Former BDO CEO and wolfpack leader Denis Field has won a new trial on charges of tax […]
Tag: Tax Shelters
Supreme Court Rules That IRS Will Have to Hustle If It Wants to Bust Tax Shelters
Aspiring wolf packs will want to take note: The justices, voting 5-4, said the IRS has […]
That Tax Shelter Seemed Like a Really Good Idea at the Time
It helps to be really smart if you want to talk yourself into something really stupid. That’s how a lot of bad tax shelters happen. Let’s call this one the “Dumb-Ass Deduction Distressed Asset-Debt” (“DAD^2” or “DAD-squared”) shelter.
The ingredients:
• A bunch of near-worthless consumer receivables from a struggling Brazilian department store chain.
• A whip-smart Chicago tax lawyer, John E. Rogers.
• A bunch of LLC partnerships for tax-motivated investors.
• Some cash.
The Brazilians contribute their receivables – purportedly with a big built-in loss – to a partnership. This partnership contributes the debt to other LLCs. Shortly afterwards the first LLC buys out the Brazilians, who are desperate for cash, leaving the crappy receivables behind. The investor partnerships then write off the debts as bad debt deductions, giving big tax losses to the investors.
It can’t fail, right? Well, aside from the obvious problems, like:
– The tax law presumes that if a partner (think Brazilians here) contributes stuff to a partnership, and then gets cash back in redemption of the interest within two years, then it wasn’t really a tax-free partnership contribution and distribution. Instead, the tax law presumes that the Brazilian sold the stuff for cash. The partnership was just a place to hide it for awhile.
– If the Brazilians hadn’t sold out, the tax law would have required them to get all of the losses. The tax law doesn’t let taxpayers shift gains or losses to others by joining a partnership. After all, that’s what S corporations are for.
The guy who put this thing together was smart, as people who put together sophisticated tax deals always are. The Tax Court spells it out:
Rogers is a member of the International Fiscal Association, an international tax group. He has also been a trustee of the Tax Foundation, a publicly supported foundation that researches tax policy issues and publishes papers. Rogers has worked with the Governments of Puerto Rico and Romania in developing programs implementing their industrial taxation programs. Rogers has written a number of publications, primarily on international tax matters, transfers of technology, the use of low-tax jurisdictions, and the compensation of executives outside the United States. In 1997 Rogers was invited to testify before the House Ways and Means Committee on fundamental international tax reform.
When a plan by someone who is that smart fails, it fails spectacularly. Tax Court Judge Wherry disallowed all of the bad debt deductions, and imposed penalties, pointing a finger at the lawyer-mastermind:
There has been no showing of reasonable cause or good faith on Rogers’ part in conceptualizing, designing, and executing the transactions. To the contrary, as we have detailed above, Rogers’ knowledge and experience should have put him on notice that the tax benefits sought by the form of the transactions would not be forthcoming…
I’m sure that, over drinks, Mr. Rogers would have me convinced that he was right. That’s why you should never buy a tax shelter until you sober up.
Ex-BDO CEO Denis Field Convicted in Tax Shelter Case
Wolf pack leader and former BDO honcho Denis Field was convicted on a variety of charges related to tax shelters that he and others provided to wealthy clients, according to several reports. This seems to mark the end to this particular case, as Denis’s colleagues all pleaded guilty back in 2009. Others convicted alongside Field included former Jenkens & Gilchrist partners Paul Daugerdas and Donna Guerin and David Parse, formerly of Deutsche Bank Alex.Brown.
New York Law Journal reports that during opening remarks, the prosecution quoted Mr Field as telling his fellow wolf packers that they would be “”swimming in a river of green” if they aggressively sold the tax shelter plans. His defense claimed that he was merely the “head showman and marketer” which sounds like a pretty lousy excuse but his lawyers stated that they will still file post-trial motions to have the verdict set aside. [WSJ, NYLJ]
BDO’s Tax Shelter Team Was Known as the ‘Wolf Pack’
I figured you guys should know that.
Ex-CEO Denis Field’s trial for his alleged lead-wolf role in the tax shelter case started last week, while the rest of his fellow wolves – Michael Kerekes, Adrian Dicker, Charles Bee Jr. and Robert Greisman – all pleaded guilty back in 2009.
