IRS audits are a real possibility for anyone who has traded cryptocurrencies. Tax controversy lawyer Alex Kugelman has an abundance of knowledge concerning cryptocurrency audits. He joined the BitcoinTaxes podcast to share his expertise on IRS cryptocurrency audits, including risk reduction strategies as well as enforcement predictions and misconceptions.
Listen to the podcast and read the summary below.
Alex Kugelman specializes in IRS audits. His experience includes four years of Federal government court experience at the U.S. Tax Court and a U.S. District Court. [00:40]
Alex: I’m an attorney out in California. I clerked for a US District Court judge and as well as the United States Tax Court. I’ve been in private practice exclusively doing tax controversy work for the past five years or so. I kind of got involved with crypto towards the end of 2016. I tended to represent clients mainly with compliance & disclosure issues with respect to cryptocurrency. I just really like it. Really interesting area.
The Coinbase summons in 2018 played a major role in Alex’s interest in crypto audits. [01:19]
Alex: What started me into the crypto space was when the IRS first issued summons for Coinbase. We started getting some interesting calls regarding that. And at that time I thought to myself, this might be an interesting area. So I started following the actual summons enforcement proceeding at the District Court here in San Francisco – from there kind of worked with people under different types of compliance, including international disclosures. Now we’re starting to see some of the first cryptocurrency audits come through.
First, let’s get a brief rundown of how IRS audits work. [02:00]
Alex: It is important to understand the IRS as an administrative agency and all different layers of it. So when it comes to an audit the term that the IRS uses is an examination and there’s three basic levels.
The first is a correspondence exam. That’s where you get a letter that says, dear taxpayer, so-and-so reported that you had $100 of interest income that wasn’t on your tax return – we’re going to increase your tax. If you want to challenge that, you can. And that’s basically termed an under reporter notice. That’s probably not going to be a cryptocurrency audit if you get that notice.
The next one is an office exam. That is someone in the local IRS office sending you a letter that says, we have selected a certain tax return for audit and we’re going to look at these issues. We’d like you to call us to schedule an appointment. That’s going to be usually a tax compliance officer that is doing that.
The third and probably the most serious level of exam is a field examination. That’s also going to be a local IRS representative, typically a revenue agent. There, the revenue agent may come to your work or ask come to your work or business to kind of conduct the audit.
All three of those are going to start the same: a letter that’s sent to you at your most recent address provided to the IRS.
Cryptocurrency audits follow a similar protocol. [05:40]
Alex: I think it’s likely that most crypto audits are going to start with one of two things happening. One is that there is information from the Coinbase summons that is inconsistent with what was on a taxpayer’s tax return. I think for someone who’s involved with that issue, they’re going to have a good sense of that one because they should’ve gotten an email notice from Coinbase.
Or two, the audit notice is going to identify older tax years – 2013, 2014 or 2015 because those are the years that the information related to.
Another reason I think people will get audited is going to be because information on the return is incomplete, in the sense that the taxpayer or the cryptocurrency owner reports some transactions, without enough detail to figure out the actual cost basis.
Does reporting your data in an aggregated fashion increase your chances of being audited? [06:45]
Alex: I mean one – to the extent that there’s going to be a lot of taxpayers – a lot of people use TurboTax, right? If that’s the way TurboTax is preparing all of those returns, it would seem to me you’re kind of in a herd of people like that. And at least it’s consistent with what a lot of people are doing. The second part of that is going to be at least those people who have prepare the returns in that manner, they’re going to, or should have, the underlying data. So even if it’s an aggregate reporting of each asset class as opposed to each individual trade, if there ever were questions then you’re going to have your CSV files, you’re going to have your Bitcoin.tax exports, you’re going to have all the information that you need to back that up.
Alex is an advocate of over-reporting your information to the IRS. [09:30]
Alex: I’m a big proponent of over-reporting – and I don’t mean paying too much tax. I just mean including too much information. Because at some point there’s kind of two ways that your returned can be flagged: a computer flags the return for some reason or there’s a special unit or a person who actually flags it. At the end of the day, a human being will be looking at that return and deciding whether it actually is going to go all the way through to an audit. I want them to completely understand what’s being reported, why it’s been reported, and if there’s too much information, that’s fine – it’s less likely that someone’s going to have more questions.
