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Sunday, November 08, 2020

FBAR Penalties Survive Death

The IRS may assess penalties for a person’s failure to file a required FBAR. If the person’s failure to file was willful, the IRS can impose a penalty equal to 50% of the account balance or $100,000, whichever is greater.  If an individual dies, can the IRS assess and collect an FBAR penalty for failing to disclose a foreign account?

Absent some specific direction by Congress, whether an action created by federal statutory law survives the death of the plaintiff is a matter of federal common law. Generally, under federal common law, a claim survives death and can be enforced if it is remedial and not punitiveSharp v Ally Fin., Inc., 328 F.Supp 3d 81, 88-89 (E.D.N.Y. 2018). Tax penalties are typically considered remedial and not punitive because their purpose is to reimburse the government for the costs of investigation and enforcement. Estate of Kahr, 24 AFTR 2d 69-5332 (CA 2 1969).

A potential 50% penalty looks to many as being punitive. However, in a Federal District Court case, the court ruled that FBAR penalties come under these general rules and are remedial and can be assessed and collected post death.

Taxpayers who are not disclosing their foreign accounts should take this liability into account - that is, the risk of penalty is not just on them but will be on their heirs as to their inheritances if a penalty is imposed before or after death.

Wolin, 126 AFTR 2d ¶2020-6348 (DC NY 9/28/2020) 

Saturday, October 31, 2020

A Co-Maker of a Promissory Note Is Not Always Liable to the Co-Signer [Florida]

In an interesting case, two doctors co-signed a promissory note with others of an LLC where they were members, and that was their employer, payable to a bank. They later left the practice, and the LLC sought to collect from them their share of the liability to the bank. An interesting aspect of suretyship law avoided liability for the doctors.

The doctors were “accommodation parties” under Florida’s Uniform Commercial Code. Florida Statutes 673.4191(1) provides:

If an instrument is issued for value given for the benefit of a party to the instrument (“accommodated party”) and another party to the instrument (“accommodation party”) signs the instrument for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument, the instrument is signed by the accommodation party “for accommodation.”

Here, the LLC was the accommodated party, and the doctors were the accommodation parties.

One aspect of the case was whether the doctors were accommodation parties. Under the above statute, they would be accommodation parties only if they are not direct beneficiaries of the value given for the instrument. So were they direct beneficiaries of the loan proceeds? The proceeds were given to the LLC. The use of the funds for salaries, bonuses, and other LLC expenses benefitted them as members/co-owners of the LLC. Nonetheless, their benefits were found to be indirect only and not sufficient to avoid accommodation party status.

So what’s the big deal about accommodation party status? For the accommodation parties (the doctors), it means that they have no liability to the accommodated party (the LLC). Fla.Stats. Section 673.4191(5). They still have liability to the bank because they co-signed the note, but that doesn’t help the LLC any in this case. Incidentally, if the accommodation parties have to pay the bank, they step into the shoes of the bank and can seek collection from the accommodated party.

Erick A. Palma, MD., et al. v. South Florida Pulmonary & Critical Care, LLC, 45 Fla. L. Weekly D2175a

Tuesday, October 27, 2020

Fantasy Sports Is Not a Game of Skill

Fantasy sports generally involve selecting team members and then earning points when the selected team players compete in real-world sports events - the players with the highest points win. Such games often require an entry fee and pay cash or other prizes to the winners.

Code Section 165(d) denies a deduction for losses from "wagering transactions" except to the extent they can offset wagering winnings. The IRS Chief's Counsel recently opined on whether the entry fee to play a fantasy sports event is a wagering transaction subject to this loss limitation.

The opinion concluded that the fee is a wagering transaction because there is an uncertain event (the live performance of the selected players) upon which winning or losing turns. It rejected the argument that fantasy sports is a game of skill (presumably the skill of drafting and/or acquiring good players) and would thus not be a wagering transaction under applicable case law. While it acknowledged that skill is an element, the element of chance dominates the outcome, and thus the entry fee is in the nature of a wager.

The opinion analogized fantasy sports to poker games and horse race betting, both of which involve some element of skill, but for which the dominant factor in winning or losing is an event that is beyond the control or skill of the player.

CCA 202042015