Tuesday, July 26, 2011

Supreme Court says Class Action over L.A. telephone tax


Los Angeles Times

-- Maura Dolan in San Francisco

July 25, 2011 A class action lawsuit against the city of Los Angeles for a refund of potentially hundreds of millions of dollars in telephone taxes may proceed as a result of a unanimous ruling Monday by the California Supreme Court.

The ruling, written by Justice Ming W. Chin, upheld the right of citizens to bring class actions against municipal governments for collection of allegedly illegal taxes.

The decision will affect similar lawsuits against Los Angeles County, Long Beach and Chula Vista, lawyers in the case said. The suits claim that the governments have illegally taxed telephone users. The tax appears on phone bills.

The case against L.A. was filed in 2006. The city argued that the taxpayers should have filed individual claims for refunds before bringing a class action and won in the trial court and the appeals court.

As a result of Monday's ruling, "It's possible we will consider bringing actions against other jurisdictions," said Frank Gregorek, who argued the case for the taxpayer. The class that would recover funds would include all residents who paid the taxes.

During the years at which the suit is aimed, L.A. charged users a 10% tax on their phone bills, he said. City voters later approved the tax but lowered it to 8%, he said.


Monday, July 25, 2011

IRS Change Helps 'Innocent Spouse'



The Internal Revenue Service announced a change in how it decides which taxpayers qualify for "innocent spouse" relief, a determination that frees the taxpayer from liability for a partner's tax debts.

Effective immediately, the agency has eliminated a rule that disqualifies taxpayers from innocent-spouse status if they fail to file for relief within two years—a provision that snagged people who otherwise qualified, including abused women.

"Today's change will help innocent spouses victimized in the past, present and future," said IRS Commissioner Doug Shulman.

The agency's shift was welcomed by others who pushed for it, including National Taxpayer Advocate Nina Olson and several dozen lawmakers led by Rep. Fortney "Pete" Stark (D., Calif.). Recently, the IRS has won federal appeals court cases involving the two-year deadline, so any change needed to come from within the agency or from Congress.

The change affects taxpayers applying for so-called equitable relief, a category open to taxpayers who don't meet strict requirements of other provisions in the innocent spouse law. An agency spokesman said the IRS receives about 50,000 requests under this provision a year, although the number of actual taxpayers is smaller because a taxpayer often requests relief for more than one year. Many are women under financial pressure, and some have been abused.

Until the change, the IRS denied applicants who missed its deadline of two years after the first collection notices sent by the agency. But some didn't know about the notices or the possible relief, and others feared a spouse's reaction.

Last summer, a federal appeals court upheld an IRS argument for the two-year deadline in the case of Cathy Marie Lantz, the former wife of an Indiana dentist. In 2000, her husband, Dr. Richard Chentnik, was arrested and convicted of Medicaid fraud, resulting in a $900,000 bill from the IRS. Ms. Lantz didn't file for innocent spouse relief because Dr. Chentnik told her he had taken care of it, and he died shortly afterwards. Through one of her pro-bono lawyers, Ms. Lantz declined to comment.

Agency officials said the change will apply to past as well as current cases. In its announcement, the IRS invited taxpayers who were denied relief solely because of the two-year limit it changed to reapply. Agency officials also said they wouldn't apply the two-year rule to pending litigation and might suspend collections in cases the IRS has won in court.

Experts say the elimination of the two-year deadline may be the first of more IRS revisions to the innocent spouse rules. "We believe more changes are coming," said Carlton Smith of Cardozo Law School in New York. An IRS official affirmed the possibility of more changes, but declined to say what they might be or when they might happen.

Write to Laura Saunders at laura.saunders@wsj.com

Tuesday, July 19, 2011

IRS Denies Non-Profit Status To Three Political Groups

By Dan Froomkin
Huffington Post 
First Posted: 7/19/11 09:46 AM ET Updated: 7/19/11 11:02 AM ET

WASHINGTON -- The IRS has denied non-profit status to three unnamed political organizations, setting off speculation about their identities -- and about whether other groups could be next.

