Chuck Berry, Cash, and Taxes

Copyright Missouri History Museum, Some Rights Reserved

By Sam Brunson

In the aftermath of Chuck Berry’s death on March 18, I learned that I’m way more familiar with his music than I had realized. I’ll confess that I never spent a lot of time thinking about Chuck Berry, but his songs (it turns out) were an accidental soundtrack to my growing up. My dad had two or three oldies stations programmed into the radio, and Berry’s music was ubiquitous on their playlists. And many songs I’m partial to have turned out to be his. (I’m thinking particularly of Nina Simone’s cover of “Brown-Eyed Handsome Man.”)

Still, I’m not a big enough fan to try to write about Berry on a tax blog. Or, rather, I wasn’t until last night, at the gym. As I listened to Sound Opinions, I learned that, like so many musicians, Berry had a run-in with the IRS. Continue reading “Chuck Berry, Cash, and Taxes”

Death, Taxes, and a Beach Read

51bm1qlqlzl-_sy344_bo1204203200_By: Leandra Lederman

Back in December 2011, I received a targeted mailing. It was the postcard below, which I received at the office. Tfullsizerender-1hus far, I haven’t found a Maurer colleague or tax friend who received this mailing. Some marketer apparently did his or her homework and identified me as someone with an interest in both tax and chick lit! I don’t get to read novels very often anymore, but this looked like exactly the kind of book I would enjoy. I even acted on the sticker on the reverse of the postcard, which said “A book makes a great holiday gift!” “Death, Taxes, and a French Manicure” was a great start to the Christmas list request I had recently received.

I received the book for Christmas and got hooked on the series. I’ve gotten through Book 10 so far. They’re a lot of fun. It never occurred to me to blog about them, though, until I read the first page of “Death, Taxes, and Cheap Sunglasses” while on a plane, and saw a link with tax issues I frequently write about. The opening paragraph reads:

“I slid my gun into my purse, grabbed my briefcase, and headed out to my car. Yep, tax season was in full swing once again, honest people scrambling to round up their receipts, hoping for a refund or at least to break even. As a taxpayer myself, I felt for them. But as far as tax cheats were concerned, I had no sympathy. The most recent annual report indicated that American individuals and corporations had underpaid their taxes by $450 billion. Not exactly chump change. That’s where I came in.”

I had just presented my latest tax compliance article, “Does Enforcement Crowd Out Voluntary Tax Compliance?” and here were tax gap figures showing up in a novel! “Death, Taxes, and Cheap Sunglasses” was published in 2015, when the annual federal tax gap was in fact estimated at $450 billion. (The updated tax gap figures, released in April 2016, and which I blogged about previously, are available here.)  Continue reading “Death, Taxes, and a Beach Read”

TaxSlayer: Technically Acceptable for VITA Returns?

Adam C. Mansfield
Staff Attorney, Legal Services for Students, University of Kansas

The first time I logged into the TaxSlayer training lab I knew that this tax season was going to be a problem. It became obvious when I typed “1040NR” into the form lookup box in the upper left corner of the TaxSlayer screen and the search came up empty. Next I tried “1042-S” and “8843.” Same result. Now I’m not some old fuddy-duddy that doesn’t like change.  I love working with new gadgets, software, or operating systems—as long as it does what it is supposed to do.

I work for Legal Services for Students at the University of Kansas. The main target population for our Volunteer Income Tax Assistance (VITA) grant is nonresident alien (NRA) students and scholars.  Every tax year we help hundreds of international students and researchers determine their residency status, calculate any applicable tax treaty benefits, and prepare their federal and state returns. In the past, TaxWise has worked just fine for this purpose.  I had no problem preparing a return for the student from Bangladesh who had income in both Kansas and Missouri or the Chinese student who has multiple 1042-S forms for scholarships and awards but still needs to apply treaty benefits to his or her wages. This year, TaxSlayer is just not up to the task.

I feel bad for Whitley, a member of TaxSlayer’s customer support squad, who is left with the task of informing me that they are aware of the “issue” that prevents their software from properly applying and reporting a tax treaty benefit on a nonresident alien return.  She proceeded to tell me that they could only handle “simple” state returns in conjunction with an NRA return.  This means that I can’t make any adjustments to the state return in order to properly apportion income. They are “working diligently to iron out the wrinkles.”  Not being able to prepare a pretty basic nonresident alien return is a little more than just a wrinkle. Continue reading “TaxSlayer: Technically Acceptable for VITA Returns?”