A crypto audit is very likely to be a field exam – and it’s important to hire a good rep. [11:00]
Alex: It’s very likely going to be a field exam, which means you’re going to have a revenue agent – and those are kind of the best of the best auditors for an IRS audit. And remember – an IRS audit is a civil matter. It is not criminal at this point. Again, it’s unlikely that it will become criminal. It is, however, the highest level of audit you’re going to get.
If you’re going to hire a representative, which you have every right to do, you should contact that person, let them know what’s going on and probably have them interface with the auditor. You should receive, as part of the opening notice or letter, the information document request – which is identifying what things to bring for the auditor. Also, it’ll tip to what topics might be important. For example the typical things you’re going to see will be bank statements, financial or asset account statements, which I view as requesting exchange statements or exchange CSV files. Any documents that show the cost basis for your cryptocurrency trades.
Audits are more art than science. [13:35]
Alex: The auditor has a fair amount of power. So if you play real hardball – that’s not going to prevent the auditor from expanding to other years. So when you get that audit notice ,and let’s say that you’re going to deal with this yourself, the first thing you want to kind of figure out is what are the areas that I wouldn’t want to go into, and what are the areas that I don’t have good records? That will help guide the way to respond or what information to pull together.
The reality is, and let’s just be honest here – for most people reporting cryptocurrency gains, they have all of the information. The IRS does not have much. They might have some records from Coinbase, but it’s not as if they have a treasure trove of third party data.
The burden is really going to be, in every audit, on the taxpayer to prove their tax return is correct.
It’s difficult to say how lenient the IRS will be regarding past years. [15:35]
Alex: I think the way that I would look at it is that maybe the standard of of records required to really substantiate older years might be a little bit lower for older years as opposed to now because it’s different now. There’s a lot better information provided by some of the exchanges. There’s a lot more software out there to help you, especially for people who are newer to crypto. You should have access to all your bank records. You should still have a lot of emails, reflecting on-ramping off-ramping, or other purchases. You should be able to kind of pull this all together.
I can understand when we have clients who come in and are early adopters and they’re missing chunks of information. So I do think that in those types of circumstances, yes, I think there would be a little bit of leniency. But I don’t think if you’re asking, hey, I reported my gains in 2017 but I never really did it 14, 15 or 16 – I don’t think that’s going to be viewed very favorably.
It is possible to substantiate your data without all of your records. [19:00]
Alex: I think the first thing is, I mean, outside of cryptocurrency and just generally in audits, how many people have complete records to support everything on their tax return from three years ago? Right? It’s just not the reality.
The best source of information in a lot of these cryptocurrency clients are the clients themselves. They kind of know what they did and they can remember. There’s some who take good notes and other people don’t, but as you go through and ask people: what exchanges have you’ve been on, what type of coins, if you bought any ICOs, have you ever sold for actual US cash, and have you ever bought goods or services? As you talk through things people tend to recall what happened. We use that information and we cross check that against bank statements, as well as CSV files, to pick out what those transactions look like.
Most people have some sort of records, at least reflecting the transfer in and the transfer back out of that exchange. So you can use historical data and historical pricing information to essentially estimate what that transaction would have been. And then what we do is we provide a written statement summary of what we’re doing and why we’re doing it.
The other big one that we see all the time – and anybody listening to this, please hear this, do not trade for your friends on your exchange accounts – because that type of commingling causes such major problems. Essentially you are walking into those taxable gains just because you’re allowing someone access to the exchange to make sales.
If you need representation for an audit, get representation. [23:00]
Alex: My general rule is that I think experienced representatives are really important. I probably would not hire the CPA that prepared my return unless they were: one, experienced with being a representative in audits. And two, you felt comfortable that they weren’t going to go in there with a conflict of interest. But I do think if you’re worried about going into audit – hiring a skilled, and experienced rep is really, really important.
If they’re experienced with this, they should understand the appropriate ethical standards and go in there and essentially help resolve portions of the audit and move it to a resolution that you can deal with.
Taxpayers actually have a lot of leverage in an audit. And that sounds crazy to say, but there is a lot of truth to that. And so as you’re kind of working through the audit itself, you want to make sure that you’re not just agreeing to something to be done with it. You’re not agreeing to something just because you think that you’ll get in more trouble or get a worse result otherwise.
There are important risk-reduction strategies you can utilize to avoid a crypto audit. [28:15]
Alex: The first thing that you really want to do, is just assess; for those of you that are really worried about an audit – just assess what it is you’ve actually done over the years. When did you start trading, what exchanges were you on, do you have records that reflect on-ramping and off-ramping? And that’s going to be your bank account statements. Do you know where you’ve been, what exchanges you’ve been on?
