FIRPTA Tax Blog

Despite the IRS “ordering” over 10,000 employees back into IRS offices a couple weeks ago, it appears many IRS employees have respectfully declined to follow this IRS directive. Recall on April 27, the IRS ordered its “mission critical” employees back into the IRS offices. This request for employees to return to the IRS offices came only about a month after the IRS ordered most of its employees out of the IRS offices. In late March, the IRS, which employs around 75,000 people across the country, sent many workers home as a precaution against the spread of Coronavirus. Around 44,000 started working from home, with around 30,000 or so continuing to be paid but not working. And then on April 27th, the IRS “ordered” around 10,000 employees (presumably amongst the group not already effectively working from home) to go back into the IRS offices, however a closer look at that “order” reveals the IRS merely requested the employees to go back to work in various IRS offices, and tried to tantalize them back into the offices with incentive pay.  Not surprisingly, the offer of a little extra incentive pay does not appear to have done the trick, and apparently many IRS employees declined this order/request. Of course it didn’t help that the IRS did not even have face masks (at all its offices…it did have them at some) to give to its employees for their safety in this terrible time of Coronavirus.

Now over two weeks after the April 27 “order”,  it appears that the IRS still needs many more “volunteers” to return to work in their IRS offices. It’s unclear if the IRS is offering extra incentive pay (above what they offered in the first go-around, which was reported to be a bump of between 10% to 25% of base salary for the near-term) to further entice the employees who have decided not to return. But my guess is even extra incentive pay is unlikely to do the trick for many IRS employees. IRS Commissioner Chuck Rettig told congressional staff late last month that 100 IRS employees had contracted Coronavirus, and four had died. Would an IRS employee (or anyone for that matter) really want to go back into a cramped IRS office when they were already being paid their full salary (and in many cases not actually being required to work for their full salary) during the Coronavirus pandemic? Compliments to them if they do, but I doubt many are retuning (even with incentive pay). The IRS is probably going to have to order them back into their offices (a real order, not a request) in order to complete all the tax refund work in 2020, and such an order may not be easy to issue or enforce.

Our work at DIRECTS focuses exclusively on foreign sellers of US real estate and their tax refunds from 2019 (or earlier) sales of US real estate, or withholding certificate applications for 2020 sales, or procuring ITIN’s (Individual Taxpayer ID Numbers) for the foreign sellers. Although we assist foreign investors selling real estate throughout the entire United States, the majority of the foreign sellers we assist are selling US real estate in California (for example Los Angeles, San Gabriel Valley, Orange County and the Palm Springs area are big hotspots for foreign investment in real estate). We rely heavily on two IRS offices (in particular) to function at high efficiency. The most important IRS office for FIRPTA (foreign seller tax) work is the IRS office located in Ogden, Utah, where the IRS’ “FIRPTA Unit” is located. This is the office that reviews our withholding certificate (8288-B) applications. The other office we rely heavily upon is the IRS office in Austin, Texas, where the IRS processes both ITIN requests and tax return/ withholding tax refund requests. Both offices appear to be having significant challenges in terms of bringing back employees into the IRS offices, largely because of local conditions and/or local stay-at-home ordinances. You can see the challenge for the IRS higher officials looking to get the refunds back on track- how can we order our employees back in the offices when local stay-at-home orders (see for example the May 8th Austin, Texas stay-at home order, which was extended despite the State of Texas lifting its stay-at-home order on May 1st) are keeping the general population at home for safety reasons?

Following up on DIRECTS’ most recent blog post, where I discussed the concerning issue of IRS employees who had become frightened to go into the (cramped) IRS offices and do work which I really believe can only be accomplished in their offices, the story has taken a profound and potentially confrontational turn. Starting Monday (April 27), the IRS has ordered its “mission critical” employees back into the IRS offices. To reassure the employees (I guess), the IRS is requiring PPE to be utilized at all times within the IRS offices, but the IRS may not be able to provide such PPE to the employees. A leaked IRS internal memo suggests the employees consider “utilizing cloth face coverings fashioned from household items or made at home from common materials at low cost” if they have no other PPE available. Ugh. The head of the Treasury Employees Union stated “the initial wave [of employees returning to the IRS offices] will include about 10,000 employees at 10 locations who will be opening taxpayer correspondence, handling tax documents, taking taxpayer telephone calls and performing other functions related to the filing season.” At least some employees are being offered incentive pay, and (at this point) the employees are not being forced to return (they are permitted to turn down the order to return to the office). Many IRS employees had been permitted to work from home recently (given the current health crisis ravaging the country), but from the what we’ve been seeing recently at DIRECTS, working at home does not lead to the speediest of results from the IRS. Nobody has been able to call the IRS for about a month, and mail sent to the IRS “has been piling up in trailers”, according to the Wall Street Journal.

The issue of whether the IRS employees work from the actual IRS offices is of particular interest to us at DIRECTS (Domestic and International Real Estate Closing Services), because we focus on non-US sellers of US real estate, who are always awaiting large tax refunds this time of year, plus our 2020 foreign sellers  who are applying for ITIN’s and applying for 8288-B/ withholding certificates are very much interested in speedy IRS compliance as well. Our FIRPTA-related work requires the IRS employees to be in their offices and on their game, there is no doubt in my mind. This push by the IRS has been prompted by the need to inject the stimulus checks into the economy, but really the IRS needs its employees back in the offices for all reasons, including processing tax returns and issuing refund checks (such as the large refunds typically due non-US sellers from the prior year). We have seen the time for the IRS to process refunds, ITIN’s and 8288-B withholding certificates really start to drag sharply in the last month, so for us this (push back into the IRS offices) really is needed.

Is this the end of it; the IRS employees are just going to go back to the IRS offices, no problem? I doubt it. As of Monday, they are not actually required to go back in (it appears to be just a request from the IRS officials). What if there are not many IRS employees who agree to simply return to the the IRS offices?  Plus members of Congress have already begun openly complaining that the employees are not being given PPE by the IRS. Moreover, I have no doubt these people are scared. One incident of Coronavirus in one over-stuffed IRS processing center and this could become a huge mess. It might not even take an incident for this to become a huge mess.