Paying Employment Taxes Is Optional…Until You Get Caught

August 21st, 2016

Two stories regarding employment taxes from the past week should serve as a reminder that paying employment taxes is only optional until you get caught.

First, an update on the individual who thought he could just create a new business entity every time the IRS asked about his paying employment taxes. Agim Zendeli owned the Ziggies chain of restaurants in Missouri; he pleaded guilty in January to not remitting $1.3 million in payroll taxes. He was sentenced to 37 months at ClubFed and must make restitution of $1.3 million (which he had previously agreed to do).

Meanwhile, out of Germantown, Tennessee (suburban Memphis) comes the story of Larry Thornton. Mr. Thornton was the majority owner of one Memphis business and the sole owner of another. I’ll let the DOJ press release tell the story:

Beginning in the second quarter of 2007, Thornton caused SEI to stop paying over the taxes required to be withheld from SEI’s employees’ paychecks and caused SEI to stop timely filing Employer’s Quarterly Federal Tax Returns, Forms 941, with the IRS. Beginning in the first quarter of 2010, Thornton caused First Touch to stop paying over the taxes required to be withheld from First Touch’s employees’ paychecks and caused First Touch to fail to timely file Forms 941 with the IRS. Between 2007 and 2011, Thornton collected more than $6.8 million in employment taxes from SEI and First Touch employees’ paychecks, but failed to pay those collected taxes over to the IRS. Thornton also failed to pay his companies’ matching share of FICA taxes during those years. During that time period, two of Thornton’s full-time accountants – both of whom were certified public accountants (CPAs) – warned Thornton about his failure to pay over employment taxes. Both CPAs resigned their positions due to Thornton’s unwillingness to comply with his employment tax obligations.

During the same years in which Thornton failed to comply with his employment tax obligations, Thornton spent more than $6.2 million from the business bank accounts on personal expenses, including house and condominium payments; vehicle, yacht and motorcycle loan payments; personal travel; and start-up funding for his wife’s beauty boutique. According to court documents, Thornton also failed to file personal and corporate income tax returns. As part of the guilty plea, Thornton admitted that his illegal conduct caused a tax loss of more than $8.9 million to the IRS.

Of course the IRS will understand spending $6.2 million on personal expenses rather than remitting your payroll taxes. I mean what’s more important: buying a yacht or paying the government? Mr. Thornton was sentenced to full restitution and to spend one year at ClubFed.

As a reminder, all employment tax remission issues are investigated by the IRS. If you want to visit ClubFed, having employees and not remitting payroll taxes is a quick and easy way to do so.

Three Sets of Books Isn’t Better than One

August 21st, 2016

From time to time I’ve seen stories of individuals using two sets of books: One with the actual numbers and one with the (lesser) numbers used to prepare the tax returns. It’s a great idea…until you get caught. A former owner of a Las Vegas liquor store took the double set of books idea a bit further.

Jeffrey Nowak and Ramzi Suliman owned a chain of liquor stores here in Las Vegas. The stores were successful, but the income reported on the tax returns was inaccurate. Mr. Nowak gave his tax professional the second set of books that left out about $4 million in cash receipts. The Las Vegas Review-Journal reports that there was also a third set of books; that set compared the true and skimmed versions of books. The Department of Justice press release notes, “For tax years 2006 to 2009, Nowak reported a total income tax owed of only $313, when in fact Nowak owed more than $400,000. The total tax loss from the conspiracy is nearly $1 million.”

Mr. Nowak was indicted and tried this past week. He was found guilty of conspiracy to defraud the United States, assiting in filing false corporate tax returns, and tax evasion. He’s looking at a lengthy term at ClubFed when he’s sentenced in November. Mr. Suliman pleaded guilty in 2014; he is awaiting sentencing.

For those wondering: Three sets of books isn’t better than two, and two sets of books isn’t better than one.

