Bozo Tax Tip #9: 300 Million Witnesses Can’t be Right

Posted on March 26, 2014 by Russ

For tax bloggers like myself, Richard Hatch has been a godsend. His antics have been, well, remarkable. While he’s no longer at the top of my Bozo Tax Tips, his story is one that prospective tax offenders should learn. I keep thinking that I’ll be able to drop this Bozo tax tip one year. Yet every time I think that’s going to happen Richard Hatch makes the news again. One tip I can give any celebrity: Be careful about your taxes. The IRS loves going after Bozo tax celebrities. So here’s the story that refuses to die.

For a tax blogger, people like Richard Hatch are wonderful. Hatch, for those who don’t remember, was the winner of the first Survivor and won $1 million. About 300 million individuals worldwide saw Hatch take down the $1 million.

Hatch received a Form 1099-MISC for his winnings. In the United States, winnings from contests are taxable. Hatch claims that CBS and/or the producers of Survivor promised him that they would pay his taxes. (Both CBS and the producers of Survivor deny this charge.)

Here’s what I wrote back in January 2006 when Hatch was convicted:

Mr. Hatch has cemented a place in the Bozo Tax Criminals Hall of Fame (a website I’ll create one day). Let’s look at his stupid not so good actions.

1. Hatch goes to accountant #1, find out that he owes over $300,000 in taxes. He goes to accountant #2, and the tax bill is around $240,000. (At his level of income, some differences in taxes owed is normal.) He then asks accountant #2 what his return would be if he didn’t declare the $1 million in Survivor winnings. Accountant #2 makes Hatch sign a statement that he won’t file that return (it showed Hatch getting a $4300 refund). He filed that return.

2. The IRS amazingly discovers his tax evasion. (With perhaps 300 million witnesses, even the most inept attorney could prove he won $1 million.) He’s offered a plea bargain: pay your taxes, and we’ll let you off fairly easily on the jail time. He accepts the plea initially, then changes his mind.

3. The case goes to trial. Hatch claims that CBS should have withheld taxes. His attorney might want to ask any seasoned accountant about what you should do if taxes aren’t withheld but should have been. (Answer: you pay the taxes.)

4. Hatch’s attorney can’t find the OJ Simpson jury. (Hat tip: Roth Tax Updates)

5. Hatch is found guilty. Roth Tax Updates speculates that his sentence will be around 3 years in jail. Oh, he’ll also have to pay those taxes, and interest and penalties. The maximum possible sentence is 13 years in prison and a fine of $600,000.

Hatch is now serving his prison sentence of 51 months. He recently appealed his conviction, though chances of it being overturned seem slim.

2008 Update: And they were slim. Last February, Hatch’s appeal was denied. As you might expect, 300 million witnesses can’t be wrong.

2009 Update: Richard Hatch continues to look for that needle in the haystack. He’s filed another appeal, though to this non-lawyer it’s more likely that he’ll be released after serving his 51 months at ClubFed than getting a favorable ruling.

2010 Update: Mr. Hatch was released in mid-2009. He then violated the terms of his release and was sent back to ClubFed. Finally, in October, Mr. Hatch was released. He’ll be spending the next couple of years in his home state of Rhode Island.

2011 Update: As part of his sentence, Mr. Hatch was supposed to amend his tax returns and declare the $1 million of income. He neglected to do that. Judge William Smith didn’t neglect to give Mr. Hatch a piece of his mind this past March: He sentenced Mr. Hatch to nine more months at ClubFed. Following his release from ClubFed (in December), Mr. Hatch will have 26 months of supervised release.

2012 Non-Update: Mr. Hatch was released from prison in late December 2011. He has filed a writ of certiorari with the Supreme Court. The chance of the Supreme Court taking his case is about the same as a blizzard in August in Las Vegas. The writ was denied.

2013 Update: Mr. Hatch’s non-payment of taxes extends north of the border. Mr. Hatch owned a piece of property in Sydney, Nova Scotia. That property was sold in a tax sale after Mr. Hatch didn’t pay the property taxes on it for at least six years.

2014 Update: Mr. Hatch still thinks he did nothing wrong. Last year, on Oprah: Where Are They Now, Hatch told Oprah Winfrey, I never did anything deserving of prison time…I never attempted to evade taxes, which was what I was convicted of.” I’ll let the reader decide on the veracity of Mr. Hatch’s statement.

Judge Smith’s remarks from over two years ago have not yet sunk in to Mr. Hatch. “You can continue to proclaim your innocence…You don’t have the option of engaging in this type of game or negotiation with the court. It needs to be a severe punishment. That’s the only thing that will deter you in the future.”

