Wednesday, March 11, 2015

Tax Courses and Food 

A reader directed me to an article reporting the results of a study examining the connection between food consumption and the type of movie being watched by the subjects of the study. According to the study by the Cornell Food and Brand Lab, people watching sad movies ate between 28 and 55 percent more popcorn, both in the lab and in an actual theater. A related study concluded that people watching action and adventure television shows eat more, but only if the food is within arm’s length.

The reader asked, “If a study of college students watching courses online was performed would a college student eat more watching a drama class {liberal arts class} or a tax class {business or legal class}? The class could be taped or live.”

The answer, I suppose, is whether a tax class should be classified as tragedy, comedy, action, or adventure. It surely isn’t romantic. Learning about tax can make a person sad, and so in some respects tax class is like a tragedy. I’m not referring to the students who, at the beginning of the semester, perceive an expected grade that they rate as a tragedy, especially as those students generally end up with decent or even better grades.

But as I told the reader, in my classes, tax or otherwise, so much is happening at such a law-practice-world pace, there is no time to eat. Students are taking notes, flipping through statute books, turning pages in the course book, bringing up materials on their laptops, reading questions posted on the projection screen, and operating their student response pads (“clickers”) that they probably don’t have a free hand often enough to eat. Actually, I do see students bring food into the classroom but almost all of them make a point to finish their meal before class begins.

At the risk of seeming crude, the idea of tax law making someone want to eat strikes me as the opposite of reality. For me, when I read tax law, especially recent amendments, and examine the underlying policies, I want to do the opposite of eating. Yes, the depths into which the federal, and some state, tax law has sunk makes many people nauseated.

Monday, March 09, 2015

Federal Income Tax Filing: Fewer Than Half Have Filed 

On March 4, the IRS released information on the progress of the 2015 income tax filing season. The highlight is the IRS estimate that “three out of five taxpayers have yet to file their tax returns.” Is this a surprise?

One might guess that with more taxpayers expecting refunds than expecting to owe additional payments, a majority of taxpayers would file early. The sooner one files, the sooner the refund arrives. But that’s not what’s happening. Why? Increasing numbers of taxpayers have invested in partnerships, and are waiting for Schedules K-1. Those need not be sent to taxpayers until April 15. Increasing numbers of taxpayers are waiting for Forms 1099. I’m still waiting for one of those. The days of January 31 being the day when Forms 1099 need to be in the hands of taxpayers are long gone.

Most taxpayers receive Forms 1099, because most taxpayers have interest-bearing accounts, or stocks, or other investments, or some combination. Until someone, in this era of rapid information processing, figures out how to get the transactions of one year summed up within a few weeks of that year’s ending, increasing numbers of federal (and state) income tax returns will be filed in late March and April.

Friday, March 06, 2015

The IRS and the Taxpayer: Both Wrong 

The facts in the recent case of Morles v. Comr., T.C. Summ. Op. 2015-13, at least as they related to one of the issues, are simple. During 2010, the taxpayer maintained an IRA, funded by an initial contribution of $1,000 in 2008. The taxpayer did not claim a deduction for that contribution. In 2010, a distribution was made to the taxpayer from the IRA of $950.81, and that amount was shown on a Form 1099-R issued to the taxpayer by the IRA administrator. The taxpayer was younger than age 59.5 years when the distribution was made. The taxpayer did not include any amount on his 2010 federal income tax return on account of the distribution.

Because the distribution was not in the form of an annuity, section 72(e) applies. Under that provision, the taxpayer’s investment in the IRA is taken into account in computing the amount that must be included in gross income. The Tax Court concluded that the taxpayer’s failure to maintain the required records with respect to the contribution for which no deduction was claimed did not prevent treating the non-deducted contribution as the taxpayer’s investment in the IRA.

The taxpayer argued that because the distribution from the IRA was less than the his investment in the IRA, it should be treated as a return of investment. The IRS argued that the entire distribution should be included in the taxpayer’s gross income. The Tax Court concluded that both the taxpayer and the IRS were wrong. The court directed the parties to compute the taxpayer’s gross income by applying section 72(e)(3). Because the opinion does not include any other information, it is not possible to do that computation, but my best guess is that some portion of the $950.81 must be included in the taxpayer’s gross income. That amount reflects the untaxed increase in the value of the IRA attributable to interest and other investment growth between 2008 and 2010. The gross income would be an amount less than what is shown on the Form 1099-R.

