For more than a year, I have been discussing the potential that Oregon lawmakers will pass a corporate gross receipts tax. On May 26, 2017, we discussed recent events that would lead a reasonable person to believe that the dream of a corporate gross receipts tax was definitely alive and well in Oregon. In fact, the passage of it certainly appeared to be gaining steam in the legislature. Maybe that is not the case – at least for now.
Late yesterday, Oregon Democrats announced that they are abandoning any efforts to enact a corporate gross receipts tax this year as they have been unable to garner adequate legislative support to pass such a measure. Article IV, Section 25 of the Oregon Constitution requires a three-fifths majority of all members elected to each house of the legislative assembly to pass bills for raising revenue and that the presiding officer of each respective house sign the bill or resolution. So, it appears a three-fifths vote in favor of a corporate receipts tax in each the house and the senate is not currently attainable.
After Oregon Measure 97’s drubbing at the polls in November 2016, for many, it suggested the quashing of any notion of a gross receipts tax in the state. For Oregon Senator Mark Hass (D) and Representative Mark Johnson (R), it got them thinking creatively about alternatives to such an approach, spawning Legislative Concept 3548, and subsequently, the births of Senate Joint Resolution 41 and House Bill 2230. Both resemble the now defunct Measure 97—and in the same way can be viewed as a hidden sales tax, essentially. While finding a palatable path to reform is certainly a tall order, the new tax proposals could pose a serious threat to the Oregon business community and present a thorny solution to addressing the state’s budgetary needs.
In an April 2017 State Tax Notes article, titled “The Idea That Would Not Die: Beyond Oregon’s Measure 97,” my colleague Michelle DeLappe and I discuss these new Oregon tax proposals and their key differences with Measure 97, the benefits and shortcomings of a gross receipts tax, and the likelihood of a gross receipts tax in Oregon becoming a reality.
As I reported previously, Oregon Measure 97 was overwhelmingly defeated by voters in the state’s general election this past November. It certainly appeared that the voters spoke loudly and clearly on November 8, 2016, when they voted to defeat the ill-designed amendments to the Oregon corporate minimum tax regime contained in Measure 97. Flaws in the legislation included:
- Measure 97 contained a corporate alternative tax based on Oregon gross receipts – a tax that has no relationship to profits.
- Measure 97 proposed a corporate alternative tax applicable only to C corporations. S corporations, entities taxed as partnerships and Oregon benefit companies would have escaped the proposed tax altogether.
- While Oregon benefit companies would have escaped the proposed tax, non-Oregon benefit companies were to be subject to the tax. As a result, Measure 97 was clearly in conflict with the Interstate Commerce Clause.
Enter Legislative Concept 3548
On February 13, 2017, Oregon Senate Finance Committee Chairman Mark Hass (D) requested that Legislative Concept 3548 (“LC 3548”) be released. LC 3548 is a legislative referendum to amend the Oregon Constitution in order to create a “Business Privilege Tax” based on gross receipts. It looks a lot like Measure 97. There are, however, some key differences, including:
The proposed $3 billion per year tax-raising bill, Oregon Measure 97, was defeated yesterday by a 59% to 41% margin. The fight was long and bloody. Media reports that opponents and proponents together spent more than $42 million in their campaigns surrounding the tax bill.
So, What Now?
The defeat of Measure 97 eliminates the proposed 2.5% gross receipts alternative corporate tax applicable to C Corporations with annual Oregon gross receipts over $25 million. Oregon C Corporations, however, are still faced with a minimum tax based on Oregon gross receipts. The minimum tax applicable to Oregon’s C Corporations is based on gross revenues as follows:
C Corporations with Oregon annual revenues greater than $25 million may face a new minimum tax obligation – 2.5 percent of the excess – if Measure 97 passes. If a business falls within this category, there may be ways to mitigate its impact. The time to start planning, however, is now.
Oregon taxes corporations under an excise tax regime. The Oregon corporate excise tax regime was adopted in 1929. The original legislation included what is commonly called a “minimum tax” provision. In accordance with this provision, corporations subject to the Oregon excise tax are required to pay the greater of the tax computed under the regular corporate excise tax provision or the tax computed under the “minimum tax” provision. Accordingly, the “minimum tax” is an “alternative” tax; it is not an “additional” tax as many commentators have recently asserted.
