A BallPark Tax

I am a general tax practitioner, but even within that I set limits. There are certain types of work that I won’t do, if I do not do enough of it to (a) keep the technical issues somewhat fresh in my mind and (b) warrant the time it would require to remain current.

Staying current is a necessity. The tax landscape is littered with landmines.

For example, did you know there is a tax to pay for Nationals Park, the home to the Washington Nationals baseball team?

I am not talking about a sales tax or a fee when you buy a ticket to the game.

No, I mean that you have to file a return and pay yet another tax.

That strikes me as cra-cra.

At least the tax excludes business with gross receipts of less than $5 million sourced to the District of Columbia.

That should protect virtually all if not all of my clients. I might have a contractor go over, depending on where their jobs are located in any given year.

Except ….

Let’s go to the word “source.”

Chances are you think of “source” as actually being there. You have an office or a storefront in the District. You send in a construction work crew from Missouri. Maybe you send in a delivery truck from Maryland or Virginia.

I can work with that.

I am reading that the District now says that “source” includes revenues from services delivered to customers in the District, irrespective where the services are actually performed.

Huh?

What does that mean?

If I structure a business transaction for someone in D.C., am I expected to file and pay that ballpark tax? I am nowhere near D.C. I should at least get a courtesy tour of the stadium. And a free hot dog. And pretzel.

COMMENT: My case is a bad example. I have never invoiced a single client $5 million in my career. If I had, I might now be the Retired Cincinnati Tax Guy.

I can better understand the concept when discussing tangible property. I can see it being packaged and shipped; I can slip a barcode on it. There is some tie to reality.

The concept begins to slip when discussing services. What if the company has offices in multiple cities?  What if I make telephone calls and send e-mails to different locations? What if a key company person I am working with in turn works remotely? What if the Browns go to the Super Bowl?

The game de jour with state (and District) taxation is creative dismemberment of the definition of nexus.

Nexus means that one has sufficient ties to and connection with a state (or District) to allow the state (or District) to impose its taxation. New York cannot tax you just because you watched an episode of Friends. For many years it meant that one had a location there. If not a location, then perhaps one had an employee there, or kept inventory, or maybe sent trucks into the state for deliveries. There was something – or someone – tangible which served as the hook to drag one within the state’s power to tax.

That definition doesn’t work in an economy with Netflix, however.

The Wayfair decision changed the definition. Nexus now means that one has sales into the state exceeding a certain dollar threshold.

While that definition works with Netflix, it can lead to absurd results in other contexts. For example, I recently purchased a watch from Denmark. Let’s say that enough people in Kentucky like and purchase the same or a similar watch. Technically, that means the Danish company would have a Kentucky tax filing requirement, barring some miraculous escape under a treaty or the like.

What do you think the odds are that a chartered accountant in Denmark would have a clue that Kentucky expects him/her to file a Kentucky tax return?

Let’s go back to what D.C. did. They took nexus. They redefined nexus to mean sales into the District.  They redefined it again to include the sale of services provided by an out-of-District service provider.

This, folks, is bad tax law.

And a tax accident waiting to happen.

Bill Yung and Columbia Sussex Sue Grant Thorton

I am reading Yung v Grant Thornton. This is a mammoth decision – it runs over 200 pages.

William Yung (Yung) owns a hotel and casino company (Columbia Sussex) based in northern Kentucky. I remember meeting with some of his tax people several years ago.  I have watched fireworks from his Kentucky office location.

Then there is Grant Thornton (Grant), a national accounting firm, and its former partner, Jon Michel (Michel). Jon and I worked for the same accounting firm, although not at the same time. I remember having lunch with Jon a few years later and discussing joining Grant Thornton’s tax team. I also remember the unacceptable sales pressure that went with joining Grant. I passed on that, and I am glad I did.

Jon is in the tax literature, and not in a good way. It has a lot to do with that sales pressure.

Today we are talking about tax shelters.

CPA firms - especially the nationals - in the 1990s and aughts became almost pathologically obsessed with profitability. Accounting practice was changing, and the tradition of accountants being business advisors and confidantes was being replaced with a new, profit-driven model. We saw metrics like “write-ups” and “write-downs” by individual accountants. There were “individual” marketing plans for accountants two or three years into the profession and having another five or seven job changes ahead of them. I remember a CPA whose promotion to manager was delayed because she missed her “chargeable” budget by approximately 40 hours – over the course of an entire year.

