Roth & Company, P.C. Tax Update Blog
On the road
January 27, 2012
Family matters call me out of town today, so no posts.
May that whistle mean your train has arrived!
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The rich guy can't pick up the tab
January 26, 2012
For all of the controversy surrounding the President's depressing and lame proposals to soak the rich, the most important aspect is getting overlooked: no matter how much money you take from "millionaires and billionaires", it will hardly reduce the budget deficit at all. The Tax Foundation explains with this helpful chart:
Click to enlarge
In so many words:
So taking half of the yearly income from every person making between one and ten million dollars would only decrease the nation's debt by 1%. Even taking every last penny from every individual making more than $10 million per year would only reduce the nation's deficit by 12 percent and the debt by 2 percent. There's simply not enough wealth in the community of the rich to erase this country's problems by waving some magic tax wand.
Even lowering the bar by taking 100% of the earnings of taxpayers over $1 million would only reduce the deficit by 35%, while of course bringing on an economic catastrophe that would make the Great Depression look like good times. By railing against "millionaires and billionaires" the President tries to distract us from the sad reality: failing to address the government's incontinent spending will eventually require a big tax increase on everybody. The rich guy isn't buying because he simply can't.
Other coverage of the President's tax proposals:
Shikha Dalmia, Obama's Daft Plan to Insource Jobs Back to America
Howard Gleckman, President Obama’s Tax Deform Agenda
TaxProf, President Obama Calls for 30% AMT on 'Millionaires and Billionaires'
Kay Bell, State of taxes in Obama's State of the Union address.
TaxGrrrl, Taxes and the State of the Union
Janet Novack, Obama Proposes Doubling Romney’s Taxes, With Minimum 30% Rate
Scott Hodge, Unanswered Issues on the "Buffett Rule"
Linda Beale, Obama's State of the Union vs Romney's Tax Returns
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Shooting jaywalkers, wrist-tapping GE
January 26, 2012
GE just lost an appeal on a big basis-shifting tax shelter, to the point of getting hit with a 20% penalty. While that seems bad, Jack Townsend makes an arresting comparision of GE's consequences from a "BS" shelter attempting to save GE over $60 million with the treatment of foot-faulters being hammered under the IRS pogrom against offshore tax evasion. From Mr. Townsend:
Was GE's conduct in this case any more morally upright or commendable than most of the persons who have been herded into OVDP 2009 and OVDI 2011 with far more draconian penalties? Yet, GE drew a relatively light 20% penalty.
Because you have to shoot the jaywalkers to wrist-tap the bad guys.
Related: Darth Shulman to foreign account holders: I am altering the deal. Pray I don't alter it any further.
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Is 'Harel Goldstein' Harold Hill's real name?
January 25, 2012
Iowa achieved another economic development milestone with a guilty plea by imprisoned California filmmaker Harel Goldstein on charges arising out of Iowa's film tax credit program. Thegazette.com reports:
Prosecutors said during filming of “Underground” in 2009, Goldstein created false invoices and used them to support claims for tax credits.Goldstein will face an estimated year-long extension of his 46-month federal sentence, according to the Iowa Attorney General’s Office. He pleaded guilty to all three counts as charged without a plea deal. As a result, Polk County District Judge Karen Romano agreed with recommendations from both parties and sentenced Goldstein to three suspended sentences, including two years of probation, and a $2,500 fine. Goldstein also was ordered to pay the cost of transport to Iowa and back to California.
OK, so maybe Mr. Goldstein's film, "Underground, " hasn't yet triggered a tourist boom, but we will always have the intangibles.
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Des Moines revenue cameras: $32,305 per accident 'prevented'
January 25, 2012
Des Moines' red light cameras cost motorists at least $32,000 per accident "prevented" in the last six months of 2011, according to a lame statistics release by the Des Moines Police yesterday reported by the Des Moines Register:
Des Moines police reported Tuesday the use of red light cameras in Des Moines from July through December last year reduced accidents at five major intersections by an average of some 33 percent, compared to the same six-month period at the same locations over the previous four years.