Five Sentenced for Tax Fraud; Justice Department Gets ITINs Wrong

August 14th, 2016

A Justice Department press release caught my eye. Five individuals, all Mexican nationals residing in the US, were sentenced to ClubFed for terms between 33 months and 121 months. The five individuals had pleaded guilty to conspiracy to commit mail fraud, and they had indeed done so:

Beginning in 2014 and under the direction of Natividad Medina, the defendants conspired to steal money from the U.S. Treasury and U.S. taxpayers by exploiting the ITIN system. The Medina sisters began by collecting Mexican identification documents from unknown people in Mexico and used those to fraudulently obtain ITINs. The Medina sisters then used those ITINs to submit false and fraudulent income tax returns to the Internal Revenue Service Center in Austin. They requested that the IRS mail refund checks to residences or to one of more than 200 post office boxes in and around the Houston area which Lopez had rented and maintained on behalf of the Medina sisters.

Kudos to the DOJ and IRS Criminal Investigation for stopping these individuals.

Unfortunately, either the Department of Justice or the US Attorney’s Office for the Western District of Texas needs to learn more about Individual Taxpayer Identification Numbers (ITINs). Here’s what they say about ITINs:

According to court records, in 1996, the Internal Revenue Service began issuing Individual Taxpayer Identification Numbers, or “ITINs”. By obtaining an ITIN, an individual who is already disregarding federal law by living in the United States illegally is given the opportunity to comply with federal law by filing taxes. If the applicant can furnish sufficient proof (i.e. foreign birth certificate, national identification card, passport, etc.) that he or she is living in the United States illegally, the IRS will issue that person an ITIN.

While that’s true, there are other purposes ITINs are used for. If a US citizen is married to a non-American, an ITIN can be issued for the spouse. An ITIN can also be issued for a dependent of a US citizen. A non-citizen who has a US tax filing responsibility (and who is not in the US illegally) will also be issued an ITIN. One would think that the DOJ or US Attorney’s Office might look at an IRS web page (like this one) to see the legitimate reasons why one would obtain an ITIN.

While I was on vacation came the news that ITINs will now expire, with ITINs with middle digits of “78” and “79” expiring this year. While a renewal application (Form W-7) will be available by October 1st, and you won’t need to file a tax return to renew the ITIN, I’ve had lots of problems with the ITIN office (lost applications, lost paperwork, problems even when the Taxpayer Advocate Office handed the paperwork in) that I’m glad it appears none of my clients are in the first group of renewals. If you get the idea that I’m expecting problems, you’re right. But I digress….

In any case, I do say well done to the DOJ for putting these scofflaws behind bars. However, next time read up on why some people who are either visiting the US quite legally or are related to a US citizen really need an ITIN in order for them (or a US citizen) to comply with their US tax filing responsibilities.

Exempt Organization Extension Filing Deadline Is Monday

August 11th, 2016

The extension deadline for filing Form 990 series returns for tax-exempt organizations is Monday, August 15th. This deadline is for the 501(c) series of organizations that filed extensions back in May, including charitable organizations, welfare organizations, social clubs, and other nonprofits. Most of these entities will not owe any tax unless they have either unrelated taxable business income or are a private foundation with investment income. If filing a paper return I strongly recommend using certified mail, return receipt requested so you have proof of filing. Better yet, just file electronically and you have complete proof of filing.

Nevada Commerce Tax Filing Deadline Is Monday

August 11th, 2016

The deadline for filing Nevada Commerce Tax returns is Monday, August 15th. The tax is a modified gross receipts tax on businesses with more than $4 million of Nevada gross receipts. However, all Nevada businesses must file the returns. Impacted businesses should have received a welcome letter from the Nevada Department of Taxation; however, non-receipt of the letter doesn’t exempt you from filing.

Filing an “exempt” return (less than $4 million in revenues) took me about one minute after I registered with the Nevada Department of Taxation. The online form was simple and straightforward; the hardest part was inputting the NAICS Code for my business (though there’s direct searching within the online form).