Originally, the Oregon corporate “minimum tax” was a fixed amount – $25. As a result of the lobbying efforts of Oregon businesses, the “minimum tax” was eventually reduced to $10, where it remained for almost 80 years.
In 2010, Oregon voters dramatically changed the corporate “minimum tax” landscape with the passage of Measure 67. The corporate “minimum tax” (beginning with the 2009 tax year), is no longer a fixed amount. Rather, it is now based on Oregon sales (gross revenues). The “minimum tax” is now:
|Oregon Sales||Minimum Tax|
|$500,000 to $1 million||$500|
|$1 million to $2 million||$1,000|
|$2 million to $3 million||$1,500|
|$3 million to $5 million||$2,000|
|$5 million to $7 million||$4,000|
|$7 million to $10 million||$7,500|
|$10 million to $25 million||$15,000|
|$25 million to $50 million||$30,000|
|$50 million to $75 million||$50,000|
|$75 million to $100 million||$75,000|
|$100 million or more||$100,000|
S corporations are exempt from the alternative graduated tax system. Instead, they are still subject to a fixed amount “minimum tax,” which is currently $150.
As an example, under the current corporate “minimum tax” provision, a corporation with Oregon gross sales of $150 million, but which, after allowable deductions, has a net operating loss of $25,000, would be subject to a minimum tax of $100,000. Many corporations operating in Oregon, which traditionally have small profit margins (i.e., high gross sales, but low net income), found themselves (after Measure 67 was passed) with large tax bills and little or no money to pay the taxes. Three possible solutions for these businesses exist:
- Make an S corporation election (if eligible);
- Change the entity to a LLC taxed as a partnership (if the tax cost of conversion is palatable); or
- Move all business operations and sales outside of Oregon to a more tax-friendly jurisdiction.
Several corporations in this predicament have adopted one of these solutions.
Initiative Petition 28/ Measure 97
Measure 97 will be presented to Oregon voters this November. If it receives voter approval, it will amend the “minimum tax” in two major ways:
- The “minimum tax” will remain the same for corporations with Oregon sales of $25 million or less. For corporations with Oregon sales above $25 million, however, the “minimum tax” (rather than being fixed) will be $30,001, PLUS 2.5 percent of the excess over $25 million.
- The petition specifically provides that “legally formed and registered benefit companies” as defined in ORS 60.750 will not be subject to the higher “minimum tax.” Rather, they will continue to be subject to the pre-Measure 97 “minimum tax” regime (as discussed above). Caveat: The exception, as drafted, appears to only apply to Oregon benefit companies; it does not extend to foreign benefit companies authorized to do business in Oregon.
Measure 97 expressly provides that all increased tax revenues attributable to the new law will be used to fund education, healthcare and senior citizen programs. As a result, many commentators believe the initiative has great voter appeal and will likely be approved by voters. If Measure 97 is passed, it is slated to raise over $6 billion in additional tax revenue per biennium.
As a general rule, in accordance with IRC § 162(a), taxpayers are allowed to deduct, for federal income tax purposes, all of the ordinary and necessary expenses they paid or incurred during the taxable year in carrying on a trade or business. There are, however, numerous exceptions to this general rule. One exception is found in IRC § 280E. It provides:
“No deduction or credit shall be allowed for any payment paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any state in which such trade or business is conducted.”
Congress enacted IRC § 280E as part of the Tax Equity and Fiscal Responsibility Act of 1982, in part, to support the government’s campaign to curb illegal drug trafficking. Even though several states have now legalized medical and/or recreational marijuana, IRC § 280E may come into play. The sale or distribution of marijuana is still a crime under federal law. The impact of IRC § 280E is to limit the taxpayer’s business deductions to the cost of goods sold.
On October 22, 2015, the U.S. Tax Court issued its opinion in Canna Care, Inc. v. Commissioner, T.C. Memo 2015-206. In that case, Judge Haines was presented with a California taxpayer that is in the business of selling medical marijuana, an activity that is legal under California law.
