The IRS Is Coming! The IRS is Coming!

As first reported by Bob McKenzie this morning, the IRS has purchased software to help them identify Bitcoin transactions. The IRS is reportedly using a product from Chainalysis, Inc., a New York-based supplier of products used to analyze Bitcoin activity.

The Daily Beast notes that “The purpose of this acquisition [by the IRS] is…to help us trace the movement of money through the bitcoin economy.” Chainalysis’s products appear to include features that can locate specific Bitcoin users and anyone connected to that user.

Government may be slow in acting, but it’s clear the IRS and other federal law enforcement agencies are very interested in Bitcoins. As noted in a previous post, IRS records show that only 802 individuals included Bitcoins on their 2015 returns. The IRS has issued a summons to Coinbase (this is currently in litigation); I expect further IRS enforcement activity against both domestic and international wallets. And I doubt the IRS’s interest will stop at Bitcoins; other cryptocurrencies will be examined, too. I’m also aware of other federal law enforcement agencies investigating Bitcoin users.

If you’ve been including your Bitcoin sales on your tax return, you can (generally) ignore this kerfuffle. Your taxes are correct, you’re following the law, so there’s not much for you to directly worry about from a tax standpoint. However, if you’ve been thinking, “No 1099, no reporting,” think again. And if you’re acting as an active seller, now is an excellent time to make sure you’re in compliance with money transmittal business laws (on both the state and federal level) and tax law. It’s very clear that the IRS is coming on the Bitcoin front.

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Taxes When a Cryptocurrency Splits Into Two

The IRS ruled that cryptocurrencies are treated as property (like stocks and bonds). What happens when a cryptocurrency splits into two separate cryptocurrencies?

Let’s start with the analogous situation with a stock. Suppose Acme Industries, Inc. spins off its subsidiary, SubCo Inc.; on October 1st stockholders of record will receive one share of SubCo for every share of Acme they own. This is almost certainly a tax-free event. (For those who care, Internal Revenue Code (IRC) Section 355 governs corporate spinoffs. Tax-free spinoffs can be accomplished either by distributing shares based on current ownership or by giving shareholders the option to exchange shares for the new spun off entity.)

Now, let’s examine a cryptocurrency split. Let’s take HYPO, a hypothetical cryptocurrency. On October 1st everyone who has 1 HYPO will still have their HYPO but will also now own 1 THET. The published goal is so that more transactions can be run through the blockchain. Will this be a tax-free event?

Probably. IRC Section 355 doesn’t apply here; this is not a corporate spin-off. That said, the analogy should hold: Presumably nothing of value has been created. If HYPO was selling for $1,000 prior to the split, the sum of 1 HYPO and 1 THET should be worth the same $1,000 after the split. If that’s the case all that’s happened is that your basis in HYPO must be split into HYPO and THET. For example, if you purchased your 1 HYPO for $500, your basis post-split in HYPO and THET must add to the same $500. There wouldn’t be a capital gain based on the split. (The allocation should be based on the fair market value of HYPO and THET immediately after the split.)

One other question that must be answered: Do you obtain the same holding period for the spin-off as you had for the original cyrptocurrency? If it’s a true split into two cryptocurrencies, definitely.

Given there has been one cryptocurrency split already (and others will certainly follow) this will give you an idea of the basics in this situation. Something that absolutely holds is keep good records! Taxes when you have good records is fairly easy. When you don’t have good records, it’s definitely not.

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On Tulips and Bitcoins

When I was in junior high school, I remember being taught about the 17th century tulip mania. Tulips in 1637 cost more than a house! That was a bubble (though some economists think there may have been rational explanations, let’s just call it with what it was considered to be), and my gut feeling is that cryptocurrencies are also bubbling.

I’m not the only person who has made this comparison. There’s an article on CNBC that quotes Elliott Prechter stating that cryptocurrencies are in a bubble comparable to tulips. The head of the Dutch Central Bank has also made the same comparison.

But there’s something else with cryptocurrencies: government. While the US government hasn’t formally stated that it wants cryptocurrencies to go away, the policies of the Department of the Treasury and the Department of Justice show that’s the case.

