Relevant and even prescient commentary on news, politics and the economy.

Tax planning or tax avoidance? One simple test

Over at Tax Research UK, Richard Murphy offers a simple test to distinguish between tax planning and tax avoidance. As he told a journalist, “That is easy. It’s getting legal opinion.”

With tax planning, Murphy says, you decrease your tax risk. “There are obvious examples: paying money into a pension, for example, does not create tax risk, and nor does putting money into an ISA [a UK individual savings account, which is similar to an IRA but more flexible] within allowed limits.”

By contrast, “Tax avoidance, on the other hand always, and without exception, increases your tax risk.” He gives examples of questionable allowances or use of tax haven structures. “In all such cases, the taxpayer’s risk is increased by undertaking the transaction. That is what tax avoidance involves.”

Murphy sends us further to David Quentin‘s tax blog. Here Quentin points out that there can be effective or ineffective tax avoidance, but that there is no such thing as ineffective tax planning. This, he argues, is an embarrassment for tax avoidance defenders, inasmuch as effective tax avoidance and ineffective tax avoidance are the same activity. With tax planning, there is no question that what you’re doing is legal. With tax avoidance, there is precisely such a question. So, as Murphy said, tax avoidance involves risk. Therefore, your tax adviser will suggest you get a legal opinion to “validate” the legality of what you are doing. While a putative tax avoider will use this opinion in arguing with tax authorities, it is ultimately the latter (and the courts) that will decide on the legality of the action taken.

What do you think? Is the distinction between tax planning and tax avoidance as easy to make as Murphy claims?

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Surprise! Facebook Avoids its European Taxes

If you are as cynical as I am, I know you are not surprised that Facebook paid Irish taxes (via Tax Justice Network) of about $4.64 million on its entire non-US profits of $1.344 billion for 2011.* This 0.3% tax rate is a bit below the normal, already low, Irish corporate income tax of 12.5%.

As with Apple, Facebook funnels its foreign profits into its Irish subsidiary. As the Guardian article explains:

Facebook is structured so that companies buying advertisements on the website in the UK, or anywhere outside of the US, have to pay Facebook Ireland.

As a result, Facebook manages to slash its taxes in other countries, paying, for example,  $380,800 in British tax on estimated 2011 UK profits of $280 million, or a little over 0.1%. What is shocking is that Facebook paid so much Irish tax since it managed to convert its $1.3 billion gross profit into a net loss of $24 million.

As you’ve no doubt figured out, it’s that “Double Irish” ploy again. Facebook operates a second subsidiary that is incorporated in Ireland but controlled in the Cayman Islands. This subsidiary owns Facebook Ireland, but the setup allows the two companies to be considered as one for U.S. tax purposes, but separate for Irish tax purposes. The Caymans-operated subsidiary owns the rights to use Facebook’s intellectual property outside the U.S., for which Facebook Ireland pays hefty royalties to use. This lets Facebook Ireland transfer the profits from low-tax Ireland to no-tax Cayman Islands. For more on the arcane mechanics, see Joseph Darby’s article “International Tax Planning,” downloadable at Wikipedia.

This makes no sense of course, but is, in David Cay Johnston’s inimitable phrase, Perfectly Legal. But it shouldn’t be. And in the UK, Chancellor of the Exchequer George Osborne has announced 

a £154m [$246.4 million] blitz on tax avoidance and evasion, with HMRC [the British equivalent of the IRS] hiring an extra 2,500 tax inspectors to target high earners who aggressively exploit loopholes to avoid or evade tax.

The U.S. should do the same.

* Dollar figures converted from pound sterling figures in the Guardian at an exchange rate of $1.60 per pound.

Cross-posted from Middle Class Political Economist.

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Romney’s CRUT Tax Shelter

by Linda Beale

Romney’s CRUT Tax Shelter\

The Bloomberg press has looked further at Romney’s use of trusts and other arrangements to avoid taxes, using Freedom of Information Act requests to obtain more information than was released by Romney in his meager tax return release. Romney established a charitable trust in 1996 of a type that Congress cracked down on in 1997 (regrettably, a crackdown that grandfathered existing arrangements, which is the way so many rich people get to keep using abusive shelters). See Jesse Drucker, Romney Avoids Taxeds via Loophole Cutting Mormon Donations, Bloomberg.com (Oct. 29, 2012).

