Who Needs Netflix? Tax Videos on Demand

Today is graduation at Villanova Law School. It is a beautiful day and it will be nice to see families and students beaming. One of the highlights for me last academic year was participating in the Second Annual International Taxpayer Rights Conference in Vienna. The conference had a diverse group of speakers, with tax administrators, practitioners and academics from all over the world.

The conference organizers have posted videos of all of the panels and I link them below. An agenda with a little more description and information about the panelists is here.

Links to Video of Panels

NTA Testimony Today on Tax Reform

For more viewing pleasure, the National Taxpayer Advocate will be testifying today about tax reform before the Oversight Subcommittee of the Ways and Means Committee. The hearing is scheduled for 9 AM and the committee live streams and archives the event, which can be found here. More information on the hearing is here

 

Oral Argument This Week on State Qui Tam Action Involving Citigroup

Readers may recall from fall of 2015 a post by Professor Eric Rasmusen discussing a New York State False Claim complaint he filed in connection with allegations that the government’s purchase of Citigroup stock should have triggered Section 382 to apply to limit the bank’s net operating losses. The matter has been removed to New York State court and is scheduled for oral argument this Wednesday. Professor Rasmusen has posted lots of useful information (including briefs) about the case here.

The main issues before the court are the following:

1. Does Citigroup owe the taxes?
2. Should Citigroup know it owes the taxes? (scienter)
3. Is the qui tam suit based on information “publicly disclosed in the news media and government reports”?
We will keep you posted.

ABA Tax Section Preview: Panels of Interest, Appeals Comments and Olson Wins Distinguished Service Award

Keith and I are off to the ABA Tax Section meeting in DC this week. We will report back on some of the highlights; both Keith and I are speaking. Keith is on a panel today discussing issues small businesses confront when things do not go well, including trust fund recovery and bankruptcy issues.

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I am moderating a panel tomorrow that will feature two former PT guest posters, David Vendler and Caleb Smith. David and Caleb will be focusing on information reporting issues; David will be looking at interest reporting arising from transactions relating to homeownership (e.g., loan modifications, short sales). As David has discussed here before, the issue is timely: it is part of the recent IRS guidance priority and David is lead attorney in a class action suit that alleges banks are systematically underreporting interest to millions of consumers. Caleb will be looking at systemic approaches to information reporting, looking at student loan discharge as a case study, a topic he has also discussed in PT here.

On Saturday I will be on a panel moderated by former guest poster, current Tax Court clerk (and Villanova Law alum) Lany Villalobos with the National Taxpayer Advocate Nina Olson, EITC expert Steve Holt, and Congressional Research Service staffer Margot Crandall-Hollick; the panel will focus on tax benefits for working families, with an eye toward future reform proposals.  I will look at two recent cases as a platform to show how the current EITC often entraps individuals, contributing to the high improper payment rate. This is a topic of a brief essay I am finishing and hope to discuss in more detail in PT once it is done.

In addition to hosting meetings, the Tax Section submits many comments. Earlier this week, the Section submitted a set of comments looking at recent Appeals changes and suggesting improvements. Those comments are quite good and are linked here.

Finally, the ABA Tax Section is recognizing National Taxpayer Advocate Nina Olson this weekend with its Distinguished Service Award in honor of her service to the ABA Tax Section, the government and the tax system generally. Former ABA Tax Section Chair Michael Hirschfeld wrote a brief article discussing some of Nina’s career highlights. In it he shares a terrific story involving Keith and Nina meeting years ago to discuss Nina’s prescient idea to have tax clinics help the unrepresented in tax disputes.

Ways and Means Committee Hearing on 2017 Tax Season Highlights Progress and Challenges

Last week the Oversight Subcommittee of the House Ways and Means Committee held its annual hearing to examine the IRS’s filing season performance. The testimony included opening statements from Chair Vern Buchanan and ranking minority member John Lewis, as well as testimony from IRS, TIGTA and GAO.

