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  • Daniel Layton
  • January 10, 2019 01:36:39 AM
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A Little About Us

Newport Beach tax attorney Daniel Layton defends Orange County clients in IRS and FTB audits & collections, criminal tax defense, tax fraud & evasion cases, FBAR penalty defense, and foreign account disclosures (e.g., streamlined procedures).

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    Letting the Door Hit You in the Tax on the Way Out: IRS Issues Relief Procedures for Certain Persons Who Relinquished US Citizenship But Wish to Complete Tax Compliance

    In September of 2019, the IRS Issued Relief Procedures for Certain Persons Who Relinquished Their United States Citizenship But Who Were Out of Tax Compliance. The […] The post Letting the Door Hit You in the Tax on the Way Out: IRS Issues Relief Procedures for Certain Persons Who Relinquished US Citizenship But Wish to Complete Tax Compliance appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    In September of 2019, the IRS Issued Relief Procedures for Certain Persons Who Relinquished Their United States Citizenship But Who Were Out of Tax Compliance.

    The Foreign Account Tax Compliance Act (“FATCA”) was enacted in 2010 with a stated purpose of combating tax evasion by U.S. persons holding accounts and other financial assets offshore. Casting a wider net than that, it also add extra reporting requirements for people who aren’t avoiding taxes and, by imposing withholding requirements on foreign financial and non-financial foreign entities if they do not comply, it required certain foreign financial and non-financial entities to report assets held by their account holders. Not only did this reportedly cause some foreign financial institutions to cease serving some US-citizen clients to avoid the hassle and expense of the additional paperwork, the enactment of FATCA appeared to be the precipitating factor in a relatively enormous surge in renouncements of US Citizenship. Per Treasury data (see https://www.americanexpatfinance.com article here) the renunciations from 2000 through 2009 varied between 278 and 768 people each year (totaling 5,110 renunciations), but from 2010 through 2019 was as shown below:

    2010 – 1,534

    2011 – 1,781

    2012 – 933

    2013 – 2,999

    2014 – 3,415

    2015 – 4,279

    2016 – 5,411

    2017 – 5,133

    2018 – 3,983

    The total in just 2016 exceeded the entire 10-year period preceding FATCA. In the 9 years since (including 2010), the total renunciations was 29,468. Even assuming 2019 has half the renunciations that 2018 did, the post-FATCA decade will have increased US citizenship renunciations by a factor of more than 6.

    The Expatriation Tax: Hitting You With Tax on Your Way Out.

    Section 877A of the Internal Revenue Code (Title 26 of the United States Code) covers the tax responsibilities of expatriates. That section was enacted June 17, 2008 and amended in 2014 and 2018. A summary of the tax rules applying to those who expatriated on or after June 17, 2008, can be found on the IRS’s website (click here). Per those guidelines, “covered expatriates” includes those with net worth of $2 million or more as of expatriation, or you didn’t certify compliance on Form 8854 US tax compliance for the 5 years before expatriation, or your average net income tax for the 5 years before expatriation was over $150,000 (accounting for inflation, this was $151,000 in 2012 and $160,000 in 2015). This tax is clearly intended to catch two categories of people: those who can pay a lot of tax and those who were not in tax compliance.

    For those who were not in tax compliance but don’t want to be caught in the net of Section 877A, the IRS has provided procedures to rectify the lack of compliance for certain persons. These procedures can be found on the IRS’s website as well (click here). The preface to the procedures on the IRS’s web page is long, but at the bottom, the following key information is provided:

    Under the Relief Procedures for Certain Former Citizens (“these procedures”), the IRS is providing an alternative means for satisfying the tax compliance certification process for citizens who expatriate after March 18, 2010. These procedures are only available to U.S. citizens with a net worth of less than $2 million (at the time of expatriation and at the time of making their submission under these procedures), and an aggregate tax liability of $25,000 or less for the taxable year of expatriation and the five prior years. If these individuals submit the information set forth below and meet the requirements of these procedures, they will not be “covered expatriates” under IRC 877A, nor will they be liable for any unpaid taxes and penalties for these years or any previous years.

