Gambling With an Edge Podcast

November 13th, 2018

I appear on this week’s episode of Gambling With an Edge. We discuss the new tax law, and tax topics of interest to gamblers, including how the new higher standard deduction will negatively impact gamblers.

This Name Looks Vaguely Familiar

November 1st, 2018

I’m a tax nerd. I read Tax Court decisions. Today, one caught my eye: W.T. Snipes v. Commissioner. This name looks vaguely familiar.

Yes, it’s the Wesley Snipes. Mr. Snipes, for those who don’t remember, visited ClubFed for failing to file tax returns in the early 2000s. Today’s decision begins,

P[etitioner] has Federal income tax liabilities of approximately $23.5 million for tax years 2001-06. These liabilities are largely a result of P’s failure to file Federal income tax returns. R[espondent] assessed these deficiencies, filed a notice of Federal tax lien (NFTL), and issued notice and demand for payment of the liabilities, and, when P did not pay, issued to P a notice of the filing. P timely requested a collection due process hearing under I.R.C. sec. 6330(d) and stated that he wanted a collection alternative–i.e., an offer-in-compromise (OIC) or currently not collectible status–and wanted the NFTL withdrawn. P did not challenge his underlying tax liabilities. P made a cash OIC of $842,061, less than 4% of his total underlying liability.

The tax liability is now about $23.5 million. Interestingly, back in 2008 (when Mr. Snipes was tried for failing to file) he and his then-attorney, Robert Bernhoft, said he would pay his taxes. That apparently didn’t happen.

The Tax Court dispute is over Mr. Snipes’ having a Federal tax lien being put on him. Mr. Snipes submitted an Offer In Compromise (OIC) stating there was doubt as to whether the $23.5 million could be collected. When an OIC is submitted, the taxpayer must provide a complete listing of all of his assets and liabilities. In many cases an OIC is justified. Mr. Snipes alleged that a former financial advisor of his took out loans and disposed of assets and income on his behalf without his knowledge or benefit. Indeed, the advisor signed affidavits. The Tax Court had an issue, though: “However, petitioner did not provide any definitive or otherwise bona fide documentation showing the dissipation or diversion of his assets or income.”

Something I’ve said before in discussing the Tax Court, you need to provide absolute proof and documentation. It appears that didn’t happen in this case. But I digress….

Following review of petitioner’s case the settlement officer reduced petitioner’s [reasonable collection potential (RCP)] to $9,581,027 in an effort to compromise for settlement purposes. Petitioner maintained his original OIC of $842,061. The settlement officer ultimately concluded that it was not in the best interest of the Government to accept petitioner’s OIC. The settlement officer’s manager reviewed the settlement officer’s actions regarding petitioner’s case and her rejection of petitioner’s OIC.

Mr. Snipes didn’t accept the ruling, so the case went to Tax Court.

Petitioner contends that the settlement officer abused her discretion in refusing his OIC by failing to (1) calculate petitioner’s exact RCP, (2) exclude dissipated assets, (3) conduct an expedited transferee investigation into Mr. Johnson, (4) consider whether the NFTL would cause petitioner economic hardship, and (5) satisfy the review obligations of section 7122(e)(1).

The Court did not give Mr. Snipes good news. The exact RCP isn’t required. The petitioner asked for $842,061; the settlement officer calculated $9,581,027; that’s a big difference. Without, in the view of the Tax Court, credible documentation of his assets, Mr. Snipes lost his first argument.

The argument regarding dissipated assets is more interesting. Here’s what the Court said:

Even though the settlement officer included potentially dissipated assets in petitioner’s RCP, she did not abuse her discretion. She was properly following published guidance that directs settlement officers to reject an OIC where issues of transferee liability are present unless the taxpayer includes the transferee amount in his offer. Petitioner had multiple entities in which his multiple assets, particularly his real estate properties, were held. The settlement officer could not determine petitioner’s assets clearly. Moreover, petitioner did not provide bona fide or definitive documentation showing that he no longer owned the assets in question or to what extent, if any, he had benefited from their dissipation. He provided only affidavits by [his financial advisor]. The settlement officer was justified in her calculation of petitioner’s RCP. [internal citation omitted]

I can see some basis for an appeal here. Given that the financial advisor was willing to sign affidavits saying he disposed of assets, there’s likely proof that those assets were disposed. On the other hand, you shouldn’t assume with the Tax Court. Consider that if Mr. Snipes had included proof of disposition he might have won this argument (and he might have won at Appeals, too).

