Going through a crypto tax audit is one of the worst experiences a crypto trader can imagine. In our interview with Ivan on Tech, we show you that it doesn’t have to end horribly, and you do not have to go up against the IRS alone. I will walk you through an IRS Information Document Request (Form 4565) from a real crypto tax audit to explain what to expect and how you can protect yourself from getting audited.
A Crypto Tax Audit Explained Video Transcript
[Ivan on Tech] Ok, guys, we’re here with Clinton Donnelly of Donnelly Tax Law. Clinton is a tax expert, especially when it comes to crypto taxes and he has some very urgent and very important news that has to do with CryptoTaxAudit.
And you’ve all got to know it because whether you’re living in the U.S. or abroad, this applies to you. Even if you’re not in the U.S., these rules might be taken by your tax authorities, and they might do something similar in your country because the U.S. is basically setting the tone for the rest of the world when it comes to this.
So Clinton, what are we discussing today?
[Clinton Donnelly] We’ve already seen two crypto tax audits come out from the IRS. And what we’re seeing are the initial information requests related to that audit. And what we have tells us a lot about what the IRS is doing and how crypto traders can prepare. I thought it’d be good for us to have that discussion so that we can start to clear away the mysteriousness about an audit and try to help people feel more comfortable, especially since we’re in tax season now.
[Ivan on Tech] Right. And I know you have a document that I want to share on the screen right now so people can see it. Let’s go through it, because I guess that is where most of the information is.
The Form 4564 In A Crypto Tax Audit
[Clinton Donnelly] Right. So what we’re looking at here is when an audit begins from the IRS, it starts with a letter. And in that letter, they have what they call an information document request. In this case, Form 4564.
And they list all this information they want you to give them. And we’ll just leave this up on the screen a little bit here and we’ll talk through it. As you look through it, it would be a normal response to have fear and terror in your belly. OK. So let’s just embrace the fact that that’s what we’re talking about.
Nobody wants to be audited. The U.S. is a little bit different than other countries in the world. From a tax point of view, we’re actually not as sophisticated in our information collection as other countries in Europe.
Many European tax authorities, like perhaps in Sweden, already know how many deposits you had in your bank account. They know where you’re spending your money, and they can do this just from their computer.
But the IRS does not have that breadth of information at their hands. So they request a whole bunch of documents. And it’s a broad list of things that they want to get. It’s kind of terrifying as you read it, especially if you think you don’t have some of the records?
But first, let’s realize that any American taxpayer watching this and probably non-Americans have fear; they have a lot of emotion; and I just want to acknowledge that they have anxiety.
Maybe they never reported their cryptos back in 2017 or 2018?
And, they’ve heard this year we have to answer this question:
“At any time during 2019, did you receive, sell, send, exchange, or otherwise acquire any financial interest in any virtual currencies?”; and there’s fear.
I was talking to one guy, a fairly well-known person. He stopped reporting his taxes back in 2015. So he hadn’t even filed for three years. And he said, “Clinton, How do I get back to being in compliance?”
We have tax amnesty things, but, you know, you’re not alone. A lot of people are afraid.
“Well, if I report these things? I might have to pay taxes that I don’t have money because my cryptos have all gone down”. You know, there’s a lot of fear out there.
The Statute of Limitations In A Crypto Tax Audit
[Ivan on Tech] But also, yeah, I remember we had this chat a few weeks back. And I got a question afterwards that we didn’t discuss.
And that is, “What about the statute of limitations?” If somebody traded in 2012, like how far do go back and what are the rules?
[Clinton Donnelly] Ok. Statute of limitations is generally three years from when you filed the tax return.
Unless you had to file one of the anti-money laundering forms, which in fact almost all crypto traders (except for the smallest ones) would have to file.
In which case, the statute limitations for the entire return is now six years.
So let’s say the return on filing this year, 2020, is for the 2019 tax year. So it’s open until 2026 for an audit, which means right now, the IRS can go back into 2014 for audits at this point.
Now, if you failed to report a major amount of income, let’s say you didn’t report your cryptos gains in 2017. That would be considered, technically, tax evasion, and you completely lose all statute of limitations protection.
Likewise, if you never file the anti-money laundering forms, your return no longer has statute of limitations protection.
What does that mean?
That means there’s no limit to how long they can come and get you.
So the purpose of the statute of limitations is to provide at least a protective shield around the taxpayer who’s honest and reported everything. There’s a limit on how much time that the IRS has to come after you.
