Taxable Talk

Last year I wrote about Naftali Tzi Weisz. Mr. Weisz is the Grand Rabbi of Spinka. He'll also be standing trial in September charged with tax fraud. He's accused of soliciting charitable donations but promising to refund most of the money—a scheme that's definitely not kosher.

On Friday two alleged co-conspirators pleaded guilty. Joseph Roth, a Tel Aviv-based banker with United Mizrahi Bank pleaded guilty to conspiracy. And Rabbi Moshe Zigelman will plead guilty on Tuesday. Mr. Roth admitted that he established secret bank accounts overseas and helped repatriate the money to the United States. Rabbi Zigelman's attorney told the Los Angeles Times "his client was 'atoning for his own wrongdoing' and would not testify against the other defendants.

Given the alleged size of the tax fraud—millions of dollars—Grand Rabbi Weisz is looking at a very lengthy term at ClubFed if convicted this Fall.

As I've said before it seems that strip club owners and tax evasion go together hand-and-hand.

Curt D. Kosow owned Bare Elegance, a gentlemen's club in Pittsburgh's "Strip District." (No, I'm not making that up. The Pittsburgh Post-Gazette story uses that name.) He was tried for allegedly distributing cocaine (he was acquitted of that charge) but he was found guilty of failing to pay income taxes. He represented himself after going through 11 attorneys.

Mr. Kosow received some bad news during sentencing. His motion to reduce his sentence for diminished mental capacity was denied but his sentence was extended for obstructing justice during his trial. He'll spend 41 months at ClubFed—but things could have been worse. Mr. Kosow attempted suicide at the end of the trial but survived.

Two more Bozo tax preparers won't be harming consumers any more. Let's just say up front that the methods used weren't wise.

First, we'll head to Union City, Georgia. Majalai Wisdom prepared plenty of tax returns from 2000-2004.Me And her clients got lots of refunds (and gave her back $500 - $1500 in cash from each refund they received). Of course, the fact that Ms. Wisdom made up her own W-2s for clients using nonexistent employers, added phony exemptions and credits, including children who had nothing to do with the taxpayer. Now, perhaps if she used just one of those methods she wouldn't have gotten caught. However, sooner or later the IRS computers would wonder why Joe Taxpayer showed income from Acme but Acme never filed its W-3 with the government. Ms. Wisdom was sentenced to 30 months at ClubFed.

Meanwhile, the proprietor of Melba's Tax Service in Batesville, Arkansas will soon be at ClubFed. Melba Nelia Lopez pleaded guilty to two counts of preparing false tax returns. Ms. Lopez appears to have also added phony items to clients' returns causing the government a loss of about $95,000. She'll be sentenced later this year.

And what will likely happen to users of Ms. Wisdom or Ms. Lopez? Their clients will soon be receiving "Dear Soon to be Audited Taxpayer" letters (if they haven't already received them). Remember, if it sounds too good to be true it probably is.

Last week the House of Representatives passed an AMT patch for 2008. That patch contained offsets (tax increases) which doom it in the Senate. Further, President Bush promises a veto if it somehow manages to make it out of Congress.

Eventually, Congress will pass a patch which doesn't contain offsets. Will it be in September or November? I think we're looking at a replay of 2007 and November is optimistic.

Question 1.

"Good afternoon Russ,

"I am a regular [poker] player online and I was wondering the policy in the state of California? Is there a certain amount and above that needs to be reported on your taxes? Since the money comes in overseas is there even a policy?"

The US Tax Code is quite explicit about gambling income: it's taxable. And whatever the source--US or foreign--all income is taxable unless Congress explicitly exempts it.

California taxes start with the Adjusted Gross Income from your US tax return. The only gambling income exempted on a California tax return is California lottery winnings.

Either report it or you are committing tax evasion.

Question 2.

"Hello, sir:

I AM 73 YEARS OLD AND WON A $1700.00 $1.00 TRIFECTA. I RECEIVED A W2-G FORM from Churchill Downs Racetrack but i don't know what or where to go with it.

