“ROB”-ing a 401(k) Plan

A CPA acquaintance from New Jersey came into town and spent a couple of days at the office. Why? Well, maybe he wanted to get away from New Jersey. Actually, he wanted to take a look at some of the policies and procedures we utilize. He only recently purchased his own practice.

He said something that surprised me, and which I thought we could discuss this week. He funded his accounting practice by using his 401(k) funds. This technique is sometimes referred to as “rollover for business startup.” The acronym is “ROBS.” Catchy, eh?

What do I think about ROBS? Frankly, I am a bit uncomfortable with them. There is the issue of concentrating your retirement monies in a venture also intended to provide current income. Should it fail both income and retirement monies vanish. I am financially conservative, as you can guess.

The second issue is technical: there are a number of ways this structure can run afoul of some very technical requirements. You have tax law, you have ERISA, you have … well, you have enough to cause concern.

Let’s give this CPA acquaintance a name. We will call him “Garry,” mostly because his name actually is Garry. Here is what Garry did:

(1)    Garry created a corporation. The corporation had no assets, no employees, no business operations, no shareholders. Accountants call this a “shell” corporation.

(2)    The corporation adopted a retirement plan. The plan allowed for participants to invest the entirety of their account in employer stock.

(3)    Garry became an employee of the corporation.

(4)    Garry rolled-over his 401(k) (or a portion thereof) to the newly-created retirement plan.

(5)    Garry had the plan purchase the employer stock.

(6)    The corporation now had cash, which …

(7)    The corporation used to purchase an accounting practice.

What can possibly go wrong? Here are several areas:

(1)    You need a solid valuation for the 401(k) purchase of the employer stock. I would not want to go into the IRS with only a rough calculation on the back of an envelope. The trustee of the plan has fiduciary responsibility. Granted Garry is both the fiduciary and beneficiary, but he still has responsibilities as trustee.

(2)    The workforce has to be able to participate in the plan.

a.       This is a qualified plan. There are nondiscrimination requirements, same as any other qualified plan.

b.      This is not a problem for a one-man shop. What will Garry do when he hires, however?

                                                               i.      Here is what he better do: amend the plan to prohibit further investment in employer stock. Future employees will not be allowed to invest in Garry’s accounting firm stock.

(3)    There is a fiduciary standard for investment diversification.

a.       You can see the problem.

                                                               i.      Maybe Garry can open a second accounting office. You know, diversify.

(4)    Garry is paying for all this. Some brokers will charge over $5,000 to set up a ROBS.

a.       Oh, there are also ongoing annual charges. The plan will have an annual Form 5500 filing requirement, for example.

b.      There may also be periodic valuations, requiring Garry to pay a valuation expert.

                                                               i.      Why? Because Garry has a difficult-to-value asset in a qualified plan. Difficult-to-value does not mean Garry gets a free pass on valuing the asset. It does mean that it is going to cost him.

(5)    These transactions have caught the attention of the IRS. This does not mean that his transaction will be audited, challenged or voided, but it does mean that he has walked into a spotlight.

a.       Garry had to gauge his IRS risk-tolerance as well as his financial diversification risk-tolerance.

Are ROBS considered “out there” tax-wise? Actually, no. There are tens of thousands of these structures and their businesses up and running. Garry is in good company. And while the IRS has scowled, that doesn’t mean that ROBS are not viable under the tax code and ERISA. It does mean that Garry should be careful, though. Professional advice is imperative.

Do You File Taxes With South Carolina?

Heads up if you file tax returns with South Carolina.

On October 26 the S.C. Department of Revenue announced that approximately 3.6 million social security numbers and almost 400,000 credit and debit card numbers were compromised.  

Government officials emphasized that no public funds were accessed or put at risk. No word from government officials on your whether your private funds were put at risk, though.

On October 10 the S.C. Division of Information Technology informed the Department of Revenue of a potential cyber attack. On October 16, investigators discovered two attempts to hack the system in early September. They later discovered that a previous attempt was made in late August. Government officials believe they have closed the vulnerability in the system.

If you have filed a South Carolina tax return since 1998, please visit protectmyid.com/scdor or call 1- 866-578-5422 to determine if your information is affected. If so, you can immediately enroll for free in one year of identity protection service with Experian.

Happy Halloween

Amost forgot. Time to clear here and pass out candy.

Barriers to Tax Reform

The New York Times ran an article yesterday titled “The Real Barrier to Tax Reform” written by Bruce Bartlett. I have no issue with Mr. Bartlett, although I rarely read The New York Times. Nonetheless, what caught my eye is the following table of “tax expenditures”:

These “expenditures” make it difficult to raise enough “revenues” to cover whatever the government’s spending binge of the moment is.

I can see how reasonable people may debate the tenth – accelerated depreciation – as an expenditure. Instead look at categories such as the 401(k), medical insurance and employer-provided pension plans.

 A couple of observations on this:

(1)   Since when are monies taken from us as taxes to be called “revenues?”

(2)   Since when are monies we keep to be called “expenditures?”

There is an odor of bad fish with the vocabulary. Apple has revenues, as they have something I want and am willing to pay for. The government - not so much. This damage to the language is itself a barrier to tax reform.

Oh, you may be wondering about “exclusion of net imputed rental income.” Here is the concept: if you rented out your home rather than lived in it, someone would pay you rent. The government would then tax you on your rent. So, by living in your home rather than renting it out, you are costing the government money.

You, dear homeowner-living-in-your-home, are an “expenditure.”

Bruce Bartlett "The Real Barrier to Tax Reform"

Michael Bennett and an FBI Sting

Here is another former-NFL-player goes wrong tax story: Michael Bennett has been convicted of wire fraud and will serve 15 months in prison.

