Tax Justice Digest stories about Tax Gap
House and Senate committee chairmen continue their months-long battle over reauthorizing various agriculture programs under what is usually called the "farm bill," and some of the consternation is over tax provisions. Both chambers earlier agreed that they want to spend $10 billion over the spending "baseline" for the programs (which is essentially an assumption of a continuation of current policy). But the version House conferees recently offered cut that down to $6 billion above baseline by removing a disaster trust fund that several Senators want, while Senate conferees want to include $2.5 billion in tax breaks related to agriculture and energy.
Among the tax breaks is a half a billion dollars in incentives related to livestock, including a provision that would reduce capital gains taxes on horses which is supported by Senate Minority Leader Mitch McConnell (R-KY). Other tax breaks range from incentives to protect endangered species to encouraging the use of energy from wind and other sources, many of which seem to have little, if anything, to do with farming.
How to pay for new spending and tax breaks has also been controversial.
The White House had opposed a revenue-raising provision that the House attached to its version of the farm bill passed back in July (H.R. 2419). Initially proposed by Rep. Lloyd Doggett (D-TX) and endorsed by Citizens for Tax Justice, this provision would raise $7.5 billion over ten years by stopping foreign corporations with subsidiaries in the U.S. from manipulating international tax treaties to avoid taxes. The Senate passed a farm bill in December that had its own revenue-raising provisions. The largest was a provision that would reduce tax avoidance schemes by codifying what is known as the "economic substance doctrine," which basically means taxpayers will not obtain tax benefits from transactions that were entered into for no other purpose than to avoid taxes. Citizens for Tax Justice advocated for this measure (although calling for a stronger version of it).
Now the House Ways and Means Committee chairman Charles Rangel (D-NY) has proposed a different revenue-raising provision that would require credit card issuers to report payments made by cardholders to merchants. The Senate wants to raise revenue by requiring brokers of publicly traded securities to report the basis of a security in a transaction to ensure that capital gains taxes are paid fully. If that sounds familiar, it is. The House Ways and Means Committee included that offset in the package of tax provisions it approved to address the foreclosure crisis, as reported in this Digest.
An extension of the farm bill currently in effect expires Friday, and the White House has threatened to veto another extension.
Yesterday's Boston Globe breaks the story of how Kellogg Brown & Root (KBR), until last year a subsidiary of Halliburton, is avoiding hundreds of millions of dollars in federal Social Security and Medicare taxes by pretending its Iraq-based employees are working for a Cayman-Islands based "shell company."
According to the Globe, KBR has made a special arrangement to avoid paying taxes on about 10,500 of its American employees who are working in Iraq on various reconstruction programs. The way it works: KBR recruits people to work on reconstruction-related projects. But when the workers get their first paycheck, they see that it's not coming from KBR, but from a KBR subsidiary, Service Employers International Inc, (SEI).
Why such deception? Because unlike KBR, SEI is not based in the United States. SEI's corporate home is the Grand Cayman Islands. (Legally, anyway -- SEI has no actual offices in the Caymans, just a mailing address.) And while KBR employees working in Iraq would be subject to the 15.3 percent payroll tax for Social Security and Medicare (half of which is paid by the employer, the other half of which is paid by employees), SEI employees don't incur federal payroll tax liability because they're not working for a US-based company.
The Globe estimates that SEI is avoiding about $101 million in payroll taxes every year using this scam. If this has been going on throughout SEI's 5-year stint in Iraq, that's more than $500 million in revenue that won't be shoring up the Social Security system.
KBR representatives breezily dismiss this by pointing out that "the loss to Social Security could eventually be offset by the fact that the workers will receive less money when they retire, since benefits are generally based on how much workers and their companies have paid into the system."
So, for those looking for a more creative way of subverting Social Security than John McCain's privatization plans, here it is: reduce future Social Security benefits by pretending your employees aren't entitled to them!