So you really want that shield. You want that protection by doing a good crypto tax return. And I would say this as we start to look at an audit, every taxpayer who has reported their crypto gains and filed their anti-money-laundering forms has nothing to worry about.
You may receive an audit letter, but you’re going to be very strong in answering and responding. You’re in a good position. So I want to give that comfort and assurance out there.
Hope that helps.
What Else Does The IRS Ask For In A Crypto Tax Audit?
[Ivan on Tech] Got it. So let’s get back to the list. So we see, for example, the IRS asks you about emails, screenprints, hardcopy prints, transaction receipts, and so forth. Wire transfers. Lists of all virtual currency kiosks like BTM, ATM, and so forth. So you can see on the screen the other points.
And so this is the new thing for this year? Or this was in this questionnaire even in the past? Or it’s completely new?
[Clinton Donnelly] Well, this is the second information document request that we’ve gotten for cryptocurrencies. And it’s a form they’re using.
These exact same words occurred on the first one.
In this case, with this client, they were amending their 2017 tax return, and they were reporting the anti-money laundering forms and reporting they’re like-kind exchange.
And they had never received one of those educational letters that came out last year telling people to check the returns. They had never received that. They received this just because their tax return included cryptos.
This document comes out of the Philadelphia office, which is interesting because that’s not where he mailed his return. The Philadelphia office is the one that’s handling strictly cryptocurrency compliance.
So it’s very interesting. They turned it over to the crypto department. And these questions are very scary.
But the bottom line is they’re asking for every shred of documentation, however meager, about everything crypto you have.
Now, if you were a trader and you did all your trading on, let’s say, Binance and Coinbase, you’re probably in a good position because those exchanges keep very good transaction records. You’re probably bringing money in and out from Coinbase. They have very strong records, every trade, every transaction, all the transaction fees, well-documented. So that pretty much addresses all your needs.
Now, if you’re using Shapeshift, EtherDelta, other peer-to-peer exchanges, over-the-counter trades, things that generate very light documentation, or if you want to capture that transaction record, you have to capture it right then and there because there’s no permanent log. You know, those exchanges, you’re dependent on having these records. And if you don’t have them, well then, you know, that gets into what an audit is all about.
Now, you know I was talking to this very guy, and he said he’s been through two audits before, not crypto, just regular audits.
And I said “You understand how this works?”
He goes, “yes.”
He said, “The first thing is you never talk to the IRS yourself. You always have a representative.”
I said, “that’s absolutely right.”
Just like on the T.V. shows, you know, when the police haul in the suspect, they put him in the room. There are two policemen asking questions, you know, and they read you your rights. You never say anything until your lawyer is present.
They are experts at getting you to say things that are to cause trouble later. They go right for the jugular.
So that’s what we do with IRS representation. That’s what I do. I represented a 117 people last year with the IRS.
So we represent, we talked to the IRS on your behalf. That takes a lot of emotion out, takes a lot of fear out. And, you know, we basically put together documents.
We try to bury the IRS with the documents. We are as honest as possible and try to make them feel like, “You are wasting your time on this client. You know, there are bigger fish to fry. You’re not going to get anything out of this client.” And that’s what we do.
Hey, I got a quote for you from a U.S. Senator, Henry Belmont of Oklahoma. And he makes the statement; he says, “In a recent conversation with an official at the IRS. I was amazed when they told me if taxpayers of this country ever discover that the IRS operates a 90% bluff, the entire system would collapse.”
[Ivan on Tech] Right.
[Clinton Donnelly] It’s just like when the police haul you in as the suspect. They don’t know anything. The police don’t know enough. They’re trying to get information from you.
So having an intermediary kind of tightens up that pipeline. Make sure we defend your rights in that process.
I mean, you’re reading this right now, and you’re probably thinking, “Oh, my gosh. Oh, my gosh. I don’t know if I have those records anymore.”
That terror, that’s what they want. The IRS operates on fear.
They only want to publicize when they’ve crushed people on the news. You know, they only take cases to court that they know they can win.
All right. So they always publicize how effective they are. That’s because they cherry-pick what they’re going after.
Learn More: Full Service Crypto Tax Filing by Donnelly Tax Law
Preparing A Crypto Tax Return So It's Less Likely To Get Audited
[Ivan on Tech] Yeah. So I think it’s very important to notice what you just said.
And that is the fact that, you know, when you read the statistics, and that’s true even here in Sweden, you hear the statistics for example, the IRS here in Sweden ,the agencies, they win 90 percent of all cases in court.
