Tax Policy

Where Does All the Money Go?

If you are like me, you know pretty much where your income comes from.  Where does it go?  That sometimes can be a little less transparent.

As I straightened up my office last night at the end of the tax busy season, I ran across a recent study published annually by The Committee for a Responsible Federal Budget that explores government spending.  It addresses the following question:  In 2016, how was $100 of taxes collected spent?

The answer:

Health – including Medicare, Medicaid and other health programs – $26.26
Social Security – $23.61
Defense and Military Benefits – $19.82
Interest – $6.25
13 other categories – $24.06

Where does the money come from?  The most recent year for which I could readily locate sources was the Federal fiscal year 2015.   A study by the Center on Budget and Policy Priorities said of taxes:

47% comes from individual income taxes
33% comes from payroll taxes
11% comes from corporate taxes
9% comes from all other taxes

The estate tax is part of “all other.”  In 2015, fewer than two of every 1,000 estates owed any estate tax.  The estate tax made up 0.6 percent of total federal receipts in 2015.

While not “revenue,” borrowings financed $438 billion of the $3.7 trillion Federal budget.

So, that’s where taxes go and that’s where taxes come from.

Happy April 18!

VKM

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Tax Court

Alternative Investments in IRAs – Part II: Be Creative

WARNING:  Do not try the following strategy unless, at least:

  • Your daddy built a big company that exports products
  • You have the nerve to battle the IRS for many years
  • You have creative and careful tax advisors (like me!)
  • You have the money to hire white-shoe lawyers, who probably charge $1,000 per hour, to represent you in Tax Court
  • Preferably, you live within or relocate to be within the geographic boundaries of the Sixth Circuit Court of Appeals (MI, OH, KY or TN)

If you qualify, then read on, oh lucky, wealthy and intrepid taxpayer.

In my last blog, I urged caution when considering the acquisition of alternative investments in IRAs.  I still so urge.  However, the Sixth Circuit’s recent decision in Summa Holdings does inspire one to consider being creative.

Let’s start with the headline, as stated by nationally renowned IRA expert Ed Slott:  “$7,000 in Roth IRA contributions that became $6 million in tax-free gains.”

Do I have your attention?

Next, we consider quick explanations of two important tax-beneficial provisions of the Internal Revenue Code:  Roth IRAs and DISCs (Domestic International Sales Corporations).

A taxpayer may contribute after-tax dollars to a Roth IRA.  The earnings and gains within the Roth are, in most cases, not taxed.  If a taxpayer owns the Roth for at least 5 years and is at least 59 ½ years of age, distributions to the owner of the IRA are not taxed.  Sweet.  Why not put all my after-tax earnings in a Roth?  The limits on contributions to Roth IRAs are low, if your income is below a certain threshold that permits you even to make a Roth IRA contribution.  If you are not at least 50 years of age, then in 2017 you can contribute no more than $5,500.  The limit was $3,500 in 2001, when the Benenson brothers started the series of actions that resulted in the Summa Holdings case.

DISCs were created by Congress to subsidize U.S. exports.  Using DISCs can reduce tax rates on income from exports.  An exporter avoids corporate income tax by paying the DISC “commissions” of up to 4% of gross receipts or 50% of net income from qualified exports.  The DISC pays no tax on its commission income (up to $10,000,000 in a year) and may hold on to the money indefinitely, though the DISC shareholders must pay annual interest on their shares of the deferred tax liability.

Money and other assets in a DISC may exit the DISC as dividends to shareholders.  Individuals treat the dividends as qualified dividends and pay taxes on the dividends at long-term capital gains tax rates.  If an IRA owns the DISC, it must pay tax on its dividends at the high unrelated business income tax rates.

What kind of business operations must the DISC conduct to earn these benefits for its shareholders? None, nothing, nada.

So what did the Benenson brothers do?

  1. In 2001, each contributed $3,500 to his Roth IRA.
  2. Through a series of transactions, their Roth IRAs formed companies that resulted in a DISC.
  3. The DISC contracted with Summa Holdings, owned primarily by a trust for their benefit, to receive export commissions.
  4. The DISC made distributions to the Roths, which paid UBIT and retained the after-tax distributions.
  5. By the end of 2008, the two Roths initially funded with $3,500 each had each accumulated over $3,000,000. Earnings on the non-DISC investments of the Roth will never be taxed to the Roth and distributions will never be taxed to the Roth owners, if distributions don’t occur before age 59 ½.

The IRS came a-calling.  The Revenuers claimed that the “substance-over-form” doctrine applied to negate the transactions and the benefits.  The IRS recast the transaction as dividends from Summa Holdings to its shareholders (the trust and the boys’ parents).  The Tax Court agreed.

