Pilgrim's Pride, A Senator And Tax Complexity

The Democratic staff of the Senate Finance Committee published a report last month titled “How Tax Pros Make the Code Less Fair and Efficient: Several New Strategies and Solutions.”

I set it aside, because it was March, I am a tax CPA and I was, you know, working. I apparently did not have the time liberties of Congressional staffers. You know the type: those who do not have to go in when it snows. When I was younger I wanted one of those jobs. Heck, I still do.

There was a statement from Senator Wyden, the ranking Democrat senator from Oregon:

Those without access to fancy tax planning tools shouldn’t feel like the system is rigged against them. 

Sophisticated taxpayers are able to hire lawyers and accountants to take advantage of … dodges, but hearing about these loopholes make middle-class taxpayers want to pull their hair out.”

There is some interesting stuff in here, albeit it is quite out of my day-to-day practice. The inclusion of derivatives caught my eye, as that of course was the technique by which the presumptive Democratic presidential nominee transmuted $1,000 into $100,000 over the span of ten months once her husband became governor of Arkansas. It must have taken courage for the staffers to have included that one.

Problem is, of course, that tax advisors do not write the law.  

There are complex business transactions taking place all the time, with any number of moving parts. Sometimes those parts raise tax issues, and many times those issues are unresolved. A stable body of tax law allows both the IRS and the courts to fill in the blanks, allowing practitioners to know what the law intended, what certain words mean, whether those words retain their same meaning as one travels throughout the Code and whether the monster comes to life after one stitches together a tax transaction incorporating dozens if not hundreds of Code sections. And that is “IF” the tax Code remains stable, which is of course a joke.

Let’s take an example.

Pilgrim’s Pride is one of the largest chicken producers in the world. In the late 1990s it acquired almost $100 million in preferred stock from Southern States Cooperative. The deal went bad.  Southern gave Pilgrim an out: it would redeem the stock for approximately $20 million.

I would leap at a $20 million, but then again I am not a multinational corporation. There was a tax consideration … and it was gigantic.

You see, if Pilgrim sold then stock, it would have an $80 million capital loss. Realistically, current tax law would never allow it to use up that much loss. What did it do instead? Pilgrim abandoned the stock, meaning that it put it outside on the curb for big trash pick-up day.

Sound insane?

Well, the tax Code considered a redemption to be a “sale or exchange,” meaning that any loss would be capital loss. Abandoning the stock meant that there was no sale or exchange and thus no mandatory capital loss.

Pilgrim took its ordinary loss and the IRS took Pilgrim to Court.

Tax law was on Pilgrim’s side, however. Presaging the present era of law being whatever Oz says for the day, the IRS conscripted an unusual Code section – Section 1234A – to argue its position.

Section 1234A came into existence to address options and futures, more specifically a combination of options and futures called a straddle. . What options and futures have in common is that one is not buying an underlying asset but rather is buying a right to said underlying asset. A straddle involves both a sale and a purchase of that underlying asset, and you can be certain that the tax planners wanted one side to be capital (probably the gain) and the other side to be ordinary (probably the loss). Congress wanted both sides to be capital transactions (hence capital gains and losses) even though the underlying capital asset was never bought or sold – only the right to it was bought or sold.

This is not one of the easiest Code sections to work with, truthfully, but you get an idea of what Congress was after.

Reflect for a moment. Did Pilgrim have (A) a capital asset or (B) a right to a capital asset?

Pilgrim owned stock – the textbook example of a capital asset.

Still, what is stock but the right to participate in the profits and management of a company? The IRS argued that – when Pilgrim gave up its stock – it also gave up its rights to participate in the profits and management of Southern. Its relinquishment of these rights pulled the transaction into the ambit of Section 1234A.

You have to admit, there are some creative minds at the IRS. Still, it feels … wrong, doesn’t it? It is like saying that a sandwich and a right to a sandwich are the same thing. One you can eat and the other you cannot, and we instead are being wound in a string ball of legal verbiage.

