Another Tax Loophole

Just image, you are a small manufacturing company, business has been good, but yesterday you received a call from a customer who wants 50,000 widgets in 45 days. The customer is a large account and if you turn the business down, he may never call you again.

Problem: You need to hire more staff to meet the manufacturing needs of this customer. AND the customer said nothing about an advance payment. In fact he mentioned that he would be paying net 30 once shipment was received.

You need working capital and you needed it yesterday

You sit down and you start to think. Well let's see, it will take much needed time to apply to the bank for a loan, your wife threatens to leave with the kids if you refinanced the house one more time for business reasons and your credit cards are maxed out.

As you look around your messy yet effective office you wonder where you can get the working capital you need?

Sitting in front of you is your secretary mailing out invoices. You slowly walk over to her desk and you ask "What's the total amount of invoices that we have outstanding at this very moment?

Your secretary looks on her computer, moves the rat around a few times, clicks a couple of times, and then hits something that makes the printer start singing. She looks up at you with those "I want a raise" eyes" and says, "it's coming out on the printer"

You walk slowly over to the printer and pick up the sheet of paper. Just when you think you are ready to read and understand the page another page prints. She says very softly, "the second page will give you the total" You pick up the second page and allow your eyes to scroll down to the bottom of the page and much to your surprise the total amount is well over $300,000.

You don't want to call a Factoring company because, they will discount your Invoices and you won't get all your monies OR do you?

Your secretary reminds you that all the fees for Factoring the Invoices is tax deductible and in the end the Factoring will cost you nothing. (Your secretary is taking tax classes at night, something about becoming more valuable to the company and earning more money) She also reminds you that you can Factor the Invoices and be paid up to 92% of the total invoice amount within 48 hours. Plus, the Broker does not charge you.

It is at this point that you try to remember why you married your wife instead of your secretary?

You quickly change from that thought back to who should I call? There are so many Sharks in the water and about $200,000 of the invoices are Government Contracts.

You know you need a Factoring company whose rates are fair and who can deal with the endless paperwork that the Federal Government requires to Factor one of their Contracts.

Needless to say, he called me; the names have been changed to protect the guilty.

Hurricane Katrina - How To Use Your Business Loss To Get A Refund on 2004 Taxes

With the massive losses caused by Katrina, the economy of the Gulf Coast region is in extremely bad shape. Fortunately, there is a quirk in the tax code that can help you generate a large refund from your 2004 taxes.

Apply Losses to 2004 Taxes

When a large geographic area suffers a disaster, the President can declare it a federal disaster area. President Bush has made such a declaration for the Gulf Coast area.

While you've probably heard such declarations occur over the years, I doubt it means much to you. The declaration, however, has major implications for recovery efforts. Initially, the declaration of a federal disaster area means the federal government is going to provide disaster relief loans, special grants that don't have to be repaid, unemployment benefits and a variety of other assistance. It also signifies a major tax break for impacted businesses.

When a business suffers a loss, the deduction must typically be made in the year the loss occurred. With Hurricane Katrina, the deduction would typically occur when you file taxes in 2006. The problem, of course, is 2006 is a very long time from now if your business is destroyed. You will find this hard to believe, but the IRS is here to help.

The IRS is going to give you cash. Under current tax law, you may make a special election to deduct your business losses caused by Katrina on your 2004 taxes. By doing this, you do not have to wait till 2006 to get a tax refund. You don't have to do this, but it may be the key to getting necessary cash.

To make the special election, you must claim it on your 2004 taxes. If you have already filed taxes for 2004, you can file an amended tax return claiming the deduction.

In Closing

Using this tax strategy can help generate badly needed cash. Make sure you pursue the strategy with the help of your tax professional. If all your records are destroyed, you can order copies of past tax returns from the IRS.

Fraudulent Tax Shelters - KMPG Goes Down Hard

In the largest criminal tax case ever filed, KMPG has copped a plea to using fraudulent tax shelters to bilk the government out of 2.5 billion dollars. KMPG has agreed to pay a fine of $456 million dollars, but nine of its executives still are under indictment.