The facts of this case are interesting. Bryan and Lanette Davies, facing significant financial setbacks and hefty educational costs for their six (6) children, turned to faith for a solution. After “much prayer,” Mr. Davies concluded that God wanted him to start a medical marijuana business. Unfortunately, it does not appear that he consulted with God or a qualified tax advisor about the tax implications of this new business before he and his wife embarked upon the activity.
The good news for the Davies is that their business blossomed. In fact, they employ ten (10) people in the business and have enjoyed financial success. They timely filed state and federal income tax returns, reported income and paid, what they believed, was the proper amount of taxes. The bad news for the Davies is the fact that the IRS did not agree with their computation of the tax liability.
The IRS issued a notice of deficiency. Not able to resolve the matter at IRS appeals, the Davies found themselves in the U.S. Tax Court. The sole issue in the case was whether the taxpayers’ business deductions were properly disallowed by the Service under IRC § 280E.
To no avail, the Davies presented numerous arguments as to why marijuana should no longer be a controlled schedule I substance. They also asserted that their new business created employment opportunities for others, cured their family’s financial woes, and allowed them to participate in civic and charitable activities.
Judge Haines quickly dismissed the Davies’ arguments, concluding the sale of marijuana is prohibited under federal law—marijuana is a schedule I controlled substance. Accordingly, IRC § 280E prevents taxpayers from deducting the expenses incurred in connection with such activity (other than the cost of goods sold).
Faced with a tax assessment exceeding $800,000, the Davies argued that their business does more than sell marijuana. In fact, it sells books, shirts and other items related to medical marijuana. Citing other cases, they argued that their expenses should be apportioned among the various activities (i.e., the sale of medical marijuana and the sale of other items), and that they should be able to deduct the expenses related to the sale of the non-marijuana items.
The court explained that, where a taxpayer is involved in more than one distinct trade or business, it may be able to apportion its ordinary, necessary and reasonable expenses among the different trades or businesses. Unfortunately for the Davies, they could not show that they operated two (2) or more trades or businesses. In this case, the facts indicated that the sale of shirts, books and other items was merely incidental to the sale of medical marijuana. There was not more than one (1) trade or business.
PRACTICE ALERT: Whether more than one (1) trade or business exists is a question of facts and circumstances. Under CHAMP v. Commissioner, 128 T.C. 182 (2007), if a taxpayer operates more than one (1) distinct trade or business, it may be allowed to apportion its expenses among the trades or businesses. If only one (1) of the businesses is impacted by IRC § 280E, only the expenses relating thereto should be denied. The key is establishing that more than one (1) trade or business exists, and reasonably be able to apportion the expenses among those trades or businesses. Keeping separate books and records, and accounting for business expenses in a separate manner, is likely the best approach. The more separation and distinction among the businesses the better the chances of showing more than one (1) trade or business exists. Maintaining separate entities or business names for each activity may be warranted.
The Davies lost the case and are now faced with a hefty tax bill. Unless IRC § 280E is amended, taxpayers involved in the sale of medical and/or recreational marijuana, despite state legalization, will be presented with the same dilemma faced by the Davies in Canna Care, Inc. v. Commissioner.
The goodwill of a business can never be exchanged for the goodwill of another business. Goodwill is not like kind property. Treasury Regulation 1.1031(a)-2(c)(2) makes that crystal clear, providing:
The goodwill or going concern value of a business is not of a like kind to the goodwill or going concern value of another business.
Deseret Management Corp. v. Commissioner, 112 AFTR 2d 2013-5530 (Ct. Fed. Cl. 2013), illustrates the fact that goodwill may exist and be intermixed with business assets being transferred in an exchange under IRC Section 1031. The existence of goodwill creates taxable boot.
Whether goodwill exists is a question of facts and circumstances; the possible existence of goodwill cannot be ignored. The issue comes down to expert valuation testimony -- does it exist and what value should be assigned to it?
In the Deseret Management Corp. case, the taxpayer exchanged the assets of a radio station, including the FCC license, for the assets of another radio station. It followed all of the personal property grouping rules. The Service disputed whether goodwill was properly accounted for and the value assigned to goodwill, which would be treated as taxable boot.
The value of the assets being exchanged was $185 million. The parties stipulated that the hard assets had a value of a little over $8.2 million. The taxpayer argued that the remaining $176.8 million or so was mostly, if not all, properly allocable to the FCC license. The Service, on the other hand, asserted that a big chunk of the $176.8 million should be allocated to goodwill or going concern value.
