A Gotcha in Minnesota

One form of business entity that is coming into increasing use is the Limited Liability Company (LLC). But that may change in Minnesota based on a ruling from an administrative law judge in that state.

Generally an LLC is a disregarded entity for federal tax purposes. Most states follow the federal guidelines though a couple of state require reporting. An LLC in California must file Form 568 and pay a minimum tax and possibly a gross receipts tax.

Minnesota, though, is about to take this one step further. The Gopher State will soon charge sales tax on transactions between single member LLC owners and the LLC. Joe Kristan calls this “an awful idea.” He’s right—Minnesota is effectively imposing sales tax for LLC owners when they move an object from their left hand to their right hand.

Hopefully the Minnesota Department of Revenue or the Minnesota legislature will reconsider this. Otherwise single member LLCs may become dinosaurs in the Land of 10,000 Lakes.

Hat Tip: Roth Tax Updates

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We’re #3!

And that’s not good news for Sacramento.

The Tax Foundation came out today with their annual report of state tax climates. No surprise, California is the third worst climate, surpassed only by New Jersey and New York. First, here are the ten best state climates for business taxation:

1. Wyoming
2. South Dakota
3. Nevada
4. Alaska
5. Florida
6. Montana
7. Texas
8. New Hampshire
9. Oregon
10. Delaware

And now the ten worst state tax climates:

41. Minnesota
42. Nebraska
43. Vermont
44. Iowa
45. Maryland
46. Rhode Island
47. Ohio
48. California
49. New York
50. New Jersey

There is some good news for California. The Tax Foundation no longer believes that the Bronze Golden State has the worst individual income tax in the country. It’s not that California has improved; rather, Maryland now has a worse system.

Maryland managed a remarkable drop—from 24th in last year’s index to 45th in this year’s—by raising its individual income tax, corporate income tax, sales tax and cigarette tax all in the same year. Maryland added four new brackets to the individual income tax, increasing the top rate by 1.5%, adding new complexity, and introducing a big marriage penalty. In fact, we now rate Maryland’s as by far the worst individual income tax in America, displacing California for that dubious distinction.

California ranks poorly in almost every category: 45th for corporate tax, 49th for individual income tax, and 43rd for sales tax. The lone bright spots are being ranked 16th for unemployment insurance and 15th for property tax.

There’s bad news on the horizon for California. The recently enacted budget restricted using net operating loss carryforwards. That will lower California’s score in future years. But our legislators appear to have one goal—making sure California goes to the top. Nevada, Oregon, and other nearby states aren’t complaining in the least.

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California and the Bailout

Governor Schwarzenegger warned that California might need a $7 billion loan because the state is currently unable to float a short-term bond. It’s not that a bond issue couldn’t be sold; rather, the interest rate would be quite high.

Bluntly, California will soon be forced to cut spending. The budget this year is filled with smoke and mirrors; next year’s situation will be worse. Revenues have been increasing but spending has increased faster. Discipline will be enforced on the Bronze Golden State one way or another. This year’s budget postponed the day of reckoning. I thought that postponement was until next summer but it might not last that long.

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Taxes Under a President Obama

This is the first of a three part series looking at what taxes might be under our new President. This series starts by looking at what might happen under a President Obama. Next week I’ll examine John McCain’s plans. In the final part I’ll compare and contrast the two plans.


Let’s start with what the Obama campaign says they’ll do. This is taken from the Barack Obama website:

  • Cut taxes for 95 percent of workers and their families with a tax cut of $500 for workers or $1,000 for working couples.
  • Provide generous tax cuts for low- and middle-income seniors, homeowners, the uninsured, and families sending a child to college or looking to save and accumulate wealth.
  • Eliminate capital gains taxes for small businesses, cut corporate taxes for firms that invest and create jobs in the United States, and provide tax credits to reduce the cost of healthcare and to reward investments in innovation.
  • Dramatically simplify taxes by consolidating existing tax credits, eliminating the need for millions of senior citizens to file tax forms, and enabling as many as 40 million middle-class Americans to do their own taxes in less than five minutes without an accountant.

These seem like great goals, and a wonderful plan. Let’s check this out to see if it’s borne out by facts.