The argument on transferee issues was a loser. The Internal Revenue Manual pt. 5.8.5.6(7) states,

It is not necessary to actually seek or obtain any specific legal remedy in order to address * * * [transferee/nominee/alter ego] issues in an offer. However, the offer file must be clearly documented with the basis for including the value of a transferred asset in the RCP. Care should be taken so that the determination to include assets held by others is reasonable.

This was a losing argument.

The next argument was economic hardship.

Economic hardship is considered a “special circumstance” under which a settlement officer can accept an OIC that is considered significantly below a taxpayer’s RCP…Factors indicating “economic hardship” include: (1) a long-term illness, medical condition, or disability that renders the taxpayer incapable of earning a living, where it is “reasonably foreseeable that taxpayer’s financial resources will be exhausted providing for care and support during the course of the condition”; (2) a situation where the taxpayer’s monthly income is exhausted by providing for care of dependents without other means of support; and (3) a situation where, although the taxpayer has certain assets, the taxpayer is unable to borrow against the equity in those assets and the liquidation of the assets would render the taxpayer unable to meet basic living expenses…Petitioner contends that payment of his RCP as calculated by the IRS would render him unable to meet basic living expenses. [internal citations omitted]

If you can prove that paying the RCP would cause you to be unable to pay your living expenses, you normally do qualify for an OIC based on economic hardship. There’s just one problem here:

The taxpayer must submit complete and current financial documentation to the Commissioner to prove economic hardship. Petitioner has not submitted complete and current financial data to respondent, as he did not provide definitive or bona fide documentation of his assets. Accordingly, petitioner’s settlement officer could not determine that he could not borrow against the equity of his real property interests or other assets, or that the liquidation of these interests would render him unable to meet basic living expenses. Petitioner did not make a showing of economic hardship necessary to qualify for special circumstances.

The final argument was that the review obligations of Section 7122(e)(1) were not met. Petitioner stated that the Appeals Office manager was not an ‘independent’ reviewer. The Court rejected that argument, noting that this is exactly how the proposed rejection of an offer is reviewed.

While I do expect this case to be appealed, for now the tax lien stands. As I said years ago, it would have been far, far easier (and far, far less expensive) for Mr. Snipes to have simply paid his taxes in the first place. Of course, I would have missed out on years of great blog materials but it would have saved Mr. Snipes millions of dollars.

Case:

W.T. Snipes v. Commissioner, T.C. Memo 2018-184

Here We Go Again…

October 30th, 2018

A few years ago I penned a post titled “Taxes and Daily Fantasy Sports: The Duck Test.” To remind everyone,

If it looks like a duck, walks like a duck and quacks like a duck, then it just may be a duck.

The duck test came up yet again yesterday in Albany, New York. The New York legislature passed a law legalizing Daily Fantasy Sports (DFS), even though the New York state constitution specifically prohibits gambling. The New York legislature statutorily said, “DFS isn’t gambling.” Yesterday, Judge Gerald Connolly said the legislature was wrong.

Last year a lawsuit was filed seeking a ruling on whether DFS is New York was legal. (The case is titled White, et. al., v. Cuomo, et. al.) Yesterday, the ruling came out. (My thanks to Legal Sports Report who published the ruling. LSR is a vital resource for anyone interested in sports betting in the United States. But I digress….) The issue is the same one I raised back in 2014.

Unfortunately, many states look at just an element of chance to determine if something is gambling. And there’s no doubt that daily fantasy sports have such an element. [emphasis in original.]