Let’s look at what two agencies within the Department of the Treasury have done in regards to cyrptocurrencies. First, the Internal Revenue Service had a choice: Should cryptocurrencies be considered currencies or should they be considered property? If currencies, most taxpayers would just enter one number on their returns for the gain (or loss). (Currency trading falls under Section 988 of the Internal Revenue Code. Gains and losses are simply entered as Section 988 transactions as part of line 21 (“Other Income”) on Form 1040.) This would be simple and straightforward. Instead, the IRS ruled that cryptocurrencies should be treated as property. That means each time you use or sell a cryptocurrency you have a reportable capital gain or loss. That’s a much tougher recordkeeping requirement.

Meanwhile, the Financial Crimes Enforcement Network (FINCEN) ruled exactly the opposite. For FINCEN purposes, cryptocurrencies are currencies, not property. That means cryptocurrencies fall under the purview of FINCEN. If you are an active seller of cryptocurrencies to others, you may have to register and are subject to the money transmittal rules. (FINCEN has said “miners” and investors of cryptocurrency are not money transmitters.) FINCEN has gone after foreign (non-US) based wallets, too.

The US Department of Justice has prosecuted US individuals who have been selling Bitcoins.

Perhaps I’m cynical (well, I know I am), but it appears to me that the US government’s actions are designed to make cyrptocurrencies appear more unattractive. That to me is more likely than not to put downward pressure on cryptocurrencies.

I should point out that friends of mine who are far smarter than I am think that Bitcoins will be worth $10,000 in the near future (as I write this, the price of a Bitcoin is about $4,100). I don’t see that. I was in the dot-com industry when that was booming and the NASDAQ would “obviously” reach 100,000. Then the bottom fell out. The cryptocurrency craze of today reminds me of that and of tulips.

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IRS E-Services Outage Postponed…Again

Back in June the IRS was going to do a major update of their E-Services (what tax professionals, software developers, and return transmitters use to access IRS computer systems). That update was postponed. Last month the IRS announced that the update would happen beginning tomorrow (August 17th). This morning, the IRS postponed it again; no new date was announced. The notice is reproduced below.

The IRS today announced that a planned outage of all e-Services tools and applications has been postponed. The extended delay will allow for some additional improvements to take place in the final product.

When a new date is set, we will issue a follow up Quick Alert. Until further notice, all e-Services tools and applications are available to registered users, except for AIR users. The Affordable Care Act Information Return (AIR) participants will be unable to submit new or change existing Transmitter Control Code applications until this platform upgrade takes place.

The planned outage, when it occurs, will allow for the e-Services suite of tools to be transferred to a new digital platform. The new platform will conclude a years-long effort to upgrade the technology for e-Services tools.

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Did I Prepare 5% of the Tax Returns with Bitcoin in 2015?

The IRS is attempting to force Coinbase to disgorge a list of its customers who have traded Bitcoins. Back in March, an IRS agent, as part of attempting to enforce its summons against Coinbase, stated that there were only 802 individuals who reported Bitcoin transactions on Form 8949. The IRS searched and that’s what they supposedly found after looking at over 120 million returns filed for 2015.

My records show that I filed 40 returns in 2015 with Bitcoin transactions. According to the IRS that means I prepared 5% of all returns with Bitcoin transactions on them for tax year 2015!

Let’s be honest: There were more than 802 individuals who had Bitcoin transactions in 2015. This is why I expect (in the long run) the IRS’s summons against Coinbase will be successful.

This also may say something about tax professionals (and not a good thing). Now, it is true that my clientele happens to be more likely to skew towards individuals owning cryptocurrencies such as Bitcoin. Still, am I one of the few tax professionals to ask clients about cryptocurrency transactions?

It’s actually far more likely that most tax professionals have a Sergeant Schultz moment with Bitcoins: Since there’s no paperwork, there’s nothing to report. That’s not how it works: Income is taxable (or not) regardless of whether or not you receive paperwork. For example, if you do consulting work for someone and get paid $800 but you don’t receive a Form 1099-MISC noting the income, you must report that $800. Individuals who self-prepare returns likely have the same issue: No paperwork, no reporting.

Cryptocurrency is fertile ground for the IRS, and sooner or later the IRS is going to get this information and conduct audits on it. If you are trading Bitcoins or other cryptocurrencies, you need to report them on your tax return. And if you’re a tax professional, you need to ask clients about this.

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Vacation

It’s time for my annual vacation. If something earth-shattering in the tax world happens while I’m relaxing, I’ll take time out to post on it. Otherwise, enjoy the fine bloggers listed in the blogroll on the right.

I’ll be back on Tuesday, August 8th.

