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5/13/2013
In Short:
The IRS, supported by the tax preparer community, has been working for some years to permit the “truncation” (shortening) of ID numbers used on tax information returns in order to combat identity theft tax fraud. It published proposed regulations in January, expanding a pilot program from 2009, and has also sought legislation to permit truncation of Social Security numbers on Forms W-2. A bill has been introduced to do just that.
The Full Story:
As a part of efforts to fight rampant ID theft, IRS has worked for several years to put in place a program that would allow companies filing information returns to “truncate” the social security numbers of individuals on the payee statements (generally, Forms 1099). “Truncation” refers to the practice of including only the last four digits of a longer number, and is routinely used by credit card companies. For tax information returns, IRS published proposed regulations in January of 2013 under which a pilot program it has had in place since 2009 would be made permanent. For the proposed regulations, go to http://www.irs.gov/irb/2013-07_IRB/ar10.html. Under the program, filers of most information returns are permitted (but not required) to truncate the taxpayer’s social security number on the copy of the statement sent to the payee. For example, the truncation program would apply to real estate reporting forms (Form 1099-S) and to cancellation of debt reporting (Form 1099-C). The truncated number would be referred to as a “TTIN.” The regulations may be utilized by payors prior to finalization, but will be fully effective on the date they are finally adopted.
Most objections to truncation have focused on implementation details, rather than on the concept itself, which does demonstrably result in fewer thefts of taxpayer ID numbers, and less refund tax fraud. For example, commentators in the pilot program wanted the program expanded to include Employer Identification Numbers (EIN’s) as well as Social Security numbers. However, IRS concluded that the identity theft risk is concentrated in individual ID numbers, not employer ID’s, and decided to limit the truncation program to individual identifying numbers.
A basic problem, however, is that the IRS would need statutory authority to expand the program to Forms W-2, the basic wage statement given to all employees. The Social Security number is required on that form, and IRS has no authority to allow a shorter version. A bill has been introduced in the House of Representatives to allow truncation in wage reporting, but future action is uncertain. H.R. 1560 (Garcia, D-FL). The AICPA, which has long supported truncation, has recommended such legislation to Congress, and reiterated that position in a release on May 1, 2013.
As has been reported previously by Worldwide ERC®, tax identity theft continues to be a major problem for taxpayers, although IRS has made strides in combatting it. Testifying April 16, 2013 before the Senate Finance Committee, IRS said it had managed to stop 5 million returns worth about $20 billion in fraudulent refunds in fiscal 2012, up from 3 million and $14 billion in fiscal 2011. Already during this filing season, IRS has stopped 350,000 returns and $2.5 billion in refunds. IRS is increasing its screening filters at multiple stages in the return processing cycle. It has also expanded its identity protection personal identification number (IP PIN) program, which issues a different ID number to victims of identity theft, covering more than 770,000 taxpayers during the 2013 filing season, up from 250,000 in 2012.
Posted by Peter K. Scott
5/6/2013
In Short:The IRS on January 15, 2013, announced the availability of a new, optional, safe harbor for the home office deduction. See IR-2013-5, http://www.irs.gov/uac/Newsroom/Simplified-Option-for-Claiming-Home-Office-Deduction-Starting-This-Year, and Rev. Proc. 2013-13, http://www.irs.gov/irb/2013-06_IRB/ar09.html. The safe harbor will be available for 2013 returns due in 2014. The safe harbor provides a simplified method for calculating the deduction for business use of the taxpayer’s home for those eligible for the deduction. Rather than determining all expenses related to the home office, the taxpayer is allowed to deduct $5 per square foot of office space up to a maximum of 300 square feet, or $1,500. However, the interaction of the home office deduction with other facets of the taxpayer’s return will generally make it advisable to calculate the deduction both ways to see which is most beneficial.
The Full Story:
Today’s tax quote: “If you are truly serious about preparing your child for the future, don’t teach him to subtract, teach him to deduct.” Fran Lebowitz
A good example of the value of learning to deduct is the deduction for a home office, which is claimed by large numbers of workers, both employees and independent contractors. However, claiming it requires a quite complicated allocation of expenses for the home, and completion of a form (Form 8829) with no less than 43 lines. The new safe harbor method requires only that the taxpayer determine the square footage of the office space, and multiply by $5.
However, the safe harbor is not a panacea, nor will it eliminate disputes as to whether the space qualifies as a home office in the first place. IRS was careful to explain that all of the rules as to whether a home office deduction is allowable continue to apply. Some of those rules are themselves rather difficult to satisfy, particularly for employees.
To review the rules briefly, deductions are allowed for expenses relating only to that portion of the home used exclusively and regularly in one of the following ways: as the principal place of business for a trade or business; as a place of business used to meet with patients, clients, or customers in the normal course of the taxpayer’s trade or business; or in connection with the taxpayer’s trade or business, if the portion so used is a separate structure not attached to the house. The effect of the second and third conditions is that the business portion does not have to be the principal place of business if it meets either requirement. However, most claimed business use would have to qualify under the first condition, that is, as the principal place of business.