The Tax Court agreed with the IRS.  Pilgrim appealed, of course. It had to; this was a $80 million issue. The Appeals Court has now overturned the Tax Court.

The Appeal Court’s reasoning?

A “right” is a claim to something one does not presently have. Pilgrim already owned all the rights it was ever going to have, which means that it could not have had a right as envisioned under Section 1234A.

The tax law changed after Pilgrim went into this transaction, by the way.

Do I blame the attorneys and accountants for arguing the issue? No, of course not. The fact that an Appeals Court agreed with Pilgrim means the tax advisors were right. The fact that the law was later changed means the IRS also had a point.

And none of the parties involved  – Pilgrim and its attorneys and accountants, the IRS , the Tax Court and the Appeals Court wrote the law, did they?

Although the way Congress works nowadays, they may have been the first ones to actually read the bill-become-law. There perhaps is the real disgrace.

The IRS Did Not Like This Bonus

Let’s say that you own 100% of a company. Let’s say your company is quite profitable, and that you take out massive bonuses at year-end. The bonuses serve two purposes: first: why not? You took risk, borrowed money and worked hard. If the thing folded, you would have sunk with it. If it succeeds, why shouldn’t you succeed with it? After all, no politician built it for you. Second, bonuses help reduce taxes the company has to pay. Granted, they increase the taxes the shareholder has to pay, but that is a conversation for another day.

Let’s say the IRS questions the bonus.  They think your bonus is unreasonable.

Let’s discuss the Midwest Eye Center case.

Dr. Afzal Ahmad was the sole shareholder of Midwest Eye Center (Midwest), a multi-location ophthalmology and eye care center in Chicagoland. This is a pretty large practice, with approximately 50 employees, five surgeons, three optometrists and so on. Dr. Ahmad was doing well, receiving a salary of $30,000 every two weeks. At the end of the year he would also draw a sizeable bonus, which coincidently reduced corporate taxable income to zero. In 2007 he took a bonus of $2,000,000.   

Dr. Afzal Ahmad

There were reasons for the bonus. One of his busier surgeons quit unexpectedly in June, 2007. That surgeon was generating approximately $750,000 in revenues, and Dr. Ahmad took over the additional patients. Then there was another doctor who was reducing her workload as she established her own practice. Dr Ahmad starting absorbing some of these patients too.

Busy year for the doctor.

One more fact: Midwest filed taxes as a C corporation, which means it paid its own taxes.

The IRS came in and disallowed $1,000,000 of the bonus. Why $1,000,000 exactly? Who knows, except that (1) it is an impressive amount, and (2) it is close enough for government work.

As Midwest was a professional services corporation, its tax rate was the maximum, so there immediately was additional tax of $340,000.  The IRS also assessed penalties of over $62,000.

This was a nice audit for the IRS: limited issues and big bucks.

So how did the tax advisor defend Midwest?

There is standard text that any tax practitioner (at least, one who follows tax cases) has read a thousand times:

“Deductions are a matter of legislative grace and are allowed only as specifically provided by statute.”

Basically the tax Code says that everything is taxable and nothing is deductible – unless the Code says otherwise.  IRC Section 162 allows us to deduct “reasonable and necessary expenses.” So far, so good. Salaries have to be deductible, right? Hold up. The Code says that a “reasonable allowance for salaries or other compensation” is deductible.

We have to show the “reasonableness” of the salary.

The first way is to show that an “independent investor” would have paid the salary. Midwest decided not to use this line of defense, as no dividends were paid and no profits were left in the company. You have to leave some crumbs on the plate so the investor does not starve. Granted, Warren Buffett does not pay dividends, but he always leaves profit in Berkshire Hathaway.

OBSERVATION: The lack of dividends does not have to be fatal, but it does complicate the argument. For example, if I owned an NFL team, I might be willing to operate it at a loss. The value of my team (if I were to sell it) would likely be increasing more than enough to offset that operating loss.

