Vanguard's Whistleblower Tax Case

Can the IRS go after you for not making enough profit?

There is a whistleblower case against Vanguard, the mutual fund giant. Even though there is a tax angle, I had previously sidestepped the matter. Surely it must involve some mind-numbing arcana, and –anyway- why enable some ex-employee with a grudge? 

And then I saw a well-known University of Michigan tax professor supporting the tax issues in the whistleblower case.

Now I had to look into the matter.

My first reaction is that this case represents tax law gone wild. It happens. Sometimes tax law is like the person looking down at his/her cell phone and running into you in the hall. They are too self-absorbed to look up and get a clue.

What sets this up is the management company: Vanguard Group, Inc. (VGI). Take a look at other mutual fund companies and you will see that the management company is separately and independently owned from the mutual funds themselves.  The management company provides investment, financial and other services, and in turn it receives fees from the mutual funds.  

The management company receives fees irrespective of whether the funds are doing well or poorly. In addition, the ownership of the management company is likely different from the ownership of the funds. You can invest in the management company for T. Rowe Price (TROW), for example, even if you do not own any T. Rowe Price funds.

Vanguard however has a unique structure. Its management company – VGI – is owned by the funds themselves. Why? It goes back to Jack Bogle and the founding of Vanguard: he believed there was an inherent conflict of interest when a mutual fund is advised by a manager not motivated by the same financial interests as fund shareholders.  Since the management company and the funds are essentially one-and-the-same, there is little motivation for the management company to maximize its fees. This in turn has allowed Vanguard funds to provide some of the lowest internal costs in the industry

My first thought is that every mutual fund family should be run this way.

VGI and all the funds are C corporations under the tax Code. The funds themselves are more specialized and are “registered investment companies” under Subchapter M. Because the funds own VGI, the “transfer pricing” rules of IRC Section 482 apply.

COMMENT: The intent of Section 482 is to limit the ability of related companies to manipulate the prices they charge each other. Generally speaking, this Code section has not been an issue for practitioners like me, as we primarily serve entrepreneurs and their closely-held companies. This market tends to be heavily domestic and unlikely to include software development, patent or other activity which can easily be moved overseas and trigger transfer pricing concerns. 

Practitioners are however starting to see states pursue transfer pricing issues. Take Iowa, with its 12% corporate tax rate as an example. Let’s presume a multistate client with significant Iowa operations. Be assured that I would be looking to move profitability from Iowa to a lower taxed state. From Iowa’s perspective, this would be a transfer pricing issue. From my perspective it is common sense.

Section 482 wants to be sure that related entities are charging arm’s-length prices to each other. There are selected exceptions for less-than-arm’s-length prices, such as for providing routine, ministerial and administrative services. I suppose one could argue that the maintenance and preparation of investor statements might fit under this exception, but it is doubtful that the provision of investment advisory services would.  Those services involve highly skilled money managers, and are arguably far from routine and ministerial.

So VGI must arguably show a profit, at least for its advisory services. How much profit?

Now starts the nerds running into you in the hall while looking down at their cell phones.

We have to look at what other fund families are doing: Janus, Fidelity, Eaton Vance and so on. We know that Vanguard is unique, so we can anticipate that their management fees are going to be higher, potentially much higher. An analysis of Morningstar data indicates as much as 0.5 percent higher. It doesn’t sound like much, until you consider that Vanguard has approximately $3 trillion under management. Multiply any non-zero number by $3 trillion and you are talking real money.

It is an interesting argument, although it also appears that the IRS was not considering Vanguard’s fact pattern when it issued Regulations. Vanguard has been doing this for 40 years and the IRS has not concerned itself, so one could presume that there is a détente of sorts. Perhaps the IRS realized how absurd it would be to force the management company to charge more to millions of Vanguard investors.

That might attract the attention of Congress, for example, which already is not the biggest fan of the IRS as currently administrated.

Not to mention that since the IRS issued the Regulations, the IRS can change the Regulations.

And all that presumes that we are correctly interpreting an arcane area of tax law.

The whistleblower is a previous tax attorney with Vanguard, and he argues that Vanguard has been underpaying its income taxes by not charging its fund investors enough.