Being an employee is a "trade or business." However, in the case of an employee, the business use of the home must be for the convenience of the employer. This means the business use must further some legitimate business purpose of the employer beyond being appropriate and helpful. If the employer provides access to suitable space on the employer’s premises for the conduct of the employee’s duties, but the employee opts to do the work at home as a matter of personal preference, the employee’s use of the home office is not "for the convenience of the employer." Nevertheless, many employee homes will qualify because the location is too remote from the employer’s business location to permit the employee to commute, and all or most of the employee’s activities are conducted in the home so that it is the "principal place of business." Technical personnel, counselors, and others who do most of their work by telephone or computer are examples of employees who might meet this test.
For both employees and the self-employed, however, the "exclusive use" requirement also may be a major hurdle. As mentioned above, deductions are allowable only for the portion of the home used exclusively and regularly for business. While the regular use requirement is seldom an issue, the exclusive use test may be problematic. "Exclusive use" means only for business. If a den is used by the employee as an office, but the children watch television there or the employee uses it to pay bills and manage personal investments, no deduction is allowable. Moreover, this requirement is virtually impossible to meet unless the portion used for business is physically separated, that is, a separate room.
Assuming the exclusive use and other requirements are met, the business portion of the house is determined on the basis of a comparison of square feet devoted to business as opposed to personal use, or a comparison of the number of rooms devoted to business as opposed to personal use, or any other reasonable method. For example, if the office is 200 square feet and the house as a whole is 2,000 square feet, then the business use portion is considered to be 10 percent. However, if the house has only eight rooms, then using a "room count" yields a business percentage of 12.5 percent. Expenses for the home as a whole are then allocated on the basis of that percentage, except for expenses directly related to the home office, for example, painting that room.
Deductible expenses include the business portion of depreciation, rent, utilities, maintenance, insurance, and repairs. Mortgage interest and real property taxes, however, are fully deductible regardless of business use. As with all deductions, the amounts claimed for business use of the home must be fully substantiated.
Assuming the taxpayer qualifies for the deduction, all of the calculation complications described above can be avoided by using the safe harbor. Moreover, there are some hidden advantages of using the safe harbor that may make it more valuable than it appears.
First, as noted, mortgage interest and property taxes are fully deductible as itemized deductions without regard to use of part of the home as a home office. When home office expenses are calculated, a portion of those expenses is allocated to the home office, which reduces itemized deductions. In contrast, if the safe harbor method is used, 100% of those expenses remain deductible on Schedule A. (Note that for taxpayers in a high enough income bracket that itemized deductions “phase out,” this is not as big an advantage. Further, if total itemized deductions do not exceed the allowable standard deduction, then it may be more advantageous to calculate the home office deduction in detail).
Second, the home office deduction requires the taxpayer to calculate and claim depreciation. While this increases the deduction, it also decreases basis in the home, and the amounts claimed as depreciation do not qualify for exclusion under the capital gain home sale exclusion when the home is eventually sold. In contrast, when the safe harbor is used, no depreciation is claimed, and all eventual home sale gain (up to the $250,000/$500,000 limits) remains excludable.
There are also other considerations that may point toward doing the detailed calculations. For example, if there are in fact substantial “direct” expenses of the home office (such as the painting expense above), these do not have to be allocated and are fully deductible in figuring the home office expense. Further, the larger the home office, either in actual square feet or as a percentage of the home, the greater the advantage of claiming actual expenses, since more of the overall expenses will be allocated to the office. And at least for independent contractors, the fact that home office expenses are deducted in determining Adjusted Gross Income may help in reducing AGI below thresholds at which various other benefits, such as the child care credit, begin to phase out.
All of these contrasting considerations will in many cases suggest that the taxpayer (or more likely, the return preparer) will be well-advised to perform the detailed calculation to determine whether the safe harbor or the actual calculation of expenses is more beneficial. This is particularly true as income goes up.
However, many taxpayers, particularly employees, will find it beneficial to simplify their lives and claim the available safe harbor deduction. Doing so will not only make return filing easier, but will reduce the risk of an audit.
Posted by Peter K. Scott
5/3/2013
In Short:
A new report from the Government Accounting Office (GAO) says that IRS efforts to catch taxpayers who hide money overseas are resulting in substantial recouped taxes. Four IRS voluntary disclosure programs over recent years have resulted in some 39,000 taxpayers coming forward, and more than $5.5 billion in additional taxes and penalties. In addition, the number of people reporting foreign accounts to the IRS nearly doubled from 2007 to 2010, to 516,000. However, GAO’s analysis of data from the 2009 program suggests that many additional taxpayers are not entering the amnesty programs, but are making so-called “quiet disclosures” by filing amended returns or by beginning to report foreign account proceeds on newly filed returns, and avoiding the associated penalties and interest that would result from taking advantage of the amnesty program.
The Full Story:
Today’s tax quote: “Tax day is the day that ordinary Americans send their money to Washington, DC, and wealthy Americans send their money to the Cayman Islands.” Jimmy Kimmel
In recent years, however, this strategy has become fraught with risk of punishment, as the IRS has cracked down on U.S. taxpayers who avoid U.S. taxes by hiding money overseas. Required reporting of foreign accounts has been emphasized with increased enforcement, new reporting regimes (e.g., new Form 8938 which is required to be filed with the U.S. tax return) have been imposed, a new law (FATCA) requires foreign financial institutions to report accounts maintained by U.S. taxpayers, the IRS has succeeded in extracting information from Swiss bank UBS and others identifying U.S. accountholders, and a number of miscreants have been successfully prosecuted under the criminal tax laws.