Who is Michael Bennett? He was drafted by the Minnesota Vikings in the first round of the 2001 draft. He was a Pro Bowl player. He was in the NFL until 2010, although he was a backup player for much of the time. Still, he earned millions of dollars from football. May we be so lucky.

How did he get arrested? It has to do with identity theft and tax refund fraud in North Miami. South Florida is a hotbed for tax refund fraud, and the FBI was operating a tax-refund and check-cashing storefront. It sounds like the business was quite lucrative, as the FBI was charging fees ranging from 35% to 45% of the face value of the checks. People would go the store and cash fraudulently-obtained checks, presenting false identification and sometimes forging the victim’s signature on the back of the check.

There was one ring of seven people which cashed approximately $500,000 of refund checks. The FBI caught the conversations and transactions on tape. Sadly, two former NFL players were in this crowd. Perhaps that is how we get to Michael Bennett.

In walks Bennett. He is not part of the tax-refund ring, but he does want to borrow money. He wants to borrow $200,000. I can understand. Surely many of us have been returning from lunch and decided to stop in at the cash-and-dash to borrow a couple of hundred grand. Bennett presents a bank statement showing that he had buckets of bucks at UBS, and the statement is accepted as “collateral” for a loan. On April 30, 2012 Bennett picked up a $150,000 check. He was supposed to pay back $280,000 after three months.

NOTE: Yes, I wrote the amounts correctly.

There was no money in his account, of course. Bennett admitted to altering his UBS statement to make it look like he had a lot of money there. He was arrested for wire fraud. He has until January 18, 2013 to begin serving his sentence.

My Take: Sad.

Thanks to Russ Fox for his post

A TIGTA Report on IRS Contractor Payments

The Treasury Inspector General for Tax Administration (TIGTA) has released a new report titled “Deficiencies Continue to Exist in Verifying Contractor Labor Charges Prior to Payment.”

What happened is that the IRS received appropriations from the American Recovery and Reinvestment Act of 2009. You may remember this Act by another name – the “Stimulus.” TIGTA was auditing certain expenditures and also reviewing IRS internal controls over contract review, approval and payment.

TIGTA selected a statistical sample of $1 million in labor charges. What did it find?

(1)   The IRS could not document $394,430 of invoiced labor hours that were paid.

(2)   The labor rates paid were not verified to the contract for the qualification level of the individual paid.

(3)   Although the IRS verified the qualification and experience of key contract personnel, they did not do so for other personnel. The IRS was supposed to do this by the contract.

My Take: I am glad that someone is keeping an eye on these expenditures. An error rate of 39.4% is not too reassuring, however.

A Wake for Flanagans

Have you got a restaurant to sell? If you do, you may want to hear the story of John Psihos (JP) and Flanagan’s Restaurant.

JP was a Greek immigrant who came to the U.S. in his 20s. He did very well and eventually owned three restaurants in the north Chicago area: Flanagan's, Cafe Oceana and Full Moon. Flanagan's was the most successful. He seemed to be a good employer, willing to help his employees. He was also generous in his charitable pursuits.

The problem was that JP was keeping a double set of books on Flanagan’s. He used the second set to prepare his tax returns, a ruse undetected until he tried to sell the restaurant. JP listed the restaurant through a broker, providing a fact sheet showing his average monthly receipts at $170,000 and average yearly operating profit at approximately $554,000. These numbers were from the first set of books.

This caught the IRS’s attention.

The IRS dispatched two special agents who posed as husband and wife. They met three times with JP, who explained how he kept track of the actual receipts at Flanagan’s. Each night at closing the managers would assemble envelopes with all of the money, as well as receipts, register tapes and payout sheets. Standard stuff for a restaurant. JP then provided this material to one of his managers, who prepared weekly summaries. JP, feeling brave, provided these summary sheets to the two “buyers,” stating further that he had these records going back to 2001 showing what he “really got” from Flanagan’s.

The two agents executed a search warrant on one of JP’s restaurants, seizing, among other things, the weekly summary sheets. They also seized records detailing Flanagan’s nightly sales and cash payouts. The IRS reviewed these records to recalculate the actual gross receipts for years 2001 through 2004. They determined that JP had underreported his receipts by over $3 million over the four years. He was indicted on felony charges by a federal grand jury.

One has to give JP credit for the chutzpah he displayed before the District Court. He argued that he had left out all kinds of expenses, such as:

·        Amounts paid to DJ’s

·        Cash wages

·        Complimentary food and drinks

·        Payments to Café Oceana for food supplied

He even prepared a chart which he presented to the Court. According to his analysis, the actual loss to the government was approximately $22 thousand. He argued that the Court had to give him credit for the expenses he didn’t claim because, well, you know, he hadn’t wanted to double dip. He had a conscience, after all. The Court was having none of this and observed that the expenses were undocumented except for his word and that his word was not credible. The Court ordered him to pay more than $800 grand and go to jail for a couple of years

My Take: JP could not have this both ways. Once he decided to underreport his gross receipts to the IRS, he then had to consistently underreport for all purposes, including any sale listing. I am not making a moral call here, just observing how this works.

Once caught, there was little hope that anyone would believe him about unclaimed expenses. How credible was he at that moment? 

And why would someone go to all this effort if the end result was only $22 thousand?

What does it tell you that the IRS became aware of (a) the sale listing and (b) correlated it to gross receipts on Flanagan’s tax return? Remember: tax information is supposed to be confidential. Returns are not supposed to be laying around on someone’s desk or kitchen table. Are you telling me that someone “remembered” Flanagan’s gross receipts? Could it be that JP was already under scrutiny? The court decision does not give us background on this point, although it is this point that I find chilling. I can almost hear JP saying “how would they ever know?” I agree: how did they know?