And to think I’d have so little to write about if Mr. Hatch had just paid his $300,000 in tax in the first place.

Posted in Uncategorized | 2 Comments

IRS: Bitcoins Are Property

Posted on March 25, 2014 by Russ

The IRS finally released guidance on Bitcoins and other virtual currency today. The IRS’s notice states that Bitcoins should be treated as property. What does this mean?

1. Bitcoins held as investments are generally treated under capital gain rules. If you buy a bitcoin today and sell it in less than a year and a day, it will be a short-term capital gain or loss. Hold it longer, and it’s a long-term gain or loss. (There are exceptions to the capital gain treatment for other situations of Bitcoin use, though.)

2. Every time you spend a Bitcoin (or any part thereof) you have a gain or loss of income based on the change in fair market value of the Bitcoin. If you use Bitcoins regularly, you have lots of paperwork (or spreadsheet work) in your future.

3. If you mine a Bitcoin (for those not familiar with this term, it’s basically the creation of a Bitcoin), you have increased your income. It’s reportable; Congress hasn’t exempted Bitcoin mining from income.

4. Similarly, if you pay people in Bitcoins, it’s reportable as salary (or nonemployee compensation or whatever else). You need to use a “reasonable consistent method” for determining the valuation as you will need to file a W-2 or 1099 based on US dollars. There isn’t any exception for Bitcoins in information reporting rules.

For those who are active in Bitcoins, I strongly suggest you read the IRS notice. It’s fairly straightforward (and there’s plenty more I haven’t covered). Do note this is not the last word on Bitcoin regulations, though. The IRS is looking for comments on the notice.

The Treasury Department and the IRS recognize that there may be other questions regarding the tax consequences of virtual currency not addressed in this notice that warrant consideration. Therefore, the Treasury Department and the IRS request comments from the public regarding other types or aspects of virtual currency transactions that should be addressed in future guidance. Comments should be addressed to:

Internal Revenue Service
Attn: CC:PA:LPD:PR (Notice 2014-21)
Room 5203
P.O. Box 7604
Ben Franklin Station
Washington, D.C. 20044

Alternatively, taxpayers may submit comment electronically via e-mail to the following address: Notice.Comments@irscounsel.treas.gov. Taxpayers should include “Notice 2014-21” in the subject line. All comments submitted by the public will be available for public inspection and copying in their entirety.

Posted in Cryptocurrencies, IRS | Tagged | Comments Off on IRS: Bitcoins Are Property

Bozo Tax Tip #10: Email Your Social Security Number

Posted on March 23, 2014 by Russ

It’s time for our annual rundown of Bozo Tax Tips, strategies that you really, really, really shouldn’t try. But somewhere, somehow, someone will try these. Don’t say I didn’t warn you!

We’re starting a week early because I want to highlight something that I think contributes to the huge issue of identity theft. We use a web portal for secure loading and unloading of documents and secure communications to our clients. As I tell my clients, email is fast but it’s not secure. It’s fine to email your tax professional things that are not confidential. That said, social security numbers and most income information is quite confidential. Don’t send those through email unless you want to be an identity theft victim or want others to know how much money you make!

If I send an email to my partner in Maryland, it might go in a straight line to him. It also might go via Anaheim, Azusa, and Cucamonga. At any one of these stops it could be intercepted and looked at by someone else. Would you post your social security number on a billboard in your community? If you wouldn’t, and I assume none of you would, why would you ever email anything with your social security number?

A friend told me, “Well, I’m not emailing my social, I’m just attaching my W-2 to the email.” An attachment is just as likely to be read as an email. Just say no to emailing your social security number.

If you’re not Internet savvy, hand the documents to your tax professional or use the postal service, FedEx, or UPS to deliver the documents, or fax the documents. (If you fax, make sure your tax professional has a secure fax machine.) If you like using the Internet to submit your tax documents, make sure your tax professional offers you a secure means to do so. It might be called a web portal, a file transfer service, or perhaps something else. The name isn’t as important as the concept.

Unfortunately, the IRS’s ability to handle identity theft is, according to the National Taxpayer Advocate, poor. So don’t add to the problem–communicate in a secure fashion to your tax professional.

Posted in Tax Preparation | Tagged | 1 Comment

IRS Releases New Forms W-8BEN and W-8ECI

Posted on March 19, 2014 by Russ

The IRS released a new version of Form W-8BEN. The new version should be used by an individual responding to a withholding request from the US. It’s commonly used to note tax treaty benefits.

There is a disclaimer on the form: “For use by individuals. Entities must use Form W-8BEN-E.” There’s only one problem with that: Form W-8BEN-E has not been released yet; it’s still in draft form. I suspect that until the Form W-8BEN-E is released, an entity can use the Form W-8BEN.