Along with these actions, IRS has also encouraged taxpayers with these accounts who have not reported either the accounts or the associated income in the past to come forward voluntarily and disclose them. Taxpayers who do so will avoid criminal prosecution, and will limit the amount of civil penalties that might otherwise be due. There have been four of these programs, beginning in 2003, the latest of which is still available. These programs accelerated beginning in 2009, when the large Swiss bank UBS AG agreed to pay a $780 million fine and turned over details of thousands of accounts to U.S. investigators.
In an April 26, 2013, report, GAO examined these programs and praised the IRS for its diligence and success in seeking and collecting back taxes in these programs. For the report, go to http://www.gao.gov/products/GAO-13-318. However, GAO also suggested that some taxpayers are avoiding the voluntary disclosure program by quietly filing amended returns, or by beginning to report the accounts on new returns without amending prior returns, and that IRS is missing out on substantial additional back taxes by not doing more to identify such taxpayers and pursue them.
According to the GAO data, some 39,000 taxpayers who participated in the voluntary disclosure programs paid more than $5.5 billion in back taxes and penalties. The study focused on data from the 2009 disclosure program, finding that of more than 10,000 cases closed so far under that program, the median unreported account balance was $570,000. Some 6% of those accounts suffered penalties greater than $1 million.
In addition, reports of offshore accounts have risen significantly. Reports of foreign bank accounts on Schedule B of the Form 1040 tax return nearly doubled, to 516,000, between 2007 and 2010, which was even before the new law requiring a separate Form 8938 to be filed with the return, and the number of Reports of Foreign Bank Account (the FBAR) filed with Treasury showed a similar increase. While GAO acknowledged that some of this increase may simply reflect increased awareness of the reporting requirement by taxpayers who were paying their taxes but failing to report the accounts, GAO also cited data suggesting that a large share of the increase reflects taxpayers engaging in “quite disclosure,” as noted above.
The GAO report emphasizes that there are many legitimate reasons for maintaining financial accounts overseas; however, taxpayers who do so must adhere to the requirements to report those accounts, and to pay taxes due.
As Worldwide ERC® has pointed out on numerous occasions during recent years, increased IRS enforcement of reporting and tax requirements for Americans maintaining financial accounts overseas may put expat employees assigned to jobs in foreign countries at risk unless they are regularly made aware of reporting and tax requirements, and encouraged to adhere to them.
Posted by Peter K. Scott
5/2/2013In a blog post on April 29, 2013, Worldwide ERC® reported on an important hearing held by the House Ways and Means Committee to examine federal tax provisions affecting residential real estate, including the deduction for home mortgage interest.
The hearing was attended by Sam Wardle, who works with Worldwide ERC®’s Government Affairs Advisor Tristan North at the Association Management Group. Following up on our earlier post, Sam’s more detailed report of the hearing appears below. Worldwide ERC® is grateful to Sam for providing this report.
The report:
On Thursday April 25, 2013 the United States House Committee on Ways and Means held a hearing to consider how certain Federal tax provisions affect the housing sector, homeownership, and the relative level of investment between residential real estate and other parts of the economy.
This hearing is only one part of Chairman Dave Camp’s call for an extensive review of the tax code as he seeks to reduce the top individual and corporate tax rates to 25 percent. The hearing consisted of two witness panels and a question and answer period after testimony. The first was composed of witnesses with tax and regulatory expertise, and the second of private sector stakeholders in the housing market.
Panel 1 Witness Summary
Mark Fleming
Chief Economist, Core Logic
- Provisions such as the First Time Home Buyers tax credit and Capital Gains exclusion for home sales only caused a change in market participant behavior over the short term, but did not materially change the structure of the industry
Eric Toder
Co-Director, Urban-Brookings Tax Policy Center
- Achieving a revenue-neutral tax reform that reduces marginal tax rates significantly would be nearly impossible to achieve without cutting back the Mortgage Interest Deduction (MID)
- The MID does little to encourage homeownership, but instead encourages upper-middle/upper income households to buy more home with borrowed money. A larger incentive could be found in the MID’s conversion to a tax credit
Jane Gravelle
Senior Specialist in Economic Policy, Congressional Research Service
- MID does have a large effect on those who finance with mortgage v. those who finance from assets
- Keeping the capital gains exclusions in the code is important because Capital Gains taxes on home sales discourage labor mobility by increasing the cost on relocating
- If MID is changed or eliminated careful consideration of transition rules is needed
Mark Calabria
Director of Financial Regulation Studies, Cato Institute
- Effectiveness of the MID is different in each housing market but overall the MID does not seem to have any effect on homeownership rates
- The removal of MID would only drop home prices in markets where that is needed anyway
- Recommend that the committee eliminate MID and Local property tax deductions with the goal of lowering overall rates. MID should be removed at a time that interest rates are lowest
- Any changes should be phased in slowly over a period of 7 years
Philip Swagel
Professor of International Economic Policy, University of Maryland
- Any changes to the tax treatment of housing must be part of a tax reform that seeks to boost growth, simplify the code, and maintain progressivity
- Housing subsidies distort economics and hurt the economy
- Reforms to housing provisions in the tax code could improve efficiency and equity
- Even if MID and other housing subsidies are removed the housing recovery will continue
Panel 2 Witness Summary
Gary Thomas
President, National Association of Realtors
- A major goal of tax reform should be simplification. However, it should not come at the cost of worthwhile provisions
- Urges the committee to maintain MID, real property taxes paid deduction, and the Capital Gains exclusion
- MID benefits primarily young middle class families with children
- Elimination of the MID would result in an average tax increase of $2500 dollars
- Does not recommend the elimination of the second home provision of MID. Second home buyers are not the super-rich. The median income of second home buyers in 2012 was $92,000
- Does not recommend cutting the amount of eligible home debt to $500,000 dollars because in many areas of the country $500,000 is only a starter home
- Does not recommend changing MID to a tax credit
Robert Dietz
Assistant Vice President for Tax and Policy Issues, Nation Association of Home Builders
- Strongly supports the Low-Income Housing Tax Credit (LIHTC). It is the most effective tool for creating affordable rental housing
- Completed contract rules are essential to builders. Without this fix many builders would need to pay taxes on homes before they are completed.