The cameras at these intersections resulted in 4,473 $65 tickets, costing drivers $290,745 -- all to prevent 9 accidents -- and that assumes that the entire reduction in accidents is attributable to the revenue cameras. Considering that this winter so far has been mild and almost snow-free, while the prior three winters were anything but, that's a shaky assumption. It would be worthwhile to know what the city-wide accident statistics were for the same period. In real life, the cost per accident "prevented" may be much higher.
Police and city officials are defensive about this tax on normally harmless behavior, like not quite stopping before making a right turn at an empty intersection or not quite beating the yellow light before it turns red. That's why they feel the need to justify it, even with this batch of cherry-picked statistics.
A more complete disclosure would include the nature of the accidents "prevented." We know of one high-speed wreck the cameras didn't prevent. It would also be worthwhile to compare these intersections to a control group of other intersections where revenue cameras weren't installed, but other means, like extended yellows and all-red phases, were tried. But as these alternatives pick no pockets, the police and the city aren't interested.
UPDATES:
"Extensive, two-year study finds red-light cameras don’t decrease accidents" (via Instapundit)
"Traffic camera ban clears House subcommittee"
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Sometimes they're not after your tax refund
January 25, 2012
Fraudulent tax refunds are a big moneymaker for identity thieves. The Justice Department tax division so far this week has announced nine indictments, convictions or sentencings for identity thieves.
Here in Iowa, identity theft apparently can have other uses. From an Iowa Department of Criminal Investigation press release:
Today, Friday, January 20, 2012, Zachary Edwards, age 29, from Des Moines, Iowa, was arrested and criminally charged with Identity Theft, an Aggravated Misdemeanor (Iowa Code 715A.8(2))...According to the Criminal Complaint, on June 24, 2011, Edwards fraudulently used, or attempted to use, the identity of Iowa Secretary of State Matt Schultz and/or Secretary Schultz’s brother, Thomas Schultz, with the intent to obtain a benefit, in an alleged scheme to falsely implicate Secretary Schultz in perceived illegal or unethical behavior while in office.
Until Friday Mr. Edwards worked for a consulting firm linked to Iowa Senator Tom Harkin. The firm has this testimonial from the Senator on their web site:
The folks at LinkStrategies have been helping me win campaigns since 1996. Whether it is managing campaigns or handling research, their specialty is doing quality work while finding smart, creative solutions to problems. In a tough fight, there is no question that I want LinkStrategies in my corner.
This isn't the first time someone linked to Senator Harkin has had troubles with the law:
Ramona Cunningham and Senator Harkin at the dedication of the Harkin Learning Center at CIETC headquarters.
But Ms. Cunningham's scandal was more old school, fragrant of sex and money.
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Mitt's 203-page tax return
January 24, 2012
There's a lot to the Mitt Romney 2010 1040. 203 pages long, with over $20 million of adjusted gross income, it tells a story of a wealthy and sophisticated investor. The would-be GOP nominee also released some trust returns that feed into the 1040. There's a lot here, and far more than I should spend unpaid time thinking about -- but I can't resist a little bit of voyeuristic observation.
- Mitt had a much better 2010 than 2009. His "protective" estimated tax based on 2009 tax was about $1.37 million. He had to pay in another $3.25 million with his extension. Much of that was cushion to cover 2011 estimated tax payments; he had a $1.6 million overpayment on the completed return, all of which went to 2011 estimates.
- 2010 was better because of $16.7 million in capital gains, offset by a $4.8 million capital loss carryover.
- That said, with $3.3 million in interest income and $4.9 million in dividend income, Mitt can hardly have a really bad year.
- The return was signed by somebody at PricewaterhouseCoopers on October 15, at the end of the extension period. Can you imagine the scene if Mitt had pointed out a mistake on the return on the extended due date? I can only imagine the logistical nightmare of making sure the return was signed and filed by the taxpayers on time.
