The FTB Losing Streak Continues

The Franchise Tax Board’s battle against Gilbert Hyatt continues in Las Vegas. Mr. Hyatt, as you may recall, moved from California to Las Vegas in the early 1990s a few months before he received a patent settlement in the millions. The FTB conducted a residency audit and found he was still a resident of Nevada. Mr. Hyatt sued the FTB in Nevada; the FTB fought the lawsuit claiming immunity from being sued. That case went all the way to the US Supreme Court, and the Court ruled that the FTB could be sued.

Last year Mr. Hyatt finally won his case, and he won big. He won $396.08 million. Over the last week Judge Jessie Walsh denied the FTB’s motion for a new trial. She also told the FTB that they must post a bond if they wish to appeal. Somehow, Judge Walsh doesn’t think California’s credit is good. I believe (but am not certain) that a 10% bond must be posted, so that would mean about $39 million.

What is thoroughly annoying to me is that the tactics that a California resident cannot sue the FTB even if the FTB were to use the same tactics as they used against Mr. Hyatt. The FTB does enjoy sovereign immunity in California.

Further motions are scheduled to be heard on March 11th. Presumably if these motions are denied the next step is for the FTB to file an appeal.

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Paging President Obama and Secretary Geithner

Today the Tax Court decided Taylor v. Commissioner, a case involving a lien and a levy. While the case itself is interesting (the petitioner is a famous singer), it’s the Court’s conclusion that interested me:

Both petitioner and respondent repeatedly commented on petitioner’s stature as a beloved and well-known professional singer as support for their respective positions in these consolidated cases. We disagree with both parties insofar as they contend that a taxpayer’s celebrity status is somehow relevant to what this Court must do in deciding whether the Commissioner’s collection action may proceed. Every taxpayer, no matter how famous or notorious, has a legal obligation to honestly report and pay his or her income tax liability each year and is entitled to fair enforcement of Federal tax laws. [footnote omitted]

Anyone who believes that Secretary Geithner was treated identically to how you or I would be treated, please step forward….

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Francis Sent Home

Girls Gone Wild founder Joe Francis was released from ClubFed this afternoon. Francis slept through his Monday morning court hearing. He has stated that he was suffering from the flu. He’s been ordered to get a doctor’s note, and present it on February 11th. Until then, he’ll get the bed rest his doctor has ordered—he’s been ordered to stay at home by Judge S. James Otero.

Francis faces ten years at ClubFed if found guilty of tax evasion in a trial set to begin at the end of March.

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Francis Gets to Sample ClubFed

Girls Gone Wild founder Joe Francis faces felony tax evasion charges. This morning he was supposed to appear in Federal Court in downtown Los Angeles at 8:30a.m. He didn’t show up. After a phone call to his home wasn’t answered, a bench warrant was issued.

Mr. Francis finally appeared at 1:30p.m. It’s likely that Judge S. James Otero wasn’t thrilled with Mr. Francis’ excuse of having the flu. Mr. Francis was taken away by the US Marshal’s Service. While his defense attorney pledged to try to have him released, there’s no word on whether she was successful.

Mr. Francis is accused of improperly deducting $20 million from his corporate tax returns. Today’s hearing was so that his defense attorneys could step down because of “strategic differences of opinion.”

News Story: EOnline

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Another Thing to Try at the Next Audit or Appeal

I’m learning a whole bunch of new strategies to use in my representation work, all courtesy of President Obama’s Cabinet appointees. I already have the “I Forgot” defense from Treasury Secretary Geithner. Next is the “Forget ClubFed and Penalties” defense from Tom Daschle.

Former Senator Daschle (D-South Dakota) is the nominee to become Secretary of Health and Human Services. Bill at April15.com has a great post where he notes:

1. he failed to report $80,000 in consulting income

2. he failed to consider that receiving a car and driver from his employer would be income

3. he claimed charitable deductions to organizations that were not qualified charities and

4. all totaled he had to pay over $140,000 in taxes and interest yet didn’t have pay a dime in penalties (when in fact other taxpayer’s have gone to prison for less)

Unfortunately, us middle-class Americans are the ones stuck paying taxes. Perhaps Leona Helmsley was right: “Only the little people pay taxes.”

