Taxable Talk

From Russ Fox, E.A., of Clayton Financial and Tax of Irvine, CA
All items below are for information only and are not meant as tax advice.
Please consult your own tax advisor to see how each item impacts your own situation.
An Exit Tax and a Wealth Tax for Californians?
An activist is now attempting to obtain 694,354 signatures to place a wealth tax/California exit tax on the 2010 ballot. This initiative would:
- Impose a one-time tax of 55% on property exceeding $20 million of a California resident or held in California by nonresident;
- Imposes a tax of between 36.5% to 54.3% when a resident dies or leaves California;
- Imposes additional 17.5% tax on total incomes of taxpayers with income exceeding $150,000 if single, $250,000 if married;
- Imposes additional 35% tax if incomes exceed $350,000 if single, $500,000 if married;
- Requires State to acquire shares of specified corporations (i.e. GM, Ford, ExxonMobil, etc.) to influence environmental practices.

The initiative's sponsor, one Paul McCauley, notes that, "This act proposes to restore a measure of balance in wealth between persons living in California, to salvage the global ecosystem from ongoing destruction and to restore public supervision and influence over the nation's largest financial institutions."

First, the proposed initiative is almost certainly unconstitutional as it restricts interstate commerce. Only the federal government can do that; an exit tax (taxing me if I move to, say, Nevada) obviously imposes a restriction on interstate commerce. Further, the initiative appears to me to violate California's rules that an initiative can only cover one subject.

If somehow Mr. McCauley obtains the signatures needed to place this on the ballot—I'm hopeful that he'll be unable to find 694,000 Californians who want to destroy the state's economy—I can't imagine this initiative passing.

What liberals should consider is that without industry there can be no government revenues. Instead of increasing tax rates California needs to drastically cut tax rates. I don't see that happening yet that's the real solution to our budget crisis. Frankly, should Mr. McCauley's initiative get approved and be found constitutional (a very unlikely prospect), California would go bankrupt as any individual who has such high funds would leave the state (good luck to the FTB trying to collect such funds), venture capital would leave the state, and Arizona, Nevada, Oregon, and Colorado would find themselves with a lot more industry than they currently have.


Hat Tip: Tax Foundation Blog
Good Summary of Hyatt Case
The Las Vegas Review-Journal has published an excellent summary of the Gilbert Hyatt case and judgments.

Mark Hutchison, Mr. Hyatt's lead attorney, believes that the Franchise Tax Board will appeal the case. (I agree with him that the case will be appealed.) He's quoted by the Review-Journal,
[The verdict] sends a clear message that government abuse and over-reaching will not be tolerated by Nevada citizens...I think the message is: If you are going to audit Nevada residents, you had better do so in a fair and impartial manner and not be results-oriented in seeking to grab money from Nevada residents.

Mr. Hyatt was also interviewed by the Review-Journal, and noted that the FTB's original claim against him (that he was a California resident beyond September 1991) will be reviewed by the California Board of Equalization within two years.

My thanks to reader Darren Hankel to alerting me to this article.
This Week for the Budget? I Don't Think So
California Assembly Speaker Karen Bass told the Wall Street Journal that she expects to reach a budget compromise this week. I doubt it.

The Democrats are still only arguing to increase taxes. Republicans in the Legislature vow that's not going to happen. Democrats, including Speaker Bass, say that there's no spending left to cut because of previous cuts; Republicans say that there's plenty left to cut and that the Legislature needs to implement permanent spending restrictions.

Does that sound like there's a compromise that's imminent?
$396.08 Million...and the Meter Is Still Running
A Las Vegas jury told California's Franchise Tax Board in no uncertain terms that the FTB's conduct towards Gilbert Hyatt was reprehensible. I had speculated that the jury would award Mr. Hyatt $250 million in punitive damages; that was exactly how much he received.

Mr. Hyatt had accused the FTB of several torts, including invasion of privacy, outrageous conduct, abuse of process, fraud, and negligent misrepresentation. Earlier, the same jury had awarded $138.8 million in actual damages.

Bill Leonard, a member of California's Board of Equalization, said that the FTB spent $8.8 million fighting this case to date. If we add that, the $138.8 million of actual damages awarded earlier, and the punitive damages, the total is $396.08 million. Meanwhile, California has yet to receive any of the $7.4 million it assessed Mr. Hyatt (which is now nearly $50 million including penalties and interest). Mr. Hyatt is still fighting that decision.

Interestingly I could only find one news report on this story (the Sacramento Bee story I've linked to)—a story that is perhaps one of the most significant tax stories of the year. Mr. Hyatt's lead counsel, Mark Hutchison, told the Bee, "Government agencies should pause and reflect on the significance of this verdict." Mr. Hyatt noted, "[I hope] this will prevent other taxpayers from going through the same nightmare that I have had to endure for over a decade."

The Bee story quotes the FTB's former lead auditor, Brian Toman: "As far as I know, and I've been around a long time, there has never been an award of tort damages against the Franchise Tax Board in any kind of audit." Well, there's a good reason for that—Californians cannot sue the FTB for tort damages. California law grants state agencies sovereign immunity from lawsuits such as Mr. Hyatt's (§860.2 of the Government Code). As noted in my previous post, Mr. Hyatt was able to sue because the actions the FTB took occurred in Nevada.

