Sam started his business. He formed the corporation, and his accountant timely filed his SubS Election. He owned all of the stock and was the President. His business was general contracting. He spent his days bidding on jobs and getting new work. Paperwork was not his forte. He didn’t bother to learn the rules about how payroll taxes worked. After about 4 years, he finally opened a stack of envelopes from the IRS and finds out that he needs to file and pay these taxes. He finds out that the company owes $1 Million in payroll taxes. He doesn’t have the money, and the company doesn’t have the money. Then to make matters worse the IRS shows up and assesses him with a 100% penalty for unpaid withheld taxes which totals about $700,000. Had he just made sure what the steps were to make payroll deposits as he went along and made sure that returns were filed, his business might still be operating. Oh and by the way, the 100% penalty against him personally is non-dischargeable in bankruptcy and even worse his home is not protected even though he owns it with his wife. See, U.S. v. Kraft
Lenders
Kids decide to buy a home. They ask mom to invest a large sum of money in the home in exchange for a percentage tenancy in common interest in the home. They agree to be wholly responsible for the loan, but mom of course agrees to pledge her 1/2 interest in the property to lender. Lender rather than being happy that they only have to lend a lesser percentage of the purchase price and acknowledging the investment status of mom, asks mom to write a gift letter. That’s right a gift letter stating that she has made a gift under oath. Now the tax lawyer in me says, “Whoa an investment in property in exchange for a percentage interest is not a gift.” But lender explains that certain governmentally supported lending agencies have “unwritten” rules that say that these types of transactions are treated as “gifts” for their paperwork purposes. So, I ask can I write a gift letter that basically says given that Lender is using the following definition of the word “gift” then Mom is making a gift. The answer back is of course “no”. Then tax lawyer asks will lender indemnify mom against any gift taxes that might be assessed by reason of having to sign this non-gift letter gift letter. The answer back is “no”. I find it interesting that a government back lender is requiring people to perjure themselves to effectuate a transaction that makes their loan more secure and is not a gift for gift tax purposes. Welcome to America.
Crummy without notice?
In the Estate of Turner v. Commissioner T.C. Memo 2011-209 (August 30, 2011), the Tax Court held that so long as the Grantor of an irrevocable life insurance trust grants a power of withdrawal to beneficiaries, the gift is an indirect present interest gift qualifying for the annual exclusion. The import of this ruling is that it extends the rule of Crummy to include gifts with a power of withdrawal where no written notice is given to the beneficiary.
So, let’s say Clyde and his wife Jewell creates an irrevocable life insurance trust. He buys a $3 Million policy and the annual premiums are $81,000 per year. He has three children who are beneficiaries of the trust upon his death. The trust grants the children the right to withdraw any gifts to the trust or for the benefit of the trust. Clyde decides to directly pay the life insurance premiums directly from the joint checking account with Jewell in lieu of paying some trustee to get the check and reissue a new check. No letters are sent to the beneficiaries informing them of their right to withdraw the premium monies from the trust. That should be a gift of a future interest, right? Wrong says the Turner decision. The court emphasized that the power to demand withdrawals after each direct and indirect transfer to the Trust was given to the beneficiaries in the Trust. The fact that some or even all of the beneficiaries may not have know of their right to withdraw is irrelevant. Thus, it is a present interest gift.
Why is that important? Each person has a right to give up to $13,500 per year per donee. This means that Clyde could give $13,500 to each of his children each year. It also means that Jewell could give $13,500 to each of her children each year (or any other individual that she wanted to give to). That means that Clyde and Jewell could give away $81,000 each year to their three children. This does not reduce the $5 Million each that they can give away when they die. In other words it’s a huge benefit to families trying to reduce estate taxes.
I’d still recommend giving the Crummy notices to the beneficiaries. This is but one Tax Court ruling and could be reversed, revised, distinguished or ignored. But at least if there is a mistake, you have at least one arrow to fire back when assessed a gift or estate tax.
Mitt Romney’s Tax Return
I looked at Mitt Romney’s tax return which was published in the paper. Much was made of his low tax rate. The problem is the nuances that are missed by most media. First, he has millions of dollars of “qualified” dividend income. Qualified dividends are taxed at 15%. The rub is that they’ve already been taxed at corporate rates as high as 35% before they were issued as dividends. So, in reality this income has already had a 50% tax. Long term capital gains are taxed at 15%. However, many times such gains include inflation, yet the tax basis is not adjusted for inflation. Meaning that the recipient is being taxed on inflation in addition to real gains. This is one reason given as to why there is a lower capital gains rate so that they don’t have to get into adjusting basis to inflation (or deflation). Note he also paid a alternative minimum tax of several hundred thousand dollars. I also note that in a two year period he gave over $4 Million to charity. He also apparently gave a large percentage of it to the LDS Church. Anyway, as I said, its very nuanced and not something that is clear cut.
Payroll Tax Holiday Rant
I’m all for putting money into the pockets of working class folks. And quite frankly I’m less than enthused about the ponzi scheme known as social security. The payroll tax holiday basically proves that social security is a ponzi scheme. For a year now, taxpayers have contributed less FICA tax to their social security accounts. Yet, current recipients continue to receive benefits at the same rate, and those taking advantage have not yet been told that this “holiday” means either that their social security checks will be smaller when they retire, or that social security as it is currently envisions will collapse under its own weight. The Machiavelli in me sees this “holiday” as an opportunity to speed up the social security collapse for those inclined to do away with it in its current form. The realist in me sees this as another blundering move without an eye on the long term effects of such a social security contribution holiday. Note also that the holiday suddenly is from a “tax” instead of a “contribution”. Are democrats adopting republican lingo? I would have preferred that Congress cut the income tax rate, but oops lower middle class people don’t pay income taxes. So, the only way to give them cash is to take it out of their retirement checks. Sooner or later, we’ll all have to pay the piper for this holiday. To put dollars on this. Let’s say a guy makes $40,000 per year and is 30 years old. This “holiday” means that about $2,000 is not contributed to his social security account. That means when he retires he will have $4,160 less in his social security trust fund when he reaches age 65 assuming a 3% interest rate. Thus, 35 years from now, theoretically his benefits will be cut by $23/month. But of course that won’t happen.