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A Punter, a Pimp, and Two Executives

With the Super Bowl having just ended, perhaps it’s appropriate that a former NFL punter makes the tax beat this week. He’s joined by a pimp and two executives in a potpourri of tax fraud.

Let’s start in nearby Upland, California. Joseph Prokop punted for Green Bay, San Diego, the New York Jets, San Francisco, the New York Giants, and Miami from 1985 to 1992. After his professional career ended Mr. Prokop became marketing director of Oryan Management and Financial Services of Upland. The company created Tax Break 2000. Thankfully, the Internet Archive has some pages saved from http://taxbreak2000.com/. The government alleges that the scheme combined the Americans with Disabilities Act (ADA) with tax fraud. The idea of Tax Break 2000 was that you could get a tax credit for making facilities ADA compliant. However, the government alleges that Mr. Prokop and two individuals from Las Vegas conspired to defraud the US, committed tax fraud, and aided in preparing false tax returns. They’re facing a trial in Las Vegas

>From a punter to a pimp. Randall Bradley Jones had a lucrative business. It’s alleged he ran six houses of prostitution. What’s no longer just alleged is that he earned $667,000 in 2003 while he reported just $140,000. Illegal income is just as taxable as legal income, and Mr. Jones pleaded guilty to tax evasion in Houston. As a spokeswoman for the IRS said, “You should report your ill-gotten gains just like you report any legal income.” Mr. Jones will pay the IRS a $15,000 fine, will likely spend some time at ClubFed, and must make restitution of around $1 million (including penalties and interest).

We head next to Jackson, Mississippi. Gergory Courtney used to be an executive for Shell. But what Shell didn’t know was that Mr. Courtney created a shell company, Mercury Equipment Co. (MES), that supposedly sold and maintained offshore oil rigs. Mr. Gregory then used his position to approve the contract. That’s fraud, and it also became tax evasion when Mr. Gregory didn’t report the income from MES on his tax return. And it wasn’t a small amount; he admitted to $800,000 of tax evasion. Mr. Courtney pleaded guilty to both tax evasion and mail fraud; he faces up to 25 years at ClubFed when he’s sentenced in May.

Finally, Thomas Jimenez is the former CFO of GlobeTel Communications. And the scheme that brought Mr. Jimenez to a courtroom is definitely complex. GlobeTel needed some loans, and banks want collateral for loans. That didn’t appeal to Mr. Jimenez, so he created C&M Management Consulting. C&M made the loans, supposedly secured by $2.8 million in GlobeTel stock—stock that was paid to Mr. Jimenez and other corporate officers in 2004 and 2005. But then Mr. Jimenez sold the stock, and distributed the proceeds to himself and the other officers. And the stock sale wasn’t reported to the IRS, and that’s a big problem. Mr. Jimenez pleaded guilty to tax evasion; the SEC also has an active probe of Mr. Jimenez’s activities. The other corporate officers have settled with the SEC. Mr. Jimenez is looking at up to three years at ClubFed for tax evasion.

Three professions. Four individuals in trouble with the IRS. It’s a whole lot easier to just pay your taxes then it is to concoct schemes to avoid them…and get away with it.

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Three Fewer Bozo Tax Preparers on the Loose

>From the East Coast comes two tales of Bozo tax preparers. They’re joined by one from the heartland. Together, it’s a trifecta of what not to do.

First, Henderson Joseph of Clarksburg, Maryland used to own Triad Business Services. Mr. Joseph followed the Western Tax Service methods of getting refunds for clients: lying. It works great until you get caught, and with $500,000 of fraudulent tax returns Mr. Joseph did get caught. He pleaded guilty to conspiracy, and he’s looking at about three years at ClubFed.

Meanwhile, Diana Aliffi of Suffolk County, Long Island, New York took Mr. Joseph’s methods one step further. She attempted to defraud New York of $19 million in phony refunds. The New York State Department of Taxation and Finance caught her, and she pleaded guilty in state court to a 76-count indictment with tax fraud front and center. Perhaps it was the fact that she told her clients to have the refunds come to her office instead of to the taxpayers (that in itself is illegal) that got her caught. In any case, Ms. Aliffi is looking at one to three years at a New York penitentiary and must make restitution of $57,000.

