IRS: DFS Is Wagering (Gambling)

October 19th, 2020

In February 2014, I wrote a post titled, “Taxes and Daily Fantasy Sports: The Duck Test.” I concluded:

So daily fantasy sports have at least some element of luck. Then from a tax standpoint they sure look to be a form of wagering activity. There’s a prize, chance, and consideration. The Duck Test again: If it looks like a duck, walks like a duck and quacks like a duck, it might just be a duck.

On Friday, the IRS released a second Chief Counsel Memorandum dealing with Daily Fantasy Sports. An IRS attorney asked the question, “Does the amount paid by a daily fantasy sports player to participate in a daily fantasy sports contest constitute an amount paid for a wagering transaction under §165(d) of the Internal Revenue Code?” The Chief Counsel’s Office conclusion was:

The amount paid by a daily fantasy sports player to participate in a daily fantasy sports contest constitutes an amount paid for a wagering transaction under §165(d).

The Chief Counsel’s office opinion is basically what I wrote over six years ago:

DFS transactions meet the definition of wager as interpreted by the Tax Court and State courts because there is an uncertain event (such as the live performance of individual players), winnings if the event resolves in participant’s favor, and consideration is lost if the event does not resolve in participant’s favor. Each DFS transaction is a pay to play competition with predetermined winnings for a certain number of participants. The outcome of the competition turns on the overall statistical performance of live professional players assembled into the fantasy team. The winning participant receives a return of his or her initial bet along with wagering gains, while the losing participant walks away empty handed. This is consistent with the courts’ interpretation of the term “wager.”

The IRS Chief Counsel memorandum also correctly notes that the fact that DFS is skillful wagering is a blind alley. “DFS transactions are similar to poker and other wagers in which a player’s skill is a component of the game but it does not dictate the outcome. As such, the argument that DFS transactions are excluded from wagering as a game of skill are unpersuasive.”

There are some obvious conclusions from this. First, DFS sites have been issuing Form 1099-MISC’s, not W-2G’s, to participants. We can expect the IRS to pressure the sites to switch (and expect the sites to fight this). Second, expect the sites to come under pressure to register as gambling sites in “grey market” states or to leave such states.

Both DraftKings and FanDuel, the two leading DFS sites, have expanded into sports betting (which is clearly gambling) and have registered appropriately in states where they act as sports books. In those states, DFS being considered wagering/gambling won’t matter. However, just like Nevada did years ago some other state or states are going to also consider DFS to be gambling.

For DFS players, there is both good and bad in this memorandum. The good is that you can deduct losses (to the extent of winnings). If DFS were a skill contest, you couldn’t; however, if DFS is a wagering activity losses are explicitly allowed up to the amount of winnings. That’s good. The bad is that for professional DFS players, you might not be able to take business expenses in a year that you lose money. The Tax Cuts and Jobs Act (passed at the end of 2017) specifically disallows a professional gambler from taking business losses.

For the DFS sites, this is a continuation of the bad news coming from the IRS. Like the first Chief Counsel memorandum, I expect the DFS sites to bury their head in the sand and fight this. Unfortunately, while DFS clearly involves substantial skill to be a consistent winner, that is completely irrelevant as far as whether or not it is a wagering (gambling) activity. The only way around this for the DFS companies is for Congress to change the law.

Forgot to File the FBAR? A Typo Gives You Two More Weeks

October 17th, 2020

The FBAR (Report of Foreign Bank and Financial Accounts) was effectively due last Thursday, October 15th. FINCEN (the Financial Crimes Enforcement Agency) issued an extension (the notice was released on October 6th) for those impacted by the recent natural disasters such as some hurricanes, wildfires, and the Iowa derecho. Those individuals so impacted have until December 31st to file.

