MauledAgain

Tax fraud by tax return preparers happens much too often, and the IRS lists ”unscrupulous tax return preparers” as one of its “Dirty Dozen” tax scams that taxpayers should be careful to avoid. I have written about tax return preparers who have been charged with, been convicted of, or have pled guilty to various tax fraud crimes, in posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, Tax Return Preparers Putting Red Flags on Clients’ Returns, and When Language Describing the Impact of Tax Fraud Matters.

But is it enough simply to warn taxpayers to be on the alert for suspicious behavior and questionable marketing techniques by tax return preparers? No, it is not. More needs to be done, and has been done. For example, as described in a recent Department of Justice news release, a federal court ordered that a tax return preparer in Illinois, who prepared returns with false information, false deductions, and false credits, who is known by at least two names, and who does business under another name, be permanently enjoined “from preparing returns for others and from owning, operating or franchising any tax return preparation business in the future.” The order permits the federal authorities “to conduct post-judgment discovery to monitor compliance.” It also requires the preparer, both individually and through the business, to notify various individuals, presumably including clients, that the injunction has been entered. The order additionally requires the preparer to advertise the injunction in places where the preparer does business.

The press release noted that during the past ten years, the Department of Justice has “obtained injunctions against hundreds of unscrupulous tax preparers.” The Department tries to help taxpayers avoid having returns prepared by enjoined tax return preparers and tax return preparation businesses by providing an alphabetical listing of these persons and businesses.. Unfortunately, the Department of Justice’s attempts resemble a game of whack-a-mole, as unscrupulous preparers pop up to replace those who are shut down almost as soon as injunctions go into effect. Worse, some enjoined preparers simply open up shop using new names for themselves or their businesses.

It’s nice that the Department of Justice is trying to help taxpayer avoid dangerous tax return preparers, but that is not enough. Taxpayers need to exercise due diligence. In past commentaries I have offered some advice to taxpayers who want to steer clear of fraudulent tax return preparers. In Are They Turning Up the Heat on Tax Return Preparers?, I wrote, “I will simply repeat what I have written several times in the past: ‘The lesson at the moment? Choose a tax return preparer as carefully as choosing a surgeon or child care provider. In other words, do research, talk to friends and neighbors, look at online reviews, and interview the preparer.’” I had shared that advice earlier in More Tax Return Preparation Gone Bad and Another Tax Return Preparation Enterprise Gone Bad. In Need a Tax Return Preparer? Don’t Use a Current IRS Employee, I noted, “[I]t is best to do some background checks and research just as one would do when looking for a physician or roofer.” In When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, I elaborated:

What’s a taxpayer to do? Talk with relatives, friends, and business associates. Ask them to describe their experiences with the tax return preparer that they use. Seek out a tax return preparer who has been preparing the other person’s returns for many years free of problems. Beware of the advice to use a tax return preparer who has been used only once, or even not at all. Look at reviews on various web sites. Google the name of the tax return preparer. If the preparer is a company, ask for the names of its owners and managers, and google those names. If the return that is prepared is “too good to be true,” don’t agree to its being filed, but ask for a copy and take it to another preparer for a second opinion. If it’s good to go, return to the original preparer and approve the filing. If it’s not good to go, file a complaint about the preparer with the IRS, and seek a fee refund from the original preparer.

Because it is unlikely that tax return preparers under indictment and waiting for trial put “under indictment” signs in their windows or “under indictment” tags on their web sites, and because enjoined preparers might not comply with orders to contact clients and put notices at their places of business, it is essential that clients exercise due diligence not only when seeking a new preparer but even when returning to a preparer used in an earlier year.

On at least four dozen times I have written about the need to shift to a mileage-based road fee to fund the repair and maintenance of the nation’s highways, bridges, and tunnels. I have done so in posts such as Tax Meets Technology on the Road, Mileage-Based Road Fees, Again, Mileage-Based Road Fees, Yet Again, Change, Tax, Mileage-Based Road Fees, and Secrecy, Pennsylvania State Gasoline Tax Increase: The Last Hurrah?, Making Progress with Mileage-Based Road Fees, Mileage-Based Road Fees Gain More Traction, Looking More Closely at Mileage-Based Road Fees, The Mileage-Based Road Fee Lives On, Is the Mileage-Based Road Fee So Terrible?, Defending the Mileage-Based Road Fee, Liquid Fuels Tax Increases on the Table, Searching For What Already Has Been Found, Tax Style, Highways Are Not Free, Mileage-Based Road Fees: Privatization and Privacy, Is the Mileage-Based Road Fee a Threat to Privacy?, So Who Should Pay for Roads?, Between Theory and Reality is the (Tax) Test, Mileage-Based Road Fee Inching Ahead, Rebutting Arguments Against Mileage-Based Road Fees, On the Mileage-Based Road Fee Highway: Young at (Tax) Heart?, To Test The Mileage-Based Road Fee, There Needs to Be a Test, What Sort of Tax or Fee Will Hawaii Use to Fix Its Highways?, And Now It’s California Facing the Road Funding Tax Issues, If Users Don’t Pay, Who Should?, Taking Responsibility for Funding Highways, Should Tax Increases Reflect Populist Sentiment?, When It Comes to the Mileage-Based Road Fee, Try It, You’ll Like It, Mileage-Based Road Fees: A Positive Trend?, Understanding the Mileage-Based Road Fee, Tax Opposition: A Costly Road to Follow, Progress on the Mileage-Based Road Fee Front?, Mileage-Based Road Fee Enters Illinois Gubernatorial Campaign, Is a User-Fee-Based System Incompatible With Progressive Income Taxation?. Will Private Ownership of Public Necessities Work?, Revenue Problems With A User Fee Solution Crying for Attention, Plans for Mileage-Based Road Fees Continue to Grow, Getting Technical With the Mileage-Based Road Fee, Once Again, Rebutting Arguments Against Mileage-Based Road Fees, Getting to the Mileage-Based Road Fee in Tiny Steps, Proposal for a Tyre Tax to Replace Fuel Taxes Needs to be Deflated, A Much Bigger Forward-Moving Step for the Mileage-Based Road Fee, Another Example of a Problem That the Mileage-Based Road Fee Can Solve, Some Observations on Recent Articles Addressing the Mileage-Based Road Fee, Mileage-Based Road Fee Meets Interstate Travel, If Not a Gasoline Tax, and Not a Mileage-Based Road Fee, Then What?>, and Try It, You Might Like It (The Mileage-Based Road Fee, That Is).

Throughout this fourteen-year period, opposition to the proposal has been vocal. Some comes from people who agree that using liquid fuel taxes to fund these repairs and maintenance is no longer viable, but they seek to raise the necessary revenue through means that have nothing to do with highways, bridges, and tunnels. Some come from people who fear that the proposed road fee would invade their privacy or pose assorted claimed logistical challenges. Some simply want a “let me use it and make someone else pay” approach.

Recently, in a Politico commentary, former Maryland Secretary of Transportation Pete Rahn proposed generating the funding from a commercial activity surcharge. He is among those who favor abolishing liquid fuel taxes, and though he mentions only the federal gasoline tax, it does not appear he wants to preserve state gasoline and diesel taxes.

But Rahn opposes what he calls the “vehicle miles traveled” tax, or VMT. I prefer the word “fee” because the mileage-based road fee is a fee. It relates directly to usage, which is the hallmark of a fee. Rahn’s opposition rests on two concerns. One is the familiar concern about “personal privacy.” The other is what he calls the “cost of collection.”

