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.
"So there are other millions of cases that went completely fine, that went completely as they should have, but they never get to the public. And they said, you have these fear stories, that, "Hey, if you're being targeted, you're going to go to court, and it's 90 percent chance you will lose." But in reality they only take a small portion. And as long as they have good representatives, it shouldn't be an issue. If you also have all conditions that you can piece together, and that's exactly why you're here, and that's why we bring you on the channel several times because you've done it."
"So looking at this, yes, people feel fear, but in reality, you've also got to understand that it's nothing to worry about as long as you take the steps, for example, getting help and acting on this. Not just feeling fear and leaving this, hoping it will go away. And maybe they won't find out something that you're hiding. If you have nothing to hide, really, it's all perfectly fine."
[Clinton Donnelly] Absolutely.
"As long as you disclose everything on a tax return with your cryptos and report the anti-money laundering forms, they're going to have a very difficult time coming after you and hitting you with penalties. That's what we do when we prepare what we call a bulletproof tax return."
"We make sure to report all possible income, even the like-kind exchange. We do the anti-money laundering forms. We report all the scams that you suffered and make sure you get the full loss for that. And we also do a disclosure statement. The purpose of a disclosure statement is to minimize the power of an audit."
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.
"These guys at the IRS know less about cryptos than anyone who's been watching your show for a week. So, they don't have the expertise, they don't have the time to focus on it. All they know is how to go after certain failure to report."
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.
"It's reasonable to be scared of the IRS, but you got to know how to respond. Make sure you do a tax return when you respond to the IRS. You do it smartly. You get a professional. And, you know, I don't think people have much to worry about."
"There is so much opportunity here for the IRS. They don't have to shake the tree too hard to make money. But, you know, the better defense you have, the better you're going to survive through the whole thing."
[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.”
"So you can pretty much assume that this is going to take your blockchain addresses and plug it into Chainalysis and see what was happening in your crypto accounts. Right."
"So you just don't know where/who you bought your bitcoins from. You know, you might have bought it from some guy who had a hacked Binance. Right. So you might be a possessor, unknowingly, of a hacked Bitcoin. But, you know, if they use the chain analysis, they'll start to see that stuff. So it can be misleading."
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?
"Well, this links right back to the anti-money laundering form called FBAR -where you have to list all your foreign exchanges. If you fail to file an FBAR form, that's a $10,000 penalty when the IRS discovers it. And it's $10,000 for every exchange you didn't report during that year."
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.
"So I think fundamentally, the IRS cannot effectively audit a list of crypto capital gains transactions. I mean, there are so many ways to calculate it. The best they can do is, as I was describing before, is see are you in the right ballpark of what we expected you to tell us? That's the best they can do with that."
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.
"So what we do on a tax return is we just simply say on form 8938, it's unknown. You know, we traded a million dollars, but with lots of trades. We have no idea who the people are, but at least we declared that on the form. If you don't even declare that in the form, then, you know, you failed to submit the correct paperwork, and it's a $10,000 penalty."
[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.
"It's an open debate. In fact, the General Accounting Office, a government watchdog organization, came out and said the IRS needs to clear this up, and FinCEN needs to clear this up. And then the IRS came out on Monday and said we're not going to make any comment on it."
Well, let’s take that apart.
"Let's say to drive on the highways in Sweden. You can not go faster than 100 kilometers an hour. All right. So you're on a section of the highway, and there are no speed limit signs. But, you know what type of road this is, you know, you should only go 40 kilometers an hour. Does that mean you're free to go any speed you want because there's no signs? No. You know when the law is clear, people are expected to understand that."
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.
"At any time (during this case was 2017 return), did you have a financial interest or signature authority over a financial account such as a bank or brokerage account located in a foreign country?"
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.
“When you sign your tax return, you're basically signing under penalty of perjury that it is true, complete, and correct, as I listed them below. So if you don't answer the question, it's not complete. It's perjury. This is why it is the easiest way for the IRS to come after a crypto trader. Because you're deprived of your typical IRS taxpayer rights. Because this question comes out of the Bank Secrecy Act. And that's why they can ask it, and they can prosecute very quickly."
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.
"So if you're participating in a lending situation, you might find when you finally take your coins out that you have a lot of coins that maybe won't do very well on a chain analysis research. If you get audited, you know, then all of a sudden your account might get additional interest from the auditors."
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.
"But yes, if you're using Centralized, like a company that gives you a percentage, there could be a possibility that they're selling your Bitcoin that should be deposited. And in return they get dirty Bitcoin, and they make their profit, and they give a portion of the profit to you without you actually knowing that in reality you exchanged your Bitcoin for a dirty Bitcoin."
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?”
"It's a coming out-of-the-closet time, and if you're a [crypto] trader who never reported in 2018 and never reported 2017, at least start going forward in 2019 to make your tax return correct. File for an extension if you want more time to do that. But do that correctly. And file the anti-money laundering forms."
Recommendations For Protecting Yourself Against A Crypto Tax Audit
Over at my website, at CryptoTaxAudit.com, you can join the only membership that warns you, educates you and defends you from an IRS audit.
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.
"There's still a window of time to get things correct. The IRS is not moving that fast, although they are moving. It's time to get things correct."
One of the lessons I think we learned from this is that you really only want to deal with exchanges that are keeping very good logs of your transaction records. You want to backup those logs monthly. You don't want to be like so many people who are trading heavily on Cryptopia. And then the next day they found it was closed and they couldn't get any transaction records out. You couldn't prove where you made your coins. You know, it puts you in a very weak position in case you're audited. If you're using peer-to-peer exchanges where they're just passing records, you want to make sure you keep screenshots, emails, anything you can, counts, internal, even handwritten notes made at the time count in terms of defending yourself in a type of audit. And I think you should use the capital gain services like CoinTracker.io and CryptoTrader.tax are good services that help you generate the capital gains reports that you need and information for your anti-money laundering reports as well."
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[Ivan on Tech] Good, good, good.
And you guys definitely use that.
"So you can find the links in the description for CryptoTaxAudit.com, which is the subscription for the services with videos and that you can use to prepare yourself and also live a link to Clinton. He's a bit more expensive, but if you truly need help, he will help you with the future and past tax returns."
Visit CryptoTaxAudit.com to learn more.
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
"If you're a [crypto] trader, you know, don't panic. Don't get nervous. Just do the right things and entrust the process to work."
You know, I understand the emotions, the feelings.
I’m completely sympathetic, and I’m not trying to scare anybody.
But I think,
"The more we know, the better we can feel about our strategies moving forward."
I just wish everybody the very best at making profit here this year.
[Ivan on Tech] And also, just to end this,
"I think it's important to note that this worry should never stop you from actually trading."
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.”
"So really, you should not be scared. Just do everything correctly. Do whatever you want in the market—document everything. But the worst thing is that when people miss out on opportunities because they're scared of the IRS. Because it's like, in reality, you're putting yourself in this cage, and you're kind of removing your own freedoms and human rights. Man, if you want to trade, go trade, do whatever you want to keep all the records. If you need help, go to professionals like Clinton and everything will be OK."
[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?
"Hey, look, I would rather make one hundred dollars and pay 30 in taxes than to make only 20 dollars and pay nothing in taxes. All right."
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.
"It's far better to say I made a million dollars and paid $200,000 taxes because you pocketed $800,000. All right. Focus on what you're pocketing. Not on taxes. Taxes happen. You know, you're going to make money. Focus on making the money and just pay the taxes as you go. Just don't get behind it, you know, because then it can become too big for you."
[Ivan on Tech] Clinton, Thank you so much for being here. And I’ll see you all very soon
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