Here are the nuts and bolts of the plan:
1. A $500 (single)/$1000 (MFJ) refundable tax credit for those who work.
2. A $4,000 refundable tax credit for college education.
3. A 10% refundable tax credit to offset mortgage interest payments. It’s unclear from the fact sheet whether this credit would be available to those who itemize or is limited to those who do not itemize.
4. No income tax for senior citizens who make less than $50,000.
5. An automatic pension account will be created.
6. The Savers Credit will be expanded so that it will match 50% of the first $1000 for families earning under $75,000.
7. Health care tax credits will be increased.
8. Expand the Earned Income Tax Credit to more working parents.
9. The child care credit would be refundable and allow low-income families to receive up to 50% of $6,000 of child care expenses.
10. Add a $7,000 tax credit for purchase of “advanced technology vehicles.”
11. Simplify the system; some taxpayers would receive pre-printed forms with numbers already filled-in.
12. Eliminate capital gains taxes on investments in small and start-up firms.
13. Increase corporate tax on companies that “retain their earnings overseas.” Use that money to lower corporate tax rates for companies that expand operations within the U.S.
14. Add a refundable corporate tax credit for small businesses that offer healthcare.
15. Make the Research and Development tax credit permanent.
16. Increase the top tax bracket to 39.6% on families making $250,000 or more.
17. Estate tax begins at $7 million per couple ($3.5 million/person).

How would all of these be paid for? Obama wants to reform international tax loopholes, close domestic tax loopholes, eliminate tax breaks for oil and gas companies, and close other loopholes.

But there’s more on other areas of the website that impact taxes. Obama wants to “…ask those making over $250,000 to pay in the range of 2 to 4 percent more in total (combined employer and employee).” Originally, Obama wanted to completely uncap the social security tax above $250,000. What’s not said here is would this kick in based on individuals at $125,000 or families at $250,000?


Let’s assume that Obama is elected President. Let’s also assume that Congress continues to be controlled by Democrats. What would the tax impact be for you and I?

1. The wealthy already pay most of the taxes in the U.S. Under a President Obama they’d pay even more. In high tax states such as California the marginal tax rate would end up at 58.8% for those making above $125,000 if employed and 68.7% for those who are self-employed. That’s if Obama gets his way. Given the leanings among the Democrats in Congress, that’s likely the best we could hope for under Obama.

2. Obama’s tax plan would result in the redistribution of income away from entrepreneurs. Though Obama wants his plan to help entrepreneurs (through elimination of capital gains on investments in small companies), his income tax plan says the opposite. Additionally, there’s nothing in Obama’s plan about the AMT. Assuming the AMT lives on, those capital gains tax cuts would be imaginary; entrepreneurs wouldn’t pay capital gains taxes but they’d pay the same amount as AMT.

3. Obama has proposed a wealth of new programs. Those new programs would have to be funded with money from somewhere. Obama mentions health care, but that’s not the only program he proposes. Obama’s reliance on “closing loopholes” is misplaced (see #4 below).

4. Obama’s primary funding for his tax plan comes from closing various loopholes. Good luck. The IRS has been trying to close various loopholes for years, and increase enforcement activities. Congress writes the Tax Code to benefit lobbyists and others–in the bailout legislation that just passed numerous loopholes were added. As far as international loopholes the IRS has been successful in closing some. The reality is that only incremental progress will occur no matter who is President. There is no way that Obama will be able to fund his programs and tax cuts solely from closing loopholes.

5. A much more realistic scenario is that under a President Obama only a couple of his programs would be implemented but the tax increases and redistribution plan would occur. This would likely lead have a major negative economic impact (see #6 below).

6. Many large companies are organized as S-Corporations and are taxed on individuals tax returns rather than at the corporate level. (As a reminder, corporate taxes are always passed on to individuals.) When taxes increase to S-Corporation owners they will likely cut their hiring.

7. It is possible that Congress would go much further with social security taxes than the Obama campaign currently wants. There is sentiment among Democrats in Congress to tax high-income self-employed individuals fully at 15.3% (that is, uncapped social security). If this were to occur many high-income individuals would stop working when their income reached a certain level as the tax would be confiscatory. This occurred in the 1940s and 1950s when marginal tax rates reached 90%. This would have a negative impact on the economy in the United States.