- The return was, of course, prepared on what Robert D. Flach would call "flawed and expensive" tax return software. To do this return by hand, like Robert does his returns, would require a small army of flawed and expensive staff accountants with good penmanship. If nothing else, it shows that the current complexity of the tax law is possible only because of computers.
- Mitt has a $2 million passive loss carryforward, of which over $1 million is attibutable to 2010 losses.
- His return is fraught with potential expensive foot-faults. For example, he has a Form 8865 to report a foreign partnership and a Form 5471 for a controlled foreign corporation. Failure to file either one of these on time would have generated a $10,000 IRS penalty notice.
- The total tax on the 1040 is just over $3 million. If you counted the 35% tax paid by corporations on income generating the $3.3 million in qualified (15%-rate) dividends he reported, it would be about $1.79 million higher.
I'm sure the Obama, Gingrich and Santorum opposition research teams will be forthcoming with much more detailed analysis soon.
Link: Romney campaign page tax return links and campaign overview.
UPDATES:
TaxGrrrl, "Romney's Tax Returns are Remarkably... Unremarkable"
The TaxProf has a roundup.
Kay Bell, "Romney Release 2010 tax returns"
Philip Klein, "Romney needs no apology on tax returns"
Christopher Bergin, "Romney’s Returns: Wrong Point"
Anthony Nitti, "Reactons to the Romney Tax Returns"
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Is debt the villain?
January 24, 2012
The real devil in the details of Mitt Romney's tax life is the tax code's preference for debt financing, according to Tax.com's Martin Sullivan:
As Congress desperately searches for revenue to pay for a reduced corporate tax rate, it should consider limitations of interest deductions when there is excessive debt. Even if the Romney campaign convinces you that leveraged buyouts are totally benign, there is still no reason for the United States to maintain a tax system that favors them over venture capital.
His second sentence may well be true, but it doesn't mean the solution in his first sentence is the way there. Instead of punishing borrowers by limiting their deductions, you can instead reward equity financing by making dividends deductible.
I still think a dividends-paid deduction is a promising but under-discussed solution to the problem of high corporate rates and double taxation. Such a system would tax revenue at the corporate level when it is earned, but it wouldn't prefer debt over equity. The problem of deductible dividend payments to tax-exempt or foreign entities could be handled with a withheld excise tax on the payments to ensure the income is at least taxed once. It would eliminate the need for a preferential rate for dividends, perhaps quieting the smug and ignorant.
Related: Why not a dividends-paid deduction?
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More on Newt's S corporation
January 24, 2012
Newt Gingrich's S corporation paid him a salary of "only" $250,000 in 2010. It had over $2 million of other income that appeared on his K-1, which some commentators say is an abusive way of avoiding payroll taxes. Peter Reilly has some thoughts at Forbes:
There is one case where a $24,000 salary was held to be too low, but I have not found a case where someone who took a salary over the social security maximum has had S corporation distributions recharacterized. That does not mean that it has not happened in audits, but there are no guidelines there. It is true that the salary of $252,500 is low relative to the profits, but it is still substantial. If he were my client, I probably would have told Newt to consider taking a larger salary, but it is really a judgment call, not a Geithner situation.
Prior coverage: What do Newt and John Edwards have in common?
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Getting ready for your tax return
January 24, 2012
Your 1099s and W-2s should be hitting your mailbox. Maybe you've even gotten a stray K-1 already. So it's time to get serious about your 2011 1040. Kay Bell has a nice checklist to get you started. If you are having trouble finding all of the stuff you need to get your tax return done, maybe you should spend some time looking at The Missouri Tax Guy's advice on recordkeeping.
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What do Newt and John Edwards have in common?
January 23, 2012
Besides being model husbands? They both have S corporation income that exceeds their salary -- the so-called "John Edwards Shelter."
Now that it seems that Newt Gingrich might somehow be the Republican nominee for president, his tax return has come under scrutiny. The biggest income item on the return is from an S corporation, Gingrich Holdings. His Schedule E shows top-line K-1 income of $2,478,539, offset by a $25,130 Section 179 deduction. Meanwhile, he took "only" $252,500 in salary from the corporation. His wife took another $191, 827 in W-2 wages from Gingrich Productions, Inc., which is apparently a C corporation.
