New York 4, Indians 3

In New York state there’s been a festering battle between state government and Indian tribes regarding cigarette sales. There were several developments last week.

Judge Kenneth Fisher of the state Supreme Court (equivalent to a district court in California) ruled that the Cayuga Indian nation cannot sell tax-free cigarettes at its stores in Union Springs and Seneca Falls, New York. Judge Fisher noted that the stores are not on Indian reservations. District attorneys in Cayuga and Seneca counties plan on presenting charges to grand juries. The Cayuga Indian tribe will appeal, and that battle could last years.

Meanwhile, a bill that would tax all Indian cigarette sales in New York is awaiting the signature of Governor David Paterson. Indian nations complain that this legislation, if signed, is an attack on their sovereignty. The Buffalo News is reporting that Paterson will sign the legislation though it will take some time to craft regulations to enforce the new law. Additionally, a legal challenge by the Indian tribes is almost certain.

Finally, the New York Times has an excellent article exploring New York City’s battle with a nearby Indian tribe that sells a lot of tobacco. New York City is suing the tribe. With most government budgets being under stress you can expect all local governments to go after anything that even looks remotely promising as a source of funds.

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2009 Required Distribution Relief

Congress yesterday passed a law (and President Bush is expected to soon sign the law) which will give relief for Required Minimum Distributions (RMDs) in 2009. As Joe Kristan noted, this isn’t much relief.

RMDs are required for tax deferred retirement accounts such as 401(k)s and traditional IRAs. Once a participant turns age 70½ they are required to take an RMD from their retirement account. A participant can take more than the RMD, but must make a withdrawal of at least the RMD. Once an RMD is required it must be taken annually.

The problem is that during 2008 most individuals’ retirement accounts fell in value. However, the RMD is based on the amount in the account as of December 31st of the prior year. Thus, the RMDs for 2008 are based on account values that may no longer represent what’s really in the account.

Relief in 2009 doesn’t really help matters because the problem is in 2008. While the Department of the Treasury could issue a regulation allowing relief for this year it doesn’t appear that’s going to happen.

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China Goes Where No Man Has Gone Before

Two years ago I wrote about the idea of taxing virtual transactions. As I mentioned then the IRS’ view on this is, “That’s so weird.”

However, one country looked at this and decided that while it might be weird it’s too big of a pie not to tax. So China is implementing a tax on virtual transactions. The Shanghai Daily, quoted in the Guardian, states:

Once income is generated through the sale of virtual goods, individuals “should go to the tax department to pay personal income tax within seven days of the day after the transactions,” according to Shanghai Daily. Those who can provide proof of the value of the original property will see a 20 percent tax on their profits, while those lacking solid evidence will face charges equal to 3 percent of the total transaction.

The BBC notes that Sweden and South Korea are also looking into this. I do believe that one day the IRS, too, will attempt to tax that sale of 100 gold pieces.


Hat Tip: TaxProf Blog

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Rangel’s Troubles Worsen

The tax troubles of Congressman Charles Rangel (D-NY), the chair of the House Ways and Means Committee (the committee that writes tax legislation), have worsened. The House Ethics Committee had already been looking into his property tax troubles; the committee voted to extend the probe and look into whether Congressman Rangel protected an oil drilling company from a large tax bite after that company (Nabors Industries, Ltd.) donated $1 million to start the Charles B. Rangel Center for Public Service at the City College of New York.

This news comes out on the day that Governor Rod Blagojevich (D-IL) is arrested on corruption charges; it sure is an interesting coincidence.

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Property Tax Payment Due on Wednesday

If you’re a Californian who owns real estate, remember that your first property tax payment is due this Wednesday, December 10th. The payment can be made at your county’s tax collector office, by mail (US postmark deadline of Wednesday), or online (most counties offer this). In any case, don’t forget or you will be paying a penalty.

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When Cash Isn’t King

I’ve heard many times that cash is king. Well, that’s not always the case as Leroy Felt, Jr. discovered.

Mr. Felt was the owner of Woody’s Construction in Margate, Florida. He decided to pay his employees in cash. That’s absolutely legal…as long as you make all the necessary payroll deductions. Mr. Felt had a better idea.

He wrote corporate checks to various companies and individuals. They, in turn, gave Mr. Felt the cash (less a small fee kept for the service). Mr. Felt then used the cash to pay his employees. Mr. Felt thought he didn’t need to worry about those pesky payroll taxes.

