Is Zwerner's 200% Penalty Excessive?

Let me ask you a hypothetical question.

Say you made a million dollars in 2013. Even in a worst-case, salt-the-fields scenario, what would be the most the government could take from you in taxes? 

I am thinking a million dollars. 

His facts are not attractive. There is a saying that “bad facts make bad law.” We have both in this case. 

His name is Carl Zwerner, is 86 years old and lives in the Miami area. For years 2004 through 2007, Zwerner maintained an account at ABN AMRO Bank in Switzerland. It is not (yet) illegal for an American to have a foreign bank account, but it is illegal not to report it. 

Somewhere in 2008 he had a change of heart. He filed a delinquent FBAR and amended his 2007 tax return to include the earnings from the account. In 2009 he decided to come clean on years 2004, 2005 and 2006 also.

There was a twist: Zwerner did not hold the bank account in his own name. The account was in the name of the “Bond Foundation” for a while, then in the name the “Livella Foundation.” At all times, though, Zwerner had control and was the beneficial owner of the funds. Those account names were just speed bumps.

Then he does the unbelievable. In a letter dated August 2010, he admitted to the IRS that he was aware that he should have reported both the existence of the account and the earnings from it.

Why, Carl, oh why?

The IRS, in yet another example of why people hate the IRS, decided that he “willfully” evaded his taxes, used regular gasoline in a high-octane-only car and failed to hold the door for an elderly woman at the grocery store. The IRS determined that the balances at the Swiss account were as follows over the years:

           

2004	$1,447,000
2005	$1,490,000
2006	$1,545,000
2007	$1,691,000

This did not take Sherlock-type powers by the IRS, by the way, as Zwerner had already reported the account.

The IRS then remembered that the penalty for willful failure to file an FBAR is 50% of the highest balance for each year.

NOTE: Did you pick-up on what the fifth-amendment-pleading crowd has done here? Two years worth of penalties and the account is depleted – essentially seized by the government. 

Well, Zwerner was facing 4 years. His penalty was almost $3.5 million, whereas his account had never exceeded $1.7 million.

Good thing he voluntarily filed amended returns! What would they have done to him had he not come clean? 

In the area of foreign accounts, Treasury and the IRS have decided that we are all guilty, and that the only way to salvation is through their disclosure program du jour. The fact that these programs may not be a fit for many (or most, in my opinion) is beside the point. Many tax practitioners, me included, have represented clients with foreign non-reporting issues. My clients have been “ordinary” – an expat who started a business in Scotland, another who had no idea what an “FBAR” was, much less that she had to file tax returns even though she had lived out of the U.S. for two decades. These are not tax desperados, and to lump them in with IRS programs designed to avoid criminal prosecution is bonkers.

And there is the rub. The IRS took Zwerner’s letter as an admission of “willfulness,” meaning that he is charged with tax fraud. This is a criminal charge, and Zwerner should have entered the Offshore Voluntary Disclosure Program if he wanted protection from criminal charges. The IRS would say this is not the same as my Aberdeen restaurateur. I in turn would ask the IRS: why don’t you have a program for people like my restaurateur? Do you think I enjoyed that phone call with an expat who is afraid to return to the United States to visit her mother? Why are you terrorizing ordinary people? We could probably put all the people with significant money hidden overseas into one hotel conference room. Why is it that attorneys and tax CPAs in 50 states have horror stories to tell? There cannot be that many overseas-money-hiding uber-wealthies to go around.

Zwerner amended his returns. He did not enter the disclosure program. The IRS calls this a “quiet disclosure,” and they do not like it. They assessed 200% penalties.

What choice did the IRS leave him? He filed a lawsuit against the government.  He has an interesting argument, as the Eighth Amendment prohibits “excessive fines.” 

What do you think? Is a penalty of more than 100% an “excessive fine?”

There is precedent. There is a 1998 case where someone tried to take $357 thousand overseas and got caught with the money in his luggage. The U.S. sought forfeiture of the entire amount. The Supreme Court ruled against the government, stating that forfeiture of all the money was “grossly disproportional to the gravity of the offense.” The Supreme Court ordered him to pay $20,000 instead.

We’ll be paying attention to Zwerner’s case as it goes through the courts.

Dealing With A Tax Lien

A client contacted me this past week. He received a Notice of Federal Tax Lien, and he wanted to find out if (1) he should worry about it and (2) if I could do anything about it.

Here is the pat answer in tax practice: it depends.

A lien is different from a levy. Odds are you and I would worry more about a levy than a lien.

A levy means that the IRS comes in and takes your money. The two classics are the wage garnishment, where they contact your employer and have him/her send them part of your paycheck, and the bank levy, where they swoop in a drain your bank account.

The IRS places a lien on a taxpayer’s property when he/she has unpaid tax debt. It does not mean that they are going to garnish your paycheck or seize your house, but it does mean that they have filed something at the courthouse alerting the world that you have unpaid debt. That lien can cost you over a hundred points on your credit score. In today’s world, that could affect you being offered a job or being approved for an apartment.

A lien can stay on your credit report for years, even after the tax is paid-off.

The IRS has realized the injurious effect of its previous lien policy. It has taken steps, albeit small, to alleviate some of the sting:

(1) The IRS has increased the minimum amount of tax debt that prompts the filing of a tax lien from $5,000 to $10,000.

(2) If you owe less than $25,000, the IRS will withdraw the lien if you set up a direct debit installment plan. This means they automatically draft money from your bank account every month. You have to pass a probationary period of three months (and three payments). The IRS will then withdraw the lien.

