By Anthony Diosdi
Under Internal Revenue Code Section 6677(a), if any United States Person beneficiary receives (directly or indirectly) a distribution from a foreign trust, that person is required to make a return with respect to such a trust using Internal Revenue Service (“IRS”) Form 3520, and show thereon the name of the trust, the amount of the aggregate distribution received, and any other data the IRS may require. A foreign gift, bequest, or inheritance that exceeds $100,000 must also be disclosed on a Form 3520. The IRS may assess an annual penalty equal to 35 percent of the gross value of the trust or 35 percent of the gross value of the property transferred from the trust if a Form 3520 is not timely filed. The IRS may also assess a penalty under Internal Revenue Code Section 6039F equal to 25 percent of a foreign gift if it is not timely disclosed on a Form 3520. Finally, the IRS may assess an annual penalty of $10,000 or 5 percent of the gross reportable amount of a foreign trust (whichever is greater) on an individual required to file an IRS Form 3520-A.
It goes without saying that the penalties associated with failing to timely IRS Form 3520 and/or Form 3520-A or incorrectly filing one of these returns can be substantial. The Form 3520 and Form 3520-A are incredibly complicated and many taxpayers do not even know they have to file one of these forms until it’s too late. The fact that a Form 3520 and Form 3520-A is incredibly complicated or many taxpayers do not know they are required to file one of these forms has not deterred the IRS from aggressively penalizing taxpayers who do not correctly file a Form 3520 or 3520-A or file one of these forms late. As a matter of fact, the IRS has recently announced that it would automatically assess penalties against anyone who filed a Form 3520 or 3520-A late- regardless of the reason. These penalties are no joke. They can easily be in the tens of thousands of dollars. Sometimes the IRS will forgive a penalty associated with a 3520. However, past experience of many practitioners demonstrates that the IRS does not often remove these penalties.
Many tax practitioners have grown comfortable with sending the IRS a letter stating that a penalty should be forgiven because reasonable cause can be demonstrated. A requesting leniency will probably not be very effective in these cases. Taxpayers assessed a 3520 or 3520-A penalty should consider expanding their protests beyond just a reasonable cause position. In particular, taxpayers should focus on the IRS procedures for assessing the penalties and consider challenging these penalties based on technical grounds.
Penalties associated with Form 3520 and 3520-A are classified as “assessable penalties.” Procedurally, “assessable penalties” are extremely difficult to contest. This article will discuss defenses available to contest penalties associated with the failure to timely file a Form 3520 or 3520-A and failure to correctly file a Form 3520 or 3520-A (hereinafter “3520 penalty” or “3520 penalties”). This article will discuss how to challenge a Form 3520 penalty through a procedure known as an IRS Collection Due Process Hearing (“CDP”).
What Makes 3520 Penalties Special?
Penalties associated with failing to timely file a Form 3520 or acuractly file a Form 3520 are different from an income or income tax related penalty. Form 3520 penalties are classified as “assessable penalties.” As assessable penalties, 3520 penalties are not subject to deficiency procedures. See Smith v. Commissioner, 133 T.C. 424, 428-430 (2009). Assessable penalties can be assessed and collected by the IRS without opportunity to contest the penalty in a prepayment forum such as the Tax Court. Since the IRS can legally unilaterally assess and collect 3520 penalties through levies or seizures, the IRS does not have much incentive to remove or abate these penalties. Consequently, a letter requesting penalty relief will probably not offer a taxpayer assessed a 3520 penalty much hope. Of course a taxpayer assessed a 3520 penalty penalty can always pay the penalty in full and challenge the validity of the penalty in refund litigation. The problem is that many who are assessed 3520 penalties do not have the means to pay these penalties and initiate a refund suit. Fortunately, in certain cases, individuals assessed a Form 3520 penalty raise a CDP challenge to the penalty (without having to first pay the penalty) and if necessary dispute a 3520 penalty before the Tax Court. This process will be discussed in more detail below. But first, let’s review the defenses to 3520 penalties.
