Four states have filed suit in U.S. District Court for the Southern District of New York, challenging the constitutionality of the new $10,000 cap on the federal tax deduction for state and local taxes, or SALT, enacted as part of the federal Tax Cuts and Jobs Act in 2017. The lawsuit is the latest effort by states to invalidate the SALT cap. It follows legislative workarounds enacted by New York and New Jersey, granting taxpayers in those states credits against state taxes for making contributions to state-created funds. The Internal Revenue Service has for its part responded by warning taxpayers that the federal law controls the characterization of deductions for federal income tax purposes and that taxpayers who utilize the state law workarounds do so at their peril. While this latest effort to challenge the SALT cap places the legality of the provision before the courts, the long-term fate of the SALT cap is more likely to be decided by the political, rather than the judicial, process.

The SALT Cap

Enacted in 2017, the TCJA was touted as the most significant tax reform legislation in three decades. Among its provisions is a $10,000 annual limitation on the deduction for state and local tax, which includes state and local income taxes, local real estate taxes and state sales taxes. Previously, there was no monetary limitation for an individual taxpayer’s SALT deduction. The new limitation is more detrimental to individuals in high tax states, such as California and New York. The average SALT deduction in California was around $18,500, while the average deduction in New York was around $22,000. The SALT limitation imposed by the TCJA applies to taxable years beginning after Dec. 31, 2017, and before Jan. 1, 2026.

State Efforts to Work Around the SALT Cap

Some states are attempting to work around the SALT limitation using creative legislative solutions. Earlier this year, New York Gov. Andrew Cuomo signed into law a new state-operated charitable contribution fund to accept donations for the purposes of improving health care and public education in New York state. Taxpayers who itemize deductions may claim these charitable contributions as deductions on their federal and state tax returns. Any taxpayer making a donation may also claim a state tax credit equal to 85 percent of the donation amount for the tax year after the donation is made. Taxpayers may also make qualified contributions to certain not-for-profit organizations for specified purposes. The law also authorizes local governments and school districts to establish charitable gift reserve funds and to offer real property tax credits to incentivize contributions to these new local charitable funds.

New Jersey soon followed suit, with Gov. Phil Murphy signing into law a measure allowing municipalities, counties and school districts to establish charitable funds where taxpayers can donate in return for a property tax credit. In return for donations, taxpayers would receive credits on their property tax bill of up to 90 percent of the donation. Taxpayers would then be able to claim their donation as a charitable deduction on their federal income tax return.

Efforts to work around the SALT cap are also underway in California. The California Senate has passed a bill that would allow taxpayers a credit against their state income tax for contributions to the newly created California Excellence Fund. A similar bill is pending in the California Assembly.

IRS Warns Taxpayers Regarding Efforts to Bypass SALT Cap

Earlier this year, the Internal Revenue Service notified taxpayers that it will soon be issuing regulations addressing the deductibility of state and local tax payments for federal income tax purposes. At the same time, the IRS reminded taxpayers that federal law controls the characterization of payments for federal income tax purposes regardless of the characterization of the payments under state law. These forthcoming regulations will be targeted at the state-level work-arounds described above.

The IRS said that the regulations, to be issued in the near future, will help taxpayers understand the relationship between federal charitable contribution deductions and the new statutory limitation on the deduction of state and local taxes. The IRS also warned that it is continuing to monitor other state legislative proposals being considered to ensure that federal law controls the characterization of deductions for federal income tax filings.

Is the SALT Cap Unconstitutional?

The latest effort by the states to challenge the SALT cap is the lawsuit filed by states New York, New Jersey, Connecticut and Maryland. The suit names as defendants the Secretary of the Treasury, the Acting Commissioner of Internal Revenue, the Internal Revenue Service and the United States of America. The states allege that the SALT cap violates numerous provisions of the U.S. Constitution, including the 10th Amendment, the 16th Amendment and Article I, Section 8.

According to a press release issued by Gov. Cuomo, the SALT cap was enacted to target New York and similarly situated states, interferes with states’ rights to make their own fiscal decisions and will disproportionately harm taxpayers in these states. An analysis by the New York State Department of Taxation and Finance shows that the cap will increase New Yorkers’ federal taxes by $14.3 billion in 2018 alone and an additional $121 billion between 2019 and 2025. A press release issued by Connecticut Gov. Dannel Malloy similarly said that Connecticut taxpayers will lose an estimated $10.3 billion in SALT deductions in 2018 and see an increase in federal income tax liability of approximately $2.8 billion in 2018.

The states’ lawsuit challenging the SALT cap asserts three causes of action arising under the U.S. Constitution. The first alleges that by capping the amount of the SALT deduction, the federal government has impermissibly interfered with the states’ sovereign authority to determine their own fiscal authority, thereby violating the 10th Amendment. In their second cause of action, the states allege the federal government has exceeded its powers under the 16th Amendment by failing to provide for a deduction for all, or a significant portion of, state and local taxes. Finally, the states allege a violation of Article I, Section 8, which provides Congress with the “[p]ower to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Specifically, the states contend that the SALT cap interferes with their sovereign authority to determine their own taxation and fiscal policies by “coercing the Plaintiff States into lowering their taxes and cutting the services those taxes support.”