The Form shows that no money has been withdrawn yet from the Winings. i understand that the Law states that in horseracing, a person owes taxes if the winnings are 300 times the wager. Therefore, if I played a $1.00 Trifectsa( I bet $36.00) i am liable. Right?

If so, my friend, what do I do now? I pay NO TAXES currently. The only money taken out of my check is a $93 amount for Medicare.

Can you please tell me how to proceed? I DO appreciate your help."

First, you owe tax on all gambling winnings whether or not you receive a W-2G. Your gambling winnings go on line 21 of Form 1040 (other income). You can deduct losses up to the amount of your winnings as an itemized deduction on Schedule A.

It sounds like your only other income is Social Security. Assuming that the $1700 is your only gambling winnings of 2008, you almost certainly won't have to pay income tax on your winnings--your Social Security won't be taxed and with just $1700 of income you won't owe any income tax. However, if you have other significant gambling winnings your Social Security could be taxed.

Question 3.

"I reside in New York City, and am planning on moving to Thailand at year-end and will be a professional gambler. I understand that if I'm out of the US for 330 days out of 365 I'm eligible for the Earned Income Exclusion."

So far so good....

"My question is how can I avoid New York taxes? How can New York tax me when I'm going to be a resident of Bangkok?"

At this point, cue Murray Head and One Night in Bangkok. Now that we have the appropriate theme in the background, here's the answer: Because they can.

Seriously, every US citizen is considered a resident of a US state or territory. You have a domicile (residency) in that state. Until you establish a domicile in another US state or territory you are considered a resident of whatever state you currently reside in. The toughest states in enforcing this are New York and California; both routinely conduct residency audits.

You may wish to consider first establishing residency in a state with no income tax, such as Texas, Florida, or Nevada, before moving to Thailand. You would need to sever your ties with New York and establish ties with your new state. You should stay in your new state for several months so that you truly become a resident of your new state.

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Just a reminder: This opinion is limited to the one or more Federal tax issues addressed in the opinion. Additional issues may exist that could affect the Federal tax treatment of the transaction or matter that is the subject of this opinion and the opinion does not consider or provide a conclusion with respect to any additional issues. With respect to any significant Federal tax issues outside the limited scope of this opinion, the article was not written, and cannot be used by the taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer.

The IRS announced today that mileage rates will increase on July 1st. The new business mileage rate is $0.585/mile (up from $0.505/mile); the new medical and moving mileage rate is $0.27/mile (up from $0.19/mile). The charitable mileage rate is unchanged—it is set by a statute at $0.14/mile and Congress must change it.

Suckers are born every day, and so are the people out to fleece them. I've reported in the past on Aegis Corporation, a now defunct Chicago-based vendor of offshore trusts. The former owner of Aegis is spending 30 months at ClubFed.

But that's not to say that Aegis wasn't successful marketing their trusts. They were, though many of the purchasers wish that weren't the case. Four men from South Dakota purchased an Aegis trust, and then used the trust to shelter income away from the prying eyes of the IRS...for a while.

Eventually, though, the IRS found the trust and saw that it was as phony as a $3 bill. One of the men is a pastor, Jon Bowers of Junction City, South Dakota; the other three are his brothers, Kurt, James, and Kent. All four have been sentenced to terms at ClubFed ranging from ten to 36 months. Jon and James have repaid the IRS the $1.2 million in tax, penalties, and interest that they owe; Kent has repaid $297,000 but still owes $450,000; and Kurt has repaid $317,000 but owes $1.6 million additional in tax, penalties, and interest. Kent, James, and Jon also were fined between $10,000 and $50,000.

As a reminder, if it sounds too good to be true it probably is. If someone tells you that there's a legal way to hide money from the IRS in an offshore trust, do yourself a favor and run, don't walk, anywhere else.

Last year I reported on Circle Industries, the Alpharetta, Georgia based international construction company. The father and son owners conspired with their bookkeeper to deduct personal expenses on their business return, including things like visits to Atlanta's Gold Club, an adult entertainment facility.

