- 4.27.3 Review and Processing Procedures
- 22.214.171.124 Overview
- 126.96.36.199 Examination Coordination with Insolvency
- 188.8.131.52.1 Questionable Returns Filed with Insolvency During Bankruptcy Proceedings
- 184.108.40.206.1.1 Returns Eligible For Review
- 220.127.116.11.2 PSP Classification of Questionable Returns
- 18.104.22.168.3 Technical Services Review of Questionable Returns
- 22.214.171.124.4 Returns Under Examination When the Bankruptcy Petition is Filed.
- 126.96.36.199 Closure of Cases at the Group Level
- 188.8.131.52 Corresponding with Taxpayers
- 184.108.40.206 Bankruptcy Review and Suspense
- 220.127.116.11.1 Cases Requiring Suspension
- 18.104.22.168.2 Bankruptcy Petitions Subject to Dismissal (Commonly Referred to as Serial Filers)
- 22.214.171.124.3 Required Actions Prior to Bankruptcy Suspense
- 126.96.36.199 Monitoring of Bankruptcy Suspense Inventory
- 188.8.131.52 Bankruptcy Processing after the Automatic Stay Lifted
Part 4. Examining Process
Chapter 27. Bankruptcy
Section 3. Review and Processing Procedures
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This section provides procedures for coordinating, reviewing, suspensing, and closing bankruptcy cases.
Bankruptcy proceedings impose deadlines for action for both the debtor (taxpayer) and the creditor (IRS).
The deadline for filing proofs of claim is called the "bar date." The court sets the bar date in a Chapter 11. In Chapters 7, 12, and 13 the bar date is the later of:
180 days after the petition date, or
90 days after the first meeting of creditors.
Under BAPCPA a debtor is required to file returns. This allows the IRS to file a claim for such returns within 60 days after the return is filed.
The Service's failure to meet the bar date (or bar date extension) may result in the IRS's claim being disallowed. This means, upon discharge, the Service may not recover from the debtor personally. Thus the IRS must ensure that it files accurate claims with the Court in a timely manner.
The Court can extend a creditor's bar date for cause.
Under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, to be eligible for bankruptcy, debtors must file certain Federal tax returns.
Some returns submitted to Insolvency by debtors are questionable. For instance, they may not reflect the income showing on the debtor's schedules, the information presented in his/her statement of financial affairs, or data on master file sources such as IRPTR.
Insolvency needs to have these questionable returns reviewed by Examination so an accurate proof of claim can be filed with the court in a timely manner.
Insolvency is responsible for following normal processing procedures to have tax returns received, processed, and assessed.
Insolvency will request an exam review of questionable returns using Form 3449, Referral Report.
The questionable returns must meet the criteria in paragraph 7.
The referral must be made at least 45 days before the bar date. The bar date should be notated at the top of the referrals.
Form 3449, along with copies of the questionable returns, will be forwarded to Planning and Special Programs (PSP).
Upon receipt of the referral, PSP will review the referral to ensure:
The referral was made at least 45 days before the bar date;
The questionable returns meet the criteria in paragraph 7.
If less than 45 days before the bar date remains and/or the questionable returns do not meet the criteria describe in paragraph 7 below, the referral will be returned to Insolvency, unless special arrangements have been made.
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PSP will establish the return(s) on AIMS.
PSP will provide Insolvency with an estimated deficiency within 15 days of the bar date.
The estimate provided must be based on facts that can be presented in court should the debtor object to the Service’s estimated claim.
Refer to IRC section 7491, Burden of Proof, for additional information.
If the referral is a result of source documentation such as Information Returns Processing (IRP) reports, PSP will forward the case to Technical Services.
If the referral involves issues that require further development, PSP will assign the case to an examination group.
PSP may determine at any time during the review process that the return should be surveyed before assignment.
A Technical Services reviewer will determine if there is adequate documentation to issue a statutory notice of deficiency.
If there is not adequate documentation to support issuance of a statutory notice of deficiency, the reviewer will return the case to PSP advising that the case needs further development.
