Annual Blog Hiatus

March 16th, 2018

With the heart of the 2018 Tax Season upon us, it’s time for my annual blog hiatus. My series of Bozo Tax Tips will appear in early April, and if something truly earth-shattering happens in tax, I’ll still be here. Otherwise, I’ll be back post-April 17th.

S-Corp/Partnership/1042 Deadline Is Tomorrow

March 14th, 2018

Tomorrow is the deadline for calendar-year S-Corporations and partnerships to file their tax returns. In reality, most will file extensions. But let’s say you’re an S-Corp (or partnership) owner and you just realized there’s a deadline. What should you do?

“It’s better to extend than amend.” And the penalties for not filing an extension are, as President Trump would say, bigly.

That’s the answer–file an extension. Download Form 7004, follow the instructions, and mail the form using certified mail, return receipt requested, to the IRS. Or file your extension electronically.

Remember your state taxes. Some states have an automatic extension; some require a form to be filed. A few, such as Illinois and New York, have taxes on partnerships or S-Corporations. If you don’t know your income, make an estimate of what it is, calculate the tax, and send that with your extension.

The deadline is a postmark deadline, so as long as the extension is postmarked tomorrow you’re fine. If you are in an area hit by the recent winter storms (mainly in the northeast and mid-Atlantic), you have an extra five days (until March 20th) to file your extensions (or returns).

Tomorrow is also the deadline to file Forms 1042-S and 1042 with the IRS. These are reports of withholding to non-Americans. If you need to file those forms, make sure you get that done by tomorrow, too.

The deadline for individual tax returns, trust/estate returns, and calendar year C-Corporations is Tuesday, April 17th.

The Price Tag on California’s Train to Nowhere Jumps Another 17%

March 9th, 2018

What is the cost to fly from Los Angeles to San Francisco? I decided to check Southwest Airlines for a date one month out (April 11th); the cost is $50 each way or $100 for the round trip. I think you’d agree that’s not particularly expensive.

On the other hand, the cost for California’s “Train to Nowhere”–the planned high-speed rail line that will run from Los Angeles to San Francisco–is now estimated at $77 Billion. That’s up another $11 Billion from the $66 Billion I had heard last year. And the project is now estimated to start in 2029, with full service only in 2033. This is all buried in the Draft 2018 Business Plan of the California High-Speed Rail Authority.

There are also estimated revenue numbers and cash flow numbers that are, frankly, hysterical…unless you’re a California taxpayer. The project will magically have positive cash flow from operations the moment it begins running in 2029. Yet less than 3% of all high-speed rails systems make money. And this high-speed rail line will initially run from the booming metropolis of Shafter to the slightly more booming metropolis of Madera.

The breakeven analysis in the report states,

There is a 78 percent probability that the Silicon Valley to Central Valley Line farebox revenue covers its operations and maintenance costs in 2029; by the opening year of Phase 1, the breakeven probability rises to 96 percent, and is >99 percent by 2040. The breakeven analysis only considers farebox revenue; the probability of breaking even increases further when considering bus and ancillary revenue.

The reality is that there is almost no chance of that happening…if the project is ever completed. Frankly, the best bet for California is to end this boondoggle. Unfortunately, the unions love it (lots of union labor working on it); the project is giving new meaning to the self-perpetuating organization. As I wrote the last time I looked at this,

Meanwhile, Quentin Kopp, the man who introduced the rail line, now calls the line foolish. In an interview with he said,

It is foolish, and it is almost a crime to sell bonds and encumber the taxpayers of California at a time when this is no longer high-speed rail. And the litigation, which is pending, will result, I am confident, in the termination of the High-Speed Rail Authority’s deceiving plan…

[The selling of bonds is] deceit. That’s not a milestone, it’s desperation, because High-Speed Rail Authority is out of money.

The only good news is I get to use one of my favorite images again:


IRS Interest Rates Rise for Second Quarter

March 7th, 2018

The IRS today announced the interest rates for the second quarter of 2018.

The interest rates will be 5 percent for overpayments (4 percent in the case of a corporation), 2.5 percent for the portion of a corporate overpayment exceeding $10,000, 5 percent for underpayments, and 7 percent for large corporate underpayments.

The interest rate had been 4 percent for overpayments.