Led by Field, BDO Seidman was one of the most aggressive tax-shelter marketers, starting in the late 1990s. Inside the firm, the tax-shelter team was known as the “wolf pack.” Field became CEO of the firm in 2000. Tax services accounted for nearly half of BDO Seidman’s $420 million in U.S. revenues in 2002, up from 28 percent in 1998.
Ex-chief executive of BDO Seidman on trial in tax-shelter case [CT]
Did Prosecutors Bungle Their Case Against BDO’s Former CEO?
Maybe! Denis Field’s lawyers certainly aren’t amused with the tactics:
Denis Field, ex-CEO of BDO Seidman, the world’s fifth largest accounting firm, claims Manhattan prosecutors intimidated his former firm into curtailing and eventually cutting off payments to his lawyers. In recently filed court papers, he claims that the government deprived him of his constitutional right to counsel and seeks dismissal of the case.
Field alleges that among other tactics, prosecutors threatened to indict the firm if it kept funding his defense. During a hearing on Thursday, U.S. Judge William Pauley III of the Southern District of New York, who is presiding over the case, closely questioned prosecutors about the accusations. A ruling is expected soon.
If this sounds familiar, it should. Back in 2007, the very same prosecutors – Stanley Okula and Shirah Neiman – pulled a similar stunt, “convincing” KPMG not to pay the legal fees for the partners and employees that were facing criminal charges for their roles in the firm’s tax shelter schemes:
That case was thrown out in 2007 after U.S. Judge Lewis Kaplan found that prosecutors had improperly “coerced” KPMG into cutting off the legal fees of 13 former KPMG partners and employees. “KPMG refused to pay because the government held the proverbial gun to its head,” Kaplan wrote.
Two of the prosecutors called out by Judge Kaplan — Stanley Okula and Shirah Neiman — have also been involved in the Field case, a fact that is prominently noted by Field’s lawyers in their motion to dismiss. “The reason for the government’s conduct is obvious — as with KPMG, the prosecutors believed BDO ‘should not pay the fees’ of allegedly culpable individuals,” Field’s lawyers argue. They cited the KPMG case no fewer than 50 times in their brief.
So it appears that Okula and Neiman aren’t much for personal reflection and may have pulled out the proverbial gun again. But they’re making a case for themselves, saying BDO’s motivation for sticking Field with the tab isn’t related to them putting the screws to the firm, “the government argues that BDO stopped paying Field’s legal bills after the firm discovered that Field hid from the board a report, prepared by law firm Skadden, Arps, Slate, Meagher & Flom, warning that certain tax shelters that Field was promoting were questionable.” Hey! – you can even ask BDO’s general counsel, he’ll tell you that the firm’s decision had nothing to do with get the government off their backs. And if you can’t believe a lawyer, who can you believe?
Prosecutors on defensive in BDO Seidman fraud case [Reuters]
Ex-KPMG Senior Manager Convicted of Selling Tax Shelters Is 50% Less Poorer Today
A win is a win and the U.S. Second Circuit Court of Appeals handed one to John Larson, one of three defendants sentenced last year for selling illegal tax shelters. The Court “found Larson’s [$6 million] fine too high, citing a lack of jury findings to support a fine above $3 million. It returned that part of the case to the lower court to recalculate any fine.”
That’s more or less where the good news ends. The court did uphold the convictions of Larson and his two co-defendants – ex-KPMG Partner Robert Pfaff and ex-Brown & Wood partner Raymond Ruble. Larson was sentenced to a 10 year prison term last year. Pfaff received 8 years and Ruble 6-1/2 years.
Appeals court upholds KPMG tax shelter convictions [Reuters]
Accounting News Roundup: Rajaratnam Claims KPMG “Tricked” Him into Illegal Tax Shelter; United, Continental Agree to ‘Merger of Equals’; Some Thoughts on iPad for Accountants | 05.03.10
Galleon’s Rajaratnam Said He Was Duped in Illegal Tax Shelter [Bloomberg Businessweek]
Raj Rajaratnam, who is awaiting trial in an insider trading case set to take place this fall, claimed that he was “tricked into investing in an illegal tax shelter,” that was developed by KPMG and “tax shelter promoter” Diversified Group, according to a lawsuit from 2005.
