Paranomastically, Ecdysiasts Engaging in Deciduous Calisthenics (And Some Basis, too)

I need to thank Judge Mark Holmes of the Tax Court. Judge Holmes wrote an opinion today that is wonderful and has expanded my vocabulary. It’s also a great case.

Robert Willson bought a bar in Des Moines, Iowa. His bar burned down in 1994, but he persevered and rebuilt. However, Des Moines condemned his bar to expand the city’s airport. The IRS claimed that there was a large capital gain when the city condemned his bar. Mr. Willson disputed that, and the case ended up in Tax Court.

Mr. Willson’s bar catered to hair bands until one of the bands misused a smoke machine and caused the place to burn down. He rebuilt the bar, and rather than my paraphrasing the decision, here’s what Judge Holmes wrote:

He rented out the old house to a tenant who installed minor improvements (e.g., poles) and opened an establishment felicitously–and paronomastically–called the “Landing Strip,” in which young lady ecdysiasts engaged in the deciduous calisthenics of perhaps unwitting First Amendment expression…He also used $169,000 of his $200,000 insurance proceeds to rebuild the bar.

Two things happened around 1999: Des Moines condemned his property and the petitioner visited ClubFed. Mr. Willson did file his 2000 tax return, and the IRS did audit the return. The issue that had to be determined was Mr. Willson’s basis in the bar.

One key issue in the case is the fact that it is a small Tax Court case — an “S case.”

Rule 174(b) allows a taxpayer like Willson to introduce evidence in an S case that would otherwise not be admissible, and it lets us conduct the trial as informally as possible (consistent with orderly procedure) and to admit any evidence we decide has “probative value”–a fancy way of saying any evidence that helps or hurts Willson’s case. This looser rule is important here, because Willson presented his case quite credibly through his own testimony and that of others who worked at the bar or lived nearby during its heyday. Despite the raffish pasts of Willson and some of his witnesses, we found their testimony on his investment in the bar entirely credible.

Basis is always a troubling issue to explain, and this case is messy because of the fire. This case includes both ACRS and MACRS, boot, a fire, and other adjustments. The rest of the case goes into the formula that must be used to determine Mr. Willson’s capital gain. While “there are computations that still need to be made,” it appears that Mr. Willson will likely not owe as much as the IRS claimed.

Case: Willson v. Commissioner, T.C. Summary 2011-132

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Dearest Commissioner Shulman…

I prepare a lot of Schedule C (sole proprietor) returns. That comes with the nature of my practice: I have a lot of professional gamblers as clients, and they file Schedule C. The IRS knows that there are unscrupulous tax professionals out there; I’ve written about many of them in the past. The IRS has decided to send out letters to some tax professionals to help “educate” us.

I have not received one of the IRS’s notices. However, a CPA in Fremont (in the Bay Area) did receive a love letter from the IRS. Via Kelly Erb comes the letter he wrote back to Commissioner Shulman. Here’s an excerpt:

Your letter stating that due to “a high percentage of attributes associated with returns typically containing inaccuracies and misinterpretations of the tax law” you feel the need, in some blanket campaign, to accuse me of improperly preparing tax returns. You supply a review of the rules and the penalties that apply to Tax Return Preparers.

The threat is a possible visit to my office.

Let me coach you on how to write a letter.

“Dear Tax Return Preparer:

Based on a mindless computer analysis, we have determined the obvious; in that you prepare tax returns for many clients who have rental properties. We are too dim-witted to understand that taxpayers often seek out tax preparers because they have rental properties and become subject to the Cost Recovery, Passive Loss and At-Risk Rules.

If you’re a tax professional, Ms. Erb’s post is well worth your time. The good news is that if you haven’t received Notice 4809 from the IRS the NAEA has stated you missed out for this year.

Posted in IRS | Tagged | 1 Comment

South Dakota to Southern Californians: We’re Business Friendly

An interesting story out of the San Jose Mercury-News: The governor of South Dakota, Dennis Daugaard, will make a recruiting trip to Southern California to recruit businesses to relocate. The article notes the advantages of South Dakota in taxes and business climate.

