The Power to Do Evil: The Ethical Dilemma

Over 2,000 years ago Plato, Socrates, Aristotle and the Stoics were debating ethics. Fast forward to our modern day and we find our moral compass challenged daily and on a much deeper level.

Less than two months ago I faced the second largest ethical dilemma of my career. About eight years ago I faced my biggest ethical challenge. I will share both stories here today and the outcome. My struggles should prove fertile ground for contemplation of your own moral judgment.

As a society we think of certain people as more prone to ethical lapses. This might be the result of the professions involved. Police officers make repeated ethical decisions every day. Judges, prosecutors and even jury members must deal with their personal ethics and that of others. But law enforcement or military personnel aren’t the only ones thrust into serious choices. Attorneys and doctors are forced into making decisions that might not seem ethical at first, but they are often forced to make a choice and fast. No choice is an ethical choice all too often with serious consequences.

Your favorite accountant also faces ethical issues. I’m enrolled to practice before the IRS (EA) and that means I have an ethical code of conduct forced upon me (Treasury Circular 230). But it isn’t enough! Every decision I make in my office has some level of ethical consideration involved. The bare-bones guidelines governing EAs is only a framework. Many decisions must be made quickly in the gaps.

Non-professionals also deal with ethics. The demand to choose the most ethical route might be less rapid-fire, but everyone still faces tough choices from time to time. By revealing my two most difficult decisions of my career I hope to get you thinking about choices you make in life and the moral and ethical issues involved. There is no doubt the comment section will be lively with this one as opinions vary widely when ethical choices are discussed.

I Did it Right and Paid Hush Money

This one happened less than two months ago and is still a festering thorn in my tail.

In Wisconsin we have a personal property tax for businesses only. In January a form comes in the mail to list all the business assets outside the building. Computers are exempt from the tax, but desks, phone systems, copiers and faxes do count. The value of the property is decreased each year for depreciation in estimated value. The value is then taxed at the rate real property rate.

My client received his personal property tax forms in January two years ago. The report is due March 1^st. This is a serious issue. Most business clients don’t have their financials in to me by the time I need to file the personal property tax report. When most clients are quizzed on new purchases they generally draw a blank until they need a deduction on their income tax return. By then it’s too late for the personal property report.

As preparer I’m required to sign the return attesting the report is true and accurate to the best of my knowledge under threat of perjury. Even though the return might be wrong, I don’t know this until after the fact and usually after the due date.

The client in question purchased a large piece of equipment two years ago. It was missed on the first return for the reason listed above. Then, last January, we added the new equipment to his disclosure. This added close to $100,000 to his business’s personal property. His bill from the municipality would jump from a few hundred dollars to $2,000.

Last December the bill came in and he flipped. We did everything right, but he was mad we didn’t cheat on his personal property tax report. After several rounds of debate he demanded I pay him half the tax owed.

Here is where the ethical dilemma turns ugly. His business and personal return alone isn’t enough for me to even consider such an outrageous demand. But he’s connected to one of my five largest clients. Losing all that business will be noticeable. I paid the $1,000.

You can grill my tail in the comments. You are 100% right. I was wrong to pay half his tax bill in the name of saving a client.

Of course, you know what happened next, right? Well, in December he got his personal property tax bill and in January he got the forms to report this year’s information. My office manager filled it out last year and filled it out the way the client wanted this year and put my name on it to sign. I refused. I made it abundantly clear this office will neither prepare nor sign another personal property tax report for this client ever again! If he wants to cheat I will have no part of it.

My office manager hand delivered the personal property tax forms back to the client with my response. She pointed out the offending machine and he made it clear he will not report it.

Things have been frosty since. I did the right thing except for writing a check. In the end it is almost a certainty I will lose one of my biggest clients and all work connected to them. It probably would have been better if I cut ties immediately.

Ethical Discussion

The ethical dilemma above is clear to see in hindsight. I did a lot right and also committed what I consider a grievance error.

Every option available creates an ethical problem. If I comply I’m an accomplice to fraud. If I do what I did I only pushed the unethical act back on the client. And if I fire the client I push the ethical issues to the next tax professional. As you can see, even no choice, standing like a deer in the headlights, is still a clear choice with ethical implications.

What would you have done? Do you think I was wrong? Would you have written a check to keep a client? Paying a client’s tax isn’t illegal. I committed no crime. I was only asked to prepare a false return and refused. Morally the ground I stand on is higher. But we are talking ethics, kind readers. The decision isn’t always so clear cut in such cases.

My Greatest Ethical Challenge Ever

I have a reputation for handling very difficult cases against the IRS. I have a tax attorney in D.C. on speed dial. Her rate starts at $1,000 per hour. For the dirtiest cases we call her in.

The case in discussion here didn’t involve outside help. I did this one all on my own.

Sometimes when an accounting or tax firm gets into tax trouble I’m called in. It makes for a unique situation, for sure. The IRS usually laughs when they see me defending the competition. When I was done with Revenue on this case the laughing had stopped.

The tax firm involved had about $800,000 of profits annually. They are a slightly larger firm than mine. An audit revealed some irregularities and the IRS assessed them with $1.2 million in back taxes, penalties and interest. It was rightfully owed.