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Here’s a Step-by-Step Manual of How to Go to Prison for Taxes

Do note that I absolutely, positively, do not recommend you follow the procedures done below. But if you want to go to ClubFed for a tax crime, it’s a superb illustration.

You start a home health care business. (The business could be in anything, but I’ll use the actual example.) Your business grows and you hire employees. You correctly withhold employment taxes from your employees. So far, all is well.

You then keep the employment taxes you withhold rather than remitting them to the IRS. You do this not for one month, nor two, but for years. As I’ve said before and will doubtless say again, this scheme has as close to a zero percent chance of success. The problem is that sooner or later an employee will note the withholding on his tax returns, and the IRS will investigate why they don’t have the money. In any case, that was only the first thing done wrong.

Next, after the IRS starts snooping around you can change the business’s name and have nominees start running the business. That will deter the IRS, right? A helpful hint: This won’t deter the IRS. That was the second error.

Meanwhile, let’s not admit that the business is making money, and not report the income on your personal tax return. That will show the IRS! It will, in one sense: It will help cement an indictment for tax evasion. After all, three strikes and you’re out.

This is what was done by Dinorah Stoll-Weaver of St. Joseph, Missouri. She pleaded guilty to failing to pay over employee payroll taxes to the IRS. Given that the criminal tax loss from this scheme (it ran twelve years) is $1,459,727, a trip to ClubFed is likely in her future.

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The 2017 Real Winners at the World Series of Poker (London Calling, Again)

The main event of the World Series of Poker has completed: 7,221 ponied up $10,000 to enter. The final nine players began competing on Thursday; last night the winner was crowned. How much of his winnings does he get to keep? And why are four of the nine very, very happy that their court system considers poker to be a complete game of chance?

One note: I do need to point out that many of the players in the tournament were “backed.” Poker tournaments have a high variance (luck factor). Thus, many tournament players sell portions of their action to investors to lower their risk. It is quite likely that most (if not all) of the winners were backed and will, in the end, only enjoy a portion of their winnings. I ignore backing in this analysis. Now, on to the winners.

Congratulations to Scott Blumstein of Morristown, New Jersey for winning poker’s biggest prize of $8,150,000. Mr. Blumstein came into the final table with the overwhelming chip lead and never relinquished it. Mr. Blumstein ended a long head-up battle when a deuce was the last community card and his Ace-deuce beat his opponent’s Ace-eight. A professional gambler, he’ll lose 47.11% of his winnings to federal and New Jersey tax ($3,839,429). Even though he had the largest winnings, he does not face the top tax burden among the nine (his is the second highest).

Dan Ott of Altoona, Pennsylvania (near Pittsburgh) finished in second place. Mr. Ott started the final table in fifth place, and worked his way into second place and a prize (before taxes of) $4,700,000. His state tax burden is the lowest among Americans (Pennsylvania’s state income tax is a flat 3.07%), but as a professional gambler he must also pay Altoona’s Earned Income Tax of 1.60%. Overall, Mr. Ott will pay an estimated $2,099,806 in tax (44.68%) to obtain after-tax winnings of $2,600,194. Indeed, Mr. Ott almost falls to fourth place based on after-tax results.

Finishing third and winning $3,500,000 was Benjamin Pollak. Mr. Pollak, originally from Paris, France, moved to London. Why would a Frenchman move from beautiful Paris to London? In a word, taxes. As a European Union resident, he could move to any other E.U. country and fall under their tax system. The US-United Kingdom Tax Treaty exempts gambling winnings from withholding. Additionally, poker winnings are completely tax-free in the United Kingdom (a court case a few years ago cemented this for now), so Mr. Pollak gets to enjoy all of his $3,500,000 of winnings.

But let’s assume that Mr. Pollak had remained living in Paris. On the positive side, the US-France Tax Treaty exempts gambling winnings from withholding. On the negative side, France is anything but a low-tax country. I cannot be certain of the taxes for 2017; the actual tax rates are voted in towards year-end so I’ve used the 2016 tax rates for my analysis. However, I doubt 2017 rates will vary significantly from last year. At an income of €152,260, the marginal tax rate is 45% (the highest in France). There’s also a surtax of 3% at an income of €250,000 or more (and this rises to 4% at €500,000 or more). Mr. Pollak would owe about 48% of his winnings in tax. No wonder London was calling for him!

You may be wondering why American professional poker players don’t hop a 747 and move to London. First, Americans owe tax on their worldwide income, so an American residing in London would still owe tax on his World Series of Poker winnings. Second, while Europeans currently can relocate to the United Kingdom per the European Union, Americans cannot.

