Sunday, June 30, 2013

Can The Baucus-Hatch Blank Slate Plan Jump Start Tax Reform?


Can The Baucus-Hatch Blank Slate Plan Jump Start Tax Reform?

Senators Max Baucus (D-MT) and Orrin Hatch (R-UT), the chairman and senior Republican on the Senate Finance Committee, tried to jump-start the drive towards tax reform today with what they call a blank slate rewrite plan. Trouble is, it is not exactly a plan. And it isn't quite a blank slate.

Their idea is to get senators to tell them by July 26 which tax preferences are worth keeping and which should be scrapped. So Baucus and Hatch adopted a zero-base budgeting approach.

In a letter to fellow senators, they said they plan to start their reform exercise by assuming that nearly all tax preferences are repealed. They'd then restore those that meet at least one of three tests: "(1) They help grow the economy, (2) make the tax code fairer, or (3) effectively promote other policy objectives."

Unfortunately, the first two are in the eye of the beholder and the third, well, I have no idea what the third means.

I do know their plan will be a massive summer windfall for lobbyists and trade groups that are already gearing up to find senators to defend their tax subsidies (cell service on the Vineyard is dicey but it will have to do). Within an hour of the release of the Baucus-Hatch letter, I was getting calls and emails defending various tax breaks.  

Mortgage interest deduction? Well, of course it helps grow the economy. Charitable deduction? What could be more fair? Special deductions to promote U.S. manufacturing? That's got to be an "other" policy objective.

And it won't be hard for those lobbyists to find senators willing to defend these preferences. What price would they pay for doing so? 

Baucus and Hatch make their job even tougher by acknowledging in their letter that "some existing tax expenditures should be preserved in some form." They don't say which ones (and may not even agree on the list) but they are signaling that cleaning out the code may not be quite so easy. 

Their zero-based budget strategy isn't new. Erskine Bowles and Alan Simpson, the co-chairs of President Obama's ill-fated fiscal commission, engaged in the same exercise back in 2010.

But Bowles and Simpson started with an overarching goal: They wanted to generate about $1 trillion in new revenues over 10 years to go along with about $2 trillion in non-interest spending reductions, and they wanted to reduce tax preferences enough to also buy some politically attractive rate cuts. In the end, even they could only come up with a set of alternative tax reform scenarios rather than a single concrete proposal.

Baucus and Hatch (and House Ways & Means Chairman Dave Camp (R-MI)) have no such bottom-line plan. They can't agree on whether tax reform should generate any new revenue at all. As a result, they are asking senators to pitch various tax expenditures in a vacuum.

Take one example of why this is so hard: A lawmaker might be willing to tax capital gains at ordinary income rates if the top rate is cut to, say, 25 percent. She might not be so willing if the top rate is going to be 35 percent.

Baucus is scrambling to build some momentum behind reform before he retires from Congress in 18 months. And he knows he's got less time than that with the congressional campaign season likely to start in a year.

Baucus is in a tough spot, and any reform effort faces severe constraints in today's political environment. But he needs to start with a plan, not a blank slate.  A chairman's mark with a specific set of rates and limited preferences would focus the Senate's collective mind. But this isn't that.        


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In the News: Tax Breaks on Home Sales


In the News: Tax Breaks on Home Sales

Home-saleJust yesterday, The National Association of Realtors announced that its Pending Home Sales Index, based on contracts signed last month, increased 6.7 percent to 112.3, the highest level since December 2006.

With many people considering placing their home on the market, a timely Wall Street Journal article examined the taxes and tax breaks available when selling a home. According to Melissa Labant, director of taxation at the AICPA, these rules can be complicated and people often misunderstand or don't take full advantage of the benefits available.

Perhaps the most important benefit to sellers is the principal-residence tax break. Sellers of a principal residence are allowed a tax break—up to $500,000 for married couples and up to $250,000 for singles, if they have lived in the residence for two or more years. This benefit applies to profits on a sale, which excludes the cost of the home and any improvements. "For most homeowners in most markets, this benefit is all they need," Labant says. While this break is helpful, there are many complicating issues that sellers can run into and consulting a CPA is often advisable.

And if you happen to be selling–or buying–a house with your significant other, keep in mind that emotions tend to run high when money is involved. And with a life event as important as buying or selling a home, the stakes are even higher.

A recent Marketplace.org article cited an AICPA survey which found that cohabitating couples quarrel over finances an average of three times a month. That's 36 times a year!More than half of adults, 55 percent, who are married or living with a partner said they do not set aside time on a regular basis to talk about financial issues. So if you're planning on making a major financial decision that involves your significant other, make sure you talk it out together first.

AICPA social media and member engagement strategist Stacie Saunders recently spoke to Association Trends and explained how the rise of Twitter, Facebook and LinkedIn have impacted the AICPA's communication strategies.

In the interview, Saunders noted that the AICPA strategy is tailored around the members' wants and needs and since social media has become an easy way for members to access information, AICPA has integrated it into their strategy as a communications channel. Saunders said the most important thing for associations to know about social media is who their members are, and what platforms they prefer. After that, you can break down a strategy, keeping in mind how it will affect your current marketing plans and how you will measure success. She concluded by highlighting how, by setting up a campaign hashtag before a conference, the organizer can generate buzz in advance and also gain feedback on the most popular sessions and takeaways, enhancing the experience for attendees. 

, AICPA Staff.

Home sale image via Shutterstock

Related articles

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Judge Jeanine: Double Standard of the IRS | Fox News Insider

http://foxnewsinsider.com/2013/06/30/judge-jeanine-double-standard-irs


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Thursday, June 27, 2013

How Much Will Your Mortgage Go Down if you Modify?


How Much Will Your Mortgage Go Down if you Modify?