Finally, Gene Franklin was convicted in March 2008 on two counts of preparing false tax returns. His business, Franklin & Company, aligned itself with Renaissance, The Tax People. Renaissance was a multi-level marketing firm (no problem yet) that sold tax kits (still doing OK) that advocated tax fraud (that’s a problem). Mr. Franklin will spend 30 months at ClubFed.

Remember, if it sound too good to be true it probably is.

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And the Band Played On…

California continues to limp towards fiscal Armageddon, with no change in the positions of either the Republicans (“cut spending now”) and the Democrats (“increase taxes now”). Meanwhile, a Sacramento judge ruled that Governor Schwarzenegger’s mandatory furloughs are legal. Many state employees will take next Friday, February 6th, as an unpaid day off. State employee unions are expected to appeal the ruling.

Meanwhile, California lawmakers—especially the Democrats in Sacramento—are hopeful that the stimulus package may give some relief to the budget crises. If it does they should remember it will be fleeting. Sooner or later massive budget cuts are going to happen in Sacramento. The day of reckoning has been put off for years. A bailout from Washington would just postpone the inevitable for a few weeks or months.

I’ll keep you informed if anything happens…but I’m not expecting any change out of Sacramento this week.

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Another Headache for Young Gamblers

Many online gamblers are college students and may be considered dependents. You can be claimed as a dependent if your parent(s) provide at least 50% of your support and you are under 18 or a full-time college student under age 24. (A full-time college student is defined as someone taking at least a half-load of courses for at least five months who is working towards a degree at an accredited college or university.) Why is there a headache? Because of a law Congress passed last year.

As part of lowering some taxes Congress extended the kiddie tax until age 24. The kiddie tax is normally thought of as a tax on investment earnings. However, the definition is a bit different than that. “For Form 8615, “investment income” includes all taxable income other than earned income as defined on page 2.” Gambling income is not considered earned income.

I had my first taste of Form 8615 today. (Form 8615 is the form used to calculate the tax for an individual impacted by the kiddie tax.) Your tax professional will likely be asking you for a lot of information if you are impacted by this. He or she will need to know your parents income and filing status. You will likely pay more in tax. And even if you are not claimed as a dependent you may still be impacted by this: The law applies if you can be claimed as a dependent.

My client today was lucky. I don’t believe he can be claimed as a dependent so he’s not impacted by this law. However, I know that this will impact the tax returns of some of my clients and will definitely impact a lot of college students who will be completely unaware of the law. Additionally, many parents will not want their children to know the exact details of what they make yet this new law will either force that to occur or have the parents claim the income on their own tax returns.

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Online Casinos Are Foreign Financial Institutions

Casinos in the United States fall under the same currency requirements as banks and other financial institutions. Congress and the IRS recognized that money laundering and other currency shenanigans could occur at a casino. I’ve always felt that one day the Treasury Department would consider offshore (foreign) online casino to be a foreign financial institution and subject to reporting. Well, that day is here.

Every year I’ve sent an inquiry to the FBAR group at the Treasury on this subject. This year they responded that these accounts must be reported if the account value requirements were met.

To determine if you need to report your foreign financial accounts (including online casinos), determine the maximum value of each account during 2008. Add up the total. If the sum is $10,000 or more all your accounts must be reported.

You have to report these accounts in two ways. First, you must check a box on the bottom of Schedule B and list the country or countries where the accounts are. Second, you must file Form TD F 90-22.1 with the Department of the Treasury (not the IRS) by June 30th. No extension is available for this reporting requirement. Note that the form must be received by June 30th, not postmarked by that date.

The Treasury Department has revised Form TD F 90-22.1 for 2008. You used to have to just list the name of the financial institution, the account number, and indicate what range of money your account held (e.g. $10,000 – $99,999). This year you must list out the maximum value of each account and the address of the financial institution.

Indicating you have an account at a foreign financial institution doesn’t change your tax but it does increase your risk of audit. Given that the penalty for willfully not reporting a foreign financial account(s) is the greater of $100,000 or half the value in the account, you will need to report them.

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