SEC Reportedly Launches Cryptocurrency Probe on ICOs

February 28th, 2018

The Wall Street Journal is reporting (pay link) that the Securities and Exchange Commission (SEC) has issued “scores of subpoenas and information requests” regarding digital tokens (aka Initial Coin Offerings, or ICOs).

That regulators are starting to look into this market shoudn’t come as a surprise. The US government doesn’t move fast, but regulators have been giving messages regarding ICOs (and they’ve generally been, “You need to comply with securities laws”) for some time.

As someone involved in the poker industry before “Black Friday”, this has all the signs of a repeat performance (except in the world of cryptocurrency rather than online gambling). Before Black Friday US government officials said that online gambling was generally illegal (to be offered). The SEC sent a release in August 2017 on ICOs; the implication was that some involved market manipulation and other illegal activity. The Commodities Futures Trading Commission (CFTC) has also sent a release. And the chairs of the SEC and CFTC wrote an op-ed in the Wall Street Journal in January. An excerpt:

Market participants, including lawyers, trading venues and financial services firms, should be aware that we are disturbed by many examples of form being elevated over substance, with form-based arguments depriving investors of mandatory protections…The CFTC and SEC, along with other federal and state regulators and criminal authorities, will continue to work together to bring transparency and integrity to these markets and, importantly, to deter and prosecute fraud and abuse…Distributed ledger technology may in fact be the next great disruptive and productivity-enhancing economic development. If history is any guide, DLT is likely to be followed by many more life-changing innovations. But we will not allow it or any other advancement to disrupt our commitment to fair and sound markets.

Coinbase To Comply With IRS Summons

February 24th, 2018

Two of my clients received an email from Coinbase:

Dear Mr. Smith,
In December 2016, the Internal Revenue Service issued a summons demanding that Coinbase produce a wide range of records relating to approximately 500,000 Coinbase customers. Coinbase fought this summons in court in an effort to protect its customers, and the industry as a whole, from unwarranted intrusions from the government. After a long process, the court issued an order that represents a partial, but still significant, victory for Coinbase and its customers: the order requires Coinbase to produce only certain limited categories of information from the accounts of approximately 13,000 customers. We are writing to let you know that the above-described court order requires us to produce information specific to your account. If you have concerns about this, we encourage you to seek legal advice from an attorney promptly. Coinbase expects to produce the information covered by the court’s order within 21 days. For your reference, the court’s judgment can be found here. The case was filed in the United States District Court for the Northern District of California, Case No. 17-cv-01431-JSC. In addition, we also want you to know that because Coinbase received a summons on December 8, 2016, and more than six months passed before our challenges to the summons were resolved by the court, the period of limitations under sections 6501 and 6531 of the Internal Revenue Code (title 26 of the U.S. Code) were suspended beginning as of June 8, 2017 and continuing through the final resolution of Coinbase’s response to the summons. This may be relevant to the tax returns that you have filed for the 2013, 2014, and 2015 calendar years. If you have questions about your tax liability for those years, we strongly encourage you to consult with your tax advisor.
Regards, The Coinbase Team

Let me clear up a few points made by Coinbase:

1. This is not a significant victory for Coinbase. As most tax professionals thought, Coinbase must comply with US law and comply with most of the IRS summons.

2. The statute of limitations for impacted taxpayers was extended for about nine months by the battle over the summons. Coinbase is absolutely correct about this. Where this gets important for individuals who may not have included all of their Coinbase transactions on their returns is if they substantially underreported their income. Timely filed 2013 tax returns are “beyond the statute date,” even including the extra nine months. (They were due in April 2014, so adding an extra nine months takes to the normal three year statute of limitations takes us to January 2018.) However, timely filed 2014 returns impacted by this will have an extra nine months added to the statute date (until January 2019).

Additionally, anyone who substantially understated their income (20% or more) has a six-year statute length rather than three years. Timely filed 2013 returns are well within the extended statute length.

3. Coinbase’s suggestion of consulting with your tax advisor is an excellent one. If you file an amended return before the IRS comes after you or has knowledge of your error, you generally are looking at just paying tax and interest. Coinbase has told those impacted by this that you have less than 21 days to correct your mistakes; take advantage of that now!

If you included your cryptocurrency transactions on your tax returns, you’re likely not going to be a target. But if you didn’t, you have been given a short period of time to file amended tax returns.