The U.S. Department of Justice is expected to vigorously defend the SALT cap as a legitimate exercise of the federal government’s taxing power. The Justice Department will no doubt point out that the newly enacted SALT cap was not specifically targeted at the four plaintiff-states; rather, the cap applies uniformly throughout all of the states, even though it may have disproportionate impact in states with high property taxes. In addition, SALT cap defenders will note that although state and local taxes have been deductible since the creation of the federal income tax code in 1913, Congress has many times modified the scope of the allowable SALT deduction, including in the Tax Reform Act of 1986 and, most recently, in 2005. Finally, the Justice Department will surely rely upon the federal government’s constitutionally imbued and well-settled powers to tax and spend as set forth in Article 1, Section 8 Constitution in defending the SALT limitation.

While a federal judge will ultimately have to decide whether the states’ lawsuit has merit, the long-term viability of the SALT deduction cap will likely be determined by the political process instead. The outcome of the November mid-term elections will dictate which political party controls Congress. If the Democrats succeed in wresting back control of the House, expect to see legislation introduced to undo much of the TCJA, including the SALT cap deduction. If, on the other hand, the Republicans maintain their current majority in the House, the SALT cap will likely remain on the books, with its fate to be eventually determined by the courts — most likely an appellate court and potentially the Supreme Court of the United States.

Reprinted with permission from Law360. (c) 2018 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.

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The Internal Revenue Service has announced that the nation’s tax season will begin on Monday, January 29, 2018. As is typically the case, the annual opening of tax season is accompanied by well-publicized enforcement actions intended to warn potential tax cheats of the perils of filing a false tax return. This year is no different, with the announcement that reality television personality Michael “The Situation” Sorrentino and his brother, Marc Sorrentino, pleaded guilty today to violating federal tax laws.

Michael Sorrentino was a reality television personality who gained fame on “The Jersey Shore,” which first appeared on the MTV network.  According to documents and information provided to the court, he and his brother created businesses, such as MPS Entertainment LLC and Situation Nation Inc., to take advantage of Michael’s celebrity status. Michael Sorrentino admitted that in tax year 2011, he earned taxable income, including some that was paid in cash, and that he concealed a portion of his income to evade paying the full amount of taxes he owed.  He also made cash deposits into bank accounts in amounts less than $10,000, in an effort to ensure that these deposits would not come to the attention of the IRS.  Marc Sorrentino admitted that for tax year 2010, he earned taxable income and that he assisted his accountants in preparing his personal tax return by willfully providing them with false information and fraudulently underreporting his income.  Gregg Mark, the accountant for the Sorrentino brothers, previously pleaded guilty in 2015 to conspiring to defraud the United States with respect to their tax liabilities.

Sentencing is scheduled for April 25, 2018.

Today’s announcement was replete with the usual warnings to would-be tax evaders from Justice Department and IRS officials:

“Today’s pleas are a reminder to all individuals to comply with the tax laws, file honest and accurate returns and pay their fair share,” said Principal Deputy Assistant Attorney General Zuckerman. “The Tax Division is committed to continuing to work with the IRS to prosecute those who seek to cheat the system, while honest hardworking taxpayers play by the rules.”

“What the defendants admitted to today, quite simply, is tantamount to stealing money from their fellow taxpayers,” said U.S. Attorney Carpenito. “All of us are required by law to pay our fair share of taxes. Celebrity status does not provide a free pass from this obligation.”

 “As we approach this year’s filing season, today’s guilty pleas should serve as a stark reminder to those who would attempt to defraud our nation’s tax system,” stated Jonathan D. Larsen, Special Agent in Charge, IRS-Criminal Investigation, Newark Field Office.  “No matter what your stature is in our society, everyone is expected to play by the rules, and those who do not will be held accountable and brought to justice.”

It is well-known that the IRS and Justice Department typically increase the frequency of their press releases announcing enforcement activity in the weeks leading up to the tax filing deadline. In fact, academic research confirms that these agencies issue a disproportionately large number of tax enforcement press releases as “Tax Day” approaches:

Every spring, the federal government appears to deliver an abundance of announcements that describe criminal convictions and civil injunctions involving taxpayers who have been accused of committing tax fraud. Commentators have occasionally suggested that the government announces a large number of tax enforcement actions in close proximity to a critical date in the tax compliance landscape: April 15, “Tax Day.” These claims previously were merely speculative, as they lacked any empirical support. This article fills the empirical void by seeking to answer a straightforward question: When does the government publicize tax enforcement? To conduct our study, we analyzed all 782 press releases issued by the U.S. Department of Justice Tax Division during the seven-year period of 2003 through 2009 in which the agency announced a civil or criminal tax enforcement action against a specific taxpayer identified by name. Our principal finding is that, during those years, the government issued a disproportionately large number of tax enforcement press releases during the weeks immediately prior to Tax Day compared to the rest of the year and that this difference is highly statistically significant. A convincing explanation for this finding is that government officials deliberately use tax enforcement publicity to influence individual taxpayers’ perceptions and knowledge of audit probability, tax penalties, and the government’s tax enforcement efficacy while taxpayers are preparing their annual individual tax returns.