The Sixth Circuit disagreed with the IRS and the Tax Court.  The Court stated that the IRS stretched substance-over-form past its limits, which, in the Court’s opinion, are when the taxpayer’s formal characterization of a transaction fails to capture the economic reality and would distort the meaning of the Code.

The Sixth Circuit said that the taxpayers’ transactions fit well within the boundaries of the statutes enacted by Congress.  If Congress wants to change the statute, it can; the IRS cannot change the statute.  The Sixth Circuit pointed out that the whole DISC idea is a form-over-substance arrangement authorized by Congress to promote exports.

So, the taxpayers got a great result.  The general issue is probably not resolved.  Two similar cases are being pursued in two other Federal Circuits. A statute addressing economic substance has been enacted since the taxable years under consideration.  The Sixth Circuit’s apparent narrowing of the ubiquitous substance-over-form doctrine may have much broader reverberations.

In any case, under the right circumstances, being creative, bold and an IRA owner can be quite lucrative.

Ending Note.  On an evening that you have nothing better to do, you might read the Summa Holdings opinion written by Judge Sutton.  One can surmise that any court opinion starting with references to the bat-crazy Roman Emperor Caligula is going to be entertaining.

VKM

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Personal Taxes

Unconventional Investments in IRAs – Part I: Be Careful

I remember when Individual Retirement Accounts (“IRAs”) were first established in 1974.  (Yep, I’m no spring chicken.)  At first, these tax-deferred IRAs were restricted to those workers who were not already covered by a qualified employment-based retirement plan.  In 1981, that restriction was removed.  IRAs became big business. Then Roth IRAs came along in 1997.  The Investment Company Institute reported that at yearend 2015, people had IRAs worth $7.3 trillion.

Many people assume that any income inside an IRA is nontaxable.  Quite a few IRA holders don’t think much about what kind of investment they place in their IRAs.

I could write a book about all the problems you can have, if you are not careful with your IRAs.  I won’t do that; I wrote a book in my last blog.  Let me touch on just a few of the key problems into which one can run.

Excepting general prohibitions on investing retirement funds in life insurance or collectibles, you can invest your IRA funds in a broad spectrum of assets.  Most of the investments in IRAs are publicly-traded stocks, marketable bonds, mutual funds and ETFs.  For the most part, income and gains from those kinds of investments are not taxed currently to either the IRA or the IRA holder.  However, beyond a threshold of $1,000 per year per IRA, IRAs may have to pay tax on income and gains from some kinds of “unconventional” investments, such as hedge funds, private equity funds, publicly traded partnerships, real estate, and closely-held businesses operated as partnerships or limited liability companies treated as partnerships for tax purposes.  This tax is levied on “unrelated business taxable income” (“UBTI”).  The tax is levied also on “unrelated debt-financed income” (“UDFI”) of the IRA.  The IRA must file a Form 990-T and pay tax at rates that quickly reach top individual rates.

Recently, The Wall Street Journal reported that Ms. Fanny Handel, a retiree from Queens, was shocked and dismayed to get a notice from the IRS in 2015 that her IRA owed $92,000 in taxes, penalties and interests.  Her IRA had invested in Kinder Morgan, an energy publicly traded partnership.  Upon a taxable merger, Kinder Morgan generated a lot of income and gain for its limited partners.  Ms. Fanny or her IRA paid the tax, but got a bit of break from the IRS on the penalties and interest.

So, one’s IRA can owe tax, if one has UBTI or UDFI in one’s IRA.  Your problems don’t stop there.   You can’t engage in prohibited transactions (a) with disqualified persons or (b) involving self-dealing.  Just a few examples of prohibited transactions in an IRA include: (1) having your IRA purchase for you a vacation home; (2) selling your own assets to the IRA; (3) taking a salary from an IRA-funded business; and (4) personally working on and/or paying for repairs on a rental property that your IRA owns.  If you do engage in a prohibited transaction, what happens?  The entire IRA loses its tax-favored status as an IRA, and the account is treated as distributing all of its assets to the IRA owner at the fair market value on the first day of the year in which the transaction occurred.  If it’s a traditional IRA, you may have a huge tax bill.  If you are less than 59 ½ years old when this happens, you’ll also owe a 10% early distribution penalty.

Let’s throw in one more complexity – valuing unconventional assets.  This is can be a particularly vexing problem when you reach 70 ½ years of age, the age at which you must begin taking required minimum distributions (“RMDs”) from traditional IRAs. Generally, you calculate the RMD by applying a percentage to the value of your IRA accounts at the beginning of the year of the RMD.  What if you underestimate the value of the unconventional assets (for example, stock in a private company) in your IRA accounts and, thus, don’t distribute enough to satisfy your RMD?  You pay an excise tax equal to 50% of the amount that the RMD exceeds what you paid.