Well, this past week the owners found out their fate. Gerald Marchelletta Sr. received 27 months at ClubFed, his son Gerald Marchelletta Jr. received 36 months, and their bookkeeper, Theresa Kottwitz, got 24 months. Additionally, the firm, which has already made "substantial restitution" according to this news report must fully pay back the IRS. Finally, each of the Marchallettas must pay a $50,000 fine.

As a published author I know that finding the right title for a book can be a difficult task. My writing partner and I struggled with the title for our first book while for our second book we chose the title and then wrote the book.

Last November I detailed the indictment handed down to Bernard Bagdis and ten other individuals. Mr. Bagdis had allegedly boasted to IRS criminal investigators that he was going to write a new book called Federal Tax Fraud: The Users Guide. Mr. Bagdis may have a lot of time to work on his book—he faces 35 felony charges.

On Wednesday another individual was arrested allegedly because of this scheme. Wayne Bozeman, a West Chester, Pennsylvania attorney was charged with conspiracy to defraud the IRS and other related charges. The government alleges that Mr. Bozeman took money from a company he ran, deposited it into the account of another company he controlled, and then used the funds for personal expenses. The government alleges that Mr. Bozeman evaded $157,000 in tax on $830,000 of income.

Meanwhile, Mr. Bagdis and his alleged co-conspirators were also indicted on new charges yesterday. Mr. Bagdis is now alleged to have also prepared a false tax return for Mr. Bozeman.

Seven of the original ten co-conspirators have pleaded guilty and are cooperating with the government according to this story in the Philadelphia Daily News. Peter Scuderi, Mr. Bagdis' attorney, told the Daily News "My client's position is he's done nothing wrong. There's a defense to everything." Only time will tell what kind of an ending is written to Mr. Bagdis' book.

Joe Kristan has an excellent post this morning on why your first should talk to your business attorney and accountant and then act on a change to your business entity. If you act first you may very well end up having tax troubles.

If you're in prison and need some extra money, what should you do? How about defrauding the IRS—after all, you're in prison, and all the government can do is keep you there.

Of course, such a scheme needs help from outsiders. It's tough when you're in prison to have access to your bank accounts. One such outsider will soon get to spend time at ClubFed from such a scheme.

Daniel Goodheart was a prison counselor at the Okeechobee Correctional Institute in Florida. Mr. Goodheart allegedly used a Florida Department of Corrections database to get names and social security numbers which he, and several others, used to obtain $902,000 in refunds.

But the IRS caught on to the scheme, and Mr. Goodheart was prosecuted on charges of mail fraud and wire fraud. He was found guilty in February, and was sentenced last week to five years at ClubFed. He will appeal the conviction.

Unfortunately, Mr. Goodheart isn't the only individual who has been engaging in this kind of tax fraud. Of all fraudulent returns caught by the IRS, 15% were prison-related. And that's just the fraudulent returns that were caught.

The floods in Iowa have hit the tax blogging community. Joe Kristan, the blogger at Roth Tax Updates, and all of downtown Des Moines were evacuated Friday afternoon because of the floods.

The American Red Cross is one good place to make a donation for flood relief.

Sometimes when you deal with the government you get the runaround. Agency "A" will tell you need to talk with Agency "B" while Agency "B" says only Agency "A" can handle the problem. It's enough to give you gray hair.

One enterprising (albeit Bozo) attorney had an interesting idea of how to apply this in reverse. He had just filed his mother's estate into probate in King County (Seattle), Washington. He decided to file a Tax Court case on the estate, and tell the Probate Court there was a problem resolving the Tax Court case while telling the Tax Court there was a problem resolving the Probate Court case.

