Archive for the ‘Legislation’ Category

We’re Not Gonna Take It…

Saturday, July 21st, 2018

You may have heard that earlier this week four states sued to stop parts of the new tax law from going into effect. The states–New York, New Jersey, Connecticut, and Maryland–don’t like the new $10,000 cap on deducting state and local taxes on federal tax returns. I believe this lawsuit is doomed; there’s no right in the Constitution to allow deducting of such taxes. This isn’t just my opinion; Ilya Somin at the Volokh Conspiracy notes what I think:

They argue not only that the 2017 cap is unconstitutional, but that the federal government has a general obligation to exempt “all or a significant portion of state and local taxes” from the federal income tax. The problem with this argument is simple: nothing in the text or original meaning of the Constitution supports it. To the contrary, the Sixteenth Amendment gives Congress a general power to power “to lay and collect taxes on incomes, from whatever source derived.” There is no mandated exemption for income used to pay state or local taxes. There is also no support for the states’ position in Supreme Court precedent, or in the American constitutional tradition more generally.

The humorous thing (to me) is that blue states normally lead in ‘progressiveness’ of their tax systems (that is, higher rates for individuals earning higher incomes). The cap on deductions will primarily hurt high income individuals. Of course, blue states don’t want out-migration of such high income individuals. Perhaps they might look to lower tax rates. Mr. Somin notes they could remove zoning restrictions. As for this lawsuit, it sounds nice to their constituents but it is almost certainly doomed.

Wayfair and Economic Nexus

Sunday, June 24th, 2018

Last week the Supreme Court ruled in South Dakota v. Wayfair that South Dakota’s law forcing Wayfair, an Internet retailer, to collect (and remit) sales tax to South Dakota (a state that it did not have physical nexus to) was valid. The decision overrides a previous Supreme Court decision called Quill Corp. v. North Dakota). There’s been plenty of excellent coverage on this ruling (see, for example, the Tax Foundation and Kelly Erb). But I’m wondering what this means for income tax and economic nexus.

A few states have passed laws stating that if you have economic nexus to a state you need to file a tax return to that state. California is one such state. Eventually, cases on economic nexus will go through the court system (and with a certainty the US Supreme Court will have the final say). While no one knows how the Court will rule on such cases, there are indications.

From a case called Complete Auto: “The Court will sustain a tax so long as it (1) applies to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services the State provides.” In Wayfair, the Court ruled that “Physical presence is not necessary to create a substantial nexus.”

The key point is noted by Justice Kennedy:

The Court has consistently explained that the Commerce Clause was designed to prevent States from engaging in economic discrimination so they would not divide into isolated, separable units. See Philadelphia v. New Jersey, 437 U. S. 617, 623 (1978). But it is “not the purpose of the [C]ommerce [C]lause to relieve those engaged in interstate commerce from their just share of state tax burden.” Complete Auto, supra, at 288 (internal quotation marks omitted). And it is certainly not the purpose of the Commerce Clause to permit the Judiciary to create market distortions. “If the Commerce Clause was intended to put businesses on an even playing field, the [physical presence] rule is hardly a way to achieve that goal.” Quill, supra, at 329 (opinion of White, J.).

So four questions need to be answered for whether a state can tax a service business conducting no services within that state. Let’s assume there’s a tax preparation business in Nevada that has customers in New York, and New York passes a law saying that if you have any sales to New York residents you must pay New York state income tax and register your business in New York. The questions that must be answered are: Is their substantial nexus to New York, is the tax fairly apportioned, does it discriminate against interstate commerce, and is the tax fairly related to the services that New York provides. We’ll assume the tax is fairly apportioned.

Consider a Nevada tax professional who has one client in New York out of one thousand total clients. Is there substantial nexus? Almost certainly not, and it would be hard to see such a tax passing muster. Thus, some sort of de minimis rule is necessary. Note that in the instant case that the South Dakota law has such a rule.

Consider now a Nevada tax professional who has 200 clients in New York out his one thousand clients. We’ll assume that passes the de minimis hurdle. The two other questions (and I think they’re linked) come into play: Is the tax fairly related to services that New York provides and does it discriminate against interstate commerce?

