The Structure Fails for this Pharmacist

The drug store. That place where we fill our prescriptions, buy our sundries, and maybe have a malt at the counter.

Saad Kamil Deeb owns Citizens Pharmacy in Welch, West Virginia. According to the US Department of Justice, he allegedly had a side business with his drug store. An illegal gambling business that made $1.7 million in income.

Apparently the IRS got wind of his alleged operation, and wasn’t pleased because he hadn’t included the income on his tax returns. Mr. Deeb also is accused of “structuring,” making cash deposits of less than $10,000 to avoid federal reporting requirements.

The government is beginning forfeiture proceedings against Mr. Deeb, hoping to recover $1.7 million in cash, automobiles, and land that Mr. Deeb owns. And if he’s convicted, he could face 150 years in prison, and a fine of up to $7.5 million.

Story: Charleston Daily Mail

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Certified Tax Blogger


If you take a look at the bottom of the blogroll, you’ll see a new image. We’re one of the founding members of www.taxblogger.org, a confederation of tax bloggers. If you click on the image, you’ll go to the taxblogger.org web site.

At least the company we keep is pretty good….

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A Reminder About Being Frivolous

Every so often I have to educate my clients that if it sounds too good to be true, it probably is. Today, the Tax Court educated a businessman that S Corporations are flow-through entities: in general, the owners of an S Corporation get the income from the S Corporation and are liable for any tax.

William Tinnerman is the sole stockholder of an S Corporation in Florida. From 1986 through 1998 he used a CPA to prepare his personal and S Corporation tax returns, and all was well. In 1999, he told his accountant to stop preparing his individual tax returns. The accountant still prepared the S Corporation returns.

But Mr. Tinnerman “enhanced” his S Corporation return by adding some verbiage to it:

“The corporation has determined the net income shown on the Schedule K-1 (Form 1120S) does NOT constitute ‘gross income’ as determined by rules set forth in the Treasury Regulations at 26 CFR (4-1-99) Parts 1.61-1(a) and (b) and 1.931-1(b)(1)-(4). Therefore, since there is NO gross income, the net income shown on the K-1 is NOT reportable on your 1040 as taxable income.”

Strike one.

Mr. Tinnerman didn’t make estimated tax payments for 1999 through 2002 nor did he file tax returns for those years. He also amended his 1996 through 1998 returns and changed his income to zero and his tax to zero.

Strike two.

Mr. Tinnerman then bought a sham trust package from Bay Point Enterprises, run by John Ellis and Jeff Pollard. Mr. Ellis was sentenced in 2002 to 10.5 years at ClubFed for marketing sham trusts.

The IRS tried to get Mr. Tinnerman to see the error of his ways. They provided him with a pamphlet, “The Truth About Frivolous Tax Arguments.” Apparently Mr. Tinnerman believed the trust proponents who were serving time rather than the IRS.

Strike three.

The Tax Court was faced with deciding if Mr. Tinnerman owed taxes and penalties for 1999 – 2002. With three strikes against him, it’s not a surprise that the Court found that Mr. Tinnerman owed the tax, a penalty for fraud, failure to file a return, failure to pay the tax shown on the return (here, the substitute for returns prepared by the IRS), and failure to pay estimated taxes.

The Court was sufficently annoyed with Mr. Tinnerman’s frivolty that it imposed a $10,000 penalty for persisting in raising frivolous arguments.

That was strike four.


Case: Tinnerman v. Commissioner, T.C. Memo 2006-250

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Don’t Try These at Home

There are many ways to save on taxes. Here are some ways to save on taxes that work…until you get caught.

Method #1. Knowingly hire undocumented workers (felony #1), then don’t pay employment taxes on their wages (felony #2). It’s not clear from the article whether or not taxes were withheld from the workers’ wages. But if you’re going to commit two felonies, what’s a third? Unfortunately for Wen Bing Wang, the restaurant owner in Traverse City, Michigan, the IRS caught on to his scheme. He has pleaded guilty to three counts of tax fraud, and could be facing fifteen years in prison. Interestingly enough, three other restaurant owners in the area will, according to the story, be pleading guilty to similar offenses. They shared the same New York based accountant (or perhaps soon to be ex-accountant).

Method #2. Create phony entities, and lower your company’s profits by having them receive some of your income. Then cash the checks at a local sports bar (which doubled as a check cashing service). Then, when you were indicted in 1995, flee to Ireland.

