GAME OF PHONES: THE IRS’S OUTDATED INFORMATION TECHNOLOGY IS CAUSING SERVICE AND LEGAL ISSUES FOR THE U.S. TAXPAYER
By: Alec Lybik, Volume 106 Staff Member
As a law student, I thought I was done with math. Unfortunately, my struggles in eighth-grade algebra came back to haunt me when I attempted to calculate the probability of reaching the IRS after they disconnected my call for the third time in one day.
My experience is not unique. The National Taxpayer Advocate recently reported there is a 1 in 50 chance of getting a hold of an IRS representative by phone. To clarify, you have a greater chance of being called down to the Price Is Right or getting selected for federal jury duty than you do of getting in touch with of an IRS representative. This fact is not lost on the IRS or the National Taxpayer Advocate, who report that the second most serious problem facing the IRS in 2021 was their aging information technologies.
The IRS’s ability to connect with taxpayers over the phone is a crucial and legally mandated link for individuals looking to resolve tax disputes with the U.S. government. For a majority of taxpayers, not reaching the IRS is inconsequential. For a small subset of taxpayers, however, the IRS will automatically change their returns if they find math mistakes, and then encourage disputing those changes over the phone. If not correctly disputed, then those taxpayers could be bound by the IRS’s changes. These actions have come into acute focus during the Covid-19 pandemic. Individuals looking to reach the IRS have exacerbated an already fraught telephone system and are increasingly unable to challenge IRS changes, even if they are incorrect.
I. MATH ERRORS ON YOUR TAX RETURN
Math errors happen—you might drop a zero or add a number when you are supposed to subtract that number. Typically, when a taxpayer files a return with the IRS, that return is subject to a series of reviews and various levels of oversight. Congress, however, held that math errors are not worth all that review. Instead, under Internal Revenue Code (IRC) § 6213, Congress granted the IRS the power to automatically correct mathematical and clerical errors.
Under IRC § 6213, if a taxpayer sends in a return with a math error, the IRS will automatically correct the mistake and send a letter notifying the taxpayer of the change. This letter explains that the taxpayer has sixty days to officially request an abatement of the assessment. If a taxpayer does not dispute the assessment during this window, they lose their right to appeal in Tax Court and it likely becomes permanent. Unfortunately for the unwary, the IRS directs taxpayers to dispute the assessment by telephone.
In theory, this maneuver reduces the burden on the IRS, while saving the taxpayers time and money. Over the years, however, the IRS has used IRC § 6213 to assess more and more complex transactions and does not always clearly communicate taxpayers’ rights. This came to a head in 2021, when Congress introduced the Recovery Rebate Credit.
II. AUTOMATIC ASSESSMENTS IN 2021
In 2020, the IRS corrected 628,997 math errors on returns. So far in 2021, the IRS has corrected nearly 11 million. This increase can be largely attributed to errors with Recovery Rebate Credits (RRC). Commonly, people either claimed credits even though they received a stimulus check or incorrectly claimed too many credits. RRC mistakes are classified in IRC § 6428(e)(1), which directs the IRS to alleviate those mistakes under the procedures set forth in IRC § 6213
For the taxpayers who miscalculated their RRC, their return was automatically changed, and they were issued a notification letter. For five million of those individuals the IRS’s letter omitted details about their sixty-day dispute window and their rights to dispute any changes by mail. The IRS ultimately reissued all the letters, clarifying the sixty-day dispute period.
Holding aside whether reissuing the letter was legal, the IRS doubled down on not adequately informing taxpayers of the possible avenues to assert a request for abatement. It remains the case that if a taxpayer cannot get a hold of the IRS over the phone within sixty days, they are left with an undisputable assessment for a math error that may or may not be correct.
III. IS IT AN EASY FIX?
As it stands, the issue facing 11 million taxpayers is the stark underfunding of the IRS and the ineffective procedures to dispute math errors.
The Biden Administration has proposed spending $80 billion over the next decade to cover budget deficits and enhance the IRS’s technological capacities. This plan helps address the issue, but its impacts are years away.
In the short term, the IRS must act in a manner to reduce the liability of receiving an automatic math error assessment. Currently the IRS hides a taxpayer’s right to request an abatement by mail in a block of legal jargon that is accompanied by threats of audit if done improperly.  The IRS must make the ability to mail abatement requests more accessible. Mail requests for abatement may be more inconvenient for the IRS, but it is necessary to alleviate the phone system and must be communicated more clearly.
Tax is complicated, but that does not mean it should be inaccessible. This sentiment is only getting more pressing as returns are getting increasingly complicated with the introduction of new tax credits. The Biden Administration is already advocating for a budget increase for the IRS, but this process does not alleviate the immediate necessity to help the 11 million taxpayers with math errors. The IRS must do a better job of informing taxpayers of their rights, and it needs to do it fast.
 NTA Blog: 2021 Filling Season Bumps in the Road: Part I, Taxpayer Advoc. Serv., https://www.taxpayeradvocate.irs.gov/news/nta-blog-2021-filing-season-bumps-in-the-road-part-1 [https://perma.cc/6DH5-V62M].