Wednesday, March 04, 2015

It’s Not Your Principal Residence If You’ve Never Lived There 

A recent case, Villegas v. Comr., T.C. Memo 2015-33, demonstrates a very basic principle applicable to the section 121 exclusion from gross income of gain from the sale of a principal residence. A residence is not a principle residence if the taxpayer never lives in it.

The taxpayers, husband and wife, purchased a four-bedroom home in 1994, paying $200,000. They decided to use the home as a group home for developmentally disabled individuals. The taxpayers used three of the bedrooms to house six clients, two in each room, and used the fourth bedroom as their office. The home also included a kitchen, two bathrooms, a living room, a garage, a patio, and a pool.

Though the wife occasionally slept in the home, the taxpayers resided in another town, La Puente, California, with their three children, a nephew, and the husband’s parents. The La Puente is what appeared on the taxpayers’ checks, bank records, payroll records, tax preparation documents, and their children’s school records. The bookkeeper for the group home business visited the La Puente home to prepare reports in connection with the group home business. There also was evidence that the taxpayers held social gatherings at their La Puente residence.

In 2007, the taxpayers sold the group home for $600,000. According to the Tax Court, the taxpayers filed separate returns, and “each excluded more than $250,000 og fain from the sale,” claiming that the group home was their principal residence. It is unclear how $400,000 of gain realized generates more than $250,000 of gain realized for each of two taxpayers.

Additional evidence presented to the Tax Court shut the door on any section 121 claim. None of the employees of the group home saw the taxpayers live at the group home. Two employees testified that the taxpayers lived at the La Puente residence. None of the school records for the taxpayers’ children listed the group home address, but showed their residence as the La Puente home. The wife’s sister told an IRS agent that the taxpayers lived at the La Puente residence. The Tax Court also discounted the claim that the wife slept at the group home, because the room she claimed to use as a bedroom was the room used as the office.

A taxpayer who has never lived at a residence ought not claim it is or was a principal residence. If a taxpayer does live in a residence, it makes sense to retain evidence of the residency, and if characterizing the home as a principal residence appears to be something that might need to be proven in the future, the taxpayer ought to retain evidence that the residence is the principal residence. Certainly when there are witnesses ready to testify that the taxpayer did not live at the home in question, the idea of claiming it is the principal residence is not a very good one.

Monday, March 02, 2015

Tax Revenue and Structural Deficits 

As mentioned in this article, Pennsylvania faces a deficit of $2.3 billion in its budget. The deficit is structural, that is, it reflects revenues and spending that persist from year to year. There are only two ways to eliminate structural deficits. One is to change the revenue structure so that more revenue is collected. The other is to reduce spending. Raising taxes triggers all sorts of opposition. Reducing spending sounds appealing, but once people realize it’s not a matter of cutting spending that benefits others but cutting spending that benefits them, opposition to spending cuts grows. The public also suffers from a perception that it is easy to cut spending, but when given a list of spending cut options, they hesitate because they then realize the reality of the spending budget.

On top of this, according to this report, the new governor of Pennsylvania, a Democrat, wants to reduce the corporate income, franchise, and capital stock taxes. That will increase the current and structural deficit. According to the same report, the governor is expected to propose increases in individual income taxes. It will take quite a bit of personal income tax increases to cover a $2.3 billion-dollar deficit plus the revenue loss from cutting corporate taxes.

According to Republican state legislators, the solution is to privatize the state’s alcohol stores. This one-time “fix” supposedly would raise $1 billion, less than half of the deficit, even aside from the proposed corporate tax decreases. But this so-called solution does not address the structural deficit. What happens next year when the deficit re-appears? What, then, does the state sell?

A decision to sell the state store system ought to reflect analysis of the advantages and disadvantages of state-controlled alcohol sales. It ought not be done simply because of a one-time revenue infusion that does not address the underlying cause of the structural budget deficit. It is unknown if sale of the state store system is part of the governor’s overall plan, because only a few pieces of the budget plan has been released. Very soon, the entire budget plan will be disclosed, and that will permit closer analysis. In the meantime, state officials need to fix the causes of the structural deficit, or the state’s fiscal fortunes will continue to spiral downward.