    These procedures may only be used by taxpayers whose failure to file required tax returns (including income tax returns, applicable gift tax returns, information returns (including Form 8938, Statement of Foreign Financial Assets), and Report of Foreign Bank and Financial Accounts (FinCEN Form 114, formerly Form TD F 90-22.1)) and pay taxes and penalties for the years at issue was due to non-willful conduct. Non-willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law.

    Following that section there is a series of 23 FAQs with answers (and, non-answers). For example FAQ1 advises that there is no termination date with the offer of these procedures, except insofar as the IRS will make an announcement prior to terminating them. So, they don’t know, but they will keep us updated.

    FAQ2 provides that the following taxpayers are eligible to use the procedures:

    Only taxpayers whose past compliance failures were due to non-willful conduct may use these procedures. All the following criteria must be met.

    1. You have relinquished your U.S. citizenship after March 18, 2010.
    2. You have no filing history as a U.S. citizen or resident;
    3. You did not exceed the threshold in IRC 877(a)(2)(A), related to average annual net income tax for the period of 5 tax years ending before your date of expatriation;
    4. Your net worth is less than $2,000,000 at the time of expatriation and at the time of making your submission under these procedures;
    5. You have an aggregate total tax liability of $25,000 or less for the five tax years preceding expatriation and in the year of expatriation (after application of all applicable deductions, exclusions, exemptions and credits, including foreign tax credits, but excluding the application of IRC 877A and excluding any penalties and interest).
    6. You agree to complete and submit with your submission all required Federal tax returns for the six tax years at issue, including all required schedules and information returns. See FAQs 11, 12, and 16 for information on how to complete these returns.

    Only taxpayers whose past compliance failures were due to non-willful conduct may use these procedures. All eligibility criteria must be strictly met to use these procedures.

    The “non-willfulness” requirement will look familiar to tax practitioners with experience in the Streamlined Disclosure procedures for domestic taxpayers who failed to file FBARs, as does the six-year compliance period. Just like for the formerly-available Offshore Voluntary Disclosure and the Streamlined Disclosure procedures, it will be important to review the detailed information in all 23 (or more, as they arise) FAQs to make sure a taxpayer is eligible and that the submission package meets all the criterion. Nonetheless, as with those programs, this program could benefit thousands of taxpayers if they act before the IRS withdraws the procedures or adds further restrictions.

    The author of this blog post, Daniel W. Layton, is a former IRS attorney and former attorney in the U.S. Department of Justice in the Tax Division of the Los Angeles U.S. Attorney’s Office. He has his own tax law firm in Newport Beach, California.

    Posted 09/24/2019 by Daniel Layton.

    The post Letting the Door Hit You in the Tax on the Way Out: IRS Issues Relief Procedures for Certain Persons Who Relinquished US Citizenship But Wish to Complete Tax Compliance appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release?

    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Supervised Release or Probation? Because the Federal Rules of Evidence do not […] The post What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Supervised Release or Probation?

    Because the Federal Rules of Evidence do not apply in proceedings for revocation of supervised release revocation or revocation of probation, the standard for admitting evidence for the judge to consider is lower than in a regular trial.

    “Supervised release revocation hearings are not criminal prosecutions….” U.S. v. Kelley, 446 F.3d 688, 689 (7th Cir. 2006). “Consequently, the full panoply of rights that the Constitution guarantees to criminal defendants does not extend to individuals who are the subject of revocation proceedings.” U.S. v. Neal, 512 f.3d 427, 435 (7th Cir. 2008). “[T]here is no though to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Morrissey v. Brewer, 408 U.S. 471, 489 92 S. Ct 2593, 2604 (1972).