- MID is extremely important. In 2009 over 70% of homeowners with a mortgage claimed the deduction. It is also fair because it is one of the few deductions that accounts for cost of living. The elimination of MID will make it harder to purchase a home.
- MID for second homes is also important. MID for second homes can be greatly beneficial for someone who moves during the middle of the tax year, or a homeowner building a second home
Thomas Moran
Chairman, Moran & Company
- The apartment community sector is a vastly important component of the housing market. In approaching tax reform we must be careful to take into consideration provisions that could harm this market
- As the committee approaches tax reform we ask that you consider these 6 priorities:
1. Should not harm pass-through entities
2. Maintain current tax treatment of carried interest
3. Retain the full deductibility of business interest
4. Protect the low-income tax credit and make permanent the flat 9% credit
5. Preserve the current estate tax
6. Provide incentives for improving energy efficiency in commercial and large multifamily properties
Robert Moss
Senior Vice President, Boston Capital
- The LIHTC allows developers to raise equity capital from investors who want to earn a return from the tax benefits
- About 60% of LIHTC residents have income at or below 40% of area median income and the LIHTC is helping to solve the affordable housing crisis
- The LIHTC has made development of more than 2.5 million affordable rental homes since 1986
- The LIHTC programs also account for about 95,000 jobs annually
- Without the LIHTC there would be virtually no affordable housing development
Committee Decision Forecast
While testimony in this hearing covered a wide variety of opinions and suggestions, there does not seem to be any solid consensus within the Ways and Means Committee about what direction to take in simplifying housing policy within the tax code. Yet, Ways and Means members on both sides of the aisle seemed skeptical about making major changes to Mortgage Interest Deduction policy.
In his opening statement, Chairman Camp indicated that real estate tax “was an area that needs careful, thoughtful review” and that the Mortgage Interest Deduction (MID) had helped many potential homeowners reach their goal. Camp later noted that offsets needed to lower overall rates didn’t solely need to come from eliminating tax breaks like the MID. Meanwhile, Ranking Member Levin strongly suggested that the elimination of the MID would qualify as a dangerous failure to understand the difference between a tax loophole and good tax policy.
This balanced skepticism of the elimination of MID and other policies that are directed toward incentivizing homeownership, continued all the way down the dais. Representatives Tim Griffin, (AR-2); Richard Neal, (MA-1); Linda Sanchez, (CA-38); and many others indicated that getting people into homeownership was a desirable goal, and that housing policy in the tax code has a core value of helping young middle-class, working Americans.
Although these statements do not indicate what the committee will consider when making changes to housing policy in the tax code, it seems clear that they see a great deal of value in preserving incentives to keep the housing market growing and more affordable.
Posted by Peter K. Scott
4/29/2013
In Short:
The House Ways and Means Committee, which originates tax legislation for Congress, held a hearing Thursday, April 25, 2013, focusing on residential real estate provisions. Part of a continuing series of hearings devoted to possible tax reform, much of the testimony was devoted to discussion of the deduction for home mortgage interest. Although some witnesses criticized the deduction as poor tax and housing policy, others vigorously defended it and even the critics conceded that any elimination or reduction of the benefit probably would need to be carefully phased in over some significant period of time.
The Full Story:
Today’s tax quote: “A tax loophole is something that benefits the other guy. If benefits you, it is tax reform.” Russell B. Long (former Ways & Means Chairman).
In the case of the mortgage interest deduction, even critics concede that it promotes reasonable social goals, including home ownership, and is not a “loophole.” However, there is considerable disagreement as to whether the deduction is well-crafted for the task. For example, some witnesses at Thursday’s hearing, such as the Urban Brookings Tax Policy Center, argued that the deduction does not have a significant impact on home ownership rates, but instead mainly drives consumers to purchase larger homes and primarily benefits higher-income taxpayers.
