Archive for the ‘California’ Category

Roni Deutch In More Trouble

Thursday, April 21st, 2011

California’s Attorney General would like to see “Tax Lady” Roni Deutch in prison. Yesterday, California Attorney General Kamala Harris asked a Sacramento court to send Ms. Deutch to prison for contempt. Why? Because Ms. Deutch and her law firm are accused of shredding 2.7 million pages of documents related to a case filed against her firm by the State of California.

Instead, it appears that the court has put a receiver in charge of her business and frozen her assets. Ms. Deutch will face a contempt charge in a hearing now scheduled for July 22nd.

Bozo Tax Tip #7: Nevada Corporations

Friday, April 8th, 2011

A repeat for the fourth year follows, but it’s one again getting a lot of play due to business conditions here in California. While I’m focusing on California and Nevada, the principle applies to any pair of states.

Nevada is doing everything it can to draw businesses from California. Frankly, California is doing a lot to draw businesses away from the Bronze Golden State. But just like last year you need to beware if you’re going to incorporate in Nevada.

If the corporation operates in California it will need to file a California tax return. Period. It doesn’t matter if the corporation is a California corporation, a Delaware corporation, or a Nevada corporation.

Now, if you’re planning on moving to Nevada incorporating in the Silver State can be a very good idea. But thinking you’re going to avoid California taxes just because you’re a Nevada corporation is, well, bozo.

Could You be Doing Business in California Without Knowing It?

Monday, March 28th, 2011

Let’s say your Florida-based company manufactures and sells widgets. You used to be located in California, but decided the Sunshine State was a better business location than the Bronze Golden State. You have no employees, property, or any other ties to California. You do sell to California, but those sales are all shipped from your plant in Florida. Your sales to California businesses totaled $287,012 (out of your $1 million in total sales) in 2011. As you open your mail you see a letter from California’s Franchise Tax Board (the income tax agency here in California) saying that you have economic nexus to California and you must file and pay California taxes. Could this happen?

Yes, it could. Under a law passed by California’s legislature, effective as of January 1, 2011, any business will be considered to have economic nexus to California if:

  • It is organized or domiciled in California;
  • Its sales exceed the lesser of $500,000 or 25% of total sales;
  • Its payroll exceeds the lesser of $50,000 or 25% of its total compensation; or
  • Its real and tangible personal property exceed the lesser of $50,000 or 25% of the entity’s total real and tangible personal property.

According to the law as passed the Florida company would have economic nexus with California, as more than 25% of its sales were to the state. Of course, it is highly unlikely that the FTB would be able to discover this, and very unlikely that a notice would ever find its way to that company.

There’s also the dubious legal nature of this. The US Constitution that only the federal government can regulate interstate commerce. The constitutionality of economic nexus is very debatable. Additionally, the ability of California to collect such a tax is doubtful.

(Do note that the other areas of economic nexus–employees within the state, property within the state, or being a California entity–almost certainly are legal and California has every right to tax such entities.)

Just another way that California leads the country….

Will California Start Their Own Online Poker Sites?

Monday, March 14th, 2011

Unless you’ve been under a rock, you know that California is broke. The budget deficit for next year is projected at somewhere between $25 and $30 billion. That has caused legislators in the Bronze Golden State to look at online poker as a revenue source.

Back in 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA). The UIGEA made it illegal to accept bets from illegal Internet gambling operators. But the law didn’t criminalize any gambling; rather, the law looks to state laws to see if the gambling activity is legal or illegal. Online poker sites exist, but the operators are overseas. The two largest sites, PokerStars and Full Tilt Poker, operate in European tax havens.

California legislators have looked at the amount of money being bet, and decided they’d like to get their hands on it. Is it to help make better poker sites for the players? Of course not; it’s a simple revenue grab. The state needs money, and for Democratic legislators who want to increase the size of state government (or keep it as large as it is today), revenue is needed (California voters haven’t approved a statewide tax increase in some time and aren’t likely to in the near future). This is an easy way to get money, right?

The problem for the legislators proposing this is that everyone wants a piece of the pie. Indian tribes (who control most gambling in California) want a piece, the legal cardrooms in California (i.e. Commerce Casino, Bicycle Casino, etc.) want their piece, and the Indian tribes that don’t have gambling want their piece. As for the players, well, if you expect anything player-friendly out of the California legislature, you’re betting with a pair of sevens into a full house. If anything passes in Sacramento it’s almost certain that the existing sites will be made illegal (under California law).

This news story gives an accurate flavor of what’s happening in Sacramento. As for what’s next, probably more bickering and dithering. After all, that’s one thing the California legislature is good at.