When Leaks Drive Tax Law (a.k.a. our new paper!)

Shu-Yi Oei

Diane Ring and I just posted our new article, Leak-Driven Law, on SSRN. I had previously blogged about this paper as part of Leandra Lederman’s 2017 Mini-Symposium on Tax Enforcement and Administration, The abstract is here:

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially beneficial from an economic welfare perspective. This Article argues, however, that the conventional wisdom is too simplistic. In certain circumstances, leak-driven lawmaking may in fact produce negative social welfare outcomes. Agenda-setting behaviors of leakers and media organizations, inefficiencies in data transmission, suboptimally designed legislation, and unanticipated behavioral responses by enforcement-elastic taxpayers are all factors that may reduce social welfare in the aftermath of a tax leak.

This Article examines the potential welfare outcomes of leak-driven lawmaking and identifies predictable drivers that may affect those outcomes. It provides suggestions and cautions for making tax law, after a leak, in order to best tap into the benefits of leaks while managing their pitfalls.

In this paper, we wanted to explore how leaks of taxpayer data in the offshore context have shaped international tax law and policy, both in the US and other countries. We especially were interested in the possibility that—while leaks might appear useful on the surface from a tax enforcement and informational standpoint—there are unexplored pitfalls and downsides to relying on leaks to direct lawmaking and policy priorities.

In the non-tax world, of course, leaks have suddenly become very salient, in terms of both their usefulness and their dangers. But (non-tax lurkers take note!) tax law has been dealing with leaks of taxpayer information and what they mean for tax enforcement for at least the past ten years. Of course, tax leaks have some distinctive characteristics that make them different from other types of leaks. For example, the tax leaks that are the subject of this paper are usually (though not invariably) leaks of private taxpayer data, rather than leaks about governments from government sources.

We do think that the framework we introduce in our paper for analyzing the upsides and downsides of leak-driven lawmaking can be applied to explore how non-tax leaks and reactions to them may be socially beneficial but could also lead to less than ideal results. In both tax and in other fields, the meta-issue is not just how governments and private actors can use leaked information to sanction bad behaviors, make decisions, or design laws. Rather, the issue is how the actions and responses of leakers, governments, journalists, international organizations and the public work together to create and promote certain outcomes. Once we understand the underlying dynamics, then we can consider how the outcomes they create should be evaluated, supported, or resisted.

If you’re working on leak-related scholarship in either tax or other fields, we’d love to chat.

The (Near) Future of Treasury Regulations

cfrToday’s Tax Notes reports[fn1] that the IRS has announced that it will not release pretty much any new formal guidance (including revenue rulings and revenue procedures) for the foreseeable future.[fn2]

Why not? A confluence of an Executive Order and a January 20 memorandum. The EO, “Reducing Regulation and Controlling Regulatory Cost,” requires that, for every new regulation issued, two existing regulations be eliminated.

The January 20 memorandum further prohibits agencies from sending regulations to the Federal Register until they’ve been reviewed by an agency or department head appointed by Trump. Continue reading “The (Near) Future of Treasury Regulations”

Privacy Is Dead: Crowdsourcing Tax Enforcement

Sam Brunson
Professor, Loyola University Chicago School of Law

Periodically, the IRS estimates the tax gap (that is, the difference between taxes due and taxes owed). For the years 2008 through 2010, the IRS estimates the annual tax gap was about $458 billion. After including late payments and amounts collected through IRS enforcement efforts, the annual tax gap diminished by $52 billion a year, leaving a $406 billion tax gap in each of those three years.

The $406 billion tax gap is equivalent to just over 16 percent of taxes due. And the IRS is unlikely to significantly close this gap going forward. While the has proven remarkably efficient at collecting revenue—in fiscal year 2015, it collected $3.3 trillion on a budget of just under $11 billion—Congress has been cutting the IRS budget for the last decade or more, while, at the same time, assigning the IRS more responsibilities. In spite of its efficiency, the IRS must do more with less, and its ability to find taxpayers who do not pay their taxes is thus bound to suffer.

These constraints are reflected in the data about IRS enforcement activities: in 2015, the IRS audited about 0.8 percent of individual tax returns and 1.3 percent of corporate income tax returns. Not only does the IRS audit very few returns, but the number has been falling: in 2010, the IRS audited about 1.1 percent of all individual returns.

