Tax preparer should pay penalty fees for error

DEAR BRUCE: I just received a notice from the IRS that I owe $650 for dependent-care benefits for my taxes from 2009. I've paid the same professional accountant for seven years to do my taxes, and every year I have told him I have a flexible spending account and a dependent-care account. Apparently the accountant gave the dependent-care credit account rather than reporting my flexible spending account benefit. He says he missed the information on my W2s and told me I owe the money to the IRS. Is the accountant responsible for paying any of the tax and/or penalty for his oversight? — J.C., Lansdale, Pa.

DEAR J.C.: Ordinarily, if a professional tax preparer makes an error on any assessment, paying the penalties is his or her responsibility.

The taxes due, however, are the filer's, and they would have to be paid anyway. The problem here is often that the amounts are relatively modest. Going after the accountant may not be worth the effort.

There are requirements for licensing accountants, and a complaint can be made to those licensing agencies. Further, he or she might be a member of professional organizations, and you can file complaints with them as well.

The difficulty here is that for $650, it's likely that at least $400 or more is taxes that need to be paid, making the amount that you can recover from the accountant about $250. Whether it's worth pursuing is entirely up to you. You have to ask, is the principle worth the fight?

DEAR BRUCE: Is there any legal way to get out of a seller-financed mortgage? My wife and I got into this deal nearly four years ago. My wife was married before, and the two of them filed for bankruptcy. I had a rental property that the tenant stopped paying rent on, and I had to evict. I never recovered the money owed, and I had it reported on my credit report as 120 days late. We obviously were not in the best position to get a regular loan.

We needed to move and came across this property, which was exactly what we were looking for. We were initially going to rent it but were presented with a seller-finance option. Eight months into this deal, I could see that the note was so much that there would not be wiggle room if something were to happen. Over the four years, we have not paid other debts to make sure we could pay this "mortgage." We've had accidents, loss of wages and several other things that have affected our being able to pay this note. We are currently about $2,600 behind but always pay after the due date because we just don't have it.

The owner is now threatening us with default. We have asked him to rework the deal and disclosed all financial information so he could see that we are spending more than 36 percent of our income on this note. While I understand this is his right, is there anything we can do to avoid a default on my report for 10 years? What exactly does a default involve? Does that mean they will garnish wages for seemingly the rest of my working life? We are not trying to get out of paying anything. We simply can no longer afford it. — L.L., via email

DEAR L.L.: Seller financing, bank financing, private-company financing — these variables have no meaning. The issue here is what the mortgage says that you, your wife and the granter of the mortgage have agreed to. The obvious way to "get out of a mortgage" is to pay it off, and you are not in the position to do that. Further, if you are behind (even a day), you are in default.

Being late is clearly a result of circumstance rather than intent. That, again, has little meaning. If the seller chooses to move against you, there is no way I know of that he can be stopped or faulted. That's his privilege. He loaned the money and wants to get paid. If that happens, the property will eventually be sold. He will likely bid the amount that you owe him, along with any fees, interest, etc. If someone else purchases it, he will get his money and walk away. The likelihood is that no one else will purchase it, so he will buy it at that number, and there will be no residual benefit to you.

Your owner is most likely not a member of any credit organization, therefore he will not report this incident to a credit-reporting agency. They may, however, pick up on it in court records and include it in their report. All of these things are not good for you. I don't know anyway to forestall. From the owner's point of view, if he can't sell the mortgage, he should be amenable to some type of negotiation, not necessarily to lower the obligation, but at least to forestall the process, since he's not going to get paid.

The mortgagor might believe the property is worth more, and he will either find someone to purchase his interest or take it back. He may be able to sell it for more. I don't know of any cards you are holding that give you strength in negotiation. Declaring bankruptcy could forestall his ability to foreclose on the family homestead. You will need representation to determine the best option.

Send your questions to: Smart Money, P.O. Box 2095, Elfers, FL 34680. E-mail to: Questions of general interest will be answered in future columns. Owing to the volume of mail, personal replies cannot be provided.

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