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ERC Audit Defense Strategies: Protecting Your Credit Claim

ERC Audit Defense: Protecting Your Employee Retention Credit Claim

Why the IRS is Targeting the ERC

Before we dive into defense strategies, let’s understand why the IRS has the ERC in its crosshairs. Quite simply, they believe many claims were improper or even fraudulent. 4 With billions of dollars in credits on the line, the IRS wants to ensure every penny was legitimately claimed. The ERC rules were complex, constantly evolving, and open to interpretation in many areas. It was easy for businesses to make mistakes or push the boundaries a little too far when calculating their eligible wages and qualified periods. Even if your claim was made in good faith, the IRS may still take issue with it. 1 That’s why having an airtight defense strategy is crucial. You need to be prepared to justify every aspect of your ERC claim with thorough documentation and a solid legal argument. Trying to wing it or relying on a subpar defense will likely result in your credit being disallowed, potential penalties, and a whole lot of headaches.

Building Your ERC Audit Defense Team

The first step in mounting a strong ERC audit defense is assembling the right team. You’ll want experienced tax professionals and legal experts in your corner – people who truly understand the nuances of the ERC and how to navigate IRS audits. Don’t make the mistake of thinking you can handle this on your own or with your regular accountant. ERC audits are highly specialized and complex. You need a team that has been through this process before and knows exactly what the IRS is looking for.

At Spodek Law Group, we have a dedicated ERC Audit Defense team ready to fight for you. Our tax attorneys and CPAs have extensive experience defending ERC claims against IRS scrutiny. We know the ins and outs of the program, the common pitfalls, and the strategies that work when dealing with the IRS. 7 But we’re not just legal experts – we’re also passionate advocates for our clients. We understand how stressful and overwhelming an IRS audit can be. That’s why we make it our mission to guide you through the process, explain everything in plain English, and give you the support you need every step of the way.

Preparing Your Documentation

Once you have your defense team in place, the real work begins – gathering and organizing all the documentation to support your ERC claim. This is where many businesses stumble, either because they didn’t keep adequate records or they’re unsure what the IRS will want to see.The key is being proactive and overpreparing. The IRS will likely request items like:

  • Payroll records
  • Financial statements
  • Tax returns
  • Documentation of COVID-19 impacts (government orders, revenue declines, etc.)
  • Calculations showing how you determined eligible wages and qualified periods

Don’t wait until the IRS comes knocking to start pulling this information together. Get out ahead of it and have everything compiled and organized from the start. The more complete and well-presented your documentation is, the stronger your defense will be. Our team at Spodek Law Group can guide you through this documentation process, ensuring you have everything the IRS could possibly need to substantiate your claim. We’ll also help you present it in a clear, coherent manner that makes the auditor’s job easier. Remember, you want to make their lives as simple as possible – a disorganized mess of paperwork is only going to raise more red flags.

Identifying Potential Weaknesses

Even if you feel confident your ERC claim was legitimate, it’s important to critically analyze it for any potential weaknesses or areas of non-compliance. An auditor is going to scrutinize every detail, so you need to get out ahead of any issues. This is where having experienced legal and tax professionals on your team is invaluable. They know exactly what the IRS will be looking for and can identify potential pitfalls you may have missed.Some common areas of concern include:

  • Miscalculating eligible wages or qualified periods
  • Inadequate documentation of COVID-19 impacts
  • Claiming the credit for employees who didn’t meet the requirements
  • Failing to properly reduce other credits or deductions

Our team will conduct a thorough review of your claim, pinpointing any areas that could be challenged by the IRS. From there, we’ll develop targeted strategies to bolster your defense and mitigate any risks. The goal is to be proactive rather than reactive. By identifying and addressing potential weaknesses upfront, we can present a stronger, more cohesive defense that leaves little room for the IRS to poke holes.

Christine Twomey
Christine Twomey
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
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
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
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
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
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
Very professional, very transparent, over all a great experience
Bee L
Bee L
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
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.

Crafting Your Legal Arguments

Even with impeccable documentation, you’ll still need to make solid legal arguments to defend your ERC claim. This is where the expertise of our tax litigation attorneys becomes invaluable. We’ll analyze the specific details of your case, the relevant IRS guidance and regulations, and any precedents or legal interpretations that could support your position. From there, we’ll craft airtight legal arguments that directly address and counter any potential challenges from the IRS. Our attorneys are skilled in the art of persuasion and negotiation. We know how to present your case in the most favorable light, using precise legal language and logical reasoning to sway the auditor in your favor. But we also understand that an ERC audit isn’t just about legal technicalities – it’s about protecting your business and its financial well-being. That’s why our arguments will always be rooted in practicality and focused on achieving the best possible outcome for you and your company.