Now, wait a minute, you might say.  Does not the IRA custodian have to keep up with all the particulars of your IRA investments, including valuing your unconventional assets?  Usually, no.  Does not the IRA custodian prepare the IRA Form 990-T for and pay the tax from your IRA? It depends; often not.  When your IRA invests in unconventional assets, you should assume that you are assuming a lot of responsibilities.

The Government Accountability Office released a report in December 2016 and suggested that the IRS give a lot more guidance to and, basically, post big warning signs for IRA holders who are invested in, or are thinking of investing in, unconventional assets.  Good idea.

So, placing unconventional assets in an IRA can cause problems.  On the other hand, placing unconventional assets can create significant wealth.  I’ll discuss a very creative example of this wealth-building in my next blog, Alternative Investments in IRAs – Part II:  Be Creative.

VKM

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Tax Court

Fleischer – Unsettling News for Independent Wealth Advisers

This is a very long blog because it is an important, complicated and current topic!

I am privileged to count among my clients some of the elite wealth advisers in the Dallas-Fort Worth area.  I team with them and a number of other prominent wealth advisers and financial planners to serve my high and ultra-high net worth clients.  Some of these professionals operate as independent registered investment advisers (“RIAs”).  They do not work as employees for a broker/dealer; they contract to be independent representatives of the broker/dealer.  Many of these independent RIAs may be affected drastically by a Tax Court Memorandum decision, Ryan M. Fleischer v. Comm., handed down in late December of 2016.

Understanding some important concepts underlying the Fleischer case

Three important background concepts undergird this looming challenge caused by Fleischer.

First, many independent RIAs, as well as many other service professionals, operate their businesses inside of S corporations.  Some sources have said that this structure is used by tens of thousands of RIAs.   S corporations don’t pay Federal income taxes on their earnings; their shareholders do, whether or not the income is distributed.  An employee (including, let’s say, an employee who owns 100% of an S corporation) pays FICA taxes.  The S corporation/employer also pays FICA taxes on those wages.  S corporation income, not in the form of employee compensation, recognized by an S corporation shareholder is not burdened by these payroll taxes.  Also, if the shareholder materially participates in the business, the shareholder does not pay the 3.8% net investment income tax on his/her share of the S corporation income.  The shareholder does not pay the 0.9% additional Medicare tax on his/her share of S corporation income.  So, if someone is a 100% shareholder of an S corporation, why take a salary at all?  (Hold that thought.)

Second, bad facts make bad law.  While underpaid, overworked, and often abused, a lot of IRS employees are smart people.  When the IRS does not like what it considers to be a “tax dodge,” its operatives will often lie in wait for a case with a good fact pattern (a bad fact pattern for the taxpayer).  When they find the sucker, they pounce.  They’ll win the case in court – usually pretty easily – and establish precedent that will be used to attack positions that are similar, but less dicey.

Third, pigs get fat and hogs get slaughtered.

Where Mr. Fleischer made a wrong turn and ran into the IRS

Mr. Fleischer is a financial adviser in Nebraska.  He is appropriately licensed to offer financial advice, to buy and sell securities, and to sell variable health and life insurance policies.  After working for some big companies, he struck out on his own.  On February 2, 2006, he personally entered into a representative agreement with Linsco/Private Ledger Financial Services (“LPL”), a securities broker/dealer.  On February 7, 2006, he incorporated Fleischer Wealth Plan (“FWP”).  Mr. Fleischer entered into an employment agreement with FWP on February 28, 2006.  On March 13, 2008, he personally entered into a broker contract with MassMutual Financial Group (“MassMutual”).

As I understand the pertinent rules affecting broker/dealers and their representatives, broker/dealers cannot pay an entity, unless that entity formally registers as its own licensed broker/dealer – a rather expensive and cumbersome process that requires additional ongoing expense and efforts.

So, the typical work and money flow is as follows.  The independent RIA works for an S corporation of which he/she may own all or part of the outstanding stock.  The independent RIA engages in a transaction with a client as an independent representative of the broker/dealer.  The broker/dealer collects the money from the client, including any fees associated therewith.  The broker/dealer gives the independent RIA his/her share of the fees.  The independent RIA remits those fees in their entirety to his/her employer, the S corporation, according to his/her contract with the S corporation.  With those fees, the S corporation then compensates the RIA employee, pays the expenses, and, hopefully, generates a profit for its shareholders.  Actually, the relationships among the parties can be more complicated and vary.  In the instant case, however, this is the work and money flow.