And tax departments were leaned upon to come up with new “products” to market to clients.

COMMENT: Referring to tax advice as a “product” tells one a lot about the underlying motivation of whoever is promoting it. I for example do not sell a “product.” I provide business and tax advice. If you want a product, go to Amazon.

So what flavor of tax shelter are we talking about?

Yung and family and family entities (such as Columbia Sussex) own casinos and hotels. Some of them are in the Cayman Islands, which would make them controlled foreign corporations (CFCs). You may recall that the U.S. wants to tax all U.S. businesses on their worldwide income. Since doing so would almost guarantee that there would be no U.S. - based international businesses, the tax Code allows for tax deferrals, then exceptions to those deferrals, and then exceptions to the exceptions, and so on. It borders on lunacy, frankly, but this is what Yung and entities were caught in. Yung and entities had monies overseas, but it would have cost a fortune in taxes to bring the monies back to the U.S. Yung’s son Joe traveled regularly to the Caribbean, Central and South America seeking acquisition opportunities as a means to reinvest the Cayman monies. Grant was their accounting firm. Jon Michel even assisted in the acquisition of a Canadian hotel.

There was opportunity there for a sharp tax advisor.

Here is opportunity knocking:

·        A partnership contributes cash to a foreign corporation (FC). It receives the common stock.

·        Another party also contributes cash. In return it receives preferred stock.

·        The FC borrows money from a bank.

·        With the money, the FC buys marketable securities.

·        FC then distributes the securities, with its attendant debt (sort of), to the partnership, liquidating the partnership’s investment in FC.

·        There is a technical tax rule concerning a distribution with debt attached. The debt reduces the fair market value of the securities. If the debt were equal to the value of the securities, for example, the net distribution would be zero (-0- ).

·        The partnership received a liquidating distribution worth zero (or near zero) but had an investment equal to the cash it put in FC. This leads to a big tax loss.

So far, so good. The partnership received marketable securities, but it also has to pay back the bank. Where is the tax shelter, then?

·        The FC later pays off the debt.

Whoa!

The partnership is out no money but has a big tax loss.

The key to this was being able to reduce the liquidating distribution by the bank debt, even though the partnership never intended to pay the debt. Some tax CPAs and tax attorneys argued that this was fine, as tax Code Section 301(b)(2)(B) reduced the distribution…

“… by the amount of any liability to which the property received by the shareholder is subject immediately before, and immediately after, the distribution.”

We are talking the Bond and Optional Sales Strategy tax shelter sold by Price Waterhouse in the 1990s. The nickname was BOSS, and the IRS was determined to come down hard on the BOSS transactions and enablers. Frankly, I don’t blame them.

In 1999 the IRS published Notice 99-59, which warned that tax losses claimed in a BOSS transaction were not allowable for federal income tax purposes. The Service also warned of substantial and numerous penalties.

Congress followed this up with new tax Regulations to Section 301 in 2000.

So what did Grant Thornton do? It developed a new “product” which it called “Leveraged 301 Distributions” or Lev301.  How did it work? Here is an internal Grant document:

           

The objective of the Leveraged 301 Distributions tax product is to structure distributions in order to permanently avoid taxability to shareholders. Either closely-held C corporations or S corporations can distribute assets subject to liabilities … and provide this benefit to shareholders.”

           

How similar is this thing to BOSS, which provoked Notice 99-59 and new tax Regulations? Back to that Grant internal document:

Further the IRS may assert arguments it used against the BOSS transaction in Notice 99-59 and against the subject-to language of former IRS Section 357”

This has to be a finalist for the “Worst Timing Ever” award.

Grant goes live with the product in June 2000. Jon Michel begins to promote the thing, including to Yung and Columbia Sussex.

You already know this thing went to trial, so let’s fast-forward to some language from the Court:

           

No one associated with Grant Thornton, even those intimately involved in the process who testified to the court, has stepped forward and taken credit for the idea and creation of Lev301.”

Hey, but Lev301 is substantially different from BOSS, right?

Here is the Court:

Grant Thornton believed that there was a 90% chance that the IRS would disallow the tax benefits on the Lev301 on audit.”

Good grief! Why would a self-respecting tax advisor be associated with this?

Yung and Columbia Sussex were not told about the 90% chance.