Son of Boss Tax Shelters

From 1996 to 2003, KMPG promoted a tax strategy known as the Son of Boss. This shelter was used to create phony tax losses that could be claimed by wealth individuals looking to write off tens of millions of dollars. KMPG promoted the structure despite the fact it's own internal tax attorneys warned the structure was fraudulent and could result in criminal charges. So far, wealthy individuals participating in the scheme have paid over $3.7 billion dollars to the IRS.

There should be no mistaking the impact of the plea agreement in this case. KMPG may have enjoyed the huge fees earned from the scam, but it is paying an incredible price for pursuing this practice. The price paid includes:

1. 456 Million Dollar Fine,

2. Permanently barred from providing tax services to wealthy individuals,

3. Permanently barred from involvement in any pre-packaged tax strategies,

4. Permanently barred from charging a contingency fee for work,

5. All actions monitored by government appointee for three years,

6. Full cooperation with government in indictments of individual KMPG employees.

Remaining Indictments

While KMPG pled guilty, it left its employees out to dry. An interesting maneuver since one can assume KMPG enjoyed the millions of dollars produced from the fraudulent tax shelters. Those under indictment, who are all now former employees, are:

1. Jeffrey Stein, former Deputy Chairman of KPMG, former Vice Chairman of KPMG in charge of Tax and former KPMG tax partner;

2. John Lanning, former Vice Chairman of KPMG in charge of Tax and former KPMG tax partner;

3. Richard Smith, former Vice Chairman of KPMG in charge of Tax, a former leader of KPMG's Washington National Tax and former KPMG tax partner;

4. Jeffrey Eischeid, former head of KPMG's Innovative Strategies group and its Personal Financial Planning Group and former KPMG tax partner;

5. Philip Wiesner, former Partner-In-Charge of KPMG's Washington National Tax office and former KPMG tax partner;

6. John Larson, a former KPMG senior tax manager;

7. Robert Pfaff, a former KPMG tax partner;

8. Mark Watson, a former KPMG tax partner in its Washington National Tax office.

In Closing

In the end, KMPG led clients down a very dangerous path for the apparent purpose of generating revenue. While even bad publicity is supposed to be good publicity, this situation seems to suggest the opposite.

Small Businesses: Company Car Vs. Personal Mileage Reimbursement In Hurricane Katrinas Wake

With gas prices at an all time high before Hurricane Katrina left her mark on our nation, most Americans were hoping that gas prices would settle down once summer passed. But gas prices have jumped as much as 80 cents a gallon across the country once Hurricane Katrina destroyed the Gulf Coast and impacted all of our lives.

While Hurricane Katrina is a horrible tragedy, it's not just affecting the Big Easy. Hurricane Katrina will impact every single American that commutes to work, takes a vacation, or shops online.

Company Car vs. Mileage Allowance

Companies and individuals alike are now concerned that the federal mileage deduction or their company's gas mileage reimbursement will no longer cover the costs of operating a vehicle for business purposes.

At the beginning of 2005, the IRS standard federal mileage reimbursement rate for business use of a personal vehicle (including vans, pickups or panel trucks) was 40.5 cents a mile for all business miles driven, up 3 cents from 37.5 cents a mile in 2004; The primary reason for the increase was higher prices of vehicles and fuel in 2004.

Christopher Tanis, District Manager of a restaurant chain in New York State travels for business to 5 different stores per week. For him, the 2005 federal reimbursement rate worked out quite well, and he opted for using his personal vehicle instead of using a company car. Now that fuel costs are so high, he's decided to re-examine the financial feasibility of mileage reimbursement.

Poor Gas Mileage Cars are Losing Value

Chris Brown; owner of Auddie Brown Superstore, an automobile dealership located in Florence, South Carolina, commented "I think [the jump in gas prices resulting from Hurricane Katrina] is ridiculous because they act like we're running out of fuel and we've got plenty."

Selling cars, the standard expense for selling each vehicle used to include a full tank of fuel when they bought a car, once the price hit $2.50 a gallon, Chris starting limiting his fuel allowance to $10. Chris explains, "Some cars take $80 worth of fuel to fill up and on a new car we're lucky if we make $80 in profit on them -- especially the new cars. Our new car profit margin is at its lowest ever. At this point we're just glad to sell the car and bring in some inventory."

Now that gas prices have gone through the roof, small business owners are working furiously to dump those 6,000 pound gross vehicle weight fuel guzzlers they bought only a year or two previously under a tax loophole which allowed small businesses to write-off most of vehicle cost in one year.