The government doesn’t like it when you violate trust fund taxes. People who do so end up in prison when they’re caught and they end up paying the tax plus penalties and interest. Mr. Felt got caught, pleaded guilty, and was sentenced to ClubFed for four years.

Paying people under the table is a bad idea. If you get caught it’s almost a certainty that ClubFed is in your future.

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Ishtar Comes to Sacramento

Do you remember Ishtar? It was one of Hollywood’s bigger flops. The Wall Street Journal is now comparing Governor Schwarzenegger’s budget policies to that failed film. Is the Journal correct?

Absolutely. Governor Schwarzenegger is proposing raising the sales tax (which is already among the highest in the country). California already has one of the highest income tax rate systems (for both corporate and individual taxes). Only our property tax system can allow for somewhat lower taxes.

As the Journal notes, the budget has grown by 40% in the last four years. California doesn’t have a revenue problem; rather, we have a spending problem. A massive spending problem. I do have a possible solution, though I suspect no legislator is going to like my idea: Cut the budget 25%.

We will need to not just take a scalpel to the budget. We need to take a pick axe and cut anything and everything that doesn’t make sense. All wages of every state employee should be cut at least 20%, including those of our legislators. I know that there are union contracts that may make this impossible. Negotiations should begin immediately with all unions and they be told that the personnel budget for their department is being cut by 20%. All managers/non-union personnel are taking that cut. If you don’t, then 20% of the union personnel will be laid off.

There are numerous programs that will have to go. It might be nice to have a State Tourism Office, but not in these times. Housing and Community Block Development Grants are a nice luxury, but they should go. Likewise Enterprise Zones, the California Film Office, the Office of Military and Aerospace Support, and the Native American Heritage Commission should all go into the trash can.

What I am sure of is that if California doesn’t face up to economic reality outsiders will force it upon them. The Democrats in the Legislature won’t cut; the Republicans won’t add taxes. Eventually, either California will run out of money (likely in February) or the Legislature will reach some sort of compromise.

What’s worse is that I think the budget deficit will be far, far worse next year. What I’m seeing from my clients tells me that there aren’t going to be a lot of large capital gains declared on income tax returns for 2008 and the budget projection for the 2010 fiscal year (beginning in July 2009) is very, very rosy. It’s time for everyone in Sacramento to face reality.

So why not raise taxes? Because if taxes go up businesses that can leave California will likely exercise that option. All of the surrounding states (Oregon, Nevada, and Arizona) have lower tax structures and far better business climates than California. The climate in California is nice, but if taxes go too high business will vote with their feet.

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December 16th Talk on Tax Law Changes

Every year I give a talk to the Exchange Club of Irvine on changes in the tax law. This year I’ll be speaking on Tuesday, December 16th. The talk focuses on changes to both federal and California taxes in 2008 and how they impact individual taxpayers.

You’re welcome to attend and the price is right (free, including lunch and parking) but you must rsvp. The meeting of the Exchange Club runs from 12 noon until 1:30pm at the Irvine Marriott (18000 Von Karman Ave, Irvine). If you’d like to attend just send me an email.

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When You Have to Report a Gift

One question that I’m often asked are about gifts. I’ve just received a large gift or inheritance; must I pay tax on it? The good news is that gifts aren’t taxable to the recipient (if the gift is interest bearing, such as a gift of money in a savings account, you will owe tax on the interest received).

Unfortunately, there are gifts that must be reported even though they’re not taxed. If you receive a gift of more than $100,000 from a non-resident alien individual, or a gift of more than $13,258 from a foreign corporation or a foreign partnership, it must be reported to the IRS on Form 3520. The penalty for not reporting the gift is 5% of the value of the gift per month late, up to a maximum of 25%. There are special rules if you are the recipient of a gift from a foreign trust.

Note that Form 3520 is filed separately from your tax return but is due on the same date as your tax return (including extensions). The IRS has more in this release. Note that the link in the release to the Form 3520 instructions is invalid; the link I have provided works.

Hat Tip: Roth Tax Updates

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It’s Not a Good Idea to Tell Officers That You Don’t Pay Taxes

A man is accused of stalking. The police investigate, and arrest the man. He consents to a search of his apartment. The officers discover cash and electronics, and the man tells the officers that “…As to the large sums of cash on hand, he ventured that he neither trusted banks nor paid any taxes (federal or state).” He’s tried and convicted on tax evasion and appeals.

Hint: If you don’t pay taxes don’t tell that to the police! Joe Kristan has more on this man’s less than successful appeal.

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