There is no easy solution to the tax gap, or to the audit rate. Increasing IRS funding, or decreasing its non-revenue-raising responsibilities, would perhaps be the most effective fix, but that currently appears unrealistic. In a 2015 Pew survey, 48 percent of Americans had an unfavorable view of the IRS, up from 40 percent five years earlier. And Republicans—who will control both the Executive and the Legislative branches of the federal government—score significant political points campaigning against the IRS. So properly funding the IRS appears unlikely in the near future.

An alternative solution, then, would be to reduce the costs to the IRS of enforcement. One way to reduce those costs? Crowdsource enforcement.

A Brief History of Tax Return Disclosure

Crowdsourcing tax enforcement is an old, albeit out-of-favor, idea. In fact, it was not until 1976 that Congress definitively ended more than a century’s experimentation with deputizing the public to help enforce the tax law. Beginning in 1861, the Civil War income tax law provided for public access to tax returns. To ensure that public access (and titillate their readers), newspapers published the returns of prominent citizens. This public disclosure ended when the income tax was allowed to expire, but Congress experimented anew with it in each successive iteration of the federal income tax.

Congress had one principal goal in publicizing tax returns: ensuring that taxpayers paid their taxes. Essentially, public access to taxpayers’ returns allowed the government to crowdsource enforcement—people would notice, for example, that their neighbor had paid suspiciously little in taxes. Knowing that the Panopticon was watching their returns, taxpayers would have every incentive to pay their full tax liabilities.

Not everybody appreciated this mandatory disclosure of tax returns, of course. From the start, public disclosure faced significant opposition. Every time Congress reintroduced public disclosure of tax returns, opponents of disclosure argued that such forced disclosure was both un-American and intrusive. According to critics, the publicity not only violated taxpayers’ privacy, but it might actually endanger taxpayers, exposing their wealth and addresses to criminals and kidnappers. Even without danger, the benefits, according to critics, were limited to individuals’ indulging their idle curiosity.

Moving to Privacy

By 1976, the public disclosure of tax returns had been severely curtailed. In spite of being “public records,” they were no longer generally available to newspapers or the public at large; rather, they were open to inspection by the general public under regulations approved by the president or pursuant to presidential order.

Federal agencies had more access to tax returns than the general public, but even federal agencies could only see them on a case-by-case basis, after providing a written request. In the 1970s, though, in the wake of Watergate and fears about the “proliferation of computerized data banks,” the government began to strengthen citizens’ privacy rights. The 1976 Tax Reform Act cemented those privacy rights, broadly forbidding government employees from disclosing taxpayers’ returns or return information.

Over the next two decades, privacy became such a central principle of American society that, in 1993, Professor Richard Pomp wrote that it was “unthinkable for proposals” for public disclosure of tax returns to be “taken seriously.” Less than a decade later, though, in the wake of Enron’s collapse, legislators, academics, policymakers, and the media were seriously discussing the implications of making corporate tax returns public.

A Post-Privacy World?

A decade and a half after Enron’s collapse, the table appears perfectly set for returning to public disclosure of tax returns. Earlier privacy concerns seem irrelevant, if not quaint, in today’s world. For many individuals, the public already has access to information about their salaries. At least half of the states maintain public databases of state employee salaries.[fn1] Securities and Exchange Commission rules require publicly-traded corporations to disclose the compensation of its five most highly-paid employees. And Forbes lists the income of the most highly-paid musicians, actors, and athletes, as well as its estimates of the net worth of the world’s wealthiest individuals.

Beyond this broad array of information already available, today’s privacy situation is almost the polar opposite of the post-Watergate world. While exponentially more personal information is stored on computer servers today than 40 years ago, Americans have largely put that information online voluntarily. Technology entrepreneurs argue that social norms have moved away from privacy. And while the entrepreneurs may have financial motivations for arguing that the norms have changed, they are not alone in that view. Many experts believe that within another decade, much of what we consider private today will no longer be considered private.

It may not even require movement with social norms to arrive at a post-privacy world with respect to tax returns. The IRS, tax, and accounting firms have, until now, done an admirable job keeping returns private. In contravention of decades of precedent, president-elect Donald Trump refused to release his tax returns. In spite of the pressure, only three pages of (state) tax returns were ever leaked. But the fact that he faced no leaked returns does not mean that they will not, in the future, be leaked: the extensive Panama Papers leaks suggest that no data—even private law firm data—is necessarily safe from public scrutiny. In fact, hackers may have accessed information on more than 700,000 taxpayers in an IRS data breach.

