Category: Tax

And I’d Have Gotten Away with It if It Weren’t for Those Blasted Accountants!

If you can get away with tax cheating, is it malpractice for your CPA to make you stop?


A Massachusetts CPA firm found out a new client was using a lame old trick. The S corporation had paid out $1 million to its owner over the years without putting it on a W-2 or treating it as a distribution from the company. Instead, the company every year booked it as a “loan” to the owners – a loan with no note, no interest rate, no security, and no repayments.

This is a time-dishonored way for people who carelessly suck cash out of a corporation to try to avoid the tax consequences – though it is less common in S corporations. It normally fails if the IRS figures it out.

The CPAs told the client that the “loan” should be reclassed as “wages” on the 2002 return to clean it up. The client owner was not excited, and talked to a lawyer to see if there was another way. After the first lawyer failed to satisfy, she talked to a second lawyer, who agreed with the CPA. The client reluctantly filed an amended return, and the owner found herself with a $500,000 tax lien.

At a national firm where I once worked, an audit partner would go from one tax person to another until he found one who told him what he wanted to hear. The client here took that approach, eventually finding a practitioner willing to prepare the 2002 return the old way. That was enough to get the client to file another amended return claiming a refund and to sue the old CPA for malpractice. That might have been a bad decision, in light of this reaction from the astonished judge:

It is surprising that Plaintiffs had the temerity to bring this lawsuit. The complaint was clearly filed too late. The record, mainly as a result of Plaintiffs’ failure to file long-overdue tax returns, is utterly insufficient to demonstrate damages. Most importantly, it is clear that Plaintiffs for many years enjoyed over $1,000,000 in income without paying any taxes on it, and they accomplished this by filing a tax return that improperly characterized the monies they received as a loan. It is close to ludicrous to claim that, by advising Plaintiffs to amend the 2002 tax return to conform with what the law and good accounting practice required, Defendants were being negligent. On the contrary, they were serving their clients ethically and well.

The judge also implied that the client might have been unwise in calling attention to the matter by filing the suit:

As a result of behaving professionally, Defendants have found themselves slapped with this expensive lawsuit. That undeserved headache, at least, is now over. The court can only hope that the IRS and the state authorities will make sure that Plaintiffs now proceed to do what everyone who enjoys the privilege of living in our beloved country is required to do: pay their fair share of taxes.

In other words: come and get ‘em, IRS!

In a world full of charlatans, it can be tough out there for CPAs who try to do the right thing. When you do, it’s nice to know at least one judge has your back.

Cite: RTR Technologies, Inc., Rosalie Berger, and Craig Berger v. Carlton Helming and Helming & Co., PC., ED-Mass., No. 09-cv-30189-MAP.

Someone Is Curious About All Those KPMG Employees Working on General Electric’s Taxes

You may remember earlier this year when The New York Times broke a little story about General Electric’s tax savvy ways and the best tax law firm the universe had ever seen (aka the GE tax department).

The report�������������������� href=”http://www.goingconcern.com/2011/03/jon-stewart-reacts-to-ges-tax-savviness/”>a few people to get bent out of shape because the Times said GE was enjoying $14.2 billion in profit while “claim[ing] a tax benefit of $3.2 billion.” What that “benefit” really entailed was a mystery but many people jumped to the conclusion that it was a “refund” and ProPublica (possibly a little peeved that they got scooped) tried to set the record straight on the Times story.

Despite all the back and forth, everyone was pissed at GE. The company lost a Twitter joust with Henry Blodget and then a bogus press release went out claiming the company was returning the “refund” of $3.2 billion and the Associated Press ran it. Slightly awkward.

Francine McKenna also did a write-up on KPMG’s role in this little soap opera, as the firm has been the auditor for GE since Bill Taft was maxing out the White House bathtub.

The latest twist comes from a tip we received earlier about a “Preservation Notice” sent to all KPMG employees yesterday from the firm’s Office of General Counsel (“OGC”).

URGENT TARGETED PRESERVATION NOTICE: GENERAL ELECTRIC’S LOAN STAFF ARRANGEMENTS
Please be advised that until further notice from KPMG LLP’s (KPMG or firm) Office of General Counsel (OGC), you are hereby directed to take all steps necessary to preserve and protect any and all documents created or received from January 1, 2008 through the date of this Notice relating or referring to the loaning, assignment or secondment of tax or other professionals to General Electric Company and its direct and indirect subsidiaries, affiliates and divisions (collectively “General Electric’s Loan Staff Arrangements”).