I can just see a response from one of California’s Democratic politicians. It would likely go something like, Yes, Governor Daugaard is correct that South Dakota doesn’t have an income tax, it’s government is business friendly, but boy is it chilly in the winter in Pierre.

But Governor Daugaard doesn’t consider the advantages California has. We have more bureaucrats than any state. We have more levels of permitting, so our projects take longer to get built. And…

Perhaps one day California will get back to being a business friendly state. But given that Governor Brown and Democrats in the state legislature are still talking about raising taxes it doesn’t appear today’s the day.

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Is There Something in the Water In Seattle?

First, it was Sharon Kukhahn and her ridiculous decoding strategy. Now, I get the joy of reporting about David Myrland.

Mr. Myrland will be sentenced on December 2nd after pleading guilty to a tax charge. Mr. Myrland is a believer that he is a sovereign citizen and thus immune from the IRS. At least, I think that’s the snake oil he’s trying to sell. But that’s just the beginning.

Mr. Myrland was unhappy about being arrested. So he decided to issue an arrest warrant himself, asking that Joan McBride, the Mayor of Kirkland, Washington, be arrested. Private citizens can make citizen’s arrests when there’s a crime being committed, but private citizens can’t issue arrest warrants.

The federal prosecutor isn’t as amused as I was when I read this. As reported in the Seattle Post-Intelligencer,

“He continues to this day to apparently believe that he was in the right, and everyone else is in the wrong,” Assistant U.S. Attorney Vince Lombardi told the court. “Despite his guilty plea, he continues to argue that he had a legal right to make the threats he made … and that he was in the right in virtually every respect.”

“Myrland’s arrogance, his anger and his inability to even consider the possibility that he is in the wrong in this matter come through in his various letters to the court,” Lombardi continued. “The evidence amply supports (the) conclusion that Mr. Myrland remains a danger to the community and is a virtual certainty to re-offend.”

Somehow, I suspect that the sentencing judge may tell Mr. Myrland something about threatening public officials when he’s sentenced on the 2nd.

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Kukhahn Gets 7 Years

Sharon Kukhahn found out what buying a yacht instead of paying her taxes would cost her: seven years at ClubFed. That was her sentence this past week; Joe Kristan has more.

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Greenspan Sues California

Last month I wrote about the Kafka-esque saga of Aaron Greenspan and California. I received an update this evening that Mr. Greenspan has filed a civil case against the state alleging that California’s actions violate the federal constitution (the interstate commerce clause) and that the state’s actions have been capricious in their administrative functions. Mr. Greenspan is asking for an injunction against the state and for monetary damages.

I probably won’t be covering this in the future. I first wrote about Mr. Greenspan’s trouble with the bureaucracy as an illustration of how bad the bureaucracy is in California. I’m an Enrolled Agent, not someone in the money transmittal business. This is definitely beyond my area of expertise.

Mr. Greenspan has filed his suit pro se (he is representing himself). I wish him the best of luck in putting a dent in the bureaucracy. Given the glacial pace of federal litigation, it’s likely going to be years before this is resolved.

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“California — Toxic for Business”

Wendell Cox and Steve Malanga penned an op-ed in the Los Angeles Times that’s worth your perusal. They argue what I’ve been saying for some time: “Unless Sacramento moves to improve the business climate, California’s reputation as one of the country’s most toxic business environments will make it hard for the Golden State to regain its luster.”

There’s a lot more in the article, and it’s well worth your time.

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The Secret Decoder Ring Strikes Again!

I’ve written about Sharon Kukhahn before. Ms. Kukhahn thought that there was some magical way to decode your IRS file and magically make your taxes disappear! Ms. Kukhahn sold her packages to the public and pocketed $2,000 – $3,000 per sale. As P.T. Barnum said, “There’s one born every minute.”

Back in 2008, the Department of Justice obtained an injunction against her from selling her worthless decoding scheme. (There is no secret IRS file to decode that will make your taxes disappear.) One would think that Ms. Kukhahn would fade into the sunset.

Nope.

In April 2010 Ms. Kukhahn was arrested, charged with conspiracy and tax evasion. Not only did Ms. Kukhahn allegedly promote phony tax schemes, she also supposedly orchestrated a letter writing campaign to stop the IRS from collecting taxes.

