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ERC Audit Appeals Process: Know Your Rights

ERC Audit Appeals Process: Know Your Rights

 At this point, you have a few paths forward:

  1. You can agree with their changes and pay any additional tax owed. Easy peasy, but not ideal if you think they’re wrong.
  2. You can request a meeting or call with the auditor to discuss their findings and provide any additional documentation to support your position. Think of it as pleading your case one last time before things get official.
  3. Or, you can skip straight to filing a formal protest and requesting an appeals conference. This is where the real fun begins.

The Appeals Process Explained

Requesting an appeals conference kicks off the official appeals process with the IRS Office of Appeals. These appeals officers are a new set of eyes on your case, separate from the auditors who made the initial determination. Their job? To take an impartial “fresh look” at your case and try to resolve the dispute without litigation. It’s like getting a second opinion from the IRS itself.Now, there are two main ways to request this appeals conference:

  1. Small Case Request: If the total amount of the ERC adjustments is $25,000 or less per tax period, you can submit an informal “small case” request. Just write a brief statement explaining why you disagree with the auditor’s findings, and include any supporting documents.
  2. Formal Written Protest: For larger adjustments over $25,000, you’ll need to submit a more formal written protest laying out all the details of your case and the legal arguments for why you qualify for the ERC.

Whichever route you choose, make sure to act quickly – you typically only have 30 days from the date of the IRS notice to file your protest or small case request. Miss that window, and you may have to pay the tax and file for a refund later.

Building Your Case

Okay, so you’ve requested that appeals conference – now what? It’s time to build a rock-solid case to present to the appeals officer. First up, gather every shred of documentation you have related to your ERC claim: payroll records, financial statements, shutdown orders, you name it. The more evidence you can provide to substantiate your eligibility, the better.Next, review the auditor’s report and the IRS notice carefully. Identify exactly which issues or eligibility requirements they’re challenging, and prepare detailed rebuttals with citations to the actual ERC legislation and guidance. For example, let’s say the auditor claims you didn’t experience a “full or partial suspension” of operations due to a COVID-19 government order. You’d want to pull together copies of any shutdown orders that applied to your business, documentation showing how your operations were impacted, and perhaps testimony from employees about the disruptions you faced. The key here is building an airtight, well-documented case that directly addresses and overcomes each of the IRS’s objections.

Presenting Your Case

Once you’ve assembled your evidence and arguments, it’s time for the main event: the appeals conference itself. These conferences can be held in-person, by video call, or even through written correspondence – it’s up to you and the appeals officer to decide the format. Regardless of how it’s conducted, prepare to make a compelling presentation laying out your side of the story. Don’t just read off a script, though. The appeals officer will likely have questions, so be ready to engage in a back-and-forth discussion about the finer points of your case. This is your chance to directly address any lingering concerns or misunderstandings. It’s perfectly fine – and often advisable – to have your accountant, payroll provider, or even a tax attorney join you for this conference to provide additional expertise and support.

If You Disagree With the Appeals Decision

After considering all the evidence and arguments from both sides, the appeals officer will issue their final determination. If it goes in your favor, congratulations! You’ve successfully appealed the auditor’s adjustments. But what if the appeals officer still disagrees with your ERC claim? Well, you do have one more level of recourse: you can take your case to court. Specifically, you can file a refund suit in either the U.S. District Court or the U.S. Court of Federal Claims. This is essentially suing the IRS to recover the ERC amount you believe you’re owed. Going this route means presenting your case all over again to a judge, so you’ll want to make sure you have an extremely strong legal argument and evidence backing you up. Having an experienced tax attorney in your corner is practically a must at this stage.

When to Seek Professional Help

Speaking of attorneys, you may be wondering if it’s worth hiring one to assist with the ERC audit appeals process from the get-go. The answer? It depends on the complexity of your situation and your level of comfort dealing with the IRS. For relatively straightforward cases with smaller ERC claim amounts, you might be able to self-represent and handle the appeals process on your own – especially if you have a background in tax law or a knack for wading through legal jargon. However, if your ERC claim was particularly large, you used a third-party provider who may have mishandled aspects of it, or you simply don’t want the hassle of going it alone against the IRS auditors, then bringing in a tax pro is probably a wise move. A skilled tax attorney can review your case with a fresh set of eyes, identify any potential weaknesses or missed opportunities, and forcefully argue on your behalf both in writing and at the appeals conference.

Christine Twomey
Christine Twomey
2024-03-21
Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.
Brendan huisman
Brendan huisman
2024-03-18
Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!
Guerline Menard
Guerline Menard
2024-03-18
Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️
Keisha Parris
Keisha Parris
2024-03-15
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
Taïko Beauty
Taïko Beauty
2024-03-15
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!
Anthony Williams
Anthony Williams
2024-03-12
Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.
Loveth Okpedo
Loveth Okpedo
2024-03-12
Very professional, very transparent, over all a great experience
Bee L
Bee L
2024-02-28
Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.
divesh patel
divesh patel
2024-02-24
I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Don’t Go Down Without a Fight

Look, getting audited is never fun, but it doesn’t have to be the end of the line for your ERC claim. The appeals process gives you a legitimate path to fight back against the IRS’s findings and get a fair second look at your case. So don’t just throw in the towel if that initial audit doesn’t go your way. Gather your evidence, prepare your arguments, and take your case to appeals. With perseverance and a solid understanding of the ERC rules, you just might emerge victorious. And if you’d rather not go it alone? No problem, we’re here to help guide you through every step of battling the IRS. Our tax team has extensive experience representing businesses just like yours in ERC audits and appeals. The bottom line: you have rights as a taxpayer, and the appeals process is a powerful tool for exercising them. Use it to your full advantage, and don’t let an overzealous auditor take away credits you rightfully deserve.

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