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Question: “What is the responsibility of the preparer? I can't even get ahold of them.”
Answer: Well, you are liable to the IRS and State treasurer’s office. The fact that the mistake was made by a preparer will not, unfortunately, excuse you from liability. But if the preparer (the business, not the individual) was negligent, then you can probably win a lawsuit for indemnification against that preparer (the business, not the individual).
Even if the preparer (the business, not the individual) is out of business, you may be able to go after the individual preparer. Of course, collecting a judgment against an individual is more difficult than doing so against a business. Nonetheless, you could still likely win a judgment if you can prove that the preparer (the individual) acted negligently.
Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.
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Question: “Would an example of negligence be...taking deductions for Roth (front-loaded) IRA's? I'm not a financial savy guy, but even I know better than that. What kinds of things constitute negligence?”
Answer: That would probably be considered negligence. But here’s the legal definition of negligence:
(1) A duty to use reasonable care; (2) a breach of such duty; (3) damages; and (4) the damages were caused by the breach of duty.
A tax preparer who holds himself out to the public as a tax professional, and who takes money for preparing tax returns certainly has a duty to use reasonable care in preparing such returns. Incorrect preparation of tax returns could be a breach of the duty. You were definitely damaged since you now owe fines/penalties, and your fines/penalties are a direct result of the breach (i.e. if not for the breach, you would not owe such fines/penalties).
The biggest issue is with regard to (2). Did the tax preparer breach the duty of using reasonable care by taking incorrect deductions? Probably, but I can’t say for sure. To determine whether the tax preparer acted unreasonably (and thus, breached the duty), you’ll need to get another tax preparer to take the stand and testify that the defendant should not have made that mistake.
Also, you mentioned that you even knew that the tax preparer was wrong. The tax preparer may argue that you are contributorily negligent since you should have reviewed the tax return yourself, and you apparently did not do so. If that argument is successful, then any award you could win may be reduced.
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