How Much Will Your Mortgage Go Down if you Modify?:

How much will your mortgage go down if you qualify for a mortgage modification? Find out.


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IRS offers new method for home office deductions


IRS offers new method for home office deductions

Working at home has come a long way from the days when employers were most concerned that they would not get their money's worth if they allowed employees to do so. Instant communication, improved internet access, and more stable virtual network connections have changed the equation for

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Requesting a first-time abatement penalty waiver


Requesting a first-time abatement penalty waiver

The IRS's first-time abatement (FTA) penalty waiver, although introduced 12 years ago, remains little known and often unrequested by qualifying taxpayers. It allows a first-time noncompliant taxpayer to request abatement of certain penalties for a single tax period. Individual taxpayers may

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What Will Supreme Court Decision on DOMA Mean for the IRS?


What Will Supreme Court Decision on DOMA Mean for the IRS?

I'm celebrating today's Supreme Court ruling on the Defense of Marriage Act (DOMA) with my friends and relatives whose marriages are today, finally, accorded equal status to mine.

But I am a tax geek and couldn't help but think about the consequences of a hundred thousand or so married couples who will now file joint returns rather than as singles or heads of household. My Tax Policy Center colleague Bob Williams has pointed out that while the tiny fraction of couples with wealth high enough to be affected by the estate will be unambiguously better off, the income tax is more of a mixed bag. Gay couples will now get to experience the joys and agonies of marriage bonuses and penalties.

But for about 75,000 married same-sex couples, the Supreme Court's ruling could come with a very nice (though belated) wedding gift: Nearly $200 million in refunds.

As Bob and others have pointed out, today's ruling means that many newly recognized couples will now be able to file amended returns to claim the marriage bonuses they might have enjoyed for the past three years were it not for DOMA. .

We can't know exactly how many couples will benefit and by how much because there is currently no way to identify legally married same sex couples on individual income tax returns.

However, making some heroic assumptions, one can come up with a very rough ballpark estimate.

Josh Keller of the New York Times estimated that "At least 82,500 gay couples have married since Massachusetts became the first state to legalize gay marriage in 2004 [through 2012]." This total probably reflects some under-reporting. It also doesn't include the second half of 2012 in New York and doesn't include those legally married outside the United States like Edith Windsor, the woman who challenged DOMA.

Let's assume that 100,000 additional couples would have legally filed as married in 2012 were it not for DOMA. A question is how many of them would have received marriage bonuses—i.e., paid lower taxes.

Let's assume that half of the newly recognized couples receive bonuses, which means that roughly 50,000 couples might benefit from filing amended income tax returns for 2012, 2011, and/or 2010. If all 50,000 filed amended returns for an average of 1.5 years out of the three this would yield 75,000 amended returns.

The IRS is doubtless unenthusiastic about adding to their workload at a time when they are suffering the effects of the sequester and budget cuts, but this number is relatively small compared with the total number of amended returns (Form 1040X) that the IRS processes every year. The IRS projects 5.5 million amended income tax returns in 2013, so 75,000 additional returns would represent only a 1.4% increase. If some couples choose not to amend their returns, the IRS's workload will be even more manageable.

To estimate total income tax refunds these new filers will claim, assume that the average bonus is $2,500, which is slightly less than the bonus a couple with $50,000 of income and one earner would pay in 2012 according to the Tax Policy Center's nifty Marriage Bonus and Penalty Calculator. This would yield total refunds of $187 million. That sounds like a lot of money, but it amounts to rounding error compared with projected income tax receipts of $1.3 trillion.

Of course, this is just the tip of the iceberg. My cousin Andrew points out that he will no longer have to pay tax on his husband's health insurance. The IRS allows a tax-exempt health insurance plan to coverfederally recognized spouse and qualifying children, but not a same-sex partner. Andrew's employer may choose to cover all or part of the cost of his husband's coverage, but the employer's contribution was until today considered taxable income. Now, Andrew's family plan can cover his spouse Tom.

And the DOMA ruling will effect much more than taxes. The GAO estimated in 2004 that 1,138 federal statutory provisions treat married couples differently from singles. Social Security, for example, can provide very large marriage bonuses.

There's a bigger question about how today's ruling affect federal outlays and receipts. Bob talks about this a little about the tax consequences here. The short version is "it's complicated."

We will have more to say about this when we have actual data.

Meanwhile, back to the celebration already in progress.


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Supreme Court strikes down Defense of Marriage Act in estate tax case


Supreme Court strikes down Defense of Marriage Act in estate tax case

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The Supreme Court on Wednesday, in a 5–4 decision written by Justice Anthony Kennedy, ruled that the Defense of Marriage Act (DOMA), P.L. 104-199, is unconstitutional because it violates the Fifth Amendment's Due Process Clause by denying equal protection to same-sex couples who are lawfully married in their states (Windsor, No. 12-307 (U.S. 2013)).

The decision affirms two lower court rulings holding that DOMA unconstitutionally denied Edith Windsor, a resident of New York state, the right to take advantage of the exemption from federal estate taxes on her wife's estate that she would have been entitled to had DOMA not prevented her marital status from being recognized federally. New York state recognizes full marriage rights for same-sex couples.

Kennedy found that DOMA burdened the lives of same-sex married couples "in visible and public ways," by, for example, preventing them from obtaining government health care benefits and from being buried together in veteran's cemeteries (slip op. at 23). Kennedy wrote that the states have, since the nation's founding, possessed full power over the subject of marriage and divorce, subject to constitutional limitations (citing Loving v. Virginia, 388 U.S. 1 (1967)) (slip op. at 16). DOMA, which affects more than 1,000 federal statutes in which the definition of marriage is at issue, interferes with states' power to regulate marriage by forcing "same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect" (slip op. at 22).