The IRS rulings, first reported by the Election Law Blog, deny 501(c)(4) nonprofit status to three undisclosed organizations on the grounds that their activities are "conducted primarily for the benefit of a political party and a private group of individuals, rather than the community as a whole."

The move has the potential to slow the rise of overtly political organizations that claim non-profit status as "social welfare groups." Due to a controversial loophole in federal campaign finance rules, the names of donors to those organizations do not have to be disclosed publicly.

The three rulings (here, here and here) are redacted to remove identifying information, but the three groups were apparently involved in training members of a specific political party.

"[Y]our purpose in conducting this activity is to provide education solely to individuals affiliated with a certain political party who want to enter politics," reads one IRS letter. "Indeed, you measure your success in terms of the number of your graduates who have won elective office representing the [redacted] or are actively engaged as campaign managers and advocates for [redacted] campaigns."

The groups were formed separately -- on Aug. 7, 2006, Aug. 16, 2006, and Dec. 21, 2007 -- but otherwise appear very similar. Each required detailed applications, charged application fees and tuition and provided scholarships for their training programs. In the ruling, the IRS pointed out that one group's training date coincided with the unnamed political party's state convention.
Advertisement

This kind of nonprofit designation is typically not much more than a formality, but IRS guidelines for 501(c)(4) status state that social welfare groups "must operate primarily to further the common good and general welfare of the people of the community" -- which "does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office."

Beginning with the 2010 election cycle, after the Supreme Court's Citizens United decision cleared the way for unlimited corporate donations to political organizations, some operatives saw the potential for using 501(c)(4)s status as a way not only to accept unlimited money, but to do so secretly.

Campaign finance reformer advocates -- and members of Congress -- have asked the IRS to deny or revoke non-profit status for such groups.

This past fall, Senate Finance Committee Chairman Max Baucus (D-Mont.) and Sen.Dick Durbin (D-Ill.) sent letters to the IRS requesting investigations of some 501(c)(4) groups.

Experts consulted by The Huffington Post have said that a group denied its 501(c)(4) status would suddenly owe the government a lot of money, either in taxes on donations received or in the form of a hefty fine for violating disclosure rules.

The Karl Rove-affiliated group Crossroads Grassroots Political Strategies, for example, used its nonprofit status to raise $43 million from undisclosed donors in 2010, and that money made the group a hugely influential player in the midterm elections. Were its 501(c)(4) status revoked, Crossroads would be subject to those tax liabilities and potential fines for nondisclosure.

The recent letters from the IRS, which were sent out April 4 but only released to the public on Friday, instruct the three groups to file their federal income tax returns or a request for an extension within 30 days.


Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to his RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

Monday, July 18, 2011

Get Ready for a 70% Marginal Tax Rate

Some argue the U.S. economy can bear higher pre-Reagan tax rates. But those rates applied to a much smaller fraction of taxpayers than what we're headed for without spending cuts.

By MICHAEL J. BOSKINPresident Obama has been using the debt-ceiling debate and bipartisan calls for deficit reduction to demand higher taxes. With unemployment stuck at 9.2% and a vigorous economic "recovery" appearing more and more elusive, his timing couldn't be worse.

Two problems arise when marginal tax rates are raised. First, as college students learn in Econ 101, higher marginal rates cause real economic harm. The combined marginal rate from all taxes is a vital metric, since it heavily influences incentives in the economy—workers and employers, savers and investors base decisions on after-tax returns. Thus tax rates need to be kept as low as possible, on the broadest possible base, consistent with financing necessary government spending.

Second, as tax rates rise, the tax base shrinks and ultimately, as Art Laffer has long argued, tax rates can become so prohibitive that raising them further reduces revenue—not to mention damaging the economy. That is where U.S. tax rates are headed if we do not control spending soon.