The auditor made a few errors in assessing tax. When I pushed back I was threatened with preparer penalties. I was called into the IRS office. I brought the only paperwork I would need. The agent made it clear I was in serious trouble. This is when I pulled out the federal court paperwork already filled out. You see if you want to attack a tax professional you don’t do so in Tax Court where you need to prove your innocence. You go to federal court where you are presumed innocent until proven guilty. I finished my argument with, “You file any penalties against me and I file this in federal court. I want to see the prosecutor dumb enough to get his butt chewed by a federal judge over preparer penalties against an individual who DIDN’T PREPARE THE RETURN!”

The auditor swallowed her tongue. I remember her words clearly, “I’m glad you told me this.” I’m sure she did. Of course she could have looked at her paperwork before she levied the threat to back me off a case. As I left I turned back and very quietly said, “You’re going to regret doing this.” I was pissed.

Six months later the IRS couldn’t collect a penny and the auditor was gone.

Through a series of procedural maneuvers I backed the IRS into a corner. Eventually they sent a guy from the appeals office in Dallas. That’s a long trip for little ol’ me.

The meeting with the appeals officer, client and me happened in my conference room. My client was grilled for assets. He kept professing he had few assets. Most of the client’s income was off the table. (That story would be a long post in and of itself.) At one point the agent asked the client if he had any expensive jewelry. My client said no.

But that was a lie! He just bought his wife a $25,000 ring. I saw the receipt. That was one nice rock!

When the inquisition was finished I filed the coup de grace and had my client deemed uncollectable. Not bad for a guy who owed over a million and pulled in close to a million annually.

One of my CPAs at the time asked me if what I did was ethical. I defended myself by saying it would have been unethical of me NOT to defend the client to the nth degree. After all these years I’m no longer certain.

As happens all too often, the client dodged a bullet and went right back to the well. This time he brought a bigger shovel. I took a pass. He was no longer a client. But there is no doubt in my mind I enabled his behavior.

Ethical Discussion

I take a big chance sharing these stories. I kept the details vague for a reason. All information that would lead to identifying the client has been removed.

Tax professionals are a large part of this blog’s readership. IRS agents and state revenue departments also drop in unannounced. By sharing my ethical standards I expose myself to risk of sanction or retaliation. However, these issues are too important to ignore. Hiding from the truth doesn’t make my profession better. Only by sharing my experiences and choices can the demographic grow.

When over a million dollars are on the line we are starting to talk serious money. The ethical implications are huge.

I never said a word when the agent asked my client about jewelry. If I were asked I would have told the truth. But I wasn’t asked and the IRS agent had no reason to believe I had additional information.

What are the ethical implications? If I spoke up I would have betrayed the client I was representing. Can you imagine an attorney throwing his client under the bus? I felt it was the same thing. Now I’m not so certain.

Enrolled agents have virtually no privilege with clients. People need to understand licensed tax professionals (CPAs and EAs) have to comply with most IRS requests for information or face penalties and/or sanction. Only attorneys have privilege with clients.

This final story bothers me on two levels. First, the size of the amount due was large. This wasn’t a minor issue. Once you cross into seven figures the gloves come off. The second problem for me was my actions enabled the client. He went back to digging a new hole.

The worst part of this ethical dilemma was why I did it. An IRS agent pissed me off by her low level of professionalism. I used my 30 years of experience to gut her just because I could. It sounds like smart talk, but because I won the game I actually walked the talk. And when the dust settled I had to contemplate my CPA employee’s comment: Was what I did ethical?

The real questions should be: Why don’t I fight at that level all the time? For one I don’t have the energy. And second, most cases don’t have the facts to accomplish what I did.

Time for a Debate

This is where you can tell me how wrong I am.  The second ethical issue above is a large number while the first issue above is highly questionable.

What would you have done? If you hire a tax pro would you expect that kind of defense? When it comes to taxes is it anything goes? I hope not. I think my moral compass is better aligned than that.

In each instance every action I took was an ethical choice. “No decision” was also an ethical choice! Firing the client only kicks the can to the next tax professional.

Treasury Circular 230 is clear on the matter. Section 10.21 states tax professionals governed by the rules of Treasury Circular 230 must inform the client of errors and the consequences. In other words I have to tell you if you are cheating when you probably already know you are cheating! I also have to tell you the potential penalties. There is nothing in there saying I have to fire the client! However, I think it’s clear I’m not allowed to sign a return attesting its accurate when I know it isn’t. But I can still keep representing the client. Talk about a conflict of interest (which is covered in the circular, too).

I hope we can get a lively debate in the comment section. The personal property report issue is what triggered this post. I’m very interested in how you would handle the situations I had.

My goal is to get you to think about the ethical implications of your decisions. Many times life gives us all bad options and not much time to make said choice. Doctors make life and death decisions in a heartbeat. The police, prosecutors and judge can destroy an innocent life with one bad decision.

And tax professionals can make or break the personal finance issues of clients. Retirement, early or not, is affected by tax choices. The answers are rarely crystal clear.

This isn’t about right or wrong. It’s about making a choice when all the answers are wrong. About making the most ethic choice of those available.