Finally, this is not the end of this issue; expect the IRS to send summonses to all the other US-based Exchanges. I would not be surprised if the IRS targets foreign Exchanges that service Americans. This is a black and white issue under US tax law: Any accession to wealth not exempted from taxation under the law results in taxable income. Cryptocurrency gains are not exempt from taxation under US law.

The Good, Bad, and Ugly of the Tax Extenders

February 22nd, 2018

As write this it’s February 21st. About ten days ago Congress, in its unending wisdom, decided to extend certain “Tax Extenders” that they had let expire at the end of 2017. Yes, the undead have risen again! As soon as the IRS allows it, these are back for 2017. You can find a complete list of the extenders here. The major ones that impact individuals are:

– Exclusion from gross income of discharge of qualified principal residence indebtedness
– Mortgage Insurance premiums treated as qualified residence interest
– Tuition and Fees deduction
– Certain energy credits.

Of course, there are some esoteric deductions and credits like the American Samoa economic development credit and that certain race horses are now classified as three-year property.

The Good: The IRS has already implemented a couple of these items. I can already efile returns with mortgage insurance, and tomorrow I’ll be able to efile returns with the tuition and fees deduction. That’s also great work by my software provider (ProSeries).

The Bad: Sooner or later the bill comes due. As Samuel Johnson said, “Whatever you have, spend less.” That’s something that both Democrats and Republicans in Congress need to learn. Our government, at almost all levels, is bloated and needs to be cut. It would also be nice if Congress either codified these extenders into law permanently, extended them timely, or just ended these items.

The Ugly: If you are taking one of those esoteric deductions or credits, you may need to wait a while before filing your return. The IRS is starting with the more popular (as far as implementing the extenders), so for those taking the carbon dioxide sequestration credit, you may need to file an extension; as always, it’s far better to extend than amend.

Overall, kudos to the IRS for quickly implementing many of these extenders. And for those of you who take the excise tax credit on alternative fuels are happy, too.

Driver’s Licenses and Tax Filings

February 5th, 2018

Nevada Driver's License

Many states are now requiring we obtain your driver’s license information (or state ID) in order to file your return. Currently, these states are requiring this information:

– Alabama
– California
– Colorado
– Illinois
– Kansas
– Louisiana
– New York
– Ohio
– Virginia
– Wisconsin

States are using this in order to combat identity theft. So if you are filing one of these state’s tax returns, your tax professional will need your driver’s license number, date the driver’s license was issued, and the expiration date. (If the driver’s license or state ID is from New York, the first three characters of the New York document number will also be needed.)

While I’m generally for anything that reduces identity theft, I’m not thrilled with this. Of course, I should point out that this adds extra work for tax professionals which just might be why I have this opinion….

Have I Committed Malpractice?

February 2nd, 2018

Let’s say John Smith is a consultant in Syracuse, New York. His business is conducted fully in Syracuse. He never travels outside of Syracuse. He writes reports on a niche area for businesses. Mr. Smith files and pay New York state income tax (as he’s a resident of New York) in addition to his federal income tax. Has he satisfied his income tax filing requirements? (There are no local income taxes in Syracuse.)

In my view, almost certainly. His activity is conducted solely within Syracuse, New York. He’s filed his tax returns every year. Yet in the view of the State of California he may owe tax to the Bronze Golden State. How, you might ask, might this be the case?

The State of California, in its unending wisdom, enacted legislation for “economic nexus.” If you have sales to California, a portion of your income is, in the view of California, subject to California tax. Here’s an excerpt from the FTB’s website:

Jill, a nonresident of California, owns a web design business that she holds as a sole proprietorship. She works from her home out of state but has customers in various states including California. For the 2013 taxable year, Jill’s sales receipts from California customers are $300,000 out of the total sales receipts everywhere of $1,000,000. Does Jill have a filing requirement in California?

Yes, nonresident individuals are taxed on all California source income. Jill’s sole proprietorship is carrying on a business in and out of California and will be required to apportion its income to California using UDITPA rules. Under market assignment, sales of services are assigned to California if the purchaser of the service received the benefit of the service in California. Accordingly, $300,000 will be assigned to the California sales factor numerator for Jill’s sole proprietorship and Jill would apportion 30% ($300,000 CA sales/$1,000,000 total sales) of its business income from her sole proprietorship to California. [emphasis in original]

In a tax professional’s forum I noted that while the California legislature enacted this law, there is a good chance that it’s unenforceable except for businesses with nexus to California. Consider a partnership with one of the partners a California resident and the other a New York resident. Here, there’s clearly nexus to California and California tax is owed.