The reviewer needs to provide an estimated deficiency to Insolvency prior to returning the case to PSP.
If there is adequate documentation, the reviewer will issue a notice of deficiency and provide a copy to Insolvency.
A 30-day letter does not need to be issued prior to the issuance of a notice of deficiency with regard to the tax return situations addressed above. Luhring v. Glotzbach, 304 F.2d 560, 565 (4th Cir. 1962) and Rosenberg v. Commissioner, 450 F.2d 529 (10th Cir. 1971).
It is imperative that Insolvency be provided, at least 30 days prior to the bar date, deficiency or estimated deficiency amounts for returns under examination. All communication should stipulate the bar date because of its importance.
When a return is warehoused at a campus waiting for classification or assignment, Area PSP will instruct the campus holding the return to forward the return immediately to Area PSP. See IRM 184.108.40.206.3, Bankruptcy Notices.
If a return is in a status below 10, Area PSP, Campus Exam, or Centralized Files & Scheduling will take one of the following actions:
Advise Insolvency that the return will be closed survey before assignment;
Advise Insolvency the return has been assigned to an examination group; or
Advise Insolvency of the estimated deficiency amount.
If a return is assigned to an exam group, the group must notify Insolvency of the disposition of the case.
If the return is in the group's unassigned inventory, the manager will ensure Insolvency is provided the deficiency or estimated deficiency amount.
If the return is in assigned inventory, the examiner will ensure Insolvency is provided the deficiency or estimated deficiency amount.
Prior to closing the case from the group, the examiner will provide Insolvency with a copy of the report of adjustments.
If a notice of deficiency is issued to a bankrupt taxpayer, Technical Services will provide Insolvency with a copy of the notice of deficiency issued to a bankrupt taxpayer.
See IRM 220.127.116.11, Amended Claims, for guidance regarding amending a proof of claim.
Most unagreed cases should be forwarded to Technical Services for issuance of a notice of deficiency. The following types of cases may be forwarded for assessment and/or closure without review after Insolvency has been notified of the final audit results:
Agreed cases, except for pre-petition taxable periods where the bankruptcy petition was filed before 10/22/94 (pre-BRA ‘94 bankruptcy cases); or
All cases where a notice of deficiency is not required (some employment and some excise tax cases except for pre-petition taxable periods for cases filed before 10/22/94.)
Taxpayers, who disagree with the deficiency determination, including penalties and interest, may file a written protest and request an appeals conference.
Upon receipt of the request, the case will be referred to Appeals.
Upon conclusion of Appeals consideration of a bankruptcy case, Appeals will confirm the automatic stay is in effect.
For cases where the stay is in effect, Appeals will forward those cases to the appropriate Area Technical Service Examination Bankruptcy Coordinator after issuing the notice of deficiency.
When appropriate, the case will be suspended if assessment is prohibited by the bankruptcy stay.
All other Appeals closures will be processed by normal Appeals processing procedures.
If a valid notice of deficiency was issued prior to notification that the taxpayer was in bankruptcy and the period for filing a petition in the Tax Court has not expired, Letter 1384, Notice of Deficiency, will not be mailed to the debtor (taxpayer). Instead, the Area having jurisdiction over the return (or acquiring jurisdiction from, for example, a campus) will notify the taxpayer that the 90/150 day petition period is suspended while the automatic stay is in effect and he/she will have any of the 90/150 days remaining on the bankruptcy petition date plus an additional 60 days after the stay is lifted to file a Tax Court petition (see IRC section 6213(f)), or that a Tax Court petition may be filed if the taxpayer first receives permission from the Bankruptcy Court. Use the following pattern letter or similar correspondence for this purpose.
Address line 1
Address line 2
State and Zip
Social Security Number: xxx-xx-xxxx
December 31, xxxx
December 31, xxxx
December 31, xxxx
December 31, xxxx
December 31, xxxx
December 31, xxxx
Person to Contact:
Contact Telephone Number:
Employee Identification Number:
Dear Mr. xxxxxxxx:
This letter provides supplementary information to the notice of deficiency dated (insert mailing date). We have been notified that at least one of the taxpayers named in the notice has filed bankruptcy.