In two of three years at issue in the case, Mr. Fleischer reported on Schedule C in his personal tax return the income on 1099s issued to him by LPL and MassMutual and then deducted the entire amount of that income on Schedule C.  He indicated that he was collecting the money for FWP.  Then FWP reported all of the income.

For the years under consideration in the case, Mr. Fleischer paid himself a salary of about $35,000.  By the dint of his personal efforts, Mr. Fleischer did pretty well.  In one of the years, he had S corporation income of about $150,000 (after subtracting his $35,000 salary).  Is that a hog I hear in the pen?

What the IRS argued and what the Tax Court decided

The IRS could have argued simply, authoritatively, and probably successfully, that Mr. Fleischer should have paid himself a much higher and more reasonable salary than he did: the success of FWP was derived from the sweat of his employee brow.  The IRS could have gotten more payroll and other taxes referred to above.

But the IRS went further.  In a nutshell, the IRS said that because Mr. Fleischer personally executed the contracts with LPL and MassMutual and because the two companies did not have contracts with FWP, the income was his and he owed self-employment taxes on all of the fees (in lieu of his and the corporation’s FICA taxes on an appropriate amount of wages).  The additional Medicare tax would follow.  It appears that the IRS allowed the expenses in the S corporation in computing Mr. Fleischer’s income tax – whew!

The Tax Court agreed with the IRS.  It relied on the “Johnson test” (named after the 1982 Tax Court case that established the “test”) to determine that Mr. Fleischer, not FWP, controlled the earning of the income and, thus, was taxed on the income.  The Court pointed to several facts that it considered incriminatory.  It noted that the LPL contract was executed with Mr. Fleischer personally, that the contract was executed before FWP was incorporated, and that the contract did not mention FWP.  The MassMutual contract was executed after FWP was incorporated, but the contract was between MassMutual and Mr. Fleischer personally and the contract did not mention FWP.

So, based on this case, it appears that many, if not most, existing contracts between independent RIAs and broker/dealers may be open to attack by the IRS for employment taxes.  Some arrangements could result in strange results.  I am aware of situations where one independent RIA has the contract with the broker/dealer, on behalf of an S corporation of which he/she is a part owner.  There are many producers that work for the S corporation and whose fees are reported on the single 1099 going to the contracting RIA.  Will the one RIA be taxed on every RIA’s income?

 

What can independent RIAs do?

What is one to do?  Well, we’re still working on answers to that question.  There are several avenues of action that we are examining.  On a go-forward basis, could the answer be as simple as being sure that the previously-incorporated employer/S corporation is mentioned in the contract between the RIA and the broker/dealer?  Alternatively, must the S corporation become a broker/dealer so that it can contract with the broker/dealer to receive the fees directly? Must each RIA employee enter into a contract with the broker/dealer?

The RIA’s position should be enhanced and distinguishable from Fleischer if the RIA executes an agreement with his S corporation that says all of his income from each personal contract is assigned to the S corporation.

Definitely, the S corporation must pay reasonable and appropriate compensation to the RIA.

The Fleischer decision has some technical weaknesses.  While the memorandum decision is precedential, a memorandum decision is supposed to involve only cases where the law is well-established.  I think that is not the case here.  But the damage is done.

The Fleischer decision glosses over the fact that it is well established that nominees and agents don’t pay tax on income that they receive for someone else; that someone else pays the tax.

The case could be appealed and overturned.  The “Johnson test” is very rigid and not well-regarded in all jurisdictions.

If the case is not overturned, an RIA caught in the future in the crosshairs of the IRS might consider paying the disputed tax and seek a refund of those taxes in a jurisdiction other than the Tax Court.  The Tax Court would probably consider this Fleischer case precedential with respect to a wide array of fact patterns.  Other courts may not.

We will be working with other tax advisers and our clients on these and other possible solutions.

As I said, bad facts make bad law.  This is a perfect example.

VKM

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Tax Court

POOF! $64 Million Charitable Contribution Deduction Disappears

Alright, the facts in the case are a bit more complex than a “poof.”  But it got your attention for my at-least-annual reminder to obtain a contemporaneous written acknowledgment (“CWA”) from the donee for any contribution that is valued at $250 or more.

A CWA must state, among other things, (a) the amount of cash and description (but not the value) of any property other than cash contributed, and (b) whether the donee supplied the donor with any goods or services in consideration for the gift and, if so, must furnish a description and a good-faith estimate of the value of such goods or services.  The CWA must be in hand before you file the income tax return claiming the deduction and no later than the due date (including extensions) for filing such return.