Navigating the Audit Process

Once your defense strategy is in place, it’s time to actually navigate the IRS audit process. This can be a daunting and stressful experience, with auditors asking probing questions, requesting additional documentation, and generally scrutinizing every aspect of your claim. Having experienced legal representation is crucial during this phase. Our attorneys will serve as your advocates, communicating directly with the IRS on your behalf. We’ll ensure all requests are properly addressed, all deadlines are met, and that your rights are protected throughout the process. We’ll also prepare you for any meetings or interviews with the auditor, coaching you on how to respond to questions and what information to provide (or not provide). The goal is to present a united front and control the narrative, leaving no openings for the IRS to exploit. Throughout the audit, we’ll keep you informed every step of the way. 

Potential Outcomes and Next Steps

Ideally, our comprehensive defense strategy will result in the IRS accepting your ERC claim as legitimate and valid. But even if they initially disagree, that doesn’t mean the fight is over. If the IRS proposes adjustments or disallows your claim, we’ll analyze their reasoning and determine the best course of action. Depending on the circumstances, that could involve:

  • Further negotiation and providing additional documentation
  • Filing a formal protest or appeal
  • Pursuing litigation in U.S. Tax Court

No matter which path we need to take, you can count on our team to vigorously advocate for your rights and interests. We’ll explore every possible avenue for resolving the dispute favorably while advising you on the potential risks and costs involved with each option.The key is to never give up or accept an unfair outcome just because the IRS says so. With the right legal strategy and unwavering persistence, you can protect your ERC claim and your business’s financial well-being.

Why Choose Spodek Law Group?

When it comes to something as high-stakes as an ERC audit by the IRS, you need to know you have the best legal minds in your corner. That’s exactly what you’ll get with Spodek Law Group. Our team has a well-earned reputation for excellence in tax law and litigation. We’ve successfully defended countless clients against IRS audits, appeals, and criminal tax investigations. The ERC may be a newer area of focus, but our core expertise in tax controversy gives us a potent advantage.But what really sets us apart is our passionate commitment to client service. We understand that dealing with the IRS is deeply personal – your business, your finances, and your future are all on the line. That’s why we take a hands-on, collaborative approach, working closely with you to understand your unique situation and craft a customized defense strategy. No cookie-cutter solutions, no impersonal service – just good old-fashioned legal advocacy tailored specifically for you. Whether you need us to simply review your documentation or take on the full weight of the IRS audit, you can count on our team to go above and beyond.

Ultimately, when it comes to protecting your ERC claim and your business, you need a legal partner you can trust without reservation. Spodek Law Group has been that steadfast ally for countless clients, and we’re ready to fight for you too.So if you’re staring down an ERC audit and feeling overwhelmed, take a deep breath – help is here. Reach out to our team today, and let’s start building a rock-solid defense to protect what’s yours.

The ERC Audit Process Explained

Now that we’ve covered the importance of a strong defense strategy, let’s dive a little deeper into the actual ERC audit process and what you can expect.Generally speaking, there are three main types of ERC audits the IRS may conduct:

Correspondence Audit

This is the most basic form of audit, conducted entirely through written correspondence. The IRS will mail you a request for specific documentation and information related to your ERC claim. You’ll have a set deadline to respond, typically around 30 days. Correspondence audits are relatively straightforward, but they can still be tricky to navigate without professional guidance. You need to ensure you’re providing the right documentation in the right format, while also being careful about what information you choose to disclose.Our team can assist with compiling a thorough yet strategic response package, giving you the best chance of a favorable outcome from this initial stage of review.

Desk Audit

A desk audit is more interactive, involving phone or video meetings with an IRS auditor in addition to the document requests. This allows the auditor to ask follow-up questions and probe deeper into your claim and supporting documentation. While more involved than a correspondence audit, desk audits still occur remotely. This can make them seem less intimidating, but the risks are just as high if you’re not properly prepared. Having experienced legal representation is crucial for desk audits. Our attorneys will join all meetings with the IRS, ensuring you provide clear and consistent responses while protecting your rights. We’ll also object to any overreaching requests and work to control the narrative throughout the process.