That leads to this comment reported by Janet Novack:
"It appears that he is not paying his fair share of Medicare tax," Robert E. McKenzie, a partner in the Chicago law firm of Arnstein & Lehr LLP concluded, in an email to Forbes, after reviewing Gingrich’s 2010 tax return. McKenzie, a past chairman of the Employment Tax Committee of the American Bar Association Tax Section and a member of the IRS’ Advisory Council, added: "There are a multitude of cases where the IRS has successfully challenged the improper tax strategy of this candidate and his accountants. Service businesses are only allowed to distribute a fair return on investment from an S corp. as profits exempt from Medicare taxes. The remainder of profits must be paid as salary subject to a 2.9% Medicare tax levy."
A multitude?
While there are plenty of cases where taxpayers have been called to account for taking no salary or nominal salary out of their S corporations, avoiding FICA and Medicare tax, there is no "multitude" of published cases where employee-owners who took salary of at least the FICA base ($106,800 in 2010) have had to take additional salary. In fact, there are none.
The closest case I can see to the Gingrich fact pattern is Watson, a district court case right here in metro Des Moines -- and the facts aren't very close. Watson involves an accountant whose practice generated around $200,000 in income, but for which he took only $24,000 in annual salary. Even in that case, the judge only boosted his annual salary to about $91,000. An appeal of the case by the taxpayer is currently before the Eighth Circuit.
So what is the "fair share" of Medicare taxes? Warren Buffett famously takes only $100,000 salary from Berkshire Hathaway, when comparable executives draw salaries in the millions. Should he be forced to take additional salary just to pay a "fair share" of Medicare tax?
"Reasonable compensation" is a notoriously difficult area of the tax law. Traditionally the IRS has tried to go the other way, trying to reduce W-2 compensation -- reclassifying it as dividends to make the payments non-deductible to C corporations. The incentive to do so was reduced when the salary cap was removed from the 2.9% medicare tax, but I know of no case where the IRS has tried to force a C corporation to pay more compensation to collect more Medicare tax.
You can accurately say that the tax law doesn't support an employee-owner taking no salary, or a token salary, out of an S corporation. You cannot say that the FICA base is a safe harbor "minimum wage" for an S corporation shareholder, but the IRS has won no court decisions involving such taxpayers. There is a huge gray area between token salaries for S corporation employee-owners and Ken Lay-sized salaries that hasn't been litigated.
While I may like Gingrich and Edwards only a little more than a bitter ex-spouse might, the existing case law simply does not support a claim that they failed to pay their "fair share" of Medicare taxes.
The TaxProf has more.
Related: Court sets 'reasonable' comp for Iowa CPA S corporation shareholder
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Deferred grain sales: you can't split the difference
January 23, 2012
Paul Neiffer explains:
When a farmer sells their grain on a deferred sales contract into the next year, they can elect out of the installment method on the grain that is covered by that particular sales contract. The key point is that they have to elect out of all of the grain covered by the contract or none of it.
He also explains how farmers can give themselves more options when entering into the deferred sales.
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The duct-tape approach to a bad tax system
January 20, 2012
We've all seen cars that really needed to be replaced, but the owner just wouldn't let go. The rust holes were left open, or maybe patched with Bondo or a piece of sheet aluminum. The broken window is covered with a plastic sheet. The rotten hose under the hood is wrapped with duct tape.
Iowa's income tax is a lot like that, but the folks driving it still have duct tape left. The recent discussion of new state tax breaks for sales to ESOPs is another strip from the tape roll. So is a proposal for tax breaks for "supply chain clusters." From Business360.com:
The state’s current tax structure doesn’t assess corporate income tax on manufactured goods sold out of state, but does charge corporate income tax on goods sold within Iowa. One result is that a large finished goods manufacturer like Deere & Co. or Rockwell Collins that sells most of its goods out of state may wind up paying less corporate income tax than its in-state suppliers for an equivalent amount of sales.“Those selling within the state are being hit with the highest corporate income tax rate in the country,” said Debi Durham, director of the Iowa Economic Development Authority.
