Happy Nevada Day, Especially If You’re a Performer at a Gentleman’s Club

October 31st, 2014

Today is Nevada Day! Exactly 150 years ago Nevada was admitted as a state. The Nevada Supreme Court yesterday ruled on a case that may make this day more celebratory for workers at adult entertainment facilities (strip clubs).

Several performers at Sapphire Gentleman’s Club sued the club alleging they were employees and not independent contractors. The district court ruled that they were independent contractors. They appealed to the Nevada Supreme Court.

The Nevada Supreme Court reversed the district court decision. The Court noted that the performers sign a contract, and the Court ruled that even though the contract states they won’t be employees, the actual relationship “is an express contract of hire.”

The Court then ruled that the Fair Labor Standards Act (FLSA) economic realities test should be used to determine who the employer of the performers is. The Court noted that while it might appear that the performers weren’t under the control of the club (they could choose their own schedule, whether to dance or not, etc.), appearances were deceiving.

But by forcing them to make such “choices,” Sapphire is actually able to “heavily monitor [the performers], including dictating their appearance, interactions with customers, work schedules and minute to minute movements when working,” while ostensibly ceding control to them. This reality undermines Sapphire’s characterization of the “choices” it offers performers and the freedom it suggests that these choices allow them; the performers are, for all practical purposes, “not on a pedestal, but in a cage.” [citations omitted]

The Court noted that other economic realities test factors made the performers appear to be employees rather than independent contractors. The Court unanimously reversed the district court decision, and remanded it back to the district court for a trial on damages.

The attorneys representing the performers note that they could be looking at $40 million of back wages. However, Nevada’s minimum wage law allows employees who receive tips (and clearly the performers at these facilities receive tips) to be paid well under the minimum wage, so damages could be far smaller.

The 2015 State Business Tax Climate Index: Not Much Has Changed

October 28th, 2014

I guess I could have called this, “Bring me the usual suspects,” but I’ve been using that phrase over and over. Yet not much has changed, so the usual suspects have good tax climates and the usual suspects have bad tax climates. That’s according to the Tax Foundation and their 2015 State Business Tax Climate Index.

Let’s look at the ten best states for business:

1. Wyoming
2. South Dakota
3. Nevada
4. Alaska
5. Florida
6. Montana
7. New Hampshire
8. Indiana
9. Utah
10. Texas

This list is remarkably similar to last year. The only state dropping out is Washington. The Evergreen state fell from 6th best to 11th; it was hurt by its sales tax ranking (48) and corporate tax ranking (28). While Washington does not have an individual or corporate income tax, it does have a Business & Occupation Tax. That’s a gross receipts tax on business income.

The bottom ten is also mostly unchanged:

41. Iowa
42. Connecticut
43. Wisconsin
44. Ohio
45. Rhode Island
46. Vermont
47. Minnesota
48. California
49. New York
50. New Jersey

Why are states ranked poorly? Here’s what the Tax Foundation says:

The states in the bottom ten suffer from the same afflictions: complex, non-neutral taxes with comparatively high rates. New Jersey, for example, suffers from some of the highest property tax burdens in the country, is one of just two states to levy both an inheritance and an estate tax, and maintains some of the worst structured individual income taxes in the country.

Maryland and North Carolina rose out of the bottom ten, while Iowa and Ohio fell into the bottom ten. North Carolina’s improvement was dramatic: from 44th to 16th. Why?

In this year’s edition, North Carolina has improved dramatically from 44th place last year to 16th place this year, the single largest rank jump in the history of the Index. The state improved its score in the corporate, individual, and sales tax components of the Index, and as the reform package continues to phase in, the state is projected to continue climbing the rankings.

As for why states rank where they do, consider my old home of California. The Bronze Golden State has complex taxes for individuals (it ranks worst in the country), corporations, and also has a complex sales tax system. If the Tax Foundation looked at flow-thru entities, California would rank even worse. In most states a single-member LLC does not have a state tax filing requirement. That’s not the case in California.

Kudos to the Tax Foundation for their annual report. It’s clear that policy makers do read this report. North Carolina saw drastic improvement. There’s improvement forthcoming in New York, with a major corporate tax reform implemented this year which should have a dramatic impact on at least one New York tax in the future.

