The Fat Tax and Nutella Tax

There seems to be an international flavor to our blog this week. We last discussed the Carrot Rebellion. Let’s now discuss the “Fat Tax” and “Nutella Tax.”

Truly, I am not making this up.

About a year ago Denmark implemented a tax on all foods with saturated fat content above 2.3 percent. Its intent was to reduce the consumption of unhealthy foods; you know, like butter, sausage, cream and cheese. Apparently mankind has been on a one-way road to health perdition since we domesticated animals.

The tax didn’t go particularly well. While it did raise over $210 million, many Danes took to lower-cost alternatives or simply crossed the border into Germany. An additional advantage to Germany was that prices are approximately 20% lower.

This past Saturday Denmark announced that it was abolishing the tax, since it was having the negative consequences of inflating food prices and putting jobs at risk. The government further announced that it was cancelling its plans to further tax sugar.

Do you ever wonder how much ideological kool-aid one must drink to not have seen this coming?

That brings us to France.

Have you heard of a product called Nutella? It is made of chocolate and hazelnut, not a personal favorite. Senators in France have called for a major tax on palm oil (think 300%), which is a principal ingredient in Nutella. The tax has become known as the “Nutella Tax.” There are some bad things associated with palm oil, including deforestation pressures in Borneo and Indonesia. I agree – deforestation is a bad thing. So are droopy pants in public. Neck tattoos. Loud vulgar music. Inane cell phone calls in the grocery aisles.  

I am thinking palm oil doesn’t even make the top 300 list.

The Carrot Rebellion

You may have heard that Spain has gotten itself into an economic mess. In an effort to avoid more stringent EU austerity measures, it has increased a number of taxes. The one that interests us today is the value-added tax. The VAT on selected foods is 4%, whereas the VAT on clothing went from 18 to 21%. The VAT on theater tickets also went to 21%.

There is a village called Bescano in Catalonia. Catalonia is in the northeast part of Spain, adjacent to France, and it boasts a strong separatist sentiment. On September 11, which is Catalonia’s National Day, an estimated 1.5 million people filled the streets carrying signs such as "Catalonia, the next independent state in Europe." A recent poll showed that 51% of Catalans would vote in favor of separating from Spain.

Bescano is a small village, but it boasts an impressive theatre troupe. Problem is that one in four local residents is unemployed, which makes it difficult to sell theater tickets. Increase the VAT to 21% and you have a near-insurmountable problem. What to do?

The theater decided to sell a carrot as admission to the theatre. The carrot costs over $15, but it entitles one to free admission. The VAT on a carrot? It is 4%.

The Spanish media have called this the “Carrot Rebellion,” and there is the expected tut-tuts from government officials. Each person who does not pay his “fair share” raises the burden on everyone else, or so goes the party line. It may even constitute “tax evasion,” says one.

The theater has the support and backing of the local mayor.

My thought? No disrespect to a difficult fiscal situation, but I find it clever.

IRS Small Business Audit Areas

The IRS has announced selected business areas it is prioritizing for audit this upcoming fiscal year. The IRS is increasingly focused on small business underreporting, which it considers responsible for the majority of a $450 billion tax gap. Here are the areas:

1.      Fringe benefits, especially use of company cars

The IRS is finding that employers are not correctly reporting employees’ personal use of company vehicles on Forms W-2.

2.      Higher income taxpayers

The IRS will focus on self-employed taxpayers with gross receipts (that is, before expenses) of more than $1 million.

3.      Form 1099-K matching

Forms 1099-K report payments from credit cards and payment clearinghouses (such as PayPal). The IRS granted a reprieve for 2012, but it announced that it will start Form 1099-K matching in 2013.

4.      The small business employee health insurance tax credit

The IRS wants to make sure that small business employers and tax exempts are complying with credit eligibility requirements.

5.      International transactions

The IRS has announced its third voluntary foreign bank account initiative and intends to look for offshore transactions.

6.      Partnership returns reporting losses  

This is a new area of emphasis. Expect the IRS to look into partnerships reporting large losses.

7.      S corporations reporting losses and reasonable officer compensation

The IRS will be looking at S corporations claiming losses, looking for losses taken in excess of shareholder basis.

The IRS is also interested in profitable S corporations reporting little or no salary to officers.

8.      Proper worker classification

The IRS is interested in employer treatment of worker versus independent contractor status. The IRS thinks there is significant noncompliance in this area.

“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"