SO HOW HIGH CAN WE ANTICIPATE INCOME TAX RATES GOING?

You would have to be living under a rock these days to be unaware of the massive spending coming out of Washington D.C. these days. The Associated Press reported today that President Obama's deficit estimates may be significantly lower than reality. As reported in today's Ft. Lauderdale Sun-Sentinal:

As noted in the article, one method to address deficits is to raise taxes. Below is a table that I came across that summarizes the maximum income tax rates in the U.S. since the enactment of the income tax. Younger readers who were not taxpayers before 1987 may find it an eye opener. All readers may want to take a look at the jump in maximum rates from 1932 to 1933 – a time period that also experienced a substantial expansion in federal spending in response to an economic crisis and a President who was not afraid to raise taxes:

At a minimum, one should expect rates to revert to pre-Bush levels, per the scheduled expiration of the Bush tax cuts in 2011. However, given the above history of maximum tax rates, substantially higher rates may ensue.

APPLICABLE FEDERAL RATES – APRIL 2009

IRS ALLOWS APPLICATION OF LIKE-KIND EXCHANGE RULES TO TRADEMARKS AND TRADE NAMES

In my September 28, 2008 posting, I discussed a 2006 technical advice memorandum (TAM 200602034) that extensively analyzed various Section 1031 issues, including like-kind exchanges of trademarks and trade names. That TAM provided that trademarks and trade names could not be exchanged tax-free under Section 1031 since they were too close akin to goodwill and going concern value, two items which cannot make use of the like-kind exchange rules.

The IRS has rethought its position on that in a recent TAM.

Instead, the Service is allowing the Newark Morning Ledger Co. case, which held that intangible assets are not always part of goodwill, and acknowledged that they can be treated as separate assets if they can be separately described  and valued apart from goodwill. This separation from goodwill will now be recognized in the Code Section 1031 area for trademarks and trade names.

The Service is not saying that all trademarks and trade names are automatically "like-kind" with other trademarks and trade names. Instead, the "nature" and "character rules" under Regs. Section 1.1031(a)-2(c)(1) still must be met. How that will work itself out in practice is hard to determine at this point - hopefully future TAMs or IRS rulings will provide some useful (and not too restrictive) interpretations of what types of trademarks and trade names will be considered like-kind. For example, since Regs. Section 1.1031(a)-2(c)(1) includes a review of the nature and character of the underlying property, one can anticipate that the IRS may limit the application of Section 1031 in this context to exchanges of trademarks or trade names when the property to which the trademark or trade name relates is itself like-kind with the property to which the trademark or trade name relates that is received back in the exchange.

Office of Chief Counsel Internal Revenue Service Memorandum 200911006

INTEREST RATES FOR TAX OVERPAYMENTS AND UNDERPAYMENTS (APRIL 2009 QUARTER)

The IRS has announced the interest rates for tax overpayments and underpayments for the calendar quarter beginning April 1, 2009.

For noncorporate taxpayers, the rate for both underpayments and overpayments will be 4% (down from 5%).

For corporations, the overpayment rate will be 3% (down from 4%). Corporations will receive 1.5% (down from 2.5%) for overpayments exceeding $10,000. The underpayment rate for corporations will be 4% (down from 5%), but will be 6% (down from 7%) for large corporate underpayments.

Rev. Rul. 2009-7

TAXPAYERS SHOULD USE IRS FOREIGN WITHHOLDING AUDIT PROCEDURES TO CHECK THEIR OWN COMPLIANCE

Absent the application of a treaty or other exception, U.S. payors of U.S. source dividends, interest, rents, royalties, compensation, and other fixed or determinable annual or periodical gains, profits, and income (FDAPI) are required to withhold 30% of such payments and pay them over to the U.S., and file appropriate withholding tax returns. A recent supplement to the Internal Revenue Manual signals increased future audit activity in this area, both as to U.S. financial institutions in connection with their brokerage and custodial activities, and non-financial institutions that may not be focused on withholding tax compliance. Non-financial institutions that can expect enhanced scrutiny include professional services firms (law, accounting, and architecture), high-tech medical equipment and computer hardware and software companies, intellectual property providers such as entertainment and publishing, pharmaceutical companies, and companies in the real estate industry.