Rahn’s concern about personal privacy is his claim that as secretary of transportation in Maryland, he observed “the public’s fear of just using anonymous, aggregated cell phone data for planning purposes.” He thinks that “having the government actually be able to identify a person’s type of vehicle and see where and when it is driven will generate opposition that will not be overcome.” He insists that there are “many people who will not get a transponder to pay tolls for this very reason.” Yet people already are giving that information to authorities. In fact, they are giving far more information than a road fee transponder would generate. Cell phones identify where a person is, even when not in a vehicle. Cameras, which are increasing in number hourly, record vehicles and pedestrians. Though Rahn notes the concerns about opening the door to “Big Brother,” the reality is that “Big Brother” already is here and has been for some time. I debunked the privacy concerns of the sort Rahn raised in Is the Mileage-Based Road Fee a Threat to Privacy?, which I concluded with these words: “Existing technology, such as roadside cameras, credit card receipts for fuel purchases, electronic toll systems such as EZPass, and observations by law enforcement authorities, already provide substantial information concerning the location of a vehicle. Similarly, the location of an individual when in public areas is not a secret. The mileage-based road fee does not generate a significant increase in the revelation of vehicle location information, and does nothing to increase the disclosure of individual location information.”

When it comes to the cost of collection, Rahn argues that shifting from a liquid fuel tax that is collected from 600 fuel distributors to collecting from 263 million vehicles presents a significant increase in the cost of collecting the revenue. He claims that projections setting the cost at 15 percent of revenue is too high, and that the estimated percentage is too low. The track record of existing transponder-based tolling systems, such as EZ-PASS, demonstrates that concerns about collection costs are exaggerated. As I wrote in Once Again, Rebutting Arguments Against Mileage-Based Road Fees, in critiquing a report from another opponent of the mileage-based road fee, “The Glostone analysis claims that the mileage-based road fee “would require every vehicle owner to periodically report distance tax and create a costly new bureaucracy that would have to audit these reports,” and that the “added bureaucracy alone could eat up any gains in tax revenue.” The tracking device reports without any need for owner intervention. Digital technology eliminates the need for the roomfuls of eyeshade-wearing human auditors.”

Instead, Rahn wants to implement what he calls a “beneficiary pays” system. He rests this idea on the existence of people benefit from highways, bridges, and tunnels even though they do not drive or ride on those roads. Of course, he is referring to the “national highway system,” but when analyzing the issue in terms of all highways, the number of people who never drive, ride, walk, or bike on a road is a tiny percentage of the population, essentially those who are spending the rest of their lives homebound, imprisoned, or in care facilities. Yet Rahn’s point that even those folks benefit from the nation’s roads because they receive deliveries of products shipped on those roads makes sense. The question is whether it makes enough sense to absolve actual users of any funding responsibility.

Rahn proposes a surcharge on commercial activity “on U.S. streets and highways of approximately 8 percent.” To what would he apply the 8 percent surcharge? It would apply to “what that company charges their customers for transportation services.” Right there is a big problem. Many companies already offer “free shipping” to all or certain customers, but guaranteed these companies are making this up in other ways, such as the prices charged for their products. So perhaps Rahn is thinking about imposing the surcharge on what companies pay to ship goods, but that would require far more collection activity than an EZ-PASS type transponder system would. For someone concerned about the cost of collection for a mileage-based road fee, Rahn doesn’t hesitate to treat the cost of computing and collecting the proposed surcharge as worthy only of a comment about companies that do their own shipping. Not only would trying to do the complex cost accounting of allocating driver salaries, manager salaries, benefits, and other outlays create a new expense, companies would play all sorts of games to minimize what gets included in “cost of shipping.”

Note that Rahn shifts from focusing on the “national highway system” in part of his commentary to “U.S. streets and highways” when describing the proposed surcharge. Though he proposes factoring the cost of rail, vessel, and air shipping out of the amount to which the surcharge would apply, yet another complex cost accounting task that would add to the cost of collection of the surcharge, he doesn’t propose dividing the shipping costs subjected to the surcharge between those applicable to use of federal highways, bridges, and tunnels, and those applicable to use of state and local highways, bridges, and tunnels. Does he propose to allocate some of the surcharge revenue to states and localities? Does he envision abolition of state liquid fuel taxes? Does he contemplate putting all highway, bridge, and tunnel repair and maintenance within the scope of the proposed surcharge?

Rahn claims that the proposed surcharge “more directly aligns the cost of maintenance and improvement with the benefit.” However, that approach ignores the fact that the wear and tear on a highway varies according to the weight of the vehicle, yet the proposed surcharge does not adequately take that difference into account. The mileage-based road fee does, because it is tied directly to the vehicle and adjusted for weight.

The worst part of the proposal is the free ride that it gives to people who would use highways, bridges, and tunnels for personal purposes. Though Rahn might argue that these folks would be paying through the passing on to them of the surcharge imposed on millions of businesses, not everyone makes the same use of product shipping, and that use is disproportionate to the total use people make of highways even taking into account what I call indirect use, that is, the use made by others in order to deliver goods to people.

Rahn’s proposal technically is a “user fee” because it relates to use of roads, highways, and bridges. However, it measures use in a convoluted way, focusing on shipping costs, which are not directly proportional to actual use. And it leaves out use that is unrelated to product shipments. In other words, Rahn has offered, as many do, a theory that cannot hold up to practical reality.

Reader Morris pointed me to this story and asked, “Does this Councilman and financial advisor make any sense with his reasons for being behind on his tax payments? To understand the question posed by reader Morris, it is necessary to get some background.

According to the story, Memphis, Tennessee, City Councilman Martavius Jones supports a property tax increase, but is delinquent in paying at least $5,500 in property taxes to Memphis and Shelby County. The tax increase was voted down by the city council. Before the meeting at which the vote was taken, a reporter from WREG asked Jones if he was “up to date” on his tax payments, and Jones replied, “No, I’m not.” The reporter then asked, “Ok, so how can you ask people to pay more money if you’re not up to date?” Jones replied, “Because I’m paying interest on that so at the end of the day, they will receive more money from me than what was originally allocated to me.” When asked why he is behind on his tax payments, Jones would not answer. Instead he admitted he was delinquent, promised to write a check the upcoming Friday, and repeated, “But it will be more money that I’m paying to the city based on what’s expected of me.” According to the story, This was the third time WREG questioned Jones about being delinquent, the other two occurring in 2016 and 2018. Jones is a financial advisor who said “he would advise his clients to be behind on their taxes so they’re paying interest, [b]ecause it can be a tax write off for individuals.”

So why has Jones been late paying property taxes? My guess is that he thinks it is financially advantageous to delay paying the tax, and then pay even more money in the form of interest. Why would he think that? The interest rate, according to the City of Memphis web site is 1.5 percent per month, or 18 per cent annually. So someone thinking that it makes sense to delay paying the taxes seems to be concluding that it makes less sense to pay $100 today and more sense to pay $106 four months in the future. That conclusion is logical if the person can earn more than $6 on the $100 during the four-month period. That is almost impossible to do without gambling, either in a casino or in the stock market.

Perhaps Jones thinks his delay advice works because of his claim that the interest paid by his clients is a “tax write off.” So let’s take a look at section 163 of the Internal Revenue Code. Subsection (a) tells us “General rule -- There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness.” But wait! Subsection (h), paragraph (1) tells us, “(h) Disallowance of deduction for personal interest -- (1) In general -- In the case of a taxpayer other than a corporation, no deduction shall be allowed under this chapter for personal interest paid or accrued during the taxable year.” What (a) gives, (h)(1) takes away. But paragraph (2) of subsection (h) gives back the deduction for six types of interest: trade or business interest, investment interest, interest taken into account in computing section 469 passive income or loss, qualified residence interest, interest payable on delayed federal estate tax payments, and education loan interest. Does the interest that Jones and his clients are paying on delinquent real property taxes fit within any of these six exceptions? Clearly the interest is not trade or business interest, it’s not taken into account in computing section 469 passive income or loss, it’s not interest on delayed federal estate tax payments, and it’s not education loan interest. That leaves two possibilities. Is it qualified residence interest? A careful reading of paragraph (3) of subsection (h) makes it clear that the tax debt is not qualified residence interest. Is it investment interest? A careful reading of paragraph (3) of subsection (d) makes it clear that the interest on the tax debt might be investment interest if the property is investment property, which a personal residence is not. But even if the interest on the tax debt qualified as investment interest, under section (d) it is deductible only to the extent of investment income. So it’s a wash.