Think about that for a moment. Who is the winner in this Alice-in-Wonderland scenario?

The whistleblower says that he brought his concerns to the attention of his superiors (presumably tax attorneys themselves), arguing that the tax structure was illegal. They disagreed with him. He persisted until he was fired.

He did however attract the attention of the SEC, IRS and state of New York.

I had previously dismissed the whistleblower argument as a fevered interpretation of the transfer pricing rules and the tantrum of an ex-employee bent on retribution.  I must now reevaluate after tax law Professor Reuven S. Avi-Yonah has argued in favor of this case.

I am however reminded of my own experience. There is a trust tax provision that entered the Code in 1986. In the aughts I had a client with that tax issue. The IRS had not issued Regulations, 20 years later. The IRS had informally disclosed its internal position, however, and it was (of course) contrary to what my client wanted. I in turn disagreed with the IRS and believed they would lose if the position were litigated. I advised the client that taking the position was a concurrent decision to litigate and should be addressed as such.

I became extremely unpopular with the client. Even my partner was stressed to defend me. I was basing professional tax advice on chewing gum and candy wrappers, as there was nothing else to go on.

And eventually someone litigated the issue. The case was decided in 2014, twenty eight years after the law was passed. The taxpayer won.

Who is to say that Vanguard’s situation isn’t similar?

What does this tax guy think?

I preface by saying that I respect Professor Avi-Yonah, but I am having a very difficult time accepting the whistleblower argument. Vanguard investors own the Vanguard funds, and the funds in turn own the management company. I may not teach law at the University of Michigan, but I can extrapolate that Vanguard investors own the management company – albeit indirectly – and should be able to charge themselves whatever they want, subject to customary business-purpose principles. Since tax avoidance is not a principal purpose, Section 482 should not be sticking its nose under the tent.

Do you wonder why the IRS would even care? Any income not reported by the management company would be reported by fund investors. The Treasury gets its pound of flesh - except to the extent that the funds belong to retirement plans. Retirement plans do not pay taxes. On the other hand, retirement plan beneficiaries pay taxes when the plan finally distributes.  Treasury is not out any money; it just has to wait. Oh well.

It speaks volumes that someone can parse through the tax Code and arrive at a different conclusion. If fault exists, it lies with the tax Code, not with Vanguard.

Then why bring a whistleblower case? The IRS will pay a whistleblower up to 30% of any recovery, and there are analyses that the Vanguard management company could be on the hook for approximately $30 billion in taxes. Color me cynical, but I suspect that is the real reason.

Do You Earn Too Much For An IRA?

I have received several questions about IRAs recently.  They can roughly be divided into two categories:

(1) Do I qualify?

(2) I converted to a Roth and it is worth less than what I paid tax on.

I wondered whether there is some way to blog about this without our eyes glazing over. IRAs are a thicket of seemingly arbitrary rules.

Let’s give it a try by discussing a couple of situations (names and numbers changed, at least a smidge) that came across my desk this year.     

Our first example:

Matt is single and makes around $200,000 annually. He is over age 50 and maxes-out his 401(k). He heard that he can put away an additional $1,000 in an IRA for being over age 50. He puts $6,500 into a Roth, and then he calls his tax advisor to be sure he was OK.

He is not.

His 401(k) is fine. There generally are no problems with a 401(k), unless you are one of the highly-compensated and the plan administrator sends money back to you because the plan went “top heavy.” 

It is the IRA that is causing headaches.

He has a plan at work (the 401(k)) AND he made an IRA contribution. The tax rules can get wonky with this combination.

You see, having a plan at work can impact his ability to make an IRA contribution. If there is enough impact, He cannot make either a traditional (which means “deductible”) or Roth IRA contribution.

 Is it fair? It’s debatable, but those are the rules.

What is too much?

(1) A single person cannot make a traditional IRA contribution if his/her income exceeds $71,000. 

CONCLUSION: He makes $200,000. He does not qualify for a traditional (that is, deductible) IRA.

(2) A single person cannot make a Roth contribution if his/her income is over $131,000.

CONCLUSION: He makes too much money to make a Roth contribution. 

Did you notice the two different income limits for a regular and Roth IRA? It is an example of the landmines that are scattered in this area.