 Carrie Grosvenor, Be a Contestant on ‘The Price Is Right’, LiveAbout, https://www.liveabout.com/contestant-on-the-price-is-right-1396384 [https://perma.cc/Y52B-VXBT].
 Mona Chalabi, What Are the Chances of Serving on a Jury?, FiveThirtyEight, https://fivethirtyeight.com/features/what-are-the-chances-of-serving-on-a-jury [https://perma.cc/MD46-43JL].
 Taxpayers Face Significant Difficulty Reaching IRS Representatives Due to Outdated Information Technology and Insufficient Staffing, Taxpayer Advoc. Serv., https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_MSP_02_Telephone.pdf [https://perma.cc/X6UE-BM84].
 There are several legislative and executive mandates imposing customer service obligations on the IRS. See, e.g., IRS Oversight: Hearings Before the S. Comm. on Fin., 105th Cong. 1 (1998) (statement of Sen. William V. Roth, Jr., Chairman, S. Comm. on Finance); Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 1205, 112 Stat. 685, 722-23; The Agency, Its Mission and Statutory Authority: The IRS Mission, IRS, https://www.irs.gov/about-irs/the-agency-its-mission-and-statutory-authority [https://perma.cc/4JEP-7P9R].
 Typically, the IRS establishes a whole host of procedures and rules on how to communicate and where to communicate in order to dispute your taxes. See 26 C.F.R. § 601.103 (1984).
 See Notice CP11 – IRS, IRS, https://www.irs.gov/pub/notices/cp11_english.pdf [https://perma.cc/X4P3-RCB6]. The IRS states on page two that “[i]f you disagree with the amount due” to call at their toll-free number. This contrasts with the above mailing disclaimer, which is a block of text that warns of potential audit risks. See also Notice CP12 – IRS, IRS, https://www.irs.gov/pub/notices/cp12_english.pdf [https://perma.cc/VQC8-W3ZH]. The IRS lists on page one contact info of only a telephone number, and similar to the CP11 Notice, gives a block of disclaimer text for mailing options.
 Chart Book: The Need to Rebuild the Depleted IRS, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/research/federal-tax/the-need-to-rebuild-the-depleted-irs [https://perma.cc/932K-S9AX] (noting that the IRS budget has fallen 19% since 2010).
 NTA Blog: Lifecycle of a Tax Return, Taxpayer Advoc. Serv., https://www.taxpayeradvocate.irs.gov/news/nta-blog-lifecycle-of-a-tax-return [https://perma.cc/4BVM-2FGC].
 I.R.C. § 6213(b)(1).
 Notice CP11, supra note 7; Notice CP12, supra note 7.
 I.R.C. § 6211. If you do not dispute during this time period, you lose your ability to take the IRS to tax court (i.e., have an impartial judge evaluate whether the IRS is right).
 Notice CP11, supra note 7; Notice CP12, supra note 7.
 NTA Blog: Math Errors Part 1, Taxpayer Advoc. Serv., https://www.taxpayeradvocate.irs.gov/news/nta-blog-math-error-part-i [https://perma.cc/W2UD-A2GG].
 Laura Saunders, The Latest IRS Headache for Taxpayers: 11 Million ‘Math Error’ Notices, Wall Street J., https://www.wsj.com/articles/the-latest-irs-headache-for-taxpayers-11-million-math-error-notices-11630661402 [https://perma.cc/TNZ9-NP6A].
 Pauline Smith, Yes, the ‘Math Error’ Letters from the IRS are Real. Here’s What’s Going On, KHOU, https://www.khou.com/article/money/irs-math-error-letters/285-576696a4-8f6e-4b96-ac4f-48dca7512790 [https://perma.cc/5KU8-PHTS].
 I.R.C. §6428(e)(1) (holding that any RRC incorrectly claimed on return falls under mathematical or clerical error defined in IRC § 6213).
 NTA Blog: Math Errors Part 1, supra note 14.
 Saunders, supra note 16.
 By issuing the supplemental letters, the IRS effectively extended the sixty-day filing window by an additional sixty days from the mailing of the new notice, which effectively moots any legal challenge. See NTA Blog: Math Error Part II, Taxpayer Advoc. Serv., https://www.taxpayeradvocate.irs.gov/news/nta-blog-math-error-part-ii-math-error-notices-arent-just-confusing-millions-of-notices-adjusting-the-recovery-rebate-credit-also-omitted-critical-information/ [https://perma.cc/SYA2-R7UC].
 Kate Dore, Biden’s $80 Billion Plan to Beef Up IRS Audits May Target Wealthy Small Business Owners, CNBC, https://www.cnbc.com/2021/05/05/bidens-80-billion-plan-to-beef-up-irs-audits-may-target-wealthy-small-business-owners.html [https://perma.cc/B5UH-DNWR].
 Notice CP11, supra note 7, at 2.