The IRS’ Annual Warning: The 2023 Dirty Dozen

Each year the Internal Revenue Service (“IRS”) publishes its “Dirty Dozen” list of the most notorious tax scams from the year. The list alerts taxpayers and professionals alike of the most commonly used tax cons during the last year. The scams run the gamut from promoting taking incorrect credits to produce large refunds to misusing international accounts. Let’s dive in!

Perhaps unsurprisingly, five of the twelve scams making their way onto the Dirty Dozen focus on technology and information grabs. The first comes in the form of fake communications from individuals posing as employees of legitimate tax and financial organizations such as the IRS, state departments of revenue, or other similar organizations. Communications arrive in the form of a text, called “smishing” or an email called “phishing” and ask the taxpayer to provide personal information which allows the scammer to steal the identity of the taxpayer. The IRS always initiates contact through mail, not email or text. Tax professionals need to worry about the second of the Dirty Dozen: “spearphishing” which is a phishing attempt targeted at a specific organization. Tax professionals who have suffered a data breach find themselves at greater risk for spearfishing. A successful spearfishing attempt gives the scammer access to client data allowing the thief to file fraudulent tax returns, among other things.

The third on the list involves scammers who offer their services to create a profile for the taxpayer on and prepare tax returns. The online account gives access to valuable tax information about the taxpayer and requires no assistance for creation. The IRS encourages each individual taxpayer to establish their own account. Anyone with access to the account could misuse the information found in the account. Related to the fake online accounts are fake professional preparers who take the number four spot on the list. While many wonderful preparers exist, watch out for anyone who refuses to sign on the dotted line, who charges a fee based upon the amount of the refund, or who neglects to provide their IRS Preparer Tax Identification Number (“PTIN”). Taxpayers should only sign a completed return and should create an IRS account themselves.

Any list of fraudulent schemes would be incomplete without mentioning social media, which is the fifth and final of the technology-related scams. The IRS notes that social media sites circulate inaccurate and misleading information. Some of it relates to common tax documents like Form W-2, or other forms intended to be used by a small group of individuals. The schemes encourage folks to submit false, inaccurate information to secure a refund. The IRS warns that those things that sound too good to be true generally are.

Two separate tax credits make the Dirty Dozen list. The first or number six on the list relates to the Employee Retention Credit (“ERC”). Those promoting the scam encourage individuals who do not qualify for the credit to file for it anyway. The IRS has discovered radio and internet ads regarding the ERC. First, most people do not qualify for this credit and second, the scam gives ne’er-do-wells an opportunity to collect taxpayer information under the guise of a refund that the scammers know the taxpayers cannot receive. The other tax credit scam giving us number seven on the list relates to the fuel tax credit. Here again, the credit has limited application; however, unscrupulous return preparers and promoters entice taxpayers to claim the credit thereby receiving a larger refund. Unfortunately, the taxpayer doesn’t qualify for the refund and will be subject to interest and penalties once discovered. The IRS has indicated an increase in the promotion of filing for refundable credits.

Fraudulent “Offer in Compromise” (“OIC”) mills sit at number eight on the list. The IRS offers OIC to people unable to pay their tax liabilities as a way to settle their debt. They play an important role in our system and require that the taxpayers desiring to avail themselves of such settlement meet certain qualifications. Mills promoting the OIC mislead taxpayers into thinking that they have a valid OIC with the IRS when they do not which often costs the taxpayers thousands of dollars.

The IRS grouped together three separate schemes all with international implications under the “schemes with international elements” umbrella that resides in spot number nine. Of note, the first scheme under spot nine involves use of offshore accounts and digital assets. United States (U.S.) citizens should avoid placing their assets in other jurisdictions for the sole purpose of preventing the IRS from reaching their assets. The IRS has made identifying these accounts and assets a top priority for several years. The second scheme under spot nine involves U.S. taxpayers contributing to foreign individual retirement accounts to avoid payment of taxes. The taxpayer then improperly claims an exemption from U.S. income tax on gains, earnings, and distributions from the foreign account based on the tax treaty with the host country. Finally, the third scheme under spot nine is some U.S. business owners with foreign business interests claim deductions for amounts allegedly paid as “insurance” even though the arrangement lacks many of the attributes of legitimate insurance. The IRS plans to challenge the purported benefits obtained from these transactions and impose penalties. Rounding out the top ten, the IRS warns taxpayers of bogus tax avoidance strategies such as “micro-captive insurance arrangements” and “syndicated conservation easements.”

Bogus charities pose a tremendous issue, especially when a natural disaster or crisis strikes. Number eleven on the list relates to scammers that set up fake organizations to receive contributions from unsuspecting taxpayers. These scams are particularly egregious in nature because they take advantage of tragedy and people’s generosity. The individuals running the fake charities collect personal information and exploit the taxpayers further. Remember that charitable deductions count only if given to qualified tax-exempt entities recognized by the IRS when accompanied by contemporaneous written acknowledgment.

The last of the Dirty Dozen involves two separate schemes aimed at high-income taxpayers. The first involves the use of a Charitable Remainder Annuity Trust (“CRAT”). A CRAT often involves the transfer of appreciated property to the CRAT. When used incorrectly, taxpayers claim that the transfer to the CRAT provides a step-up in basis as if the property were sold. Promoters and advisors sell taxpayers on this and the subsequent elimination of ordinary income and/or capital gain on the later sale of appreciated property from the CRAT. This misapplies the rules under Internal Revenue Code Sections 72 and 664. In reality, when a CRAT sells appreciated assets, those gains flavor distributions to noncharitable beneficiaries of the CRAT. The second relates to monetized installment sales. With these transactions, scammers find taxpayers seeking to defer gains on the sale of appreciated property. For a fee they facilitate a purported monetized installment sale for the taxpayer. An intermediary purchases appreciated property from a seller in exchange for an installment note. The note typically provides for payments of interest only, with a balloon payment of principal at the end of the term. The seller receives most of the proceeds, but improperly delays the recognition of gain on the appreciated property until the final payment on the installment note, often years later.

The IRS encourages taxpayers to be wary, avoid sharing data, and to report fraudsters who promote these schemes as well as those who prepare improper returns. Taxpayers need to protect their sensitive information and exercise caution and common sense both during tax time and throughout the year. Some of the scams listed in this article have been around for a time while others are new to the list this year. The Dirty Dozen serves as a good reminder to protect confidential information and to stay safe out there.