He did this quite successfully for twelve years. Unfortunately, he wasn't so successful in the thirteenth year. The Tax Court caught on to his scheme and has sanctioned the attorney:

Mr. Allison’s education and legal experience, not to mention his admission to the Tax Court bar, underscore the egregiousness of his conduct. The issues in both cases before us are fairly simple and should have been resolved long ago. Instead, the cases before us have dragged on for over eight years, and the probate case has lingered for more than a decade. We therefore find that he used procedures of our Court primarily for delay, and in doing so was repeatedly dishonest. Mr. Allison’s persistence in the face of warnings from both courts thus warrants a penalty under section 6673(a)(2). That section requires a determination of the costs imposed on the Commissioner, and we will order the Commissioner to file evidence of what those costs were.

Because Mr. Allison is an attorney currently admitted to practice before the Tax Court, other sanctions may be appropriate. We will also send this opinion (and the order to show cause dated March 7, 2008) to the King County Superior Court for their consideration in In re Estate of Allison, No. 95-4-03740-0.

I guess the old saying, fool me once, shame on you, fool me twice, shame on me, needs to be lengthened.

Other Coverage: Roth Tax Updates, TaxProf Blog

I've read about all sorts of Bozo tax preparers, but Sunita Buddhu is by far one of the worst I've read about. Luckily for you and I, her days of preparing tax returns have ended.

Ms. Buddhu and her father, Deowraj Buddhu, began preparing tax returns in 2003 as Paradise Consulting Services. The name was later changed to Lotus Consulting. No matter what the name, they used methods that are guaranteed to cause problems: They invented business losses for taxpayers who weren't self-employed. When the IRS looked at returns from 2003 - 2005 they found that most contained such phony losses.

So the IRS began examining lots of returns, and Ms. Buddhu decided on a new strategy. She had her clients' returns amended, and changed the business losses to employee business expenses. And then there's the following, courtesy of the Hartford Courant:

[Judge] Droney said Sunita Buddhu told her clients they had nothing to fear from the IRS because the federal government does not have authorization or jurisdiction to conduct examinations of Connecticut residents' tax returns. Sunita Buddhu also prepared letters for her clients to submit to the IRS making that claim.

Needless to say, the last time I checked Connecticut was part of the United States....And the Buddhus made the same argument in court last week; the judge responded that the argument wasn't worth a response.

So the judge has barred Sunita Buddhu from preparing tax returns, and from promoting tax fraud schemes. Unfortunately, over the last few years they prepared thousands of returns. If you happened to use the Buddhus to prepare your return you will likely find yourself a recipient of a "Dear Valued Taxpayer" letter. At least it does appear that the clients weren't complicit in the fraud.

What happens if you use a payroll service and they don't forward the deposits to the IRS and your state tax department? The payroll company will be in trouble, but the employer is still liable for the deposits. That's why you should only use reputable companies.

Premier Data Solutions doesn't sound like a payroll company, but that's one of the services they offered. The company, located in Kankakee, Illinois, served a variety of employers, including the Kankakee Valley Park District, a local high school, and a pizza parlor. When the IRS notified these companies that their payroll deposits haven't been made, they contacted the Kankakee Police. Currently both local and federal investigators are looking into Premier.

Complicating the matter is that Premier was sold earlier this year and, remarkably, the payroll deposit problems apparently weren't noticed.

Joe Kristan recommended last week that employers should check with the IRS to make sure that their payroll deposits are being received. That's excellent advice. In any case I suspect lots of people are looking into whatever happened with the money Premier received but didn't remit to the government.

News Story: The Daily Journal

Proposition 13, the initiative that limited property tax increases, is blamed by liberals as one of the root causes of California's current budget problems. It's not.

The San Diego Union ran an editorial detailing what has happened to property tax revenues to the state since the passage of Proposition 13:

From fiscal 1980-81 – the year Proposition 13 took effect – through 2005-06, property tax revenue skyrocketed from $6.4 billion to $38.3 billion. That is an increase of more than 500 percent. So much for talk that the measure turned off the property tax spigot.

Remember this when our legislature complains that they don't have enough money, or that they need to increase taxes to balance the budget. They don't. They need to cut spending, and eliminate programs that California neither needs nor should have. The time for smoke and mirror has past; it's time to cut politically expedient and popular programs.