AICPA Lawsuit Against IRS Dismissed Over Standing

October 28th, 2014

Earlier this year the IRS announced its new “Annual Filing Season Program,” a voluntary program for tax preparers to register with the IRS. The American Institute of Certified Public Accountants (AICPA) filed a lawsuit asking for the program to be blocked. The IRS asked the court to dismiss the lawsuit, arguing that the AICPA had no standing to sue the IRS in this case. Judge James Boasberg agreed with the IRS, and today the lawsuit was dismissed. Judge Boasberg is the same jurist who decided Loving v. IRS.

I’m not an attorney, so I’m not going to give a treatise on standing. Luckily, there are attorneys who write tax blogs. Leslie Book in Procedurally Taxing gives all the background on standing you might possibly need. Judge Boasberg noted the real reason that the AICPA sued,

Beneath its amorphous rhetoric about confusion, the crux of Plaintiff’s concern is apparent: its membership feels threatened by the specter of increased competition from previously uncredentialed preparers who choose to complete the program.

The AICPA could appeal the decision. I could also envision them refiling the lawsuit, and adding individual CPAs to the lawsuit (and perhaps other types of preparers, such as Enrolled Agents and unenrolled preparers). In any case, it now appears quite likely that the Annual Filing Season Program will go forward.

That said, the long-term prospects for the Annual Filing Season Program aren’t good. As noted in Procedurally Taxing the class action lawsuit against the IRS’s PTIN fee continues. I can foresee other challenges to this program. And until Congress authorizes the IRS to regulate tax professionals the IRS is limited to purely voluntary programs.

SARs Leading to Forfeiture: The IRS Oversteps

October 26th, 2014

There have been plenty of stories on civil forfeiture recently. Two poker players had their cash seized in Iowa while driving home from a poker tournament in Illinois. They had their funds returned, but have now filed a lawsuit against the Iowa police. The IRS has also been using forfeiture. The New York Times today spotlighted the IRS using forfeiture–one example is, coincidentally, from Iowa.

For those not aware, civil forfeiture occurs when an individual’s funds are seized but the individual is not necessarily charged with a crime. The police agency involved alleges that there’s a pattern of behavior that shows that the individual’s funds are being used illegally. In the IRS’s case, this all involves Suspicious Activity Reports (SARs).

When you deposit $10,000 or more of cash, a Currency Transaction Report (CTR) is completed. A copy is sent to the Financial Crimes Enforcement Network (FINCEN). FINCEN gets so many CTRs that few are investigated.

But let’s say you want to avoid a CTR so you deposit less than $10,000. If you do that often enough, a SAR will be generated. You’re not informed when a SAR is generated. Like a CTR, a SAR is also sent to FINCEN. Most SARs are also sent to IRS Criminal Investigation. There are far fewer SARs than CTRs, and most are investigated.

The New York Times story notes the case of a restaurant owner in Iowa who had about $33,000 seized solely because she made regular cash deposits of less than $10,000. While SARs were not mentioned in the story, it’s clear that’s the cause of what happened. A SAR was generated, someone from IRS Criminal Investigation looked at the pattern and referred it to the Department of Justice; the DOJ then filed a suit to seize the money.

The only good news from the article is that the IRS is apparently going to limit the practice. In a statement made to the Times, Richard Weber, head of IRS Criminal Investigation, said the practice will be curtailed.

Unfortunately, the IRS has recently not always practiced what they preached. If you have to regularly deposit reasonable sums of cash–say, $6,000 regularly–you probably should every so often make sure one of your cash deposits is $10,000 or more so a CTR is filed. It’s better safe than sorry. And even if the IRS won’t institute civil forfeiture, there’s an alphabet soup of government agencies that still can.

One other comment I’ll make on this: Perhaps we can see some bipartisanship on an issue. I saw this issue highlighted by both the left and the right today. When Congress gets around to extenders, maybe they’ll throw something in to limit this practice.

Copying Steven Martinez’s Idea Is Not a Good Choice

October 19th, 2014

I’m on the road this weekend, but a story from the San Francisco Bay Area caught my eye. Charles Waldo was already in jail. He was arrested on a 50-count indictment for insurance fraud, tax evasion, felony vandalism, and a high speed chase through central Costa Contra County. While awaiting trial, Mr. Waldo was in the Martinez, California jail.