A battle of the experts ensued. Fortunately, for the taxpayer, its experts were more credible than the government’s experts. Only a small amount of the value attributable to the assets was found to account for goodwill. In fact, the court concluded the amount of goodwill or going concern value was “at most, negligible.”
The moral to the story is simple. In an exchange of business assets, you need to carefully consider whether goodwill or going concern value exists. An otherwise tax deferred exchange may be taxable. Careful thought is required. Also, a qualified appraisal is warranted in order to avoid unwanted surprises down the road.
Deseret Management Corp. serves as a good reminder that goodwill or going concern value could be lurking among the business assets being transferred in a Section 1031 exchange.
I was recently interviewed by Ama Sarfo, a reporter for Law360 (a national legal publication of LexisNexis). I discussed some of the audit risks Subchapter S corporations and their shareholders face these days. Below is an excerpt of the Article.
Audit Risk: It's estimated that the U.S. has a $450 billion gap between taxes that are owed to the government and taxes that are actually paid on time. This staggering number, despite significant budgetary constraints, has put taxpayer compliance back in the forefront for the IRS. In the 1990s, the Service was forced to move its focus from the audit function to information and technology as its systems were terribly out of date. Taxpayers need to be on their game because the IRS is back in the audit business, and noncompliance penalties are stronger than they've ever been before.
Compensation Documentation: Subchapter S corporation exams often lead to a review of shareholder compensation. The focus is generally on whether the compensation is unreasonably low — an amorphous label that lacks a uniform standard within the courts and instead depends on questions of facts and circumstances. I advise S corporation clients, among other things, to annually document their compensation decisions and their rationale for establishing shareholder employee compensation. This would include developing a compensation methodology based on qualifications, nature of work and information about what other like companies pay similar employees. It's an art.
Loss Deductions: Shareholder basis calculations used for the purpose of absorbing losses passed through from the corporation are often reviewed in S corporation examinations. S corporations aren't required to track and report shareholder basis on IRS Form K-1 issued to shareholders each year. According to IRS studies, in a large number of cases, errors are made in this computation (it is usually user error). So, the IRS is closely scrutinizing this issue in its audits. Don’t be surprised if, in the future, S corporations are required to track and report basis calculations on IRS Form K-1, just like partnerships are required to track and report capital account changes.
The law governing S corporations is ever changing. As tax practitioners, we need to keep abreast of these developments. I try to report important developments in this area of tax law on the blog.
If you would like to read the complete Article, it is available at www.Law360.com.
Please join me for the NYU 73RD Institute on Federal Taxation. This year’s Institute will be held in San Diego at the Hotel Del Coronado November 16 – 21, and in New York City at the Grand Hyatt New York October 19 – 24. Please see the attached brochure. The coverage of tax topics is both timely and broad. This year’s presentations will cover topics in the areas of: executive compensation and employee benefits; partnerships and LLCs; corporate tax; closely held businesses; and trusts and estates. What is so terrific about the Institute, in addition to a wonderful faculty and the interesting current presentation topics, you can choose the presentations you want to attend. In other words, you can pick and choose the topics that relate to your tax practice.
This is my second time speaking at the Institute. My topic this year is: "Developments In The World Of S Corporations." I plan to deliver a White Paper that will provide attendees with an historic overview of Subchapter S and a look through a crystal ball at the future of Subchapter S, including a review of the recent cases, rulings and legislative proposals impacting Subchapter S.
I hope to see you in either San Diego or New York.
When tax advisors fail to follow the rules, it tarnishes our profession. The bad behavior may subject them to discipline by the body governing their practice, the Office of Professional Responsibility and/or the criminal justice system.
Discipline may come in many flavors, depending upon the severity of the misconduct. Sanctions generally consist of censureship, suspension, disbarment, financial penalties and imprisonment.
The stakes are high. Tax advisors and their firms need to know and follow the rules, and implement systems to ensure compliance by the members of their firms.
