Tax practice

Think you've come up with a perfect tax strategy for your high-end clients? Before you go ahead with it, you might want to check if it's been patented. You're liable to be sued for patent infringement if someone else thought of it first.It all started in 1998, when a federal appeals court ruled that business methods could be patented. Since then, more than 60 tax-strategy patents have been granted, and 86 more are pending. And the first infringement suit has been filed over the SOGRAT patent.

One way to judge which are the most significant provisions in the Small Business and Work Opportunity Tax Act of 2007 - signed by President Bush on May 25, 2007, as part of a larger bill focused on war funding - is to look at which provisions are projected to cost the most or to raise the most revenue.The tax breaks included in this legislation are fully paid for with revenue increases. The main premise behind the legislation is that small business should receive some tax breaks to help offset the cost of being required to pay workers more due to the minimum wage increase. It would be a rare small business that finds that the cost of increasing the minimum wage for its workers is fully offset by the tax breaks included in the legislation.

A Greenville, S.C. federal judge has permanently barred Robert Barnwell Clarkson and his "Patriot Network" from promoting tax fraud schemes, the Justice Department announced. The court found that Clarkson falsely instructed Patriot Network members that they need not file federal income tax returns, and helped members obstruct Internal Revenue Service efforts to collect taxes. In seeking the permanent injunction, the Justice Department submitted Clarkson's Untaxing Packet, which he sold for $300. The packet contained form letters that he falsely claimed would exempt purchases from federal tax laws. Papers filed in the case showed that Clarkson boasted that he "untaxed" more than 8,000 people over 30 years. The court detailed Clarkson's efforts at interfering with tax collection, including his instruction to transfer property to nominees and to sue IRS agents who attempt to collect taxes. Clarkson, a disbarred attorney from Anderson, S.C., has twice been convicted of federal tax-related crimes. The court ordered Clarkson to give copies of the injunction to people who bought his products and to post the injunction on the Patriot Network Web site.

The Internal Revenue Service has redesigned Form 8857, Request for Innocent Spouse Relief, to help reduce follow up questions and taxpayer burden. The form will ask more questions initially, but collecting critical information early in the process will allow faster processing of the request. The IRS says that the new design will eliminate an estimated 30,000 follow-up letters annually, resulting in a reduced burden and quicker answer for taxpayers and less cost for the government. When a taxpayer files a joint return, both spouses are jointly and individually responsible for the tax. If one taxpayer believes that only his or her spouse or former spouse should be responsible for the tax, the taxpayer can request innocent spouse relief. The redesigned form will be easier to understand and to complete and will help educate taxpayers about the process. Previously, the questionnaire was separate from the form.

Fewer taxpayers took advantage of the Internal Revenue Service's free electronic tax-filing service in 2007 than in previous years, according to a new audit report by the Treasury Inspector General for Tax Administration. In 2005, a record 5.12 million taxpayers used the Free File Program. That number fell to 3.9 million in 2006, in large part due to a new requirement that limited eligibility for the program to taxpayers with an adjusted gross income of about $50,000 a year or less. In testimony before the House Ways and Means Committee's Oversight Subcommittee last year, Inspector General J. Russell George expressed concern about the eligibility limitations, which he said, could contribute to a significant slowing of the growth in electronic filing. Although no further adjustments were made to the program in 2007, as of April 14, auditors found that only 3.3 million taxpayers filed returns using the free service -- a decline of 4.7 percent below the same period last year. "It is imperative that the IRS carefully examine the reasons this free service is not being used by more taxpayers," George said. "The IRS must review its marketing strategy to better target taxpayers who file paper returns even though they are eligible for this program. Equally important, the IRS must ensure that the software it promotes on its Web site provides taxpayers with accurately calculated tax returns," he said. The decline in the Free File Program comes at a time when the IRS is under pressure to increase the number of taxpayers who file electronically. In 1998, Congress established a goal for the IRS to have 80 percent of all federal tax and information returns filed electronically by the end of 2007. The Free File Program was one of several initiatives designed to help meet that goal, which is unlikely to be fulfilled this year.