One method to reduce penalty exposure is for taxpayers to adopt the same examination techniques of their own operations that IRS agents are being advised to use on audit. Thus, taxpayers (or their accountants) should consider:

a. Developing procedures for identifying payment recipients that are subject to withholding and procedures for determining exemptions from withholding and for reporting, which procedures are implemented and ready to be handed over the IRS if an audit arises. It would be all the better if such procedures are in writing and implemented in operating procedure manuals or similar training materials for employees;

b. Review Schedule M of Form 5471, which reports payments made by the taxpayer to controlled foreign corporations, and includes payments of commissions, rents, royalties, license fees, interest, and dividends, and Forms 5472, to determine that payments to all related parties on such forms are being subjected to withholding and reporting when required;

c. Reviewing accounts payable lists for accounts that indicate foreign ownership by reason of name, address, or taxpayer identification number, and assure withholding tax compliance for payments to such payees;

d. Doing the same review as to recipients of corporate dividends and interest payments to the extent not managed through the accounts payable department;

e. Confirming that all withholding is being properly included on Forms 1042 and 1042-S filings;

f. Confirming that copies of Forms W-8 and 8233 are being properly retained to substantiate no withholding based on such forms.

Since it is the payees that suffer the economic cost of withholding, there is no reason for payors not to comply, other than the marginal costs of compliance. Following the foregoing procedures should go a long way towards reducing or eliminating penalties for inadvertent noncompliance, and should further reduce the risk of being held responsible for taxes that are not withheld.

DO THE WEALTHY PAY THEIR FAIR SHARE OF INCOME TAXES?

Much political hay is made over making sure that the wealthy pay their fair share of income taxes, that the wealthy avoid paying income taxes through tax "loopholes," and that tax relief should be restricted to the less wealthy. One has to wonder how much sense any of that makes, and how much more progressivity the system can bear as a practical matter or under equitable principles, when the IRS in its most recent Statistics of Income advises us:

a. Taxpayers in the group that includes only the top 1% of adjusted gross income filers pay 39.9% of the income taxes paid by all individual taxpayers; and

b. Taxpayers in the group that includes only the top 5% of adjusted gross income filers pay an astounding 60.1% of the income taxes paid by all individual taxpayers.

This, according to the most recent year for which compiled information is available - 2006. The information is available online at http://www.irs.gov/pub/irs-soi/09winbulinincome.pdf.

POSSESSION STILL ONLY 9/10ths OF THE LAW

Ronald Griem at one point in time held shares in a British Virgin Islands company (the “BVI”). The BVI held a substantial securities account through a U.S. brokerage house.

Ronald passed away, and to the surprise of his family, they learned that Ronald had married before his death, and that his new wife held all of the bearer shares of the BVI. A dispute arose whether the BVI (and its securities account) belonged to the company or the new wife. The new wife claimed that her husband had gifted the shares to her before he died, that possession is “ten tenths of the law” for bearer shares in offshore companies, and thus she was the owner. She also cited provisions of Florida UCC law (673.2011(1), Florida Statutes) that the possessor of an “instrument” payable to bearer is the owner, even if the instrument was stolen. The trial court agreed with the wife, and granted her petition for summary judgment in her favor.

Not so fast, says Florida 3rd District Court of Appeal. First, shares of stock are not “instruments” under the UCC, but are “securities” and thus the cited UCC provision is not applicable. Analogizing to probate issues as to who is the owner of personal property of an estate after the death of a decedent, the appellate court indicated there are still some issues to be investigated to determine whether the wife is the owner of the shares, and that the personal representative should be allowed to avail itself of discovery to assist in such determination.  Possession, while important, is not alone determinative of ownership. Instead, the ownership issue must be resolved under BVI law, which includes numerous provisions and requirements for documentation that may nullify or support the wife's claim that mere possession of the bearer shares is dispositive.

The appellate court particularly noted that additional discovery should be allowed so that the parties can disclose to each other Mr. Griem's and the  spouse’s federal income tax returns (to determine how ownership was reported for income tax purposes), communications with the BVI registered agent or any custodians, and any pertinent communications with the stock brokerage house regarding the company, the shares, and the wife’s alleged ownership of the shares.

Of course, the wife may still prevail in her claim of ownership, but it will not be as easy as merely claiming that possession is 10/10’s of the law.

INGRID DIANA GRIEM, etc., Appellant, vs. ANITA BECKER, Appellee, 34 Fla. L. Weekly D449d, 3rd District. Case No. 3D07-2320. L.T. Case No. 05-4456. Opinion filed February 25, 2009.