When you’re in prison you do have time on your hands to determine your defense. There’s plenty of time to research the law on the charges you’re facing, work on strategy with your defense counsel, and perhaps other means of helping your case. Mr. Waldo allegedly decided to follow the idea of Steven Martinez. Mr. Martinez, for those who don’t remember, won the coveted 2012 Tax Offender of the Year award for hiring a hit man to eliminate the witnesses against him. Yes, Mr. Waldo supposedly did the same thing.

Mr. Waldo was indicted on Friday on nine counts of solicitation to commit murder and one count of conspiracy to commit murder. According to the press release from the Contra Costa County District Attorney’s office,

The indictment alleges that while serving time in custody at the Martinez Detention Facility, the defendant solicited and conspired with other inmates to arrange the killing of nine different witnesses that were set to testify against him at an upcoming trial. These ten new charges will be added to the fifty charges the defendant currently faces.

There is one bright spot for Mr. Waldo if he is found guilty and spends a very lengthy term at a California penal institution: He’s a shoe-in to be nominated for Tax Offender of the Year in a future year.

You Filed That Extension, And Only Now Are Realizing the Deadline is Wednesday…

October 12th, 2014

Yes, only three days are left until the extension deadline. If you file on October 16th, it’s as if you never filed that extension (you will owe a 22.5% late filing penalty). So what should you do if you’re just starting on your return now?

First, in most cases tax professionals say it’s better to extend than amend. But extending is now out [1], so it’s better to get a reasonable return in. It can’t be a frivolous return: If you file a frivolous return, it’s even worse than not filing–you can get hit with a penalty for filing a frivolous return.

1. Get your documents together. If you have them, wonderful. If not, on Tuesday [2] you can use the IRS’s “Get Transcript” application to hopefully download a Wage & Income Transcript.

2. Include all of your income: Interest, dividends, rental real estate, gambling wins, etc. Just because you don’t receive a 1099 doesn’t mean you get to exclude that income! If you’re using software, carefully enter it where it belongs. Software does a great job putting numbers where you tell it to, but it’s also garbage in, garbage out.

You can download forms off the IRS’s website.

3. After you complete your return, look it over to make sure it’s reasonable.

4. If you live in a state with a state income tax, you have to file that too. And if you have a municipal or school district income tax, that’s also due. Most jurisdictions do have forms online.

5. If you’re filing electronically, keep the proof of filing. If you’re mailing your return, go to the post office or an automated postal center and spend the $5 on certified mail, return receipt requested. If your tax return is postmarked on October 15th, it’s considered timely filed. Certified mail gives you that proof. The automated postal centers can issue certified mail, and the postmark is the local time–even if the mail is picked up the next day (a very useful thing if you’re preparing your return at 11pm on October 15th).

6. If you’re thinking about calling up a tax professional, you need some luck. Most of us are quite busy dealing with our current procrastinating clients; October 13th is just not the time for a new client meeting.

7. Finally, make a vow with yourself that you will get started far sooner next year. While the 2015 Tax Season will likely be very unpleasant [3] and will probably start late [4], you should be able to get your returns started before October 1.


NOTES:

1. A few individuals can file a request for a second extension. If you were outside of the US on April 15th and will be outside of the US on October 15th (and both are for business/employment/residency purposes), you can file a request for a second extension. Phil Hodgen wrote about this last year (the rules haven’t changed).

2. The IRS, in its unending wisdom, has an annual “outage” of all computer systems on Columbus Day Weekend. Yes, all IRS computers are turned off just days prior to the extension tax deadline. If you’re scratching your head about this, well, so am I.

3. Next year features the first year of ObamaCare reporting, extender legislation that will probably pass late (see #4 below), and the IRS’s budget continues to shrink.

4. Congress has done nothing on “Extenders” but almost certainly will following the November election. IRS Commissioner Koskinen warned of issues if legislation passes late. Well, it will pass (in some form) late. Will it pass on January 1, 2015? I hope not, but if the Republicans gain control of the Senate (which wouldn’t occur until 2015; the Democrats will still run the Senate in the “lame duck” session), the Senate might work well or might not work at all. If you’re getting the idea that the 2015 Tax Season won’t be fun, that’s my view.