OBSERVATION: Words are important here. Record of a lien can remain on your credit report, even after it is removed. You prefer a withdrawal of the lien, as a withdrawal is as if nothing ever happened.

(3) Even if you owe less than $25,000 and have made at least three payments under a direct debit plan, you still have to request that the lien be withdrawn. You should submit Form 12277 Application for Withdrawal of Filed Notice of Federal Tax Lien, although any written request that provides the necessary information likely will suffice.

(4) Even after all this, you want to contact the credit bureaus to be certain that your records have been updated.

What if you owe more than $25,000? This is my client’s situation, and there are not many good options.

(1) Pay off the tax debt in full.

OBSERVATION: This one ranks a ‘duh.” Nonetheless, the point to consider is that you might be able to borrow and pay off the IRS. Granted, you still owe money, but at least you can stop the ongoing ding to your credit.

(2) Post a bond.

OBSERVATION: Again, if you have enough money to post a bond, you likely can pay-off the debt. I have never seen someone post a bond to release a lien.

(3) Request a partial release

You own several assets encumbered by the lien. If you need to sell an asset, you can request partial release from the lien. Expect the IRS to want the money from the sale, of course.

(4) Offer in Compromise

This is the “pennies on the dollar” commercial on radio or overnight television. The idea here is that you offer the IRS what you have, plus a portion of your future earnings, to pay-off a tax debt. If you still have years to go in the workforce and have reasonable earnings potential, you likely will not qualify for “pennies on the dollar.” The IRS can also see your earning power over the next few years, and they will be loathe to let you walk away. However, if you have modest assets and are disabled, retired or near retirement, the OIC may pack a punch.

What did I recommend to my client? He owes more than $25,000, and enough more where I cannot have him pay-down to $25,000. He is young enough, and has enough earning power, where any offer in compromise would yield little (if any) more benefit than a payment plan. In that case, I would prefer to remain in a payment plan, as an offer will toll the statute of limitations.  That takes away my last ditch option…

(5) Run the 10-year statutory collection period

The IRS has 3 years to audit your return and 10 years to collect. Sometimes they overlap, and the two periods run concurrently.  Think of running the bulls in Pamplona for 10 years, and you can visualize this tax strategy. Still, sometimes it works, which is why tax advisors continue to talk about it. 

The trap here is “tolling,” which means that the collection period is suspended. Toll enough and the 10 years can become 15 or 20 years. What causes a toll? A bankruptcy application causes it. So does an offer in compromise.

There is no releasing my client’s lien early. Why? The IRS will generally not release a lien if it knows it will not be fully paid-off.  My client has a partial pay plan, which means that his full liability will not be paid off unless the plan payment or period changes.  

He owes over $25 thousand and will not pay-off the IRS in full as the plan now stands. He is hosed.

New Tax On Self-Funded Health Plans Due By July 31

I knew that there was a new tax on self-insured medical plans. I was surprised that it reached health reimbursement arrangements (HRA), though.

I was surprised because it makes little sense, other than as a raw money grab. Next time perhaps the government will just select names at random from a phone book and require them to send money. I suggest they start with the District of Columbia phone book.

Have you heard of a health reimbursement arrangements? We are wading into alphabet soup-land, so let’s take a moment to compare and contrast an HRA with a health savings account (HSA).

 

If your employer is large enough, you may receive an annual letter laying out your health insurance options. Perhaps you can select from standard reimbursement, HMO, preferred provider or high-deductible health plans. That high-deductible plan likely is an HSA.

The concept of an HSA is simple: combine a high-deductible health policy with a medical IRA. If one incurs routine medical costs, one is reimbursed from the IRA. If one does not, then the IRA continues to compound and accumulate. The policy is there for big expenses. For a healthy family the medical IRA can add-up to tens of thousands of dollars.

A health reimbursement arrangement (HRA) is a different animal.   A key difference is that an HRA is all employer money. The HRA can reimburse employees for medical expenses, including vision, dental and chiropractic. It can reimburse on a first-dollar basis, a deductible-first basis, a sandwich basis and any other basis the plan advisor can dream up. It can have an annual cap … or not. Chances it will have an annual cap, as otherwise the employer borders on being financially reckless.

The employee doesn’t own this money, by the way. Should an employee quit, the money reverts to the employer. In truth, many if not most HRAs do not have any money at all. The medical bills are paid directly from company funds when presented for reimbursement. There may be an accounting somewhere that shows every employee and how many dollars are in his/her “account,” but this is for bookkeeping purposes only. The term for this is “notional,” and it means make-believe. Think unicorns, fairies and the New York Jets having a NFL-caliber quarterback.

ObamaCare (technically, The Affordable Care Act) is imposing a new fee on self-funded plans, which includes HRAs. It is coming up fast. If you have an HRA whose most current plan year ended after September 30, 2012 and before July 31, 2013 (that is, virtually every HRA), the HRA will have to pay a $1 fee per participant. Next year the fee goes to $2, and thereafter it goes to who-knows-what because some government bureaucrat will decide the amount.

The tax is due by the end of this month – July 31.

This tax will be reportable on Form 720, which may be a new filing for many employers.

It also has to be paid electronically. There is no attaching a check for this one.

I am a big fan of HRAs, as it allows companies to add to their employee benefits package without bankrupting themselves in the process. The HRA can cover deductibles, pay for braces or help with medical expenses that otherwise fall through the cracks left by the main insurance policy. HRAs have gotten more expensive, however, both by the per-participant fee as well as by the tax practitioner’s fee to prepare the return.