One glitch in this clever plan, as the Globe alertly points out, is that Medicare benefits are not reduced for those who don't contribute. So the Medicare portion of the foregone 15.3 percent tax is money that is going to have to be raised through taxes on the rest of us. And Texas-based KBR is also avoiding state unemployment taxes on these workers, when means that they'll be ineligible for unemployment benefits later on.
The House and Senate have been battling each other, as well as the White House, over how to reauthorize various agricultural programs under what is usually referred to simply as the "Farm Bill." The battle is largely over how much the federal government should or should not support farming, which farmers should be supported and how. Proposals to raise revenue for a disaster trust fund, conservation and nutrition have added to the controversy. During the swearing in ceremony of the new Agriculture Secretary, Ed Schafer, Bush said specifically that he would veto any farm bill that raises taxes. House Agriculture Committee Chairman Collin Peterson (D-MN) is working on a new version of the bill to end the deadlock and it's reported that this version will attempt to raise revenue without tax increases.
One measure that the President considers a tax increase is a provision the House attached to its version of the farm bill passed back in July (H.R. 2419). Initially proposed by Rep. Lloyd Doggett (D-TX) and endorsed by Citizens for Tax Justice, this provision would raise $7.5 billion over ten years by stopping foreign corporations with subsidiaries in the U.S. from manipulating international tax treaties to avoid taxes. U.S. subsidiaries of foreign corporations don't have to pay withholding taxes on passive income if they are based in a country that has a treaty with the U.S. allowing that country to have the sole taxing power. But corporations based (on paper at least) in a non-treaty country can shift profits from a U.S. subsidiary to another subsidiary in a treaty country and then shift them to the parent corporation in the non-treaty country, ensuring that they are never taxed. The Doggett provision would simply apply the withholding that would apply if the payment was made directly to the parent company in the non-treaty country in that situation. The White House has singled this provision out as unacceptable.
The Senate passed a farm bill in December that had its own revenue-raising provisions. The largest is a provision that would reduce tax avoidance schemes by codifying what is known as the "economic substance doctrine," which basically means taxpayers will not obtain tax benefits from transactions that were entered into for no other purpose than to avoid taxes. In addition to raising $10 billion over ten years, this provision would arguably reduce the economic inefficiency that comes with the exploitation of tax loopholes. Citizens for Tax Justice advocated for this measure (although calling for a stronger version of it) but it is unclear whether the White House will see this as a "tax increase."
Another revenue-raising provision in the Senate bill takes aim at tax shelters known as sale-in, lease-out (SILOs). These arrangements, which can involve an American bank buying something like a subway or sewer system in another country and "leasing" it back to the foreign government for tax advantages, were already banned starting in 2004 but that ban would retroactively apply to deals made before 2004 under this provision. Some members of Congress oppose any such retroactive changes in tax laws, but the Senate Finance Committee earlier last year tried to include this change in minimum wage and energy legislation.
Now House Agriculture Committee Chairman Peterson is putting together a new version of the farm bill with the help of Republicans on his committee that will not include the Doggett provision. The White House appears to look more favorably on this effort. This bill would still require $6 billion in new revenue, and it's reported that Peterson is working with House Ways and Means Chairman Charles Rangel (D-NY) on provisions that would accomplish that by enhancing tax enforcement. Several members of the Senate, meanwhile, say that the deal would not invest enough in agriculture and are likely to respond with a new bill of their own.
Often lost in the debate over whether taxes should be increased or decreased is the fact that we can raise some revenue by doing a better job of enforcing current tax laws. A report issued earlier this month by OMB Watch explains that a lack of funding for tax enforcement by the IRS is costing us money and contributing to the "tax gap," the difference between the amount of taxes owed and the amount actually paid each year. The IRS has estimated that in 2001, $345 billion in taxes due was not collected on time, and around $290 billion of that was never collected. This means that taxpayers who comply with the law are in effect subsidizing those who do not.