So, sure, if someone thinks they can earn more than 18 percent on the money that they would otherwise use to pay their property taxes on time, they can take that risk. But in most instances, that gamble will fail. Wait long enough, and the taxpayer then needs to bear the cost of the ensuing administrative procedures and even litigation triggered by the delinquency, including foreclosure sale of the property.

In the end, we don’t know why Jones delays paying his property taxes. Perhaps he has a cash flow problem. Perhaps he forgot. Perhaps he thinks there is a financial advantage. Perhaps he advises clients to delay payment. Perhaps not. We just don’t know.

It is unsettling when tax collectors and heads of state revenue departments go rogue. I have written about charges brought against some tax collectors in posts such as A Reason Not to Run for Tax Collector (or Any Other Office)?, Perhaps Yet Another Reason Not to Run for Tax Collector, Running for Tax Collector (or Any Other Office)? Don’t Do These Things, When Behaving Badly as a Tax Collector Gets Even Worse, Tax Collector Behaving Badly: From Even Worse to Even More Than Even Worse, Bribing the Tax Collector: Bad Outcomes on Both Sides of the Deals, When Tax Collectors Do Too Many Things, So Who’s the Worse Tax Collector? , So Is There Now a “Worst Tax Collector” Contest?, and Can Long-Term Tax Collector Embezzlement Be Prevented?. Recently, in Fighting Fraud Even More Difficult When Tax Leadership Succumbs, I wrote about the embezzlement conviction of the former New Mexico Secretary of Taxation and Revenue.

Though tax collectors and revenue secretaries who succumb to the temptation to commit tax fraud, embezzlement, and similar crimes get big headline attention, the problem is a much deeper one. For example, last week, according to this report, a retired compliance supervisor for the Virginia Department of Taxation has been arrested and charged with embezzling almost $1.3 million and with computer trespass. Officials of the state’s Inspector General’s office spent a year looking into information provided by the Department of Taxation after it had done an internal investigation. Allegedly, two employees of the department gave the supervisor “access to the department’s computer systems and ‘confidential taxpayer accounts.’” The Inspector General did not reveal how that embezzlement was implemented, probably to avoid giving a blueprint to others thinking about engaging in the same sort of behavior. According to the report, the retired supervisor repaid about $250,000 of the embezzled funds. Attempts to determine how long the supervisor had worked for the department were thwarted by restrictions on the disclosure of personnel information other than name, position, job classification, and salary.

This case is troubling. Though diligent investigation, both by the department and then by the Inspector General, uncovered the theft, one wonders how many other incidents, in Virginia and elsewhere, go undetected. The key is prevention, and yet it seems that steps can be taken to prevent one person from single-handedly doing something wrong, when two or more employees are in cahoots, the protection schemes break down. For example, designing a safe so that two individuals with two different keys rather than one individual can open it prevents unauthorized entry by one individual, the protection arrangement breaks down if the two individuals decide to collaborate. Though a two-person requirement reduces the chances of mistake, it relies on the assumption that at least one of the duo is a safeguard against malicious behavior by the other. Yet history teaches that conspiracies often extend far beyond two individuals. The problem extends far beyond taxation and revenue department embezzlement, and poses a challenge that has yet to be successfully and pervasively answered.

One would think that tax return preparers would read the news, and after seeing the parade of tax return preparers charged with, convicted of, and pleading guilty to various tax fraud crimes, decide to refrain from engaging in the preparation of fraudulent returns. A small sample of these situations has been addressed by me in posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, and Tax Return Preparers Putting Red Flags on Clients’ Returns.

What caught my eye in the latest tax return preparer sentencing story to come my way wasn’t the fact that the preparer was caught, charged, convicted, and sentenced, nor the details of what the preparer did, because those were pretty much similar to what most other convicted preparers had done, but a sentence in the story. The sentence stated, “In total, Santa Ana caused a tax loss of at least $2.9 million to the IRS.” Curious, I tried to find the Department of Justice press release for the sentencing, but failed. What I did find was the Department of Justice press release describing the preparer’s guilty plea. That press release turned out to be the source of the words in the sentencing story. The press release stated, “In total, Santa Ana caused a tax loss of at least $2.9 million to the IRS.” I’m not sure why I hadn’t noticed this language in earlier Department of Justice press releases. But this time I did.

So why did this catch my eye? For me, describing the loss as a loss to the IRS fails to make clear to all taxpayers that the loss is a loss to all taxpayers, and to the nation. The IRS is simply a funnel that collects tax revenue and transmits it to the Treasury for disbursement. The Department of Justice news release hinted at this when it quoted Acting U.S. Attorney Christopher Chiou, who stated, ““Our office is committed to working closely with the IRS Criminal Investigation team to investigate and prosecute unscrupulous tax preparers who take advantage of law-abiding taxpayers and cause tax losses to the IRS.” Indeed, tax return preparers who commit fraud, along with taxpayers who commit fraud and tax advisors who help plan fraud, are doing more than taking advantage of compliant taxpayers. They are harming compliant taxpayers, and themselves, by reducing planned expenditures for defense, road repair, disease control, air safety, and a long list of additional services funded with taxes.

In an earlier Department of Justice press release reminding taxpayers of their reporting obligations, explaining why tax return preparers should be chosen carefully, and listing some cases in which taxpayers and preparers had been successfully prosecuted, the same Christopher Chiou explained, “Tax offenses are neither victimless nor without consequence, as taxes are how governments provide essential services.” To some extent, that relieved my concern that there is an institutional sense that it is the IRS that loses when there is tax fraud. But I think that if the boilerplate language in press releases was changed from “[defendant] caused a tax loss of at least [dollar amount] to the IRS” to “[defendant] caused a reduction of at least [dollar amount] in essential services provided by the federal government,” the news outlets publishing reports about the charge, conviction, guilty plea, or sentencing would likely pick up this proposed revised language just as they pick up the existing language. This, in turn, would reach the public, who might not be very concerned, and might even be happy, to read that the IRS lost money, but who might be more motivated to engage in compliance and refrain from engaging in, or helping others engage in, activities that harm the common good. Changing that language is an easy fix, costs little to nothing, but would have a significant impact on taxpayer attitudes and reactions.

Update: Reader Morris found an IRS news release describing the sentencing. Interestingly, the news release quoted Special Agent in Charge Albert Childress of IRS Criminal Investigation as stating, "Santa Ana defrauded the U.S. of at least $2.9 million dollars when she knowingly prepared fraudulent tax returns on behalf of her clients. She harmed both her clients — who remain responsible for paying the correct amount due and owing for each of these tax years — and the people of the United States as a whole." That language best describes the impact of tax fraud, specifically, that it is not a matter of an IRS loss but a harm to the nation and the people of the nation as a whole. Incorporating that language into the press releases dealing with individuals pleading guilty to, or convicted of, tax fraud would be very helpful in letting Americans know why tax fraud is dangerous.

Tax fraud has always existed. Like many of society’s ills, its incidence is climbing. Though now and then I have written about a taxpayer convicted of tax fraud, it has become so common that I have ignored all but the most notorious. Instead, I have focused on fraud and other illegal behavior among those obligated to provide a level of defense.

That is why I have written at least 20 posts about tax return preparers involved in fraudulent tax return preparation, false tax return filings, and other tax noncompliance activities. These posts include Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, and Tax Return Preparers Putting Red Flags on Clients’ Returns.

That also is why I have given attention to charges brought against some of those serving in yet another line of defense against tax fraud, specifically tax collectors. I have described the woes of several in posts such as A Reason Not to Run for Tax Collector (or Any Other Office)?, Perhaps Yet Another Reason Not to Run for Tax Collector, Running for Tax Collector (or Any Other Office)? Don’t Do These Things, When Behaving Badly as a Tax Collector Gets Even Worse, Tax Collector Behaving Badly: From Even Worse to Even More Than Even Worse, Bribing the Tax Collector: Bad Outcomes on Both Sides of the Deals, When Tax Collectors Do Too Many Things, So Who’s the Worse Tax Collector? , So Is There Now a “Worst Tax Collector” Contest?, and Can Long-Term Tax Collector Embezzlement Be Prevented?.