Please note that while a debtor is in bankruptcy, permission must be obtained from the United States Bankruptcy Court if the debtor wishes to file a petition with the United States Tax Court. The running of the period for filing a petition is suspended for the period during which the debtor is prohibited by reason of the bankruptcy from filing a petition with respect to the deficiency, and for 60 days thereafter per Internal Revenue Code section 6213(f)(1).
If the notice of deficiency previously issued is in joint names and one of these persons is not in bankruptcy, that person does not need the United States Bankruptcy Court's permission to file a petition with the United States Tax Court. If the bankrupt person fails to get permission from the United States Bankruptcy Court prior to filing their own petition with the United States Tax Court, their petition may be dismissed.
This letter in no way serves to suspend or extend the period in which a petition to redetermine the proposed deficiency may be filed with the United States Tax Court.
If you have any questions, please contact the person reflected above. Thank you for your attention to this matter.
Territory Manager (Note: This letter can be signed by anyone who can sign a statutory notice of deficiency.)
Unagreed Cases Held by the Area Where a Notice of Deficiency Has Not Been Issued — Preparation, Review, and Issuance of Statutory Notice of Deficiency:
Bankruptcy Notice of Deficiency, Letter 1384, will be issued by Examination in all cases for open years when deficiencies have been determined but not assessed.
Letter 1384 is not required for deficiencies in post-petition taxes incurred during administration by the bankruptcy estate of an individual in a Chapter 7 or 11 case. See IRM 18.104.22.168.
Do not issue Letter 1384 for post-petition tax years that fall under BAPCPA (bankruptcy petitions filed on or after 10/17/2005).
The notice of deficiency should be prepared in accordance with established procedures and should be issued to the debtor, not to the trustee.
An effort should be made to combine all years in one notice of deficiency. The debtor should be advised of any overassessment of income tax for another year(s). However, separate notices must be prepared when the case involves a bankruptcy filed under BAPCPA when both pre-petition and post-petition tax years are involved.
Under BAPCPA, an individual debtor's post-petition periods are no longer protected by the automatic stay. See IRM 22.214.171.124.1, BRA 94 and BAPCPA’s Effect on Assessments.
A bankruptcy case may involve a debtor who filed a joint return with a taxpayer who is not in bankruptcy (i.e., where a joint income tax return was filed but the bankruptcy case is commenced by only one spouse). The authority to issue a notice of deficiency to a debtor is not affected by the commencement of the bankruptcy case. The decision to issue a joint notice, Letter 1384, or separate notices, a regular notice of deficiency and a Letter 1384), should be dictated by the circumstances. See IRC section 1398(d) for debtor’s election to close the taxable year and spousal election to file joint returns. When issuing Letter 1384 to the bankrupt spouse and Letter 531-T to the non-bankrupt spouse for the same tax year(s), include both spouses names on both letters.
After a notice of deficiency is issued for a bankrupt taxpayer, the case will be held in 90/150 day suspense prior to forwarding the case to the Examination Bankruptcy Coordinator in Technical Services.
If a debtor wishes to file a petition with the Tax Court while a automatic stay is in effect, the debtor must request the Bankruptcy Court lift the stay.
If the debtor has filed a petition within the 90/150 day period without authorization from the Bankruptcy Court, Area Counsel will ask the Tax Court to dismiss the petition for lack of jurisdiction.
If the Letter 1384 is addressed to both a husband and wife and only one is in bankruptcy, the other spouse may petition the Tax Court without authorization from the Bankruptcy Court. The suspension period provided by IRC section 6213(f) does not affect the 90/150 day period for filing a petition with the Tax Court by the spouse not a party to bankruptcy proceedings.
Once the notice of deficiency has defaulted on the non-bankrupt spouse who files a joint return, the assessment should be made on the MFT 31 or NMF module or on NMF as appropriate. See IRM 126.96.36.199.1.1, Separate Assessments on Joint Taxpayers. After the MFT 31 or NMF assessment for the non-bankrupt taxpayer has posted, the case should be forwarded to the Examination Bankruptcy Coordinator in Technical Services for bankruptcy suspense.