(One thing that is very unclear today is how long Frenchmen will be able to lower their tax by moving to England. With the passage of Brexit last year sometime in the near future the United Kingdom won’t be part of the European Union; the tax benefits of residing in the United Kingdom for French poker players will vanish. But I digress….)

The individual who had the most fun at the final table was clearly John Hesp of Bridlington, England. Mr. Hesp, a grandfather of seven and the oldest competitor (he’s 64), is decidedly not a professional poker player. Indeed, his prior tournament experience was playing in £10 (about $13) tournaments at his local casino in Hull; here, he was competing in a $10,000 (about £7,695) tournament! Mr. Hesp was clearly having the time of his life; the $2,600,000 he won will make this trip to Las Vegas a great memory. Even better, he gets to keep all the money.

Antonie Saout of Morlaix, France finished fifth and won $2,000,000 before taxes. Mr. Saout also lives in London (in fact, he shares an apartment with Mr. Pollak) so he, too, benefits from the United Kingdom’s great treatment of poker players. His after-tax winnings are his pre-tax winnings of $2,000,000. Had Mr. Saout remained a resident of France he would have owed about 48% of his winnings to the France Tax Agency. This was the second time Mr. Saout made the final table of the WSOP main event: He finished in third place in 2009.

Bryan Piccioli of San Diego ended up in sixth place and won $1,675,000 before taxes. Mr. Piccioli is a professional poker player and faces the highest percentage tax burden among the final nine: an estimated $489,328 to federal tax and $201,695 to California income tax (a total tax burden of $791,023, or 47.23%). Based on after-tax winnings, Mr. Piccioli finished in eighth place.

Damian Salas of Buenos Aires, Argentina finished seventh. Mr. Salas is a former attorney who is now a professional poker player. He earned $1,425,000 for his efforts. Argentinians love gambling and gambling winnings are not subject to income tax in Argentina. (Casinos in Argentina do pay significant taxes.) However, the United States and Argentina do not have a tax treaty; thus, Mr. Salas will lose 30% of his winnings to the Internal Revenue Service.

In eighth place was Jack Sinclair of London; he received $1,200,000 in winnings. Like the others residing in the United Kingdom he gets to keep all of his winnings. In one sense Mr. Sinclair was the biggest winner despite finishing eighth. Based on after-tax winnings of $1,200,000 Mr. Sinclair finished sixth. It’s always nice when your after-tax income is the same as your pre-tax income.

Ben Lamb, a professional poker player from here in Las Vegas, finished in ninth place. This was Mr. Lamb’s second time finishing in the top nine of the main event (he finished third in 2011). Mr. Lamb loses an estimated $408,483 (40.85%) to federal income tax. As a resident of the Silver State Mr. Lamb doesn’t have to worry about state income tax on his winnings.

Here’s a table summarizing the tax bite:

Amount won at Final Table $26,250,000
Tax to IRS $6,390,860
Tax to New Jersey Division of Taxation $754,196
Tax to Franchise Tax Board (California) $201,695
Tax To Pennsylvania Department of Revenue $144,290
Tax to Altoona Earned Income Tax $75,200
Total Tax $7,566,241

That’s a total tax bite of 28.82%. That’s fairly low for the main event because four of the winners face no taxation at all.

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

Winner Before-Tax Prize After-Tax Prize
1. Scott Blumstein $8,150,000 $4,310,571
3. Benjamin Pollak $3,500,000 $3,500,000
2. Dan Ott $4,700,000 $2,600,194
4. John Hesp $2,600,000 $2,600,000
5. Antoine Saout $2,000,000 $2,000,000
8. Jack Sinclair $1,200,000 $1,200,000
7. Damian Salas $1,425,000 $997,500
6. Bryan Piccioli $1,675,000 $791,023
9. Ben Lamb $1,000,000 $597,517
Totals $26,250,000 $18,683,759

As noted previously, Bryan Piccioli finished in sixth place but based on after-tax winnings he ends up in eighth place. While taxes may be the price of civilization, the price in the United States is high.

This was an off-year for the IRS. The IRS’s total of $6,390,860 didn’t match the first place prize of $8,150,000. Still, it did exceed the first place winner’s after-tax prize of $4,310,571. That’s because we all know that the house (the IRS) always wins.