Now comes a report that the former New Mexico Secretary of Taxation and Revenue, Demesia Padilla, has been convicted of embezzling more than $25,000 from a client of a separate business she was operating while she served in the governor’s cabinet. She also was convicted of computer access with intent to defraud or embezzle. She managed to shift the money from her client’s bank account by linking her credit card to that account. She claimed that the company ceased to be her client when she was appointed to the cabinet, but her husband signed off on the client’s tax returns for several years thereafter. It is unclear if the company became the client of the husband or if he was a tax return preparer.

According to another story, in 2016 state prosecutors initiated an investigation into allegations that Padilla ordered department employees to terminate an audit of one of her former clients. Though what happened to that investigation is unclear, it appears that charges related to the allegation were either dropped or dismissed.

When taxpayers see officials treating the law with disdain, they face even greater temptation to follow the “if they can do it, so can I” philosophy of dealing with obligations. It’s bad enough that tax return preparers assure taxpayers that what is happening on a fraudulent return is not a problem, but when public officials responsible for the appropriate administration of the tax laws, whether they be tax collectors or a cabinet secretary overseeing the entire state revenue department, public confidence in government is further eroded. It makes it even more difficult to teach noncompliance and to shape a culture that treats tax fraud as unacceptable. As a nation, we can do better, and if we don’t, we might end up with a nation in even more dire straits.

Two and a half weeks ago, in Who Benefits from a Philadelphia Parking Tax Reduction?, I criticized the claim that a proposed decrease in the Philadelphia parking tax would be “a handout to wealthy parking garage magnates.” I explained that the way the tax is computed and collected would cause the reduction to be reflected in the amount paid by patrons of parking facilities and would not increase the net income of the proprietors. I also explained that the decrease would not cause an increase in the use of the parking facilities sufficient to generate any significant in parking revenue. I noted that “My point isn’t that the parking tax should be reduced, or should not be reduced, or should be increased,” but that my “point is that when arguments for and against changes in the parking tax are lined up, ‘handouts to the wealthy’ should not be on the list.” I also stated that, “Coming from someone who opposes tax breaks for the wealthy, that might seem surprising, but my point is that reducing the parking tax paid by vehicle owners, very few of whom are wealthy, is not a tax break for the wealthy. It’s a tax break for drivers of all economic groups.”

Now comes news that the proposal to reduce the parking tax has been withdrawn by the City Council member who had submitted it. The goal of the proposed legislation was to encourage parking facility owners to increase their employees’ wages, though it is unclear how reducing the amount of tax funneled from drivers to the city would encourage wage increases. Nor can City Council legally mandate increased wages for those employees. Reportedly two parking facility companies had agreed to some sort of promise to increase wages but writing that into tax decrease legislation was not possible. The abandonment of the Council bill was in response to opposition from “progressives, who said the companies shouldn’t need a tax break to pay living wages, and from urbanists who favor dense neighborhoods and oppose car-centric infrastructure.” Other reports allege that the proposal was abandoned when other parking facility owners would not agree to the wage increases.

Does it matter why the proposal failed? Perhaps. The reaction of various constituencies to the proposal can inform anyone who crafts a future proposal designed to reduce taxes, or increase wages, or otherwise regulate parking in the city. For the moment, though, the issue now sits on a back burner, a very far back burner.

A recent Bloomberg article has drawn attention to the question of how rural broadband access should be funded. Although almost everyone living in urban and suburban areas has access to broadband at home, the percentage of individuals who have home broadband service in rural and tribal areas is low.

To deal with this issue, about twenty years ago, Congress imposed a percentage fee on the revenues derived by telecommunications companies from their users for interstate and international calls. This fee is passed on by the companies to their customers. Verizon tags this portion of its bills as the “Federal Universal Service Fund charge.” Some states also have enacted similar fees. As a practical matter, the fee is being passed on mostly to low-income customers who cannot afford to drop landline service and shift to more expensive alternatives.

Because the fee is imposed on telecommunications companies but not on internet-based communications, as landline usage dropped and internet-based messaging increased, the telecommunications revenues subject to the fee have dropped from roughly $72 billion in 2010 to about $47 billion in 2019. To maintain revenue from the fee, the fee increased from 6.8 percent of revenue to 31.8 percent. It isn’t difficult to predict that the revenues subject to the fee will continue to drop and the percentage will need to increase. This, however, is an untenable situation. Though Congress enacted an emergency broadband program that provides $50 monthly subsidies to several million households, that program will run out of funds in a few months.

There are many reasons that it is in the national interest, including national security, that broadband access needs to be available to everyone. The cost per person to bring broadband access into rural and tribal areas is far higher than it is in urban and suburban areas. If the private sector relied solely on the market, broadband access would not reach rural and tribal areas because the cost would be prohibitive for most residents of those areas. Thus the implementation of the universal service fund and its fees.

Why did Congress choose to impose a fee on telecommunications companies to provide broadband access? After all, as one member of the FCC, which administers the fund, stated, “That’s like taxing horseshoes to pay for highways.” True, it’s technically not a tax, but even if he had said, “That’s like imposing a fee on horseshoes to pay for highways,” the point would be well taken.

Some have proposed that a tax should be enacted that would be paid by “companies such as Amazon, Google and Netflix.” The justification is that these businesses benefit from the internet and pay almost nothing. But are they the only businesses that benefit from the internet? More specifically, are they the only companies that benefit, or would benefit, from an expansion of internet access in rural and tribal areas? Of course, the trade group that includes the big online companies consider this proposal to be a punishment of “innovative, high-quality streaming services.” Proponents argue that bringing these companies within the scope of the fee would reduce the percentage to less than 5 percent.

Others have suggested that Congress should simply appropriate funds from general revenues. Opponents point out that this would probably subject the subsidy to the vagaries of budget approvals and funding disputes.

The solution isn’t easy to find. As Doug Brake, director of broadband and spectrum policy at the Information Technology and Innovation Foundation, noted, “Really almost any proposed source of funding is going to be controversial.”

A possible workable solution is for Congress to appropriate funds to bring broadband service to rural and tribal areas, and then to require companies that derive revenue from rural and tribal customers to pay a percentage of that revenue to replenish the funding. That percentage would be very low, probably even lower than the 5 percent projected by proponents of taxing internet companies. That’s because it also would include companies that would be able to reach, and sell to, customers in rural and tribal areas. Of course, all of these companies would then pass the fee along to their customers. If they were required to pass the fee along to all customers, and not merely to the rural and tribal area customers because that would shift the cost to those unable to fund the full cost of broadband expansion, the arrangement would be very similar to a tax. In other words, broadband users everywhere who do business with companies collecting revenue from rural and tribal areas would be paying a fee for something they might think they are not using. This was one of the principal objections raised when the universal service fund was implemented. The answer to this objection is that everyone benefits if everyone has broadband access and, similarly, everyone loses if there are people without broadband access. In an era when information dominates the marketplace, and rapid distribution of information is essential, letting everyone know of impending severe weather, other emergencies, and national security related alerts is essential.

So, no, a tax is not the answer to the broadband access funding question. The answer is a fee, a fee imposed not only on the rural and tribal individuals and businesses who use rural and tribal broadband infrastructure, but also on all other broadband users, who benefit from the fact that rural and tribal individuals are brought into the broadband network.

Last week, reader Morris directed my attention to an article analyzing H&R Block stock from an investment perspective. The article quoted Jagjit Chawla, general manager of Credit Karma’s tax business, who had stated, in a 2018 Barron’s article, that tax “is just a math problem. It’s numbers in and numbers out. And rules for that are calculated and defined by the IRS.”