Protect the assessment statute of the non-bankrupt spouse by completing the assessment prior to forwarding the case for bankruptcy suspense.
In TEFRA cases where one spouse is in bankruptcy, the assessment should be made timely on the MFT 31 or NMF as appropriate against the non-bankrupt spouse. Once the MFT 31 or NMF assessment for the non-bankrupt taxpayer posts, forward the case for suspense.
Once the automatic stay is lifted, the suspended 90/150 day petition period begins to run and failure to timely file a petition with the Tax Court will result in a defaulted notice of deficiency case.
If the Bankruptcy Court or the Tax Court determines that there is no change in tax liability for the bankrupt debtor, the case will be closed to Centralized Case Processing (CCP) once default of the notice of deficiency has occurred.
Post-petition tax years under BAPCPA are not affected by the automatic stay and should be assessed upon default of the notice of deficiency. Do not place these tax years into bankruptcy suspense.
If a pre-petition deficiency is determined by the Bankruptcy Court, it should be assessed within 60 days after the determination, notwithstanding other deficiency procedures or the automatic stay (under IRC section 6871(b)(2) and USC section 505(c)).
When the Bankruptcy Court lifts the automatic stay for the purpose of allowing the Tax Court case to proceed, the Service should ask that the Bankruptcy Court’s stay lift order allow the Service to assess the taxes as determined by the Tax Court (especially for pre-BRA ‘94 cases). If it does not, Area Counsel may request the Bankruptcy Court to lift the automatic stay so that the assessment may be made for pre-BRA ‘94 cases. Attach Form 3198, Special Handling Notice for Examination Case Processing, and check the block "Other" and insert the date by which the assessment should be made.
Unagreed Tax Cases Held by the Area Where a Statutory Notice of Deficiency is Not Required to be Issued
IRC section 6212 addresses cases when a notice of deficiency is required. With exception of transferee liability and fiduciary liability notices, all tax cases not covered by IRC section 6212 are immediately assessable without observing the notice of deficiency process except in bankruptcy cases provided in (b) below.
If the bankruptcy petition was filed before October 22, 1994, and the case is a pre-petition period, it should be suspended until the stay is lifted. The assessment can be made upon the lifting of the stay. For post-petition periods, taxes may be immediately assessed.
If the bankruptcy petition was filed on or after October 22, 1994, and the tax is not subject to IRC section 6212, it may be assessed without waiting for the automatic stay to lift.
The administrative tax returns and examination adjustments to the bankruptcy estate returns are not affected by the automatic stay. They are immediately assessable under IRC section 6871(b) and Treas. Reg. § 301.6871(a)-1. If the cases are agreed, they can be closed and assessed using normal procedures. If unagreed, Letter 1005 (DO), Deficiency Letter in Bankruptcy and Receivership Cases, should be issued covering deficiencies determined on returns of income of the bankruptcy estate.
The examination bankruptcy coordinator is responsible for reviewing each case to ensure the automatic stay is in effect before placing a case into bankruptcy suspense.
Except for when the Bankruptcy Court has authorized an assessment, cases were the tax deficiency cannot be assessed due to the automatic stay will be placed into bankruptcy suspense. As a general rule, the following conditions must be met prior to suspension:
Pre-petition tax years where the bankruptcy petition was filed before October 22, 1994.
All unagreed statutory notice of deficiency cases where the bankruptcy petition was filed after October 21, 1994 and before October 17, 2005.
All unagreed pre-petition tax year statutory notice of deficiency cases where the bankruptcy petition was filed after October 16, 2005.
All unagreed statutory notice of deficiency cases mentioned in a, b, and c above where the statutory notice of deficiency has not defaulted prior to the filing of the bankruptcy petition.
Generally, for unagreed cases where a bankruptcy petition has been filed, the assessment period will be suspended by the automatic stay after the Service issues a statutory notice of deficiency. Failure to issue the statutory notice of deficiency could result in a barred assessment.
Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCA), if a taxpayer has filed an individual Chapter 7, 11, or 13 bankruptcy within 12 months of the previous dismissal of one individual Chapter 7, 11, or 13 bankruptcy, the new petition may be considered as not filed in good faith, thus terminating the bankruptcy stay. See 11 USC 362(c)(3) and (4).
Chief Counsel Notice CC-2008-007 provides guidance when determining the status of the automatic stay for serial filers.
First check the docket report on PACER to see if there is an order granting the debtor's motion for continuance of the automatic stay.
Insolvency should input a TC 521 and TC 520 Closing Code 84 reflecting the date the automatic stay is terminated. If these transactions are not reflected on the taxpayer's account, do not assume the automatic stay is in effect. Refer to IRM 188.8.131.52, Serial Filers.
If in doubt about whether the automatic stay is in effect, check with Counsel.
Examination bankruptcy coordinators, when receiving cases for bankruptcy suspense, will review each case to ensure that the automatic stay is in effect before placing a case into bankruptcy suspense.
Research the bankruptcy status by taking the following steps:
Contact the Bankruptcy Court, Insolvency, or research any available on-line public records system, e.g., Automated Insolvency System (AIS), Asset Locator Service, and/ or Public Access to Court Electronic Records (PACER), to determine if the automatic stay is in place.
Most bankruptcy filings can be accessed using the IRS's current asset locator vendor at http://rnet.web.irs.gov/rs/index.htm.
Inspect TXMODA, IMFOL/BMFOL, or MFTRA to determine if the modules contain Transaction Code (TC) 520 (indicating the date the bankruptcy petition was filed) and/or TC 521 (bankruptcy dismissal or discharge date) with appropriate Collection closing codes, e.g., Closing Code 60, 61, 62, 63, 64, 65, 66, 67, 81, 83, 84, 85, 86, 87, 88, or 89. See IRM 184.108.40.206.1, Closing Codes. If you determine a TC 520 or TC 521 is missing, contact Insolvency to advise.
If the bankruptcy coordinator cannot send a case immediately to CCP for assessment and closure, the following preliminary screening should be performed:
Verify that the normal statute of limitation under IRC section 6501 is adequately protected for all assigned tax periods, including related returns. See IRM 4.27.4, Statute of Limitations Considerations, for the determination of a bankruptcy statute, if necessary.
Verify information on the petition with the Bankruptcy Court or any local systems in place and update as necessary. Determine the correct details of bankruptcy filings, such as name of the petitioner, identification number (SSN/EIN), petition date, chapter filed, location/court filed, docket number, and the trustee, if appointed. When in doubt, request the assistance of Insolvency.
Ensure Form 895, Notice of Statute Expiration, is properly completed and attached to the case, when applicable. Indicate on the Form 895 the bankruptcy filing date, discharge, or dismissal date and the notice of deficiency mailing date. Also indicate whether the bankruptcy is a joint filing or not. If one spouse is a non-petitioning spouse (is not included in the bankruptcy), indicate the date the MFT 31 or NMF assessment was completed. If you are waiting for an assessment to post for a non-bankrupt spouse, leave the ASED as the live ASED until the assessment has been completed.
IRM 25.6.23, Examination Process - Assessment Statute of Limitations Controls, provides guidance on the use of Alpha Code "KK."
Watch out for cases arriving which have already been updated to "KK." Ensure this is correct and if not, update to the correct ASED. Only the Technical Services Examination Bankruptcy Coordinator should use "KK. " IRM Exhibit 25.6.23-3, Instructions for Updating a Statute on AIMS.
Research AIMS to verify that a full master file or non-master file record has been established. Ensure the AIMS record properly reflects name of taxpayer, identification number (SSN/EIN), open tax period(s) compared to period(s) contained in the case, regular statute dates, organization code, status code, and project code. See chart below:
Bankruptcy Chapter Review Type Project Code Tracking Code Suspense Code 7 48 0663 4007 593 11 48 0664 4011 593 12 48 0665 4012 593 13 48 0666 4013 593
Conduct a limited review on all cases, inspecting for completeness and proper case assembly in the following areas:
Ensure the case contains a valid statutory notice of deficiency. See IRM 4.8.9, Statutory Notices of Deficiency Issued by Area Offices.