Reasonable Cause Defense
Probably the most commonly cited defense to a 3520 penalty is the reasonable cause. In order to obtain an abatement of the penalties associated with a Form 3520 penalty, it must be established that the individual that was assessed a penalty did not only act with “reasonable cause,” but also lacked “willful neglect.” Whether both “reasonable cause” and lack of “willful neglect” exist is a question of fact. The term “willful neglect” was defined by the United States Supreme Court in United States v. Boyle, 469 U.S. 241, 246 (1985) as a conscious, intentional failure or reckless indifference.” The IRS has interpreted the Boyle decision in its regulations to define “reasonable cause” and lack of “willful neglect” as the taxpayer exercised “ordinary business care and prudence.” See Treas. Reg. Section 301.6651-1(c)(1). Thus, if a taxpayer can show that he exercised ordinary business care and prudence, he may have a reasonable cause for a 3520 penalty. Of course, the question then becomes, what constitutes ordinary business care and prudence? In the past, the IRS considered the following examples to constitute reasonable cause for the purpose of a delinquent filing penalty.
1. A return mailed in time but returned for insufficient postage.
2. A return filed timely but in the wrong district with the Regional Commissioner or Commissioner of Internal Revenue.
3. Erroneous information from an IRS official.
4. Death or serious illness of the taxpayer or someone in his or her immediate family.
5. Unavoidable absence of the taxpayer.
6. Destruction of a business or business records by fire or other casualty.
7. A request proper for returns not timely furnished by the IRS.
8. An effort to obtain assistance or information necessary to complete the return by a personal appearance at an IRS office that was unsuccessful because the taxpayer, through no fault of his or her own, was unable to see an IRS representative.
Thus, if an individual who was assessed a 3520 penalty can show he or she exercised ordinary business care and prudence under any of the examples listed above, this individual may have a reasonable cause defense to a 3520 penalty. Case law has also carved out a reasonable cause defense to a 3520 penalty based on the advice of a qualified tax advisor. To be clear, the failure to timely file a Form 3520 is not excused by an individual’s reliance on a tax professional. Such reliance is not ‘reasonable cause’ for purposes of a 3520 penalty. Reliance on a tax professional who is expected to attend to the matter, even reasonably so, does not relieve an individual with a Form 3520 filing obligation and is not a defense to a 3520 penalty.
With that said, a distinction is drawn between reliance on the act of a tax professional and reliance on the advice of a tax advisor. In Haywood Lumber & Mining Co. v. Commissioner, 172 F2d 769, 771 (2d Cir. 1950), the court said: “When a corporate taxpayer selects a competent tax expert, supplies him with all necessary information, and requests him to prepare proper tax returns, we think the taxpayer has done all that ordinary business care and prudence can reasonably demand.” Consequently, advice sought and received in good faith from a competent adviser constitutes reasonable cause for failure to file a Form 3520. Finally, in certain limited cases, ignorance of law may be considered reasonable cause if other factors support this contention, such as the individual being a first-time 3520 filer or the individual required to file a Form 3520 is not fluent in english.
Questing the Approval of the 3520 Penalties Under Internal Revenue Code Section 6751
Many professionals erroneously believe that the only defense to a 3520 penalty is reasonable cause. Reasonable cause is not the only defense to a 3520 penalty. Taxpayers may also contest 3520 penalties if the IRS did not follow proper procedure in assessing these penalties. According to Internal Revenue Code Section 6751(b), all penalties (including 3520 penalties) must comply with certain procedural requirements. Section 6751 requires the IRS to follow two procedural requirements when imposing penalties on taxpayers. First, an individual must receive notice of the penalty, the Section of the Internal Revenue Code that imposes the penalty, and how the penalty is computed. This requirement is usually easily satisfied. Second, the “initial determination” to assess the penalty must be approved “in writing” by the “immediate supervisor” or an “approved higher official.” See IRC Section 6751(b). The IRS has a history of not complying with this second requirement.
