For months, the radio waves have been overflowing with ads promising businesses hundreds of thousands of dollars in Employment Retention Credit refunds. They promise $26,000 per employee you retained during COVID-19. It is claimed that somehow all return preparers were asleep at the switch, and now two years after COVID you are a fool if you don’t amend your employment tax returns are taken advantage of what is yours!
Tens of thousands of businesses have been lured in by this promise of free money. While there are legitimate professionals following the law and filing for ERC refunds, there are also thousands of fraudulent companies promising that for a large fee they can get you an even bigger pile of money as an ERC refund. These fly-by-night ERC refund mills have flooded the IRS with so many bogus claims that on September 14th of this year the IRS announced that they will no longer process new ERC refund claims at least until after the end of this year.
The September 14, 2023, News Release unusually had two headlines: 1) “Aggressive marketing to ineligible applicants highlights the unacceptable risk to businesses and the tax system,” and 2) “Moratorium on processing of new claims through year's end will allow IRS to add more safeguards to prevent future abuse, protect businesses from predatory tactics; IRS working with Justice Department to pursue fraud fueled by aggressive marketing.” https://www.irs.gov/newsroom/to-protect-taxpayers-from-scams-irs-orders-immediate-stop-to-new-employee-retention-credit-processing-amid-surge-of-questionable-claims-concerns-from-tax-pros
What many taxpayers do not understand is that the IRS generally responds to requests for refunds by mailing checks. The fact that you received a refund does not mean that the IRS has decided that the refund claim was valid. ERC refund mills understand this, and by the time the IRS gets around to auditing the validity of your refund, the people who filed your claim may have closed their doors and disappeared. Thus, if you already received a refund, or you are waiting on a refund, you may want to engage a legitimate tax professional to review your refund claim and provide you with an opinion on its validity.
The IRS has previously announced that they are training large numbers of Revenue Agents to conduct ERC audits. There is also the possibility of criminal investigations and referrals to the Department of Justice for criminal prosecutions. You do not want to get caught up in this enforcement phase. Understanding that large numbers of businesses were misled by unscrupulous ERC refund mills, the IRS is encouraging companies to withdraw their claims.
In an unusual move for the IRS, on October 24, 2023, it announced the ERC Claim Withdrawal Program. https://www.irs.gov/newsroom/help-for-businesses-steps-for-withdrawing-an-employee-retention-credit-claim If you are still waiting on a refund, believe you were the victim of an ERC scam, and want to withdraw your claim before having to return the money, plus interest and penalties, you may be eligible to request a withdrawal. The IRS set forth four criteria for being eligible to withdraw an ERC claim:
· They claimed on an adjusted employment tax return (Forms 941-X, 943-X, 944-X, CT-1X).
· They filed the adjusted return only to claim the ERC, and they made no other adjustments.
· They want to withdraw the entire amount of their ERC claim.
· The IRS has not paid their claim, or the IRS has paid the claim, but they haven't cashed or deposited the refund check.
If you are concerned about your ERC refund claim, please contact us and we can help. You can reach us at mark@experttaxlaw.com or at (801) 628-6623.
About the Author
S. Mark Barnes has been a tax attorney for over thirty-six years. He spent thirty years are IRS Counsel. In 2017, he retired from the IRS and entered private practice. He is the founder of Expert Tax Law in Salt Lake City.
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