The City of Des Moines will finally do the right thing, having exhausted all venues to do otherwise. The Supreme Court yesterday ruled that the city must repay $40 million of an illegally-imposed franchise fee on utility bills. The Des Moines Register reports:
The high court’s ruling centers on franchise fees that are added to customers’ gas and electricity bills. A lower court ruled that the city charged excessive fees for a period of years, in essence an illegal tax. The high court declined to review the lower court’s order requiring the city to repay roughly $40 million to residents who paid the illegal tax.
Mayor Cownie predicts disaster and famine:
City lawyers have fought the case for years by arguing, in part, that any refunds would lead inevitably to higher property taxes — in essence taking money out of one pocket of city residents to place cash in another.
Cownie said the city would pursue options fairest to citizens while balancing the long-term realities of a beleaguered city budget. Any franchise fee repayment from the city would likely come from a mixture of property tax increases and cuts to city services, he said.
“We’re not just cutting away fat. We’re cutting away muscle and bone and tendons,” he said.
It’s useful to imagine how much sympathy the city would offer a taxpayer who had illegally collected money from the city. “I’m not just cutting away fat. I’m cutting away essential services for myself and my family, like my house and my car.” Of course, the city has compounded its own problems by litigating all the way to the U.S. Supreme Court, piling up legal fees and interest on top of the refunds.
The city now has to pay up, though the Register story makes it look like the city isn’t exactly racing to cut the refund checks.
The Moral? Next time, don’t collect an illegal tax, and if you do, repay it.
Supreme Court declines to review West Des Moines S corporation compensation case. In addition to denying Des Moines’ franchise tax appeal, the Supreme Court yesterday denied a hearing in an important case involving the so-called “John Edwards Shelter,” named after the former vice-presidential nominee and model husband who ran his law practice in an S corporation.
A U.S. district court held that an area CPA who reported $24,000 of wage income and around $200,000 of K-1 income from his S corporation had to report as compensation around $90,000 of the income; the Eighth Circuit upheld the ruling in February (David E. Watson, P.C. v. U.S). The tax law imposes payroll taxes on compensation, but not S corporation K-1 income, so the taxpayer must pay payroll taxes on the additional compensation. The denial is reported on page 50 here.
Being enjoined is bad. Being indicted is worse. An attorney who was enjoined from promoting some extremely aggressive tax shelters in the Kansas City area now has worse problems, as outlined in a press release from the California Franchise Tax Board: Los Angeles Tax Professionals Arrested for Illegal Tax Schemes Costing State $7.6 Million:
A Cerritos CPA and Los Angeles attorney were arrested today on felony charges of conspiracy and tax evasion, the Franchise Tax Board announced.
Victor George Kawana, 53, and Blair Stover, 51, each own one-third of Kruse Mennillo, LLP. According to FTB special agents, Kawana and Stover allegedly promoted an abusive tax avoidance transaction (ATAT) to more than 100 clients during the years 2002-2005. The fraudulent activity cost the state more than $7.6 million in tax liability.
They each face three felony counts of aiding in the preparation of false state income tax returns and one felony count of conspiracy. Each tax count carries a maximum sentence of three years in state prison.
The charges appear to arise from the same sorts of shelters Mr. Stover was enjoined from promoting:
They instructed their clients to utilize an ATAT involving the creation of Nevada corporations and Roth IRA or Employee Stock Option Plans (ESOP) as the sole shareholders. The ATAT was formed with a series of related transactions with no valid business purpose other than tax evasion.
Kawana and Stover were recently arrested and both pleaded not guilty at their arraignments.
Mr. Stover got his start at national firm Coopers and Lybrand in St. Louis, later moving to their Kansas City office. He joined the Grant Thornton office there before going to Kruse Menillo, LLP.
While a number of the tax shelters involved did poorly in court, that doesn’t make it a crime to promote them; the defendants are innocent until proven guilty. Whatever the outcome of the trial, we can safely assume that the shelters relied on taxpayers’ eternal pursuit of the tax fairy, that mythical creature who can magically make income taxes go away without pain and without risk. There is no tax fairy.
Thanks to an alert reader for the tip.
Martin Sullivan, Romney Advisor Advocates Tax Hikes (Tax.com): “He proposes putting a cap on everyone’s tax benefits from deductions and credits equal to some percentage (perhaps 2 or 3 percent) of adjusted gross income and using the revenue gained for both rate cuts and deficit reduction”
Richard Morrison, Chart of the Day: The Average Tax Rate for the Rich (Tax Policy Blog):
Patrick Temple-West, Essential reading: Payroll tax cut is unlikely to survive into next year, and more
Trish McIntire, Chicken or Egg Tax Cut
Jack Townsend has two more posts on the affirmation of sentences for figures in the “Aegis” tax shelter case: Aegis Convictions Affirmed Installment #4 – the Conspiracy Conviction and Aegis Convictions Affirmed Installment #5 – IRS Notices and Harmless Error
Kay Bell, Tax moves to make in October 2012
William Perez, Consider Accelerating Salary Income into 2012
Howard Gleckman, If Congress Goes Over the Fiscal Cliff Your Taxes Will Likely Go Up (TaxVox):
If Congressional gridlock sends the U.S. government tumbling over the fiscal cliff later this year, Americans could face an average tax hike of almost $3,500 in 2013. Nearly 9 of every 10 households would pay higher taxes. Every income group would see their taxes rise by at least 3.5 percent, but high-income households would suffer the biggest hit by far, according to a new Tax Policy Center analysis.
TPC found that if the tax hikes last the entire year—a big ”if”–those in the top 0.1 percent would pay an average $633,000 more than if today’s tax rules were extended. However, even middle income households would take a hit: they’d pay an average of almost $2,000 more, and see their after-tax income fall by more than 4 percent. Such tax hikes would be “unprecedented,” said the paper’s authors, Bob Williams, Eric Toder, Donald Marron, and Hang Nguyen.
So, have a nice day!
Kaye A. Thomas, Roth Conversions Ahead of 2013 Tax Increases.
The Critical Question: What is this “Fiscal Cliff,” and why are we in this handbasket? My new post at IowaBiz.com, the Des Moines Business Record blog for entrepreneurs.