Field Audit

A field audit is the most comprehensive and high-stakes form of ERC examination. In this scenario, one or more IRS auditors will conduct an in-person review at your place of business over a period of days or even weeks.During a field audit, the auditors will scrutinize not just your financial records and documentation, but your actual operations and business practices. They’ll be looking for any potential inconsistencies or red flags that could invalidate your ERC claim. Field audits are relatively rare for ERC cases, typically reserved for larger claims or situations where the IRS has significant concerns about potential non-compliance. But when they do occur, the risks of a negative outcome are extremely high without the right legal team in your corner. Our attorneys have extensive experience managing IRS field audits across all areas of tax law. We know how to prepare you and your staff, control the flow of information, and push back against any overreach or unfair treatment by the auditors. Throughout the entire process, we’ll be your voice and your shield, protecting your interests at every turn. No matter which type of audit you face, our team will ensure you’re fully prepared and represented. We’ll demystify the process, set realistic expectations, and give you the best chance of a favorable outcome.

Potential Penalties and How to Avoid Them

Of course, one of the biggest concerns with any IRS audit is the potential for penalties and interest charges if your ERC claim is disallowed or adjusted. These costs can add up quickly, compounding the financial strain you were likely trying to avoid by claiming the credit in the first place. Fortunately, there are steps you can take to minimize your exposure to penalties – and it all starts with how you approach the audit process. From the outset, our team will analyze your specific situation to identify any potential penalty risks based on the IRS’s findings. We’ll then tailor our defense strategy not just to substantiate your claim, but to clearly demonstrate that you acted in good faith and with reasonable cause. Establishing a solid trail of documentation, reliance on professional guidance, and a good-faith effort to comply with the complex ERC rules and regulations can go a long way toward avoiding draconian penalties, even if portions of your claim are disallowed. If the IRS does initially propose penalties, we’ll vigorously dispute them through the administrative appeals process. Our attorneys know all the legal arguments and precedents that can support a penalty waiver or reduction.We’ll also explore other potential avenues for relief, such as:

  • Utilizing the IRS’s Delinquent Filings Practices unit
  • Requesting a Penalty Relief Consideration based on reasonable cause
  • Pursuing the IRS’s First-Time Penalty Abatement policy (if applicable)

The key is to be proactive about penalty avoidance and relief from the very start. With the right documentation and legal strategy in place, you can significantly reduce your downside risk while defending the legitimate portions of your ERC claim.

When to Consider Settling or Withdrawing

In some cases, despite your best efforts, it may become clear that portions of your ERC claim won’t withstand IRS scrutiny. When that happens, you have a couple of options to consider:

Settling Your Claim

The IRS has announced plans to introduce an ERC settlement program that would allow businesses to repay a portion of their claim and avoid further disputes or potential penalties. 4 Settling can be a pragmatic solution if the costs and risks of continuing to fight the IRS outweigh the potential benefits of holding firm. Our team can analyze your specific situation and advise if this option is worth exploring based on the IRS’s position.

Voluntarily Withdrawing Your ClaimFor businesses that haven’t yet received a refund on their ERC claim, the IRS is offering a voluntary withdrawal option. By proactively withdrawing your claim, you may be able to avoid potential penalties entirely while still preserving some rights to refile later on. 5 Again, this is a strategic decision that requires careful consideration with the guidance of experienced tax professionals. We can review your documentation, gauge the strengths and weaknesses of your position, and determine if withdrawing makes sense as part of an overall ERC audit defense strategy. 

When to Consider Filing an ERC Claim

Of course, this guide has focused primarily on defending existing ERC claims against IRS audits. But what if you haven’t filed for the credit yet and are wondering if it’s still worth pursuing? With the IRS increasing its scrutiny and doubling down on enforcement efforts, this is a reasonable concern. After all, the last thing you want is to go through the hassle of filing a claim only to face an uphill battle with the IRS.

Here’s our advice – if your business was legitimately impacted by COVID-19 and you have solid documentation to support an ERC claim, it’s likely still worth filing. The potential financial benefits can be significant, even after accounting for the increased audit risks. However, we cannot stress enough the importance of doing it right from the very start. Sloppy documentation, questionable calculations, or overaggressive positions will immediately put a target on your back with the IRS.That’s why engaging experienced ERC professionals like our team at Spodek Law Group is so crucial. We can:

  • Conduct a comprehensive review of your eligibility and calculations
  • Ensure you have all required documentation in order
  • File your claim compliantly and defensibly
  • Provide guidance on structuring your claim to withstand IRS scrutiny

We’ll also be candid about your chances of success and whether the potential benefits outweigh the costs and headaches of an IRS dispute. Our goal is to maximize your ERC claim opportunities while minimizing your audit risks from the outset.

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