But that is because, as you say, they only take cases to court that they’re certain about.
[Clinton Donnelly] Absolutely.
Auditors are on monthly quotas. The guy who issued this letter is on a monthly quota. He’s got to bring in so much.
When the disclosure statement is in there, he’s prevented from using a 40 percent accuracy penalty. They need the penalties to reach their quota, his monthly quota.
So by taking that out of his tool bag. All of a sudden, this thing looks a lot less interesting, and it puts him on the defensive.
So that’s what we do when we prepare a return.
You know, lots of people are going to need auditing—more than I could ever take care of. So, you know, in this case, we just take a strong view. We take an experienced view to it.
So here’s what they’re doing. And this is a good point, because all in the U.S., we have these documents called the 1099K.
And it’s where a company reports to the IRS some income that they paid to somebody.
And in this case, I was talking to a guy who had a Bittrex; you know he had a $1 million 1099 that they told Bittrex told the IRS about. So the IRS is going to be looking for $1 million on his tax return.
He was panicked because he only had like maybe thirty thousand dollars in cryptos finance, but he was a high-frequency trader. So he was generating a lot of buys and sells.
If you add up all those buy transactions, let’s say had ten thousand dollars and three times a day, I buy something with the ten thousand, that’s thirty thousand dollars of buy. OK.
That’s where the one million dollar number comes from.
We have to list all your transactions so we can see that it matches or exceeds the $1 million amount that, in this case, Bittrex had told the IRS about. So, you know, those numbers scare people.
[Ivan on Tech] Got it. Let’s move on to the next picture.
Providing Crypto Records For A Crypto Tax Audit
[Clinton Donnelly] This is the one that starts with the records reflecting the value of any sale? That one?
[Ivan on Tech] Yes.
[Clinton Donnelly] Now, if you look at the third bullet, it says,
“List of all blockchain addresses owned and controlled by the taxpayer.”
And we’ll see on the next page it says that…
“They’re going to be using third party information sources to double-check our information.”
I’m sure they’re used to doing this. But, you know, the Chainalysis links back to your Facebook. It links back to all sorts of information sources to paint a picture of a taxpayer. So just be aware that’s kind of what’s going to happen here.
That’s just what they’re going to do.
Also, the last two bullets are very interesting to me. The next to last one says
“List all your digital currency exchanges.”
That’s basically all exchanges, all peer to peer facilitators. This is basically, list everything: tell them your I.D.’s, your emails, your addresses.
What’s the purpose of this?
So you know how it is. If you’re going to ask somebody or you had real burning question to ask them. It wouldn’t be the first question you asked them. It might be the next to last question.
Which is kind of what you’re seeing here. This is the one that’s going to cause the most financial damage to a taxpayer.
But here it’s cut and dry.
In the last bullet, “List of all counterparties for any P2P virtual currency transactions (on-chain, off-chain, email address, user I.D.’s).”
This goes right to the second anti-money laundering Form 8938, part VI.
Where you have to list all the counterparties, to any trades, that are not U.S. persons.
Well, when you’re trading on any exchange, the beauty of the exchange is it’s anonymous. You have no idea who you’re trading with.
It’s simple, easy.
Guess what? That’s a problem from an anti-money laundering point of view.
[Ivan on Tech] So just to clarify, this is only for peer-to-peer exchanges like a local Bitcoin, because there it can be anonymous? But if you’re using Binance, is that also peer-to-peer? Or is it that you’re basically trading with Binance?
Because it really depends how you see it.
If you look at technically, the matching engine matches you with someone else. But it’s not peer-to-peer like local Bitcoin, where you actually find someone and then maybe you just send to their bank account directly, and you don’t have any intermediary in the transaction, then is it truly peer-to-peer?
So how do you view it is Binance, for example, peer-to-peer as well?
[Clinton Donnelly] Well, I’m not sure the IRS is going to have a good distinction on that point. When we read through these requests, there is definitely an interest in anti-money laundering type activities or money laundering activities.
They’re very much interested in cash transactions, Crypto kiosks, and this case, you know, peer-to-peer, where there’s very little documentation or regulation of who is involved in the transaction.
So when I read these, there’s a bit of a, “Have you been engaged in criminal activities?” taste to it.
As opposed to, purely,” did you report all your trades?” which they clearly ask, but that’s not their main focus
Crypto Tax And The FBAR
[Ivan on Tech] But also, it’s important to note that whenever we had these discussions previously, some people were commenting,
“This FBAR, I’ve never heard about it, or it’s not applicable.”