Ms. Kukhahn was found guilty back in May. Ms. Kukhahn supposedly used the proceeds from her scheme to buy a yacht and other worldly goods; meanwhile, many of her clients are suffering under tax debts they’ll never be able to repay.

Sentencing is set for Wednesday.

Now, if you really want a decoder ring, here’s an offer from nearly 60 years ago that (at the time) would get you one. It wouldn’t have removed your taxes, but it was a decoder ring:

Posted in Scams, Tax Fraud | 1 Comment

California Revenues Continue Below Budget

October is usually a good month for California collections (of taxes). After all, it’s the extension deadline and many residents send more money to Sacramento. This month, though, revenues were $810 million below budget; the deficit year to date is somewhere between $1.5 billion and $1.7 billion.

That deficit is just for four months. Projected for a full year, that’s a nearly $5 billion budget deficit.

As I’ve mentioned in the past, the solution is to make California a more business friendly state so that businesses have a reason to be in the Bronze Golden State. Instead, it’s state employees who get raises while the people are threatened by the Governor with higher taxes.

My budget ideas would have no chance of passing in Sacramento, but are simple and to the point:

1. End redundant state agencies.
2. Cut unnecessary state agencies.
3. End public employee unions.
4. Eliminate defined benefit pensions for state employees.
5. Have a two-year term of the Legislature where the legislature is required to cut 20% of state regulations and or laws.
6. Cut state tax rates by 5%. (I am not stating that California’s top income tax bracket should be reduced from 9.3% to 4.3%; rather, that it should be reduced by 5%: From 9.3% to 8.85%.)

I’ve written about the redundant and unnecessary state agencies in the past. I’ll be posting on the other ideas in the next couple of weeks.

California needs to face reality: The state is broke. Radical change is necessary. It won’t be pretty to many but the state can’t continue to spend money it doesn’t have.

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The Real Winners of the 2011 World Series of Poker

Nine individuals came to Las Vegas this past weekend to compete for the championship at the World Series of Poker. Who would be the lucky winner? And who really got to keep the money?

This year’s World Series of Poker concluded late last night at the Rio Hotel and Casino in Las Vegas. The winner of the main event won $8,715,638 but would he actually end up with all that money?

This year we have the first winner ever from Germany. Congratulation to Pius Heinz of Cologne.

First, Mr. Heinz benefits from the US-Germany Tax Treaty. Under that Tax Treaty, gambling income earned in the US is exempt from US taxation. (Without a tax treaty, he’d lose 30% of his winnings to the IRS.) Next, Germany considers gambling to be a use of after-tax (earned) money so for gamblers it’s tax free. (German casinos, however, are heavily taxed: They pay die Spielbankabgabe and other taxes to the German states.) Thus, Mr. Heinz gets to keep all $8,715,638 of his winnings.

Martin Stazko of Trinec in the Czech Republic placed second for $5,433,086. Mr. Stazko is yet another player who thanks the diplomats of his country; the US-Czech Tax Treaty also exempts gambling winnings so he owes nothing to the IRS. It is unclear if gambling winnings are taxed in the Czech Republic. It appears that they may be taxed if you are a professional gambler but are not taxed if you are an amateur. Mr. Stazko has called himself a professional, so we’ll assume he pays the 15% tax rate and will lose $814,963 in taxes.

Ben Lamb, a professional poker player originally from Tulsa, Oklahoma, finished third. Mr. Lamb was the World Series of Poker Player of the Year. The $4,021,038 he won is on top of the $1,332,832 he won previously at this year’s World Series of Poker. Of Mr. Lamb’s $4.0 million, I estimate he’ll owe $1,524,011 to the IRS and $241,268 to the Oklahoma State Tax Commission. Mr. Lamb will owe 37.9% of his income to taxes.

Edit: I have been informed that Mr. Lamb now resides in Las Vegas and has done so for all of 2011. Thus, he will not owe any tax to Oklahoma.

Matt Giannetti of Las Vegas was the fourth place finisher and earned $3,012,700. As a resident of Las Vegas, he doesn’t have to worry about state income taxes. However, the IRS will take an estimated $1,048,642 of his winnings (35%).

