April 13, 2009

By Ben Elgin, Keith Epstein and Brian Grow

As federal stimulus dollars begin to flow, one unlikely beneficiary is the $30 billion tax-preparation industry. Prep specialists from top dog H&R Block (HRB) on down are celebrating as the Apr. 15 deadline approaches. The fresh treat: billions of dollars in new and expanded tax credits for individuals and small companies.

The good news for tax preparers could turn into bad news for the IRS, however, as well as an early illustration of what might be many unintended consequences stemming from the stimulus.

Tax-prep pioneer John Hewitt calls the huge federal spending package “the H&R Block and Liberty Tax Stimulus Plan.” Twenty-seven years ago, Hewitt founded Jackson Hewitt Tax Service (JTX), the second-largest chain in the business. He-now runs No. 3 Liberty Tax Service.

Hewitt has instructed his staff to explore leasing additional stores being vacated by Starbucks and other victims of the recession. “I love it whenever [lawmakers] pass tax changes,” he says. “This one helps us because there are more tax changes that affect more people than any bill I’ve ever seen.”

The mood is less cheerful at the IRS. Officials there are girding for a wave of questionable credit claims and outright fraud. A major problem, explains Nina E. Olson, the IRS taxpayer advocate (or ombudsman), is that most tax preparers are unregulated. The vast majority aren’t licensed accountants or lawyers. Only three states-California,Maryland, and Oregon-certify tax preparers. In an industry of more than 1 million service providers, the IRS imposes fewer than 300 penalties a year, most quite modest.

“There are too many areas of this country where you have to go through more work to be licensed as a beautician than to do someone’s taxes,” says Representative Xavier Becerra of California. A senior Democrat on the House Ways & Means Committee, he plans to introduce legislation this year to require that all preparers register with the IRS.

Olson fears that preparers will exploit the stimulus initiative’s multibillion-dollar expansion of the Earned Income Tax Credit, which last year transferred $47 billion to low-income families. The inspector general of the Treasury Dept. estimates that, even before the stimulus, the EITC was resulting in $10 billion to $13 billion a year in improper claims, many of which the agency contends are encouraged by unscrupulous preparers. While prep companies aren’t supposed to charge fees based on how much money they obtain from the IRS, in practice many set higher prices for customers seeking refunds.

The stimulus package also includes new or enlarged tax benefits for small businesses, first-time home buyers, certain parents and retirees, and people who improve the energy efficiency of their dwellings-all of which are susceptible to abuse in the hands of dishonest or incompetent tax preparers, says Olson. “Some of the provisions in the economic stimulus legislation will dwarf the EITC in terms of rate of fraud,” she predicts.

An estimated 60% of all tax returns are handled by paid preparers, up from 48% in 1990. The preparers have plenty to dig their teeth into: The stimulus legislation enacted in February provides for $154 billion in additional refundable tax credits to families and small businesses over the next three years. Using proprietary software, prep companies charge $200 to $450 for a basic return, with the fees often set toward the high end of the range if the taxpayer receives a credit-related refund. This creates a strong incentive to encourage customers to seek credits based on their income, number of children, willingness to insulate their homes, or a purchase of real estate.

Even when done properly, the tax-prep business can yield impressive profits. “We were charging people $300 to $400 for 10 minutes of work,” says Greg Gillihan, who ran a franchise in Kansas City in 2007 for the fourth-largest chain, Dayton-based Instant Tax Service, which has 1,200 offices.  Industry executives say that only a tiny handful of prep offices engage in fraud.

“People trying to play by the rules are disadvantaged competitively and dismayed by some of what goes on,” says Robert A. Weinberger, H&R Block’s top lobbyist in Washington. John G. Ams, executive vice-president of the National Society of Accountants, agrees: “My members are tired of having to fix errors they find on someone else’s work product.” The group has pushed for self-regulation overseen by the IRS.

As for the industry’s rates, executives and their advocates point out that no one is forced to hire a preparer. “If you don’t like the price charged, go to somebody who does it cheaper,” says Mark Steber, Jackson Hewitt’s vice-president for tax resources. “It’s the free-market economy model.”

Unfortunately, the free market’s invisible hand sometimes has its thumb on the scale, to the detriment of the U.S. Treasury. In January, volunteers for ImpactAlabama, a nonprofit activist group, secretly recorded meetings with employees at 13 outlets in that state, including one Jackson Hewitt franchise. Transcripts provided to BusinessWeek show that the volunteers posed as taxpayers seeking EITC refunds for which they were not eligible. Most of the tax preparers appeared willing to file false returns.