For those interested in the testimony itself, this link will take you to Committee’s landing page, with video and the written testimony. Here are some highlights.

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Chair Buchanan emphasized the IRS’s efforts to combat fraud, looking to specific programs that in his mind are characterized by high error rates; not surprisingly, the EITC was the poster child (“we are taking about big money here”) though the Chair did note that it was not clear how much of the error was due to fraud and how much due to mistakes.

Representative Lewis, after commenting on the upward trajectory in customer service this filing season, used most of his introductory remarks to criticize private debt collection, noting that he has introduced legislation to overturn its adoption.

The testimony of the IRS executive, Kristen Wielobob, emphasized that this filing season has been generally successful, pointing to reduced telephone wait times and implementation of PATH changes (like accelerating the receipt of W-2’s and delaying EITC and CTC-fueled refunds until February 15 to theoretically allow a match before release of those credit-based refunds).

The GAO testimony, while also noting many of the IRS successes such as reduced telephone wait time, looked to the challenges, including the somewhat surprising statement that even with the PATH acceleration of W-2 filing deadlines, IRS did not verify the wage information on about 2/3 of the EITC returns it received. That was due in part to limits IRS had in processing information it received from third parties (including the challenges of digesting paper rather than electronic W-2s). GAO did note however that the PATH changes led to an early identification of about $863 million in additional refunds as being possibly fraudulent.

The TIGTA testimony indicates that it is studying and will report soon on IRS compliance with the PATH requirements. It also highlights the IRS shift away from in-person service to alternative ways to communicate with taxpayers, (or in its parlance “technology-based assistance services”). The TIGTA testimony also highlights the ongoing identity theft challenges IRS has faced, the IRS efforts to assist identity theft victims and the challenges associated with private debt collection. On the latter point, most worrisome to me is the TIGTA warning that in an initial audit it felt that IRS seems to be setting itself up for major problems in administering the PDC program. According to TIGTA,

[w]e have identified numerous concerns during our audit, including the IRS’s lack of commitment to assist taxpayers concerned that the PCAs [private collection agencies] are part of an impersonation scam as well as our concerns related to the IRS’s process for receiving taxpayer complaints about PCAs.

Parting Thoughts

I am far removed from DC and do not have a good feel about the prospects for tax reform this year. The current administration’s proposals will, at least in the short-term, cost a great deal of revenue. While there is always a drumbeat to reduce the tax gap, those beats get louder when a legislature looks hard to find revenue offsets.

The opening statements of the Chair and ranking minority member of the Oversight Subcommittee to a large extent focused on tax gap issues. I suspect that there will be an increasing focus on ways to reduce the tax gap. While much of the individual tax gap is associated with small business income underreporting, small business taxpayers have powerful voices.  That suggests an increased focus on reducing errors associated with refundable credits, which, relatively speaking, account for little of the overall tax gap but credit claimants typically do not have the same clout with representatives. I would not be surprised if Congress expands the PATH model of delaying credit-based refunds to allow IRS more time to verify eligibility. In addition, TIGTA (as it has in years past) discussed the supposed benefits of allowing IRS to use math error authorities to disallow refundable credits in additional circumstances. I have previously raised concerns with expanding IRS math error powers  (which essentially deprives claimants of the usual pre-assessment notice and hearing rights), but I suspect that there may be increased interest in that approach.

 

 

Arrests Made in IRS Scam Call Center Probe; Dark Web a Home for Stolen Tax Information

In New York Times Article on Call Center Tax Scams Highlights How Criminals Prey on Our Citizens Fear of IRS I discussed how a New York Times reporter uncovered some of the methods and motives of the overseas IRS imposters who preyed on American fear of IRS. The other day the Wall Street Journal reported that Indian police have arrested the apparent ringleader of the scammers in Indian Police Arrest Man Allegedly Behind Tax Scam Call-Center Network. The same day as the WSJ article Accounting Today had a story about how Americans’ tax information is out there on the dark web, for sale and available for scammers seeking to file fake returns and access refunds.