Before deciding that DOMA is unconstitutional, Kennedy addressed the question whether the Court had jurisdiction to hear the case once the Obama administration decided not to defend the law. Among other reasons to conclude that jurisdiction was warranted is that Windsor, who had been forced to pay the federal government $363,053 in estate taxes when her wife died, had not received a refund of the money even though the government was not defending the law.   

Justice Antonin Scalia, in a dissent joined by Justice Clarence Thomas (Chief Justice John Roberts joined the first part), objected to the majority's conclusion that the Court had jurisdiction, arguing that because Windsor had won in the lower courts and the government did not support DOMA, there was no controversy to decide. He also criticized the majority's constitutional analysis, noting that it was difficult to determine which constitutional provision the decision was based on. Justice Samuel Alito and Chief Justice John Roberts each wrote a separate dissent.      

Background  

DOMA, which was enacted in 1996, defines marriage for federal law purposes as the legal union of one man and one woman. Under Section 3 of DOMA, same-sex marriage is not recognized for any federal purposes including insurance benefits, Social Security benefits, the filing of joint tax returns, and the unlimited marital estate tax exemption available to opposite-sex married couples.

Before DOMA was enacted, the federal government had generally allowed states to determine marital status. After DOMA went into effect, for federal tax (and other) purposes, same-sex couples who are lawfully married under state law are not recognized as married under federal law.
 
Lower federal courts have found Section 3 of DOMA to be unconstitutional. The First Circuit declared Section 3 of DOMA unconstitutional last year, upholding a district court decision (Massachusetts v. United States Dep't of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012)). The First Circuit held that DOMA's denial of federal benefits to same-sex couples lawfully married in Massachusetts violates the Equal Protection Clause of the U.S. Constitution.

In Windsor, the U.S. District Court for the Southern District of New York held that Section 3 of DOMA unconstitutionally discriminates against same-sex couples, and the Second Circuit affirmed the decision (Windsor, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), aff'd., 699 F.3d 169 (2d Cir. 2012)). Today's decision affirms these lower court rulings. 

In 2011, U.S. Attorney General Eric Holder stated that the Justice Department would no longer defend the constitutionality of Section 3 of DOMA. [In the Supreme Court, the law was defended by Paul Clement, a Bush administration solicitor general who was hired by House Republicans when the Obama administration declined to defend the law.]

Related AICPA content:

Web course, "Financial Planning and Tax Information on the Supreme Court Decision for Non-Traditional Couples," July 15, 1 p.m. EDT, presented by the AICPA Personal Financial Planning Division. Click here to register.

Alistair Nevius (anevius@aicpa.org) is the JofA's editor-in-chief, tax, and Sally P. Schreiber (sschreiber@aicpa.org) is a JofA senior editor.

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Tuesday, June 25, 2013

Revisions to the Indoor Tanning Services Excise Tax


Revisions to the Indoor Tanning Services Excise Tax


The excise tax for indoor tanning services has been around since 2010 as part of the Patient Protection and Affordable Care Act. This tax is the government's way of trying to get you to stop using indoor tanning services, since using them may cause skin cancer.

This is an example of the U.S. government again enacting legislation in an attempt to influence the choices we make. They learned from Prohibition that outlawing an activity often has little effect on our choices so they opted for the next best thing—they taxed it.

The Internal Revenue Service has revised and finalized the regulations for the 10% excise tax on Indoor Tanning Services (ITS) imposed by this legislation. The temporary regulations, effective July 1, 2010, were revised by the 2013 final version. The final regulations are effective as of June 11, 2013; however, there could be additional revisions in the future.

Some of the 2010 temporary regulations were retained while others were revised or superseded by the 2013 final regulations. Following is a summary of some of the more significant items that changed and those that have stayed the same.

Qualified Physical Fitness Facilities (QPFF)

1. Certain QPFFs, with membership fees that include access to indoor tanning facilities, were exempted from the excise tax by the 2010 regulations even though the QPFFs provide basically the same indoor tanning services as non QPFFs.

2. The 2010 regulations limit the definition of a QPFF to a business that does not charge separately for its ITS, offer ITS to the general public, or offer different membership rates based on access to the ITS. If the business meets all three conditions it is exempted from the tax.

3. The 2013 regulations maintained this exemption despite complaints that the exemption creates an unfair competitive advantage for exempt QPFFs.

Free or Discounted Indoor Tanning Services (ITS)

1. The final 2013 regulations specify that the tax only applies if an amount is paid for ITS.

2. If services are provided at a reduced rate, the tax applies to the amount actually charged for the tanning services.

3. The 2013 regulations specify that the tax does not apply to ITS received for redemption of "bonus points" from a loyalty or similar program.

4. For promotions that include a "free" tan with the purchase of a specific number of tans the purchased tans are considered as a reduction to the price of all of the tans rather than a package of purchased tans at full price along with a "free" tan. The tax is applied to the purchase of the package of tans rather than the redemption of the additional tan.

Bundled Services

1. The 2010 regulations provided a formula to determine the amount reasonably attributable to ITS included in a bundle of services. The 2013 regulations leave the bundled rules intact.

2. If the ITS are bundled with other goods and services, the provider must manually calculate the amount of the payment for the bundled services that is attributable to ITS.

3. The final 2013 regulations authorize the Treasury Department and the IRS to issue future guidance to identify additional options for making this calculation.

Gift Cards

1. An undesignated payment card is defined by the 2010 temporary regulations as an item that can be redeemed for goods or services that may or may not include ITS.

2. The 2010 temporary regulations imposed an excise tax only when the card is redeemed for ITS, not when it is purchased. It was pointed out that a provider can only collect the tax when the card is purchased not when it is redeemed for ITS.