The court finds that Yung and associates brought income into the United States from his CFC’s on a routine basis. Yung and his associates looked for ways to accelerate this process but vetted possible means of doing so with a close concern for the risks involved, as evidenced by the decision not to participate in other tax strategies presented to them. Yung and his associates maintained a very conservative risk level about income tax reporting as evidenced by the IRS complimenting the consistent approach to paying taxes. The court finds the Yung’s testimony to be consistent with this approach to tax reporting and, therefore, to be credible.”

What did the Court say about Grant?

The evidence indicates everyone who participated was on high alert regarding this product. As a result, while this court certainly understands the fading of memory, the failure of some of Grant Thornton’s witnesses to recall anything about their participation in the research and development of this product is disingenuous and not credible.”

Let’s continue. Would Jon Michel have been permitted to meet and pitch Lev301 to Yung had Yung’s tax department been informed of the risk?

The likelihood that the IRS would view the Lev301 as an unlawful abusive tax shelter was a present risk that would have impacted … (Columbia Sussex’ CFO) decision to allow …. J(on) Michel to present Lev301 to Yung. Had the risk been disclosed … (Columbia Sussex’ CFO), (as he had done with the prior proposals) would have terminated discussions about Lev301 at that point.”

So Jon Michel and Yung meet. Yung wanted to know if other Grant clients had used this scheme.

J(on) Michel told Yung that, while he could not divulge the names of other Grant Thornton clients, he could disclose that a local jet-engine manufacturer and a local consumer products manufacturer had successfully used the Lev301 strategy to transfer foreign wealth to the U.S.”

For those of us who live in Cincinnati, the reference to GE and Proctor & Gamble is unmistakable. Still, if GE and P&G did use the strategy…

When Michel made this representation to Joe Yung, he had no knowledge as to whether GE and P&G had utilized a Lev301-like strategy.”

All right then.

In 2002 the IRS initiated an examination of Grant Thornton. The IRS issued a summons asking for documents relating to Grant’s promotion of Lev301 and the names of clients who participated in the product.

Grant Thornton did not notify the Yungs … about the summons, which further increased the likelihood that the Yungs … would be audited by the IRS on account of their participation in the Lev301.”

In November of 2002 the IRS audited Columbia Sussex for reasons unrelated to Lev301.

NOTE: This is fairly common for larger, higher-profile corporations. It does not necessarily mean anything.     

Grant was hired to represent during the tax audit.

In 2003 Yung and Columbia Sussex received an Information Document Request from the IRS. The IRS wanted to know whether they had directly or indirectly participated in any transactions that were the same or substantially similar to a “listed” transaction.

            NOTE: Like a BOSS or a BOSS-like transaction.

Jon Michel answered the question “No.”

The tax director at Columbia Sussex later read in a trade journal that the government was summoning Grant Thornton. He called Jon Michel. Jon informed Yung and associates that Grant was likely to comply with the summons and that client names would be turned over to the IRS.

And they were.

The IRS expanded its audit of Columbia Sussex to include more years, the Yung family, family entities and any unfortunate soul driving past corporate headquarters on I-275 in northern Kentucky. On the other hand, in 2004 Jon Michel wrote a nice letter to Yung and entities offering limited tax representation before the IRS.

Do we need to continue this story?

The Yung family and entities owed over $18 million in tax, interest and penalties to the IRS.

If this were you, what would you do next?

You would sue Grant Thornton.

           

COMMENT: Be honest: this is a Mr. Obvious moment.

A Kentucky circuit court has just ordered Grant Thornton to pay Yung and family and entities approximately $100 million, including $80 million in punitive damages. The judge described Grant’s actions as “reprehensible.”

Grant intends to appeal, saying:

We are disappointed in the Court’s ruling and believe we have strong grounds for an appeal, which we will pursue.”

Grant has to appeal the decision, of course.

My thoughts?

Remember that Yung is in the hotel and casino business, an industry subject to higher financial and personal scrutiny. What is the collateral and reputational damage to him and his entities from an abusive tax shelter? Yung has said the ordeal has already cost him a casino license in Missouri.

I have little patience for this type of practice. What was motivating Grant with the Lev301 “product”- solving a client’s tax problem or generating a million dollar fee? Could it be both? Sure, but the smart money would bet the other way. This type of behavior is not “practice.” It is greed, it is an abuse of a professional relationship and it is disreputable to those of us who try to practice between the lines.