The current top federal rate of 35% is scheduled to rise to 39.6% in 2013 (plus one-to-two points from the phase-out of itemized deductions for singles making above $200,000 and couples earning above $250,000). The payroll tax is 12.4% for Social Security (capped at $106,000), and 2.9% for Medicare (no income cap). While the payroll tax is theoretically split between employers and employees, the employers' share is ultimately shifted to workers in the form of lower wages.

But there are also state income taxes that need to be kept in mind. They contribute to the burden. The top state personal rate in California, for example, is now about 10.5%. Thus the marginal tax rate paid on wages combining all these taxes is 44.1%. (This is a net figure because state income taxes paid are deducted from federal income.)

So, for a family in high-cost California taxed at the top federal rate, the expiration of the Bush tax cuts in 2013, the 0.9% increase in payroll taxes to fund ObamaCare, and the president's proposal to eventually uncap Social Security payroll taxes would lift its combined marginal tax rate to a stunning 58.4%.

But wait, things get worse. As Milton Friedman taught decades ago, the true burden on taxpayers today is government spending; government borrowing requires future interest payments out of future taxes. To cover the Congressional Budget Office projection of Mr. Obama's $841 billion deficit in 2016 requires a 31.7% increase in all income tax rates (and that's assuming the Social Security income cap is removed). This raises the top rate to 52.2% and brings the total combined marginal tax rate to 68.8%. Government, in short, would take over two-thirds of any incremental earnings.

Many Democrats demand no changes to Social Security and Medicare spending. But these programs are projected to run ever-growing deficits totaling tens of trillions of dollars in coming decades, primarily from rising real benefits per beneficiary. To cover these projected deficits would require continually higher income and payroll taxes for Social Security and Medicare on all taxpayers that would drive the combined marginal tax rate on labor income to more than 70% by 2035 and 80% by 2050. And that's before accounting for the Laffer effect, likely future interest costs, state deficits and the rising ratio of voters receiving government payments to those paying income taxes.

It would be a huge mistake to imagine that the cumulative, cascading burden of many tax rates on the same income will leave the middle class untouched. Take a teacher in California earning $60,000. A current federal rate of 25%, a 9.5% California rate, and 15.3% payroll tax yield a combined income tax rate of 45%. The income tax increases to cover the CBO's projected federal deficit in 2016 raises that to 52%. Covering future Social Security and Medicare deficits brings the combined marginal tax rate on that middle-income taxpayer to an astounding 71%. That teacher working a summer job would keep just 29% of her wages. At the margin, virtually everyone would be working primarily for the government, reduced to a minority partner in their own labor.

Nobody—rich, middle-income or poor—can afford to have the economy so burdened. Higher tax rates are the major reason why European per-capita income, according to the Organization for Economic Cooperation and Development, is about 30% lower than in the United States—a permanent difference many times the temporary decline in the recent recession and anemic recovery.

Some argue the U.S. economy can easily bear higher pre-Reagan tax rates. They point to the 1930s-1950s, when top marginal rates were between 79% and 94%, or the Carter-era 1970s, when the top rate was about 70%. But those rates applied to a much smaller fraction of taxpayers and kicked in at much higher income levels relative to today.

There were also greater opportunities for sheltering income from the income tax. The lower marginal tax rates in the 1980s led to the best quarter-century of economic performance in American history. Large increases in tax rates are a recipe for economic stagnation, socioeconomic ossification, and the loss of American global competitiveness and leadership.

There is only one solution to this growth-destroying, confiscatory tax-rate future: Control spending growth, especially of entitlements. Meaningful tax reform—not with higher rates as Mr. Obama proposes, but with lower rates on a broader base of economic activity and people—can be an especially effective complement to spending control. But without increased spending discipline, even the best tax reforms are doomed to be undone.

Mr. Boskin is a professor of economics at Stanford University and a senior fellow at the Hoover Institution. He chaired the Council of Economic Advisers under President George H.W. Bush.