So there seems to be some dispute.
Some people think that you should do it.
And some people think that you should not do it.
And maybe it’s because the people mostly are uneducated around this topic.
But have you heard that as well, that some people say “That this FBAR thing, it’s not really an important thing in Crypto?”
[Clinton Donnelly] Very good question.
Well, let’s take that apart.
If you skip forward to a couple of pages in that presentation where it says, “Have a schedule B problem?” and display that
Crypto Tax And Schedule B
On a U.S. tax return, there is a form called schedule B.
And schedule B is where you list your interest and dividends income.
And at the bottom, Question 7, and it’s been here for several years. (And of course, the IRS would put this question in small type, right.)
So I hope maybe you can zoom in on this for people, but it asks this question.
Well, you asked me the question, Does Binance fall into the category of a financial account in a foreign country?
Now, some people argue cryptos aren’t money, but I think it’d be harder to argue that it wasn’t a financial account.
I mean, everything is expressed in terms of U.S. dollar value. You know, it’s hard not to argue it.
The second question is,
“If, yes, you are required to file FinCEN, Form 114, Report the Foreign Bank and Finance Accounts, FBAR, to report that financial interests or signature authority.” And it says either yes or no. These are either yes or no questions.
So on this question, those naysayers have to say that Binance was not a financial account, if you were to make that claim.
[Ivan on Tech] Got it. So we looked at the question with FBAR.
We looked at the letter from the beginning, from the beginning of this video.
What else is important here?
Which other pages would you like to highlight in this presentation?
[Clinton Donnelly] Well, I think it’s worth mentioning because there’s a lot of people that are out who are HODLrs who are looking to make their money on HODLing.
And so they’re engaging in lending sites where they can park their currency and get interest.
Now, when these happen, these lending sites. Have you ever wondered, “How can somebody pay me 8% interest on my ETH?” How does that happen? What are they doing on the backside?
And one of the common things they’re doing is they’re participating in, according to the government research,in tumblers and mixers which exchange your coin for other people’s coins.
You may also have difficulty unloading those coins on exchanges if they do a Chainalysis track on your coins. I think that’s interesting at this point.
[Ivan on Tech] That’s very interesting, actually.
But now people also have these devices where you can get interest without essentially intermediaries.
But maybe we can take another reason because like it’s a hole, rabbit hole of information.
So that’s actually true. Yeah, that’s very important. What else? What else? What else? What kind of other observations and the insights can we give to our viewers
[Clinton Donnelly] Well, I think, first of all, as we look at this.
Every taxpayer in the U.S. is faced with having to answer the new question on schedule one, which is,
“Did you buy, sell, send, receive or have any financial interest in virtual currency? Yes or no?”
Recommendations For Protecting Yourself Against A Crypto Tax Audit
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I’ve put everything I have in terms of creating a bulletproof tax return into our new courses which are coming soon in our online academy.
They are very affordable.
That would be something for people I’d recommend for people to get their 2019 return in order.
Then go back after tax season, and maybe go back and fix 2017 and 2018 if you didn’t do things right.
You know, it’s important.
[Ivan on Tech] Good, good, good.
And you guys definitely use that.
That being said, Clinton. Any last words to our audience before we wrap this up?
[Clinton Donnelly] Yes, you know, we’re talking about some services offered, but
You know, I understand the emotions, the feelings.
I’m completely sympathetic, and I’m not trying to scare anybody.
But I think,
I just wish everybody the very best at making profit here this year.
[Ivan on Tech] And also, just to end this,
That is kind of what hurts me the most. Like, my feeling when I see this is that people like, “Oh, man, I see this opportunity in the market, but I’m not going to trade because I’m afraid of the IRS.”
[Clinton Donnelly] You’re absolutely right.
I was talking to a guy, a young kid in college made some money on Fossetts, and we were talking and he goes “I’ve got to pay taxes. Oh, my gosh. Maybe I shouldn’t trade anything, just completely get out of Cryptos.”
I said, “no, no, no.”
You got to realize.
The richest people in the world live in countries with the highest tax rates. All right.
The poorest people in the world live in countries that have the lowest tax rates.
So what does that tell us?
Well, you know, taxes happen. And you can fight the tax rate, the brackets and stuff, you know.
But honestly, there are some basic things in U.S. Long term versus short term gains, the biggest way to save money. But taxes happen.
[Ivan on Tech] Clinton, Thank you so much for being here. And I’ll see you all very soon
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