Rajaratnam and Galleon co-founder Gary Rosenbach won a $5.8 million in an arbitrator’s judgment against Diversified Group and its president in 2009. KPMG was not mentioned in the judgment and neither Rajaratnam’s attorney nor KPMG would comment on the current r if the firm had made a payment to Raj.
Rajaratnam and Rosenbach said they were induced to invest in a shelter called “OPS,” or Option Partnership Strategy, which was developed by KPMG and Diversified as a way to generate fees for the firms.
“The OPS shelter was essentially an illegal basis-shifting scheme which — unbeknownst to plaintiffs — relied upon a disingenuous reading of the federal tax code,” his lawyers wrote in the complaint.
Prosecutors will be interested to know what Rajaratnam said under oath in his suit against KPMG to determine if any of his statements will be useful in their insider trading case.
United, Continental Agree to Combine [WSJ]
United Airlines and Continental Airlines have agreed to combine, in a stock swap valued at $3 billion.
The “merger of equals” would create the world’s largest airline that would control 21% of the total domestic capacity and be 8% larger than Delta Air Lines in terms of miles flown, serving 370 destinations. Assuming the deal does not raise any antitrust concerns and contracts for employees are approved in a timely fashion, the companies plan to complete the transaction in the 4th quarter of this year.
iPad for business – the taste test [ZDNet]
Dennis Howlett tested out an iPad and since some of you have, at the very least, wondered about it for your own professional use, here’s his take on Numbers, a spreadsheet application that he says is “gorgeous to look at” but has several drawbacks:
I found it was possible to create a confusing error formula. Ahem. That will require fixing. While Numbers has masses of functions (see illustration), there is no ability to create Pivot Tables. Those are the accountant’s stand by for reporting and the like. It’s boring but essential stuff. Without Pivot Tables, the iPad won’t get a sniff in the hands of this powerful and influential group. There is an alternative for the future. Some smart developers out there will build reporting applications that can run over the Internet. It is one of the gaping holes in the SaaS/cloud story requiring urgent attention.
Any other thoughts on iPad for accountants? Weigh in.
IIA Proposes New Standards for Internal Auditors [Compliance Week]
The Institute of Internal Auditors is requested comment on proposals for new standards that would include a requirement for internal auditors to provide audit opinions and to additional explanation of the responsibility of internal auditors for the work of contractors.
Grant Thornton closing Triad office, moving operations to Charlotte [Triad Business Journal (subscription required for full article)]
Grant Thornton finally got around to announcing the closure of its Greensboro/Triad office. We reported on the closure back in February. The firm announced that the “vast majority” of its approximately 30 employees would be moving to the firm’s offices in either Charlotte or Raleigh. The TBJ reports National Director of Communications, John Vita’s comments: “We remain committed to the Triad marketplace, however, we believe it can be best served over the long term by attracting the highest quality professionals who wish to work out of our larger offices in Charlotte and Raleigh.”
Imprisoned Ex-KPMG Partner Sentenced to 57 Months for Defrauding IRS
Today in insult to injury news, Bob Pfaff, who pleaded guilty back in the fall for conspiracy to defraud the IRS, was sentenced today to 57 months for his tax untruthiness. He was also ordered to pay the IRS over $1 million in restitution. The bright side for Pfaff is that Judge Richard Berman ordered that only three months of this new sentence would be served consecutively. After 97 months, an additional three will be nothing. That’s just half of a baseball season.
Pfaff is already serving a 97 month sentence for his role in the KPMG ‘tax shelter mill’ that originally involved 17 KPMG executives. Charges were dropped against all but four of the accused after it was determined that prosecutors had pressured the Firm to not pay their legal bills.
Seemingly this marks the end of this particular KPMG/tax shelter case. Another recent case involves Daryl Haynor, a partner in the Tysons Corner office. Mr Haynor was indicted back in the fall for allegedly conspiring to defraud the IRS to the tune of $240 million.