As Klynvedlians know, these preservation notices come out so often that you barely even notice them. When you do notice them is when the partner in charge of your team informs you about it before it hits your inbox. What follows is basically the biggest CYA exercise you’ve ever seen. They roll in giant dumpsters and every last scrap of paper you’ve ever written on gets throw in and eventually it gets shipped off to OGC. Your life doesn’t really change all that much other than you’re not allowed to delete another email EVER. At least that’s how I remember it.

ANYWAY, this notice seems a little different. Why exactly? Here’s a excerpt from McKenna’s post:

In defiance of [Sarbanes-Oxley] provisions, KPMG – GE’s auditor – provides “loaned staff” or staff augmentation to GE’s tax department each year. These “temps” perform tasks that would be otherwise the responsibility of GE staff. Sources tell me KPMG employees working in GE tax have GE email addresses, are supervised by GE managers – there is no KPMG manager or partner on premises – and have access to GE employee facilities. They use GE computers because the software required for their tasks is GE proprietary software.

This type of “secondment” to an audit client is never allowed. KPMG should know better.

YEESH. So any documents going back to January of 2008 that relate or refer to someone being assigned under this allegedly dubious arrangement must be preserved. You don’t have to be John Veihmeyer to know that’s a METRIC ASSTON of documentation. It’s not that GE’s tax needs are seasonal; they’re more like “perpetual” or “infinity times infinity.” A company with the best tax law firm already in house that also has an arrangement with a their auditor to throw a few more people at the problem indicates that they are working on this shit 24/7. For KPMG, it amounts to a nice little revenue stream and it keeps lots tax staff busy throughout the year.

But what caused the notice? That’s the question. Our tipster speculated that the PCAOB and SEC might be up to something but per standard operating procedure, neither will confirm nor deny the existence of any investigation or inquiry. KPMG spokesman George Ledwith did not respond to an email seeking comment.

Like we stated previously, these preservation notices are a dime a dozen but because this one deals with General Electric and presumably their tax compliance it qualifies as outside the norm. If you’re in the know or know of someone in the know or have anything else to add, email us or comment below.

President Obama Would Like Those Critical of His Deficit Reduction Plan To Get a Nerdier Argument

By now, you’re probably heard about President Obama’s new plan for reducing our nation’s deficit. It involves raising taxes on the wealthiest of citizens including this new thing called the “Buffett Rule” which would force anyone making $1 million a year to pay a tax rate that is at least as high as the one paid by middle-income taxpayers. Predictably, Republicans have not warmed to the idea and are reacting on cue. Congressman Paul Ryan (WI) got feisty, saying the Buffett Rule was an example of “class warfare.”

The President, not always thrilled with criticism, sees it as slightly more complicated than that:

“This is not class warfare — it’s math,” Mr. Obama said from the White House Rose Garden, addressing GOP critiques of his plan head on.

Yeah Paul Ryan, Mr. Chairman of the House Budget Committee. If you’re not willing to get all nerdy about it, the President doesn’t want to hear it. Come back when you’ve got a blackboard filled with equations.

Obama: “This is not class warfare — It’s math” [CBS]

Some in New Jersey Aren’t Crazy About This Film Tax Credit Situation

A chorus of angry politicians and a national coalition of Italian-Americans called on Gov. Chris Christie Thursday to veto a controversial $420,000 film tax credit awarded to the hit MTV television show “Jersey Shore.” “The governor needs to step up for decency and veto this. If the show wants to go somewhere else, let ‘em,” said state Sen. Joseph Vitale (D-Middlesex), who said it includes negative stereotypes of young Italian-Americans. “Let us just hope against hope that New Jersey taxpayers don’t end up paying for ‘Snooki’s’ bail the next time she is arrested. What a terrible, terrible and misguided waste.” said State Sen. Paul Sarlo (D-Bergen). [NJ.com via DMWT]

John Boehner Asking Supercomittee for a Small Favor

House Speaker John Boehner (R-Ohio) will call on the deficit-reduction supercommittee to lay the foundation for an overhaul of the tax code in a speech to the Economic Club of Washington on Thursday. In an address timed as a response to President Obama’s jobs plan, Boehner plans to restate his opposition to tax increases either to pay for job-creation measures or to reduce the deficit, according to a preview circulated by his office. Yet the Speaker is expected to voice support for closing loopholes as part of broader tax reform, which could include eliminating tax breaks for oil companies and other industries. [OTM/The Hill]

Big 4 Tax Associates Prepared for Sept. 15th Eve All-Nighter with “5-hour Bombs”

It’s come to this.