Friday, July 15, 2011

A Reorganization Can Include A Rehabilitation


Until last year, Ambac Assurance, a Wisconsin domiciled insurer, was one of the largest monoline insurers in the world.  Originally it insured low-risk, public finance bonds.  However, in the 1990s it started to offer financial guarantee insurance on residential mortgage backed securities and collateralized debt obligations of asset-backed securities.  Not surprisingly, Ambac was a casualty of the 2008 financial crisis.  In response, Ambac stopped writing policies and began an informal run-off.

The separate account and its rehabilitation

In 2010, Ambac created a segregated account for the purpose of isolating certain of its liabilities.  The segregated account holds many of the policies against which there are significant existing claims or the likelihood of significant claims.  Under Wisconsin insurance law, the segregated account is treated as a separate insurer from Ambac for purposes of rehabilitation.  The Wisconsin Office of the Commissioner of Insurance (OCI) filed this petition for a rehabilitation for the segregated account.
The OCI defines a “rehabilitation” as:
An action in which an insurance regulator takes control of an insurance provider and all aspects of its business.  Rehabilitation can be triggered when an insurance provider enters a hazardous financial condition that adversely impacts its claims-paying ability and puts policyholders at risk.
On January 24, 2011, a Wisconsin Circuit Court approved Ambac’s plan of rehabilitation.  The plan provides for the orderly run-off and/or settlement of the liabilities allocated to the segregated account.   Under the plan, holders of valid policy claims will receive a combination of cash payments and unsecured notes.

What does this have to do with California?

Earlier this year, Ambac requested an interpretive opinion from the Commissioner of Corporations concerning whether the rehabilitation constitutes a “sale” as defined in Corporations Code Section 25017.  Last month, the Commissioner responded favorably with this opinion.  The Commissioner relied on the exclusion in Section 25017(f)(3) for any transaction incident to a reorganization approved by a state or federal court in which securities are issued in exchange for one or more outstanding securities, claims, or property interests, or partly in that exchange and partly for cash.  To reach this conclusion, the Commissioner had to find that a “reorganization” includes a rehabilitation.  The Commissioner, however, emphasized that the reorganization exclusion should be interpreted narrowly.

Section 3(a)(10) No-Action Letter

Ambac also submitted this no-action request to the Securities and Exchange Commission with respect to the ability to rely upon the Section 3(a)(10) exemption under the Securities Act of 1933.  The staff issued this favorable response.

Thursday, July 14, 2011

The Lawyer Surplus, State by State

By: CATHERINE RAMPELL11:35 a.m. | Updated to include more detail on and caveats for estimates for Wisconsin and Washington, D.C.


We’ve written before about the tough job market for recent law-school graduates. The climate is hard partly because of the weak economy, but also partly because the nation’s law schools are churning out many more lawyers than the economy needs even in the long run.

Now a few researchers have tried to quantify exactly how big that surplus is.

The numbers were crunched by Economic Modeling Specialists Inc. (also known as EMSI), a consulting company that focuses on employment data and economic analysis. The company’s calculations were based on the number of people who passed the bar exam in each state in 2009, versus an estimate of annual job openings for lawyers in those states. They also looked at data from the Department of Education on law school graduates each year to get another measure of the quantity of new lawyers. Estimates for the number of openings [are] based on data from the Bureau of Labor Statistics and the Census Bureau.

According to this model, every state but Wisconsin and Nebraska (plus Washington, D.C.) is producing many more lawyers than it needs. (See table after the jump for full data, and additional caveats.)

In fact, across the country, there were twice as many people who passed the bar in 2009 (53,508) as there were openings (26,239). A separate estimate for the number of lawyers produced in 2009 — the number of new law-school graduates, according to the National Center for Education Statistics — also showed a surplus, although it was not quite as large (44,159 new law grads compared with 26,239 openings).

In raw numbers, New York has the greatest legal surplus by far.

In 2009, 9,787 people passed the bar exam in the Empire State. The analysts estimated, though, that New York would need only 2,100 new lawyers each year through 2015. That means that if New York keeps minting new lawyers apace, it will continue having an annual surplus of 7,687 lawyers.

