The TBOR and LEP Taxpayers: Case Examples Brooklyn Legal Services Operationalizing Taxpayer Rights: IRS Efforts and Experiences of Lawyers who Represent Clients Pro Bono and at LITCs The TBOR and LEP Taxpayers: Case Examples Anna C. Tavis Brooklyn Legal Services

The TBOR and LEP Taxpayers I.R.C. 7803(a)(3) (A): The right to be informed, (B): The right to quality service, (C): The right to pay no more than the correct amount of tax, (D): The right to challenge the position of the Internal Revenue Service and be heard, (E): The right to appeal a decision of the Internal Revenue Service in an independent forum, (F) The right to finality (G) The right to privacy, (H) The right to confidentiality, (I) The right to retain representation, (J) The right to a fair and just tax system.

LEP Taxpayers and the Right to a Fair & Just Tax System U.S. System is one of voluntary compliance Opportunity for bringing recently arrived taxpayers into compliance and keeping them in compliance *if* treated fairly Tax Contributions by ITIN filers -In 2015, ITIN filers paid $23 billion in income taxes Source: National Taxpayer Advocate’s 2015 Annual Report to Congress

LEP Taxpayers: Effects of Recent Legislation Preventing American Tax Hikes (PATH) Act: Several Provisions Affecting LEP/Immigrant Taxpayers §32(K) expansion (EIC Ban expands to CTC and AOC) Determination of negligence and/or recklessness Math error authority Denial of retroactive filing for credits reliance on return preparers and importance of LITCs

PATH Legislation and the TBOR Right to be Informed Notice Requirements Role of LITCs, CBOs, and Preparers in education and outreach on changes to the law Right to Challenge the Position of the IRS and Be Heard Math Error authority and procedural concerns Right to a Fair and Just Tax System Consideration of Individual Circumstances in imposing §32(k) ban; LEP barriers to participation in exam

PATH Act: Concerns Expansion of 32(k) 2-year ban: Includes Earned Income Credit (EIC), Child/Additional Child Tax Credit (CTC), and American Opportunity Credit (AOC) Will IRS assert the ban when someone retroactively files and claims EIC or CTC? Doubly harmful to immigrant taxpayers Math Error Authority: Newly available for post-2016 32(k) ban cases Also implemented for denial of retroactive filing for credits Note: The IRS does not have to use math error procedures (PATH Act § 208)

EIC Ban: Case Examples The right to be informed: Mr. A and the hidden 32(k) ban The right to a fair and just tax system: Ms. D and the imposition of ban due to reliance on return preparer The right to challenge the position of the IRS and be heard: math error authority and recertification

PATH Act: Retroactive Filing Two recent cases regarding §204 and §205 of PATH Act: Family S: LEP and recently issued ITINs Retroactive filing to claim CTC for terminally ill child Reliance on return preparer Math error authority Family P: Granted Asylum and recently issued SSN Retroactive filing to claim EITC Reliance on VITA site return preparer

Pre-Wage Verification: Case Example In 2018, IRS expanded pre-wage verification program Previous iteration identified as a Most Serious Problem in NTA’s 2015 Annual Report to Congress Family G: LEP permanent residents, wage earning couple with two USC qualifying children, filed late January 2018, claimed EIC IRS did not complete wage verification of Wal-Mart W-2 in time, case converted to full exam

Pre-Wage Verification: TBOR Implicated Right to a Fair and Just Tax System Arbitrary full examination of family’s return Family discouraged from claiming refundable credit next year, cannot afford to wait for refund, fearful of immigration consequences Right to Finality Delay of 9 months and counting on issuance of refund