So what did Romney do.  He used a “charitable remainder unitrust” (CRUT) in a way that alllowed him to use the tax-exempt status of the Mormon Church (his primary charitable beneficiary) to defer taxes for more than 15 years.  The trust benefits Romney considerably, by letting him benefit from the tax-free treatment that the charitable beneficiary has when they sell assets for a profit.and leaves the church less than current law requires for a trust.   And it favors Romney over the church, because he gets a guaranteed payout from the trust (which converted most of its assets to cash in 2007) and the church only gets what’s left at the end, if anything.  Current trends suggest there won’t be anything left for the charity at the end.

“The main benefit from a charitable remainder trust is the renting from your favorite charity of its exemption from taxation,” [Jonathan] Blattmachr [, a trusts and estates lawyer] said. Despite the name, giving a gift or getting a charitable deduction “is just a throwaway,” he said. “I used to structure them so the value dedicated to charity was as close to zero as possible without being zero.”

When individuals fund a charitable remainder unitrust, or “CRUT,” they defer capital gains taxes on any profit from the sale of the assets, and receive a small upfront charitable deduction and a stream of yearly cash payments. Like an individual retirement account, the trust allows money to grow tax deferred, while like an annuity it also pays Romney a steady income. After the funder’s death, the trust’s remaining assets go to a designated charity.

Romney’s CRUT, which is only a small part of the $250 million that Romney’s campaign cites as his net worth, has been paying him 8 percent of its assets each year. As the Romneys have received these payments, the money that will potentially be left for charity has declined from at least $750,000 in 2001 to $421,203 at the end of 2011. Id.

Under the 1997 change to the law, Congress required that the present value projected to be left for charity must equal at least 10% of the initial contribution. Romney’s CRUT doesn’t satisfy this requirement but was grandfathered in.  The principal of the CRUT has dwindled to about half what it was.  In the meantime, the Romney’s have enjoyed considerable tax savings due to the way the CRUT works.

This information is revealing for two reasons.  First, it demonstrates yet again that the Romney’s are eager to use whatever mechanisms they can to reduce taxes, even though their millions are due in no small part to the way taxpayers make business possible (from courts to roads to police to the military to “rule of law” to relatively low funding costs for borrowing in the United States, etc.).   One suspects that the reason Romney has stonewalled the public on his tax returns is that there is lots more of this nature shown therein, including possibly his participation in voluntary disclosure regarding offshore accounts (that otherwise might have resulted in criminal tax evasion charges).

Second, it shows that Congress recognized that CRUTs didn’t make sense.  So we have to ask why Congress didn’t eliminate CRUTs altogether, rather than continuing to allow the gambit, and why, if it were going to continue to allow the gambit, it didn’t terminate the favorable treatment of any existing CRUT that didn’t satisfy the minimal funding requirement the new law included (10% of the original contribution has to go to charity before the donor can enjoy the immense benefit of the capital gains deferral thereby).   Congress should allow the estate tax to lapse back to the pre-Bush levels, and it should then buttress the estate tax by legislating the end to the many different devices used by estate lawyers to get around the tax while still providing most of the benefits of the assets to the estate planners–CRUTs and similar estate-planning trusts are prime targets for action by Congress.

cross posted with ataxingmatter

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Romney’s Odd Definition of ‘Not Following the Law’

I don’t pay more than are legally due and frankly if I had paid more than are legally due I don’t think I’d be qualified to become president. I’d think people would want me to follow the law and pay only what the tax code requires.

— Mitt Romney, speaking to ABC’s David Muir, July 29, 2012

Sooo … Romney sees no difference between committing a crime—tax evasion—and consciously choosing to not employ every tax dodge conceivably available in order to barely skirt the line of legally. 

And he thinks people wouldn’t want a president who chooses not to do the latter.

Yikes.

I keep arguing that Obama should take this guy at his word—okay, his words—that he can’t distinguish between apples, oranges and elephants, and regularly conflates two or three obviously distinct facts or concepts.  And that maybe this isn’t really guy to get the economy moving on a faster track, or the guy to make commander in chief.  

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