Reader Morris then commented to me that, “I believe you have mentioned in your blog and in your emails that Taxes Aren’t ‘Just Numbers’.” He is correct. I have written about the “non-numerical” aspects of taxation multiple times. I have done so to dispel the absurd notion that “tax is just numbers” and to share how I tried to allay the fears of law students who, at the beginning of the basic federal income tax course, expressed fear because they claimed that they were “mathphobic,” “math deficient,” or “not good with numbers.” I share here some of the examples I have provided as proof that tax is much more than numbers:

In Don’t Tax My Chocolate!!!, I examined whether large marshmallows are food exempt from the Pennsylvania sales tax or candy to which the sales tax applies. In Halloween and Tax: Scared Yet?), I focused on the dilemma of whether candy bars made with flour are candy subject to the sales tax or baked goods exempt from that tax. In Halloween Brings Out the Lunacy, I addressed whether pumpkins are food exempt from the sales tax. In Why Tax Practitioners Must Be Good With Words, and Not Just Numbers, I discussed a case in which the issue was whether aircraft hangars were exempt from property taxation under a provision that exempted any “building used primarily for . . . aircraft equipment storage.” In Pets and the Section 119 Meals Exclusion I shared the challenges of deciding whether the section 119 exclusion for meals applied to food purchases by the taxpayer for a pet. In Who Is a Farmer? A Taxing Question?, I discussed the issue of who qualifies for a New Jersey real estate property tax limitation applicable to land actively devoted to agricultural or horticultural use.” In Tax Meets the Chicken and the Egg, I explained how a property tax exemption for “all poultry” and a property tax exemption for “raw materials of a manufacturer” required a court to determine whether chicken eggs constitute poultry and whether hatching and raising chickens constitutes manufacturing. In When Tax Isn’t About Numbers: What is a Bank?, I explained the challenges of determining whether a particular entity qualifies as a bank. In Taxes, Strip Clubs, and Creativity, I commented on the attempt by a New York strip club to avoid sales taxes by arguing that its dancers were providing therapy to its customers, and thus the amounts it charged customer fit within the sales tax exception applicable to amounts paid for massage therapy or sex therapy. In Tax Question: What Is a Salad?, I described how the Australian Taxation Office gave up trying to define “salad” for purposes of the goods and services tax exemption for fresh salads, sharing the comments of a representative of that office who noted, “It depends on what you define a salad as. Some may define it as a bowl of lettuce, some may define it as a BBQ chicken shredded up with three grains of rice on it. I'm not trying to be facetious... there [are] a range of products that are very, very different that are marketed as salads." In Another One of Those Non-Arithmetic Tax Questions: What Is a Sport?, I shared the challenges faced by the English Bridge Union when it took the position that for purposes of applying the value-added tax on competition entry fees, which exempted fees paid to enter sports competitions, bridge is a sport. In Getting Exercised About A Sales Tax Exercise Exception, I pondered whether yoga constituted exercise for purposes of the New York City sales tax that applies to sales of services by weight control salons, health salons, gymnasiums, Turkish and sauna bath and similar establishment. In Not That More Proof Is Needed, But Here’s Another Example That Taxes Aren’t “Just Numbers”, I described how the resolution of a tax dispute turned on whether a youth hostel was a hotel for purposes of the Philadelphia hotel tax.

Anyone who knows anything about taxation knows that tax involves much more than numbers. Thus, when reader Morris then asked, “Is the general manager's description of the tax business accurate?” the answer is a resounding “No.”

What reader Morris did not ask was whether Chawla’s claim that the “rules for that [tax computation] are calculated and defined by the IRS.” That’s another error. The rules for defining what is subject to taxation and for computing the amount of tax are provided by the Congress. Again, anyone who knows anything about taxation knows this. I have written about this misperception, which originates in deliberate lies, in posts such as Is Public Truly Getting IRS-Congress Distinction?, If Congress Says So, Don’t Blame the IRS, Taxes and Anger, and It’s Not the IRS, It’s the Congress.

So how does a manager of a large company’s tax division manage to goof on two major core principles of taxation? Curious, I did a bit of research, and found his education and work experience on several sites. The one that I found with the most information was this profile on SignalHire. According to this profile, Chawla recently left Credit Karma to join Facebook. His education is listed as a Bachelor of Engineering at Punjab Engineering College, a Master of Business Administration at HEC Paris, and a Master of Business Administration at Indian School of Business. Surely tax is not in the curriculum of an engineering college. At HEC-Paris, tax is not listed as one of the core courses, nor does it appear in this list of its electives. Nor could I find any tax courses in this list of courses at the Indian School of Business. As for experience, his list of positions consists of software engineer at Infosys Technologies in Bangalore, India, software engineer at Adobe Systems in San Jose, California, product manager at Google in Mountain View, California, director of product management, then senior director of product and general manager of tax, and then vice president and general manager of tax and savings at Credit Karma in San Francisco, California, and now director of product management at Facebook in Menlo Park, California.

So I wonder how the question of whether a transfer of money from one person to another is a loan, a gift, or compensation would be reduced to numbers by a software engineer and product manager. I wonder how the question of whether chicken eggs constitute poultry would be reduced to numbers by a software engineer and product manager. I wonder how many people read the quote in Barron’s or its republication in SeekingAlpha and came away thinking that tax is just numbers and the IRS makes the tax rules.

A recent Tax Court case, Holliday v. Comr., T.C. Memo 2021-69 [to see the full opinion, go to the case docket, scroll down to item 36, and click on that link], addressed the tax treatment of a legal malpractice award. In March 2010, the taxpayer’s then husband filed for divorce. The taxpayer retained J. Beverly as her attorney, and after she and the attorney engaged in mediation, she executed a settlement agreement. She objected to the agreement, though it is not clear why she objected to an agreement to which she had agreed and which she had signed. In April 2012, the divorce court entered the decree of divorce. The next month, Beverly filed a motion for a new trial, alleging that the taxpayer received $74,864 less than her equal share of the community estate. That motion was denied. Beverly told the taxpayer he would appeal, but he did not do so.

So in October 2013, the petitioner filed a malpractice lawsuit against Beverly, claiming that his representation constituted negligence and gross negligence and that he breached the duty of fair dealing and his fiduciary duties “by influencing * * * [her] to mediate and enter into a transaction that was not fair to * * * [her] under the circumstances” and by not pursuing an appeal. Later, she amended the malpractice petition to add claims for deceptive trade practices, treble damages, and attorney’s fees. She sought damages for “pecuniary and compensatory losses”, including “damages for past and future mental anguish, suffering, stress, anxiety, humiliation, and loss of ability to enjoy life”, as well as punitive damages and disgorgement of the attorney’s fees she paid in the divorce proceeding, resulting from the malpractice defendants’ conduct. In October 2014 Beverly and the taxpayer entered into a settlement agreement that stated, “while there remain significant disagreements as to the merit of the claims and allegations asserted by the Parties to this lawsuit, the Parties have agreed to compromise and settle such claims and allegations, without any admission of fault or liability on the part of any party.” Beverly and his firm agreed to pay $175,000 to the taxpayer “[i]n consideration for the mutual promises and obligations set forth in this Release”. The parties released each other from all claims related to the malpractice lawsuit “in exchange for the * * * [settlement proceeds]”. All claims included those “of whatever kind or character, known or unknown * * * which * * * [petitioner] may have against * * * [malpractice defendants] arising out of or related to the * * * [malpractice lawsuit].” Beverly and his firm did not admit liability or fault in the settlement agreement, and the parties did not allocate any of the settlement proceeds toward any particular claim or type of damages. The taxpayer received the settlement proceeds of $175,000, from which she paid her malpractice attorney’s $73,500 fee through direct payment to the attorney by the defendants so that she received a check for $101,500.