Friday, February 27, 2015

Testing Tax Knowledge 

According to a report on a recent NerdWallet survey, “[m]ost American adults get an ‘F’ in understanding income tax basics.” The survey posed 10 questions to 1,015 people. The average score was 51 percent.

Readers of MauledAgain know that I am no fan of tax ignorance. In posts such as Tax Ignorance, Is Tax Ignorance Contagious?, Fighting Tax Ignorance, Why the Nation Needs Tax Education, Tax Ignorance: Legislators and Lobbyists, Tax Education is Not Just For Tax Professionals, The Consequences of Tax Education Deficiency, The Value of Tax Education, More Tax Ignorance, With a Gift, Tax Ignorance of the Historical Kind, and A Peek at the Production of Tax Ignorance, I have lamented how poorly Americans, to say nothing of legislators, fare when dealing with tax issues.

The NerdWallet survey report shares eight of the ten questions that were posed to the people who were surveyed. In all fairness, three of those questions touch topics that are not covered in the basic income tax course that I have taught. The topics – Roth IRAs, section 529 plans, and flexible spending plans – aren’t included because they cannot be understood until the basics are mastered, are complex, and would displace more fundamental topics if squeezed into the course. Yet the performance of those surveyed on those three questions was roughly the same as on the other five that were shared. With the exception of one of the five questions that I would expect a student who completes the basic income tax course to answer correctly, fewer than half of those surveyed chose the correct answer for any of the questions.

It would be fun to require members of Congress and candidates for that office to take this survey, or one like it. I cannot imagine the outcome would be any better than that achieved by the 1,015 survey takers.

Wednesday, February 25, 2015

So Who Should Pay for Roads? 

According to a recent report, the decision by the Michigan legislature to come up with road repair funds by asking voters to approve an increase in the state sales tax has been criticized by Senator Gary Peters. Peters made the point that “additional road money raised from those who use the roads, not through a sales tax.” He’s right. The sales tax takes a higher percentage of low income individuals’ incomes than it takes from the wealthier individuals, yet vehicle ownership and use is lower for low income individuals than it is for those economically more advantaged.

Trying to get legislatures to adopt a mileage-based road fee is an ongoing effort that will require some years before it is widely adopted. In the meantime, it is totally irresponsible to let the transportation infrastructure fall into deeper disrepair while politicians and privateers try to squeeze dollars for themselves out of the process. I’ve discussed the mileage-based road fee in a long series of posts, beginning with Tax Meets Technology on the Road, and continuing through 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, and Is the Mileage-Based Road Fee a Threat to Privacy?.

But if Michigan is unwilling to take on the mileage-based road fee, it ought to enact, or put to a referendum, a funding mechanism that aligns use of roads with revenue for the maintenance of roads. Though the liquid fuels tax has its flaws, it’s a much more appropriate means of funding highways than is the sales tax.

Monday, February 23, 2015

Using the Tax Law to Administer Health Care: An Unwise Idea Again Proves Itself Unwise 

Almost five years ago, in a series of posts including IRS Ought Not Be the Health Care Enforcement Administrator, Health Care: Enlarging the Code and Stressing the IRS. and More Challenges of IRS Health Care Oversight, I criticized the Congress for saddling the IRS with responsibility for administering and enforcing much of the Affordable Care Act. Doing so violated a principle to which I have subscribed for decades, that is, the Internal Revenue Code ought not be used to accomplish goals that ought to be spelled out in other legislation.

Now comes news that the Department of Health and Human Services sent incorrect tax information to as many as 800,000 taxpayers. The information permits taxpayers to determine if they qualify for a subsidy to assist them in paying for health care, a determination that affects income tax returns. The catch is that the information provided by HHS was computed by the IRS, as pointed out in this editorial. The editorial notes:
Last week the U.S. Department of Health and Human Services announced that the IRS had miscalculated subsidies for 800,000 Americans. Figuring out taxes is what the IRS does.
But there’s the catch. The IRS did NOT err in computing taxes. It erred in computing a health care subsidy. It is no more surprising to discover a tax agency making a mistake computing a health insurance subsidy than it is to discover a clerk-typist making a mistake interpreting an MRI. Ought not HHS be computing the subsidy amounts and reporting those to taxpayers rather than simply passing along insurance subsidy information provided by the IRS? Why is the IRS doing what HHS ought to be doing?