The report, Bridging the Gap: The Case for Increasing the IRS Budget explains that IRS staff have been cut back since 1995 and that cuts have been especially severe among the staff who perform audits. Partly as a result of this, the number of audits is down, particularly for those with incomes over $100,000 and for large corporations -- the very types of audits that usually uncover the most in unpaid taxes. The amount of time spent on each audit has decreased and the audits are less often uncovering unpaid taxes, even though the tax gap remains a major problem.
Meanwhile, the report explains, Congress has instructed the IRS to crack down on EITC recipients (even though incorrect EITC payments account for only 3 percent or less of the tax gap) and has funded a private debt collection program that doesn't collect nearly as much money as IRS staff can collect at a given funding level.
The report argues that this situation can be turned around by increased funding for IRS enforcement, improved quality of audits, eliminating private debt collection and focusing more on assisting low-income taxpayers so that they can avoid errors in the extremely complicated EITC application process. Congress should pay serious attention. Increasing the IRS budget is one of the few opportunities lawmakers have to immediately raise revenues by spending money.
The Senate Finance Committee voted 17 to 4 Thursday to approve a tax package that will cost $17 billion over ten years and will be added to the reauthorization of the farm bill that the Senate Agriculture Committee will take up in a couple weeks. The tax package includes a $5 billion trust fund for crop disaster assistance as well as $3 billion in tax credits to encourage conservation. These items would replace direct spending programs for these purposes and, since the Finance Committee package includes offsets, will free up funds for other purposes in the larger agriculture bill.
The largest offset is a provision that will reduce tax avoidance schemes by codifying what is known as the "economic substance doctrine," which basically means that transactions having no purpose other than to avoid taxes are void. This provision, which arguably will reduce the economic inefficiency that comes with the exploitation of tax loopholes, will raise $10 billion over ten years.
Another revenue-raising provision takes aim at tax shelters known as sale-in, lease-out (SILOs). These arrangements, which can involve an American bank buying something like a subway or sewer system in another country and "leasing" it back to the foreign government for tax advantages, were already banned starting in 2004 but that ban would retroactively apply to deals made before 2004 under this provision. Some members of Congress oppose any such retroactive changes in tax laws, but the Senate Finance Committee earlier this year tried to include this change in minimum wage and energy legislation.
Another provision raises $854 million by cutting the tax credit for ethanol from 51 cents to 46 cents a gallon when ethanol production reaches a certain level. Several amendments were approved. Jim Bunning (R-KY) delayed the markup for a couple hours before agreement was reached to include his amendment to create a 50 cent-per-gallon tax credit for fuel made from liquefied coal or natural gas. Environmental organizations point out that use of liquefied coal may actually increase global warming, underscoring the possibility that these matters are not exactly within the expertise of the Congressional tax-writing committees.
Senator Carl Levin (D-MI) introduced a bill this week to end the disparity between deductions taken by companies for stock options and the expenses that are actually reported on the companies' books for those options. Corporations sometimes compensate employees (particularly executives) with options to buy stock at a set price. The employee can wait to exercise the option until after the value of the stock has increased beyond that price, thus enjoying a substantial tax benefit.
When stock options are exercised, employees report the difference between the value of the stock and the exercise price as taxable wages. The employer reports the fair value of the option at the date it's granted in its financial statements, yet takes a deduction for the value of the option on the date it is exercised, which is often much greater. This "book-tax gap" means that how the options are valued for accounting purposes and reported to stock-holders is different from how they're valued and reported to the IRS. Levin's bill would make the amount deducted for tax purposes equal to the value accounted for in financial statements.
According to calculations made by his staff using IRS data and released in June, firms deducted $43 billion that was not included in financial books in this manner between December 2004 to June 2005. CTJ's 2004 study of corporate taxes cited stock options as one of the key reasons corporations were able to avoid taxes.
