Friday, July 5, 2013

The IRS Should Apologize To This Taxpayer

In income tax land if …
  •  You own a corporation, and
  •  The corporation has property, and
  •  The corporation gives you the property, and
  •  You do not pay anything for it, …
… then the IRS will consider you as receiving distribution from the corporation. The classic distribution is a dividend, taxable to you and not deductible by the corporation. 

Perhaps the corporation distributes property and you pay some – but not all – of what the property is worth. A classic example is a corporation distributing a car to the owner’s child for a nominal amount. There is a distribution taxable as a dividend, and the dividend amount would be the value of the car over any amount paid. It would not be the full value of the car in this case.

The tax code views a C corporation (we are not discussing S corporations in this blog) as an entity distinct from its shareholders. That is how Congress justifies taxing the corporation on its income and then taxing the shareholders again when they receive dividends sourced to that income. Since there are two entities, there cannot be double taxation.  

But there is, of course, and it takes sleight of hand to maintain the illusion. Many if not most tax advisors – including me – have steered most of our closely-held business clients away from C corporations and to passthrough entities: perhaps S corporations, partnerships or limited liability companies. Sometimes the weight of the double taxation is unacceptable. 

The Tax Court decided the Welle case just last month. Sure enough, it involved a C corporation and a dividend. More specifically, it involved what the IRS saw as a new species of dividend. 

Let’s walk this through.

There is a construction company (TWC) in North Dakota. It is wholly-owned by Terry Welle (Welle). TWC primarily does multifamily construction, and its historical profit has been around 6 or 7 percent.
Welle decides he is going to build a lakefront property in Minnesota.

NOTE:  Excuse me here, but how about going south with that lakefront property? Is Minnesota that much warmer than North Dakota?

Back to our story. Welle has a company that builds things. He used TWC’s accounting system to track his costs, and he also used its workers to frame the Minnesota house. The company did a calculation of the costs, including overhead, and Welle reimbursed the company to the penny. 

The IRS comes in and finds fault. The IRS wants to know where the company’s profit is. Welle reimbursed the company at cost, including overhead, meaning that they made no profit from him. The IRS says that there should be and must be a profit. They calculate that profit to be around $48,000. Since he did not reimburse the company its erstwhile profit, the IRS assessed him with a $48,000 dividend. It wants $10,620 in income tax.

Oh, the IRS also wants an accuracy-related penalty of over $2,100.

Wow! The IRS is assessing a penalty on a tax theory it has never trotted out before? That is brazen.

This case goes to Court. The IRS argues that a corporate distribution must be measured at fair market value. Fair market value is the amount that would fully reimburse a company for its direct and indirect costs, as well as render a profit.  One cannot disagree with that summary of microeconomics 101.

The Court tells the IRS to back up. It wants the IRS to point to the distribution event before its gets to any issue of measuring and valuing. The Court reasons that a distribution requires assets to be “diverted to or for the benefit of a shareholder.” It must be a vehicle to “distribute available earnings and profits without the expectation of repayment.”

Show us the distribution, says the Court.

The IRS offers and the Court reviews a number of cases, but it cannot see how corporate assets were expended. Welle received services, but then again he paid for them. At most, he used the company as a conduit in maintaining records and paying subcontractors. The company was no better or worse for transacting with him. The event was a nullity.

In frustration, the Court writes:

Respondent does not explain how a corporation’s decision not to make a profit on services provided to a shareholder who fully reimburses the corporation for the cost of services (including overhead) constitutes a distribution of property that reduced the corporation’s earnings and profits under Section 316(a), nor does the respondent cite any cases supporting such a position.”

The Court decided for Welle and against the IRS.

My thoughts? This is one of the lamest tax theories I have come across, and I have near 30 years in the profession. What was the IRS up to? Are there that many North Dakota contractors building lakefront homes that the IRS decided to go where no serious tax practitioner had gone before? 

Let us segue for a moment. 

Do you remember Nina Olsen? She is the Taxpayer Advocate, and we have spoken of her before. The Advocate is supposed to sit outside the IRS and function as a watchdog. It is great idea, but I must admit the IRS for the last half-decade or so has seemed less than interested in the Advocate. Nonetheless, she is promoting an idea she calls the IRS “apology payment.”  The idea is to pay a taxpayer something when the behavior of the IRS causes excessive delay or expense or an undue burden resulting in significant hardship to the taxpayer.

This idea is being refloated in response to the 501(c)(4) scandal. Ms Olson argues that apology payment would: 

Serve as a symbolic gesture that the government recognizes its mistake and the taxpayer’s burden. These payments might enhance the public perception of the IRS and the tax system as just and fair.”

Great idea, although a $1,000 flat sum may be insufficient in some cases.

I would like to see Welle receive his apology payment for the IRS wasting his time.

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