Joshua D. Blank and Daniel Z. Levin, When Is Tax Enforcement Publicized?, 30 Virginia Tax Review 1 (2010).

As “Tax Day 2018” approaches, we can expect similar — and more frequent — announcements intended to deter would-be tax cheats from filing false tax returns.

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Barely two months after being convicted of running a billion dollar illegal payday lending enterprise, professional racecar driver Scott Tucker was indicted today by a grand jury on federal charges of failing to report millions in income from that business. Also indicted today was Tucker’s accountant, who is charged with aiding in Tucker’s filing of a false tax return. The charges were filed in federal court in Kansas, where Tucker and his accountant reside.

The indictment alleges that in 2008 Tucker orchestrated a sham sale of his company CLK Management to a Native American tribe in Miami for $120,000. In fact, Tucker continued to control CLK and a new entity, AMG Services, Inc. After the sale, other people and entities were listed as owners of Tucker’s payday lending businesses. In fact, Tucker controlled the daily operations of those business, and he was alleged to be the source of funds being lent and he bore the risk of loans not being repaid.

W. Brett Chapin was a Certified Public Accountant who prepared Tucker’s tax returns for 2008, 2009, 2010, and 2011. The indictment alleges that on October 19, 2009, Tucker signed a 2008 tax return prepared by Chapin that failed to report more than $42.5 million in income from Tucker’s payday lending businesses. The indictment also alleges that on October 20, 2011, Tucker signed a 2010 tax return prepared by Chapin that failed to report more than $75 million in income from Tucker’s payday lending businesses.

In October, Tucker and a co-defendant were convicted after a five-week jury trial in federal court in Manhattan on all counts against them for operating a nationwide internet payday lending enterprise that systematically evaded state laws in order to charge illegal interest rates. “Payday loans” refer to small, short-term, high-interest, unsecured consumer loans, often made over the internet. The defendants had claimed that their $3.5 billion payday lending business was actually owned and operated by Native American tribes, and was thereby immune from state usury laws because of sovereign immunity, a legal doctrine which generally prevents states from enforcing their laws against Native American tribes. The defendants’ business made loans to more than 4.5 million individuals. Many of these loans were issued in states with laws that expressly forbid lending at the exorbitant interest rates charged.

Today’s indictment of Tucker on tax charges is notable for several reasons. First, based upon his conviction in the New York case on all counts – which include racketeering conspiracy, racketeering, wire fraud conspiracy, wire fraud, money laundering conspiracy, money laundering, and violating the Truth in Lending Act – Tucker faces an exorbitantly lengthy sentence. The RICO and money laundering counts provide for 20 year statutory maximum sentences, and given the government’s contention that Tucker ran a $3.5 billion payday lending business, he will likely face a sentence at the statutory cap. While some could argue that the government is “piling on” by bringing additional charges at this point, it is not unheard of for prosecutors to seek to indict defendants on tax charges separate and apart from a larger fraud case. In addition, Tucker will almost certainly appeal his payday lending conviction, and the tax charges (which are presumably easier to prove) will provide the government with additional leverage (and protection) in the event that Tucker’s payday lending conviction is reversed in whole or in part on appeal.  On the tax charges, Tucker similarly faces significant sentencing exposure if convicted:  with over $117 million in unreported income for 2009 and 2010, the tax loss will easily fall within the “greater than $25 million” and “less than $65 million” range in the tax table of the U.S. Sentencing Guidelines (2T1.1).  With a tax loss in this range, the Sentencing Guidelines conservatively call for a sentence in the range of 78 to 97 months, without taking into account criminal history points and other adjustments which almost certainly will apply and serve to increase the sentencing range.

Second, the indictment in the New York case did not include any tax charges, because venue in tax cases is based upon where the tax return is filed. As a resident of Kansas, Tucker filed his federal income tax returns in that state, and therefore the tax charges had to be brought separately from the New York case in the District of Kansas. The government presumably waited to indict Tucker on tax charges until after the payday lending case was completed.

Third, the Kansas indictment includes charges against Tucker’s accountant pursuant to 26 U.S.C. § 7206(2), which allows the government to prosecute anyone who willfully aids and assists in the filing of a tax return that is false as a material matter. The indictment alleges that Chapin was aware that Tucker actually controlled the payday lending entities despite the purported sale to the Miami tribe, and that during an audit of Tucker’s tax returns, Chapin repeatedly misled the Internal Revenue Service as to the location of the Tucker’s books and records. The indictment further charges that Chapin prepared Tucker’s 2010 personal income tax return which failed to report a whopping $75 million in income from Tucker’s payday lending business. The indictment also alleges that Chapin prepared Tucker’s 2009 personal income tax return which failed to report $42.5 million in income, but the criminal six-year statute of limitations for this return has expired so neither Tucker nor Chapin were charged with respect to this particular return.