I fully expect the FTB to appeal the decision though officially no decision has been made. Interest will accrue to Mr. Hyatt during any appeal, so the total could easily exceed half a billion dollars. In the meantime it will be interesting to see if the FTB auditors realize that there is a line that shouldn't be crossed.
Even Pot Growers Need to Pay their Taxes
Medical marijuana is a complex subject. California voters passed an initiative legalizing it; the federal government says its still illegal under federal law. I'll let the attorneys battle that one out.

However, whether medical marijuana is legal or illegal doesn't impact the tax situation for a grower. Illegal income is just as taxable in the United States and California as legal income. And that's where our story begins.

Edwin Hoey pleaded no contest last year to possessing and selling "hundreds of pounds of pot." He has now been arrested on five charges of filing a false state income tax return.

Mr. Hoey's attorney, Ben Rice, is quoted by the Central Coast Sentinel, as stating, "This gray area is very gray, very dark and it's hard for people who want to do this exactly the way they're supposed to...It's hard for people to know how to do it... Hoey has paid his taxes and he's prepared to rectify his tax statements but it's really difficult to know how to do that."

I hate to tell Mr. Rice, but I think he's very wrong here. Mr. Hoey was conducting a business. It's pretty simple: add up all your income, subtract your expenses, and you've got your net income. Perhaps it was hard for Mr. Hoey to include his illegal income on his tax return but it's the law.

Mr. Rice also complained that the government is getting a second bite at the apple. But tax charges are different from drug charges—it's not double jeopardy.

And I have even more bad news for Mr. Rice and Mr. Hoey. It's quite possible that the IRS will take a look at this case, too. The IRS and the Franchise Tax Board (California's state income tax agency) share information.

So if you decide to get in a business that's in a gray area (or even one that's over the line) do make sure to file and pay your taxes.
$146.88 Million and Counting
Back in October 1991 Gilbert Hyatt moved from California to Nevada. California's Franchise Tax Board didn't think he did, so they commenced a residency audit. California determined that Mr. Hyatt didn't establish residency in Nevada until April 1992. Normally, six months wouldn't be a big deal; however, Mr. Hyatt had invented a microprocessor and received a substantial amount of income during that time period. California assessed $49 million in taxes.

Mr. Hyatt fought the judgment through administrative appeals. He also wasn't happy about the methods the FTB used to investigate him. Mr. Hyatt filed a lawsuit against the FTB in Nevada, alleging
...that [FTB] directed “numerous and continuous contacts … at Nevada” and committed several torts during the course of the audit, including invasion of privacy, outrageous conduct, abuse of process, fraud, and negligent misrepresentation.
The FTB fought the case, arguing that they were immune from being sued. (As an aside, had the actions that Mr. Hyatt alleged took place in California, the FTB would be immune.) The case went all the way to the US Supreme Court; the Court ruled unanimously that the FTB could be sued in Nevada. The case was remanded back to the Nevada District Court for trial.

The first phase of the trial ended last week, and the FTB suffered a ringing rebuke. According to Bill Leonard's Leonard Letter, Mr. Hyatt prevailed on every claim and was awarded $137 million in damages plus $1.08 million in legal fees. The jury is now looking at potential punitive damages which could easily be another $400 million or so.

What did the FTB do? From the Leonard Letter:
Tax agents rummaged through his trash without warrants, visited business partners and doctors, and shared his Social Security Number and other personal information with the media. This is outrageous behavior and I call on the FTB to rein in their agents. What really galled me is the FTB testified in open court that this level of harassment was only a typical audit. If true, then the stormtroopers are alive and well at the FTB.
I have little to add to what Mr. Leonard stated. And he should know; Bill Leonard is an elected member of California's Board of Equalization. The BOE hears administrative appeals on FTB cases after an individual (or organization) exhausts appeals at the FTB.

What's the cost to California? To date, the FTB has spent $8.8 million fighting Mr. Hyatt. Add the $138.88 million that is now owed to Mr. Hyatt and the total is $146.08 million. If we add another $250 million for punitive damages the total is nearly $400 million. And while Mr. Leonard is hopeful that the FTB won't appeal the case, I am almost 100% certain that the FTB will appeal. Thus, unless the FTB gets lucky in Nevada this case could easily cost California taxpayers over half a billion dollars.

Welcome to the Bronze Golden State....
Another Week, No Budget
No surprise, really, that California still has no budget and frankly there's been no progress. Democrats want to increase taxes, Republicans don't, and neither side is talking to the other.

Yes, things are normal in Sacramento....
Vacation Over; Budget -- What Budget?
As expected California is no closer to a budget today than when I left on my vacation two weeks ago. The Democrats in the Legislature remain convinced that the only solution is new taxes while the Republicans are convinced that the only solution is to cut programs and spending. Meanwhile, Meanwhile, Governor Schwarzenegger proposed a temporary $0.01 hike in the sales tax coupled with spending restraints.

I doubt we'll see a California budget until September at the earliest.