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First, I will briefly discuss the call center scams. Most are familiar with them; as the WSJ reported, the scammers “received phone numbers and other details about U.S. taxpayers from a contact in the U.S. Call-center workers would make hundreds of calls, telling whoever answered they owed back taxes and risked financial ruin, humiliation and arrest if they didn’t pay immediately.”

The WSJ article discusses how the call center scammers were taking in about $150,000/ day. Indian authorities arrested the ringleader and seized his Audi R8 as evidence.

A DOJ indictment from last fall named the ringleader as one of the co-conspirators. The indictment discusses the IRS scam as well as a few other confidence scams that prey on the vulnerable and unsophisticated, including one where callers impersonating ICE agents threaten deportation unless the victim paid a fee.

These schemes suggest that the callers know something about how some Americans fear IRS and government in general. As I discussed last week in a brief post on a TIGTA review of IRS CI conduct in investigating structuring violations the IRS does not help itself when it fails to respect taxpayer rights when it investigates structuring violations. As the TIGTA report described, “when property owners were interviewed after the seizure, agents did not always identify themselves properly, did not explain the purpose of the interviews, did not advise property owners of any rights they might have, and told property owners they had committed a crime at the conclusion of the interviews.” This kind of behavior (and the publicity surrounding it) plants the seeds of fear.

Added to the mix of likely confusion and fear is the onset of private debt collection, an issue Keith has discussed and one that is likely to contribute to new opportunities for scamming Americans. The upshot is I suspect that while perhaps the Indian authorities have put one bad guy away, there are many more right behind him, and many future victims who are a mere phone call (or text) away.

On to the dark web. Wikipedia defines the dark web as “content that exists on darknets, overlay networks which use the public Internet but require specific software, configurations or authorization to access.” Last week Accounting Today in Tax refunds are selling cheap on the Dark Web discusses how there is a fully active market for sales of individuals’ W-2s. There is a sobering link to an IBM study outlining a 6,000 per cent increase in IRS scam emails over the past year, and how cybercriminals are selling W-2 information for $30, with an additional $20 charge for last year’s AGI, a necessary bit of information to allow a scammer to efile a return.

The Accounting Today story is terrific and I recommend a read; it has useful screenshots showing ads on the Dark Web and includes some new vocabulary that the fraudsters use to discuss the crimes. The piece ends with a reminder of how the fraudsters depend on people opening and responding to phishing emails and that “[n]o matter how enticing—or scary—the supposed offer or threat is in the supposed IRS letter, which will try to entice you into clicking on a link, or opening a file, resist, and forward the phishing attempt to the IRS at phishing@irs.gov.”

Good advice.

JOB POSTING: CLINICAL FELLOW, FEDERAL TAX CLINIC AT HARVARD LAW SCHOOL

The tax clinic at Harvard has had a great clinical fellow this year, Caleb Smith.  Caleb is leaving Harvard to become the director of the clinic at University of Minnesota, a wonderful opportunity for him to direct one of the oldest and best tax clinics in the country.  Congratulations to occasional guest blogger Caleb Smith and continued success in the future.

I am using this space to post the announcement that the tax clinic at Harvard is seeking to find someone to replace Caleb.  The announcement is for a two year position although it has the possibility of reappointment at the end of that period.  Please contact Caleb (casmith@law.harvard.edu) if you want to know more about what the position entails or just want to congratulate him or contact me (kfogg@law.harvard.edu).  I plan to continue working in the Harvard clinic moving forward and am excited that Harvard is committing the resources to hire a full-time fellow with long term prospects.