The first of these questions has two sides. All of the work done here (remember, this is a service business) is being done in Nevada, not New York. That leads to a conclusion that New York income tax is not related to services provided by New York. (However, if New York had a sales tax on services the business would likely need to comply.) On the other hand, the person contracting for the services is a New York resident.

I think the first argument is the better one. The income being earned is based off of work done in Nevada, not New York. Nevada, not New York, has the right to tax its residents on income earned in the state. Because of this, I think that if New York were to tax such income it would discriminate against interstate commerce. (There is an other side to this argument, though. New York can argue that there would be a tax credit available, and that would eliminate the issue. Still, the filing of the return adds to the burden of the Nevada taxpayer, and is an issue.)

That there are two sides to this argument shows that there is no one right answer. In the end, the Courts will end up making the decision about economic nexus and income tax. Indeed, sometime around 2021 I expect a Supreme Court decision on this issue.

Back to the Old Drawing Board

Wednesday, May 23rd, 2018

I’ve written before about certain states’ efforts to get around the new $10,000 cap on state and local taxes that can be deducted on federal tax returns. The IRS announced today they will be proposing regulations later this year on this issue. Here’s an excerpt:

In response to this new limitation, some state legislatures are considering or have adopted legislative proposals that would allow taxpayers to make transfers to funds controlled by state or local governments, or other transferees specified by the state, in exchange for credits against the state or local taxes that the taxpayer is required to pay. The aim of these proposals is to allow taxpayers to characterize such transfers as fully deductible charitable contributions for federal income tax purposes, while using the same transfers to satisfy state or local tax liabilities.

Despite these state efforts to circumvent the new statutory limitation on state and local tax deductions, taxpayers should be mindful that federal law controls the proper characterization of payments for federal income tax purposes.

This is anything but promising for the efforts of California and New York. Words like “circumvent,” “despite,” and “mindful” pretty much tell us how this is going to turn out. If the IRS were going to allow this, the notice would not have such negative words. Instead, it’s all but a certainty that the doctrine of “Substance Over Form” will dictate that these so-called charitable donations are anything but charitable donations and, instead, will be treated as state tax payments on federal tax returns.

The California and New York legislatures would be far better off looking for things to cut in their states’ budgets. I know of a certain railroad in California that could save the state at least $77 billion….

Taxes Matter (2018 Version), Part 1

Thursday, May 3rd, 2018

Those on the left constantly chirp that taxes don’t matter. Those of us who prepare tax returns can state as fact you’re wrong. I moved my business because of taxes and regulations. Here are two other examples from today that illustrate this.

First, the city of Seattle is proposing a new tax on businesses with $20 million in gross receipts (or more): an employee tax of $0.26/employee-hour. Shockingly, Seattle’s largest employer, Amazon.com, has stopped planning on a new 17-story office tower in downtown Seattle. Are the two related? Drew Herdener, an Amazon Vice President told FoxBusiness,

I can confirm that pending the outcome of the head tax vote by City Council, Amazon has paused all construction planning on our Block 18 project in downtown Seattle and is evaluating options to sub-lease all space in our recently leased Rainer Square building.

From the Wall Street Journal comes a headline, “My Clients Are Fleeing NJ Like It’s on Fire.” An excerpt:

That headline arrives via email from a money manager in northern New Jersey. The Garden State already has the third largest overall tax burden and the country’s highest property tax collections per capita. Now that federal reform has limited the deduction for state and local taxes, the price of government is surging again among high-income earners in New Jersey and other blue states. Taxpayers are searching for the exits.

Read the whole thing (note: Pay Link).

For those who say taxes don’t matter, you’re wrong. From small businesses to large taxes absolutely matter.

The Good, Bad, and Ugly of the Tax Extenders

Thursday, 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.

Tax Law Signed; New Year Likely to Bring Lots of New S-Corporations

Friday, December 22nd, 2017

President Trump signed the tax reform legislation into law. While there are many changes for 2018, one of the biggest is the new Section 199a deduction. This allows a 20% writeoff of net income for sole proprietors, owners of S-Corporations, and members of partnerships/LLCs, limited by wages paid (unless income is less than $157,000 (single)). I suspect tax professionals will see lots of S-Corporations in the future.

