By Lance Wallach
    May 2009

    Senator Ben Nelson (D-Nebraska) has sponsored legislation (S.765) to curtail the IRS
    and its nearly unlimited authority and power under Code section 6707A. Senator
    Nelson is actively seeking co-sponsors of the bill. The bill seeks to scale back the
    scope of the section 6707A reportable/listed transaction nondisclosure penalty to a
    more reasonable level. The current law provides for penalties that are draconian by
    nature and offer no flexibility to the IRS to reduce or abate the imposition of the 6707A
    penalty. This has served as a weapon of mass destruction for the IRS and has hit many
    small businesses and their owners with unconscionable results.

    Internal Revenue Code 6707A was enacted as park of the American Jobs Creation Act
    on October 22, 2004. It imposes a strict liability penalty for any person that failed to
    disclose either a listed transaction or reportable transaction per each occurrence.
    Reportable transactions usually fall within certain general types of transactions (e.g.
    confidential transactions, transactions with tax protection, certain loss generating
    transaction and transactions of interest arbitrarily so designated as by the IRS) that
    have the potential for tax avoidance. Listed transactions are specified transactions
    which have been publicly designated by the IRS, including anything that is
    substantially similar to such a transaction (a phrase which is given very liberal
    construction by the IRS). There are currently 34 listed transactions, including certain
    retirement plans under Code section 412(i) and certain employee welfare
    benefit plans funded in part with life insurance under Code sections 419A(f)(5), 419(f)
    (6) and 419(e). Many of these plans were implemented by small business seeking to
    provide retirement income or health benefits to their employees.

    Strict liability mandates the IRS to impose the 6707A penalty regardless of a innocence
    of a person (i.e. whether the person knew that the transaction needed to be reported
    or not or whether the person made a good faith effort to report) or the level of the
    person’s reliance on professional advisors. A section 6707A penalty is imposed when
    the transaction becomes a reportable/listed transaction. Therefore, a person has the
    burden to keep up to date on all transactions requiring disclosure by the IRS into
    perpetuity for transaction they have entered into the past.

    Additionally, the 6707A penalty strictly penalizes nondisclosure irrespective of taxes
    owed. Accordingly, the penalty will be assessed even in legitimate tax planning
    situations when no additional tax is due but an IRS required filing was not properly
    and timely filed. It is worth noting that a failure to disclose in the views of the IRS
    encompasses both a failure to file the proper form as well as a failure to include
    sufficient information as to the nature and facts concerns the transaction. Hence, a
    person may find themselves subject to the 6707A penalty if the IRS determines that a
    filing did not contain enough information on the transaction. A penalty is also imposed
    when a person does not file the required duplicate copy with a separate IRS office in
    addition to filing the required copy their return. Lance Wallach Commentary; In our
    numerous talks with IRS we were also told that improperly filing out the forms could
    almost be as bad not filing the forms. We have reviewed hundreds of forms for
    accountants, business owners and others. We have not yet seen a form that was
    properly filled in. We have been retained to correct many of these forms.

    For more information see:
    www.vebaplan .com,, or e-mail us at

    The imposition of a 6707A penalty is not subject to judicial review regardless of
    whether the penalty is imposed for a listed or reportable transaction. Accordingly, the
    IRS’s determination is conclusive, binding and final. The next step from the IRS is
    sending your file to the collection, where you assets may be forcibly taken, publicly
    recorded liens may be placed against your property, and/or garnishment of your
    wages or business profits may occur, amongst other measures.

    The 6707A penalty amount for each listed transaction is generally $200,000 per year
    per each person that is not an individual and $100,000 per year per individual who
    failed to properly disclose each listed transaction. The 6707A penalty amount for each
    reportable transaction is generally $50,000 per year per each person that is not an
    individual and $10,000 per year per each individual that failed to properly disclose
    each reportable transaction. The IRS is obligated to impose the listed transaction
    penalty by law and cannot remove the penalty by law and cannot remove the penalty.
    The IRS is obligated to impose the reportable transaction penalty by law, as well, but
    may remove the penalty when the IRS determines that removal of the penalty would
    promote compliance and support effective tax administration. As previously
    mentioned the IRS’s decision to impose a 6707A penalty is final and not subject to
    judicial review, regardless of which penalty is imposed.