Mr. Brown has experienced this situation on a larger scale than most of us, adding "People come in to trade their larger trucks and SUV's with poor gas mileage for smaller, better gas mileage vehicles. Most consumers are not only so upside-down (owing more on the car than its fair market value) but are finding it hard to trade-in these larger vehicles. Not only they are valued less because of gas prices but people just cannot afford the fuel that would be needed to maintain these lower gas mileage vehicles."

The Annual Gift Tax Exclusion: Getting The Edge

Whether helping the kids with a down payment on their first home, paying the premiums on a life insurance policy in an irrevocable trust, or moving appreciated assets to a younger generation, annual gifting will touch the lives of millions of Americans. But before the transfer is made, an investor should spend some time looking at the investment and the tax ramifications of the property to be passed.

Much of the gifting itself will be done under the Annual Gift Tax Exclusion, a method that alleviates both a gift tax and the need to report the transfer. This exclusion applies to gifts only between individuals. Gifts made to charities and other organizations fall under a completely different set of rules.

The transfer is not deductible by the donor nor is it taxable to the recipient. Currently (in calendar year 2005), the annual exclusion is set at $11,000. In the future, this can be adjusted for inflation, but only in $1,000 increments. Spouses can increase their gifts to others to a maximum of $22,000 and, finally, gifts between spouses, like love, knows no limits.

Most transfers are done for one of two reasons. In the past, passing along property to diminish the value of an estate and, therefore, estate taxes was a major consideration in estate planning. This is still used extensively for larger estates but, under current law, fewer estates are subject to the tax. If the estate has no tax exposure (and if nursing care is taken care of), many advisors recommend not to gift at all but, instead, toallow the assets to receive a "stepped up" tax basis upon death.

Gifting to allow for current use of assets has been and continues to be popular. Often a parent wants to see a child use the gift immediately in order to enjoy an extended vacation or to make a major purchase. Here, it is expected that any gift of securities will be converted into cash with the appropriate tax paid.

Both donors and recipients should be aware that various gifts for educational or medical purposes may not reduce the annual exclusion. You should check with your tax advisor to determine whether this applies to a your specific situation.

Certain kinds of property (real estate, art, collectibles, closely held business interests, etc) should be appraised before a transfer is made. Consulting an expert in the particular field is usually a good idea to calculate the fair market value of the property.

Another circumstance requiring professional help is when "spending down" an estate for Medicaid purposes. An elder law attorney should be consulted for help in this area.

The actual gift of marketable securities or cash is fairly straightforward. Giving a check to someone or journaling over securities is enough to complete the gift. However, before making the gift, you should understand some of the potential tax considerations.

Let's first look at stock that has appreciated in value. Remember, whatever tax basis the donor in the gifted property will become the recipient's tax basis. If the donor is in a higher tax bracket than the recipient, it is often wise to gift the stock to the recipient and let the recipient sell the stock at his or her lower tax bracket.

If the fair market value of the stock is below the donor's original cost, then the donee must use the fair market value of the property as of the date of the gift in determining his or her tax basis. If you find yourself in this situation, the donor should consider selling the asset and then gifting the cash proceeds to the recipient.

Obviously, there will be times when a gift needs to be made regardless of the consequences; but, when time allows, you should do your homework to see what works to your best advantage.

Glenn ("Chip") Dahlke, a senior contributor to the Living Trust Network, has 28 years in the investment business. He is a Registered Representative of Linsco/Private Ledger and a principal with Dahlke Financial Group. He is licensed to transact securities with persons who are residents of the following states: CA. CT, FL, GA, IL. MA, MD. ME, MI. NC, NH, NJ, NY.OR, PA, RI, VA, VT, WY.

Taxing Overseas Firms for SOX Compliance

The Sarbanes-Oxley Act, also called the Public Company Accounting Reform and Investor Protection Act of 2002 was signed into law on July 30, 2002 by President Bush. In the aftermath of Enron, Arthur Andersen, Global Crossing, and WorldCom, SOX promises greater corporate accountability and transparency. Named after Senator Paul Sarbanes and Representative Michael G. Oxley, SOX focuses on the importance of ethical behavior in corporate governance-across the United States and now?overseas.