But when the agency first updated the notice on October 14th, they accidentally left out that it only was for those impacted by the natural disasters. Oops. Yesterday, FINCEN clarified this:

On October 14, 2020, FinCEN posted an incorrect message on its Bank Secrecy Act (BSA) E-Filing website.  FinCEN removed it within 24 hours.  The message incorrectly stated there was a new filing extension until December 31, 2020 for all filers of Reports of Foreign Bank and Financial Accounts (FBARs).  The extension until December 31, 2020, however, is intended only as an accommodation for victims of recent natural disasters covered in FinCEN’s October 6, 2020 notice ( https://www.fincen.gov/sites/default/files/shared/Notice-Extend%20FBAR%20Due%20Date%20for%202020%20Disaster%20Victims-Final%2020201005.pdf )

FinCEN apologizes for the error and any confusion this has caused, and has coordinated with the IRS to address the concerns of filers who may have missed their filing deadline due to the October 14, 2020 message.

Filers who file their 2019 calendar year FBAR by October 31, 2020 will be deemed to have timely filed.  As set out in the October 6 notice, FBAR filers impacted by recent natural disasters continue to have until December 31, 2020 to file their FBARs.

So if you forgot to file the FBAR, relax and get it done over the next two weeks. The penalties are on the ridiculous side for not filing the FBAR. Just do it!

Just File the FBAR

October 8th, 2020

One week from today is the tax filing deadline. It’s also the effective deadline for filing the Report of Foreign Bank and Financial Accounts, FINCEN Form 114; that’s the form that’s better known as the FBAR. The FBAR is part of the Bank Secrecy Act (it’s not a tax form), but tax professionals like me get the joy of preparing the form. There’s no tax due with filing the FBAR–it’s an information return. Yet I regularly hear excuses on why not to file the form.

You are required to file the FBAR if you have $10,000 aggregate at any time during the previous year in one or more foreign financial accounts. These include the obvious (non-US bank accounts and non-US brokerage accounts) to the not so obvious (most online gambling accounts). Penalties for not filing the FBAR are stiff (to say the least). Non-willful penalties begin at $10,000 while willful penalties start at the greater of $100,000 or half the balance in the account—yes, that penalty is per account.

The FBAR must be electronically filed. Most tax professionals’ software will handle filing the form. You can also do it yourself on the BSA E-Filing System. And if you have an FBAR filing requirement, you may also need to file Form 8938 with your tax return. This is essentially a duplicate of the FBAR but with different filing thresholds and slightly different accounts that must be reported. (The IRS has a good webpage on the differences between the FBAR and Form 8938 filing requirements.)

The rule of thumb with the FBAR is simple: When in doubt, include the account. There are no penalties for overreporting; there are severe penalties for underreporting. Take foreign cryptocurrency exchanges. The IRS has publicly stated that these do not have to be included on the FBAR. However, the instructions to the FBAR don’t say that. Thus, I urge individuals to include them. I maintain a list of foreign online gambling sites and cryptocurrency exchanges.

So don’t forget the FBAR when you’re filing your taxes. And if you have any doubts on whether to include that account, include it.

It’s Time to Panic

September 30th, 2020

As I write this, it’s September 30th. Two weeks from tomorrow is Thursday, October 15, 2020. That’s the deadline for individual taxpayers on extension to file their tax returns (except for those in disaster areas such as the fires that impacted California, Oregon, and Washington). If you have yet to send your paperwork to your tax professional it’s past the time to do so. Yes, it’s time to panic!

If your return is simple and straightforward, stop procrastinating and get it done and filed. If your return has any sort of complexities, you must start working on it now. Your tax professional needs time to get it done correctly. You need to turn in that paperwork post haste. If you’ve procrastinated, stop, sit down, and get it done–NOW.

It may already be too late for your return to be timely filed with many tax professionals. For example, our official deadline was September 15th. Luckily, we’re only a day or two behind so our procrastinating clients are still in relatively good shape. However, that might not be the case with all tax professionals. And I can guarantee if you drop off your paperwork with us on October 13th your return is almost certainly not going to be timely filed.