...
The Iowa Economic Development Authority plans to propose supply chain incentive legislation this month that will cut the corporate income tax rate of Iowa-based manufacturers on tangible personal property sold to an Iowa-based “anchor manufacturer” that is primarily involved in interstate commerce.
This is a classic example of a break for a narrow group of taxpayers to patch a broken tax system. Like duct tape around a rotten hose, it will fix one leak, but the hose is still rotten and will give somewhere else. Iowa will still have the highest corporation tax rate in the country -- and perhaps the world. Iowa will still have a system so rotten, complex and loophole-ridden that even with the very high rates, it collects only a token portion of the state's revenue - around $200 million of a $6 billion budget. Every patch just increases the burden on taxpayers not lucky or connected enough to have the ear of the policymakers.
It's time to put away the duct tape and replace Iowa's current income tax. State corporate income taxes are futile and wasteful, and none more so than the Iowa system. A comprehensive fix is needed, and the Quick and Dirty Iowa Tax Reform plan is on the showroom floor, ready to roll.
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Brown standoff with reality continues
January 20, 2012
Ed and Elaine Brown yesterday lost the appeal of their long sentences stemming from tax charges, and especially from their long holdout in a fortified New Hampshire compound after their tax convictions.
The Browns probably weren't helped by their unusual view of the legal system. From the 1st Circuit opinion:
If it could be given a label, Edward's belief system appears most akin to the so-called sovereign citizen movement whose proponents believe they are not subject to federal or state statutes or proceedings, reject most forms of taxation as illegitimate, and place special significance in commercial law. See Wikipedia, http://en.wikipedia.org/wiki/Sovereign_citizen_movement (last visited January 13, 2012). Edward's comments reflected this philosophy. He repeatedly indicated that he did not recognize the district court or the laws it operated under. He also referred to himself and Elaine as "secured party creditors" and stated that a criminal case is really a "commercial transaction." He referred to the court as "nothing but a commercial court" and "one of the biggest businesses in the country."
"Secured party creditors?" Well, they're secured, that's for sure.
Russ Fox has more.
Link: USA v. Ed Brown, CA-1, No-1081
Related: 37 years for Ed Brown
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IRS releases Applicable Federal Rates (AFR) for February 2012
January 20, 2012
The IRS has issued (Rev. Rul. 2012-7) the minimum required interest rates for loans made in February 2012:
-Short Term (demand loans and loans with terms of up to 3 years): 0.19%
-Mid-Term (loans from 3-9 years): 1.12%
-Long-Term (over 9 years): 2.58%
Historical AFRs may be found here or from prior Tax Update posts.
The Long-term tax-exempt rate for Section 382 ownership changes in February 2012 is 3.55%.
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You want to deduct that loss? Be ready to prove you are non-passive
January 19, 2012
A Tax Court case yesterday illustrates the problems taxpayers with day jobs face when they want to deduct losses for side activities. A Minnesota entrepreneur named Alfred Iverson, who founded a successful manufacturer of surgical and medical equipment, also had a 14,000 Colorado ranch where he raised Angus and Herford cattle. The ranch generated tax losses in 2005 and 2006, and the couple deducted the losses.
The IRS challenged the losses, saying they are "passive" under the tax law. The taxpayers failed to convince the Tax Court that they spent enough time in farm activity to deduct the losses. From the Tax Court opinion:
Petitioners claim that in each of 2005 and 2006, whether at the ranch in Colorado or from petitioners' home in Minnesota, Mr. Iversen spent a total of at least 400 hours working on matters relating to Stirrup Ranch, Mrs. Iversen spent at least another 100 to 150 hours working on matters relating to the horses at the ranch, and that they together meet the 500-hour test of section 1.469-5T(a)(1), Temporary Income Tax Regs....