The announcement contains a link to the Harvard’s human resources office but you can also use this link to get directly to the announcement.  The announcement also has a link to the web site of the Legal Services Center.  The other clinics and other clinicians at the Center make it a great environment in which to work.  Keith

Position Available:  The Legal Services Center of Harvard Law School (LSC) seeks to hire a Clinical Fellow in the Federal Tax Clinic.  The Clinic—through which Harvard Law students receive hands-on lawyering opportunities—provides direct legal representation in tax controversies to low-income taxpayers. The Clinic’s docket includes cases before the IRS, in Federal Tax Court, and in the U.S. Circuit Courts of Appeal.  Many of the Clinic’s cases raise cutting-edge issues regarding tax procedure and tax law.  The Fellow’s responsibilities will include screening cases for merit and law reform opportunities, representing clients, helping to manage the Clinic’s docket, contributing to community outreach and engagement efforts, and supporting the Clinic’s teaching mission. The Fellow will work closely with Clinical Professor Keith Fogg, who directs the Clinic.  The position represents a unique opportunity to join Harvard Law School’s clinical program, to work in a dynamic public interest and clinical teaching law office, and to develop lawyering and clinical teaching skills.  Salary is commensurate with experience.  The position is for an initial two-year appointment.  The possibility of reappointment depends on the availability of funding and Law School and project requirements.

Minimum Requirements: Candidates must have received a J.D. within the last three (3) years or expect to receive a J.D. in spring 2017.  Candidates must already be admitted to a state bar or be able to sit for a state bar exam in summer 2017 with the expectation of admission to a state bar in fall 2017.  Massachusetts bar admission is not required.  The successful candidate will have experience in tax law, whether clinical, pro bono, government, or private practice, and a demonstrated commitment to the needs of low-income taxpayers.

To Apply:  Applications must be submitted via Harvard’s Human Resources website.  Applicants should apply for the position designated as Clinical Fellow, Harvard Law School (ID #42289BR).   

About the Legal Services Center:  Located at the crossroads of Jamaica Plain and Roxbury in the City of Boston, we are a community-based clinical law program of Harvard Law School. Through five clinical offerings—Family Law/Domestic Violence Clinic, Predatory Lending/Consumer Protection Clinic, Housing Clinic, Veterans Legal Clinic, and Federal Tax Clinic—and numerous pro bono initiatives we provide essential legal services to low-income residents of Greater Boston and in some instances, where cases present important law reform opportunities, to clients outside our service area. Our longstanding mission is to educate law students for practice and professional service while simultaneously meeting the critical needs of the community. Since 1979, we have engaged in cutting-edge litigation and legal strategies to improve the lives of individual clients, to seek systemic change for the communities we serve, and to provide law students with a singular opportunity to develop fundamental lawyering skills within a public interest law setting. To these ends, we actively partner with a diverse array of organizations, including healthcare and social service providers and advocacy groups, and continually adapt our practice areas to meet the changing legal needs of our client communities. We encourage diversity, value unique voices, and pursue with passion our twin goals of teaching law students and advocating for clients. To learn more, please visit the LSC website.

 

Some Weekend Reading and Listening

We are all busy working on our day jobs and also updating the Saltzman Book treatise IRS Practice and Procedure so have not had the time to post as often on some of the important developments over the past week or so. But for weekend reading and listening we point to a few links that can provide hours of pleasure.

IRS released its annual data book; it is full of useful statistics, including a robust discussion of enforcement actions, a less robust discussion of service and a breakdown of refunds issued, returns filed and the kinds of stuff that can keep tax nerds entertained for hours.

Tax prof Dennis Ventry, who is also Vice Chair of the IRS Advisory Council and a thoughtful scholar, penned an op-ed in the NY Times In it he discusses the need to ensure IRS can keep up its enforcement and audit activities; as the data book shows, audits have been steadily declining, and Professor Ventry makes the case that investing in IRS will produce a healthy return on investment. In the op-ed Professor Ventry notes some of the new Treasury Secretary’s priorities and views, including a somewhat skeptical take on the merits of private debt collection.

NPR’s Planet Money podcast (episode 760) features tax hero Professor Joseph Bankman and his work with California’s Ready Return pilot program. For those not into podcasts, a brief summary can be found here.