What should Matt do?

Let’s go through example (2) and come back to that question.

Sam and Diane are married. They are both in their 50s and make approximately $180,000 combined. They did well in the stock market this past year, picking up another $15,000 from capital gains as well as dividends, mostly from their mutual funds. Diane and Sam were a bit surprised about this at tax time.

Diane has a 401(k) at work. Sam does not. Diane contributes $6,500 to her traditional (i.e., deductible) IRA, and Sam contributes $6,500 to his Roth.

There is a problem.

The 401(k) is fine. The 401(k) is almost always fine.

Again it is those IRAs. The income limits this time are different, because we are talking about a married couple and not a single person. The limits are also different because Sam does not have a retirement plan at work.

A reasonable person would think that Sam should be allowed to fully fund an IRA. To require otherwise appears to penalize him as he has no other retirement plan. Many would agree with you, but Congress saw things differently. Congress said that there was a retirement plan at work for one of the two spouses, and that was enough to impose income limits on both spouses. Seems inane to me and more appropriate for the Gilligan’s Island era, but – again – those are the rules.

(1) Since Diane has a plan at work, neither can make a traditional/deductible) IRA contribution if their combined income exceeds $193,000. 

Note that she would have had a deductible IRA (at least partially deductible) except for the dividends and capital gains. Their combined income is $195,000 ($180,000 + $15,000), which is too high. No traditional/deductible IRA for Diane.

(2) Roth contributions are not allowed for marrieds with income over $193,000.

OBSERVATION: Hey, that is the same limit as for a traditional/deductible IRA. Single people had different income limits for a traditional/deductible and Roth IRA. 

Q: Why is that? 

A: Who knows. 

Q: How does a tax person remember this stuff?

A: We look it up.

They went over $193,000. Sam cannot make a Roth contribution. 

Diane and Sam did their tax planning off their salaries of $180,000, which was below the income limit. They did not anticipate the mutual funds. What should Diane and Sam (and Matt) do now?

First, you have to do something, otherwise a penalty will apply for over-funding an IRA. Granted the penalty is only 6%, but it will be 6% every year until you resolve the problem.

Second, you can contact the IRA custodian and have them send the money back to you. They will also send back whatever earnings it made while in the IRA, so there will be a little bit of tax on the earnings. Not a worst case scenario.

Third, you can have the IRA custodian apply the contributions to the following year. Maybe they will, maybe they won’t.  It would be a waste of time, however, if your income situation is expected to remain the same.

Fourth, you can move the money to a nondeductible IRA.

Huh?

Bet you did not realize that there are THREE types of IRAs. We know about the traditional IRA, which means that contributions are deductible. We also know about Roth IRAs, meaning that contributions are not deductible. But there is a third - and much less common – IRA.

The nondeductible IRA. 

You hardly hear about them, as the Roth does a much better job. No one would fund a nondeductible if they also qualified for a Roth. 

There is no deduction for money going into a Roth IRA, but likewise there is no tax on monies distributed from a Roth. Let that money compound for 30 or 35 years, and a Roth is a serious tax-advantaged machine.

There is no deduction for money going into a nondeductible IRA, but monies distributed will be partially taxed. You will get your contributions back tax-free, but the IRS will want tax on the earnings.  The nondeductible IRA requires a schedule to your tax return to keep track of the math. 

The Roth is always better: 0% being taxed is always better than some-% being taxed. 

Until you cannot contribute to a Roth.

You point out that Matt, Diane and Sam are over the income limits. Won’t the nondeductible IRA run into the same wall?

No, it won’t. A nondeductible IRA has no income limit. 

And that gives the tax advisor something to work with when one makes too much money for either a traditional/deductible or Roth IRA.

Let’s advise Matt, Diane and Sam to move their contributions to a nondeductible IRA.  That way, they still make a contribution for the year, and they preserve their ability to make a contribution for the following year. Some retirement contribution is better than no retirement contribution.

BTW, what we have described – moving one “type” of IRA to another “type” – is sometimes called “recharacterization.” More commonly, it refers to moving monies from a Roth IRA to a traditional/deductible IRA. 