Phil Collins finished fifth. No, not that Phil Collins. Although Mr. Collins was named after the famous singer, this Phil Collins is the only married participant and is a professional gambler residing in Las Vegas. He earned $2,269,599 for his finish and will owe an estimated $852,480 to the IRS (38%).

Eoghan O’Dea of Dublin, Ireland finished sixth. Mr. O’Dea was in position to knock out Ben Lamb on Sunday; Mr. Lamb needed one of three eights left in the deck to fall “on the river” to avoid elimination. Unfortunately for Mr. O’Dea, that’s exactly what happened and Mr. O’Dea was crippled and was soon eliminated. The $1,720,831 will likely assuage some of the bitterness of that final eight.

Mr. O’Dea is also thankful that Irish diplomats did a good job with their tax treaty with the United States; gambling income for Irish citizens is also exempt from US taxation. However, gambling income in Ireland is taxable for professionals (there is no tax for amateurs). Mr. O’Dea, a professional gambler, is subject to a tax rate of 20% on his first €36,400; the tax rate is 41% thereafter. I estimate that Mr. O’Dea will owe $695,018 to the Office of Revenue Commissioners (40.4%). That’s the highest percentage in tax of any participant.

Bob Bounahra of Belize City, Belize finished in seventh place. The native of Chicago earned $1,314,097 for his efforts. The only amateur in the final nine, he wished that Belize diplomats were as good negotiators as those in Germany, the Czech Republic, the Ukraine, or the United Kingdom. He loses 30% of his winnings, $394,229, to the IRS. Normally he’d owe the 15% income tax to Belize. However, he’ll likely get a tax credit from his withholding to the IRS so that he is not double-taxed.

Anton Makiievskyi of Dnipropetrovsk, Ukraine earned $1,010,015 for finishing eighth. Another professional gambler, Mr. Makiievskyi doesn’t have to deal with the IRS; the US-Ukraine tax treaty exempts gambling. Unfortunately, gambling income is taxable in the Ukraine. The Ukraine tax rate is based on monthly income: 15% on the first ₴9,410 (the “₴” stands for the hryvnya, the Ukrainian currency), and 17% thereafter. Mr. Makiievskyi will owe an estimated equivalent of $171,656 to the State Tax Service of the Ukraine.

Sam Holden of Sussex in the United Kingdom finished ninth and earned $782,115. The US-UK tax treaty exempts gambling so he loses nothing to the IRS. And like Germany, the United Kingdom currently does not tax gambling winnings of players so he loses nothing to HM Revenue & Customs. (As an aside, I like the old name, Inland Revenue, much more than the current name.)

Here’s a table summarizing the tax bite:

Amount won at Final Table $28,279,219
Tax to IRS $3,819,362
Tax to Czech Tax Administration $814,963
Tax to Office of Revenue Commissioners (Ireland) $695,018
Tax to State Tax Service (Ukraine) $171,656
Total Taxes $5,500,999

That’s a total tax bite of 19.45%. Interestingly, last year’s tax bite was much higher (42.99%). That’s because last year every participant at the final table was subject to taxation; this year, two individuals are exempt.

Here’s a second table with the winners sorted by their estimated take-home winnings:

Winner Before-Tax Prize After-Tax Prize
1. Pius Heinz $8,715,638 $8,715,638
2. Martin Stazko $5,433,086 $4,618,123
3. Ben Lamb $4,021,138 $2,497,127
4. Matt Giannetti $3,012,700 $1,964,058
5. Phil Collins $2,269,599 $1,417,119
6. Eaoghan O’Dea $1,720,831 $1,025,813
7. Bob Bounahra $1,314,097 $919,868
8. Anton Makiievskyi $1,010,015 $838,359
9. Sam Holden $782,115 $782,115
Totals $28,279,219 $22,778,220

Thanks to tax treaties and how Germany and the United Kingdom treat gambling winnings, this year the taxman wasn’t the big winner at the World Series (the IRS finished second). Still, consider that if Mr. Lamb won he would have finished second to Mr. Heinz in net winnings: Mr. Lamb would have kept only $5,412,349 of the $8,715,638 the winner received.

So congratulations to the winners. Just remember that a winner—perhaps the biggest winner of all—is the taxman. As we all know the house always wins.

Posted in Gambling | 12 Comments