First, wages paid to owners counts in calculating the Section 199a deduction. Imagine you’re a consultant with income of $300,000 structured as a sole proprietorship. You’re ineligible for the Section 199a deduction (your income is too high). Now, convert to an S-Corp (or an LLC taxed as an S-Corp), pay yourself a reasonable salary (say $80,000), and:
– You get the Section 199a deduction ($44,000); and
– You avoid self-employment tax on a large part of the net income of your business.

Maybe I’m missing something, but for successful businesses there are now two factors leading toward an S-Corporation as the solution. And given the way the deduction is written, reasonable salary likely won’t be an issue—owners have an incentive to pay themselves!

As a reminder, there is no one right form of business entity. Though S-Corporations appear to be an excellent choice based on Section 199a, the choice of type of business entity should always be discussed with your tax professional and attorney prior to selecting it.

Conference Committee Agrees on Details of Tax Legislation; Measure Likely to Pass Next Week

Saturday, December 16th, 2017

The House and Senate conferees did indeed agree on tax ‘reform’ legislation. The bill will make great bedtime reading as it’s only 1,097 pages. The Tax Foundation has a great summary of the legislation. Here are some highlights; note that these provisions are in effect for the 2018 tax year:

– Seven tax brackets for individuals, ranging from 10% to 37%. Mostly, this will result in a decrease in taxes. However, the 35% tax bracket will now begin at $200,000 (single/Head of Household (HOH))/$400,000 Married Filing Jointly (MFJ); the 37% tax bracket begins at $500,000 single/HOH and $600,000 MFJ

– The standard deduction increases to $12,000 single/$18,000 HOH/$24,000 MFJ. However, personal exemptions are eliminated.

– Mortgage interest on home purchases remains deductible, but up to a limit of $750,000 of mortgage debt; however, equity debt is no longer deductible.

– State and local taxes, sales tax, and property tax deduction is limited to $10,000.

– The personal AMT is retained, but the AMT exemption is raised significantly.

– A single corporate tax rate of 21%.

– Pass-through income will be taxed at lower rates via a deduction. This is one area where the specific details matter.

– The corporate AMT is repealed.

– Net Operating Losses can only be carried forward, not backward (limited to 80% of taxable income).

– The individual mandate penalty is repealed, but for 2019 (not 2018). There’s still a penalty, but it’s $0.

– The Mayo decision (allowing the deduction of business expenses for professional gamblers who have losing years) is repealed for tax years 2018 – 2025. There are no other provisions that directly impact gambling in this legislation.

After I read the 1,097 pages (503 pages of legislation and about 500 pages of analysis) I will have more on the legislation.

GOP Tax Proposal Targets Professional Gamblers’ Losing Years

Thursday, November 2nd, 2017

The Joint Committee on Taxation released its new tax proposal, H.R. 1, today. Buried within it is Section 1305:

SEC. 1305. LIMITATION ON WAGERING LOSSES.
(a) IN GENERAL.—Section 165(d) is amended by adding at the end the following: ‘‘For purposes of the preceding sentence, the term ‘losses from wagering transactions’ includes any deduction otherwise allowable under this chapter incurred in carrying on any wagering trans action.’’.

So what does this mean? The Joint Committee on Taxation (JCT) sent out an analysis:

Sec. 1305. Limitation on wagering losses.

Current law: Under current law, a taxpayer may claim an itemized deduction for losses from gambling, but only to the extent of gambling winnings. However, taxpayers may claim other deductions connected to gambling that are deductible regardless of gambling winnings.

Provision: Under the provision, all deductions for expenses incurred in carrying out wagering transactions (not just gambling losses) would be limited to the extent of wagering winnings. The provision would be effective for tax years beginning after 2017.

JCT estimate: According to JCT, the provision would increase revenues by $0.1 billion over 2018-2027.

The JCT analysis is wrong about the current law. Only professional gamblers can take business expenses beyond their gambling winnings to create an overall loss. This is the result of Mayo v Commissioner; Section 1305 would overrule the Mayo decision.

I will have more on this proposal, most likely over the weekend. There’s quite a bit for me to digest. For now, let me state that my first reading of the measure did not leave me feeling good about it.