The IRS also released a new version of Form W-8ECI. This is the form used by individuals and businesses who are foreigners with a business in the US; that is, income that is effectively connected with the US. Individuals and entities completing this form are required to complete a US tax return.

People receiving either of these forms should make sure they receive the new forms (dated by the IRS as February 2014). The old forms should no longer be accepted.

Posted in International, IRS | 1 Comment

The Flavor of the Season

Posted on March 16, 2014 by Russ

Every tax season is a bit different. The last couple have been late seasons. Very few of my client could file until the end of March; everyone was waiting for paperwork. This year is different: Many of my clients have all their paperwork and want their returns done NOW!

That’s a good thing for business, of course, but it’s going to be bad for this blog…for the next month. Yes, my annual blog hiatus is here a week early. Never fear, I’ve already written my Bozo Tax Tips; they’ll start appearing automatically on April 1st (no fooling!). There will be a couple of other posts about various deadlines, and if something major should happen in the world of tax I’ll interrupt the blog hiatus to post about it.

Everyone have a great Tax Season!

Posted in Taxable Talk | 1 Comment

The Other March 17th Deadline: Form 1042s

Posted on March 16, 2014 by Russ

There’s another tax deadline today: Form 1042s. The form 1042 series (1042, 1042-S, and 1042-T) is used to report annual withholding for US-source income of foreigners. Again, this is a postmark deadline (for paper-filed returns). There is no extra time for electronic filing of 1042-S’s; they are also due today.

Posted in IRS | Tagged | 1 Comment

Corporate Tax Deadline Is Here

Posted on March 16, 2014 by Russ

March 15th is the deadline to file calendar year corporate tax returns (Forms 1120 and 1120S). Because that fell on a Saturday, Monday, March 17th is the deadline. If you’re not ready to file, file an extension. Download Form 7004 and mail it certified mail, return receipt requested. If you’re a C-Corporation and believe you owe tax, pay the amount you think you will owe.

Extensions can also be electronically filed.

Finally, don’t forget your state corporate returns (though not all states have the same deadline). Some states’ extensions are automatic while others are not.

Posted in IRS | Tagged | Comments Off on Corporate Tax Deadline Is Here

A Second Bite at the Apple? Yes, When You Don’t Read the Fine Print

Posted on March 13, 2014 by Russ

I previously wrote about betonsports.com, a former Internet sports betting website. One of its executive, David Carruthers, made the mistake of changing planes at DFW. Unbeknownst to him, he had been indicted. His two-hour layover got extended…to 33 months at ClubFed. Sportsbetting on the Internet is generally against US law (though intrastate sportsbetting in Nevada is legal in certain situations).

Today, as I glanced through a Tax Court case on one Gary Kaplan, I saw the dollar amounts and did some math. Mr. Kaplan was assessed tax for two years totaling $24,369,493, and additions to tax totaling $12,358,596. That’s a total bill of $36,720,089, and certainly reason to petition the Tax Court.

Mr. Kaplan is the founder of betonsports.com. He took the company public on the London Stock Exchange in 2004. Mr. Kaplan transferred his shares of the business into trusts, and those trusts then sold shares. Mr. Kaplan never filed (or paid) tax returns, so the IRS created substitute for returns and assessed the tax and penalties noted above. This occurred after Mr. Kaplan was arrested and made a plea bargain on the criminal case.

Plea bargains are binding documents. They’re binding on the government, too. And that’s the major issue of the case: Did the plea bargain stop the IRS from assessing tax and penalties? Two excerpts from the plea agreement are quite on point:

[T]he Office of the United States Attorney for the Eastern District of Missouri agrees that no further federal prosecution will be brought in this District relative to the defendant’s participation in the BETONSPORTS ORGANIZATION, as described in the Third Superseding Indictment, of which the Office of the United States Attorney for the Eastern District of Missouri is aware at this time. In addition, the Office of the United States Attorney for the Eastern [sic] of Missouri and the Office of the United States Attorney for the Southern District of Florida, which has authorized the Eastern District of Missouri to enter into this agreement, agree that no federal prosecution will be brought in either District relative to the defendant’s involvement in a business venture known as Hope Mills Universal, of which said offices are aware at this time. In addition, the Office of the United States Attorney for the Eastern District of Missouri agrees that no federal criminal tax charges will be brought in this District relative to the defendant’s receipt of income from the BETONSPORTS ORGANIZATION, the sale of stock in BetonSports, plc and/or the investment of the proceeds in any such income or sale. [Emphasis added by the Tax Court.]