Anyone that has recently been assessed a 3520 penalty should consider that the IRS has not only been automatically assessing the penalty on late filings, but has also been assessing in mass. Since the beginning of 2020, the IRS has assessed thousands of 3520 penalties in a very short time. Given the amount penalty notices that the IRS has issued in a relatively short period of time, there is a very strong possibility that the IRS did not comply with the requirements of Section 6751 and obtain approval “in writing” by the “immediate supervisor” or an “approved higher official” when assessing 3520 penalties. The IRS’s failure to comply with Section 6751 could be a very strong defense to Section 3520 penalties. This raises the question of how a taxpayer might obtain the information and evidence of approval after receiving notice of a 3520 penalty. A taxpayer could request that the IRS voluntarily produce proof of compliance with Section 6751 from an IRS Appeals Officer or Revenue Officer. However, the IRS may not voluntarily turn over to a taxpayer. However, taxpayers have another option to obtain this valuable information. A taxpayer can request proof that Section 6751 was complied with under the Freedom of Information Act (“FOIA”).
Challenging a 3520 Penalty on Grounds that the IRS Acted Arbitrarily, Capriciously or Abused Its Discretion in Assessing the Penalty
Taxpayers assessed a 3520 penalty may also consider attacking the penalty on grounds that the IRS acted arbitrarily, capriciously, or abused its discretion in assessing the penalty. This defense is appropriate when the IRS assesses a 3520 penalty but the administrative record contains no explanation of the IRS’s decision to impose penalties. This defense will require a taxpayer to obtain his or her administrative file regarding the 3520 penalty assessment through a FOIA.
Once a taxpayer obtains the administrative record, the record should provide a rational connection between the facts found by the IRS and the reason for the assessment of the penalty. If the record does not contain a rational connection between the facts found by the IRS and the reason for the assessment of a 3520 penalty or the record is completely void as to why a penalty was assessed, the 3520 penalty may be attacking on grounds that the IRS acted arbitrarily, capriciously, or abused its discretion in assessing the penalty. This defense must be raised in court and although it will not result in the removal of the penalty, a federal court (most likely the Tax Court) could remand the case back to the IRS for further consideration. For example, the United States Supreme Court has stated:
“If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper court, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo
injury into the matter being reviewed and to reach its own conclusions based on such an inquiry.” See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
If it can be demonstrated that the IRS acted arbitrarily, capriciously, or abused its discretion in assessing the penalty, the IRS would likely be subject to oversight by the court in determining why it elected to assess a 3520 penalty or if applicable, why it elected to assess a maximum penalty as opposed to a smaller amount. The process itself would become part of the record court. This may invite an IRS concession of the penalty or a favorable settlement.
Once a Form 3520 Penalty is Assessed, if the Penalty is Not Satisfied, the IRS will Issue a Number of Notices
Now since we discussed defenses to 3520 penalties, we will now discuss utilizing a process known as a CDP to challenge a 3520 penalty. As indicated above, the law gives the IRS sweeping powers to assess 3520 penalties and it is extremely difficult to convince the IRS to remove 3520 penalties. Given the inherent difficulties associated contesting the 3520 penalties, taxpayers utilize the CDP procedures to contest a 3520 penalty. A CDP is an administrative hearing before an IRS Appeals Officer. The hearing is typically done over the phone. If done properly, a CDP will allow a taxpayer the ability to challenge a 3520 penalty. Through a CDP, a taxpayer can challenge the existence of a Section 3520 penalty based on the fact that he or she acted with reasonable cause, the IRS did not follow Section 6751 procedures, and/or the IRS abused its discretion in assessing 3520 penalties. Should the IRS improperly reject a 3520 penalty challenge in a CDP hearing, the taxpayer can request judicial review of the IRS’s penalty assessment and/or the IRS’s decision not to remove the 3520 penalty. The taxpayer then can challenge the existence of the underlying 3520 penalty in a CDP and before the United States Tax Court without first having to pay the penalty.