The TaxProf Blog alerted me to an interesting Tax Court case decided earlier this week. Once again the Court looked at whether or not an individual can be a professional gambler when that individual specializes in video poker.

In video poker, you play against a machine and attempt to try to get the best payout possible. Because the payouts are shown on the machine you can calculate your exact expected value by playing any machine.

The petitioners in todays case were a successful New York City physician and his wife. The doctor decided that he wanted to start playing video poker, and he went to the nearby Mohegan Sun casino. He looked at the paytables of various video poker machines and only played progressive machines with big payouts.

To be a professional gambler an individual needs to keep good records. I recommend to everyone they keep a gambling log: a pocket notebook where you record your wins and losses. But the petitioner in today's case decided to rely on the casino for his records:

Petitioners were misguided to assume that Dr. Merkin’s Players Club card would keep a complete business record of his activities at a casino and that this record would absolve them of the duty to maintain business records. See sec. 6001. It is the taxpayer’s duty, and not that of the casino, to maintain such records. Sec. 6001. In short, his lack of records and accountability for his activities illustrates to us that Dr. Merkin did not carry on his video poker playing in a businesslike manner.

The Court didn't like that his Club card was his only record: "In fact, the only credible evidence in the record with respect to Dr. Merkin’s time spent playing video poker in 2003 was a Player’s Club statement generated by Mohegan Sun and provided by petitioners at trial."

That was strike one.

Next, it helps to be profitable. One of the tests to see if an individual is conducting a business or a hobby is whether he makes money. The petitioner was losing money, so did he change his system?

Despite Dr. Merkin’s playing time (whether it was 319 or 1,128 hours), he did not testify that he spent any time honing or adjusting his system when it became clear to him that he was not on track to make a profit playing video poker in 2003. See sec. 1.183-2(b)(2) and (3), Income Tax Regs. Dr. Merkin did testify that he read video poker magazines and kept abreast of the machines and their respective payout histories at the casino, but he did not prove that he used this knowledge to adjust his system in the light of his overall losses. We view Dr. Merkin’s failure to spend any time adjusting and/or improving his system as a factor weighing against his gambling activity’s being a trade or business.

He didn't, and that was strike two.

Next, the petitioners argued that if you included the value of the gifts they received with their Club card they would be profitable. But there's a problem with that, and the Court saw it quite easily:

The items he earned through redemption of his Player’s Club points were items that he essentially paid for with the amounts that he bet. Put another way, if petitioners were to have purchased all of the items they received through the redemption of their Player’s Club points in 2003, it is highly improbable that the value of those items would equal the amount of money wagered by Dr. Merkin in 2003.

Moreover, and with respect to the items for which Dr. Merkin redeemed his Player’s Club points in 2003, we note that petitioners failed to report as income the value of any car, airfare, or travel that they acquired from the casino in 2003...However, if Dr. Merkin received any items of that type in redemption of his Player’s Club points, we could not permit him to have it both ways; that is, by taking the value of those items into account to determine whether his gambling activity was engaged in with the actual intent of making a profit while not including the value of those items in income.

That's three strikes, but the Court found a fourth strike. The test to be a professional gambler includes that you use the income for your livelihood. However, the petitioner in this case is a successful physician who "...had ample disposable income as a result of Dr. Merkin’s practice to cover the expenses associated with two residences as well as Dr. Merkin’s spending while at Mohegan Sun."

It doesn't help when the petitioner admits that his gambling wasn't making money. "Dr. Merkin conceded this reality when he admitted at trial that his system did not work." Indeed, the physician has given up video poker.

But losing this case won't be the end of the story for the doctor. He will soon be hearing from the New York Tax Department. Why? Because once your income reaches a certain level—and given the petitioner's successful medical practice, it's a certainty he's well beyond that level—New York only allows 50% of itemized deductions. Thus, while the petitioner owed $21,000 in additional tax to the IRS, he will face a substantial tax bill from New York on his gambling...and he was an overall loser. At least he gets to deduct 50% of the losses; had he resided in Connecticut he would get none of the losses.