On her 2014 Form 1040, the taxpayer reported other income of zero, and she acknowledged the receipt of $101,500 through an attached Form 1099-MISC Summary and a “Line 21 Statement” on which she reported “Other Income from Box 3 of 1099-Misc” of $101,500. The Line 21 Statement also subtracted $101,500 with the description “Misclassification of Lawsuit recovery of marital assets”, resulting in total other income of zero. The IRS issued a notice of deficiency, determining that the $101,500 should be included in gross income. After the taxpayer filed her petition in the Tax Court, the IRS reviewed the settlement agreement and amended its answer to also include in the taxpayer’s gross income the $73,500 of her settlement proceeds that were paid to her malpractice attorney.

The taxpayer argued that the settlement proceeds were a nontaxable return of capital because they compensated her for the portion of her marital estate that she “was rightfully and legally entitled to, but did not receive, due to the legal malpractice of * * * [her divorce attorney].” The IRS argued that the settlement proceeds are taxable income because they compensated the taxpayer for the alleged failings of her divorce attorney and are not excluded from gross income. The taxpayer did not make any arguments based on section 104(a), dealing with compensation for personal injury, or section 1041, dealing with transfers of property between spouses incident to divorce.

The court first noted that settled case law provides that “when a litigant’s recovery constitutes income, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee.” It also noted that under settled case law “recovery of capital is not income.” It then explained that whether a payment received in settlement of a claim represents a recovery of capital depends on the nature of the claims that were the basis for the settlement. The question to be decided is, “[I]n lieu of what was the . . . settlement awarded?” The answer is a question of fact, and finding the answer requires looking at the language of he agreement for indicia of purpose, focusing on the origin and characteristics of the claims settled in the agreement. Turning to the agreement in question, the court determined that it made clear that the settlement proceeds were in lieu of damages for legal malpractice. The text of the agreement stated that its purpose was “to compromise and settle * * * [taxpayer’s] claims and allegations” against malpractice defendants and that payment “in exchange for” release of claims related to the taxpayer’s lawsuit against the malpractice defendants.

The court rejected the taxpayer’s argument that the settlement proceeds were only for those claims that involved the marital estate and that they represented compensation for lost value or capital because they “are based on her recovery of the property interest that * * * [she] rightfully should have received from her divorce as her share of the marital estate.” The court rejected this argument because the settlement agreement stated that the settlement proceeds were for the release of “all claims * * * of whatever kind or character, known or unknown * * * which * * * [the taxpayer] may have against * * * [malpractice defendants] arising out of or related to the * * * [malpractice lawsuit].” The court treated the taxpayer asking the court “to look through the settlement agreement and consider only her claims related to recovery of marital property,” but the court refused to look past “the plain terms of the settlement agreement,” instead concluding that the settlement proceeds were to compensate the taxpayer for her attorney’s malpractice. Accordingly, the settlement proceeds must be included in gross income.

The court pointed out that it had “recently rejected a similar attempt to recharacterize the settlement of a legal malpractice claim arising from a personal injury lawsuit,” citing Blum v. Comr., T.C. Memo. 2021-18. In that case, the taxpayer filed a malpractice claim against her personal injury attorney, resulting in a settlement payment from the personal injury attorney. She asserted that the settlement payment represented a return of capital “in that it compensated her for a loss that she suffered because of the erroneous advice of her lawyers, viz, the nontaxable amount she would have received had she prevailed in her personal injury lawsuit.” The court in Blum focused on the language of the settlement agreement, which specified that it was entered into “for the purpose of compromising and settling the disputes”, and concluded that the settlement payment was not a return of capital to the taxpayer but rather to compensate her “for distinct failings by her former lawyers.”

The court also noted that even if the taxpayer had convinced it that some of the settlement proceeds were meant to replace her purported loss of marital property and that the loss was a nontaxable recovery of capital, she failed to provide a basis on which the settlement proceeds could be allocated between that hypothetically nontaxable recovery and other taxable amounts. The settlement agreement did not allocate any of the settlement proceeds toward any of the various claims or types of damages. According to the court, to the extent the proceeds included amounts representing interest, that portion could not be excluded from gross income in any event.

Though as Robert Wood pointed out earlier this year in Does IRS Tax Legal Malpractice Settlements? that there is “surprisingly little authority” to help drafters of settlement agreements “predict the tax treatment of legal malpractice recoveries,” the Holliday case and the Blum case that it cites teach and reinforce the lesson that the language of the settlement agreement is critical to the tax treatment of the settlement proceeds. I have written about the necessity for careful drafting, and the adverse impact of imprecise drafting, in posts such as Taxing Damages, In Tax, As in Much Else, Precision Matters, Contracting a Tax Outcome, and Looking for an Exclusion That’s Not in the Documentation.

It is understandable why the defendants in the litigation want the settlement agreement to cover all claims including those “of whatever kind or character, known or unknown * * * which * * * [petitioner] may have against * * * [malpractice defendants] arising out of or related to the * * * [malpractice lawsuit].” But that language in and of itself is not the problem. It’s the lack of additional language that allocates a specific portion of the settlement proceeds in this case to the taxpayer’s recovery of the amount that she would have received for her share of marital property had the divorce settlement agreement been drafted differently. It is the lack of that language that forced the Tax Court to conclude that no part of the settlement proceeds had been proven to be for return of capital and that, even if that had been proven, no part of the agreement provided sufficient specificity for allocating a specific dollar amount to what would have been excluded from gross income. As so often is the case, words, or the lack of them, matter.

Someone reading this blog might think that tax return preparers are the chief cause of tax noncompliance. They would get that impression from the many posts I have written about tax return preparers who have been indicted or charged or whose businesses have been shut down by authorities. I am referring to posts such as Tax Fraud Is Not Sacred, More Tax Return Preparation Gone Bad, Another Tax Return Preparation Enterprise Gone Bad, Are They Turning Up the Heat on Tax Return Preparers?, Surely There Is More to This Tax Fraud Indictment, Need a Tax Return Preparer? Don’t Use a Current IRS Employee, Is This How Tax Return Preparation Fraud Can Proliferate?, When Tax Return Preparers Go Bad, Their Customers Can Pay the Price, Tax Return Preparer Fails to Evade the IRS, Fraudulent Tax Return Preparation for Clients and the Preparer, Prison for Tax Return Preparer Who Does Almost Everything Wrong, Tax Return Preparation Indictment: From 44 To Three, When Fraudulent Tax Return Filing Is Part of A Bigger Fraudulent Scheme, Preparers Preparing Fraudulent Returns Need Prepare Not Only for Fines and Prison But Also Injunctions, Sins of the Tax Return Preparer Father Passed on to the Tax Return Preparer Son, Tax Return Preparer Fraud Extends Beyond Tax Returns, When A Tax Return Preparer’s Bad Behavior Extends Beyond Fraud, More Thoughts About Avoiding Tax Return Preparers Gone Bad, Another Tax Return Preparer Fraudulent Loan Application Indictment, Yet Another Way Tax Return Preparers Can Harm Their Clients (and Employees), When Unscrupulous Tax Return Preparers Make It Easy for the IRS and DOJ to Find Them, and Tax Return Preparers Putting Red Flags on Clients’ Returns.

Though there are tax return preparers whose antics contribute to tax noncompliance and thus the tax gap, most do not behave in that manner and most tax noncompliance occurs beyond the reach of tax return preparers. Sometimes, even if a tax return preparer prepared the return, the fraud cannot be attributed to the preparer. An example of this sort of situation is presented in a recent Department of Justice news release. According to that news release, the owner of a physical therapy and acupuncture business, who also co-owned a similar business, with the help of co-conspirators reduced taxable income by shifting funds to other entities that they controlled and that they deducted as business expenses. They also took checks made payable to those businesses and cashed them at a check cashing business. Though the checks represented income to the business, the owner and the co-conspirators did not disclose theses receipts to their tax return preparers. That had the effect of causing their tax returns to be fraudulent.