Vacation

July 31st, 2016

It’s time for my annual vacation. If something earth-shattering in the tax world happens while I’m relaxing, I’ll take time out to post on it. Otherwise, enjoy the fine bloggers listed in the blogroll on the right.

I’ll be back on Tuesday, August 9th.

The California Pension Crisis

July 31st, 2016

Last week, the California Public Employees’ Retirement System (CALPERS) released its rate of return for the past year. CALPERS budgets based on a 7.5% return per year. In a “Missed it by that much” moment, they came in at 0.61%. Oops.

But for California taxpayers it’s a real issue: California taxpayers will have to make up the shortfall. California State Senator John Moorlach (R-Costa Mesa) has the right idea: “Now we’re in Peter Pan territory. ‘You’ve just got to believe’… the stock market will rise more than 7.5 percent per year. You’ve just got to believe that interest rates will stay at zero indefinitely. You’ve just got to believe that real estate prices will continue to rise.”

Here’s the reality: Taxes must massively increase or state payrolls must massively decrease. Let’s add more taxes to the most heavily taxed state in the country; I’m sure that will go over well…especially just to pay pensions. Might even more of the middle class do what I did? (Hint: The answer is yes.)

Actually, the idea of cutting California government by 30% is wonderful. It also has a 0% chance of happening in California. A repeal of Proposition 13 would require approval by California voters; there’s a chance (albeit small) that could pass; if it did, it would guarantee more middle class departures from the state. On this year’s California ballot is an initiative to extend the “temporary” California tax hikes.

I hope no one wonders why I call California the Bronze State.

The 2016 Hom Decision: Do Online Gambling Sites Still Need to be Reported on the FBAR?

July 27th, 2016

The Ninth Circuit’s unpublished opinion in United States v. Hom is now up. It’s sort of a misnomer to use the word “published” for an unpublished opinion. Unpublished here means it cannot be cited as a precedent; the court doesn’t think it has sufficient precedential value. It doesn’t mean, though, that the opinion isn’t of value.

Back in 2014 Mr. Hom was convicted of not filing an FBAR (then, Form TD F 90-22.1) for accounts at FirePay, PokerStars, and Party Poker. The appeals court quickly upheld that FirePay is a foreign financial account.

Hom’s FirePay account fits within the definition of a financial institution for purposes of FBAR filing requirements because FirePay is a money transmitter…FirePay acted as an intermediary between Hom’s Wells Fargo account and the online poker sites. Hom could carry a balance in his FirePay account, and he could transfer his FirePay funds to either his Wells Fargo account or his online poker accounts. It also appears that FirePay charged fees to transfer funds. As such, FirePay acted as “a licensed sender of money or any other person who engages as a business in the transmission of funds” under 31 U.S.C. § 5312(a)(2)(R) and therefore qualifies as a “financial institution.”… Hom’s FirePay account is also “in a foreign country” because FirePay is located in and regulated by the United Kingdom.

This part of the ruling shouldn’t be a surprise. If it looks like a duck, walks like a duck and quacks like a duck, it might just be a duck. FirePay offered services that banks do. It looked like a financial institution; the court ruled it was one.

However, Mr. Hom prevailed regarding PokerStars and Party Poker.

In contrast, Hom’s PokerStars and PartyPoker accounts do not fall within the definition of a “bank, securities, or other financial account.” PartyPoker and PokerStars primarily facilitate online gambling. Hom could carry a balance on his PokerStars account, and indeed he needed a certain balance in order to “sit” down to a poker game. But the funds were used to play poker and there is no evidence that PokerStars served any other financial purpose for Hom. Hom’s PartyPoker account functioned in essentially same manner.