More Trouble for Marijuana Dispensaries from the IRS

Monday, March 14th, 2011

Back in 2007, the Tax Court ruled that a non-profit that supplied medical marijuana to terminally ill patients could not deduct business expenses related to that activity but could deduct the expenses related to their counseling and caregiving activities. It appears that the IRS has now started to audit medical marijuana dispensaries throughout California.

The Marin Independent Journal is reporting that a Fairfax, California medical marijuana dispensary has been audited and told that they will not be able to deduct any business expenses. The case is in the audit stage, so this case will percolate for some time. (Hat Tip: TaxProfBlog)

Medical marijuana is legal under California law. However, it is illegal under federal law. While the Obama Administration pledged to not go after medical marijuana dispensaries, it appears the IRS hasn’t heard the news. And this is likely to pose a real problem for the dispensaries.

In the case the Tax Court previously decided, the non-profit was providing end-of-life counseling:

By conducting its recurring discussion groups, regularly distributing food and hygiene supplies, advertising and making available the services of personal counselors, coordinating social events and field trips, hosting educational classes, and providing other social services, petitioner’s caregiving business stood on its own, separate and apart from petitioner’s provision of medical marijuana.

But a medical marijuana dispensary likely has one purpose: distributing marijuana to those who medically need the drug. While a San Francisco lawyer in the newspaper article I referenced suggests that counseling users on which type of marijuana to use is another type of business, I think this will be a much tougher sell to the Tax Court. The problem is this is all related to the act of selling and distributing (a.k.a. trafficking) marijuana.

It may take some time for this issue to reach the Tax Court; the case is apparently just in the audit stage. There will likely be an appeal before it heads to court. That said, I do expect this case to head to Tax Court in about a year, with a ruling in a couple of years.

Stanford Athletes Sacked

Friday, March 11th, 2011

As a graduate of the University of California, Berkeley, it’s always nice to see our Bay Area rival, Stanford, suffer some ignominious defeat. Courtesy of the TaxProfBlog, we discover that Stanford maintained for nearly a decade a list of “easy classes” for its athletes.

After California Watch discovered the list, it’s been discontinued. No more “Beginning Improvising” for Cardinal athletes.

Spending More Than You Have Doesn’t Work

Monday, February 28th, 2011

If you make $100,000, but you’re spending $200,000, you’re either going to use up your savings or go bankrupt. Individuals and families know this; we all live within our budgets.

However, that fiscal discipline seems to be an afterthought for most states and the federal government. The people have had enough of tax increases (even here in California no tax increase passed in the November election), and want government to live within its means. A limited government.

California’s budget deficit is something like $30 billion. The state’s revenues are about $75 billion. The day of reckoning is here. Republicans aren’t going to agree to tax increases. Their constituents are fed up, and want a smaller government.

Meanwhile, California does almost everything it can to drive business out of state. The regulations that a business must comply with in California are lengthy. Every week I see in the Register another business that’s moving out of California.

True, businesses move all the time, and some of this is inevitable even if California were a business-friendly state. But California is making it hard even on entrepreneurs. Why is Texas, a low-tax, low-regulation state prospering? Why is it that the two states which have the most budget issues, Illinois and California, are run by Democrats? I don’t think it’s a coincidence.

Joe Kristan has an interesting post on the issues in Wisconsin. He states,

Tomorrow’s here. Government defined benefit funding deficiencies range from serious (Wisconsin, for example) to catastrophic (Illinois, California). By having some current compensation diverted to fund their retirement plans, Wisconsin employees are finally facing Mr. Johnston’s theoretical trade-off in real life.

In California, government pensions are going to be cut; the alternative is perhaps increasing income tax rates by 50% (and that’s just not going to happen). This may occur next year, or ten years from now, but it’s inevitable. California is bankrupt; we just continue to operate with the facade that all is well.

Not only are pensions going to be cut, but state agencies will be, too. There just isn’t the money to fund every agency. This will likely force a cutback in regulations, as there just won’t be the people to administer every regulation.

One area where I think we’ll see this first is in higher education. There have been several new state universities and schools within universities (both in the University of California and California State University systems) open in the past few years. For example, a friend of mine is attending the new UC Irvine School of Law. Some of these colleges and universities will close. (I don’t necessarily mean the UCI School of Law; just that some of the new schools and colleges are likely going to be victims of budget cuts.)