In this instance, there is no indication that the tax return preparers did anything wrong. A preparer asks a client to disclose transactions that affect gross income, deductions, credits, refunds, and tax payments. The preparer is not required, and rarely is in a position, to audit the client’s books or to do forensic analysis. Granted, if the information provided by the client is itself inconsistent, the preparer needs to ask more questions. But, as one of my former students in practice since the late 1980s, sometimes asks me, “Do you tell your students that some of their clients will lie?” Yes, I do. But figuring out if a client is lying is not easy. True, some people have that sixth sense and some learn to evaluate body language, eye movement, and other supposed clues, but it’s much easier to deceive some or most tax return preparers because they do not have the tools, the opportunity, or the right to dig into a client’s information the way, for example, the IRS and the Department of Justice can. My guess is that at least some preparers find a way to identify taxpayers who have previously been convicted of tax fraud and either decline to represent them or exercise extreme caution if they do accept them as clients.

The Biden Administration, according to reports such as this one from The Hill, is pushing for a 15 percent minimum corporate tax rate. The G7, according to reports such as this BBC News article, has agreed “in principle to a global minimum corporate tax rate of 15% to avoid countries undercutting each other.”

The Hill report explains that Biden “has long railed against the low amount of taxes some profitable corporations have paid, vowing to close loopholes.” The White House press secretary described the proposal as a “book tax,” explaining that the tax should be “based on” corporate “bottom lines.”

According to the White House Fact Sheet on the American Jobs Plan, the so-called 15 percent minimum tax on corporations would be something other than a minimum 15 percent rate on corporate taxable income. Instead, it would be a 15 percent tax rate on “the income corporations use to report their profits to investors,” which most financial analysts, accountants, and investors described as “book income.” The fact sheet states that it would “apply only to the very largest corporations.” According to the Tax Foundation’s analysis of the plan, it would apply to corporations with more than $2 billion in net income. According to the General Explanations of the Administration's Fiscal Year 2022 Revenue Proposals, the tax would apply to corporations with more than $2 billion of “worldwide pre-tax book income,” reduced by the corporation’s regular tax liability.

It is misleading to refer to the proposal as a “15 percent minimum corporate tax rate” because that phrase suggests that the proposal is to impose a 15 percent tax rate on taxable income. As anyone who understands tax law realizes, tax rates mean nothing when taxable income is zero. The problem is bigger than the rate. That is why the proposal focuses on a different base on which to compute the tax, specifically, income as reported for financial purposes. Since the income tax was enacted, corporations have tried to convince the Treasury that they have little or no income to be taxed while telling their shareholders and creditors that they are raking in the profits. Of course, individuals also play this game, trying to show low income to tax authorities and divorcing spouses while upping their claims when applying for loans or trying to impress others at the country club. Some of this nonsense can be attributed to the existence of foolish deductions for tax purposes, such as the allowance of a reduction for depreciation on real property that is increasing in value. Some of the nonsense is attributable to fraud and other tax evasion techniques. For corporations subject to supervision by regulatory agencies, some of the nonsense is attributable to the strange accounting rules used by many of those agencies. And yet another cause of the “high profit, no or low tax” game is the inconsistency in tax policy, taxable income computation, and tax rates among nations, a problem that the G7 appears willing to tackle, though whether its constituent members, and those belonging to the G20, where the proposal next goes, remains to be seen.

Yet it seems to me that it would make sense simply to require all businesses to report as taxable income the amount of income that they tell their owners, creditors, investors, and regulatory agencies that they are generating. By computing taxable income as equal to book income, the need for multiple computations of a tax base would be eliminated. Otherwise, as pointed out in this Tax Foundation commentary, corporations would need to add another computation layer to their tax reporting, though it is not as big a deal as the commentary suggests, because book income already is being computed by corporations.

Of course, taxation based on book income would require mechanisms to tax avoidance, such as a means to prevent corporations from computing a book income that reflects high salaries paid to top officers who are domiciled or reside in countries with no individual income tax, with low individual income tax rates, or with deductions and credits to reduce or eliminate the officers’ tax liabilities. And, of course, other reforms are necessary to deal with the tax avoidance opportunities presented by the flaws in, and abuse of, partnership taxation rules as I described in Partnerships: A Contributing Factor to the Tax Noncompliance Surge, a problem that requires more than a simple increase in the number of returns being audited.

Whenever attempts are made to reduce or eliminate tax abuse or tax avoidance techniques, those who benefit from the abuses or avoidance techniques rise up in opposition. Often, those who oppose the reform are the same interests who lobbied successfully for adding to the tax law the provisions that permit those abuses and avoidance techniques. Too often, those provisions are so complex or obscure that the typical taxpayer can easily be misled by the opponents of reform. The key to getting these reforms enacted is top-notch education of the public by those who are pressing for these reforms, in ways help typical taxpayers understand why the many will benefit from reforms that put an end to tax abuses and avoidance techniques the benefit the few.

There are several places in the Internal Revenue Code where age is a factor in determining a taxpayer’s right to, or the amount of, an exclusion, deduction, credit, or additional tax. In most instances, these age-defined provisions reflect a connection between age and the benefit. For example, withdrawals from a tax-favored retirement benefit plan made before a specified age can trigger an additional tax if one or more of several exceptions do not apply. Along the same lines, additional taxes are imposed if withdrawals are not made from a tax-favored retirement plan once the taxpayer reaches a specified age. Putting aside the question of whether the tax law should be the vehicle for retirement plan regulation, these age-based provisions reflect the reality that tax benefits for retirement savings should be restricted to taxpayers in retirement, and ought not be used as tax-avoidance devices that postpone tax reckoning indefinitely.

Another example are tax breaks related to children who have not yet attained a specified age. That age varies depending on the provision, but regardless of the inconsistency, a reference to age is necessary because in a general sense, all taxpayers are children, and remain children for all of their lives. Ask any parent.

Yet there are age-related provisions that make little sense. For example, the standard deduction increases when a taxpayer attains the age of 65, presumably because of some notion that people who reach the age of 65 are somehow in need of reduced tax liability. But does it make sense to base a reduced tax liability on need for tax relief and yet ignore income? No, because the assumption that people who have attained the age of 65 need tax relief totally disregards the fact that income, whether gross, adjusted gross, or taxable, is a far better indicator of ability-to-pay than is age standing alone.

And that brings me to a proposal that reader Morris brought to my attention. According to this Northwestern University press release, two economics professors, one at Northwestern and one at the University of Kent, have proposed that because workers become more productive over their working life, they should pay a higher rate of tax as they become older. Specifically, they claim that workers between the ages of 45 and 65 should pay at a rate 5 percent higher than the rate paid by workers between the ages of 20 and 44. Whether they mean 5 percentage points, for example, a 15 percent instead of a 10 percent rate, or 5 percent, for example, a 10.5 percent rate instead of a 10 percent rate, is unclear.

The two researchers claim that their proposal “could bring welfare gains to each taxpayer equivalent to those brought in by a 4% increase in annual consumption throughout their entire work life” and that these “gains are significant to warrant the consideration of policymakers and shape the debate on how to best reform existing tax codes in the U.S. and other developed economies.” They explain, “This is because age-dependent taxes permit the government to generate tax revenues more efficiently by reducing the distortions in labor supply of those workers, the young, whose investments in human capital count the most. Furthermore, by incentivizing the young to work more to boost their productivity, the government can take advantage of a more productive population when the young turn old, collecting taxes from them in a less distortionary manner, which also brings non-negligible welfare gains.”