However, in the example I give (above) Mr. Smith clearly has no nexus to California and while California thinks he has a filing requirement, he probably doesn’t because of court cases. I noted the following on that forum:

While I understand that’s the Franchise Tax Board’s position, the ability for a state to to force collection of taxes to a nonresident who resides in another state is governed also by Quill Corp. vs. North Dakota, the famous case on states having the ability to force collection of sales tax on nonresident companies. The background for this case is the “dormant commerce clause.” (Interestingly, the Supreme Court recently accepted another case on this same issue: South Dakota vs. Wayfair, so it’s possible Quill will be overturned.)

The principal of this is that California has the absolute right to tax individuals with nexus to the state. But does California have the right to tax me–a resident of Nevada with no nexus to California–on the (say) 10% of income I receive from California residents whose tax returns I prepare? Can California legally go after Jill who never sets foot in California? My suspicion is courts in Nevada and Jill’s home state would today look askance at such requests.

One tax professional said my response bordered on malpractice: advising clients to disobey laws. I don’t think that’s the case at all. What I am advising clients is that the California law is of dubious legality, and it is difficult for California to enforce on businesses without nexus to California (such as the hypothetical Mr. Smith). I am not ignoring what California is stating (and I’m informing clients who may be impacted by this). That said, based on current precedent federal courts would, in my opinion, rule for Mr. Smith. (Since Mr. Smith has no nexus to California, a court case would almost certainly be in federal court in New York–the only place he has nexus to.)

It’s important to realize that the law could change based on the decision in South Dakota vs. Wayfair. (South Dakota enacted a law regarding sales tax that allows for economic nexus to the state. South Dakota courts held the law was unconstitutional based on the Quill decision.) Today, though, the federal supremacy clause (the federal supremacy clause means that state constitutions and laws are subordinate to federal law) governs; current federal law holds that California cannot tax companies without nexus to the state–and today nexus means physical nexus.

Online Gambling and Offshore Cryptocurrency Exchange Addresses for 2018

January 24th, 2018

With the United States v. Hom decision, we must again file an FBAR for foreign online gambling sites. An FBAR (Form 114) is required if your aggregate balance exceeds $10,000 at any time during the year. (The IRS and FINCEN now allege that foreign online poker accounts are “casino” accounts that must be reported as foreign financial accounts. The rule of thumb, when in doubt report, applies—especially given the extreme penalties.) You also should consider filing an FBAR if you have $10,000 or more in a non-US Cryptocurrency Exchange.

There’s a problem, though. Most of these entities don’t broadcast their addresses. Some individuals sent email inquiries to one of these gambling sites and received politely worded responses (or not so politely worded) that said that it’s none of your business.

Well, not fully completing the Form 114 can subject you to a substantial penalty. I’ve been compiling a list of the addresses of the online gambling sites. It’s presented below.

FINCEN does not want dba’s; however, they’re required for Form 8938. One would think that two different agencies of the Department of the Treasury would speak the same language…but one would be wrong.

You will see the entries do include the dba’s. Let’s say you’re reporting an account on PokerStars. On the FBAR, you would enter the address as follows:

Rational Entertainment Enterprises Limited
Douglas Bay Complex, King Edward Rd
Onchan, IM31DZ Isle of Man

Here’s how you would enter it for Form 8938:

Rational Entertainment Enterprises Limited dba PokerStars
Douglas Bay Complex, King Edward Rd
Onchan, IM3 1DZ Isle of Man

You will also see that on the FBAR spaces in a postal code are removed; they’re entered on Form 8938. You can’t make this stuff up….

Finally, I no longer have an address for Bodog. If anyone has a current mailing address, please leave it in the comments or email me with it.

Note: This list is presented for informational purposes only. It is believed accurate as of January 24, 2018. However, I do not take responsibility for your use of this list or for the accuracy of any of the addresses presented on the list.

The list is in the cut text below.

If anyone has additions or corrections to the list feel free to email them to me.