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“I Ain’t Got It, So You Can’t Get It” Doesn’t Generally Apply to the IRS

Ain’t never gave nothin to me
But everytime I turn around
Cats got they hands out wantin something from me
I ain’t go it so you can’t get it…

So goes part of the lyrics of “X Gon’ Give It To Ya” by DMX. The IRS and the Department of Justice allege that these lyrics by Earl Simmons (aka DMX) were taken literally by him. Mr. Simmons is accused of engaging in a multi-year scheme to conceal millions of dollars of income from the IRS to not pay $1.7 million in taxes.

Mr. Simmons is accused of not paying his income taxes from 2000 through 2005 of $1.7 Million. That’s his first problem. His second problem was apparently not filing his 2010 through 2015 tax returns. The Department of Justice is accusing him of earning $2.3 million during that period; it would be hard not to have some tax liability with that amount of income.

The third problem was what he supposedly did to avoid taxes. From the DOJ press release:

Instead, [SIMMONS] orchestrated a scheme to evade payment of his outstanding tax liabilities, largely by maintaining a cash lifestyle, avoiding the use of a personal bank account, and using the bank accounts of nominees, including his business managers, to pay personal expenses. For example, SIMMONS received hundreds of thousands of dollars of royalty income from his music recordings. SIMMONS caused that income to be deposited into the bank accounts of his managers, who then disbursed it to him in cash or used it to pay his personal expenses. SIMMONS also participated in the “Celebrity Couples Therapy” television show in 2011 and 2012 and was paid $125,000 for his participation. When taxes were withheld from the check for the first installment of that fee by the producer, SIMMONS refused to tape the remainder of the television show until the check was reissued without withholding taxes.

SIMMONS took other steps to conceal his income from the IRS and others, including by filing a false affidavit in U.S. Bankruptcy Court that listed his income as “unknown” for 2011 and 2012, and as $10,000 for 2013. In fact, SIMMONS received hundreds of thousands of dollars of income in each of those years.

Mr. Simmons faces 14 counts of tax evasion, obstructions, and failing to file tax returns. He faces a maximum of 44 years at ClubFed. He’s been released on bond of $500,000 pending his trial. I’ll point out something I have many times in the past: If you’re a celebrity, it pays to just pay your taxes.

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The IRS Gives Good Suggestions on Handling an IRS Notice

Earlier this week the IRS sent out “Tips on How to Handle an IRS Letter or Notice:”

Tips on How to Handle an IRS Letter or Notice

The IRS mails millions of letters every year to taxpayers for a variety of reasons. Keep the following suggestions in mind on how to best handle a letter or notice from the IRS:

1. Do not panic. Simply responding will take care of most IRS letters and notices.

2. Do not ignore the letter. Most IRS notices are about federal tax returns or tax accounts. Each notice deals with a specific issue and includes specific instructions on what to do. Read the letter carefully; some notices or letters require a response by a specific date.

3. Respond timely. A notice may likely be about changes to a taxpayer’s account, taxes owed or a payment request. Sometimes a notice may ask for more information about a specific issue or item on a tax return. A timely response could minimize additional interest and penalty charges.

4. If a notice indicates a changed or corrected tax return, review the information and compare it with your original return. If the taxpayer agrees, they should note the corrections on their copy of the tax return for their records. There is usually no need to reply to a notice unless specifically instructed to do so, or to make a payment.

5. Taxpayers must respond to a notice they do not agree with. They should mail a letter explaining why they disagree to the address on the contact stub at the bottom of the notice. Include information and documents for the IRS to consider and allow at least 30 days for a response.

6. There is no need to call the IRS or make an appointment at a taxpayer assistance center for most notices. If a call seems necessary, use the phone number in the upper right-hand corner of the notice. Be sure to have a copy of the related tax return and notice when calling.

7. Always keep copies of any notices received with tax records.

8. The IRS and its authorized private collection agency will send letters and notices by mail. The IRS will not demand payment a certain way, such as prepaid debit or credit card. Taxpayers have several payment options for taxes owed.

The IRS here gives good advice. Do not ignore IRS (or state) tax notices, and respond timely. One thing the IRS doesn’t mention is that if you need more time, you can ask for an extension in the deadline. And remember, the IRS will never demand you pay using any specific way.

If you use a tax professional, send him or her a coy of the notice (all pages of the notice). Do not wait until the deadline to send a copy of the notice to the tax professional. He or she can evaluate what you need to do (if anything) with the notice).

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