In this case, Judge Connolly ruled that based on the New York constitution if there’s a contest with an element of chance, a prize, and consideration and the constitution doesn’t state that activity isn’t gambling, it is gambling. Gambling is prohibited by the New York constitution, so the constitution will need to be amended in order for DFS to be legalized.

I expect this decision to be appealed, and a stay put on any adverse impacts for DFS in New York…for now. The problem is that the ruling seems right to me. If the New York prohibition against gambling was statutory, DFS could be legalized by statute. Since the New York prohibition is in the state’s constitution, a constitutional amendment appears to be necessary. This does not bode well for the future of DFS in New York.

Additionally, this ruling points out something that should be obvious regarding sportsbetting. The Supreme Court decision in Murphy v. NCAA allows sportsbetting to be legalized state-by-state. In some states, that just means passing a new law. In many states, though, that will mean amending the state’s constitution. Changing a state’s constitution takes a lot more time and effort.

Haste Makes Waste

October 22nd, 2018

Or so the cliche goes. And for the IRS, it certainly does.

A client filed his tax return on October 2nd. He had a balance due (he had made an extension payment, but he still owed some tax). He paid by having his bank account electronically debited with the filing of his tax return. In today’s mail he received a CP14 notice (dated today) alleging he hadn’t paid his balance due. Yikes!

My client was upset. “Russ, you forgot to have my bank account electronically debited.” No, I didn’t forget, and the return shows his payment being accepted for processing. I had a Tax Information Authorization for my client, so I ran an Account Transcript and it showed a $0 balance. My client was relieved, but there appears to be a systemic IRS issue.

The payment went through on October 2nd, but the IRS posted the tax due first (dated October 22nd) without posting his payment. Yet the payment was made, and my client should have never received this notice. It wasted both of our time for no good reason.

If this were the only such IRS notice I received this year I’d just ignore the issue, but there were two others I received in today’s mail (one I received as I had authorization for my client, and the other that the client forwarded to me). Both clients have $0 balances, so it appears there is a systemic issue of the IRS being a bit too fast in sending out CP14 notices.

Several years ago this was an issue for April filers; the IRS corrected the problem by allowing an additional ‘cycle’ before sending out CP14 notices. I hadn’t seen this issue before for extension filers, but it appears we have a case of deja vu all over again. I reported this to the IRS Systemic Advocacy Management System. If you’re a tax professional and run into this issue I urge to to report it, too.

A Letter on Redacted Transcripts

October 18th, 2018

About a month ago I wrote Nina Olson, the IRS National Taxpayer Advocate, regarding the IRS’s new policy on redacting transcripts. I noted several issues:

1. While an unredacted transcript is available, it is only available to taxpayers, not tax professionals.
2. The redacted transcripts should have more characters available for the name.
3. Most issues will take longer to resolve under the new policy.
4. Tax professionals are being treated as second (or third) class citizens by the IRS.
5. Compliance issues for expatriates will be even harder to resolve in the future.
6. If the IRS extends the redactions to AUR notices, resolving such notices will be difficult.

You can read the entire letter here.

It’s Time to Panic!

October 9th, 2018

If you haven’t done your taxes yet but have an extension, it is now officially TIME TO PANIC! The deadline is in less than one week (unless you’re in a hurricane disaster zone, and that will, unfortunately, likely include the Florida Gulf Coast area). If you haven’t prepared your return you do need to drop everything and get it done. The IRS website is an excellent resource.

Most tax professionals–ourselves included–can not fit you in. Our official deadline was September 19th; most tax professionals I know had September deadlines. So do the best you can and get it in. File electronically, or use certified mail, return receipt requested. And don’t forget your state tax returns (unless you live in a state with a different extension deadline); they’re also due on Monday.

Let Us Entertain You (or Not)

September 20th, 2018

The Tax Cuts and Jobs Act (TCJA) or, as I like to call it, the 2017 tax reform law, changed quite a few things for taxes. Most of these lower rates, or add a new deduction or credit. However, there were changes the other way, too. One of these involves “Entertainment” expenses.