Trump’s Tax Plan

Sunday, April 30th, 2017

President Trump released his tax “plan.” That’s an overstatement; the plan is really an outline. Gone would be the Alternative Minimum Tax, the Estate Tax, and most itemized deductions; there would be three tax brackets with the top tax bracket at 35%; the corporate tax rate would fall from 35% to 15%; and the top capital gain tax rate would be 20%.

The outline is one page, and is more a statement of goals than anything else. There are definite issues that I have with it in my area of expertise: gambling. And overall the results wouldn’t be good for most gamblers.

For professional gamblers, there would be no direct changes. Professional gamblers report their income on a Schedule C; there’s no change here. However, amateur gamblers could be devastated by the proposal. Consider an amateur gambler who correctly reports his $100,000 of winning sessions and $80,000 of losing sessions. Under current tax law, he pays tax on $20,000 of net winnings (his gambling losses are an itemized deduction on Schedule A). Under President Trump’s plan, he would pay tax on $100,000 of winning sessions; his gambling losses wouldn’t be deductible. This would have a devastating tax impact on gambling.

There is an easy fix for this, and it comes from a state not known for having a good tax system—New Jersey. Add in a Schedule G for gambling, where gambling wins and losses for an amateur gambler would be listed; the net would flow to Other Income where it would be taxed.

The final result of tax reform won’t be known for months, and it’s probable what emerges from Congress won’t look anything like what’s been proposed.

What Will President Trump Do To Our Taxes?

Wednesday, November 9th, 2016

When I woke up this morning I discovered yet another impossible item just happened (the Cubs really did win the World Series, right?). The media was saying that Hillary Clinton was going to be President. Oops. So what will President-Elect Trump likely mean for taxes?

1. John Koskinen will soon be the ex-IRS Commissioner. This is one prediction I’m very confident in. Republicans believe that he is one of the reasons we don’t know who ordered the IRS scandal. President-Elect Trump will ask for his resignation and get it.

1A. We will know the truth behind the IRS scandal within two years.

2. Obamacare will die. Even if Hillary had been elected, it’s been clear that the measure’s days were numbered. From a health care standpoint, I have no idea what (if anything) will replace it. But Obamacare is still unpopular, unworkable, and insane; its loss will be grieved by only a few.

From a tax standpoint, this means that the Net Investment Income Tax could also die, along with the additional Medicare tax. I’m far more confident in predicting the death of Obamacare than guessing what its replacement will be. It’s definitely possible we’ll see the status quo ante come back.

3. A tax reform package will be introduced and gain traction, but the end result will be a compromise. Democrats didn’t win the Senate, but do hold enough seats to filibuster. It’s more likely that we will see business tax reform pass than personal tax reform. However, this will be the best opportunity for real tax reform since the 1986 tax reform.

4. There’s no chance of overall federal tax rates increasing in the next four years. Zero.

5. But there’s also state taxes, and in yesterday’s elections we saw so-called “blue” states generally pass tax increases (California and Maine). We will continue to see small businesses migrate away from high-tax states to low-tax states. There’s a corollary that will be happening: Pie-in-the-sky blue state projects such as California’s train to nowhere will be getting no federal funding. (That train isn’t going to be running in the next four years.) Similar projects nationally will also die.

6. None of this will impact 2016 taxes. In a rare (perhaps unique) intelligent act, Congress changed the tax law for both 2015 and 2016 so we know exactly what 2016 taxes will be.

7. Another major impact will be the Supreme Court. There’s now no chance that Merrick Garland’s nomination will move forward. It’s far more likely a conservative will be nominated for the Court. I’m definitely the wrong person to ask on what the impact will be on this, but this is another certain impact of Trump’s victory. It’s also probable that President-Elect Trump will have at least one other Supreme Court nomination during his term in office.

8. President Obama believes in regulations; President-Elect Trump has publicly stated that for each new regulation two existing regulations will be eliminated.

9. President Obama used executive orders to implement large portions of his agenda. President-Elect Trump has stated he will rescind those orders when he takes office. Most of these do not deal directly with tax policy, but there will be indirect impacts.

Overall, the times are a-changing. We’ll start getting a flavor for the new administration when President-Elect Trump start naming his cabinet officers and other appointments