    The Federal Rules of Evidence do not apply in “[p]roceedings for… granting or revoking probation….” Fed. R. Evid. 1101(d)(3); See, also, United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (the Rules of Evidence “do not strictly apply to revocation hearings.”). The exclusion also extends to proceedings for the revocation of supervised release. United States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997) (agreeing with the rationale of United States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994)(“…Congress considered probation revocation and supervised release revocation to be so analogous as to be interchangeable.”). Therefore, hearsay testimony and unauthenticated documents may be admissible. See, e.g., U.S. v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975); U.S. v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995), cert. denied 516 U.S. 881, 116 S. Ct. 216 (1995). Similarly, otherwise excludable evidence is also admissible. See Herbert v. United States, 201 F.3d 1103, 1004 (9th Cir. 1999) (exclusionary rule does not apply); United States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003) (ban on use of nolo contendere plea in Fed. R. Crim. P. 11 does not apply in supervised release revocation hearings).

    Crawford does not create a Sixth Amendment right of confrontation applicable to supervised release revocation or similar proceedings.” Hall, 419 F.3d 989 (referring to Crawford v. Washington, 511 U.S. 36, 124 S. Ct. 1354 (2004). “ Still, the hearings must comport with the protections afforded to defendants by the due process requirements of the Fourteenth Amendment to the Constitution. Morrissey, 408 U.S. at 489. These protections including notice, an opportunity to be heard and present witnesses and evidence, the right to confront an adverse witness unless there is good cause otherwise, a neutral and detached hearing body, and a written statement by fact-finders as to the basis for revocation. Id. Keeping in mind, however, the flexibility to consider letters, affidavits, and other material not usually admissible criminal trial. Id.; Miller, 514 F.2d at 42-43; Pratt, 52 F.3d at 676.

    Where hearsay not subject to an exception is to be submitted as evidence, the Court should employ, on the record, “a process of balancing the defendant’s interest in confrontation against the Government’s good cause for denying it.” U.S. v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (citing U.S. v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987)); see, also, Hall, 419 F.3d at 986. The defendant’s interest in confrontation is weighed by looking at the importance of the evidence to the ultimate finding. Martin, 984 F.2d at 311. “Good cause” is weighed by “look[ing] to both the ‘difficulty and expense of procuring witnesses’ and the ‘traditional indicia of reliability’ borne by the evidence.” Id. At 313 (internal citations omitted) (citing Gagnon v. Scarpelli,411 U.S. 778, 782 n. 5, 93 S. Ct. 1756, 1760 n. 5 (1973), and Simmons, 812 F.2d at 564).

    Where a party is concerned with the difficulty and expense of procuring witnesses, a court may consider whether the conventional substitutes for live testimony, including affidavits and documentary evidence, may be appropriate. Gagnon, 411 U.S. at 782 n. 5; see Martin, 984 F.2d at 313 (dismissing the difficulty and expense factor for government’s failure to provide a substitute).

    As to the second consideration for determining “good cause,” courts have looked at indicia of reliability, such as details contained in the statements and corroborating evidence. See, e.g., Hall, 419 F.3d 988-989 (hearsay statement to police admissible because corroborated by facts); Miller, 514 F.2d at 42 (unauthenticated state court files and a state probation report were admissible because the U.S. Probation Officer testified that he made xerox copies and obtained the additional information from the court files); Simmons, 812 F.2d at 564-565 (not plain error for the district court to admit authenticated hospital records prepared by the defendant’s physician over a hearsay objection); Walker, 117 F.3d at 420-421 (hearsay testimony of one probation officer about records kept by another probation officer was sufficiently reliable).

    For these reasons, the lower standard can cut both ways, in favor of a defendant or the government.

    Daniel W. Layton, the author of this post, is a former federal prosecutor and former IRS attorney, who founded a tax litigation practice representing individuals and businesses in Newport Beach, California.

    Posted on 09/03/2019 by Daniel Layton.

    The post What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime

    A Murrieta return preparer is reported by patch.com (here) to have received a sentence of home detention, probation, and community service, although the sentencing guidelines provided […] The post Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    A Murrieta return preparer is reported by patch.com (here) to have received a sentence of home detention, probation, and community service, although the sentencing guidelines provided for up to 6 years in prison. Per reports, the refunds falsely claimed caused at least $175,000 in tax loss, but could have been almost $3 million. Unsurprisingly, I could not locate a DOJ press release on this sentence. The totality of the factors the U.S. District Court Judge, Hon. Dolly Gee, considered in issuing the sentence are not in the article, although it noted that he submitted to a plea agreement and had no prior felony convictions.