As is typically the case in controversy matters, contesting a 3520 penalty through a CDP is all about timing. There is a very small window of time in which a taxpayer can contest a 3520 penalty. A taxpayer must wait until the IRS issues a correspondence entitled “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing” before requesting a CDP. Once a taxpayer receives a correspondence entitled “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing,” he or she will have thirty days from the date of the letter to request a CDP. The request for a CDP must be made on an IRS Form 12153, Request for a Collection Due Process or Equivalent Hearing. The Form 12153 must be completed in its entirety and must state in detail the reason for contesting the 3520 penalty.
If more than 30 days lapses from the date of a “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing,” a taxpayer will be foreclosed from using this process. A prematurely filed protest will also prevent a taxpayer’s ability to challenge a 3520 penalty through a CDP. If a taxpayer files a protest with the IRS before receiving letters entitled “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing,” it will also probably prevent a taxpayer challenging a 3520 penalty through a CDP.
For example, let’s assume that in 2017 Tom received a foreign gift in the amount $1,000,000 from his uncle, a citizen of China. Unbeknownst to Tom, he was required to disclose the $1,000,000 foreign gift on a Form 3520. In 2019, Tom visits Phil, a CPA. Phil tells him about the 3520 filing requirement and files a late 3520 with the IRS on behalf of Tom. In 2020, the IRS mails Tom a letter advising Tom that the IRS has assessed a $250,000 3520 penalty against him. Tom retains Steve, a tax attorney to contest the 3520 penalty. Unfortunately for Tom, Steve knows nothing about the CDP process. Steve immediately challenges the 3520 penalty by filing a protest with the IRS before Tom received correspondence entitled “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing” The IRS rejects the protest letter but offers Steve the opportunity to submit an appeal to the IRS Appeals Office. Steve files an appeal with the IRS Appeals Office. The Appeals Office subsequently rejects the appeal. Because Steve prematurely filed a protest letter and was granted an appeal before Tom was issued a correspondence entitled “Final Notice of Intent to Levy and Notice of Your Right to a Hearing” or “Notice of Federal Tax Lien Filing and Your Right to a Hearing,” Tom can no longer contest the 3520 penalties in a CDP or before the Tax Court. This is because Tom availed himself of a prior opportunity to challenge the 3520 penalties through Steve’s protest and appeal. In order to understand why Tom cannot challenge a 3520 penalty in a CDP, we will need to take a deeper dive into the procedural rules governing CDP penalty.
A taxpayer may raise a CDP challenge to the existence or amount of his underlying tax liability only if he “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” See IRC Section 6330(c)(2)(B). In determining whether the taxpayer had a prior opportunity to dispute his liability, the regulations distinguish between liabilities that are subject to deficiency procedures and those that are not. For liabilities subject to deficiency procedures, an opportunity for a post-examination conference with an IRS Appeals Office does not bar the taxpayer (in appropriate circumstances) from contesting his liability in a later CDP proceeding. See 301.6330-1(e)(3), Q&A-E2, Proceed. & Admin. Regs. On the other hand, where a liability is not subject to deficiency procedures, “[a]n opportunity to dispute the underlying liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability.”
As assessable penalties, 3520 penalties are not subject to deficiency procedures. See Smith v. Commissioner, 133 T.C. 424, 428-430 (2009). Notwithstanding the absence of a notice of deficiency, a taxpayer may be able to dispute international penalties (without paying them first) by resisting IRS collection efforts through the Collection Due Process Hearing and then seeking review in the United States Tax Court. See Williams v. Commissioner, 131 T.C. 54, 58 (2008); Gardner v. Commissioner, 145 T.C. 161 (2015)(upholding Tax Court jurisdiction to review penalties in the Collection Due Process context). But this route to prepayment judicial review is available only if the taxpayer “did not otherwise have an opportunity to dispute such tax liability.” See IRC Section 6330(c)(2)(B).
For example, in Yari v. Commissioner, 143 T.C. 157 (2014), aff’d,___F. App’x___, 2016 WL 5940054 (9th Cir. Oct. 13, 2016), the IRS assessed an “assessable penalty” against the taxpayer and issued him a notice of intent to levy. After receiving a notice of determination sustaining the levy, the taxpayer petitioned the United States Tax Court. There was no evidence in the record that the taxpayer had received notice of the assessment, that he had been offered the opportunity to protest the assessment, or (if so) that he had taken advantage of that opportunity. Under these circumstances, the Tax Court allowed the taxpayer to contest the amount of the penalty because he had not had a prior opportunity to dispute it.
