclosed, 2) abatement of all associated penalties, 3) a reduced interest rate on the taxes owed, and 4) the possibility of some of the unfiled returns being forgiven in their entirety.

The IRS does not have an amnesty program with the many benefits of the NYS program. It is, nonetheless, important to appropriately address any delinquent unfiled returns, which should be done with the assistance of a tax attorney who has experience handling tax resolution matters. A competent tax attorney will work with you to determine the best way to address the filing of a delinquent tax return by considering the civil and criminal risks associated with the non-timely filing and what programs and/or procedures within the IRS might help mitigate such risks.
In addition to the criminal risks, leaving returns unfiled opens the door to the IRS preparing substitute returns for you. An IRS Substitute-For-Return (SFR) will estimate what your return might look like and then assess the tax, interest, and penalties against you. Unsurprisingly, when the IRS does this, they do not try to minimize your tax burden like you would when preparing a return yourself. When the IRS prepares an SFR, you still have an opportunity to prepare a true tax return to replace the IRS SFR, but you are then coming from the disadvantaged position of being under IRS scrutiny and your ability to potentially discharge an income tax liability in a future bankruptcy proceeding could be lost. For this reason, it is usually best to stay ahead of the problem and file the missing tax returns before the IRS becomes aware of the problem.

You may be owed a refund on your unfiled tax returns if your withholding exceeded the tax you owe in that year. You have a limited amount of time to file your claim for a refund. Generally, you must submit your claim to the IRS within three years of the due date of the tax return or within two years of paying the tax, whichever is later. If you have multiple unfiled tax returns, you can easily lose refunds to this short timeline, so it is in your interest to address the situation quickly if you anticipate refunds showing on your returns.

If you have unfiled tax returns, you could be exposed to serious consequences, both civil and criminal. The consequences vary depending on how long it’s been since you filed. These risks are usually manageable with the right legal counsel. The tax professionals at McLaud Law P.C. have years of experience helping clients navigate these issues and achieve the best possible resolution. Call us today for a free consultation to discuss your unfiled tax returns or to talk about other tax problems and how we can help you.

This communication is Attorney Advertising. It is presented for informational purposes only and does not constitute legal advice. Every legal situation is different, and prior results do not guarantee a similar outcome. This communication does not create an attorney-client relationship between McLaud Law P.C. and the recipient.