For foreign exchanges, there may not be as much of that AML & KYC compliance, but I really believe that you do have reporting requirements under FATCA for FBAR and something called an 8938, which if you listen to the podcast with Tyson, he kind of explains what that is. But it’s basically if you have ownership of a foreign bank account or asset, you have certain reporting requirements, whether you’ve had income or not.
You want to make sure you at least track when you’ve actually exchanged crypto for cash or vice versa. That’s partly because that’s one of those areas where when people can get in trouble with some sort of federal investigators – because those types of transactions can be potentially considered money laundering.
For those who believe that they’ve used like-kind exchange rules to defer taxable gains -you should look on your tax returns to see if you filed the form 8824, which is where like kind exchanges are actually reported. That kind of goes back to the over reporting issue I was talking about before. I think that if you didn’t report the actual trades that you’re taking like-kind treatment for in past years, I don’t know that you’ve actually taken like-kind treatment to be frank with you. I think, objectively, that might be viewed as just not reporting certain transactions.
You want to make sure that you address these issues sooner rather than later.
1099-K forms can be misleading – to the recipient and, potentially, the auditor. [32:40]
Alex: A 1099-K is actually a merchant processing third party information returns. And it really is typically associated with people who have credit card sales – so it’s going to reflect a gross amount and typically on a monthly basis.
It shows the gross amount and what I’ve seen too is that sometimes transfers actually get caught into that amount as well. So it’s not even just gross sales or purchases – it may have other information. So the 1099-K can be really inflated. That’s why reconciling that against accounting records is really, really important because that is one of those issues that I think could lead to an exam.
To those who think crypto isn’t beholden to tax laws: you are not correct. [37:38]
Alex: The current commissioner of the IRS is Charles Rettig, and he’s a really well known practitioner in tax controversy. I know from people that know him well, that he’s actually mentioned Reddit as one of the reasons that cryptocurrency enforcement is his number one enforcement priority right now.
The other person that I’ve seen speak a couple of times is the head of the IRS Criminal Investigation Unit. His name is Don Fort and every year he does a presentation at the National Tax Controversy and Criminal Tax Conference. The last two years cryptocurrency has been number two and number one on his list. As much as the IRS lacks the funding and the manpower that it needs for all the enforcement, the IRS CI are really, really good and they are probably best agency at dealing with cryptocurrency enforcement issues.
I really think that it’s gaining steam and I think once the audits from the Coinbase summons kind of get going, I think it’s going to be a really scrutinized area. I think the people who have gone through the cost and the pain of disclosing and amending returns and doing everything they can will be happy that they did in a couple of years. I think the other people are going to be sweating it out – I don’t know if it’s ever really worth it to be honest with you. I would recommend people do their best to get in compliance.
In summary: do your best to report your crypto gains and losses – and don’t try to pull one over on the IRS. [42:36]
Alex: For people who have potential issues with past years, one is getting a consistent record and just amending your past years, so they’re consistent.
For people who have the foreign account issues – let’s just say, for example, had an account with Binance, and that Binance account was never reported. The IRS has disclosure programs that allow you to amend certain returns, pay the tax that you report and pay a penalty, which would be 5% of the the highest account value that you have.
For people who don’t want to deal with this, I think taking evasive steps is the best way to get the worst result possible. One of the things that I learned very early in dealing with audits and tax compliance, is that you can always make things worse. I think you really just want to address it and resolve the issue while you have a good opportunity.
We may see criminal prosecution of some of the “big fish” tax evaders from the Coinbase summons. [46:43]
Alex: Yeah, and I think the two things that I’m fairly certain we’re going to see: one is we’re going to see the IRS use the information provided by Coinbase to start auditing the biggest account holders from that period. I think that’s very likely.
Probably the second one that I would say is very likely is that you’re going to see limited criminal prosecutions related to cryptocurrency. And these are going to be people that have some sort of level of notoriety, whether actually famous or maybe famous in the cryptocurrency world. That’s typically how the IRS and Department of Justice uses limited resources to prosecute criminal tax tax crimes.
Alex is a great guy to reach out to with any audit-related questions, crypto or otherwise. [48:50]
Alex: You can go to my website: www.kugelmanlaw.com. You can email me at Alex@KugelmanLaw.com. I have clients all over the country, international clients. If you need any sort of help, whether that’s representing you, or at least doing the nitty gritty audit investigation, we’re always willing to talk to people and help them out as best we can.