Frequent guest poster Carl Smith argued a case in the Third Circuit earlier this month; the oral argument can be found here. Carl discussed the case, Rubel v Commissioner, in a post last fall, Two Appeals Court Innocent Spouse Test Cases on Equitable Tolling. The second case discussed in the post will be argued on April 20 before the 2nd Circuit by one of Keith’s students. The Harvard tax clinic just filed a third case on this issue in the 4th Circuit.

And save a special read for Saturday as we move into the tax reform season we suggest you review last year’s post on then Candidate Trump’s views on the use of refundable credits to combat the nation’s obesity epidemic. The President responded with the following tweet: “Fake News. PT: SAD; no one has ever heard of those guys. Tax Prof wannabes. They hardly have any page views.”

 

Tax Expenditures and Complexity

I returned last week from a conference that focused on the challenges that tax agencies across the world face in administering tax systems. One part of our tax system stood out in comparison with other systems. While most systems rely in some part on tax agencies to administer tax laws that promote social goals in addition to raising revenue, IRS seems to be the champ in terms of administering social programs embedded in the tax laws.

The other day the Congressional Budget Office released a blog post summarizing tax expenditures. Whether a particular item in the Code is classified as an expenditure is subject to some debate, but the CBO defines the terms as an “array of exclusions, deductions, preferential rates, and credits that reduce revenues for any given level of tax rates in the individual, payroll, and corporate income tax systems.”

Like direct spending, tax expenditures promote certain activities (like home ownership) or benefit some classes of taxpayers or entities. CBO estimates that tax expenditures will reach around $1.5 trillion in 2017, or around half of all federal revenues.

As the CBO blog post notes, the top expenditures in terms of total revenues foregone are the following:

  1. The exclusion from workers’ taxable income of employers’ contributions for health care, health insurance premiums, and premiums for long-term care insurance;
  2. The exclusion of contributions to and the earnings of pension funds (minus pension benefits that are included in taxable income);
  3. Preferential tax rates on dividends and long-term capital gains;
  4. The deferral for profits earned abroad, which certain corporations may exclude from their taxable income until those profits are returned to the United States; and
  5. The deductions for state and local taxes (on nonbusiness income, sales, real estate, and personal property).

The CBO post and its link to recent Congressional testimony and an annual Joint Committee report discussing tax expenditures have more detail on these and others (like refundable credits, deductions for charitable contributions and home mortgage interest deductions).

The National Taxpayer Advocate, in her 2016 annual report has noted the complexity and burden that follows from many expenditures. Congress’ desire to target benefits to certain taxpayers or reward certain activities often is accompanied by complexity in terms of eligibility criteria. Not surprisingly, lobbyists can influence legislation in ways that are meant to hide the impact of provisions that favor certain industries or even specific taxpayers.

As Congress perhaps turns its attention to tax reform (though there seems to be many legislative balls in the air so reform is no sure thing), it would be wise for Congress to consider administrability and complexity in determining whether the IRS is the appropriate agency to be in charge of specific programs or benefits.

In this year’s annual report the NTA proposes that Congress take a “zero-based budgeting” approach that specificically calls on Congress to weigh burdens on taxpayers and the IRS:

The starting point for discussion would be a tax code without any exclusions or reductions in income or tax. A tax break or IRS-administered social program would be added back only if lawmakers decide, on balance, that the public policy benefits of running the provision or program through the tax code outweigh the tax complexity burden the provision creates for taxpayers and the IRS.  At the end of the exercise, tax rates can be set at whatever level is required to raise the amount of revenue that Congress determines is appropriate.

There are many specific targets for consideration if Congress is not up for the task of taking on wholesale reform. When one considers the array of education benefits and the hodgepodge of family status benefits embedded in the tax code it seems like a Congress intent on simplifying the lives of taxpayers and IRS would have plenty of places to start.