For example, if you made a Roth “conversion” (meaning that you transferred from a traditional/deductible IRA to a Roth) in 2014, you might be dismayed to see the stock market tanking in 2015. After all, you paid tax when you moved the money into a Roth, and the account is now worth less. You paid tax on that money!

There is an option: you can “recharacterize” the Roth back to a traditional IRA in 2015. You would then amend your 2014 tax return and get a tax refund. You have to recharacterize by October 15, 2015, however, as that is the extended due date for your 2014 tax return.  Does it matter that you did not extend your 2014 return? No, not for this purpose. The tax Code just assumes that you extended. 

You can recharacterize some or all of the Roth, and there are some rules on when you can move the monies back into a Roth.

The nondeductible IRA is also involved in a technique sometimes called a “backdoor” Roth. This is used when one makes too much money for a Roth contribution but nonetheless really wants to fund a Roth. The idea is to fund a nondeductible IRA and then convert it to a Roth. This works best with an IRA contribution made after December 31^st but before the tax return is due.

EXAMPLE:  You make a $5,500 nondeductible IRA contribution on February 21, 2016 for your 2015 tax year. You convert it to a Roth the next day. Think about the dates for a moment. You made a 2015 IRA contribution (albeit in 2016). You converted in 2016. Even though this happened over two days, the two parts of the transaction are reported in different tax years.

BTW, converting to a Roth means that you literally move the money from one account to a different account. It is not enough to just change the name of the account. Formality matters in this area. 

There are rules that make the backdoor all-but-impossible if you have other IRA accounts. It is one of those eye-glazing moments in this area, so we won’t go into the details. Just be aware that there may be an issue if you are thinking about a backdoor Roth.

On Warren Buffett, Berkshire Hathaway and PFICs

We have spoken before about passive foreign investment companies, or PFICs (pronounced pea-fick). There was a time when I saw these on a regular basis, and I remember wondering why the IRS made the rules so complicated.

I am thinking about PFICs because yesterday I read a release for IRS Notice 2014-28. The IRS is amending Regulations concerning the tax consequences of U.S. persons owning a passive foreign investment company through an account or organization which is tax-exempt. Think a hospital, pension plan or IRA, for example. 

Granted, this is not as interesting as Game of Thrones or Sons of Anarchy.

Could you walk unknowingly into a PFIC? It is not likely for the average person, but it is not as difficult as you might think.

PFICs came into the tax Code in 1986. They were intended to address what Congress saw as a loophole. I agree that there was a loophole, but whether the tax fly required the sledgehammer response it received is debatable.

There were a couple of ways to get to the loophole. One way would be to form a foreign corporation and have the corporation invest in stocks and bonds. This means you are forming a foreign mutual fund. There are a couple of issues with this, the key one being that it would require a large number of investors in order to avoid the rules for a controlled foreign corporation. To the extent that 10%-or-more U.S. shareholders owned more than 50% of the foreign corporation, for example, one would have a controlled foreign corporation (CFC) and would be back into the orbit of U.S. taxation.

The second way is to invest in an existing foreign mutual fund. Say that you invested in a German fund sponsored by Deutsche Bank, for example.

And the average person would say: so what? You invested in mutual fund.

Here s what the IRS did not like: the mutual fund could skirt the taxman by not paying dividends or distributions.  The value of the fund would increase, as it would accumulate its earnings.  When you sold that foreign mutual fund, you would have capital gains and you would pay U.S. tax.

Well, the IRS was unhappy with that, as you did not pay tax on dividends every year and, when you did pay, you paid capital gains rather than ordinary income tax. How dare you?

Why the sarcasm? Because you can get the same tax result from owning Berkshire Hathaway. Warren Buffet does not pay a dividend, and never has. You hold onto your shares for a few years and pay capital gains tax when you sell. The IRS never receives its tax on annual dividends, and you pay capital gains rather than ordinary tax on the sale.

Why the difference between the Berkshire Hathaway and Deutsche Bank? Exactly my point. Why is there a difference?

So we have PFIC taxation. Its sole purpose is to deny the deferral of tax to Americans investing in foreign mutual funds.

There are three ways to tax a PFIC.