Encouragingly, however, both the Chairman of the Committee and its ranking minority member seemed supportive of the deduction. Chairman Dave Camp (R-Mich) said “let me emphasize that not every credit or deduction is a loophole. The largest investment most people have is their home, and policies like the home mortgage interest deduction have played a big role in home ownership.”
However, the deduction is one of the largest so-called “tax expenditures,” that is, tax breaks that cost the federal government significant lost revenue. IRS data shows that taxpayers claim nearly $400 billion of mortgage interest deductions per year. Consequently, any budget strategy that looks to raise revenue by eliminating tax breaks necessarily must look hard at the deduction.
But eliminating, or significantly curtailing, the deduction would potentially leave middle and higher-income taxpayers paying more taxes under a comprehensive tax reform plan even if rates were lowered, according to testimony at Thursday’s hearing from the Congressional Research Service. And the National Association of Realtors testified that eliminating the deduction at this point in a still-fragile housing recovery would throw the economy back into recession.
Some witnesses opined that if the deduction is eliminated or significantly curtailed, the current deduction should be phased out over time. The Cato Institute put the possible phaseout period at no more than seven years, which is the median duration of a mortgage, while others recommended a longer period.
The hearing also considered a range of other residential real estate tax breaks, including the home sale capital gains exclusion, the deduction for property taxes, private mortgage insurance, the exclusion for forgiveness of home mortgage debt, and a number of provisions related to rental real estate. For those interested in a discussion of all such provisions, the Congressional Joint Tax Committee prepared a background document for the hearing that is available at https://www.jct.gov/publications.html?func=startdown&id=4516.
Prospects for fundamental tax reform this year remain remote, but both the House and Senate have pledged to work toward it as a part of a deficit reduction strategy, and it could occur as part of debt limit discussions later this year, or as part of renewed budget discussions triggered by the “sequester” that is causing disruption of some government services. Worldwide ERC will remain vigilant, and expects to provide its support of residential real estate tax benefits.
Posted by Peter K. Scott
4/18/2013
In Short:
Depending upon the Supreme Court’s decision in the Windsor case, which challenges the constitutionality of the federal Defense of Marriage Act (DOMA), same-sex couples may be entitled to income tax refunds. Moreover, both they and their employers may be entitled to refunds of Social Security taxes paid on benefits provided to same-sex spouses of employees. Such benefits as health and accident insurance are not taxable to spouses of married employees. Companies should consider filing protective claims for Social Security taxes for all open years, and informing employees either that they have done so, or will not do so.
The Full Story:
Today’s tax quote: “Nothing makes a man and wife feel closer, these days, than a joint tax return.” Gil Stern
However, under current law, this feeling of closeness is not available to married same sex couples.
DOMA was enacted in 1996, and provides, among other things, that for purposes of interpreting federal laws the term “spouse” means only a “person of the opposite sex who is a husband or wife” within a “legal union between one man and one woman.” Federal laws include the Internal Revenue Code. As a result, same-sex married couples are not eligible for a number of federal tax benefits. For example, they are not allowed to file joint tax returns, but must file as singles.
DOMA has been found unconstitutional in a number of lower court cases, and is now under consideration by the Supreme Court, with a decision expected sometime this year.
Under the tax code, some fringe benefits provided to an employee’s spouse are not taxable. These include health and accident insurance, for example. With DOMA in effect, employers have been required to withhold the employee share of FICA and Medicare on such benefits, and also to pay the employer share. If the Supreme Court finds DOMA to be unconstitutional, it is likely that both employers and employees would be entitled to refunds of those taxes for open tax years.
In addition, some same sex couples may benefit from filing joint tax returns. This is not universally true (for example, married couples who each make similar incomes may pay more taxes than if each could file as a single-the so-called “marriage penalty”), but each same sex married couple would be well-advised to do a calculation of their taxes both ways to determine if there is an advantage to a joint return.
Generally, the statute of limitations for refund claims expires three years after the filing date for the year. Consequently, for 2009 taxes, the last date for refund claims was April 15, 2013. However, if returns were late, or filed later with an extension, there is still time to file protective claims for 2009. And the statute of limitations for the 2010 through 2012 years will remain open for some time.
Although employers are not obligated to claim refunds of the employee share of Social Security taxes, IRS procedures encourage them to do so, particularly if they are claiming the employer share as well. Those procedures require that the employer notify employees, and seek their agreement for the employer to proceed. Worldwide ERC members who offer benefits to same-sex couples should take steps to determine whether Social Security tax refunds should be sought, and to notify employees whether they intend to do so. Employees may seek their own Social Security tax refunds, but not if the refunds are being sought by the employer.
Assuming that an employer or employee decides to file protective claims for refund, the procedures for doing so are spelled out in IRS Publication 556, “Examination of Returns, Appeal Rights, and Claims for Refund.” As noted in the publication, a protective claim must be in writing and signed, include taxpayer identification information, describe what contingencies may affect the claim (in this case, the scope and effect of the pending Supreme Court decision), inform IRS of the nature of claim, and identify the years for which the refund is sought. However, it is not necessary that the claim state the exact amount sought, since that amount may depend upon the scope and extent of the eventual Supreme Court decision.