The next way is by comparison to other businesses. Think professional athletes. If a team is willing to pay the salary, the player must then be worth it. Therefore if someone somewhere with your job duties has a similar salary, there is a prima facie argument that your salary is reasonable. This is more difficult to do with closely-helds than publicly-tradeds, as closely-helds do not tend to publish profitability data.  

A third way involves profit-sharing and other incentive plans, hopefully written down and providing formulas should certain thresholds be met. It is important to establish the plan ahead of time and to be certain there is some rhyme or reason to the calculations. Examples include: 

1.  Documenting the doctor’s activities over the years, putting a value to it and keeping a running tally of how compensation is still due. This can be done to “reimburse” the shareholder for those start-up years when the money was not there to properly compensate the shareholder, for example.
2. Setting up a bonus formula and following it from year-to-year. If there isn’t enough cash to pay out the amount generated by the formula, then the business would accrue it as “compensation payable.” It is not deductible until paid, but it does indicate that there is a compensation plan in place.
3. Having an independent Board of Directors, who in turn decide the amount of compensation. This can be done on an annual basis, preferably earlier rather than later in the year. This technique is not often seen in practice. 
4. Valuing the company on a regular basis (perhaps as frequently as annually). The intent is to attribute the increase in the value of the business to the shareholder’s efforts. The business would then share some of that increase via a bonus.

So what did Midwest do?

They did nothing, that’s what they did.

And I am at a loss. Midwest had a professional tax preparer, but when push came to shove the preparer provided the Court … nothing.

On to the penalty. The IRS will reverse a penalty if the taxpayer can show that he/she relied upon professional advice. The insurance companies go apoplectic, but it is common (enough) practice for a CPA to fall on the sword to get the client out of a penalty. 

But Midwest’s tax preparer was nowhere to be found.

The IRS won on all fronts.

My thoughts?

My corporate clients have overwhelmingly shifted to S corporations over the years. S corporations have their own tax issues, but reasonable compensation is not one of them. It is rare for a tax practitioner to recommend a C corporation nowadays, unless that practitioner works with Fortune 500 companies.

Midwest is an example why. It is a second pocketbook for the IRS to pick.

Is There A Tax Difference Between A Company And An Activity?

Some tax cases are just fun to read.

Our story takes place in south Florida.  

Dad started a business many years ago. It did well, and Dad in turn started three businesses for his children. He structured each business so that one sibling owned 60% and the remaining two siblings owned the balance. He gave each child (two daughters and a son) a controlling interest in their own business, with the remaining siblings owning a (non-controlling) interest.

All these businesses were somehow tied-in to real estate, whether by selling lumber, providing mortgages, payroll services or other activities.

Our protagonist (Jose Antonio Lamas) owned a company called Adrimar.

However the company we are interested is called Shoma, and it is (majority) owned by Jose’s sister and her husband (Masoud Shojaee).

Shoma formed an LLC (Greens at Doral) pursuant to a condominium development. The two companies were closely intertwined. Greens had the same ownership as Shoma, operated out of the same office, used the same employees and so on. Shoma intended to liquidate Greens once the project was done, which is the standard structure for these projects.

 

Shoma got itself into financial straits. Jose was called in to help turn Shoma around.

The soap opera is in the details of how Shoma got itself into difficulties. Turns out that Mr. Shojaee was using Shoma to guarantee loans for a non-family company he owned. He made a pledge to the University of Miami for $1.5 million, in return for which they were going to name a building after him. That is swell, except that he had no intention of using his own money. Instead he used Shoma money to fund the donation. He developed Shoma land – and we have a feel for his ethics at this point – but decided to run the development (and profits) through his own company.

Somewhere in here Jose and his sister had enough and in 2008 sued Mr. Shojaee.

Knock me over with a feather.

Shoma must have been losing crazy-level money, as Jose filed for a tax refund of over $5 million.