Ex-KPMG Partner Pfaff Gets 57 Months for Tax Crime [Bloomberg BusinessWeek]
(UPDATE) Ernst & Young Partner Sentenced to Prison for Role in Tax Shelter Scheme
In accountants going to jail news, E&Y partner Robert Coplan was sentenced to three years in prison for his role in creating tax shelters for wealthy clients from 1998 to 2006.
In addition to the jumpsuit (denim?), Mr. Coplan was ordered to pay a $75,000 fine and peform 120 hours of community service, half of which must be counseling of tax professionals about his time as a scofflaw.
Judge Sidney Stein said that while Mr. Coplan was an otherwise all right guy, the sentence was for ‘general deterrence’ and that he understood that ‘there was pressure coming from higher-ups at Ernst & Young’.
Judge Stein is scheduled to hand out more prison time to former E&Y partner Martin Nissenbaum today, while former partners Richard Shapiro and Brian Vaughn tomorrow.
Presumably all the men have access to a toilet without too much hassle.
UPDATE, Friday 8 am: Martin Nissenbaum was sentenced to two-and-a-half years. Not sure why he got 6 months less than Coplan but we’re sure he’s thrilled with the outcome.
E&Y partner gets prison over tax shelter scheme [Reuters]
Former KPMG Partner Sues Firm for $30 Million
This whole tax shelter problem for KPMG is back from the dead, as a former partner who was indicted and later exonerated of the charges has sued the firm for “attorney fees, lost wages, and future earnings,” according to the L.A. Times.
David Greenberg’s lawsuit alleges that “[he] was singled out as a rogue employee to cover up the company’s own widespread practice of tax evasion and conspiracy. The suit says KPMG publicly accused Greenberg of committing crimes and allegedly tried to divert attention from its illegal practices.”
So, yeah, that kinda sounds ugly. Nineteen people were originally indicted in 2005 for the tax shelter schemes and the lawsuit alleges that Greenberg is the only person whose legal fees have not been paid by KPMG. He also claims that he’s still being named in lawsuits and has amassed $10 million in legal fees. Dude’s probably a little pissed.
Continued, after the jump
Natch, KPMG isn’t amused by the whole accusation of ‘widespread practice of tax evasion and conspiracy’ and released the following statement:
“The claims throughout this lawsuit are baseless,” KPMG spokesman Dan Ginsburg said. “We will use all appropriate measures to defend ourselves…This lawsuit attempts to revive issues that are long dead,” Ginsburg said. “Mr. Greenberg released KPMG from any obligation to pay his legal expenses in a 2003 agreement which has been upheld by the court.”
Hell, if that’s true, then this thing should get thrown out, no prob, right? WTFK really but it’ll be fun following how nasty this gets.
Oh and just for fun, Greenberg is suing for an additional $20 million for “…defamation and emotional distress from spending five months in jail.” Not sure where Greenberg did his time but if the digs qualify as PMITA prison, then $4 million a month is probably fair.
We realize that it’s still early in LA for a Monday but if you’ve got insider information on this story, shoot it our way. You know, the ugly stuff.
Former KPMG partner sues accounting firm for $30 million [Los Angeles Times]
KPMG Is Probably Happy This Guy Left Prior to Getting Really Creative
A former KPMG partner has pleaded guilty today to conspiracy charges related to tax shelter scheme.
According to the WSJ, “[Robert] Pfaff is currently serving a 97-month prison sentence after he and two others were convicted on tax evasion charges last year in a case once billed as the largest tax-shelter fraud case in U.S. history. In that case, prosecutors had alleged that Pfaff and another former KPMG employee left KPMG in 1997 and formed an investment adviser known as Presidio Advisory Services, which was little more than a ‘tax shelter mill’.”
Doesn’t ‘tax shelter mill’ sound like a wonderful place of capitalistic creativity and entrepreneurship where things just magically happen and you don’t why or how? Sort of like a financial Charlie and the Chocolate Factory? The kind of place where you wish you worked?
Ex-KPMG Tax Partner Pleads Guilty In Tax-Shelter Case [WSJ]