The Government argues that these entities were functioning as banks, but this argument lacks support. Neither the statute nor the regulations define banking. In discerning the plain meaning of the text, we interpret words in light of their “ordinary, contemporary, common meaning” unless they are otherwise defined. Merriam-Webster dictionary defines bank as, “an establishment for the custody, loan, exchange, or issue of money, for the extension of credit, and for facilitating the transmission of funds.” There is no evidence that PartyPoker and PokerStars were established for any of those purposes, rather than merely for the purpose of facilitating poker playing. [footnotes and citations omitted]

So are we done (again) with including online gambling accounts as foreign financial accounts? Unfortunately, the government made another argument: that online gambling sites are casinos. The Court rejected that argument because it was raised too late (it needed to be presented during the actual case). However, we need to examine it because nothing prevents the government from raising it in the future.

So let’s look at the law and the regulations promulgated under the law. 31 USC § 5312(a)(2)(X) defines a financial institution to include, “a casino, gambling casino, or gaming establishment with an annual gaming revenue of more than $1,000,000 which—
(i) is licensed as a casino, gambling casino, or gaming establishment under the laws of any State or any political subdivision of any State….”

Unfortunately, most online poker sites offer activities found in a casino. For example, PokerStars now offers casino games; other sites offer sports betting. A court could easily find that PokerStars meets the definition of an online casino and since it is clearly based outside the United States meets the definition of a foreign financial institution. Thus, the only safe course is to continue to report online gambling sites as foreign financial sites on the FBAR.

I would prefer (from a workload standpoint) to draw a different conclusion, but the safe course is that we must continue to recommend that individuals with funds on online gambling sites file the FBAR.

Hom Decision Reversed

July 26th, 2016

Back in 2014 the US District Court for the Northern District of California held that online gambling accounts are reportable foreign financial accounts for the FBAR. Mr. Hom appealed that decision. Today, the Ninth Circuit Court of Appeals reversed the decision in regards to online poker accounts. (Hat Tip: http://federaltaxcrimes.blogspot.com/2016/07/ninth-circuit-rejects-).

I’m not sure of how much this decision changes things. (Once the decision is published, I will post further on the decision.) From Jack Townend’s analysis:

FirePay was a financial institution, the Ninth Circuit held, because it met the definition of money transmitter. The other two were not money transmitters or otherwise financial institutions as defined. The Ninth Circuit rejected the Government’s argument that they should be treated as banks (a type of financial institution requiring an FBAR) because they functioned as banks, applying the plain meaning of the term bank to exclude these services.

Two caveats about the opinion. First, the panel described it as nonprecedential under Ninth Circuit rules. Second, the Government made an argument — which the Court declined to consider because too late (see p. 4 fn. 1) — that PokerStars and PartyPoker were casinos, another category of financial institution which, if foreign, requires FBARs for accounts.

The casino argument could be valid for the future. And as I said before, I want to read the decision before I tell people you don’t have to file an FBAR for online gambling accounts. Thus, I still recommend (for the moment) including online gambling accounts as reportable foreign financial accounts.

Fail, Caesar! A July Update

July 23rd, 2016

Since I last reported on the bankruptcy of Caesars Entertainment Operating Company (CEOC) there has been some news:

1. The junior creditors appear to be no closer to agreeing with the senior creditors on a restructuring of CEOC. The latest obvious strife was when Judge Benjamin Goldgar threatened sanctions against the junior creditors for objecting to CEOC employing the law firm of Kirkland & Ellis as bankruptcy counsel. Jones Day, the counsel for the junior creditors, then withdrew their objections.

2. A Chinese consortium is apparently bidding for the Caesars Interactive Entertainment Inc, a unit of Caesars Acquisition Company (CAC). CAC is not in bankruptcy (at least for now). Given the current acrimony in the bankruptcy it is almost a certainty that the junior creditors will object to this sale (unless the proceeds are funneled to them, and there’s no chance that the current owners of Caesars want that to happen) so this deal is very unlikely to move forward until the bankruptcy is settled. Reports are that the World Series of Poker is not part of the proposed sale.

I still believe that the most likely outcome is for all of Caesars to be forced into bankruptcy, and this is more likely to happen sooner rather than later.