A Tax Court decision issued in December, 2016 – 15 West 17th Street LLC, et al. (“LLC”) v. Commissioner -illustrates the CWA requirement vividly.

In September 2005, LLC purchased for $10 million a property in Manhattan (New York, not Kansas).  LLC planned to demolish a building built in 1903-04.  However, LLC was outflanked by a local preservation society, which got New York City to declare the building a “certified historic structure.”  No demolition could occur.

In December 20, 2007, LLC executed in favor of the Trust for Architectural Easements (“the Trust”) a perpetual historic preservation deed of easement.   On May 14, 2008, the Trust sent the LLC a letter acknowledging receipt of the easement.  The letter did not state whether the Trust had provided any goods or services to LLC, or whether the Trust had otherwise given LLC anything of value, in exchange for the easement.

LLC secured an appraisal concluding that, as of February 8, 2008 the property had a fair market value of $69,230,000 before placement of the easement and had a value after the easement of $4,740,000, a reduction of $64,490,000.  Wow! That property appreciated almost 600% in 2 ½ years!  I don’t think that President Donald J. Trump could claim that kind of real estate investing acumen.  (Okay, he probably would.)  LLC claimed a $64,490,000 charitable contribution on its 2007 tax return.

The IRS does not like deductions for charitable contributions of easements.  This case looks especially egregious.  I am sure that the Revenuers were girded for battle about the valuation.  But they won without firing a shot in that battle.

Most of the opinion of the Tax Court addressed a rather obscure and convoluted argument by LLC that it did not need a CWA, due to a special provision in the statute involving some rule-making authority delegated by Congress to the IRS, but never exercised by the IRS during a period exceeding twenty year.  The Tax Court did not buy LLC’s argument.

Then, the case addressed the provisions in the statute that define a CWA. The IRS simply pointed out that the acknowledgement was not a CWA, because it omitted required language about “no goods and services.”  Fight over.  LLC loses.

Reminder issued.

VKM

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IRS

National Taxpayer Advocate’s 2016 Annual Report to Congress – Some Key Takeaways

Every year, by law, the National Taxpayer Advocate, “an independent voice for the taxpayer within the IRS,” issues a report to Congress.  For 15 years, the National Taxpayer Advocate has been Nina E. Olson.  She knows her stuff.

Issued last week, the 2016 report is about 965 pages, give or take a page or two.  The executive summary alone is 95 pages long.  The IRS ignores the National Taxpayer Advocate at its peril.  The new Congress and the new President would be wise to heed her advice, too.

The 2016 report includes a lot of good ideas, observations, complaints, and suggestions.  I may come back to some additional items in future blogs.  In this blog I focus on three “foundational themes” that she identifies as core to improving the IRS and its operations.

  1. “Simplify the Internal Revenue Code Now.” Of course, the IRS does not write the tax laws; Congress does.  Nevertheless, the IRS’ job revolves around this massive, complicated and confusing document.  Olson points out that the Internal Revenue Code consists of four million words.  She estimates that taxpayers spend six billion hours in order to meet filing requirements. (Based on the way the number is calculated, that may include some or all of tax preparers’ time.  She admits that it’s a rough estimate.)
  1. “The IRS needs to talk to the taxpayer. IRS must present a human side to the agency to foster and keep voluntary compliance.”  While self-service assistance has its beneficial attributes, she points out that behavioral science studies confirm the human voice is quite soothing to someone who is stressed and anxious.  Indeed, she cites a number of behavioral science lessons that may be applicable to taxpayer compliance.
  1. There is a “need for establishing minimum standards of and testing for competency of Federal tax return preparers.” She is not worried about CPAs, attorneys, and enrolled agents.  However, there are a lot of tax return shops that don’t have any real proficiency standards and sometimes have no scruples.  Consider the guy standing on the side of the road at the strip shopping center dressed as the Statue of Liberty; when somebody parks and walks into his storefront, he takes off his costume and prepares a tax return.  It might be good to check his credentials.

VKM

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IRS

Happy New Year 2017! A Little Gift

 

I was cleaning out my “blog topic” file this morning and readying for the new year.  I found a note that I should send this link to my friends and readers.

The IRS website is full of helpful information, if you can navigate to it.  Take a look at “A-Z Index for Business” at  www.irs.gov/businesses/small-businesses-self-employed/a-z-index-for-business. There are probably more than 500 topics that are just a click away.

If you have time, you might send the IRS a suggestion for topics that would fall under “X”, “Y”, or “Z”, which are without topics at this time.

Happy New Year!

VKM

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