    Per the article:

    In one case cited in documents filed in Los Angeles federal court, a client was identified as a consultant to a non-existent business called Video Tech, showing losses for 2011 and 2012. However, the woman disavowed any knowledge of the consultancy or McCall’s use of Video Tech on her return.

    One could speculate that the judge did not find this fact as very convincing, as it is hard to believe that a taxpayer would not notice an entire schedule C with a fake business on it (though it is possible). However, the judge’s train of thought on this is not known.

    Per an earlier article in lawfuel.com (here):

    In a the plea agreement filed in connection with today’s proceeding, McCall admitted that, between 2012 and 2014, he knowingly prepared and submitted at least 29 federal income tax returns for clients on which he (a) did not identify himself as the paid tax preparer; (b) attached a Schedule C, Profit or Loss from Business form, that falsely claimed a net loss from a business supposedly owned and operated by the client; and (c) falsely claimed a tax refund due to the client.

    That article noted that the tax loss resulting from the filing of these 29 false returns was at least $175,918, but, in the plea agreement, hundreds of other returns he prepared included Schedules C which similarly claimed substantial losses from a business, and “resulted in refunds claimed of approximately $2,998,946.”

    Posted on 08/08/2019 by Daniel Layton.

    The post Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens

    Interpleader actions are authorized by 28 U.S.C. § 1335 and Rule 22 of the Federal Rules of Civil Procedure where plaintiffs holding funds to property upon […] The post The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    Interpleader actions are authorized by 28 U.S.C. § 1335 and Rule 22 of the Federal Rules of Civil Procedure where plaintiffs holding funds to property upon which conflicting claims are being made by others may deposit the funds with the District Court and require the defendant parties to litigate their interests.  Libby v. City Nat’l Bank, 592 F.2d 504, 507 (1978).  Rule 22 of the Federal Rules of Civil Procedure permits interpleader in any action that meets the normal jurisdictional requirements to be in federal court, such as a substantial question of federal law.  See Morongo Band of Mission Indians v. Cal. State Board of Equalization, 858 f.2d 1376, 1383 (9th Cir. 1988).  Federal interpleader jurisdiction depends on identifiable property, or a limited fund or pecuniary obligation – as opposed to an inchoate, uncertain claim against the general assets of a party.  Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1159 (5th Cir. 1976).  The United States may be named a party in an interpleader action in federal district court where the United States claims a lien on the subject property.  28 U.S.C. § 2410 (a)(5).

    The purpose of the interpleader action is for the court to determine who is entitled to payment from a certain funds, where there is insufficient funds to pay all potentially entitled parties. “[A] stakeholder, acting in good faith, may maintain a suit in interpleader for the purpose of ridding himself of the vexation and expense of resisting adverse claims, even though he believes that only one of them is meritorious. Hunter v. Federal Life Ins. Co., 111 F.2d 551, 556 (8th Cir. Ark. 1940). The interpleader action is often attractive to a third-party holder of the funds because it may allow discharge from liability of the party who deposits the funds (see more in the blog post here and here). “The priority of claims to the res in an interpleader must normally be determined at the time the action is initiated, and cannot be altered by events after the fund becomes viable.”  Texaco, Inc. v. Ponsoldt, 118 F.3d 1367, 1371 (9th Cir. 1997).  This means that actions which affect the priority of the lien (e.g., the expiration of a lien notice) will not change the order of right to payment which existed at the time of the complaint. The general rule that “Federal law governs the relative priority of federal tax liens and state-created liens” applies in interpleader actions.  See Quality Loan Serv. Corp. v. 24702 Pallas Way, 635 F.3d 1128, 1134 (9th Cir. 2011).