This might have succeeded. Unfortunately for Martin Harty, recently of Ireland but a former resident of the San Francisco Bay Area, he decided to take a vacation in San Francisco. The indictment was still on file so when he went through customs in Atlanta, he was arrested. He pleaded guilty and could face up to three years at ClubFed but is probably looking at 12 – 18 months in prison.

Method #3. Don’t pay your employment taxes. Then declare your company bankrupt, and declare personal bankruptcy. Follow this up by forming a new company in the same business, but have your son run the company. One problem, though: your son is away at college.

This is what Thomas & Vicki Seidel of Salinas, California have been accused of. They were indicted last week on failure to pay taxes and filing phony tax returns. Besides hiding the ownership of their business, they are also alleged to have hid assets, including a wheat farm in Idaho, some real estate, and another business, according to this report.

Method #4. Have your family create bank accounts in their names, while the money is really yours. And don’t declare any of the income from those accounts. Given that David Beagley of Lindon, Utah is accused of not paying $815,000 in taxes, we’re likely talking about some pretty hefty bank accounts.

Method #5. Don’t pay withholding taxes, don’t pay income taxes, and structure your cash transactions to avoid federal reporting requirements. Ziya Ozbay of Schenectady, New York and his son-in-law, Yalcin Ozbay of Saratoga Springs, New York, were found guilty of these crimes last week. Earlier, Mustafa Ozbay and Birol Ozbay pleaded guilty to these offenses (story here).

The Ozbays owned several gas stations in upstate New York. They didn’t file corporate tax returns for several years. They didn’t keep adequate books and records, and they didn’t provide their accountant with even those books and records. They withheld employment taxes from their employees but didn’t remit them. And they deliberately “structured” their cash transactions to hide them from federal reporting requirements. All-in-all, the defendants were found guilty of many felonies, and will be spending a few years at ClubFed.

And there is an interesting conclusion to this story. The gas stations were branded as “USA Gas Stations.” The government is expected to begin forfeiture proceedings against the Ozbays, and will likely end up owning the gas stations. This will definitely bring truth-in-advertising to some USA Gas Stations in upstate New York.

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Dancing Eunuchs and Other Stories

I’m way behind in my reading of other tax blogs this week. I’ve been busy with personal stuff, and thanking my stars I’m not a tax evader in India.

For India, a nation of chronic tax evaders, has set dancing eunuchs on the scene. My thanks to Joe Kristan of Roth Tax Updates and the TaxProf Blog for the heads up.

Were the Eunuchs successful? According to the Reuters story, absolutely! “Some paid in cash, while others quickly wrote checks. The shock therapy, which we plan to use sparingly, was a grand success,” Atul Prasad, a top official in impoverished Bihar state, of which Patna is the capital, told Reuters Friday.

And as Joe Kristan said, if you don’t know what a eunuch is, well, half the population can’t be one and the other half doesn’t want to be one.

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The Election’s Impact on Taxes

Come January, the Democrats will be in control of the House and likely the Senate for the first time in over a decade. What will that mean for taxes?

First, forget estate tax reform. I can’t see it passing, unless it’s something like a $2 million exemption with 45% rates above that. Second, forget any other major changes in the Tax Code. The Democrats have said they’d like to see new programs (that cost money), but unless tax revenues increase, those aren’t likely to happen. I see two years of gridlock, which isn’t necessarily bad.

On the state level, Californians rejected all of the direct tax increase initiatives: Propositions 85 – 90 all failed. Notably, Proposition 88, which had a title that included the word “tax” failed by the largest percentage: 76.9% voted against it. The bond measures, Propositions 1A-1E and 84, did pass (though Proposition 84 might not be implemented as Proposition 1E passed with a larger percentage). We’ll be paying for those for the next 30 years.

On the local level, Measure M’s renewal passed, with 68.5% voting for it (a 2/3 yes vote was required), so sales taxes in Orange County will be 7.75% for the next 33 years.

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The Tax Court Doesn’t Believe in Alchemy

Wouldn’t it be nice if you could turn some worthless material, like pyrite, into something quite valuable, like gold? Sure. But the laws of chemistry don’t allow it.

Wouldn’t it be nice to turn ordinary income into a capital gain, so that the tax you owed would be significantly less? Sure. But the laws of the United States (the Tax Code) don’t allow it.