The default scheme is found in Code Section 1291. You are allowed to defer taxation on a PFIC until the PFIC makes an “excess” distribution. An excess distribution is defined as one of two events:

(1)   The PFIC distributes an amount in excess of 125% of the average distribution for its preceding three years; or

(2)   You sell the PFIC stock.

Let’s say that we use the default taxation on the PFIC. What does your preparer (say me) have to do next?

(1)   I have to calculate your additional tax per year had the distribution been equally paid over the period you owned it (this part is relatively easy: it is the highest tax rate for that year); and

(2)   I have to calculate interest on the above annual tax amounts.

You can imagine my thrill in anticipation of this magical, career-fulfilling tax opportunity. There are severe biases in this calculation, such as presuming that any income or gain was earned pro rata over your holding period. I have seen calculations where - using 15 to 20 year holding periods - the tax and interest charge can approach 100%. This is not taxation. This is theft.

The second option is to annually calculate a "mark to market" on the PFIC. This works if there is a published trading or exchange price. You subtract the beginning-of-year value from the end-of-year value and pay tax on it. I have never seen a tax professional use this option, and frankly it strikes me as tax madness. With extremely limited exceptions, the tax Code does not consider asset appreciation to be an adequate trigger to impose tax. There would be no 401(k) industry, for example, if the IRS taxed 401(k)s like they tax PFICs.

The third option is what almost everyone does, assuming they recognize they have a PFIC and make the necessary election to be taxed as a “qualified election fund,” or QEF for short.

   OBSERVATION: Tax practitioners like their acronyms, as you can see.

There are two very important factors to a QEF:

           

(1)   You have to elect.

a.     No election, no QEF.

(2)   The foreign fund has to agree to provide you numbers, made up special just for its American investors. The fund has to tell you what your interest and dividends and capital gains would have been had it actually distributed income rather than accumulate.

You can fast forward why: because you are going to pay tax on income you did not receive.

What happens in the future when you sell the fund? Remember, you have been paying tax while the fund was accumulating. Don’t you get credit for all those taxes when you finally sell?

Yes, you do, and I have to track whichever of three calculations we decide on in a permanent file. For every fund you own.

BTW there had better be a specific form attached to your tax return: Form 8621. If you were required to disclose a foreign financial account (which a PFIC would be) and did not do so, either on Form 8621 or on another form intended for that purpose, the IRS might be able to "toll" the statute of limitations. Tolling means "suspend" in tax talk. This means the IRS could assess taxes, penalties and interest many years after the tax year should normally have closed. 

This applies only to rich people, right? Not so much, folks. This tax pollution has a way of dissolving down to affect very ordinary Americans.

How? Here are a couple of common ways:

(1)   You live abroad.

You live abroad. You invest abroad.

I intend to retire abroad, so some day this may affect me. Me and all the other tax CPA billionaires high-stepping it out of Cincinnati. Yep, we are a gang of tax-avoiding desperados, all right.

(2)   You work/worked in Canada.

And you have a RSSP. The RRSP is invested in Canadian mutual funds. How likely is this to happen? How about “extremely likely.”

There you have two ordinary as rain ways that someone can walk into a PFIC.

Keep in mind that the IRS is convinced that anyone with a nickel overseas is hiding money. We have already gone through the FBAR and OVDI fiascos, and tax literature is thick with stories of ordinary people who were harassed if not near-bankrupted by obscure and never-before-enforced tax penalties. The IRS is unabashed and wonders why you – the average person – cannot possibly keep up with its increasingly frenetic schedule of publishing tax rules, required disclosures, Star Trek parodies, bonuses to deadbeat employees and Fifth Amendment-pleading crooks.

Beginning in 2014, FATCA legislation requires all “foreign financial institutions” to report to the IRS all assets held by U.S. citizens and permanent residents. The U.S. citizen and permanent resident in turn will disclose all this information on new forms the IRS has created for this purpose – assuming one can find a qualified U.S. tax practitioner in Thailand, Argentina or wherever else an American may work or retire. Shouldn’t be a problem for that overseas practitioner to spot your PFIC – and all the related tax baggage that it draws in its wake - right?

What happens if one doesn’t know to file the PFIC form, or files the form incorrectly? I think we have already seen the velvet fist of the IRS with FBARs and OVDI. Why is this going to be any different?