Effective June 30, 2005, Treasury issued final regulations amending Circular 230 (“2005 Regulations”). The 2005 Regulations were specifically aimed at two goals:
- Deterring taxpayers from engaging in abusive transactions by limited or eliminating their ability to avoid penalties via inappropriate reliance on advice of tax advisors; and
- Preventing unscrupulous tax advisors and promoters from marketing abusive transactions and tax products to taxpayers based upon opinions that failed to adequately consider the law and the facts.
After the 2005 Regulations were issued, Treasury continued tinkering with the regulations to refine its approach, keenly keeping focus on these two goals. Accordingly, we have seen numerous refinements to Circular 230 in the past nine (9) years, including:
- Amendments to the 2005 Regulations published on May 19, 2005;
- Broadened authority granted by lawmakers to Treasury to expand standards relating to written advice on October 22, 2004, with the passage of the American Jobs Creation Act of 2004 (“AJCA”). In addition, the AJCA gave Treasury authority to impose monetary penalties against tax advisors who violate Circular 230;
- Amendments to Circular 230 published on February 6, 2006, in proposed form, adopting, among other things, monetary penalties for Circular 230 noncompliance. These regulations were finalized, effective September 26, 2007; and
- Amendments to the written advice provisions of Circular 230 published on October 1, 2012 in proposed form. These amendments were finalized on June 14, 2014.
Until 2005, Circular 230 was untouched for almost two decades. An enormous storm awoke Treasury from a deep sleep, causing a loud roar to permeate among lawmakers, the IRS, Treasury and the tax community. The result was the adoption of rules aimed at achieving the two goals set forth above.
The ultimate cause of the storm was the broad sweeping allegations of fraud and deception in the accounting and law professions which we saw in the early part of this millennium, including scandals involving ENRON, Global Crossing, imClone, WorldCom, Qwest, Tyco, HealthSouth and Aldelphia. Further feeding the storm were the black clouds created by the collapse of Arthur Andersen and the financial penalties assessed against and the practice limitations imposed upon KPMG. Last, but certainly not least, the investigations and lawsuits against tax advisors (and their firms) for developing and marketing abusive tax shelters, including the investigations and lawsuits leading to the demise of the large law firm of Jenkens & Gilchrist (“Jenkens”), added to these dark times.
The Demise of a Law Firm
In the early 1990s, Jenkens was a midsize law firm based out of Dallas, Texas. Like many law firms, it had grandiose expansion plans, including hiring lateral attorneys and opening offices beyond Texas. As the plans were implemented, the firm’s increasing focus became raising the profits per partner.
In 1998, Jenkens successfully recruited Chicago tax attorney Paul Daugerdas (“Daugerdas”). Daugerdas was not a rookie tax attorney. He had been a partner with Arthur Andersen and later chaired the tax practice in the Chicago office of law firm Altheimer & Gray. With Daugerdas’s help, the Jenkens tax department grew exponentially and the profits from his tax shelter practice soared to record heights. The firm’s management appeared enthralled with its growth and new-found profit achievements, especially the huge revenues generated by Daugerdas and his practice.
Unfortunately, it was too late when the firm finally decided to put an end to the tax shelter business. According to the government, it ran a 10-year scheme that created $8 billion in tax deductions and over $1 billion in losses, all of which it alleged were improper. After being audited by the IRS and losing the significant deductions, clients eventually sued the firm, claiming the tax shelters were fraudulent. At that time, the government began significant investigations into the firm and its practices. Unable to withstand the stress and financial strain from the client claims and the government’s investigation which resulted in a penalty assessment exceeding $75 million, the firm eventually closed its doors.
On June 9, 2009, at least seven (7) individuals were indicted on criminal charges, including Daugerdas, some of his former colleagues from Jenkens and BDO Seidman’s former CEO. The indictment is a detailed 78-page chronology of the alleged events. The Jenkens firm, itself, avoided prosecution when it, in 2007, entered into a nonprosecution agreement. It likely paid a good portion of the $76 million penalty assessment.