All countries have government-required laws like Sarbanes Oxley. In the UK, it's the "Combined Code on Corporate Governance," in The Netherlands it's the "Code Tabaksblatt," Germany has a "Bilanz Reform" and a "Bilanz Kontroll Gesetz." But then, why do we need SOX overseas since we already have the required laws? It's because companies with U.S. headquarters must ensure that all foreign outposts meet federal standards. This is the major cause of concern in the management and accounting circles. According to some experts, the Sarbanes Oxley Act might have dictated convoluted rules and regulations on the U.S. businesses. While the rules are concrete ideologies that prevent accounting scandals, the constant flux in the policies confuses businesses around the globe.

SOX compliance by vendors and business partners outside the U.S. is a frightening task. The risks and complications involved in enforcing the regulations for multiple firms around the world are enormous. The U.S. firms should keep themselves abreast of the data operations and data management followed by overseas vendors. This complicates the case further as the data should be integrated in financials or entered in balance sheets. Cumbersome processing of data would step up IT-related expenses.

The global impact of SOX is tremendous. At the moment, the UK Big Four firms are feeling SOX repercussions in their consulting sectors. Big4.com -a website for global Big4 alumni- receives periodic updates on the latest news and trends at the Big Four firms. The Big Four in UK reportedly lost GBP250 million in consulting fees since 2002-a direct outcome of Sarbanes-Oxley Act. Among the Big Four firms, PricewaterhouseCoopers faced a huge decline in their consulting fees. Causes for this decline can be attributed to:

· The increased cost of compliance that usurped consulting budgets.

· Independence restrictions in Sarbanes-Oxley have restrained companies from utilizing their auditors for many consulting services.

There is an apparent role reversal in consulting fees and audit services. If consulting fees have declined, audit fees have considerably increased. A whopping 30% increase in Big Four audit fees has been observed over a period of two years. This spike does not compensate for the revenues lost for consulting. Consulting was the major strength of the Big Four in the UK. But, in the present conditions, the significant decline in consulting fees clearly demarcates the performance of the Big Four in the UK.

According to a survey by an European firm, many overseas firms with their shares listed in the U.S. were not ready to meet the deadlines of Sarbanes-Oxley. Since European firms already have specific regulations, SOX compliance is extremely difficult. Some overseas firms have been attempting to get delisted from the U.S. stock markets since SOX's inception. Foreign firms about to get listed on overseas exchanges are also resisting to get listed in the U.S. These problems would take toll on the U.S. market performance and economy. But, the exit of foreign firms from the U.S. exchanges is not that easy. As per SEC guidelines, foreign firms holding 300 or more shareholders in the U.S. cannot delist from the U.S. exchange where they trade.

In the light of these problems, the Securities and Exchange Commission-in its bid to offer sustained flexibility-started modifying rules for overseas firms listed in the U.S. The SEC would facilitate foreign firms to delist their securities that are traded on the U.S. exchanges. Modifying SEC rules to accommodate European firms would create a state of unrest among the American managements.

The SOX compliance should be an "all-encompassing" formula-that which enables governments and managements worldwide to function efficiently and in rhythm. A level headed approach to weed out this disconcert would improve the situation.

Render Unto Caesar

Once a year Canadian taxpayers are required, by law, to file an income tax return in the prescribed form: $150(1).

For individuals: $150(1)(d) ITA, they must do so by April 30 of the following year, provided that they owe any taxes or if they are served with a requirement to file: $150(2) ITA.

There are other rules for corporations, trusts, partnerships and deceased individuals.

If any taxpayer is required to file under $150 then they are also required to estimate the amount of the taxes payable: $151 ITA.

Caesar's Reply

Once the taxpayer has filed their return, the Minister of National Revenue ("MNR") shall examine the return and assess the tax for the year, the interest and penalties, if any, payable: $152(1) ITA.

If the ministerial delegates don't agree with what the taxpayer has filed, then the MNR may at any time make an assessment, reassessment or additional assessment for a taxation year: $152(4) ITA.

Not filing won't prevent the MNR from making an arbitrary assessment: $152(7) ITA.