8. The current economic climate is uncertain. Increasing taxes when the economy is not doing well would cause major economic problems. Obama has mentioned this in an interview with Bill O’Reilly.

9. Obama has publicly said he’s for the elimination of the Bush Tax Cuts. All of them. The elimination of a tax cut is a tax increase–forget the semantics.

10. The goal of Obama’s that makes the most sense–simplification of the tax system–is impossible under President Obama. His programs would tremendously increase the complexity of the Tax Code.


Obama likes to talk in broad terms and doesn’t like to be forced to mention specifics. That’s true of his stance on taxes. I’ll be very specific: If Obama is elected President you will pay more. This may be in taxes, or in the increased cost of goods and services as tax increases on some are passed on. There is no free lunch.


Next weekend I’ll report on what taxes might be like under a President McCain. It should be clear that I’m not a fan of Obama’s tax plans. For very different reasons I have concerns over McCain’s tax plans.

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Bail Out

The bailout bill passed Congress today and was signed into law by President Bush this afternoon. I’m of mixed opinion on the bailout portion of the bill. But I’m thrilled about one part of the bill—this year’s AMT (Alternative Minimum Tax) patch was included in the bailout legislation.

Every year Congress goes through the effort to raise the AMT exemption so that millions more individuals don’t get impacted by AMT. Last year Congress waited until December to pass an AMT patch and it impacted the filing season.

Also included in the bill were “extenders.” The extenders extended popular deductions that would have been eliminated.

Here is a list of some of the major tax items in the bill:

– AMT exemption increased to $46,200 for single and $69,950 for married filing jointly;
– Sales tax deduction extended through 2009;
– The Tuition and Fees deduction extended through 2009;
– Educator expense deduction of up to $250 extended through 2009;
– The real estate taxes deduction (for those taking the standard deduction) of $500 single/$1000 married filing jointly was extended through 2009; and
– Major tax benefits for those who live and/or work in major disaster areas.

There’s probably a lot more in the legislation (it runs 300 pages) but let me add a caveat: California will not be in compliance with any of these changes for 2008.

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Minnesota Calling

Apparently this blog has a wider circulation than I thought. Today I received an email from Tom Teale, the Assistant Director, Criminal Investigations of the Minnesota Department of Revenue (the state tax agency in Minnesota). While I generally focus (when I report on tax evaders) on IRS/Department of Justice prosecutions and California I’m happy to highlight the lowlights from other states.

And I do wish to point out that many states are suffering revenue shortfalls. If you file your federal tax return and skip your state tax return your state will find out. Every state but Nevada has an information sharing agreement with the IRS. Given that state income tax payments are generally deductible on your federal tax returns and are usually for far smaller amounts than your federal income tax doesn’t it make sense to ensure your compliance with state law?

In any case, Mr. Teale highlighted four cases in Minnesota. I’ve already covered Robert Beale, the tax evader who attempted to arrest the judge. He received eleven years of nonconsensual incarceration.

There were two cases I wasn’t aware of. In one, an attorney, John Hatling of Fergus, Falls, claimed that he could deduct his own wages using the “claim of right” deduction. If you’ve never heard of the deduction you’re not alone. It’s yet another tax protester argument and it doesn’t hold water. Mr. Hatling will plead guilty to one felony count and will be sentenced in state court next Friday.

In the other case, a judge didn’t file his Minnesota income tax returns. Donald Venne of Anoka County faces four gross misdemeanor charges. While the total unpaid tax is relatively small (about $3,200) a judge, of all people, should understand about compliance with the law. His attorney said that the problem was caused by a “traumatic family event that occurred over a period of years.”

Again, remember that you do need to pay your state income taxes. And my thanks to Mr. Teale for bringing these cases to my attention.

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Racing to ClubFed

There are some things that just must be seen in person at least once. I think that one of those is the Indianapolis 500. It’s called the greatest spectacle in auto racing for good measure. If you get the chance head to Indy over Memorial Day and catch the race.