Reader Morris asked me for my reaction. I pointed out several aspects of reality ignored by the researchers. First, the premise that workers are more productive as they get older holds only if they are in the same job or career. Present-day reality is that workers hop not only from employer to employer within the same field, but also change from occupation to occupation. It is possible for a 37-year-old working at the same job for 15 years to be far more productive than a 47-year-old who entered that job 6 years earlier after working for 20 years in some other occupation. Second, as workers become more efficient, they might receive wage increases or, if functioning as sole proprietors or partners, experience increased net profit increases. Or, as is happening to many workers, their wages might stagnate despite productivity increases. In the former situation, as wages or net profits increase, their tax liabilities will increase, and in some instances, they will be propelled into higher tax brackets. In the latter situation, absent tax law changes, their tax liabilities also will stagnate, and it would be absurd to jack up a worker’s tax rate when the worker attains the age of 45 even though their income is unchanged. Third, changing tax rates based on age is an unwarranted discrimination. Why should a 30-year-old making $600,000 a year pay less income tax than a 57-year-old making $600,000 a year (assuming other factors are the same)? Fourth, plenty of people between the ages of 20 and 44 are raking in substantial incomes while there are people between the ages of 45 and 65 are barely making ends meet. A tax system that favors high-income younger workers to the detriment of low-income older workers makes no sense. Put another way, ability-to-pay, a key concept underlying progressive income tax rates, has nothing to do with age and everything to do with income.

Several days ago, I read a Philadelphia Inquirer editorial, in which the writer, arguing that parking spaces should take a back seat to other uses, stated that, “City Council wants to slash the parking tax, a handout to wealthy parking garage magnates that incentives traffic and congestion.” The writer is correct that a proposal to reduce the parking tax is pending. According to this Philadelphia Inquirer story, a bill has been introduced in City Council to reduce the tax from 25 percent of parking charges to 17 percent. The tax was increased a year ago, from 22.5 percent to 25 percent, to offset other revenue reductions caused by the pandemic, with an automatic reduction back to 22.5 percent a year later. The bill to reduce the rate to 17 percent reflects the sponsor’s belief that reducing the rate will bring visitors back to the city, would “signal that Philadelphia is serious about our economic competitiveness,” would bring more parking lot and garage workers back to work, would help the hospitality and entertainment industries recover, and would Incentivize growth.

Though one can quibble whether a reduction in the rate from 25 percent to 17 percent is a slashing, and though one can wonder whether the introduction of a bill by one member of the Council translates into a majority of the Council wanting to reduce the rate, the big problem is the conclusion that a reduction in the parking tax is “a handout to wealthy parking garage magnates.” According to the city’s explanation of the tax, the parking tax is paid by every person “who pays to park or store a motor vehicle in or on a parking facility in Philadelphia.” Thus, the tax is paid by parking lot customers “directly to the parking facility.” In turn, the operator of “the parking facility is responsible for issuing the claim check, collecting the tax, and paying it to the City.”

First, the reduction in the parking tax itself does not directly benefit the owners and operators of parking lots and garages. If the tax is reduced, the owners and operators collect less from the customer and remit less to the city. Second, the writer might be thinking that the reduction in the parking tax will bring more vehicles into the city and into parking lots and parking garages, thus increasing revenue for the owners and operators of those facilities. That is a questionable conclusion. Based on current parking rates, an 8-percentage-point reduction in the tax would reduce a customer’s bill by roughly $2 for a 12-hour stay, and by roughly $25 for a one-month fee. It highly unlikely that someone otherwise not planning to drive into the city would change their mind because of a $2 difference, or that a $25 reduction in a monthly parking fee would deter the person from driving into the city on a regular basis. At best, the reduction might bring a few more vehicles into the city, but that revenue, even if monopolized by one owner or operator, would be too insignificant to be considered a handout to the wealthy.

My point isn’t that the parking tax should be reduced, or should not be reduced, or should be increased. My point is that when arguments for and against changes in the parking tax are lined up, “handouts to the wealthy” should not be on the list. Coming from someone who opposes tax breaks for the wealthy, that might seem surprising, but my point is that reducing the parking tax paid by vehicle owners, very few of whom are wealthy, is not a tax break for the wealthy. It’s a tax break for drivers of all economic groups.

Two news items showed up last week focusing on two former Philadelphia officials and their tax woes. Unfortunately, the new information adds to the evidence lists maintained by those who argue that Philadelphia is a corrupt city. Actually, cities cannot be corrupt. People can be corrupt. Politicians and officials can be corrupt. Fortunately, not all politicians and officials are corrupt, and plenty of people who are not politicians or officials are corrupt. Of course, it’s those in the spotlight who do bad things who get most of the attention.

The first story involves Vincent Fumo, a Philadelphia politician who served in the Pennsylvania Senate for about 30 years, and who was convicted on 137 counts of mail fraud, wire fraud, conspiracy, obstruction of justice, filing a false tax return, using state workers to repair his residence and to work on his farm, misusing state funds, misusing funds from his charity, and using government property for personal travel. I have previously written about some of Fumo’s tax problems in posts such as How to Fix a Broken Tax System: Speed It Up?, and Not the Sort of Tax Loss Taxpayers Prefer, addressing questions about property tax assessments on his Philadelphia residence.

This recent news involves Fumo’s connection with the Citizens Alliance for Better Neighborhoods, the charity referenced in the list of charges mentioned in the preceding paragraph. The misuse of the funds generated tax problems because the tax law is used to regulate aspects of transactions between tax-exempt organizations and people affiliated with them. In addition to misusing the funds, Fumo also was convicted of using his political power to compel PECO and the Delaware River Port Authority into making contributions to the charity. That, too, generates tax problems. The IRS contends that Fumo owes $354,000 in excise taxes on account of violating prohibitions against using tax-exempt organization funds for private purposes. When the case reached the United States Tax Court, Fumo argued, in response to an IRS motion for partial summary judgment, that “his role with the nonprofit was too insignificant for him to be subjected to the excise tax.” Fumo argued that he was not the founder of the charity nor was he an officer. The judge disagreed, pointing out not only that Fumo’s staff set up the charity at his direction and that he “exercised substantial influence over its activities,” but also that during his criminal trial, Fumo testified, “I viewed it as my nonprofit. I viewed it as my entity, my baby. I created it. I helped it. I guided it. I gave it strategy. I gave it my time and effort. I raised money for it. If it weren’t for me, it wouldn’t exist.” Accordingly, the Court granted the IRS motion for summary judgment in part – because other issues also are involved – and the case will proceed on the question of whether Fumo violated the prohibitions on dealing with a tax-exempt organization. From a legal perspective, the Court’s conclusion reflects the provision in the applicable Treasury regulations that a person can be within the scope of the prohibitions even if the person is not an officer, director, or high-level employee of a charity. For the Court’s opinion, go to the docket page for the case, scroll down to item 163, and click on the link, as the link for the opinion itself is too long to insert into an html URL llnk.

In addition to the excise tax, the IRS also claims that Fumo owes more than $2 million in unpaid income taxes because of his failure to report as income the value of the services he received from the crimes for which he was convicted. If that is not enough, the IRS also claims that he owes more than half a million dollars in unpaid gift taxes on account of a large cash gift to his son. Those cases are pending.

The second story, published on the same day as the first one, involves former Philadelphia Treasurer Christian Dunbar. Dunbar had been removed by the mayor after he was indicted for obtaining U.S. citizenship through a sham marriage and embezzling money from clients while working for Wells Fargo Bank. The new charges include failure to file tax returns for 2015, 2016, and 2019, and claiming false business losses on returns that he did file.

Politicians and government officials have always been under a spotlight. Modern technology has widened the scoped of that spotlight and has intensified its brightness. Though many people think being a public figure or celebrity is fun and wonderful, it comes with a price. That price is public scrutiny. For the well-behaved, that scrutiny is bad enough, but any sort of misbehavior or even simply inappropriate words or actions will go viral on social media, and often in mainstream media, in the blink of an eye.

Yes, there is corruption in Philadelphia. There also is corruption in many other big cities, small cities, suburban towns, and rural communities. Yes, there are localities where corruption is absent or perhaps a rare occurrence, but the problem is widespread. It’s just that the dollar amounts involved in big cities causes investigators to focus in those places rather than in other localities. And, true, corruption in large cities affects many more people than corruption in a small town, but every citizen, in every place, is entitled to live under governments free of corrupt politicians and corrupt officials. The corruption, unfortunately, is not so much a problem in and of itself, which it is, but a symptom of a deeper rot in present-day culture. And that is a something far beyond the world of tax and surely not manageable by using the tax law to clean things up.