Here is an easy quiz: what happens when you file a tax refund of over $5 million with the IRS?

The IRS audits you, that’s what.

What is there to audit, you ask? The “real” audit would be on the business books, not Jose’s personal return, right?

Not so fast.

You see, if Jose did not “materially participate” in the business, then the business would be “passive” to him. He would not be able to offset his other income with that big “passive” loss. The loss would have to wait for passive income to someday soak it up.

Jose needed to provide time records to show that he worked over 500 hours, which is the gold-plated standard of showing “material participation” to the IRS.

Problem: he was not accustomed to working someplace where he kept time records. He didn’t have any. He had to go to plan B, which means evidencing his times through other means, such as by showing regular appointments and obtaining the testimony of other people.

He talked to Tania Martin, who was CFO for Shoma. She testified that she did not see Jose at the office, except maybe one time. There was a problem with her testimony, though. You see she worked remotely from North Carolina.

Francisco Silva was in-house counsel for Shoma. He testified that that Mr. Lamas would walk past his office in the morning and say “hi.” Other than that, he didn’t know “what, if anything, he was doing. I just don’t know.”

Then there was a stream of other people who worked regularly and extensively with Jose, including obtaining financing, soliciting investors, visiting jobsites and so on.

Alex Penelas, for example, was a former Miami-Date County mayor who testified that it was “more effective” to talk with Jose than Mr. Shojaee.

Jose had provided a letter to the IRS from his employer – Shoma - and signed by Mr. Shojaee, stating that he was a full-time employee. It appears that after brother and sister decided to sue, Mr. Shojaee sent a corrected letter to the IRS wherein he stated:

"Recently Shoma Development learned that the IRS requires active participation and 500 hours of work to qualify” and that “Jose Antonio Lamas had no direct nor indirect involvement with Shoma.”

Mr. Shojaee did request the IRS to keep this letter quiet, of course, lest it cause him family trouble. He is clearly all about the family.

The case finally gets to Court, which decides that Jose did work over 500 hours and that Mr. Shojaee was a creep.

But… there is one more thing.

You see, Jose worked for Shoma (an S corporation), not Greens (an LLC), and Greens was a substantial part of the loss.

Which brings us to the tax issue herein: can Shoma and Greens be combined, so that by showing material participation in Shoma, Jose also showed material participation in Greens?

The concept at play is whether the activities comprise an “appropriate economic unit,” a concept introduced to the tax Code as part of the passive loss rules in 1986. An example would be four related companies, each of which owns theaters: one east, one south, one north and one west. The common activity is owning theaters, and if there are enough other similarities then one could determine that the four companies comprise one economic activity. How is this important? If one shows a big loss while the other three show profits, for example. If they are one economic unit, the income and loss would automatically offset without having to employ a lot of tax planning.

So the Tax Court reviewed the rules in Regulation 1.469-4(c) for evaluating an appropriate economic unit:

(1)  similarities and differences in types of business

(2)  the extent of common control

(3)  the extent of common ownership

(4)  geographical location, and

(5)  other interdependencies

It found that there was sufficient overlap between Shoma and Greens that Jose was materially participating in both, and that he was entitled to his tax refund.

And I suspect that Mr. Shojaee is no longer invited to family functions.

How An Estate Can Lose A Charitable Deduction

It happened again this week. I was speaking with another accountant when he raised a tax question concerning an “estate” return. My stock question to him was whether it was an “estate fiduciary” or an “estate estate.” Both have the word “estate” in it, so one needs further clarification.

What is the difference?

If one dies with too many assets, then the government requires one to pay taxes on the transfer of assets to the next person. This is sometimes referred to as the “death” tax, and I sometimes refer to it as the “estate estate” tax.

It has gotten a little more difficult to trigger the federal estate tax, as the taxable threshold has been raised to over $5 million. That pretty much clears out most folk.