If you went in 2001 or 2002 you would have watched Brazilian-born Helio Castroneves win back to back races. Mr. Castroneves is a Brazilian but has been residing in the United States since 1997. That means he must pay US income taxes. Mr. Castroneves apparently didn’t like that idea.

While most of us don’t like it but pay he allegedly decided on a different course of action. Mr. Castroneves received $6 million in pay. Of that, $5 million allegedly moved through a Panamanian shell company to evade US taxes. At least, that’s what the government alleges in a seven-count indictment against Mr. Castroneves, his sister Katiucia, and his attorney, Alan Miller. There’s one count of conspiracy and six counts of tax evasion.

Among the other items contained in the indictment are allegations that Mr. Castroneves lied to his tax attorney and accountant, that Mr. Miller and Mr. Castroneves lied to another law firm, and that the trio allegedly prepared false tax returns. If found guilty they’ll be watching a few Indy 500s at ClubFed and he’ll miss participating on Dancing with the Stars (which he won last year).

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They Should Have Known Better

This week’s tax evasion stories share a common theme: the alleged evaders (and those convicted) should have known better.

Let’s start in Sin City, where a personal injury attorney liked cash as a way to conduct his business. There’s nothing wrong with that, but when you don’t declare the cash income and you purchase assets and hide them in others’ names, problems can arise. When the total amount involved is $2 million over six years and there’s a sham child support agreement, it’s trouble with a capital t. Edmund C. Botha was found guilty last week of one count of tax evasion. Based on federal sentencing guidelines, Mr. Botha is looking at about three years at ClubFed plus probable restitution when he’s sentenced in early 2009.

Moving east, Danny Gladden is the former tax collector of Crawford County, Missouri. He was elected in 1991 and soon after discovered a lucrative side job: He embezzled from the county. A state audit discovered the missing funds in 2005, and he was later convicted of theft and sentenced to seven years in state prison. This past week he was convicted of tax evasion. Mr. Gladden forgot that tax must be paid even when the source of your income is stealing. Given that he owed about $82,000 in tax he’s looking at about two years at ClubFed based on sentencing guidelines.

Next, let’s look at two stories that both feature payroll taxes. First, the US Department of Justice calls this “the largest cash wage scheme in Massachusetts history.” Now, there’s nothing wrong with paying employees in cash—it’s completely legal. But you still must withhold payroll taxes, and you still must report them accurately to the government, and you do have to remit them to the appropriate agencies. What happens when you don’t do any of those things? Well, if you get caught, tried, and convicted, and the amount involved is over $43 million, you’ll likely find yourself at ClubFed for a long time.

And that’s exactly what happened to husband and wife Daniel and Aimee King McElroy. About $43 million in payroll was paid under-the-table, with the loss to the IRS being around $10 million and the loss to workers compensation companies was $7 million. In total the husband and wife were each found guilty of 19 counts. The husband was previously sentenced to 108 months at ClubFed; last week the wife received 78 months. They were also ordered to make restitution of $9.1 million.

Our final story comes from Worcester, Massachusetts. Attorney Christopher Uhl allegedly withheld money from his employees’ wages for payroll taxes. That’s good. He also allegedly didn’t remit that money to the federal government. That’s not good. He’s been indicted on six counts of tax evasion and six counts of willful failure to pay taxes.

If you have employees make sure you’re in compliance with payroll taxes. This is not an area to skimp on. Those taxes are called “trust fund taxes,” and the federal government and state governments almost always vigorously go after individuals who withhold but don’t remit. Committing this sort of tax evasion is a losing proposition.

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Business Deductions Don’t Include Prostitution

It’s something about prostitution that somehow leads to tax evasion. While perusing my email this evening in Connecticut I noticed yet another guilty plea by a man who charged personal expenses on his corporate tax return. Somehow the IRS did not find as humorous as I do the idea of deducting visits to prostitutes as “necessary and ordinary” corporate business deductions.

John Kelso of Monroe, North Carolina pleaded guilty to tax fraud. He agreed to make restitution of $18,000 and faces up to three years at ClubFed and a fine of $250,000.

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California Has a Budget

Governor Schwarzenegger said he will sign the revised budget bill passed by the Legislature yesterday. I’ll have details on the impact to Californians when I return from Connecticut on Tuesday.

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