By a margin of 240-179, House lawmakers approved funding for the Internal Revenue Service for fiscal 2008 and in the process eliminated a provision that would have capped spending on the service's private debt collection program at $1 million. The program, which has divided Congress along party lines, allows the IRS to contract with private debt agencies to collect delinquent taxes. Having a $1 million limit would have ended the program. Currently the IRS has contracted with two private agencies, but is looking to expand the program this year according to reports.

The IRS has publicized a new draft version of Form 1118, "Foreign Tax Credit - Corporations," used by U.S. corporations to compute the foreign tax credit for taxes paid or accrued to foreign countries or U.S. possessions. "They adjusted the form to accommodate changes made by the 2004 American Jobs Creation Act," said Selva Ozelli, a New York-based CPA and international tax attorney. Under the act, the number of separate foreign income categories has been reduced from eight to two, and U.S. source income is re-characterized as foreign source income in cases where a taxpayer's foreign tax credit limitation has been reduced in an earlier year due to an overall domestic loss. "The most important change is that they've added a column to help taxpayers determine U.S. income that could be recharacterized due to recapture of overall domestic losses," said Ozelli. "This column will also help them in tracking their balances of overall domestic losses," she said.

Internal Revenue Service chief counsel Donald L. Korb has named Stephen Kesselman to become deputy chief counsel, operations, succeeding IRS veteran Donald T. Rocen. Kesselman is currently serving as counsel in the IRS' Small Business/Self-Employed Division. Rocen, who has held a number of posts in the Office of the Chief Counsel for 15 years, will leave the service July 27 for the Washington law firm of Miller & Chevalier. Lon B. Smith, associate chief counsel of financial products and institutions, will now become national counsel to the chief counsel for special projects. He has served in the Office of Chief Counsel for 30 years.

In an effort to increase diversity in the financial services industry, the House Financial Services Committee has passed H. Con. Res.140, the Financial Services Diversity Initiative. The bill, sponsored by Rep. Gregory W. Meeks, D-N.Y., specifically will: * Encourage financial institutions to promote workforce diversity, including partnering with organizations that focus on developing opportunities for minorities and women; placing youth in internships, summer jobs and full-time positions within the industry; and partnering with inner-city high schools and girls' high schools to establish financial literacy programs and provide mentoring. * Encourage financial institutions and federal and state financial institutions' agencies to attract and retain a diverse workforce by recruiting at women's colleges and colleges that serve minority groups; sponsoring and recruiting at job fairs in urban communities; and placing employment ads in media outlets oriented to people of color; and, * Require that active measures should be taken by employers and educational institutions to increase the demographic diversity of the financial services industry. Meeks cited a Government Accountability Office report on diversity within the financial services industry that said that "representation for minorities in the financial services industry still lagged behind reasonable numbers on all levels and for women in upper management levels exclusively."

The Supreme Court has agreed to decide whether an exception in the Internal Revenue Code allows a trustee to deduct the full amount of fees paid to an investment advisor. The case of Knight v. Commissioner of Internal Revenue, U.S., No. 06-1286, centers on trustee Michael J. Knight, who paid an investment advisor to manage the assets of a trust. When the trust filed its tax return, Knight sought to deduct the full amount of the fees under 26 U.S.C. Section 67(e)(1). However, the IRS said the fees are subject to the 2 percent rule. The U.S. Tax Court agreed with the IRS, as did the U.S. Court of Appeals for the Second Circuit, which ruled against Knight in October. But Knight argued the fees fall under an exception to the general rule because they were paid in connection with the administration of the trust, and because they would not have been paid unless the assets were held in trust. In May, both the New York Bankers Association and the American Bankers Association May 22 filed a brief in support of the trustee, urging the U.S. Supreme Court to hear the case.