If you file late, it’s as if you never filed your extension. So sit down and get everything done now! Of course, if you like paying a 25% penalty, simply procrastinate for another three weeks.

The Dead Need Not Amend (Even When They Have To)

September 25th, 2020

When I eventually go to the pearly gates, I assume I’ll be leaving income tax behind. It would be a rather rude surprise to find I have lifetime employment in the great beyond, too.

This past week I needed to amend a 2019 federal return. A couple left off one item from their return. It had no impact on their tax, but the return did need to be amended. The IRS is now allowing amended 2019 federal returns to be electronically filed, so after obtaining the signature document I efiled the return. That’s a lot more efficient than mailing the return to the IRS.

But the return was rejected, because the spouse was deceased. That was true, and was noted on the originally filed return. The original return was electronically filed, so I couldn’t see why the amended return couldn’t be. Silly me, I missed yet another exception to the ability to electronically file amended returns. You cannot electronically file an amended return if a spouse is deceased. This wasn’t listed in any of the IRS notices announcing electronic filing of amended returns.

Unfortunately, that exception is real and is an IRS issue. My software company confirmed it’s an IRS programming issue and at least for now any amended return with a deceased taxpayer needs to be mailed to the IRS. Still, at least most 2019 amended returns can be electronically filed.

Onwards and Upwards Into the 21st Century!

September 24th, 2020

Yes, the 21st Century began 20 years ago, but today we welcome New York into the new millennium. The New York legislature passed (and Governor Cuomo signed into law) Senate Bill S8832 allowing taxpayers to electronically sign New York signature documents on tax returns. This should go live in the very near future (probably within two weeks).

New York was one of just three states (the others are the District of Columbia and Minnesota) that did not allow e-signatures. Federal e-signatures (and state e-signatures) require a taxpayer to complete “knowledge” questions (so the taxpayers can prove they are who they say they are).

During the peak of the pandemic, New York temporarily allowed e-signatures. It’s about to be permanent, and that’s a good thing for all.

The Perils of Waiting to the Last Minute

September 17th, 2020

The extended deadline for partnership and S-Corporation tax returns was this past Tuesday, and all of our returns were completed and filed that could be (but one). And that one client understood the issues with late filing–but more on that in a moment.

However, we were lucky in that we don’t use software from Wolters Kluwer. Users of that software (such as CCH) could not efile returns on September 15th. That’s an issue when it’s a deadline date. Many years ago, we were impacted when ProSeries (the software we use, made by Intuit) suffered a similar failure on the regular individual deadline date. That year, the IRS extended the deadline by a day. It’s quite possible the IRS will offer such relief to users of CCH this year.

Not only can technology issues happen on a deadline day, but if you wait to the absolute last minute you don’t have time to effectively review the return. This impacted one of our clients. She thought the income number from the partnership should be half of what we’re showing. The numbers on the tax returns exactly match the financial statements, so she needs to review the financials to find the errors. (I did not discover any errors, but she is intimately familiar with the business and errors should stand out more to her.) When you wait to the last day, the clock does strike midnight. She elected to file her return late (possibly using First Time Abatement to avoid penalties) as she wants her return to be correct.

We’re less than two weeks away from the extended deadline for trusts and estates and less than a month away from the extended deadline for individuals. Now is a very good time to send those last documents to your tax professional (indeed, our deadline to guarantee returns are timely prepared was earlier this week). It’s not yet time to panic (except for trusts and estates), but it soon will be for individuals. If you haven’t gotten everything together, you really need to start now. The penalties for late filing are severe, and if you don’t file by October 15th (unless you reside in one of the federal disaster zones) are severe (25% late filing penalty). It’s not a day late and a dollar short; it’s a day late and lots of dollars short.

