Unfiled Tax Returns 101
If you are reading this you may not be current with your tax return filing obligations. As a tax attorney, I can say that individual taxpayers failing to file tax return(s) is widespread. The IRS typically identifies more than 7 million non-filers* each year. I have meet all types of taxpayers that for one reason or another have not filed income tax returns. This guide will help the non-filer get back into compliance.
What Happens If You Do Not File An Income Tax Return?
It depends. Are you required to file? Individuals with little or no gross income may not be required to file a return. The Form 1040 Instructions will include a section called “Who must file” or “Do you have to file?” and will inform the reader of filing requirements.
Best Practice: I recommend filing a timely tax return, even if not required.
The Consequences of Not Filing A Required Return
Scenario I – Due a Refund (with return)
If you had sufficient tax withheld and would get a refund you won’t be penalized for not filing a tax return but may forfeit any refund. On the other hand, there are consequences to taxpayers who owe income tax and do not file an income tax return.
Scenario II – Owe Taxes (with return)
If you owe tax and choose not to file by the filing deadline you will be subject to penalties + interest. The IRS calculates interest on the net tax due as of the filing deadline which accrues until the tax is paid (interest compounds daily).
Failure to File Penalty – IRC Section 6651(a)(1)
The failure to file penalty is imposed on returns not filed by the filing deadline. The penalty is 5% of the net tax due per month that return has not been filed. The failure to file penalty cannot exceed 25%.
Failure to Pay Penalty – IRC Section 6651(a)(2)
The failure to pay penalty is imposed on the tax return balance due and unpaid by the filing deadline. The penalty is .5% or half of 1% for every month or part of month that tax remains unpaid. The failure to pay penalty cannot exceed 25%.
When both penalties apply to the same balance, the failure to file penalty is reduced by the failure to pay penalty. Thus the combined penalty will not exceed 5% per month. Accordingly, the maximum combined penalty is 47.5% (22.5% late filing + 25% late payment).
IRS Past Due Tax Return Notices
If you have past due unfiled income tax returns you may have received one of the following notices:
CP59 Notice: The IRS mails this notice to certain taxpayers when there is no record that taxpayer filed an income tax return.
CP63 Notice: The IRS mails this notice to taxpayers who are expecting a tax return refund but have other unfiled tax returns. The IRS is informing the taxpayer their refund will be held until the taxpayer files past due tax returns.
CP259 Notice: The IRS mails this “reminder” notice to taxpayers who are required to file a tax return but have not.
CP515, CP516, CP518I: These 3 notices are more “reminder” notices instructing taxpayer to voluntarily file a past due tax return.
CP2566 Notice: This notice informs taxpayer that since the IRS has not received a tax return from taxpayer, the IRS has calculated a tax, penalty, and interest due based on information reported to IRS by 3rd parties. See “Substitute for Return”.
CP3219N Notice: This is a Notice of Deficiency and once received a taxpayer has 90 days to petition tax court.
What is a “Substitute for Return” (SFR)
When an individual does not file a tax return the IRS may prepare a return for that taxpayer which is categorized as a Substitute for Return (SFR). The IRS is able to prepare a substitute for return based on information reported by 3rd parties (i.e. W2s and 1099s). You do not want the IRS preparing your tax return for you! The IRS will only generate a Substitute for Return if doing so will create a bill. Additionally, the tax due with the SFR may be overstated since the IRS will not take advantage of exemptions, credits and deductions available.
Pro Tip: If the IRS files a Substitute for Return, it is still in your best interest to file your own return to take advantage of all the exemptions, credits and deductions to which you are entitled.
Understanding Statute of Limitations + Unfiled Tax Returns
There is no statute of limitations preventing the IRS from examining a year when a tax return was never filed. There is a statute of limitation preventing taxpayers from receiving a tax return refund. A taxpayer that would be due a refund must file a tax return to claim refund within 3 years of the filing deadline or alternatively two years from the date the tax was paid. It is for this reason that priority should be focused on tax returns with refund potential within 3 years of the filing deadline.
How To Prepare Prior Year Tax Returns?
In many cases the taxpayer will no longer have the tax documents needed to prepare a prior year return. In situation like this it is essential to request this information from the IRS. Taxpayers may request a Wage and Income Transcript from the Internal Revenue Service this transcript will provide much of the needed information necessary to prepare a tax return including data from W-2s and 1099s. The Wage and Income transcript is available for the prior 10 years.
Pro Tip: I do not recommend preparing prior year tax returns without a wage and income transcript. Even if you have the tax documents to prepare your tax return(s), requesting a wage and income transcript will guarantee that nothing is missed or not reported on tax return (preventing the chance of receiving a tax notice).
How Many Years Of Unfiled Tax Returns Should Be Filed?
The IRS generally will not enforce tax return compliance for periods in excess of six years. As a result, non-filers that want to be “current” with the Internal Revenue Service will file the most recent six years of income tax returns.
Note: The IRS may enforce tax return compliance in excess of six years based on facts and circumstances.
How To File Past Due Returns With IRS (E-File & Paper-File)
Once completed the past due returns will need to be filed with the IRS. The most recent three years of returns may usually be electronically submitted or e-filed with the IRS; and the older returns paper-filed and mailed to the IRS.
Pro Tip: When mailing multiple years of tax returns it is recommended to mail each return in a separate envelope.
New York State Considerations
If you are filing an income tax return with the IRS be aware that you may also be required to file a state tax return. New York State has a Voluntary Disclosure Program (“VDP”) that allows eligible non-filers to come forward and file back taxes. Taxpayers going through the VDP will not be subject to penalties or charged criminally (a nice incentive for non-filers). Learn more about the New York State Voluntary Disclosure Program.
Unfiled Tax Return Help
Law is unique being a law firm that offers in-house tax preparation services a benefit to clients in non-filer situations. Peter E. Alizio is a dual practitioner working as a CPA in tax compliance and a tax attorney focusing on tax controversy resolution. Peter has over 10 years of experience preparing tax returns and can help you with past due return(s). If you need assistance, you can email Peter or call him at (212) 520-2906.