If it is outrageous that the IRS has caused problems for almost a million taxpayers, is it not even more outrageous that the IRS was put in this position because the Congress was unwilling to charge HHS with the responsibility for administering the Affordable Care Act? Many members of Congress are quick to criticize the IRS, yet when trying to decide which federal agency ought to administer a program, gleefully turns to the IRS by enlarging the Internal Revenue Code and piling more work on the IRS. Oh, and then it cuts funding for the IRS. It seems to be a reflection of the same mindset that causes some employers, usually the large and impersonal ones, to fire some employees, reduce the pay of others, and to pile more work on those who remain because there’s a shortage of labor resources.

Of course, we don’t know what would have happened had HHS computed the subsidy information and sent out the information to taxpayers. Perhaps there would have been two or three times as many errors. Or perhaps not. But at least Congress ought to give the agency responsible for health issues an opportunity to show what it can do. Then the IRS could focus on its expertise, taxes, and stop focusing on health insurance computations.

Friday, February 20, 2015

The Parade of Tax Horribles Never Ends 

The depreciation deduction is not one of my favorites. Too often, it permits taxpayers to report, and pay tax on, a taxable income amount that is much less than the taxpayer’s economic profit. One of the culprits is section 179, originally designed to spare taxpayers the task of computing annual depreciation on relatively small amounts expended for capital items, but expanded to provide half-million dollar write-offs that far exceed the economic cost to the taxpayer of making an investment. The justification is that this provision creates jobs.

Both sides of the aisle are guilty of supporting this unwise provision, as well as its cousin, section 168(k). In Just Because It Didn't Work the First 50 Times Doesn't Mean It Will Work Next Time, I criticized the Congress for renewing the provision. A year later, in If At First It Doesn’t Work, Try, Try, Try Again, I criticized the President for proposing yet another renewal of the expanded section 179 limitations.

In Just Because It Didn't Work the First 50 Times Doesn't Mean It Will Work Next Time, I explained:
Does it make sense to increase deductions for acquisitions of equipment? How does that restore confidence in the economy, which is essential to putting the nation back on track. How does a tax provision that encourages businesses to use their limited funds to buy machinery put people in this country back to work? Nothing in the provision requires that the property be built in the United States, and it's almost certain that such a requirement would violate at least a few trade agreements and treaties. What's the point of enacting tax breaks that create jobs in other nations? Dollar-for-dollar, a tax break for creating jobs directly is worth much more than a tax break for purchasing equipment.
Nothing that has happened during the past six years has changed my opinion on this point.

Now comes news that, again, Congress is planning to renew the provision. At the moment, the renewal proposal has passed the House of Representatives. My guess is that at some point, unless derailed by machinations with respect to unrelated provisions, it will pass the Senate. And it will be signed by the President.

This provision is one of many that is set to expire after a short time, creating incentives for its beneficiaries to fork over campaign contributions to ensure that it is renewed when the time comes. This is no way to run a nation or its tax policy, but it surely is a good way for wealthy political campaign contribution donors to run a Congress.

As I explained in Just Because It Didn't Work the First 50 Times Doesn't Mean It Will Work Next Time, “The depreciation provisions, including bonus depreciation and first-year expensing, have contributed to the current economic mess by allowing taxpayers to compute taxable income as though their economic position declined when in fact it remained the same or improved. Packaged into tax shelters, LILO deals, tax-exempt leasing arrangements, and other devices that contribute to the tax gap, these provisions ought not be considered remedies for the very economic diseases that they have caused and aggravated.”

It’s time to limit depreciation to the economic decline in the value of the property. If it remains acceptable to provide deductions for economic losses that haven’t happened and that may never happen, perhaps it’s time to tax future economic gains that haven’t happened and that may never happen. Imagine the outcry. That alone demonstrates the absurdity of making section 179 anything more than a short-cut for deducting the cost of de minimis expenditures.

Wednesday, February 18, 2015

You Can’t Save What You Don’t Have 

Last week, in a CNN Money commentary, Jordan Wathen compared what he described as getting rich the easy way with getting rich the hard way. He pointed out that although people generally think that getting paid millions of dollars a year to do something a person loves to do is getting rich the easy way, it’s actually the opposite. People who get rich, for example, by playing a professional sport have invested tens of thousands of hours learning the game and honing their skills.