California and New Jersey have the next largest gluts of new lawyers, according to EMSI.

As noted above, not every state is overproducing lawyers. Nebraska appears to have a small deficit of lawyers. Wisconsin is also listed as having a deficit according to the number of people who passed the bar exam, but the bar-passers figure may not be a good metric (as noted by many readers in response to an earlier version of this post). Graduates of University of Wisconsin Law School and Marquette University Law School, in Milwaukee, do not have to take the bar exam in order to practice law, so there may be many new lawyers not counted in this figure. Note that the Education Department’s figures for the number of people who completed law school in Wisconsin is far higher, and would indicate that Wisconsin too has a surplus of new attorneys.

The place list with the biggest shortage is the District of Columbia, which is projected to have 618 new jobs opening annually for lawyers for the next few years, but had only 273 bar-passers in 2009. But as several readers observed in the comments, the District of Columbia waives in lawyers who are barred in other states, meaning that these figures probably underestimate the number of newly-minted lawyers in the nation’s capital. (If you know how to calculate a better estimate for this figure, please e-mail us.)

The District of Columbia has the highest median wage for lawyers in the country: $70.96 an hour.

2010-15 Est. Annual Openings 2009 Bar Exam Passers 2009 Completers (IPEDS) Surplus/Shortage Median Wages
New York 2,100 9,787 4,771 7,687 $56.57
California 3,307 6,258 5,042 2,951 $50.61
New Jersey 844 3,037 787 2,193 $43.84
Illinois 1,394 3,073 2,166 1,679 $51.54
Massachusetts 715 2,165 2,520 1,450 $43.89
Pennsylvania 869 1,943 1,697 1,074 $46.05
Texas 2,155 3,052 2,402 897 $41.55
Florida 2,027 2,782 2,781 755 $36.39
Maryland 560 1,277 548 717 $41.46
Missouri 362 943 908 581 $39.96
Connecticut 316 880 510 564 $43.69
North Carolina 503 1,032 279 529 $37.79
Minnesota 378 888 948 510 $43.69
Ohio 686 1,194 1,513 508 $34.69
Georgia 779 1,217 894 438 $46.11
Colorado 547 967 509 420 $40.83
Virginia 956 1,375 1,435 419 $49.34
Louisiana 357 731 810 374 $33.35
Tennessee 389 735 446 346 $37.34
Washington 619 935 678 316 $37.37
Oregon 291 594 519 303 $34.51
Indiana 339 602 825 263 $32.48
South Carolina 262 506 410 244 $33.03
Kentucky 261 478 389 217 $34.39
Nevada 219 392 143 173 $40.32
Arizona 440 607 378 167 $37.51
New Mexico 134 298 114 164 $29.78
Michigan 862 1,024 1,993 162 $35.22
Kansas 190 351 296 161 $31.16
Alabama 295 455 406 160 $37.98
Iowa 155 290 556 135 $32.16
Rhode Island 102 209 184 107 $39.65
Hawaii 76 179 88 103 $33.70
Mississippi 173 268 335 95 $28.86
Utah 308 401 283 93 $37.04
W. Virginia 100 191 152 91 $32.51
Montana 81 163 83 82 $24.96
Maine 75 153 91 78 $29.70
Arkansas 152 227 243 75 $30.83
Wyoming 40 113 80 73 $29.86
New Hampshire 92 154 146 62 $30.84
Oklahoma 326 387 489 61 $29.56
South Dakota 38 83 73 45 $29.19
North Dakota 33 63 80 30 $28.78
Idaho 128 157 97 29 $30.77
Alaska 41 66 0 25 $37.80
Delaware 116 141 235 25 $60.67
Vermont 51 55 191 4 $30.48
Nebraska 112 109 279 -3 $32.47
Wisconsin 262 248 691 -14 $36.43
D.C. 618 273 2,109 -345 $70.96
Nation 26,239 53,508 44,159 27,269 $44.22