3. The 2013 regulations do not change the 2010 requirements however, they authorize the Treasury Department and the IRS to issue future guidance with respect to undesignated payment cards.

4. As required by the 2010 temporary regulations the excise tax must be reported and paid quarterly on Form 720 "Quarterly Federal Excise Tax Return."

Membership and Enrollment Fees

1. The 2013 final regulations clarify that the excise tax on ITS is imposed on amounts paid for monthly membership and enrollment fees to a provider of ITS, other than a qualified QPFF, even if the member does not use any ITS's during the period to which the fees relate.

2. Some providers charge a fee that allows the member to skip one or more months of membership dues without being charged an enrollment fee when they restart their monthly membership. Amounts paid to temporarily suspend a periodic membership program are considered amounts paid for ITS and are subject to the excise tax.

The government has taxed alcohol, cigarettes and now indoor tanning services to try to legislate good health practices. I don't think that they have been very successful with either alcohol or cigarettes and they probably won't be very successful with indoor tanning services either. What do you think?



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Werfel Releases Results of 30-Day Review, Finds No Intentional Wrongdoing of Treatment of Conservative Groups (IR-2013-62)


Werfel Releases Results of 30-Day Review, Finds No Intentional Wrongdoing of Treatment of Conservative Groups (IR-2013-62)

IRS Principal Deputy Commissioner Daniel Werfel told reporters in Washington, D.C., on June 24 that an initial review of the Service's treatment of conservative groups has not revealed signs of intentional wrongdoing by Service personnel or involvement by parties outside the IRS. Werfel cautioned that investigations by the IRS, congressional committees and the U.S. Department of Justice (DOJ), are ongoing. "I am not providing a definitive conclusion that no wrongdoing occurred," Werfel said. At the news conference, he highlighted various parts of his report, entitled, "Charting a Path Forward at the IRS: Initial Assessment and Plan of Action," which includes a streamlined process for organizations that had their applications for Code Sec. 501(c)(4) status delayed.

Treatment of Applications

When President Obama appointed Werfel in May to temporarily take charge of the IRS, he instructed Werfel to do a 30-day review of the Service's treatment of conservative groups (TAXDAY, 2013/05/21, W.1 ). The Treasury Inspector General for Tax Administration (TIGTA) had previously reported that the IRS Exempt Organizations (EO) Determinations Unit developed and used inappropriate criteria to identify applications for Code Sec. 501(c)(4) status from organizations with the words "Tea Party," "Patriots," and "9/12″ in their names (TAXDAY, 2013/05/16, T.1). TIGTA also reported that the IRS had requested additional information from these groups that was unnecessary and ultimately delayed the processing of their applications.

"Over the past month, an ongoing review has shown management failures," Werfel said. However, there are no signs at this time of intentional wrongdoing by IRS personnel or involvement by parties outside the IRS in the activities described in the TIGTA report, Werfel explained. "Importantly, this report does not provide a complete and final set of answers," he added.

President Obama and Treasury Secretary Jack Lew were briefed by Werfel on his findings. "The assessments and actions outlined in Werfel's report have charted a path that will improve performance and accountability, and will help ensure that we appropriately address the actions identified by the IRS Inspector General," Lew said in a written statement.

Werfel repeatedly emphasized that the Service has suspended the use of any "be-on-the-lookout," or BOLO, lists in the application process for tax-exempt status. "There were a series of these type of lists being used in this part of the IRS," Werfel said. "Upon discovering other BOLO lists, we believe there were inappropriate criteria on these lists and we took action to suspend the use of these lists in the exempt organizations unit of the IRS." Werfel declined to specify what the other BOLO lists identified.

New Leaders

New leaders have been installed in many areas related to the tax-exempt work of the IRS, according to Werfel. Heather Maloy is serving as deputy commissioner for Services and Enforcement, Michael Julianelle has been appointed commissioner, Tax Exempt and Government Entities Division, Ken Corbin is director, EO, and Karen Schiller is director, Rulings and Agreements, EO. The Service has also created an Accountability Review Board to make recommendations on any additional personnel actions that should be taken. Werfel declined to comment on the employment status of Lois Lerner, who formerly headed the EO Division and who refused to testify before Congress about the treatment of conservative groups (TAXDAY, 2013/05/21, C.1).

Streamlined Process

Werfel announced plans to fast-track certain Code Sec. 501(c)(4) applications. The optional expedited process provides a streamlined path to tax-exempt status if the groups certify they will operate within specified limits and thresholds of political and social welfare activities, Werfel explained. The expedited process is available at this time only to groups for Code Sec. 501(c)(4) status with applications pending for more than 120 days as of May 28, 2013, that indicate the organization may be involved in political campaign intervention or issue advocacy. Werfel told lawmakers earlier in June that the Service would take action to address the backlog of applications (TAXDAY; 2013/06/04, C.4).

Hearing Set

Werfel is scheduled to testify before the House Ways and Means Committee on June 27 to explain the report to lawmakers who are still seeking answers on how the extra IRS scrutiny began. In a statement released after the report, Committee Chairman Dave Camp, R-Mich., said lawmakers still want to know who started the practice of political discrimination, why it continued as long as it did and how widespread it was. Camp called for the implementation of real reforms to reassure Americans about the Service's integrity.

Rep. Charles Boustany, Jr., R-La., chairman of the Ways and Means Oversight Subcommittee, expressed indignation that the IRS would suggest that a solution to its problems would be to receive $1 billion more in taxpayer dollars. "These actions cannot be tolerated and I expect the IRS to undertake fundamental reforms to ensure the agency's inexcusable behavior does not continue," he said in a written statement.