Some writers have concluded that Canada's self-assessment system is based on 'voluntary compliance;' however, CRA on its website, under "Tax Myths" (No 2) clarifies that the system is voluntary only in the sense that you can choose to comply. The consequences of not complying are entirely involuntary and Draconian.

Non-Filing And Late Filing

Not filing will, not surprisingly, have consequences, such the imposition of penalties: e.g., $$162(1), 163(1) ITA. Interest will also accrue (at a rate prescribed quarterly) and the taxpayer may be charged with non-filings as an offence: e.g. , $238(1) ITA.

Whether a taxpayer can be convicted of the criminal offence of tax evasion, under $239(1)(d) ITA, if they haven't filed is problematic: R. v. Paveley (1976), 30 C.C.C. (2d) 483 (Sask. C.A.); but any taxpayer who find themselves in such circumstances should immediately retain legal counsel to take advantage of the voluntary disclosure programs offered by CRA; attempting to do so without experience legal assistance may prove risky.

I Object!

Under $165(1)(a)(ii) of the ITA, a taxpayer who has been assessed, or re-assessed, may file a Notice of Objection (Form 400A) setting out their reasons for objection and all relevant facts, within 90 days.

$166.1(1) ITA does provide that were a taxpayer hasn't filed their Objection in time, that an application can be made to the MNR for an extension, but such wholly discretionary remedies are to be avoided if at all possible.

Some of the most complex statutory provisions known to mankind are found in the ITA and taxpayers who endeavour to prepare and file Objections without professional accounting or legal help are too often engaging in a forlorn hope.

If a taxpayer doesn't object then they lose their rights to complaint about that assessment.

In other words, if you want relief, you are compelled to object.

Charter $7

There is no provision in the ITA to allow taxpayers who have been charged with an offence under $239(1) ITA with an automatic extension, or a right not to appeal, pending the resolution of their criminal charges.

This element of compulsion under $165 ITA, as it applies to taxpayers charged with offences under $239(1) ITA, "owing to the threat of imprisonment": R. v. Jarvis, [2002] 3 S.C.R. 757, may violate $7 of the Charter of Rights and Freedoms.

Whether this potential violation of Charter $7 crystallizes depends on whether what access CRA Investigations has to the information contained in the Objections, and whether the prosecution 'could' use it.

CRA's Policy

CRA's publication RC 4213 "Your Rights" at page 9 of 13, under the caption "Your right to a formal review" states that,

"?appeals representatives who were not involved in the original decision are available to conduct a formal and impartial review" and again under caption "How do we ensure redress processes are impartial?" where it states that, "[T]he Appeals Branch operates independently in relation to other CCRA branches;" "Appeals Branch staff have a mandate to resolve disputes?by impartially reviewing CCRA decisions" and "The representative who reviews your case will not have been involved in the original assessment?"

The Concise Oxford Dictionary defines, "independent" as being "not depending on authority of? unwilling to be under obligation to others" and it defines "impartial" as being "?unprejudiced."

From the language used CRA is warranting to taxpayers that they have these Rights. It is therefore CRA's public policy to consider its Appeals Division (where Objections are filed) to be "impartial" and "independent" of the rest of CRA - including Investigations.

Most taxpayers would expect that CRA Investigations wouldn't have access to their Objections filed with Appeals, because communication between the divisions wouldn't be fair or impartial.

CRA's Practices

Violations of the Charter aren't established on CRA's best practice scenarios, they are based on what actually happens in practice.

Since reassessments and the criminal charges will generally proceed hand in hand this problem will continue to reoccur. Taxpayers are compelled to file an Objection, or lose their rights; but if they do file then what they have filed can immediately be used by the prosecution against them.

It may surprise taxpayers to know that CRA's Appeal Division has been known to give Objections filed by taxpayers charged under $239(1) ITA to the Investigation Division; it may astonish taxpayers to know that those materials were then used by the Crown against those taxpayers facing prosecution for tax evasion; but it should shock taxpayers to learn that when this violation of CRA's policy concerning Appeals "impartiality" and "independence" was brought to them, no one in CRA considered this the least bit objectionable - not locally and not in Ottawa.

A Clear Violation

How widespread the practice is, as yet, unknown but that it should be permitted to exist at all is, in this writer's opinion, a clear violation of Charter $7: R. v. White, [1999] 2 S.C.R. 417; Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307.