Struggles at its subprime lending unit have resulted in tax-prep giant H&R Block Inc. posting a fourth-quarter loss of $85.5 million and a full-year loss of $433.6 million for the period ended April 30. The company said its latest quarter included roughly $677 million in losses from discontinued operations - the majority of that stemming from its Option One mortgage subsidiary.

Ousted Fannie Mae chief executive Franklin Raines is charging regulators with withholding documents that show a deliberate attempt to drive down the stock price of the mortgage securities concern. In a filing with the U.S. District Court here, Raines, 58, who was shown the door after the company was forced into a $6.3 billion restatement, said that Fannie Mae's overseer, the Office of Federal Housing Enterprise Oversight, "continues to guard jealously against the disclosure of information." Raines wants OFHEO to hand over documents related to a 2004 report published by the Department of Housing and Urban showing that the "officers of the agency had engaged in serious misconduct by deliberately attempting to manipulate and depress Fannie Mae's stock price." To date, the government has filed more than 100 charges against Raines, former Fannie Mae chief financial officer Timothy Howard and the company's former controller, Leanne Spencer, seeking fines and the return of millions in bonus money. Following a two-year dispute over deferred compensation after his dismissal, Raines had been awarded $2.6 million under a deal disclosed in an SEC filing.

The Internal Revenue Service recommends that employers, payers and their agents begin using a new, improved version of the agent-appointment form immediately, to avoid delays in having the IRS approve the agent appointments. All versions prior to the May 2007 form are now obsolete. Form 2678, Employer/Payer Appointment of Agent, authorizes an agent to file tax returns and deposit and pay employment or other withholding taxes on an employer or payer's behalf. However, the employer retains responsibility for filing Form 940, Employer's Annual Federal Unemployment Tax Return, and depositing and paying FUTA tax. The IRS recently redesigned Form 2678 to make it clearer and more user-friendly. The redesign resulted from an initiative led by the IRS Office of Taxpayer Burden Reduction. The IRS will return any obsolete versions of Forms 2678 that are filed and ask senders to submit the May 2007 revision instead. When the IRS approves Form 2678, both the employer or payer and the agent are liable for the employer's employment tax.

Rep. Charles Rangel, D-N.Y., chairman of the House Ways & Means Committee, said House lawmakers might consider legislation that would raise taxes on the income of private equity and hedge fund managers. Under the current tax laws, private-equity companies can go public by paying a partnership tax rate of 15 percent versus the corporate tax rate of 35 percent. Rangel's proposal follows a Senate measure introduced last week requiring private-equity partnerships that go public after June 14 to pay corporate taxes.

The just-released spring 2007 issue of the Statistics of Income Bulletin includes the first article on farm proprietorship returns by the Internal Revenue Service in more than 20 years, as well as articles on high-income individual income tax returns, taxpayers reporting noncash contributions, qualified zone academy bonds, international boycott reports and S corporations. In addition, this issue of the bulletin presents selected tax year 1990-2004 individual income tax return data that have been indexed for inflation, and tax year 2005 individual income tax return statistics classified by state and size of adjusted gross income. For tax year 2004, there were 3,021,435 individual income tax returns filed with adjusted gross income of $200,000 or more and 3,067,602 returns with expanded income of $200,000 or more. The Bulletin highlights the following: * For tax year 2004, there were 25.3 million individual taxpayers who itemized deductions and reported a deduction for noncash charitable contributions. Those taxpayers reported $43.4 billion in deductions for these noncash contributions. Individuals whose total noncash charitable deductions on Schedule A, Itemized Deductions, exceed $500 are required to report these donations in detail on Form 8283, Noncash Charitable Contributions. For 2004, a total of 6.6 million individuals, representing a little more than a quarter of those who reported noncash charitable contributions, filed Form 8283. These individuals reported noncash contributions valued at almost $37.2 billion, or nearly 86 percent of all noncash contributions. * The number of farm proprietorship returns declined between tax years 1998 and 2004, with the majority of farm proprietorship returns showing a farm net loss. For tax year 2004, some 1.4 million farm proprietorship returns, or 70 percent of the total, had a farm net loss. Gross farm income reported on sole proprietorship returns totaled $93.3 billion for tax year 1998 and increased 8.3 percent to $101 billion in 2004. Total farm expenses grew even more during this period, by 12.9 percent, from $101.2 billion in 1998 to $114.3 billion in 2004. * For tax year 2003, some 1,268 taxpayers filed Form 5713, International Boycott Report; of these, 124 reported receiving boycott requests, and 36 agreed to participate in a boycott. There were 41 taxpayers who lost a portion of their tax benefits as a result of their participation in a boycott or because they had operations in a boycotting country and claimed the extraterritorial income exclusion. Similarly, 1,343 Forms 5713 were filed for tax year 2004; of these, 131 taxpayers reported boycott requests, 45 agreed to participate, and 46 taxpayers reported tax consequences. For both years, the percentage of filers who lost tax benefits was approximately 3 percent. * The final bulletin article takes a look at the dominance of the wholesale and retail trade division among S corporations since 1959. For tax year 2004, some 45 years after the creation of S corporations, wholesale and retail represented the largest portion of total receipts, total deductions, portfolio income, total net income (less deficit) and total assets.