Wathen takes the position that there is a much easier way to get rich. He explains that by saving money at a higher rate and patiently holding on to an investment, a person can do quite well. He notes that the average savings rate is between 4 and 5 percent, and that mutual fund investments are held for an average of 3.3 years. In contrast, he suggests, a savings rate of 15 to 20 percent, and a mutual fund holding period of 20 to 40 years, would be outstanding.

Wathen is correct. A person’s savings, or investment, will be higher, and generally much higher, if the person saves 15 or 20 percent of income rather than 4 or 5 percent, even if the person doesn’t hold assets for several decades. Adding long-term holding periods to the mix makes the outcome even better.

The challenge, of course, is finding a way to save more money. Wathen suggests living in smaller home, driving a less expensive vehicle, and “shopping around for the best prices on routine monthly expenses like cable or insurance” will generate funds that can be invested. That might work for someone who is living in a 2,500 square foot home who can move to an 1,800 square foot home, as Wathen suggests. But how many people are living in homes of that size? And how many can move? Additional money might be within reach by trading in a European sports car for a Japanese vehicle, as Wathen suggests. But how many people are driving European sports cars? And of the people living in large homes and driving these sports cars, how many already have more-than-sufficient savings and investments? In other words, how many already are rich? For the wealthy, investing 80 to 90 percent of annual income is easy, because it’s easy to live on 10 percent of a $12,000,000 annual income.

But what about the folks whose income doesn’t cover the costs of sub-standard housing, nutritionally deficient food, second-hand clothes, and emergency-room-only health care? How does someone scraping by on basement wages set aside 4 to 5 percent of income, let alone 15 to 20 percent? How does someone whose annual income just about covers those costs set aside money for the future? By cutting back on a non-existent cable bill? By selling the fancy European sports car?

One of the underlying cause of the current national economic disequilibrium is the lack of long-term savings. That will happen when pensions are discontinued, employee benefits are cut by classifying workers as independent contractors, and wages are cut to the bare minimum. There wouldn’t so many “needy” people if the value of labor were fairly determined.

And, incidentally, when those who are able to do so cut back consumer spending by reducing cable bills and insurance costs, by eating in more than eating out, and by decreasing discretionary spending on entertainment and sports events tickets, what does that do to “consumer demand”? Consumer demand is what makes the economy move.

I’m not against savings. I’m just being practical. A person can’t save what the person doesn’t have. Unless incomes are more than sufficient to cover the costs of living, savings rates will remain too low.

Monday, February 16, 2015

Are the Cuts in Education Funding Part of a Plan? 

Last week, in Priorities, Priorities: What to Do With Tax Revenues, I explained how Wisconsin’s Governor Scott Walker plans to cut education funding while simultaneously plowing tax revenue into the hands of a privately-owned professional sports franchise owner for a new arena that is far from a necessity.

In at least two other states facing budget shortfalls caused by tax cuts for the wealthy, tax breaks for the wealthy, and expenditures in the form of handouts to the wealthy, Republican governors are seeking to eliminate the deficits by cutting education funding. This is happening in Louisiana, and Kansas.

Why not fix the problem by reversing the cause of the problem? Is there something horrible about eliminating the tax cuts for the wealthy so that the citizens of the state have access to quality, affordable education? Perhaps the reason is a desire to reduce the number of educated people. Why do that? Educated people are less likely to fall for the fear-stoking and lie-infested campaign slogans tossed about by those whose goal is to shift wealth into the hands of a tiny oligarchy.

One would hope that by now enough Americans would realize that the promises offered as enticements to vote for politicians determined to shift wealth to the oligarchy are empty, unfulfilled, and dangerous. The nation is still waiting for the jobs promised more than a decade ago. Those that have developed in the past few years reflect steps taken in spite of the increase in wealth and income inequality. The nation is still waiting for repair and maintenance of the country’s infrastructure, a goal not achieved by the privatization technique that also shifts wealth to a tiny handful of wealthy individuals.