If you’re in business you’re allowed to deduct all “necessary and ordinary” business expenses. Of course, there are some exceptions. Meals and Entertainment expenses have been limited to 50% of the amount spent. There are substantiation rules, too. The TCJA removed the ability to deduct entertainment expenses.

So let’s say you had season tickets to the Vegas Golden Knights, and you took a client (a different one) to each of the 41 home games. You discussed business, either during the game (there are stops and intermissions in hockey) or immediately before or after. You noted who you spoke to and the business purpose (and topics) in a log. In 2017, that expense would be deductible. Today that expense is not deductible.

A client called me up and asked me how he could get around the rules. (Lovely, I thought: Ask your tax professional how to commit tax evasion.) What if we call it advertising? I noted that if you were advertising in, say, the Knights’ program that would indeed be advertising. But it was hard for me to see how watching a hockey game is advertising. Well, he said, if there was a seat license fee (something that’s common for football) could we call it a “licensing” expense? No, you’re not paying to have your business licensed. It’s entertainment. I did tell him that if he took a client to the game and purchased food, and discussed business then the food expense would likely qualify as a meal deduction (assuming proper documentation, of course).

The problem is the Duck Test. “If it looks like a duck, walks like a duck and quacks like a duck, then it just may be a duck.” Tickets for athletic events, concerts, etc. are for entertainment. You can slap another label on it (“office expense” is one I expect to see next year) but it will still be an entertainment expense. And those are decidedly no longer deductible. The Tax Code giveth, and the Tax Code taketh away.

One Tiptoe Forward for Representation, With that Giant Step Backwards Still Coming

September 19th, 2018

The IRS released a Fact Sheet today on the new transcript redaction policy that begins on Monday. There’s one very slight piece of good news for tax professionals in the Fact Sheet:

If necessary for return preparation, a client may also order a complete (not redacted) wage and income transcript through the IRS. A client must first authenticate their identity with the IRS and a complete (not redacted) wage and income transcript will be mailed to the address of record within five to 10 days. If a practitioner cannot obtain Forms W-2 from the client, or if the client is unable to receive a complete (not redacted) transcript at the address of record, then the practitioner may have to file a paper return.

This is slightly better than it was, but is still unacceptable. First, if I have a Power of Attorney for my client for a particular tax year, I am authorized to act for the client (on the client’s behalf). That means that there’s no reason why the IRS shouldn’t send a tax professional with proper authorization an unredacted Wage & Income transcript. The IRS’s reasoning on this is flawed. Assume an individual hires a tax professional to come into compliance (or deal with an issue). Who do you think will be using the Wage & Income transcript: the client or the tax professional? All this will do is lengthen the process for no particularly good reason. Additionally, all the issues with mailed transcripts remain (security, expatriates, etc.)

Indeed, I strongly believe that tax professionals should be able to pull unredacted transcripts through IRS e-Services (with proper authorization, of course). The goal of obtaining transcripts is for some aspect of compliance; I’m unaware of any tax professionals who pull transcripts “just to have them.” The only thing I (and other tax professionals) have to sell is our time. We simply don’t have the time to waste to pull transcripts that are not needed. Overall, the IRS’s new policy remains poor (though there was that tiptoe forward).

IRS Extends Deadlines for Those Impacted by Hurricane Florence

September 15th, 2018

Hurricane Florence is battering North and South Carolina. News reports indicate “biblical” amounts of rain will fall, with catastrophic flooding probable throughout the Carolinas. Today, the IRS announced that they are extending deadlines for those in the federal disaster zone to January 31, 2019.

Hurricane Florence victims in parts of North Carolina and elsewhere have until Jan. 31, 2019, to file certain individual and business tax returns and make certain tax payments, the Internal Revenue Service announced today.

The IRS is offering this relief to any area designated by the Federal Emergency Management Agency (FEMA), as qualifying for individual assistance. Currently, this only includes parts of North Carolina, but taxpayers in localities added later to the disaster area, including those in other states, will automatically receive the same filing and payment relief. The current list of eligible localities is always available on the disaster relief page on IRS.gov.