The Long and Tumultuous Saga of Paul Daugerdas
In the case against Daugerdas, the government asserted, among other things, that he participated in a scheme to defraud the IRS by designing, marketing, implementing and defending fraudulent tax shelters. Through a variety of strategies, his firm issued written opinions to clients, concluding losses and deductions generated from the tax shelters would more likely than not survive IRS challenge. In addition, Daugerdas and five (5) other defendants personally used the tax shelters to evade income taxes on substantial income. John A. DiCicco, then-acting Assistant Attorney General for the Tax Division of the Department of Justice, said at the time of the indictments: “Dishonest and fraudulent tax professionals, including accountants, attorneys, and bankers, should stand up and take note of today’s indictment. Professionals who sell and promote fraudulent tax shelters that help wealthy clients illegally evade taxes face serious felony charges and substantial prison time.”
The case proceeded to trial. Before trial commenced, however, two (2) of the defendants pleaded guilty and agreed to cooperate with the government. Daugerdas and four (4) other defendants continued the case, eventually seeing the eyes of a judge and a jury in a Manhattan courtroom. On May 24, 2011, Daugerdas, along with three (3) others, were found guilty of charges, including conspiracy and tax evasion. One (1) of the defendants was found not guilty.
Following the initial trial, Judge William H. Pauley III, U.S. District Court for the Southern District of New York, dismissed the convictions of three (3) of the defendants found guilty when he discovered a juror had lied about her background in an effort to enhance her chances of being selected for jury duty. It turns out the juror was a suspended attorney with a substance abuse problem. One (1) of the defendants agreed to a plea after the verdict and before Judge Pauley overturned the convictions. That defendant was not eligible for a new trial.
The case proceeded to a second trial. Just before the second trial began, one (1) of the three (3) remaining defendants pleaded guilty. She was sentenced to eight years in prison and ordered to pay $190 million in restitution. This left Daugerdas and one (1) other defendant, Denis Field, the former CEO of BDO Seidman, to battle it out for a second time.
On November 4, 2013, the jury in the second trial found Mr. Field not guilty. Daugerdas, however, did not attain such a positive outcome. The jury found him guilty on seven (7) charges, including conspiracy and tax evasion. On June 25, 2014, Judge Pauley finally sentenced Daugerdas to 15 years in prison.
Daugerdas and tax advisors like him are primarily responsible for causing Treasury to create the 2005 Regulations, especially the written advice provisions. Fortunately for the tax community, as mentioned in my June 24, 2014 blog post, Treasury finally amended Circular 230, eliminating the crazy practitioner written advice disclaimers and easing up the written advice requirements. Still, because of cases like the Daugerdas case, practitioners need to be cautious. The government will not allow the creation, implementation and marketing of abusive tax shelters. Daugerdas’s journey and the demise of Jenkens should be a lesson to the entire tax community. Daugerdas’s journey was long and tumultuous, but in the end it should serve as a warning to tax advisors. The stringent and complex Circular 230 written advice rules may have recently been relaxed, but tax advisors are still subject to a high standard of conduct. A good working knowledge of Circular 230 is required of all tax advisors. Compliance is paramount.
Larry J. Brant is a Shareholder in Garvey Schubert Barer, a law firm based out of the Pacific Northwest, with offices in Seattle, Washington; Portland, Oregon; New York, New York; Washington, D.C.; and Beijing, China. Mr. Brant practices in the Portland office. His practice focuses on tax, tax controversy and transactions. Mr. Brant is a past Chair of the Oregon State Bar Taxation Section. He was the long term Chair of the Oregon Tax Institute, and is currently a member of the Board of Directors of the Portland Tax Forum. Mr. Brant has served as an adjunct professor, teaching corporate taxation, at Northwestern School of Law, Lewis and Clark College. He is an Expert Contributor to Thomson Reuters Checkpoint Catalyst. Mr. Brant is a Fellow in the American College of Tax Counsel. He publishes articles on numerous income tax issues, including Taxation of S Corporations, Reasonable Compensation, Circular 230, Worker Classification, IRC § 1031 Exchanges, Choice of Entity, Entity Tax Classification, and State and Local Taxation. Mr. Brant is a frequent lecturer at local, regional and national tax and business conferences for CPAs and attorneys. He was the 2015 Recipient of the Oregon State Bar Tax Section Award of Merit.
Upcoming Speaking Engagements
- "Entity Classification – Another Look at the Check-the-Box Regulations," New York University Summer Institute in TaxationNew York, NY, 7.27.17
- New York, NY, 10.22.17-10.27.17
- San Francisco, CA, 11.12.17-11.17.17