Separately, Ways and Means ranking member Sander M. Levin, D-Mich., said the IRS has provided congressional investigators with new information that proves liberal organizations were also targeted for additional scrutiny. Levin said the term "progressives" was also included in the Service's BOLO lists used to screen tax-exemption applications. He said a Democratic staff review of the list of 298 organizations identified by TIGTA as IRS targets also included liberal groups, not just Tea Party organizations.

Levin said he is writing a letter to TIGTA chief J. Russell George asking for an explanation of why the May 14 TIGTA audit report omits the liberal groups. In addition, Levin wants George to testify before Ways and Means and is requesting that committee interviews with IRS staffers be reevaluated and supplemented in light of the targeting of liberal groups seeking exempt status. "The audit served as the basis and impetus for a wide range of Congressional investigations and this new information shows that the foundation of those investigations is flawed in a fundamental way," Levin said in a written statement.

By George L. Yaksick, Jr., and Stephen K. Cooper, CCH News Staff


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Sunday, June 23, 2013

15 policies for sound not-for-profit governance


15 policies for sound not-for-profit governance

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CPAs nodded their heads in sympathy as stories of governance mistakes were told during a session at the AICPA Not-for-Profit Industry Conference in Washington on Thursday.

One organization accepted a gift of a cattle ranch that had nothing to do with its mission, creating huge administrative headaches.

Another organization did not immediately sell a gift of $500,000 in securities that were donated to finance an endowment. The value of the securities suddenly plummeted, and within two weeks just $250,000 was left for the endowment.

This is the difficulty with governance at not-for-profits. They often are run by well-meaning people who want to direct a maximum amount of their energy and resources to the cause they are trying to serve. But BDO Senior Tax Director Laurie Arena Rocha, CPA, said not-for-profits that don't follow good governance procedures put the mission at risk unnecessarily.

"I had a client that had swampland in Florida," Rocha said. "They couldn't unload it. It was worthless, and they got stuck with it. That's the challenge with organizations feeling like they're too small [to invest in sound governance]. Because they're really not too small to run into any one of these problems."

Rocha and BDO Tax Exempt Senior Director Rebekuh Eley, CPA, described 15 governance policies that can help not-for-profits avoid such problems. These include:

  • A written code of ethics for board members that states the organization's values and is presented to board members during the orientation process. The code should become part of the not-for-profit's culture rather than a stale document that is easily forgotten.
  • A conflict-of-interest policy for board members that requires periodic disclosures and consistent monitoring. Some boards read the policy before every meeting, and some have quarterly or semiannual reminders.
  • A whistleblower policy. This should allow everyone associated with the organization to come forward without fear of retaliation. Some organizations use a hotline, while others designate a certain person in the organization to receive and respond to complaints.
  • A document retention and destruction policy. This should undergo legal review to make sure it complies with state and federal laws and requires regular compliance monitoring.
  • Expense reimbursement. This should follow IRS guidelines, requiring documentation and receipts for all purchases over a specific dollar amount, which often is $25. There should be no payment of personal expenses or family travel from expense accounts, and reviewers should be empowered to question any and all expenditures.
  • A gift acceptance policy. This also should be reviewed by legal counsel, and potential gifts should be screened to determine whether ethics, financial circumstances, or other interests are compromised by the acceptance of the gift. A best practice is to liquidate gifts of securities immediately to avoid losing a portion of the donation if the value of the securities suddenly drops.
  • A process that allows all board members to review Form 990, Return of Organization Exempt From Income Tax, before it is filed.
  • A board compensation policy. Not-for-profit board members should not be compensated, Rocha said. But in some instances, she said, board members do receive stipends. If compensation is paid, it should be documented and approved.
  • Oversight of independent review of financial statements. Best practices call for an independent audit committee that monitors financial practices and is involved in auditor selection. Recruiting board members with financial expertise is critical to assist this process.
  • Procedures for selecting and monitoring grant recipients. No private inurement should be given.
  • An endowment spending policy. This can help make sure investment is done responsibly.
  • A fundraising policy. Although this is seen in practice less frequently, according to Rocha, she advises having a written policy that's monitored for compliance and reviewed with management annually.
  • Disclosure of governing documents. This aids in transparency.
  • Review the size, structure, and independence of a board. There should be at least five members, with two-thirds of members independent, and with a diverse background, according to the conference speakers.
  • A meeting minutes policy. Minutes should contain enough detail to determine the quality and extent of discussion, and typically are reviewed and approved at a subsequent board meeting.


    Many of the items include duties for board members who are volunteers. And smaller not-for-profits sometimes neglect governance because they develop a comfort level with volunteers or staff, Eley said. It's difficult to imagine that the kind, churchgoing employee who brings cake to the office on everyone's birthday also could be committing fraud.

    "That [comfort level means] you're really running the risk," Eley said.

    CPA representation on not-for-profit boards is extremely helpful, Rocha said. The checks and balances may not always be appreciated by those who are gung-ho about the mission of the charity, because the governance can seem to interfere with plans and goals.

    "It's very important [to have CPAs on boards] because we're very often the voice of reason," Rocha said. "When people get carried away with their mission, they need the voice of reason. But the voice of reason is not the obstacle. It's really the tools that you need, the foundation to really grow on."

    Ken Tysiac (ktysiac@aicpa.org) is a JofA senior editor.

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    Friday, June 21, 2013

    IRS controversy could cause tax-exempt processing slowdown


    IRS controversy could cause tax-exempt processing slowdown

    CPAs need to be prepared for a slowdown in certain work handled by the IRS Exempt Organizations Division in the wake of the recent controversy involving the processing of certain applications for tax exemption under Sec. 501(c)(4), the division's former head said Thursday. 'Probably

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    Werfel Scheduled to Testify at Ways and Means Hearing


    Werfel Scheduled to Testify at Ways and Means Hearing

    House Ways and Means Committee Chairman Dave Camp, R-Mich., on June 20 announced that the committee will hold a hearing on the IRS and the Service's 30-day review of the practice of discriminating against applicants for tax-exempt status based on their personal beliefs. The hearing will take place on Thursday, June 27, in Room 1100 of the Longworth House Office Building, beginning at 10:00 a.m. Daniel Werfel, IRS principal deputy commissioner, will be the only witness at the hearing. He is expected to testify on the IRS's internal review of inappropriate practices, as well as any remedial and disciplinary actions that have been implemented by the Service.