While the list of impacted areas is a ‘work in progress’ right now (the IRS’s “Hurricane Florence” webpage doesn’t list them yet), FEMA has noted President Trump’s declaration of a disaster: Beaufort, Brunswick, Carteret, Craven, New Hanover, Onslow, Pamlico, and Pender Counties. As the rains continue to fall, I would expect this list to (unfortunately) lengthen.

The North Carolina Department of Revenue will almost certainly conform to the extensions. (The South Carolina Department of Revenue will, too, as impacted regions are declared a federal disaster area.)

The extension impacts all tax filings for those in the federal disaster zone:

The tax relief postpones various tax filing and payment deadlines that occurred starting on Sept. 7, 2018 in North Carolina. As a result, affected individuals and businesses will have until Jan. 31, 2019, to file returns and pay any taxes that were originally due during this period.

This includes quarterly estimated income tax payments due on Sept. 17, 2018, and the quarterly payroll and excise tax returns normally due on Sept. 30, 2018. Businesses with extensions also have the additional time including, among others, calendar-year partnerships whose 2017 extensions run out on Sept. 17, 2018. Taxpayers who had a valid extension to file their 2017 return due to run out on Oct. 15, 2018 will also have more time to file.

In addition, penalties on payroll and excise tax deposits due on or after Sept. 7, 2018, and before Sept. 24, 2018, will be abated as long as the deposits are made by Sept. 24, 2018.

Can a Professional Gambler Take the Foreign Earned Income Exclusion?

September 15th, 2018

I was asked that question this past week: Can a professional gambler take the Foreign Earned Income Exclusion? The Exclusion allows one to exclude about $100,000 of income from income tax.

The IRS website (which is quite good) has a page on the general rules for the Exclusion. The IRS notes,

Self-employment income: A qualifying individual may claim the foreign earned income exclusion on foreign earned self-employment income. The excluded amount will reduce the individual’s regular income tax, but will not reduce the individual’s self-employment tax. Also, the foreign housing deduction – instead of a foreign housing exclusion – may be claimed.

A professional gambler (unlike an amateur) will have self-employment income. A professional gambler files a Schedule C, and that qualifies as “earned income.” As the name implies, you must have earned income to take the Foreign Earned Income Exclusion.

But there are other requirements. Your “Tax Home” must be in a foreign country. Your Tax Home is where your main place of business, but there are other rules that influence the location of your Tax Home. One thing, though, is certain: If your Tax Home is in the United States you won’t qualify for the Exclusion.

Let’s assume your Tax Home is abroad. You also need to meet one of two other tests: The bona fide resident text or the physical presence test. A bona fide resident is an individual who, in the view of US tax law, resides in another country. Generally, you must be a citizen or official resident of another country (more than just being present in another country via a “tourist visa”). Additionally, you must be a bona fide resident for an entire calendar year to qualify under this test. If you’re residing in, say, the United Kingdom for the entire year and have a work permit for the U.K., you’re likely a bona fide resident of the United Kingdom.

The physical presence test is simpler. You must be outside of the United States for at least 330 days out of a 365-consective day period that includes part of the tax year involved. (If the 365-day period is split among two calendar years, the maximum exclusion is pro-rated based on the number of days in the tax year that fall in the 365-consecutive day period.) There are some other rules about this test: A day in (or above) international waters is considered a day in the United States; if you change planes in the United States (say you’re flying from Toronto to Mexico City), that does not count as a day in the United States; and any portion of a day in the United States (other than transit between foreign points) is considered a full day in the United States.

Finally, the Exclusion only covers foreign earned income. Let’s say a professional gambler qualifies for the Exclusion, earning $80,000 outside the United States. But he spent a week in the United States, and earned $20,000 while in the U.S. That $20,000 isn’t eligible for the Exclusion.

So let’s circle back to the original question: Can a professional gambler take the Foreign Earned Income Exclusion? Assuming he (a) is a professional gambler, (b) with foreign-source income, (c) has a Tax Home outside the United States, and (d) qualifies by either the bona fide resident or physical presence tests, he can take the Exclusion. Do note that while the Exclusion impacts income tax, it does not impact self-employment tax.