Case: Merkin v. Commissioner, T.C. Memo 2008-146

If you've ever driven from Southern California to Las Vegas, the first exit on Interstate-15 when you cross into Nevada is for Primm, site of three casinos. These casinos used to be owned by the Primm family but were sold to MGM (now MGM/Mirage) in 1998. (I believe that the Primm Casinos were later divested to Herbst Gaming.)

The family patriarch, Gary Primm, bought a yacht, the Prima Donna. It's a big yacht, 145 feet in length. The yacht is registered in the Cayman Islands and, according to Alexander Druft, attorney for Mr. Primm, was normally docked in Baja California.

The Orange County, California assessor believes that the yacht was docked part of the time during 2002 and 2006 in nearby Newport Beach, and Mr. Primm thus owes the county nearly $380,000 in property taxes (for 2003 and 2007, the years following the dockings). Mr. Primm has appealed the assessor's office ruling; he previously won an appeal regarding 2006 (based on 2005 dockings).

So is this "harassment" as claimed by Mr. Druft or is Webster Guillory, Orange County Assessor, correct when he states, "If he owns a big boat, even if he lives in Nevada, he's not docking it there." Well, I know Mr. Guillory is correct in that an ocean-going vessel isn't docked in Nevada. Still, given the precarious nature of California's finances it's not surprising that the assessor is looking under every rock (or at every dock) to find anything worth taxing.

News Story: Orange County Register

One of the surest methods I know to get the IRS upset with you is to withhold payroll taxes and not remit them. Payroll taxes are called trust fund taxes; I've yet to know of a time when the IRS hasn't gone after a business that failed to remit those taxes. I'm also unaware of any case where the IRS hasn't pursued a payroll service who failed to remit trust fund taxed on behalf of employers it serviced.

James McLamb, of Raleigh, North Carolina, was CFO of the Castleton Group. Castleton serviced about 100 employers in the Research Triangle area of North Carolina. Serviced, though, may be the wrong word to use for Castleton; scammed appears to be more apropos.

McLamb had a unique method of handling trust fund taxes. He'd calculate the correct amount of taxes, accept those remittances, and then change the numbers to much lower figures. He'd use the lower numbers to report payroll to the IRS and the North Carolina Department of Revenue. It's unclear from the news story where the $8 million that was supposed to go to the IRS ended up; suffice to say it didn't end up in the U.S. Treasury and likely lined McLamb's pockets.

The fallout from this mess is what you'd expect. McLamb has pleaded guilty to defrauding the United States; he'll likely be sentenced to a lengthy term at ClubFed later this year. Castleton is bankrupt; it's owner blames McLamb for the company's problems. The employers who trusted Castleton still have to remit the taxes to the IRS & North Carolina.

I strongly advise my corporate clients to use a reputable payroll service. This is not an area to skimp on—the penalties are high for mistakes and owners can and are held personally liable when mistakes occur. Finally, if you think that an idea like McLamb's will work over the long term you're badly mistaken. Trust fund taxes are heavily scrutinized and the government will come after you.

Richard Hatch has appealed his guilty verdict to the US Supreme Court. Hatch's attorney told the Associated Press, "He's extremely optimistic about his appeal...He still believes the system should work." Hatch is appealing alleging that the judge improperly limited his testimony and that the judge unfairly limited his cross-examination of the accountant who prepared his tax returns.

The Court of Appeals rejected Hatch's appeal earlier this year. Indeed, the Court of Appeals summarily rejected each argument that Hatch is now making, noting, "Here, the district court's limitations on cross-examination in this nine-day trial were thoughtful and far from being excessive" and

The court thus opened the door for defense counsel to ask Hatch whether Burnett or someone else at SEG had promised to pay the taxes on the money he won. Hatch's counsel, however, did not follow up with questions of this sort.

Like Mr. Hatch and his attorney, I believe that the system should work. Unlike Mr. Hatch and his attorney, I think it has.