    Any individual or organization not scheduled for an oral appearance may submit a written statement for consideration by the committee and for inclusion in the printed record of the hearing.

    Ways and Means Press Release: Camp Announces Hearing on the Status of Internal Revenue Service's Review of Taxpayer Targeting Practices


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    Inherited IRA Not Excluded from Debtors’ Bankruptcy Estate (In re Clark, CA-7)


    Inherited IRA Not Excluded from Debtors' Bankruptcy Estate (In re Clark, CA-7)

    An IRA inherited by a non-spouse beneficiary was not excludable from the beneficiary's bankruptcy estate. The funds transferred from the beneficiary's deceased mother's IRA were not retirement funds in the hands of the beneficiary. Sections 522(b)(3)(C) and (d)(12) of the Bankruptcy Code provide specific exemptions for retirement funds and inherited IRAs do not qualify because they are not savings reserved for use after their owners stop working. Therefore, the inherited IRAs represented an opportunity for current consumption and are not exempt retirement funds.

    Reversing an unpublished DC Wis. decision.

    In the matter of B.C. Clark, CA-7, 2013-1 ustc ¶50,389

    Other References:

    • Code Sec. 408
    • CCH Reference - 2013FED ¶18,922.1057
    • Tax Research Consultant
      • CCH Reference – TRC RETIRE: 66,800

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    Wednesday, June 12, 2013

    As Marriage Changes, Should Joint Filing Go The Way of Ozzie And Harriet?


    As Marriage Changes, Should Joint Filing Go The Way of Ozzie And Harriet?

    Any day now, the Supreme Court will rule on whether same-sex married couples have the right to file joint federal tax returns. But Yale tax law professor Anne Alstott has me wondering whether the entire debate over the tax consequences of the Defense of Marriage Act is missing the point. In an upcoming paper for Yale's Tax Law Review, she argues that it makes little sense to tie the Revenue Code so closely to formal marriage when so many people are in very different family relationships than they were even 40 years ago.

    As Alstott notes, nearly half of American adults are now unmarried, 40 percent of children are born to unmarried parents, and labor force participation among married women is now very close to that of married men (thanks to the always-helpful Paul Caron at TaxProf blog for tipping me off to her paper). Ozzie and Harriet have been in reruns for half-a-century. So why even bother with the concept of joint tax filing?

    Alstott borrows from Johns Hopkins University sociologist Andrew Cherlin, who calls the trend away from formal marriage "new individualism." This, she says, "has rendered obsolete legal doctrines and policy analyses that treat formal marriage as a proxy for family life….Joint filing is no longer well-tailored to serve important social objectives."

    And, she adds, this argument applies whether one is a liberal who embraces the new individualism or a conservative who is offended by it.

    Reframing the tax treatment of families in this way will help solve some problems and create some new ones. And Alstott isn't so much arguing for a specific alternative to joint filing as urging tax wonks to consider the law in the context of social change.

    While marriage may be sacred to many, there is nothing consecrated about joint filing. Only one-third of major developed countries use the mechanism. Besides, as my Tax Policy Center colleague Bob Williams has described, it doesn't even necessarily reward marriage. For most households (typically where one spouse earns substantially more than the other) married couples enjoy a tax bonus. However, where the spouses earn roughly the same amount a couple could end up paying a penalty for tying the knot.

    Congress created joint filing in 1948 in an attempt to solve a number of problems, including one where couples could game the law by artificially splitting reported income in a way that minimized their taxes.

    Today's system still struggles to resolve what lawyers and economists describe as a trilemma: The income tax cannot simultaneously maintain progressive rates, impose equal taxes on all couples earning the same amount, and be neutral between married and unmarried taxpayers. Something has to give.

    But, Alstott argues, these concerns become less important if the tax code gets past the concept of marriage. In that environment, Congress could simply restore a system of individual filing for all combined with rules aimed at preventing gaming, such as sham transfers of assets from one spouse to another. With the right anti-abuse rules in place, the law need not bother distinguishing between couples who are formally married and those who are not.

    Alternatively, Alstott says Congress could allow couples to file combined returns, whether they are married or not.

    In response to those anxious to preserve traditional marriage, she even suggests a package of refundable tax credits to encourage early marriage, discourage divorce, or even help subsidized stay-at-home moms. But none of these require joint filing either.

    Alstott goes a bit far when she says joint filing (as well as the spousal benefit in Social Security) tracks a social reality that 'no longer exists." After all, more than half of all adults are married and the trend line away from marriage has flattened somewhat in recent years. And who knows, perhaps like martinis, marriage will make a comeback.

    But her paper makes a provocative and important argument. As we consider tax reform, we should not ignore how the Revenue Code applies in an environment of rapidly changing social norms. Isn't that, after all, what the DOMA controversy is all about?


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    Tuesday, June 11, 2013

    IRS Issues Final Regulations on Indoor Tanning Tax in "Obamacare"


    IRS Issues Final Regulations on Indoor Tanning Tax (T.D. 9621)

    The IRS has issued final regulations, effective June 11, 2013, that provide guidance on the 10-percent excise tax imposed on indoor tanning services under Code Sec. 5000B . The tax was added by the Patient Protection and Affordable Care Act (P.L. 111-148) and went into effect on July 1, 2010. In large part, the final regulations adopt the rules of the proposed and temporary regulations issued back in 2010 (T.D. 9486 ; NPRM REG-112841-10). Some major questions raised during the rulemaking process and how the final regulations resolve those questions is discussed below.