I’m not a fan of public employee unions. In Irvine, my garbage is picked up by Waste Management (a private contractor). I pay about $36 a quarter for garbage collection. My mother lives within the City of Los Angeles. Her garbage is picked up by the city (by public employees). She pays about $36 a month. I don’t think the difference is a coincidence.

I doubt that the bankrupt cities in California (such as Los Angeles) will voluntarily privatize their public services. Yet it’s far more likely that once a large California city, county, or other public entity (besides the state) declares bankruptcy–and it’s inevitable that this will happen–that we’ll see a flood tide of privatization. It’s pure economics: If Waste Management is willing to pick up garbage for $36/quarter and it costs a city $36/month, so what that unions and union employees lose their jobs. Unfortunately, it will probably take a city such as Los Angeles declaring Chapter 9 Bankruptcy in order for privatization to take hold in California.


Will California bite the bullet and make expenses match revenues? With Democrats in control of the governorship and the state legislature, the chance is about the same as it snowing in Irvine. Well, it almost snowed in the flatlands of Southern California this past weekend. I suspect that it will almost get resolved…and then there will be yet another smoke and mirrors budget.

Hopefully, I’m wrong and Governor Brown will do the unthinkable (for Democrats): confront the problems that California faces. I’m just very skeptical that this will occur.

If Statesboro, Georgia Sent Me a Property Tax Lien

Thursday, February 17th, 2011

Let’s suppose there was a company in Statesboro, Georgia called “Clayton Financial and Tax.” Let’s further suppose that they didn’t pay their property tax bill, and that the business folded. Statesboro tries to find someone to pay the bill, so they put a lien on my business, in spite of my never having been in Statesboro, or having a business address outside of California.

Now, no government entity could be that dumb, right?

Well, Statesboro hasn’t gone after me, but San Joaquin County, California has gone after a Statesboro business. GMP Services, Inc. publishes Statesboro Business and Lifestyle Magazine. Apparently there was another company in Tracy called GMP Services and they didn’t pay their property tax bill. So San Joaquin County has put a tax lien on the Georgia GMP Services, a company that has never been in California. The owner of GMP is not as amused as I was, and is sending a bill to San Joaquin County for the time that he has lost and his costs.

Most likely, this has all been done by computer. The county may be contracting with a collections company; they found a match, and no human looked at the underlying records to see that there were two different GMP Services.

As for the owner of GMP Services, Allen Harkleroad, getting any money, his chances are slim and none (with none the clear favorite). No government agency in California is going to voluntarily pay. Mr. Harkleroad would have to file a lawsuit, and this case would be a tough one.

I do sympathize with Mr. Harkleroad. Tax agencies do far too many computer driven programs, where no human looks at anything until a complaint is received. The problem is that these programs bring in far too much money to go away.

As for San Joaquin County, perhaps they should only look for California entities rather than businesses throughout the country. I certainly hope they’re not going after any Smiths, Joneses, or Foxes.

California Cap and Tax Hits a Snag

Monday, February 7th, 2011

Last November, California voters refused to overturn AB32. That misguided legislation imposed climate change as gospel and gave the California Air Resources Board a mandate to stop ‘global warming.’ Coincidentally, last fall CARB implemented a ‘cap and trade’ system for the state (what I call ‘cap and tax’).

But in what can only be described as schadenfreude, a judge in San Francisco made a tentative ruling that the plan violates California’s environmental laws. The judge stated that CARB didn’t investigate alternatives and did not comply with existing environmental law.

Unfortunately, the underlying law–one that stands to drive even more business out of the Bronze Golden State–is still on the books. However, it likely will be a couple of years before CARB will be able to implement anything on this bad piece of legislation.

California Disclosure Obligations

Saturday, February 5th, 2011

There are rules regarding reporting a reportable transaction (including a listed transaction) to the IRS. The Franchise Tax Board wants to get the word out that there are rules about reporting such items to the FTB, too. This impacts both taxpayers involved in such transactions and material advisors.

For a California taxpayer, the FTB reminds us,

The general rule for California purposes is that Form 8886 must be attached to the taxpayer’s original or amended tax return for each taxable year for which the taxpayer participates in a reportable transaction, including listed transactions. Additionally, only for Form 8886s filed for the initial year of participation, the taxpayer must also mail a copy of that disclosure to FTB’s Abusive Tax Shelter Unit (ATSU) at the address shown below. It does not matter whether the taxpayer files a paper return or e-files. California listed transactions entered into prior to September 2, 2003, are not required to be disclosed unless the transaction meets one of the other categories of reportable transactions defined under Treasury Regulation 1.6011-4(b).

Full details on this are available on the FTB’s website.