Posted by Peter K. Scott 3/24/2013
In Short:
A recent decision by the U.S. Second Circuit Court of Appeals serves as a reminder that companies must maintain controls and oversight over their payroll functions even if outside assistance is being relied on for filing and payment of required taxes. In City Wide Transit, Inc. v. Commissioner, http://www.gpo.gov/fdsys/pkg/USCOURTS-ca2-12-01040/pdf/USCOURTS-ca2-12-01040-0.pdf, a company engaged an accountant to contest past payroll tax liabilities and file current returns. The accountant then engaged in a scheme to embezzle the company’s payroll funds, filing false returns as a part of the fraud. The IRS discovered the scheme after the statute of limitations on assessment of tax against the company had expired, but the Second Circuit, reversing the Tax Court, held that the accountant’s fraud, even though it was against the company as well as the IRS and even though the company had no knowledge of it, resulted in an open-ended limitations period.
The Full Story:
Today’s Tax Quote: “We try to cooperate fully with the IRS, because, as citizens, we feel a strong patriotic duty not to go to jail.” Dave Barry
In the City Wide Transit case, the company’s accountant did not go to jail, but only because he had died before his fraud was discovered. Nevertheless, he left behind a mess for the company that eventually resulted in IRS successfully assessing very large delinquent payroll taxes and penalties even though the normal three-year statute of limitations had expired.
City Wide owed back taxes for 1997 and 1998, and in 1999 hired the accountant to work out the problem with the IRS, and to file current returns. The employer had its payroll service prepare returns for current periods, and gave the returns and checks for tax payments to the accountant. The accountant, however, altered the payee on the checks so that they were payable to his own company and deposited them in his company account. He then prepared new, fraudulent returns showing less tax owed, and filed the fraudulent returns along with the lower tax payment. He also prepared and filed amended returns for the earlier periods, eliminating the underpayments.
The IRS did not catch on to the fraud until 2002, and it proceeded to prosecute the accountant. He eventually pleaded guilty, but died before he could be sentenced. In the meantime, in May of 2004 the IRS began an examination of the employer’s returns to recover the taxes fraudulently appropriated by the accountant, and eventually made assessments. City Wide challenged the assessments as time barred.
The case reached the U.S. Tax Court, which held that the fraud was not attributable to the employer because it was engaged in by the accountant not to defraud the IRS, but to cover up his own embezzlement. But the Second Circuit Court of Appeals reversed, holding that regardless of the accountant’s motivation for the fraud, the fraudulent returns were intended to evade and defeat the employer’s tax liabilities, and therefore resulted in an open statute of limitations.
Despite the unusual circumstances, the case illustrates the well-established principal that an employer cannot avoid its own responsibility to file returns and pay taxes by relying on a third party to take care of it. Worldwide ERC® member companies must insure that they maintain controls on their payroll tax functions, and insure that returns are in fact filed, and payments made. Failure to do so can lead to assessments long after the assessment period otherwise would have closed.
Posted by Peter K. Scott
3/13/2013In Short:
The lack of cases under the UK Bribery Act brought against companies and recent revisions to guidance by the UK Serious Fraud Office won’t help companies looking for clarification of the Act.
The Full Story:
It has now been two years since the UK Ministry of Justice released its interpretation of the requirements of the UK Bribery Act. It has been a few months less than that time since the Act took effect on July 1, 2011. So far, there has been minimal enforcement action taken under the Act.
According to the firm of Ernst & Young, only eight cases under the Bribery Act have been completed since the law took effect. Of those cases, none were against companies. The primary reason for the lack of resolved cases is that it usually takes several years after such a law is enacted for the cases to be developed and prosecuted. Another primary reason is that the UK Serious Fraud Office, which enforces the law, must determine on the evidence there is a realistic prospect of conviction, and will then prosecute if it is in the public interest to do so. Ironically, the lack of cases under the law makes it difficult for companies to get clarification on aspects of the law leaving portions of it still open to interpretation.
Clarification under the UK Bribery Act is not likely to get much better. On October 9, 2012, the Serious Fraud Office issued revised policies on facility payments, business expenditure and self-reporting. The new policies did not provide much in the way of clarification and instead reasserted current policy. In the case of facility payments, the new policy reinforced that all payments regardless of size or frequency to speed the duty on goods are illegal. On the other hand, the Office did acknowledge they would be wrong to state that there is no flexibility in regard to facility payments.
With business expenditures, the policy reaffirmed that “bona fide hospitality or promotional or other legitimate business expenditure is recognized as an established and important part of doing business.” Although the Serious Fraud Office further states that these expenditures can be disguised bribes, but will only prosecute in those situations where the case is complex or comprehensive and under their purview. Finally, the Office restates its purpose as an investigatory and prosecutorial entity but still encourages self-reporting. In emphasizing its purpose as a prosecutor, it will be less likely to be a resource for companies looking for clarification on the Act prior to self-reporting.
The Bribery Act 2010 received Royal Assent on April 8, 2010. The Act had been in development for many years and is now considered one of the strictest laws in the world on bribery. In particular, the Act created a new offense for companies that are based or do business in the UK for the failure to prevent bribery by employees in situations which benefit the company. This includes incentives to individuals in the private sector and not just government employees and covers travel and entertainment expenses. It is important that companies doing business in the UK therefore have a risk management and compliance policy in place to prevent violations of the Act and err on the side of caution.