    Health Club Exemption

    The exemption for Qualified Physical Fitness Facilities (QPFFs) in the 2010 regulations drew a torrent of criticism. Specifically, the 2010 regulations exempt from the tax any membership fee paid to a QPFF that includes access to indoor tanning services. A QPFF is a facility whose main business or activity is to serve as a physical fitness facility. QPFFs do not charge separately for tanning services, offer tanning services to the general public, or offer different membership fee rates based on access to tanning services.

    Among the criticisms of the exemption leveled by commenters were: (1) that there is no good reason to differentiate indoor tanning facilities and QPFFs that provide the same tanning services, (2) that the exemption for QPFFs creates an unfair competitive advantage for health clubs, and (3) that no such exception appears in Code Sec. 5000B .

    In Fall 2010, in response to an IRS comment request, the Indoor Tanning Association (ITA), a trade association representing sun-tanning facilities nationwide, made these arguments. In its letter to the IRS, the ITA cited anecdotal evidence that QPFFs are trying to exploit their advantage under the regulations by publicizing access to tax-free tanning services. It is highly unusually, said ITA, absent clear guidance from Congress, to give consumers an incentive to purchase the same product or service from one segment of a line of business over another by making the purchase tax-free from one, but not the other.

    The final regulations, however, retain the exemption for QPFFs. According to the preamble to the final regulations, access to tanning services is incidental to a QPFF's main business. Given that customers of a QPFF usually pay a monthly fee for access to all equipment in the facility, including tanning equipment, reasons the IRS, requiring a QPFF to allocate its customers' monthly membership fees among tanning and nontanning services would be burdensome and difficult to administer. On the other hand, other providers of tanning services usually offer their services as part of a package of specific goods or services. This, says the IRS, generally allows the provider to determine the portion of the purchase price that relates to the tanning services and allocate that portion accordingly.

    Bonus Points

    Under the final regulations, the tanning tax applies only if an amount is paid for indoor tanning services. And, if services are provided at a reduced rate, the tax applies only to the amount actually paid for the services. The final regulations do not apply the tax to tanning services obtained by redeeming "bonus points" through a loyalty program or similar program. With promotions that entitle a customer who buys a certain number of tans to a "free" tan, the tax is imposed on the purchase of the package of tans and not on the redemption of the additional tan.

    Bundled Services

    Access to indoor tanning services over a period of time, including "free" or reduced-rate tanning services, may be "bundled together" with other goods and services. The final regulations generally retain the formula under which the tax applies to that portion of the amount paid that is reasonably attributable to tanning services. In basic terms, under that formula—the "ratio method" —a ratio determined by comparing the charge for stand-alone tanning services to the charge for bundled services is applied to the total amount paid. The final regulations, however, authorize future guidance to provide additional options for making this determination. In this regard, the IRS requests comments on other reasonable methods for determining the amount of a payment for bundled goods and services that is reasonably attributable to indoor tanning services.

    Undesignated Payment Cards

    Practically speaking, say commenters, a provider can collect the tanning tax only when an "undesignated payment card" —a gift certificate or gift card that may be, but does not have to be, redeemed for tanning services—is bought, and not when the card is redeemed for tanning services. The final regulations, however, retain the rule that the tanning tax is imposed not when an undesignated payment card is purchased, but when the card is redeemed to pay for tanning services. This is when it can reasonably be determined that a payment is made specifically for tanning services. The final regulations, however, do authorize future guidance to provide additional options for administering the tax with respect to undesignated payment cards, and the IRS welcomes comments on this issue.

    Membership and Enrollment Fees

    The final regulations clarify that the tax is imposed on amounts paid for prepaid monthly membership and enrollment fees to a provider of tanning services (other than a QPFF), even if a member does not use any tanning services during the period to which the fee relates.

    Some providers also impose a fee to allow customers to skip one or more months of membership dues without being charged an enrollment fee upon restarting the monthly membership. Under the final regulations, amounts paid to temporarily suspend a periodic membership are amounts paid for indoor tanning services because they allow the customer to receive tanning services at reduced prices.

    Comment Request

    The IRS and the Treasury Department will further study the treatment of bundled services and undesignated payment cards and request additional comments on these two issues. Comments on these issues should be submitted in writing by October 9, 2013, and can be mailed to the Office of Associate Chief Counsel (Passthroughs and Special Industries), Re: REG-112841-10, CC:PSI:B7, Room 5314, 1111 Constitution Avenue NW., Washington, D.C. 20224. All comments received will be available for public inspection at http://www.regulations.gov (IRS REG-112841-10).

    T.D. 9621, ETR ¶63,063


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    Friday, June 7, 2013

    Beam me up, Scotty

    "The sixth recommendation was prompted by two videos that were created for the conference. A "Star Trek" parody video was created because the conference theme was "leading into the future"; it featured IRS executives in a tax-themed "Star Trek" skit. The second video involved managers and executives dancing on a stage. The costs to produce these videos could not be determined precisely because adequate records were not kept, but the IRS claimed it spent over $50,000 on them. As a result, TIGTA recommended procedures be established to outline the need for videos produced for future conferences. The videos' purpose should be clearly detailed in any conference request, and their costs should be included in the request."

    TIGTA Criticizes the IRS on Conference Overspending 

    Published June 04, 2013

    In the latest in a series of bad news days for the IRS, the Treasury Inspector General for Tax Administration (TIGTA) issued a report Tuesday on the IRS's wasteful spending on conferences (TIGTA, Review of the August 2010 Small Business/Self-Employed Division's Conference in Anaheim, California, Rep't No. 2013-10-037). TIGTA focused its audit and report on the IRS Small Business/Self-Employed (SB/SE) Division's conference in Anaheim in 2010 out of the many conferences held in the past three years because it received a specific complaint alleging overspending at that conference and it was the most expensive IRS conference during that period. Overall, TIGTA found that the IRS spent $49 million on 225 conferences from 2010 through 2012.