    The basic rule of priority (i.e., “first in time, first in right”) applies when federal tax liens compete with a private claimant whose claim is based on a right created by state law.  26 U.S.C. §§ 6321-6323; United States v. City of New Brittain, 347 U.S. 81, 85, 74 S.Ct. 367, 370 (1954).  In order to compete with the statutory federal tax liens, other lien claimants must show that their liens became choate and were perfected under state law before the federal tax liens arose.  United States v. McDermott, 507 U.S. 447, 453-55, 113 S. Ct. 1526, 1529-31 (1992).  “The purpose of filing the notice of lien [is] not to create a lien, but only to maintain its priority over certain other liens, as provided in Internal Revenue Code section 6323.”  Baldassari v. United States, 79 Cal. App.3d 267, 272, 144 Cal.Rptr. 741, 743 (emphasis in original).   Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors will have priority under 26 U.S.C. § 6323(a) unless the federal tax liens are recorded first.  26 U.S.C. § 6323(a). 

    A judgment lien creditor is “a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money.”  Lawyer’s Foreclosure Specialist, Inc. v. Schwarz, 2005 U.S. Dist. LEXIS 24681 *5, 96 A.F.T.R.2d (RIA) 6566 (Dist. Missouri 2005) quoting 26 C.F.R. § 301.6323(h)(1)-(g) (2005).  When the lien involves a money judgment, the claimant must have “perfected a lien under the judgment on the property involved.” Tasemkin, Inc., 196 F.3d at 865, quoting 26 C.F.R. § 301.6323(h)1-(g).   The lien must be choate (see blog here) to obtain perfection, which means “the identity of the lienor, the property subject to the lien, and the amount of the lien” must be established.   City of New Britain, 347 U.S. at 87.  In addition, for a lien to be choate requires the right to summarily enforce the lien (see Minnesota Dep’t of Revenue v. United States, 184 F.3d 725, 728 (8th Cir. 1999); United States v. Vermont, 377 U.S. 351, 359, 84 S. Ct. 1267, 12 L. Ed. 2d 370, 1964-2 C.B. 493 (1964)), with nothing further needed be done to make it enforceable (United States v. Bond, 279 F.2d 837 (4th Cir. 1960)). If such a lien is filed before the IRS files its lien, even if the IRS’s balance due arose first, the interpleader court can determine that the non-IRS lien will be entitled to priority of payment.

    Posted on 08/08/2019 by author Daniel Layton.

    The post The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion

    The DOJ issued a press release in June highlighting the sentencing, after conviction at jury trial, of an Oregon woman found guilty of stealing over $1 […] The post Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    The DOJ issued a press release in June highlighting the sentencing, after conviction at jury trial, of an Oregon woman found guilty of stealing over $1 million from a foster care agency. Portland’s Mary Ayala had served as President, Executive Director, and primary agent of “Give Us This Day,” a foster care agency and youth residential program from 2008 to 2015.

    The FBI agent seemed particularly incensed, as many likely would be, about the idea that the woman had effectively stolen from children who already faced challenges. Per the press release, which can be found here:

    “Foster children have already lost almost everything—their parents, their homes, their sense of security. Mary Holden Ayala took from them the last thing they had—faith in a foster care system that is supposed to give them a chance at a better life. To steal from society’s most vulnerable children to enrich yourself is simply unconscionable,” said Renn Cannon, Special Agent in Charge of the FBI in Oregon.

    “Stealing money meant to pay for foster care expenses is reprehensible,” said Special Agent in Charge Steven Ryan of the HHS Office of Inspector General. “Such greed-fueled fraud can impact those in need and cheats taxpayers; however, today’s sentence shows that our hardworking investigators and law enforcement partners are committed to making sure criminals are held accountable for their actions.”

    According to court documents, since its inception in 1979, GUTD was primarily funded by the Oregon state and federal government for foster care services including hiring and screening foster parents for community placements, compensating foster parents for services and placing foster children in residential or group homes. GUTD federal funding originated from the Administration for Children and Families, a division of the U.S. Department of Health and Human Services, and was administrated by ODHS.

    From 2009 through 2015, Ayala exercised sole and complete control over GUTD finances. No other GUTD employee or board member had access to the organization’s bank accounts or statements during this time. With no internal controls in place, Ayala wrote checks, used the GUTD debit card and withdrew cash at will, using the organization’s bank accounts as her own.

