(1) This transmits a revised IRM 8.17.7, Penalties/Additions to Tax in Computations.
(1) The following editorial changes were made in this IRM:
Lisa Zannitto
Acting Director, Policy, Quality and Case Support
Tax Court does have jurisdiction over the IRC 6656 addition to tax when the addition relates to a deficiency due to the failure to withhold and deposit taxes pursuant to IRC 1441 and IRC 1442. (See IRM 20.1.4.11.5, Deficiency Procedures Form 1042, for additional information).
Net Amount Due (Return due 4/15/2006 filed 12/2/2006) | $500.00 |
Failure to Pay Penalty - $500.00 x 1/2 of 1% for 8 months | 20.00 |
Failure to File Penalty - $500.00 x 5% per month for 5 months. | $125.00 |
Less Failure to Pay Penalty for first 5 months. | 12.50 |
Failure to File Penalty assessed by the Campus | $112.50 |
If the Compliance report (RAR) or notice of deficiency has asserted the IRC 6651(a)(2) FTP penalty and the taxpayer filed a return, the AO or Counsel attorney will need to determine whether the FTP penalty should be sustained or eliminated.
The 1% penalty rate applies to all subsequent assessments on that module. However, once a module is fully paid, a later tax assessment will begin to accrue at the one-half of one percent rate.
8.17.7.4.2 (09-24-2013)See IRM 4.19.17.1.2, Form 13496 Certification Procedures, for more information, including information about the electronic Form 13496.
If the taxpayer made payments after the due date of the return, the RGS IRC 6651 penalty computation schedule and the TCS IRC 6651 penalty Excel spreadsheet won't be accurate for the FTP penalty. This is because these penalty schedules won't consider any late payments in the FTP penalty computation. When there are late payments, these penalty schedules must be corrected or other schedules used.
In certain circumstances the FTP penalty may be computed at the maximum rate when the penalty is still accruing. An example is when Counsel or the AO determines that the FTP penalty should be computed at the maximum 25% rate because the maximum FTP penalty rate will be reached soon after the computations are prepared (usually within a month or two).
An estimated tax penalty cannot be asserted on a deficiency when the taxpayer has filed a return. An estimated tax penalty can be asserted in "Substitute for Return" cases.
8.17.7.8.1 (09-24-2013)For more information, click on the "Procedures and Resources" link on the Tax Computation Specialist (TCS) web site, and then see the "IRC 6662 Penalty and Frozen Refunds" folder. The folder contains Counsel memos on this topic, including a 2012 Counsel memo which discusses IRC 6664, and how to compute the IRC 6662 penalty when there are frozen refunds.
8.17.7.9.1 (09-24-2013)The accuracy-related penalty, IRC 6662, cannot apply to any portion of an underpayment on which the fraud penalty is imposed.
Facts: The taxpayers filed their joint 2006 return on August 19, 2008. The tax liability on the return was $4,062.00. The taxpayer had withholding of $726.00, resulting in net tax due of $3,336.00. FTF and FTP penalties were assessed by the Campus as shown below: | |
FTF Penalty Computation: | |
FTF : 3,336.00 x .05/month x 5 months Less FTP for 5 months: 3,336.00 x .005/month x 5 months FTF Penalty Assessed | 834.00 83.40 750.60 |
FTP Penalty Assessed: 3,336.00 x .005/month x 17 months unpaid | 283.56 |
Note : It may appear that the Campus computed the FTF penalty using a rate of .045 per month, since 3,336.00 x .045/month x 5 months = $750.60. However, the actual computation is shown above. | |
The return was examined and an additional tax deficiency of $1,500.00 was determined. The additional IRC 6651(a)(1) penalty would be $375.00, computed as shown below: | |
Correct tax liability (4,026.00 + 1,500.00) Less : prepayment credits Net tax due Penalty Rate Penalty Less FTP for the same number of months as FTF was assessed: | 5,562.00 (726.00) 4,836.00 0.25 1,209.00 |
(3,336.00 x .005 x 5 = 83.40) Failure to file - IRC 6651(a)(1) Less previously assessed FTF penalty | 83.40 1,125.60 (750.60) |