For more information on the UK Bribery Act and implications for the workforce mobility industry, please go to the Legal Index for the Worldwide ERC® MasterSource at: http://www.worldwideerc.org/gov-relations/us-tax-legal-resources/Pages/LegalIndex.aspx.
Posted by Tristan North 3/11/2013
In Short:
Under the Patient Protection and Affordable Care Act of 2010, there is a new 3.8% tax on net investment income of high income taxpayers. Although the tax is intended to help fund Medicare, it is in fact an additional income tax and is imposed by new section 1411 of the Internal Revenue Code. Unfortunately, it appears that it is not a tax against which taxes incurred in foreign countries, even on the same income, may be credited. As a result, American expats who are subject to the tax will wind up paying it in full even if foreign taxes exceed the total of U.S. regular tax and net investment income tax on that income.
The Full Story:
Today’s tax quote: “The wisdom of man never yet contrived a system of taxation that operates with perfect equality.” Andrew Jackson
As of January 1, 2013, the new 3.8% tax on net investment income goes into effect.
The tax applies if a taxpayer has Adjusted Gross Income (AGI) above $200,000 ($250,000 married filing a joint return), and also has Net Investment Income (NII). The tax is on the smaller of Net Investment Income or the amount by which AGI exceeds the applicable threshold. So if a couple has AGI of $300,000, which includes $30,000 of NII, then the tax applies to $30,000. If AGI is $270,000, then the tax would only apply to $20,000 of the NII (the amount by which AGI exceeds the $250,000 taxability threshold for married couples filing a joint return).
NII includes dividends, interest, capital gains, rental and royalty income, annuities other than from qualified plans, and some other types of non-wage income. It does not, however, include wages, self-employment income, unemployment compensation, social security benefits, alimony, tax exempt interest, or distributions from qualified plans such as IRA’s and 401k’s.
A U.S. citizen or resident on a foreign assignment (an expat) remains taxable in the United States on worldwide income, including the NII tax. Expats are also taxable in the foreign country in which they are working. Although that country probably has no tax comparable to the extra U.S. tax on NII, it undoubtedly does tax investment income earned there, as well as wages.
The U.S. alleviates the effect of the same income being taxable both in the U.S. and the foreign country by allowing a foreign tax credit. (Note that under the foreign earned income exclusion, some earned income in the foreign country may be excludable from U.S. income without the need for the foreign tax credit). Consequently, in general if the foreign country taxes investment income at the same rate as the U.S., the U.S. tax is completely offset by the foreign tax credit and there is no double tax. The U.S. also has tax treaties with many foreign countries that, among other things, seek to eliminate double tax.
However, a quirk of the Internal Revenue Code would not allow the foreign tax credit to offset the new 3.8% tax. Section 27 of the Code says that foreign taxes shall be allowed as a credit “against the tax imposed by this chapter.” The words “this chapter” refer to chapter 1 of the Code, which includes sections 1 through 1400. Unfortunately, the NII tax is imposed by section 1411, which is not in chapter 1. Therefore, it may not be offset by foreign taxes, even if those taxes are imposed on some or all of the same investment income on which the NII tax is imposed.
Nor do model treaty provisions eliminate this problem.
Consequently, American expats who earn enough income to be subject to the NII tax will not be able to offset that tax with taxes incurred in the foreign country where they work, even if those taxes are otherwise creditable. Although this may not technically be a “double tax” because foreign taxes will still offset regular U.S. income taxes on investment income and there is no comparable foreign tax to the NII tax, it may still cost the expat extra U.S. taxes.
Worldwide ERC® companies who tax equalize their expatriate employees will need to consider this dynamic in their annual tax calculations.
Posted by Peter K. Scott 3/4/2013
President Obama and congressional leaders failed to reach an agreement to prevent sequestration so the federal spending reduction trigger officially took effect just before midnight on March 1. However, the full effect of sequestration absent a deal will likely not be realized for a majority of Americans until April or even later. The President met with congressional leaders on March 1 in one last attempt to address sequestration before the official deadline but as widely anticipated the negotiations did not produce significant progress. As a result, $85 million in spending reductions for the remainder of Fiscal Year 2013 will be spread across a majority of federal government departments, agencies and programs.
The President and Congress need to find offsets to the $85 billion through spending reductions, additional revenue or a combination of both to delay sequestration through the end of the fiscal year. Presently, the President and congressional Democrats are calling for a combination of spending reductions and revenue increases to offset sequestration with congressional Republicans stating they will only agree to spending cuts. Due to the impasse, President Obama on the evening of March 1 issued an Executive Order directing federal department and agency heads to implement the reductions. The Office of Management and Budget (OMB) sent a report that evening to Congress noting the specific reductions to each federal agency and program.
What is Sequestration?
Under the Budget Control Act of 2011, President Obama and congressional Republicans and Democrats reached an agreement to temporarily raise the debt ceiling as well as implement a structure to reduce the deficit by $1.2 trillion over ten years. The legislation established a bipartisan committee, known as the “Super Committee”, of members of the House and Senate to develop the details on deficit reduction. In the event the Super Committee did not reach an agreement, the legislation established a trigger known as “sequestration” to automatically cut spending for a majority of government departments, agencies and programs in order to reduce the deficit.