Of course, the fact that taxpayer information could be compromised, and that notions of privacy may change significantly in the future, do not present an affirmative case for requiring all taxpayers to disclose their tax returns.

Consequences of Crowdsourcing Enforcement

Requiring the public disclosure of tax returns has at least two beneficial results, from a tax compliance perspective. At the ex ante level, it forces taxpayers to think about how aggressive they want to be. When tax returns are private, only the taxpayer, her advisors, and maybe the IRS (if hers is one of the 0.8 percent of returns it audits) will know how she structured her tax life. She can thus maintain a public image as a tax-compliant citizen, even while pushing the boundaries. If, however, she knows that her tax returns will be available to the public, she is forced to internalize the non-monetary costs of her tax planning. Perhaps saving money by paying less in taxes is more important to her than being seen by her peers as complying with the tax law, in which case she may continue to take aggressive positions. To the extent there is a social norm of tax compliance, however, knowing that her peers will have access to her tax returns may cause a taxpayer to be more conservative.

At the ex post level, requiring taxpayers to publicly disclose their tax returns reduces the IRS’s search costs as it enforces the tax law. It would, of course, continue to use its matching system and other techniques for determining which returns to audit, but it would also have hundreds or thousands of additional eyes scrutinizing tax returns. Friends, neighbors, competitors, and former spouses may all have some interest in seeing tax returns, and potentially in reporting bad behavior.

This ex post crowdsourced auditing does have potential problems, of course. It would increase the noise, as presumably some percentage of tips would be false positives. And if it turns out that significant numbers of taxpayers are taking aggressive tax positions, it may encourage other similarly-situated taxpayers to take similarly aggressive positions.  In both cases, though, the sheer quantity of data may correct for the problem. The IRS may not want to act on every tip, but if it sees a pattern of behavior from a number of taxpayers, it may decide to look closely at returns that engage in that behavior. And if the IRS were to strategically target aggressive positions taken by a number of taxpayers, that could discourage other taxpayers from following suit.

Two Final Thoughts

Administratively, requiring disclosure would be tremendously easy. In 2015, almost 88 percent of individual returns were filed electronically. With electronically-filed returns, the IRS could automatically redact certain sensitive information (for example, social security numbers and, perhaps, names of dependents) and instantly make the returns available online. The 12 percent of returns filed on paper would take more work to redact, but the IRS could require taxpayers who filed on paper to file an unredacted and a redacted version of their returns.

But culturally, it would be hard. Although we may be approaching a post-privacy world, we are not there yet. Although people freely post all kinds of personal information to the internet, few people voluntarily publicize their tax returns, and mandatory disclosure could still face significant pushback.

As an intermediate step toward full publicity, then, perhaps the tax law should make such disclosure option, but offer a carrot to those who opt in. For example, such a program could provide that those who disclose their tax returns will be protected from penalties for a certain number of years.


[fn] I didn’t do an exhaustive search, but even a quick Google search found me databases for these states: Arkansas; California; Connecticut; Florida; Illinois; Indiana; Iowa; Kentucky; Maryland; Massachusetts; Minnesota; Missouri; Montana; New York; North Carolina; Ohio; Oklahoma; Pennsylvania; South Carolina; Tennessee; Texas; Utah; Virginia; Washington; Wisconsin.

Leak-Driven Lawmaking

Shu-Yi Oei
Hoffman F. Fuller Professor of Law, Tulane Law School

Over the past decade, a steady drip of tax leaks has begun to exert an extraordinary influence on how international tax laws and policies are made. The Panama Papers and Bahamas leaks are the most recent examples, but they are only the tip of the leaky iceberg. Other leaks include (in roughly chronological order) the UBS and LGT leaks; the Julius Baer leak; HSBC “SwissLeaks”; the British Havens leaks; and the LuxLeaks scandal.

These tax leaks have revealed the offshore financial holdings and tax evasion and avoidance practices of various taxpayers, financial institutions, and tax havens. In so doing, they have been valuable in correcting long-standing informational asymmetries between taxing authorities and taxpayers with respect to these activities. Spurred by leaked data, governments and taxing authorities around the world have gone about punishing taxpayers and their advisers, recouping revenues from offshore tax evasion, enacting new domestic laws, and signing multilateral agreements that create greater transparency and exchange of financial information between countries.