It’s Not As If Anything Is Happening Right After This…

October 7th, 2014

Of course, after reporting good news from the IRS there must be bad news to balance it out. And there is. For reasons that only the bureaucrats at the IRS can fathom, every year over Columbus Day weekend the IRS shuts down their computer systems. This includes processing of returns and IRS e-services.

As noted on various IRS web pages:

IRS will conduct its annual Columbus Day Power Outage beginning Saturday, October 11, 2014 at 3:00 p.m. and ending on Tuesday, October 14, 2014 at 5:00 a.m. [times Eastern]

Yes, I know the IRS does this every year, but why not break with tradition and choose another weekend — say the weekend of October 18th. It’s not as if there’s a tax deadline right after Columbus Day weekend….

IRS Simplifies Reporting for RRSPs and RRIFs

October 7th, 2014

In a piece of good news, the IRS announced today that US taxpayers will automatically be treated as deferring income from Canadian Registered Retirement Savings Plans (RRSPs) and Canadian Registered Retirement Income Funds (RRIFs). In other words, the treatment will be exactly like 401(k)s are treated for Americans. Such individuals will no longer have to make annual filings of Form 8891 to note their holdings for RRSPs or RRIfs.

The noncompliance with this provision was legion, so the new Revenue Procedure 2014-55 is good news. Individuals who were not in compliance had to file a request for a Private Letter Ruling in order to “get out of jail free” (so to speak). The Revenue Procedure includes retroactive relief.

However, such individuals will still need to note these accounts on their FBARs (Report of Foreign Bank and Financial Accounts, Form 114). Note also that at least one state (California) does not recognize deferral or RRSP income, so holders of RRSPs who are required to file California tax returns must report their income on their state tax returns.

Legaspi Gets 21 Months

October 5th, 2014

Francisco Legaspi didn’t want to go to jail. Back in November 1992, he pleaded guilty to tax evasion. Instead of showing up for his sentencing in January 1993, he headed to Mexico and then Canada to avoid prison. That worked for 20 years. In 2012, the State Department found him when the Bureau of Diplomatic Security found his Facebook page. (A helpful hint to any fugitives out there: Avoid posting anything on the Internet. Law enforcement reads the Internet, too.) They forwarded his information to the Royal Canadian Mounted Police who arrested him; the Mounties always get their man.

It was justice delayed last week as Mr. Legaspi received 21 months at ClubFed. He also received one year of supervised release following his term at ClubFed.

One Good Erasure Deserves Another

October 1st, 2014

I wonder if this sounds familiar to anyone: An organization is looking for key information stored on IRS computers. A lawsuit ensues, and the hard drives were allegedly wiped clean.

No, I’m not talking about the IRS Scandal, Lois Lerner, and the Freedom of Information Act lawsuits. Rather, I’m talking about a tax fight between NetJets and the IRS. NetJets sued the IRS for $643 million alleging, according to the Columbus Dispatch, that a ticket tax was misapplied. The IRS countersued for $366 million, alleging that NetJets hasn’t paid all their taxes. Both sides have petitioned for summary judgement.

I’ll let the first two paragraphs of the Dispatch story state what’s going on:

In the midst of a lawsuit with the federal government over tax payments, NetJets claims that the Internal Revenue Service destroyed documents important to the case.

The Columbus-based private-jet company, in a motion filed with U.S. District Judge Edmund A. Sargus Jr., said the IRS “wiped clean a number of computer hard drives containing emails and other electronic documents that the Government was required to produce.”

Most of the time, I wouldn’t believe that the IRS would do this. As of 18 months ago, I wouldn’t believe that the IRS would lie to Congress, would target conservative applicants for nonprofit status, and that the hard drive of any computer (or other electronic device) touched by Lois Lerner would be magically erased.

On a serious note, the fact that the IRS has done these things (even if it’s just a coincidence that the hard drive of any computer Ms. Lerner touched died) will make judges highly skeptical of the IRS. I have no idea who is right on the NetJets vs. IRS fight. I do know that the IRS’s position sure sounds fishy to me.