Under this framework, a taxpayer in a Collection Due Process Hearing case is entitled to challenge his or her underlying “assessable penalty” only if he or she did not have a prior opportunity to dispute it. For this purpose, a prior opportunity includes “a prior opportunity for a conference with Appeals.” See Treas. Reg. Section 301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs. The United States Tax Court has sustained the validity of this regulation even though the taxpayer had no right to judicial review of the prior Appeals Office determination. See Lewis v. Commissioner, 128 T.C. 48, 60-61 (2007). Since Lewis, the United States Tax Court has consistently precluded an individual from raising a liability challenge in a “assessable penalty” case when he had an opportunity to present that challenge to the Appeals Office before the IRS commenced collection action.
This means if an individual had, and availed himself of, a prior opportunity of contesting an “assessable penalty” by filing a protest with IRS before a Collection Due Process Hearing was conducted, the IRS through a CDP and the Tax Court will not have jurisdiction to review a 3520 penalty under a de novo standard. In other words, a taxpayer may raise a challenge to the existence or amount of his or her 3520 penalty liability under either a theory of reasonable cause and/or the IRS did not adhere to the 6751 rules. This is the case even if an individual did not request an administrative hearing with the IRS to contest a 3520 penalty, if the IRS provided a taxpayer with an opportunity to contest the penalty through some resemblance of an appeals conference and the individual refused to participate in the hearing, this may deprive the individual of the ability to contest a 3520 penalty. See IRC Section 6330(c)(2)(B).
In the exam above, Tom availed himself a prior opportunity to challenge the 3520 penalties as a result of Steve’s protest with the IRS. Tom was then offered, and Steve an opportunity to appeal (within the IRS) the 3520 penalty. This process unquestionably afforded Tom “a meaningful opportunity to dispute * * * the 3520 penalty. Thus, Tom is precluded from disputing the 3520 penalties during the CDP hearing. And because Tom could not challenge his liability from the penalties at the CDP hearing, he is likewise precluded from disputing the penalties before the Tax Court. See Giamelli v. Commissioner, 129 T.C. (2007). Where there is or can be no challenge to the amount of the 3520 liability. However, the Tax Court may still review the IRS determination for abuse of discretion.
As demonstrated above, contesting a 3520 penalty is full of landmines. There is a lot at stake in most 3520 penalty cases. If you received a 3520 penalty notice, you should talk to a tax attorney who not only understands the CDP rules, but also has substantial experience litigating cases before the Tax Court.
The IRS has recently begun to automatically assess penalties associated with not timely filing Form 3520s and Form 3520-As. These penalties can be significant. For many, paying these penalties is not an option. In certain cases, individuals can contest these penalties through a CDP and if necessary, before the United States Tax Court. Anyone considering contesting a 3520 penalty should begin preparing right after the penalty notice is received. Preparation should include investigating any possible defenses to the 3520 penalty and obtaining administrative files from the IRS.
Anthony Diosdi is tax attorney at Diosdi Ching & Liu, LLP located in San Francisco, California. Diosdi Ching & Liu, LLP also has offices in Pleasanton, California and Fort Lauderdale, Florida. As a tax attorney, Anthony Diosdi regularly represents clients in 3520 penalty disputes. Anthony Diosdi has represented hundreds of clients before the United States Tax Court, United States Courts of Appeals, United States Claim Claims, and United States district courts.
The tax attorneys at Diosdi Ching & Liu, LLP advise and represent clients throughout the United States, Asia, Europe, Australia, Canada, and South America. Anthony Diosdi may be reached at (415) 318-3990 or by email: firstname.lastname@example.org.
This article is not legal or tax advice. If you are in need of legal or tax advice, you should immediately consult a licensed attorney.