Our analysis of the time and activity petitioners spent in 2005 and 2006 working on matters relating to Stirrup Ranch is made difficult by the lack of meaningful contemporaneous or other records and documentation regarding specifically what petitioners did on a day-to-day basis and how much time they spent on matters relating to Stirrup Ranch. In this case, the lack of records and documentation are not cured by estimates made years after the fact in writing or by testimony.
It's up to the taxpayers to prove that they spent enough time on an activity for it to be non-passive. The taxpayers didn't produce enough time sheets or other records to convince the judge.
The passive loss rules could take on much more importance if the "Affordable Healthcare Act," or "Obamacare," remains on the books. The law imposes a 3.8% additional tax on "passive" income starting in 2014. Obamacare defines "passive" using the passive loss rules. At a D.C. bar luncheon yestreday, practitioners noted that this could be a big problem for S corporations ($link)
Unless S corporations begin planning for the tax, shareholders "will be short" when it comes time to pay their taxes, especially those who have passive positions in those passthroughs, he said.Coupled with a potential increase of the income tax back to 39.6 percent for the highest bracket, the Medicare contribution tax could pose significant problems for S corporations, which must maintain a single class of stock requirement, [Brian] O'Connor said. As a result, the S corporations must "distribute the same amount to everyone," he said, adding, "So that essentially means that more money is going to be coming out of the company."
If the income tax rates do rise to pre-Bush era levels, the effect will be "dramatic," O'Connor said.
The moral? Entrepreneurs with loss activities are wise to keep track of their time daily. Absent AHCA repeal, all entrepreneurs will need to become time trackers.
Cite: Iversen, T.C. Memo 2012-19
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At least one lawmaker wants to drag Iowa's tax law in the right direction
January 19, 2012
Mark Chelgren of Ottumwa has proposed SF 528. From its explanation:
This bill rewrites the state individual income tax by creating a flat tax structure and imposes a single rate of 6 percent on the taxable income of every taxpayer subject to the individual income tax.The bill creates a flat tax structure by eliminating most of the deductions and exclusions previously available when computing net income and taxable income for Iowa tax purposes and by eliminating the alternative minimum tax.
The bill provides for a standard deduction equal to $1,000 for each personal exemption the taxpayer is allowed to take under the federal Internal Revenue Code.
It would be a big improvement, but it could be more ambitious:
The bill retains the current tax credits available under the individual income tax with the exception of the minimum tax credit.
Why? We couldn't get by without three venture capital fund tax credits? Yes, it would be a big improvement over what what we have now, but we can do better!
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Buy.com founder learns the truth about the Tax Fairy
January 19, 2012
There is no tax fairy, despite of the best efforts of big law and accounting firms a decade ago. The founder of Buy.com learned the sad truth the hard way this week when the Tax Court ruled against his "OPIS" tax shelter, marketed by KPMG. The court ruled that the shelter failed to protect Scott Blum from $25.7 million in federal taxes for 1998, 1999 and 2002. It also upheld a $10.2 million penalty assessment. The TaxProf has more.
Cite: Blum, T.C. Memo. 2012-16
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A new tax blog right here in town
January 19, 2012
Des Moines' Davis Brown law firm has started a tax blog:
My name is Courtney A. Strutt Todd and I serve as a chair of the Tax Department at Davis Brown. I have a B.A. from the University of Northern Iowa and have passed the Certified Public Accountant’s examination. I also have a J.D. and an M.B.A. from Drake University. I practice primarily in public finance and have worked as bond counsel, underwriter’s counsel and issuer’s counsel in all kinds of tax-exempt financings. Learn more about my practice.In addition to posts from myself, this blog may include posts from William Boatwright, Bruce Campbell, Frank Carroll, Thomas Houser, Christopher James, Thomas Stanberry, Jason Stone, Margaret Van Houten, David VanSickel, and Jana Lutteneger
That's an excellent roster. I hope they post often. I'll just note that working alone, I'm 12 posts ahead of the 12 of them for this week, and about 7,600 ahead of them lifetime.
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Get your free iPad right... there.
January 19, 2012
Going Concern, my home away from here, is giving away an iPad a week during busy season. So go there.
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