Then you can have the issue of the estate earning income. How can this happen? An easy way is to own stock, or a business – or perhaps a part of a business through a partnership or S corporation. That income will belong to the estate until the business is transferred to the beneficiary. That may require a trip to probate court, getting on the docket, waiting on the judge…. In the interim the estate has income.

And what do you have when an estate has income? You have an income tax return, of course. There is no way the government is not going to grab its share. I sometimes refer to that tax return as the “estate fiduciary.” A trust is a fiduciary, for example. The estate is behaving as a fiduciary because it is handling money that belongs to other people – the same as a trust.

Say that an estate receives a disbursement from someone’s 401(k). That represents income. This is usually a significant amount, and Hamilton’s Third Theorem states that a percentage of a significant number is likely to also be a significant number. This seems to always come as a surprise when the attorney fires over an estate’s paperwork – usually very near the filing due date – with the expectation that I “take care of it.”

Then we are looking for deductions.

A fiduciary has a deduction called an “income distribution,” which I rely upon heavily in situations like this. We will not dwell on it, other than to say that the fiduciary may be allowed a deduction when he/she writes a check to a beneficiary.

No, the deduction I want to talk about today is about a contribution to charity.  Does our “estate fiduciary” get a deduction for a charity? You bet.

Let’s take this a step further. What if the estate intends to write a check to charity but it cannot just yet? Can it still get a deduction?

Yep.

This is a different rule than for you and me, folks. The estate has a more lenient rule because it may have to wait on a court hearing and receive a judge’s approval before writing that check. The IRS – acknowledging that this could wreak havoc on claiming deductions – grants a little leeway.

But only a little. This rule is known as the “set aside,” and one must meet three requirements:

(1)   The contribution is coming from estate income (that is, not from estate corpus)

(2)   The contribution must be allowed by estate organizing documents (like a will), and

(3)    The money must be permanently set aside, meaning that the likelihood that it would not be used as intended is negligible.

So, if we can clear the above three requirements – and the estate intends to make a contribution – then the estate has a possible deduction against that 401(k) distribution that I learned about only two or three days before the return is due.

What can go wrong?

One can flub the “negligible” requirement.

I cannot remember the last time I read about a case where someone flubbed this test, but I have recently finished reading one.

The decedent (Ms Belmont) passed way with a quarter million in her 401(k) and a condo in California. She lived in Ohio.

Alright, there is more than one state involved. It is a pain but it happens all the time.

Her brother lived in the condo. He was to receive approximately $50,000, with the bulk of the estate going to charity. He was under mental care, so there may have been a disability involved.

How can this blow up? Her brother did not want to move out of the house. He offered to exchange his $50,000 for a life estate. He really wanted to stay in that house.

The charity on the other hand did not want to be a landlord.

Her brother brought action and litigation. He argued that he had a life estate, and he was being deprived of his contractual rights.  He filed with the Los Angeles County Probate Court and the California Recorder’s Office.  

Meanwhile the estate fiduciary return was due. There was a big old number in there for the 401(k) distribution. The accountant – who somehow was not fully informed of developing events in California – claimed a charitable contribution deduction using the “set aside” doctrine.

The California court decided in the brother’s favor and orders a life estate to him and a remainder deed to the charity.

The estate thinks to itself, “what are the odds?” It keeps that set aside deduction on the estate fiduciary return though.

The IRS thinks otherwise. It points out that the brother was hip deep by the time the accountant prepared the return, and the argument that risks to the set aside were “negligible” were unreasonable when he was opening up all the guns to obtain that life estate.

The estate lost and the IRS  won. Under Hamilton’s Third Theorem, there was a big check due.

What do I see here? There was a tax flub, but I suspect that the underlying issue was non-tax related. Likely Ms Belmont expected to outlive her brother, especially if he was disabled. It did not occur to her to plan for the contingency that she might pass away first, or that he might contest a life estate in the house where he took care of their mom up to her death while his sister was in Ohio.