Hopefully, It Won’t Take Ten More Years for a Resolution (The Trouble Fighting State and Local Tax Agencies)

September 14th, 2020

In 2008, taxpayers in Cook County, Illinois (Chicago) received property tax assessments and believed they were done improperly, including violating the Equal Protection Clause of the Fourteenth Amendment. They challenged it through the county appeals process, but got nowhere. They filed a lawsuit in state court, and the county argued that you can’t challenge the property tax based on the federal constitution in state court. So they filed suit in federal court in 2018, and that case was dismissed because of the Anti-Injunction Act (which prohibits most tax-related suits in federal court). They appealed the federal dismissal, and earlier this year the Seventh Circuit Court of Appeals reversed and remanded the case.

In that earlier decision, the Court held that not only didn’t Illinois have a “plain, speedy and efficient” method of appealing, they had no method of appealing. “Efficiency is no good to the taxpayers if it means that they cannot bring their equal protection claim in state court.”

And the defendants agree with the taxpayers that they cannot. In their brief, the defendants assert that the taxpayers err in presuming that they can raise their constitutional claims, sharply admonishing that “[t]hey are not free to do so.” Instead, the defendants argue, “the only matter at issue in a Section 23-15 action is whether the assessment of the real estate property was correct.” By the defendants’ own admission, then, the section 23-15 procedures provide no forum for the taxpayers to raise their constitutional claims. Nor have the defendants been able to point to any alternative channels in which these taxpayers can raise their federal constitutional claims in Illinois courts.

That case was decided on January 29th, with the case remanded to the District Court for further proceedings. One would expect that the District Court would then start the process of hearing the case. However, that wasn’t the case.

The District Court put a stay on proceedings, based on the County planning on filing a writ of certiorari (to have the Supreme Court review the case). “The taxpayers now petition for a writ of mandamus, asserting that the district court exceeded its authority when it entered the stay. A writ of mandamus is an extraordinary remedy, not lightly invoked, but it is available in an appropriate case for a litigant who can show that it has no other adequate means to attain relief to which it is clearly entitled.”

The spirit of our mandate in this case was clear. After concluding that the taxpayers lacked a plain, speedy, and efficient remedy in the state courts, we remanded the case to the district court for it to resolve the taxpayers’ claims. Then, mindful that the taxpayers had already spent a decade trying to litigate these claims in state court, and judging the Supreme Court unlikely to grant certiorari, much less to reverse our judgment, we expressly denied the defendants’ request that we stay our remand pending their petition for a writ of certiorari. The district court was powerless to reconsider our decision on this matter and grant what we had withheld.

You may have read about “Writ of Mandamus” in regards to the Michael Flynn case. Luckily, this case is apolitical, and we can see a case where it’s inarguable that mandamus is needed. Basically, lower courts are required to follow orders of higher courts. If a Court of Appeals denies a stay, the District Court can’t substitute its own judgment.

Why am I writing about this case? Because I wanted to illustrate the costs involved and time-frames in fighting local tax agencies. This case began in 2008. It is now 2020. This case will almost certainly not be resolved until 2021, thirteen years after it began. The legal fees are almost certainly in the many thousands of dollars, and there are more to come. At least a resolution shouldn’t take another ten years.

A few years ago, I had a client audited by New York State. New York assessed roughly $10,000 in tax to the client. We believed that New York was wrong on their interpretation of the tax law in question. The client spoke with an attorney in regards to fighting the case, and found it would cost somewhere more than $20,000 to move forward. Spend $20,000 to save $10,000 doesn’t make sense, and we ended up settling with New York State for a somewhat lesser amount (with all penalties being removed).

Still, that case and the Gilbert Hyatt/California Franchise Tax Board case (which began in the early 1990s and is still ongoing) have disillusioned me in regards to most state and local tax agencies. Unfortunately, the decision I’m highlighting today just reinforces my beliefs.

At Least The IRS Could Find 95% of the Returns…

September 3rd, 2020

Two items crossed my in-box within a few minutes of each other this morning. The first was a blog post from the National Taxpayer Advocate requesting that Congress give multi-year funding for modernizing IRS computer systems. The second was a TIGTA report noting the IRS couldn’t find about 5% of tax returns requested.