    In response to the TIGTA report, the House Committee on Oversight and Reform has announced that it will hold a hearing on the issue this Thursday. Acting IRS Commissioner Danny Werfel issued a statement in which he called the wasteful spending "an unfortunate vestige from a prior era" and said, "Taxpayers should take comfort that a conference like this would not take place today."

    The conference in Anaheim involved 2,609 SB/SE managers and executives at Sheraton, Marriott, and Hilton hotels and reportedly cost $4.1 million (the IRS was unable to establish exactly how much it cost). Despite the availability within the IRS of event planners, the SB/SE division used two outside event planners who received commissions from the hotels of $133,000, which were based on the number of rooms the IRS used.

    TIGTA also found that the IRS could have negotiated lower rates had it not accepted other benefits from the hotels including suite upgrades, two of which were presidential suites that cost between $1,500 and $3,500 per night that were provided to SB/SE division executives for $135 per night. Other benefits included free cocktails and promotional gifts, such as logoed brief bags, engraved pens, picture frames, and clocks.

    In its report, TIGTA made nine recommendations, all of which the IRS agreed with. A few of the details of the conference did not result in any specific recommendations, perhaps because they spoke for themselves. First, TIGTA mentioned that the conference paid $135,350 for 15 outside speakers, including two keynote speakers. One of the keynote speakers was paid $17,000 to paint portraits of various famous people and the Statue of Liberty and give them to audience members. Three of the paintings were later sold at auction for small amounts. The second speaker was paid $27,500 for two one-hour motivational speeches on radical innovation.

    TIGTA recommendations

    Recommendation 1 requires the IRS chief financial officer (CFO) to verify that the appropriate information was being tracked to ensure that the actual costs of conferences and the number of attendees could be established and audited. Although the IRS had a code employees were required to use when reporting expenses, TIGTA identified 188 employees who attended the Anaheim conference but did not use the correct code.

    When the Anaheim conference was held, there was no plan to track whether employees attended any of the training sessions, some of which may have qualified as continuing professional education (CPE) for IRS CPAs who attended the conference. The second recommendation was to implement a policy to determine whether specific training sessions held at conferences qualify for CPE credits for CPA employees.

    The third recommendation addressed the process used to select the conference site. The IRS has a centralized delivery services (CDS) system in place to help choose conference space for IRS events, including off-site training when necessary. Instead of using the CDS, the SB/SE division used outside event planners (as noted above) and also paid a few SB/SE employees $6,000 extra to plan the conference. The event planners were not under contract with the IRS and therefore had no incentive to negotiate lower room rates with the hotels. Nongovernment facilities should be avoided except where it can be demonstrated that the anticipated benefits will more than offset any additional direct expenditures and will not appear to the general public as unnecessary spending.

    When off-site facilities are used, CDS must document that government property was considered but was determined not available and explain why any available government space did not meet the conference's business needs. TIGTA recommended that the IRS reemphasize the existing procedures to ensure that business units contact CDS when planning any future conference. Further, it recommended that new procedures require all documentation that supports how nongovernment facilities for future conferences were selected be maintained and available for management review. Recommendation 4 is related to No. 3: Implement procedures to identify the appropriate use of nongovernmental event planners when planning conferences, including how they should be selected and compensated.

    The fifth recommendation involved three planning trips taken by SB/SE employees to plan and run the conference in Anaheim. The CFO should establish procedures to determine when these types of trips should be made and require local IRS employees, to the extent they are available, to perform these duties.

    The sixth recommendation was prompted by two videos that were created for the conference. A "Star Trek" parody video was created because the conference theme was "leading into the future"; it featured IRS executives in a tax-themed "Star Trek" skit. The second video involved managers and executives dancing on a stage. The costs to produce these videos could not be determined precisely because adequate records were not kept, but the IRS claimed it spent over $50,000 on them. As a result, TIGTA recommended procedures be established to outline the need for videos produced for future conferences. The videos' purpose should be clearly detailed in any conference request, and their costs should be included in the request.

    Seventh on the list was a requirement for the CFO to determine whether hotel room upgrades should be allowed and for the applicable business unit executive to approve any that occur. The eighth recommendation concerned the Anaheim conference organizers permitting local IRS employees to stay at the conference overnight and reimburse them for the costs. Because reimbursing these expenses may be taxable to the employee, the IRS should have, but did not always, issue Forms W-2 taxing the employees.

    The final recommendation was concerned with unnecessary costs, such as for setting up an exhibitors' hall at the conference and paying for promotional items such as totes with imprinted logos. There was also a large expense for technology that was used minimally at the conference. TIGTA recommended that the CFO establish procedures to determine the need for any exhibitor halls and technology for future conferences. The purpose and use of any exhibitor hall or technology should be clearly detailed in any request for a conference and include the costs, including for giveaway items, in the approval request.

    IRS response

    The IRS on Tuesday posted a "key facts" document in response to the TIGTA report. In that document, it said that the IRS "has dramatically cut the number of meetings involving travel since 2010. We did not hold any similar, large-scale nationwide meetings like these in 2011, 2012 or 2013, and we do not have any plans to do so going forward." The IRS also acknowledged that, "While there were legitimate reasons for holding the meeting, many of the expenses associated with it were inappropriate and should not have been incurred."

    The IRS also noted that it has decreased travel and training expenses by 80% since 2010, and posted a chart showing its conference spending over the past three years.




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