Thus, it is clear that leaked data has started to be a significant driver in how countries conduct cross-border tax enforcement and make international tax law and policy. But using leaks to direct and formulate tax policy responses comes with some potentially serious pitfalls.

In a new paper—coming soon to an SSRN near you[fn.1]Diane Ring and I explore the social welfare effects of leak-driven lawmaking. Our argument, very generally, is that while data leaks can be socially beneficial by virtue of the behavioral responses they trigger and the enforcement-related laws and policies generated in their wake, there are under-appreciated downside hazards and costs to relying on leaked data in deterring tax evasion and making tax policy.

Continue reading “Leak-Driven Lawmaking”

Trump’s Emoluments Tax Problem, Part Two

By: Sam Brunson

A week and a half ago, David entered the debate about Trump’s potential problem with the Emoluments Clause. He pointed out that, whether or not Trump’s business interests would run afoul of the Emoluments Clause, any divestiture of assets would probably trigger a significant tax liability. (We don’t know exactly what that would be, but given that many of his assets are real property interests, he has probably been depreciating them, so even if they haven’t appreciated in value, his adjusted basis is probably significantly lower than the fair market value of the assets. So when he sells them, the sale will probably trigger a significant taxable gain.)  Continue reading “Trump’s Emoluments Tax Problem, Part Two”

The Art of the (Budget) Deal

By Daniel Hemel and David Herzig

Who Holds the Trump Card on Reconciliation?

Republicans on Capitol Hill are reportedly planning to use the filibuster-proof budget reconciliation process to repeal the Affordable Care Act and overhaul the tax code. Against that background, Sam Wice says that “the most powerful person in America” in 2017 will be Senate Parliamentarian Elizabeth MacDonough, the nonpartisan official who will “determine” how much of their agenda Republicans can pass through reconciliation. This, of course, is an exaggeration: like it or not, the most powerful person in America in 2017 will be Donald J. Trump, who will wield all the power of the imperial presidency. But Wice’s post helpfully directs our attention to the budget reconciliation process, the rules of which quite likely will determine whether the Republican leadership on Capitol Hill can repeal the ACA and reform the tax laws.

Yet while one should not underestimate the importance of reconciliation, one should also not overestimate the power of the Parliamentarian in the reconciliation process. As a formal matter, the Parliamentarian’s role is advisory; and as a practical matter, the Parliamentarian has little say over significant aspects of reconciliation. Other actors—most notably, Senate Budget Committee Chairman Mike Enzi (R-Wy.)—wield at least as much influence as the Parliamentarian. Most importantly, Enzi—not MacDonough—will determine whether the provisions in any reconciliation bill violate various rules against deficit-increasing legislation being passed via reconciliation. And unlike the Parliamentarian, the Budget Committee Chairman is very hard to fire.

Reconciliation measures can begin in either or both chambers. However, since the ultimate vote on the budget measure occurs in the Senate, we’ll focus on the Senate side of the reconciliation process for purposes of this discussion. On the House side, the Rules Committee Chair and the Budget Committee Chair will wield outsized influence as well. We expect Pete Sessions (R-Tex.) to stay on as House Rules Committee Chair; as for the House Budget Committee Chair, the race is on for a replacement to Tom Price, the Georgia Republican recently tapped as Trump’s Health and Human Services Secretary.

To understand why the Budget Committee Chair is as powerful as he is, a bit of background on reconciliation may be helpful. Continue reading “The Art of the (Budget) Deal”

Cooking The Books Podcast on Trump’s Taxes

By: David J. Herzig

Today Pulitzer Prize winning journalist, David Cay Johnston, Phil Hackney, and I got together for a 30 minute podcast discussion regarding the recent NY Times follow-up article about Mr. Trump’s $916 million tax loss (“NOL”).

Here is link if you missed hyper-link above: http://share.sparemin.com/recording-5131

The topics ranged from the current tax reporting regarding Mr. Trump’s 1990s tax returns to the Trump Foundation to potential criminal sanctions against Mr. Trump.  It was fantastic to be a part of and I hope everyone listens.

Continue reading “Cooking The Books Podcast on Trump’s Taxes”