On Jan. 12, an Impact Alabama volunteer visited a Jackson Hewitt outlet in Montgomery, the state’s capital. Situated in a strip mall between a liquor store and swimming pool supply business, the Jackson Hewitt office has a sign in the window stating: “Confused about changing tax laws? We’re not.”

According to the transcript, a Jackson Hewitt employee told the undercover volunteer that she qualified for the EITC based on her occasional custody of two children. In fact, the supposed taxpayer should not have received a refund under the EITC because, as the volunteer made clear, neither child lived with her for the six months out of the year that the law requires.

The Jackson Hewitt employee prepared documents seeking what appears to have been an invalid $5,639 refund and charged a fee of $402, according to Impact Alabama. The nonprofit never filed for the refund.

When a BusinessWeek reporter visited the Jackson Hewitt office in early March, employees declined to comment. The owner of the franchise, Charlie West, said in a subsequent interview that the fee charged was “higher than usual” because of the complexity of the return in question. He said initially that he would look into the EITC fraud allegation but then failed to respond to follow-up calls. (On Mar. 31, Liberty Tax’s John Hewitt confirmed he is exploring a possible acquisition of his former company, Jackson Hewitt.)

Impact Alabama’s research is part of a campaign by its founder, Stephen Foster Black, director of the University of Alabama’s Center for Ethics & Social Responsibility, to persuade the state’s legislature to require licensing of all tax preparers. H&R Block has supported that effort. But 300 other individual tax-prep outlets and franchisees in Alabama and elsewhere have started a group called the National Independent Tax Preparers Assn., based in Montgomery, to oppose the bill that Black supports. Similar standoffs have kept preparers from facing meaningful policing in a number of states.

J.C. Snowden, who heads the tax preparers’ association, says the Impact Alabama investigation was sneaky and unfair. He favors a fine on preparers of up to $100 per tax-return violation. The legislation supported by Black would impose fines of $500 to $2,500 per violation. “We’re firmly behind regulating this industry,” Snowden says. For now, though, his lobbying is slowing down any changes.

In Washington, the IRS can’t track complaints against tax preparers because the agency has no central database to store the information, according to a Feb. 24 report by the Treasury Dept.’s inspector general. A Dec. 31, 2008, IG report found that the IRS generally doesn’t follow up on hundreds of thousands of questionable EITC returns, as identified by its own computerized filters.


Even when the IRS does step in, the results are often uncertain. In 2007 the agency became suspicious of an eight-store Instant Tax franchise in Missouri. The agency received information from a former employee that Instant Tax was selling bogus personal information about made-up family members so that clients could apply for EITC refunds, according to an April 2007 affidavit for a search warrant filed by an IRS agent in federal court in Springfield, Mo. Another former employee complained to the IRS that the franchise owner, Kevin Edmonds, and his manager, Josh Lenz, were “taking advantage of mentally disabled and poor people” by adding false information “that resulted in fraudulent returns and fraudulent increases in earned income tax credit[s],” the affidavit said.

The IRS also found that the Instant Tax franchise was generating refunds on 99.3% of the returns it handled, according to the affidavit. “The entire business…is permeated [by] fraud,” the agent stated. The IRS searched the eight Instant Tax locations in October 2007, but it since has taken no further public action. An agency spokesman declined to comment.

Instant Tax issued a press release in August 2008 acknowledging that it had “allowed the franchisee [in Missouri] to expand too quickly” and had terminated its contract with the owner,Edmonds. But Instant Tax didn’t mention in the press release that it had sold two Florida locations to Lenz shortly after the October 2007 IRS raid. Edmonds, meanwhile, became an Instant Tax “area developer” in Oklahoma, a job he holds today. Edmonds and his attorney declined to comment. Lenz didn’t return calls seeking comment.

Fesum Ogbazion, Instant Tax’s CEO, says that Edmonds sells franchises in his current role and doesn’t prepare any returns. The company is concerned about the IRS investigation, says Ogbazion, but still sold franchises to Lenz because the probe hasn’t led to any charges.

Elgin is a correspondent in BusinessWeek’s Silicon Valley bureau. Epstein is a correspondent in BusinessWeek’s Washington bureau. Grow is a correspondent in BusinessWeek’s Atlanta bureau.