Today the Tax Court took a look at two test cases (out of 59 filed cases) where petitioners were trying to turn ordinary income into a capital gain. The lucky petitioners won the lottery in Florida. That was the good news. They began receiving their annual payments, and decided they wanted to get a lump sum. They contracted with a firm that does this, got approval (Florida law required a Court to approve this), and got their lump sum payment. And then the trouble began.

The petitioners contended that when they received their lump sum, they converted their lottery rights (rights to future payments) into a capital asset. They sold the capital asset; thus, they have a capital gain, not ordinary income, and would be taxed at the much lower rate for capital gains.

The Tax Court felt otherwise. Previously, the Tax Court and three Appeals Courts have held that the “Substitute for Ordinary Income Doctrine” holds; you can’t change ordinary income (the lottery winnings) into capital gains through a simple transaction. The Court stated,

“The basic principle of the doctrine was expressed in Commissioner v. P.G. Lake, 356 U.S. 200, 266 (1958): The substance of what was assigned was the right to receive future income. The substance of what was received was the present value of income which the recipient would otherwise obtain in the future. In short, consideration was paid for the right to receive future income, not for an increase in the value of the income-producing property. Stated another way: if a taxpayer merely transfers for consideration the right to receive ordinary income in the future, the right transferred will not be treated as a capital asset.”

The petitioners contend that a Supreme Court decision (Ark. Best Corp. v. Commissioner, 485 U.S. 212 (1988)) made the precedents invalid. Interestingly enough, just last year the Tax Court looked at a similar case that I blogged about; the petitioner lost. So it’s not surprising that the Tax Court here noted, “Given that the doctrine has not been obviated or limited, we see no reason to depart from the established and uniform precedent. We, accordingly, proceed to decide whether the factual circumstances of the case we consider fall within the
doctrine’s embrace…Under the principle of the doctrine, the sale of the remaining right to the ordinary income payments did not cause their conversion to a capital asset.”

So if you win the lottery, congratulations! Just remember to save enough money to pay your taxes.

Cases: Womack v. Commissioner, Spiridakos v. Commissioner (T.C. Memo 2006-240)

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US 58, Hovind 0

Since we’re still in football season, I thought it would be appropriate to report this story in that format. As I reported earlier, Hovind was accused of 58 counts of tax fraud and related charges. Last Thursday he was found guilty on all 58 charges. He could get 288 years, and will definitely have to forfeit $430,400.

Hovind’s wife, Jo, was also found guilty on all the charges she was accused of. Her 44 guilty verdicts could earn her 225 years in prison. Unlike her husband, she was released until sentencing in early January.

A friend of the Hovinds, Richard Hogan, gave the Pensacola News-Journal some of the best advice I’ve ever seen when you have a dispute with the IRS: “It’s pretty tough to fight Goliath…The first time the IRS calls, you should go ahead and deal with it. It didn’t have to come down to this.”

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Snipes Didn’t Make a Deal???

There’s a possible new entrant into the Bozo Taxpayer’s Hall of Fame: Wesley Snipes. The Tampa Tribune reported that Snipes does not have a deal. Assistant U.S. Attorney Robert O’Neill told the Tribune, “We have no idea where that came from.”

Snipes is currently in Namibia filming the movie Gallowwalker. The United States does not have an extradition treaty with Namibia, though the Tribune quotes Steve Cole, a spokesman for the U.S. Attorney’s Office in Tampa, as saying that the government is “making progress toward getting him to the United States.”

So will Snipes follow the Richard Hatch method or will he make a deal? We should have an answer in December.

Hat Tip: TaxProf Blog

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California Ballot: Proposition 90

Finally, the last of the ballot measures on the statewide ballot. Proposition 90 looks at government “takings” — when property is condemned and utilized. This measure looks to reverse the Kelo decision in California.

Opponents of this measure claim that it goes too far. They believe that the measure would not only impact eminent domain abuse, but it would also impact consumer protection laws, telemarketing laws, and other statutes. Proponents of Proposition 90 state that the opponents are wrong. All it stops is government takings, from eminent domain abuse and similar measures.

The measure does impact takings that would cause a “significant economic loss” to the owner of the seized property, according to the Legislative Analyst. How far it really goes will be up to the voters (if it’s approved), and the Courts when it’s interpreted.

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