The second excerpt note that:

…[t]he defendant has discussed with defense counsel and understands that nothing contained in this document is meant to limit the rights and authority of the United States of America to take any civil, civil tax or administrative action against the defendant * * * except that the United States shall not seek civil forfeiture in connection with this case or any asset constituting or derived from the receipt of income from the BetOnSports Organization, the sale of stock in BetOnSports, PLC and/or the investment of the proceeds of any such income or sale. [Emphasis added by the Tax Court.]

The Tax Court noted that during the change of plea hearing the judge in the criminal case made sure that Mr. Kaplan knew that the government could initiate a civil tax proceeding:

[Court:] Do you understand, Mr. Kaplan, that there is a difference between a criminal tax proceeding and a civil tax proceeding?

[Petitioner:] Yes I do, Your Honor.

[Court:] And in this document, the U.S. Attorney’s Office has agreed it will not bring any criminal tax proceeding against you; however, that doesn’t preclude the initiation of any civil tax proceeding or administrative action against you.

[Petitioner:] I understand that. And we’ve agreed to that.

Mr. Kaplan argued that the statute of limitations barred the IRS’s actions. There’s an obvious problem with that: If you don’t file a tax return the statute of limitations never runs. Strike one.

The petitioner then argues that the plea agreement precludes the actions. The excerpts of the District Court’s questioning are particularly on point. The judge noted that this could happen; Mr. Kaplan said he knew it could. Strike two.

Mr. Kaplan’s last argument is that the IRS is precluded by judicial estoppel.

Under the doctrine of judicial estoppel, once “‘a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’”

Unfortunately for Mr. Kaplan,

…because the plea agreement unambiguously reserved the Government’s right to bring a civil tax action against petitioner, petitioner suffered no detriment nor prejudice from any perceived “position” of the Government. For these reasons, petitioner’s judicial estoppel argument is without merit.

That’s strike three, and Mr. Kaplan owes the $36.7 million…plus interest.

If you ever make a plea deal with the government, you absolutely want to read the fine print. And if a judge points our that a civil tax proceeding could occur, you might want to inquire about that…especially if you have millions of dollar sitting around.

Case: Kaplan v. Commissioner, T.C. Memo 2014-43

Posted in Gambling, Tax Court | Tagged | Comments Off on A Second Bite at the Apple? Yes, When You Don’t Read the Fine Print

The IRS Needs Volunteers for the Taxpayer Advocacy Panel

Posted on March 12, 2014 by Russ

The IRS is looking for a few good men and women. The IRS is looking for volunteers to serve on the Taxpayer Advocacy Panel (TAP), a federal advisory committee that listens to taxpayers, and help identify concerns and make recommendations for changes and improvements to IRS services.

“In trying to comply with an increasingly complex tax system, taxpayers may find they need different services than the IRS is currently providing,” said Nina E. Olson, National Taxpayer Advocate. “The TAP is vital because it provides the IRS with the taxpayers’ perspective as well as recommendations for improvement. This helps the IRS deliver the best possible service to assist taxpayers in meeting their tax obligations.”

There are some requirements: You must be a US citizen, current with your taxes, pass an FBI criminal background check, and be able to commit 200-300 hours each year. New TAP members will begin serving a three-year term this December. The TAP is looking for members in Alaska, Arizona, California, Delaware, Idaho, Indiana, Kansas, Kentucky, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New York, Oregon, Pennsylvania, Utah, Vermont, Virginia and International; alternates are needed for the District of Columbia, Florida, Georgia, Illinois, Louisiana, Maryland, North Dakota, Puerto Rico, Rhode Island, South Carolina and West Virginia.

You can find applications here. Additional information about the TAP and/or the application process is available from 888-912-1227 (select prompt number five) or by email at taxpayeradvocacypanel@irs.gov.

Posted in IRS | Tagged | 1 Comment

An Update on the BOE’s Fixer-Upper

Posted on March 12, 2014 by Russ

When I last wrote about the home of California’s Board of Equalization–one of two tax collecting agencies in California–I called it a fixer-upper. That might have been kind.

It does have a good location (right in downtown Sacramento). It is 24-stories tall. Of course, there are a few problems. Like the windows that pop out randomly and take the wings of gravity down to the ground. There’s the mold that’s been found in many areas of the building…toxic mold. If you ever have to go above the ground floor you might want to use the stairs: The elevator doors periodically don’t open.

The most recent issues relate to water pipe issues. It seems that the waste lines tend to leak. Now it’s been determined that the entire drain system wasn’t built to code. Oops….

The California state auditor is now going to conduct a five-month long study about what to do with the BOE headquarters. Hopefully the auditor will be able to find some solutions before any more problems pop up.

Posted in California | Tagged | Comments Off on An Update on the BOE’s Fixer-Upper