    Ayala used the money stolen from GUTD to pay her mortgage, remodel her home and fund other retail, travel and transportation expenses. Additionally, she used the money to fund other, non-GUTD business ventures including a media company, Big Mary’s fish and ribs restaurant in Portland, and to purchase and flip a commercial property.

    In total, Ayala stole over $1 million from GUTD. As a result, her employees, foster parents and foster children in GUTD’s care suffered. GUTD residential house managers complained about a lack of basic necessities, including but not limited to food, toiletries and cleaning supplies.

    In 2015, the day after Ayala resigned her position at GUTD, she filed five false federal income tax returns for tax years 2009 through 2013. Shortly thereafter, she filed a sixth false return for tax year 2014. Ayala failed to file a tax return in 2015.

    Surprisingly, Ayala was sentenced to 33 months, which by my calculation is the minimum under the sentencing guidelines (Offense Level 20, see the table here) for theft or embezzlement only (see the United States Sentencing Commission’s Guidelines at Section 2B1.1, a 6 base level plus 14 for the amount), without taking into account the additional tax crime. But, there is also an additional 6-level increase under that section where the theft “resulted in substantial financial hardship to 25 or more victims.” In this case, while the DOJ could have argued for this increase, it may have chosen not to make the argument because the children and families were not the direct victims. It is unclear what mitigating factors were presented to the judge from the press release.

    The author of this post is Daniel Layton, a former Federal Prosecutor in the Los Angeles U.S. Attorney’s Office Tax Division and former IRS trial attorney. He has offices in Newport Beach and Fullerton, California.

    Posted on 7/25/2019 by Daniel W. Layton.

    The post Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    How Long Do You Have to File a Franchise Tax Board Tax Refund Suit?

    Question: How Long Do You Have to File a California Franchise Tax Board Income Tax Refund Suit? Answer: Generally, if you have full paid the tax […] The post How Long Do You Have to File a Franchise Tax Board Tax Refund Suit? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    Question: How Long Do You Have to File a California Franchise Tax Board Income Tax Refund Suit?

    Answer: Generally, if you have full paid the tax and filed a claim for refund (e.g., through an amended return), once the California FTB issues its denial (e.g., through a notice of action) or the Office of Tax Appeals (OTA) issues its decision, opinion or dismissal, you have 90 days to file the appeal.

    The FTB’s provisions somewhat mirror the IRS’s, but the IRS’s provisions do not allow for a second chance following an OTA disposition.  As explained in more detail in another blog post, here, “under the federal statute, 26 U.S.C. § 6532(a)(1), a taxpayer generally may not wait longer than 2 years from the issuance of the IRS’s disallowance of the administrative refund claim to bring suit. 

    “A taxpayer may file suit to recover ‘a tax claimed to be illegal,’ after the tax has been paid. (Cal. Const., art. XIII, § 32.)” Jensen v. Franchise Tax Bd., 178 Cal.App.4th 426, 100 Cal. Rptr. 3d 408 (Cal. App., 2009). Section 19382 of the Revenue and Taxation Code of California provides that the taxpayer may bring an action for a claim for refund after full payment and denial by the FTB. If a notice of action is received denying the claim for refund, you have 90 days to file the suit in superior court (Section 19384) or to file an appeal to the Office of Tax Appeals (as substituted in for the Board of Equalization in this section) (Section 19324).  If the OTA issues a decision, opinion or dismissal, you have 90 days from that event to file a claim in superior court (Section 19384).

    Section 19385 provides that the taxpayer may consider the claim disallowed if the FTB fails to mail notice of action on the refund claim within 6 months after the refund claim was filed. This mirrors part of 26 U.S.C. § 6532(a)(1) which provides for a 6 month wait before filing suit after the claim is filed.

    The author of this post, Daniel W. Layton, is a former IRS trial attorney and ex-federal prosecutor in Los Angeles’s U.S. Attorney’s Office, Tax Division. He is the founder of a tax law firm in Orange County, California.

    Posted 07/23/2019 by Daniel Layton.

    The post How Long Do You Have to File a Franchise Tax Board Tax Refund Suit? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


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