Do you know anyone who knows COBOL (a computer language)? If you do, the IRS wants to hear from him or her! COBOL dates from 1959 (before I was born). The IRS’s IMF and BMF (Individual and Business Master Files) are older than I am, and run in Cobol on IBM mainframes. They are the oldest computer systems still in use by the federal government! I’ll date myself: I was in the last class at Berkeley to learn computer programming on punch cards. On the bright side, the IRS uses the best of 1950’s technology….

Why doesn’t the IRS take their paper records and digitize them? Some of it has to do with the legacy systems they are run on. A lot of it has to do with inadequate funding.

Seriously, this is a problem. In our office, we don’t keep paper records. We scan everything (and return all paper to our clients). The IRS does this for electronically filed tax returns, but not for all paper returns. Indeed, the TIGTA report notes that 347 of the IRS’s 956 forms cannot be electronically filed (that’s more than 36%). The IRS has 468,000 cubic feet of storage available on their campuses. Additionally, Federal Record Centers store about five million cubic feet of IRS records! The IRS spends $57 million a year on storing and retrieving this mountain of paper.

To give an idea of how large this is, my house is 2400 square feet with (I believe) 10 foot high ceilings (because of the heat in Las Vegas). That’s 24,000 cubic feet. So IRS paper records would fill more than 227 of my sized home. It’s frightening to think of all that paper.

The Taxpayer Advocate noted the IRS needs $2.5 billion over six years to complete its (hoped for) modernization program. They received $150 million in the 2019 fiscal year and $180 million in the 2020 fiscal year for modernization. At the current rate, it will take more than 12 additional years to complete it.

The TIGTA report looked at the ability to get specific pieces of paper. Retrieving that paper is necessary for audits and many other required IRS tasks. TIGTA had requests sent through normal channels for tax returns and examination case files. Most of the time the records could be found. However, 6% of examination case files and 3% of tax returns could not be located. An additional 23% of examination case files and 10% of tax returns were not provided timely.

The TIGTA report should be looked in its entirety for a depressing picture of the reality (vis-a-vis computer systems) at the IRS. It’s not that IRS management disagrees with TIGTA on the recommendations that TIGTA made (they agreed with the four recommendations in the report); rather, the problem is that the IRS almost certainly doesn’t have the money to complete the necessary tasks.

Here’s an example from real life: A fellow tax professional’s client mailed in a Form 1040X last year. That client just received a letter stating, “We have a record of receiving your Form 1040X for the 2018 tax year. We cannot find it. Please send another signed copy by mail to this office….”

I’ve been impacted by this. I had a client a few years ago request an ITIN (Individual Taxpayer Identification Number) for his child. The ITIN unit managed to lose the paperwork (sent by certified mail) three times, including once when it was hand-carried to them by the Taxpayer Advocate Office! (Thankfully, the Taxpayer Advocate kept a copy and the fourth time was a charm!)

Do I think Congress will loosen the purse strings here? Well, maybe before I retire….

IRS Extends Tax Deadlines for Victims of Iowa Derecho & California Wildfires

August 25th, 2020

The IRS announced yesterday that they have extended tax deadlines for victims of both the derecho that hit Iowa and the ongoing California wildfires. The specific counties impacted can be found on the Federal Emergency Management Agency (FEMA) website.

For both disasters, tax deadlines are extended that began on August 10th for the derecho and August 14th for the wildfires until December 15th. This impacts 2019 personal tax returns on extension, business returns on extension, payroll tax filings, and estimated tax payments. California’s Franchise Tax Board automatically extends deadlines for federal disasters, so those impacted have identical extensions for California taxes. I assume the Iowa Department of Revenue will similarly extend Iowa deadlines.

Unfortunately, it looks like we’ll also be looking at victims of Hurricane Laura in Texas and/or Louisiana later this week. The IRS recently posted information on safeguarding records for natural disasters; your insurance company likely has additional information available. The cliche is that an ounce of prevention beats a pound of cure–but it is good advice.