An epidemic of ignorance is about to sweep across the land. If voters let it happen, the outcome will be most unpleasant. Citizens need to ask, “Who benefits from cuts to education funding?” and “Who benefits from handouts to the wealthy?”

Friday, February 13, 2015

Self-Employment Income Not Offset by NOL Carryforward 

Sometimes a principle of tax law is uncomplicated, easy to understand, and easy to apply. This can be the case even if taxpayers don’t like the result or don’t understand the reason for the principle. An example of this concept popped up in a recent Tax Court case, Stebbins v. Comr., T.C. Summary Op. 2015-10. The taxpayer incurred a net operating loss in 2007. In 2008, the taxpayer generated self-employment earnings, on which the self-employment tax was due. The taxpayer took the position that the self-employment earnings in 2008 could be offset from the NOL carried forward from 2007. The IRS disagreed. The Tax Court agreed with the IRS, citing section 1402(a)(4). That provision clearly states that in computing self-employment earnings, the NOL deduction is disallowed.

Whether the provision makes sense can be debated. Should an NOL be permitted to offset self-employment earnings? Perhaps, but at the moment that’s not how the tax law works. Unless it is changed, taxpayers cannot do what the taxpayer in Stebbins tried to do.

Wednesday, February 11, 2015

Priorities, Priorities: What to Do With Tax Revenues 

The anti-tax crowd claims to dislike taxes because, among other reasons, they enable government spending. To these folks, government spending is a bad thing. Or at least that’s what they say.

So, when the governor of Wisconsin, Scott Walker, as reported in various sources, including this one and this one, proposed a state budget cutting $300 million in funding for the University of Wisconsin, the anti-tax crowd must have rejoiced. Finally, a reduction in the expenditure of public funds to improve the education of citizens, to reduce and eliminate ignorance, to foster knowledge, and to preserve civilization.

But wait!

That same anti-tax, anti-government-spending governor’s proposed budget also includes a payment of $220 million to assist the Milwaukee Bucks, a privately-owned professional sports team, build a new arena. The Bucks don’t need a new arena. But what’s to stop a wealthy sports team owner from grabbing some free money when it’s there to be grabbed? That it is coming from a governor who objects to people thinking they are entitled to government food and medical assistance makes no difference to those who preach one thing and practice another.

This is not the first time that I have objected to wealthy owners of professional sports teams grabbing taxpayer dollars, often with the assistance of people who claim to detest taxes because government spending is such a bad thing. Eleven years ago, in Tax Revenues and D.C. Baseball, I objected to the grabbing of tax dollars by those not in need, and revisited the issue in Putting Tax Money Where the Tax Mouth Is, Building It With Publicly-Funded Tax Breaks , Public Financing of Private Sports Enterprises: Good for the Private, Bad for the Public, When Tax Revenues Fall Short, Who Gets Paid?, and So Who Are the Takers of Taxpayer Dollars?.

But this time, it is inescapably obvious that the governor of Wisconsin has no qualms about taking money from education in order to fatten the wallets of his wealthy “sponsors.” He, of course, is not alone. He is joined by the other politicians who beckon to the siren song of rich donors’ money. Though campaigning on themes designed to get votes from unknowing and easily misled voters who struggle to pay taxes, these experts in transferring wealth from the poor and middle classes to the wealthy are now so emboldened by the success of their electoral strategies that they don’t care if the world sees them for what they are or notices what they are doing. These are people who think giving the wealthy even more money so that they can build basketball arenas for the simple purpose of keeping up with their wealthy friends’ new arenas is far more important than educating the nation’s citizens.

Today, Wisconsin. Tomorrow, considering Walker’s desire to be president, the nation? Is this really what the people of Wisconsin want? Is this what the people of this nation want?

Monday, February 09, 2015

So Who Gets Taxed on the Super Bowl Truck? 

The facts are easy. Tom Brady, by being named MVP of the Super Bowl, becomes the winner of a truck given by Chevrolet as a prize to the player named MVP. Brady, however, decided that Malcolm Butler, whose interception of Russell Wilson’s pass sealed the New England Patriots’ win, should get the truck, and announced he would transfer the truck to Butler. That’s a nice gesture, but it also raised tax questions. What would be the tax consequences?