Democratic members of Congress have introduced a plan that would close a tax loophole that allows tens of thousands of dollars in tax write-offs for only the largest luxury SUVs. The bill introduced by Reps. Allyson Schwartz, D-Pa., Rahm Emanuel, D-Ill., and Earl Blumenauer, D-Ore., who all serve on the Ways and Means Committee, as well as Rep. Ed Markey, D-Mass., chairman of the Select Committee on Energy Independence and Global Warming, would fix a provision in the Tax Code that provides an additional tax incentive for the luxury market of SUVs weighing over 6,000 lbs. Originally intended to help businesses buy necessary heavy-duty work vehicles, the "Hummer Tax Loophole" has for years allowed write-offs of anywhere from $100,000 to the current figure of $25,000 for the purchase of the largest, most gas-guzzling luxury SUVs, even as concerns over gas prices and dependence on oil have grown. The change would not affect legitimate business investments in trucks or vans, such as plumber and contractor trucks, farm vehicles, construction vehicles, flatbed trucks, cement mixers, and a variety of other vehicles as designated by the IRS. "This bill fixes a perverse, unintended incentive to buy the biggest and most polluting vehicle on the market," said Blumenauer.

The vast majority - 88 percent - of small employers used a tax professional to prepare their most recent federal tax return. For those employers who employ 20 or more people, the percentage using a tax professional increased to 95 percent, according to the National Federation of Independent Business.

GAO EXAMINES IRS '08 BUDGET

The rules for the deductibility of prepaid expenses are riddled with exceptions to the basic premise that neither cash nor accrual-basis taxpayers ought to deduct any prepayment except to the extent that the purchase - whether it is in the form of an asset or a service - is used in the same tax year. Grace periods, exceptions and additional restrictions can all change a result. The latest variation on the theme of "things are not always what they appear," comes in the form of a chief counsel's advice memorandum.

As an extension to the current financial and technical assistance programs the Small Business Administration provides to the military, the SBA has introduced the Patriot Express Pilot Loan, an offshoot of its SBA Express Program. Loans are available up to $500,000 and qualify for the SBA's maximum guarantee of up to 85 percent for loans of $150,000 or less and up to 75 percent for loans over $150,000 up to $500,000. For loans above $350,000, lenders are required to take all available collateral. The Patriot Express Loan can be used for most business purposes, including start-up, expansion, equipment purchases, working capital, inventory or business-occupied real-estate purchases. Patriot Express Loans feature the SBA's interest rates, which are generally 2.25 percent to 4.75 percent over prime depending upon the size and maturity of the loan. Local SBA district offices will have a listing of Patriot Express lenders in their areas. The SBA Patriot Express is available to military community members including veterans, service-disabled veterans, active-duty service members participating in the military's Transition Assistance Program, reservists and National Guard members. Details on the initiative can be found at www.sba.gov/patriotexpress