Our immediate concern was that the imbiber would be suffering from a disturbing reaction but he informed us that he has “just about” quit shaking. Good to know, good to know. If you have your own deadline cocktail that may or may not have caused an unexpected visit to the emergency room, we’d invite you to share it with the group at this time. Happy September 15th!

David Cay Johnston Has a Reading Assignment For Anyone Not Sold on Government’s Role in Stimulating the Economy

Those who said after President Barack Obama’s speech last week to Congress that government does not create wealth, does not create jobs and cannot stimulate the economy spoke nonsense. So do those who say that only private business creates wealth, as if any revenue going to taxes destroys wealth. Adam Smith, who figured out market capitalism in his 1776 book “The Wealth of Nations,” could set them straight. We have plenty of equally competent economists who understand these issues today. They just do not get the attention that the news media lavish on high-profile politicians and pundits who speak with absolute certainty on matters about which their words show they know nothing. [DCJ/Reuters]

Is President Obama Insane When It Comes to Tax Policy?

Yesterday we learned how President Obama would pay for his jobs bill. If you make more $200k ($250k for marrieds), have carried interest income, have a corporate jet or are an oil & gas company, you probably won’t be too happy with the ideas put forth.

If any of these proposals sounds familiar, that’s because they’ve been put through the ringer already and they weren’t received warmly. It’s unlikely that this time around will be any different.

Considering all that, Christopher Bergin at Tax.com is perplexed:

What I can’t figure out is why the Obama administration keeps trying the same thing over and over again expecting different results.

Joe Kristan only goes so far to call these recycled ideas “lame” but if you hold Rita Mae Brown in high regard, then the President definitely has a screw loose.

President Obama’s Tax Plan: ‘No Games, No Politics, No Delays’ — No Chance [Christopher Bergin]

Wilbur Ross Would Like to Torpedo the Income Tax and Replace It with a VAT

Why? Because we need the tax policy equivalent of Law & Order: SVU.

“We need something that is very far-reaching, very dramatic,” said Ross, the head of W.L. Ross & Co. “An idea I’ve been in favor of is to scrap all of the corporate income taxes, all of the individual income taxes, and substitute a value-added tax on all goods imported into the country and manufactured and consumed here, and then rebate it on exports.”

Oh and that jobs bill? It’s bupkis:

“The amount being put in relative to that plan, compared to the jobs they say it will produce, is way out of whack,” Ross said.

Implement VAT, Cut All Income Taxes to Create Jobs: Ross [CNBC]

Here Are the Tax Breaks That Obama Wants Cut to Pay for the Jobs Bill

If you’re in the $200k+ club, a hedge fund manager or corporate jet owner, you won’t be pleased. From Reuters:

— A limit on itemized deductions and certain exemptions on individuals who earn over $200,000 and families who earn over $250,000, which would raise roughly $400 billion over 10 years.

— A proposal to treat carried interest earned by investment fund managers as ordinary income rather than taxing it at capital gains rates, which would raise $18 billion.

— Eliminating certain oil and gas industry tax breaks that would raise $40 billion.

— A change in corporate jet depreciation rules that would raise $3 billion.

Right. Can’t forget the oil companies.

Obama seeks $467 billion in tax changes to fund jobs plan [Reuters]

Study: Progressive Taxation More Likely to Put a Smile on Your Face

[R]esearchers analyzed the relationship between tax progressivity and personal well-being in 54 nations surveyed by the Gallup Organization in 2007—a total of 59,634 respondents. Well-being was expressed in people’s assessments of their overall life quality, from “worst” to “best possible life,” on a scale of 1 to 10; and in whether they enjoyed positive daily experiences (such as smiling, being treated with respect, and eating good food) or suffered negative ones, including sadness, worry, and shame. Finally, the analysis looked at the participants’ satisfaction with their nation’s public goods, from schools to clean air. […] On average, residents of the nations with the most progressive taxation evaluated their own lives as closer to “the best possible.” They also reported having more satisfying experiences and fewer discomfiting ones than respondents living in nations with less progressive taxes. [via TaxProf]