The Super Committee failed to reach an agreement but as part of the American Taxpayer Relief Act of 2012 Congress delayed the initial implementation date of sequestration from January 1, 2013 until March 1, 2013. Now that sequestration is in effect, it means a 7.9% cut in nonexempt mandatory defense funding, 7.8% cut in nonexempt discretionary defense funding, 5.1% cut in nonexempt nondefense mandatory funding, 5.0% cut in nonexempt nondefense discretionary funding and a 2.0% cut in Medicare provider payments. According to OMB, since the reductions are over the seven months remaining in FY2013 which ends on September 30, the percentage reductions will be approximately 13% for non-exempt defense programs and 9% percent for non-exempt nondefense programs. The Budget Control Act did specifically exempt several federal agencies and programs from reductions including Social Security benefits, Medicaid, military personnel pay and veteran benefits and several agencies including the U.S. Postal Service and Amtrak will not see budget reductions.
At this point, much of the specific impact of sequestration is still yet to be determined and speculation. Sequestration was developed as a fallback position because neither political party ever thought it would actually happen. The trigger inflicts reductions to both domestic programs traditionally favored by Democrats and robust national defense funding long supported by Republicans. Thus, many officials in the Administration and Congress until recently had not been forced to give serious consideration to or analyzed the full implication of the cuts if sequestration actually occurred. What is troubling now for many lawmakers is that the cuts are across-the-board and thus government officials have very little discretion as to what areas within their department or agency can be cut to spare higher priority budgetary items. While many of the particulars of the cuts still remain uncertain, some details are now emerging.
Federal Employees and Contracting
Those most affected by sequestration will be federal employees and contractors. Spokespersons for the Department of Defense and the Federal Bureau of Investigation have stated that they plan to issue notices shortly to thousands of federal civilian and contracted employees for furloughs starting in early April. Many Cabinet Secretaries and federal agency heads with more discretion in their budgets have stated that furloughs are a last resort. Instead, they are scaling back on planned spending on new technology, not filling open positions and cutting in other areas of their budget including on travel. OMB has granted agencies wide leeway in implementing the reductions but did state that “sequestration will inevitably affect agency contracting activities and require agencies to reduce contracting costs where appropriate.” The potential impact on federal transferees and contractors therefore varies greatly by agency.
Real Estate
Fannie Mae, Freddie Mac and the Federal Housing Finance Agency (FHFA) are all spared from reductions under sequestration. This is due to the fact that Fannie Mae and Freddie Mac are quasi government agencies and the FHFA is funded by fees collected by the federal home loan banks. The Federal Reserve and other financial oversight agencies are also not subject to sequestration since they are also either quasi government and/or funded by fees. One agency that is subject to sequestration is the new Consumer Financial Protection Bureau (CFPB) which will see a reduction of 5.1% or 23 million of its $448 million budget.
It is unlikely that the decrease in its budget will impact the new Bureau as it is still expanding to reach its staffing goals. It could have an impact on future hires but the agency presently has sufficient staff to carry out much of its current activities and directives. So it is unlikely that we will see a delay as a result of sequestration to proceeding on regulations dealing with quality mortgages, quality residential mortgages and the proposed new closing and settlement forms. The impact on the mortgage industry is also expected to be minimal at this time but long-term reductions could impact various aspects of every industry.
Immigration and Travel
The budget for U.S. Customs and Border Protection is being reduced by $294 million and the Transportation Security Administration (TSA) by $276 million. In a letter dated January 31 to Senator Barbara Mikulski, Chairwoman of the Senate Appropriations Committee, Secretary of Homeland Security Janet Napolitano stated that these reductions would likely result in the furlough of U.S. Customs and TSA employees causing longer wait times for customs and security checks at airports. In a similar letter from Secretary of State John Kerry, the new Secretary stated that reduced funding would undermine progress made toward timely processing of visas. Finally, the letter from Secretary of Transportation Ray LaHood to Senator Mikulski warned of that the $232 million reduction to the budget of the Federal Aviation Administration would likely result in furloughs of air traffic controllers as well as aviation safety inspectors causing slower safety inspections and approvals and a disruption in air travel.
When will Sequestration End?
Even though an agreement was not reached by March 1, the President and Congress can still develop a deal at any point that retroactively prevents the reductions and/or stops future cuts. However, it could be days, weeks or even longer for leaders to come together as both sides wait for the effects of sequestration to be grasped by their constituents and politicians determine which political party is blamed most for letting the spending trigger actually take effect. The next significant date is March 27 which is days before Administration officials have stated much of the impact of sequestration will be realized and when the current temporary Continuing Resolution funding the federal government for FY 2013 expires. Speaker of the House John Boehner stated on March 1 that he and the President are in agreement that the Continuing Resolution should be extended to avoid a government shutdown. The two had also previously agreed though that sequestration should not take effect.
If an agreement is reached to end sequestration, it will likely only address reductions for FY2013. Congress will then need to address the remaining approximately $1.1 trillion in cuts scheduled under sequestration for the next nine years.
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