    The 6707A penalty is particularly harmful in the small business context, where many
    business owners operate through an S corporation or limited liability company in
    order to provide liability protection to the owner/operators. Numerous cases are
    coming to light where the IRS is imposing a $200,000 penalty at the entity level and
    them imposing a $100,000 penalty per individual shareholder or member per year. The
    individuals are generally left with one of two options:

    1.        Declare Bankruptcy
    2.        Face a $300,000 penalty per year

    Keep in mind that taxes do not need to be due nor does the transaction have to be
    proven illegal or illegitimate for this penalty to apply. The only proof required from the
    IRS is that the person did not properly and timely disclose a transaction that the IRS
    believes the person should have disclosed. It is important to note in this context that
    for non-disclosed listed transaction the statue of limitations does not begin until a
    proper disclosure is filed with the IRS.

          Many practitioners believe the scope and authority given to the IRS under 6707A,
    which allows the IRS to act as judge, jury and executioner, is unconstitutional.
    Numerous real life stories abound illustrating the punitive nature of the 6707A penalty
    and its application to small businesses and their owners. In one case the IRS
    demanded that the business and their owner pay a 6707A total of $600,000 for his and
    his business’ participation in a Code section 412(i) plan. The actual taxes and interest
    on the transaction, assuming the IRS was correct in its determination that the tax
    benefits were not allowable, was $60,000. Regardless of the IRS’s ultimate
    determination as to the legality of the underlying 412(i) transaction, the $600,000 was
    due as the IRS’s determination was final and absolute with respect to the 6707A
    penalty. Another case involved a taxpayer who was a dentist and his wife whom the
    IRS determined had engaged in a listed transaction with respect to a limited liability
    company. The IRS determined that the couple owed taxes on the transaction of $6,812,
    since the tax benefits of the transactions were not allowable. In addition, the IRS
    determined that the taxpayers owed a 1,200,000 section 6707A penalty for both their
    individual nondisclosure of the transaction along with the nondisclosure by the
    limited liability company.

          Even the IRS personnel continue to question both the legality and the fairness of
    the IRS’s imposition of 6707A penalties. An IRS appeals officer in an email to a senior
    attorney within the IRS wrote that “…I am both an attorney and CPA and in my 29 years
    with the IRS I have never {before} worked a case or issue that left me questioning
    whether in good conscience I could uphold the governments position even though it
    is supported by the language of the law.” The Taxpayers Advocate, an office with the
    IRS, even went so far as to publicly assert that the 6707A should be modified as it
    “raises significant constitutional concerns, including possible violations of the Eighth
    Amendment’s prohibition against excessive government fines and due process

    Senate bill 765, the bill sponsored by Senator Nelson, seeks to alleviate some of
    above cited concerns. Specifically, the bill makes three major changes to the current
    version of Code section 6707A.

    1.  The bill would allow an IRS imposed 6707A penalty for nondisclosure of a    
    listed  transaction to be rescinded if a taxpayer’s failure to file was due to
    reasonable cause and not willful neglect.

    2. The bill would make a 6707A penalty proportional to an understatement of any
    tax due.

    3.  Would only allow the IRS to impose a 6707A penalty on actual taxpayers.

    Accordingly, non-tax paying entity such as S corporations and limited liability
    companies would not be subject to a 6707A penalty (individuals, C corporations and
    certain trusts and estates would remain subject to the 6707A penalty).

          As previously mentioned, Senator Nelson is currently seeking co-sponsors for
    Senate bill 765. Additionally, the movement for a similar bill is currently gaining steam
    in the House. Please contact your local Congressmen and you Senators to voice your
    support for modifying Code section 6707A to adopt a fairer and more reasonable
    approach to disclosure. Please feel free to contact our office if you would like
    assistance in any of your tax and penalty controversy needs.

    Lance Wallach, the National Society of Accountants Speaker of the Year,  speaks and
    writes extensively about retirement plans, Circular 230 problems and tax reduction
    strategies. He speaks at more than 40 conventions annually, writes for over 50
    publications, is quoted regularly in the press, and has written numerous best-selling
    AICPA books, including Avoiding Circular 230 Malpractice Traps and Common Abusive
    Business Hot Spots. He does extensive expert witness work and has never lost a
    case.  Contact him at 516.938.5007 or visit

    The information provided herein is not intended as legal, accounting, financial or any
    other type of advice for any specific individual or other entity.  You should contact an
    appropriate professional for any such advice.

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Senator seeks support to scale back the IRS’s assault on
nondisclosure of alleged tax shelters due to constitutional concerns.

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