Ensure the case contains a completed Form 5344, Examination Closing Record, Compliance checksheet, Form 4549, Income Tax Examination Changes, or similar report of examination changes, tax return or RTVUE/BRTVU, and supporting workpapers.
Ensure Disposal Code 10, 12, or 13 is reflected on the RGS LAN record.
Move the RGS Lan record to Fileserver Suspend while the case is being held in bankruptcy suspense.
Verify the report represents all issues reflected in the workpapers and the computation of the tax has been correctly determined for all periods.
Reconcile the report to the transcript to ensure all previous adjustments have been considered, including unpostable assessments which have not been deleted.
Consider the required special handling for joint returns with non-bankrupt spouse and related returns. MFT 31 or NMF procedures may need to be followed. Refer to IRM 220.127.116.11.8, Joint Returns.
Ensure that any agreements which require processing are properly executed with the correct forms and signatures, e.g., waivers, statute extensions, etc.
Ensure assessments made in violation of the automatic stay are abated and procedures are in place that would allow assessments only after the automatic stay has been lifted.
Cases requiring further development or correction should be returned to the Examination group. Locally developed transmittal memorandum should be prepared to clearly explain additional action(s) needed.
Areas will develop local procedures to monitor the lifting of the automatic stay. At a minimum, monthly monitoring should be instituted.
In order to allow sufficient time for assessment of the deficiency, Technical Services Examination Bankruptcy Coordinator will transmit a list monthly to Insolvency in order to determine whether the automatic stay was lifted on any suspended cases in which a notice of deficiency was issued.
Within five workdays of the receipt of the list, Insolvency will advise Examination which assessments may be made and the date the stay was lifted.
Alternative procedures may be used in areas in which Examination has direct access to bankruptcy court databases such as PACER. Also, most bankruptcy filings can be pulled up using the IRS's current asset locator vendor at http://rnet.web.irs.gov/rs/index.htm.
For petitions filed prior to October 22, 1994, agreed cases could not be assessed due to the automatic stay, but assessment can be made and cases closed immediately after the automatic stay has been lifted.
Unagreed cases where the automatic stay has been lifted and the notice of deficiency has been issued can be closed the earlier of: the expiration of the 90/150 day period plus an additional 60 days for filing a petition with the Tax Court; or such time as Area Counsel makes the request. The file may be returned to notice of deficiency suspense and updated to Status 24 or it can be left in bankruptcy suspense until the default date.
Generally, once the automatic stay has been lifted, the case will be processed using normal processing procedures.
A bankruptcy case may involve a joint liability for a deficiency, i.e., joint returns of husband and wife.
If only one spouse filing a joint return is in bankruptcy, the agreed or unagreed liability of the non-bankrupt spouse will be assessed for the full amount of the deficiency by creating a Masterfile (MFT) 31 account (or Non-Master File (NMF) account, if applicable) under his/her own taxpayer identification number (TIN).
If the notice of deficiency periods have not expired prior to bankruptcy for the bankrupt spouse, the assessment will be made later under his/her own MFT 31 or NMF account created using his/her own TIN.
All unagreed cases coming into CCP for closing when the bankruptcy case is pending, as demonstrated by the existence of the AIMS X freeze, will be forwarded to the appropriate area Technical Services Examination Bankruptcy Coordinator Function.
CCP will release a freeze if a freeze has reappeared between the time Technical Services releases the freeze and CCP begins processing the case, as long as a copy of the Form 5348, AIMS/ERCS Update (Examination Update), showing approval for releasing the freeze is found with the case file.
The original Form 5348 will be maintained according to record retention instructions.
Form 5348 should be maintained for one year by the AIMS Coordinator or other designated person who inputs the AIMS X or U freeze release. Local procedures should designate who will retain the Form 5348.
A copy will be placed behind the Form 3198 attached to the front of the case file.