Additional failure to file penalty | 375.00 ====== |
Incorrect Method : If a penalty rate of .225 (.045 x 5) for IRC 6651(a)(1) was used, the following incorrect answer would result: | |
Net tax due Penalty Rate Penalty Amount Less previously assessed FTF penalty Incorrect amount of additional failure to file penalty | 4,836.00 0.225 1,088.10 (750.60) 337.50 ====== |
IRC 6651(a)(1) | Failure to File 5% per month to 25% maximum. Based on correct tax liability less payments and credits allowable at due date of return. | All years. |
If the return is 60 days or more late, a minimum FTF penalty applies: | ||
Minimum penalty is lesser of $135 or 100% of tax due on return. | Returns filed after 12/31/2008 | |
Minimum penalty is lesser of $100 or 100% of tax due on return. | Returns filed before 1/1/2009 | |
Interest accrues from later of return due date or extended DD. | ||
IRC 6651(a)(2) | Failure to Pay 0.5% per month not to exceed 25% in aggregate. | All years. |
Based on actual amount shown on return. Due date for payment is with regard to any extensions of time for payment. | ||
FTP applies for SFR returns. | ||
IRC 6651(d): See IRC 6651(d) and IRM 20.1.2.6 for certain situations where penalty is increased to 1%. | ||
IRC 6651(h): See IRC 6651(h) and IRM 20.1.2.8 for certain situations where penalty is decreased to .25%. | ||
IRC 6651(a)(3) | Failure to Pay Additional Assessment upon Notice and Demand 0.5% per month not to exceed 25% in aggregate. | All years. |
Based on amount of additional assessment not paid on or before 21 calendar days from notice and demand (or 10 business days if amount of notice and demand equals or exceeds $100,000). | ||
IRC 6651(f) | Fraudulent Failure to File 15% per month up to maximum of 5 months, 75% maximum. | Returns due after 12/31/89, without regard to extensions. |
Amount of tax required to be shown on return reduced by tax timely paid and by credits which may be claimed on the day prescribed for payment of tax. | ||
IRC 6662 and/or IRC 6663 can apply with IRC 6651(f) as long as a return is filed. | ||
Carrybacks have no effect on penalty. | ||
IRC 6652(b) | Failure to Report Tips 50% of FICA tax on unreported tip income. | Returns due after 12/31/86, without regard to extensions |
IRC 6654 | Failure to Pay Estimated Tax – Individual, Estates and Trusts (See IRM 20.1.3.) | |
IRC 6655 | Failure to Pay Estimated Tax – Corporation (See IRM 20.1.3.) | |
IRC 6656 | Failure to Deposit (See IRM 20.1.4.) | |
IRC 6662 - 20% | Accuracy-Related Penalty 20% of underpayment, applies to portion of understatement attributable to: | Returns due after 12/31/89, without regard to extensions. |
• Negligence | ||
• Substantial understatement | ||
• Valuation misstatement | ||
• Overstatement of pension liabilities | ||
• Estate/gift tax valuation understatement | ||
• Transactions lacking economic substance | For transactions lacking economic substance, penalty applies for transactions entered into after 3/30/2010. | |
Applies only if return has been filed. | ||
Not applicable to fraud items. | ||
IRC 6662 - 40% | Accuracy-Related Penalty 40% of underpayment, applies to portion of understatement attributable to: | |
• Gross valuation misstatements. | Applies for returns due after 12/31/89. | |
• Nondisclosed noneconomic substance transactions. | Applies for transactions entered into after 3/30/2010. | |
• Any undisclosed foreign financial asset understatement. | Applies for tax years beginning after 3/18/2010. | |
Applies only if return has been filed. | ||
Not applicable to fraud items. | ||
IRC 6662A | Accuracy-Related Penalty 20% of the reportable transaction understatement. | Effective for taxable years ending after October 22, 2004. |
Increased to 30% for any portion of any reportable transaction understatement where the transaction was not properly disclosed | ||
IRC 6663 | Fraud 75% of the underpayment attributable to fraud. | Returns due after 12/31/89, without regard to extensions. |
Applies only if return filed. | ||
If no return filed, only IRC 6651(f) can apply. |