The answer to the first “What would be the tax consequences” question is easy. Under statutory and judicial precedent, Brady would be required to include in gross income the fair market value of the truck. Depending on information not available, he might be subject to a gift tax on making a taxable gift to Butler, though the best guess is that Brady would simply use a small portion of his unified credit to offset any gift tax liability. Barring further changes in the law or in Brady’s financial situation, that decision would cause his estate tax in some distant future year to be a wee bit higher. For all practical purposes, the amount and the time lag make that tax burden minimal.

That answer, however, caused someone to ask Chevrolet to transfer the truck directly to Butler. And Chevrolet, according to this story, decided to do just that.

So again one must ask a question. What would be the tax consequences?

The answer to the second “What would be the tax consequences” question also is easy. What makes it worth discussing is that the wrong answer has been offered. In that same story, one Robert Raiola, a CPA, is reported to have said that “Now instead of Brady paying income taxes, Butler will have to.”

Because Brady won the prize, he must include the value of the prize in gross income. Not only did he win the prize, he took delivery of the vehicle when the keys were handed to him. In order to have avoided being taxed on the prize, he would have needed to reject the keys, and to have disclaimed the prize before he became entitled to it, in other words, at some point before he was named MVP. He could have done so by somehow declining to be named as MVP, though I don’t know if that is possible, or by rejecting any claim to the prize associated with being named MVP. He did neither. And even if he had not been handed the keys, he would have had constructive ownership of the truck by virtue of being named the MVP.

Many years ago, in Rev. Rul. 58-127, 1958-1 C.B. 42, the IRS concluded that a taxpayer who won a prize by submitting the winning entry in a contest was required to include the prize in gross income despite having directed the payor to deliver the prize to someone else. Did it matter that title to the prize did not pass through the taxpayer’s hands? No. The IRS explained, “It is not material whether the taxpayer actually acquired title to the prize.” In other words, Chevrolet, in transferring title directly to Butler, is acting as Brady’s agent, and the substance of the transaction remains the winning of a taxable prize by Brady and the making of a gift by Brady. This conclusion is strengthened by the fact that Brady didn’t reject the prize, but exercised dominion and control by dictating who would receive the prize, namely, Butler. That’s because Brady became economic owner of the truck when he was named MVP, and Chevrolet had no choice other than to deliver title to Brady or someone designated by Brady. Had Chevrolet, as suggested by some, awarded the truck to the Seattle offensive coordinator or head coach, Brady would have a contract claim for Chevrolet’s breach of the MVP prize agreement.

The last time Brady won a prize, he gave it to a charity. So the issue washed out, with the charitable contribution deduction offsetting the gross income. In contrast, Malcolm Butler is not a charity. There’s no deduction for Tom Brady to use to offset his gross income.

Unfortunately, this incorrect advice is popping up all over the internet, for example, not only in the ESPN story, but also on the website of ABC 7 in California, CBS Sports, and dozens of other sites. Raiola, who is described as an expert in sports management, is going to find it difficult to retract the bad tax advice.

Friday, February 06, 2015

So Does Anyone Pay Taxes? 

It’s time to ponder the tax issues in another Judge Judy episode. Readers of MauledAgain know that television court shows are among the various sources producing material for this blog. Surely I have missed many episodes that generated other tax issues, as I don’t get to see very many of the shows. In the past, I have commented on six, starting with Judge Judy and Tax Law, and continuing through Judge Judy and Tax Law Part II, TV Judge Gets Tax Observation Correct, The (Tax) Fraud Epidemic, Tax Re-Visits Judge Judy, and Foolish Tax Filing Decisions Disclosed to Judge Judy.

In this most recently viewed episode, the plaintiff sued his former employer for unpaid wages. The defendant allegedly employed the plaintiff as a day laborer. There was no dispute that the plaintiff worked for the defendant. During the process of trying to determine how much was owed, Judge Judy asked a sensible question. Surely tax records would provide information. When asked if he had filed tax returns, the plaintiff answered no. When asked if he had filed business tax returns reporting the plaintiff as an employee, the defendant replied no.

Perhaps the parties keep up with the news and realize that the IRS lacks the resources to audit more than a handful of taxpayers. Perhaps they realize that Congress has made additional cuts to the IRS budget. Perhaps they will be joined by everyone else. Once we end up with no one paying taxes, it will be amusing, and tragic, to observe the outcome.

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