American insurance companies came to the Hill Wednesday to complain about a tax-avoidance strategy that they say is giving Bermuda-based insurance companies an unfair competitive advantage. The general idea is that an insurance company can locate or relocate in Bermuda, which has a tax treaty with the United States allowing premiums paid to Bermuda-based insurers by U.S. customers to be free of U.S. tax, except for a 1 percent excise tax. The company's U.S. affiliate sells insurance to U.S. customers and then buys reinsurance (which is common for insurers) from the parent in Bermuda, so that income from premiums is effectively shifted to Bermuda where it can be invested tax-free.
In reality the affiliates are operating as one company just shifting money around on paper. The strategy apparently requires very little in the way of actual employees of facilities physically located in Bermuda.
A U.S.-based insurer will generally pay the corporate tax rate of 35 percent on its income, and thus is put at a competitive disadvantage relative to the Bermuda-based insurer. The strategy available to the Bermuda-based insurers should be eliminated for moral reasons, but thankfully there are some powerful U.S.-based insurers that have found it in their own interest to start lobbying for reform.
While some members of the Finance Committee have expressed concern and an interest in a legislative solution, no proposal has been made public yet. The Bermuda-based companies have formed their own lobbying coalition to block reform.
A new proposal in the Senate would crack down on employers who misclassify workers as independent contractors to avoid paying federal payroll taxes. Low-income workers who are not knowledgeable about the tax rules can be classified as independent contractors and not realize that this means they must pay both the employer portion and the employee portion of federal payroll taxes to the IRS on their own.
Anecdotal accounts from volunteer tax preparers who help low-income families file for the EITC indicate that they have had to tell some people in this situation that they actually owe a huge amount of payroll taxes that they had not planned for. When these workers do not or are not able to make the payment, this results in reduced taxes being paid into Social Security and Medicare. The Government Accountability Office has estimated that the cost each year is at least several billion dollars in lost revenues.
The proposal would reform the current rules, which provide a "safe harbor" that lets employers who misclassify workers as independent contractors continue doing so if they had a "reasonable basis" for the classification. Under current law, the reasonable basis can be that the practice is widespread in the particular industry, meaning that construction companies can misclassify workers because so many other construction companies do the same. The misclassification can also lead to the denial of other workers' rights and benefits as well as employer-provided health benefits and pension benefits.
The bill (S. 2044) would bar employers from using this "reasonable basis" argument and would allow the IRS to tell employers to reclassify workers in this situation. The bill is sponsored by Senators Barack Obama (D-IL), Edward Kennedy (D-MA), Richard Durbin (D-IL), and Patty Murray (D-WA).
The "tax gap," the difference between the total taxes owed and the total taxes paid in a given year, continues to be an alluring target for members of Congress. The IRS has estimated that in 2001, $345 billion in taxes due was not collected on time, and around $290 billion of that will never be collected. There is possibly much more tax evasion taking place in offshore tax havens.
A bill has been introduced in the House by Representatives Rahm Emanuel (D-IL), Lloyd Doggett (D-TX) and Rosa DeLauro (D-CT) to crack down on offshore tax havens. A companion bill was introduced a few months ago in the Senate by Senators Carl Levin (D-MI), Norm Coleman (R-MN) and Barack Obama (D-IL). The legislation includes a presumption that offshore trusts and shell corporations in designated tax havens are controlled by the taxpayers funding them or directing them. It would also ban patents on tax strategies and would allow the federal government to order American banks to stop accepting or authorizing credit cards from foreign countries or banks not cooperating with U.S. tax enforcement laws. These reforms are important to anyone who pays her fair share - and is tired of subsidizing people who don't.
A new report from the General Accounting Office (GAO) explores the murky waters of overseas tax avoidance by wealthy Americans, and finds that while IRS audits of Americans using offshore tax havens often uncover large tax scams and a great deal of revenue, the government is hampered in its investigative work by rules requiring tax administrators to wrap up most audits in three years. The GAO report was presented in a Senate Finance Committee hearing yesterday, where a Treasury official did not say whether the Bush administration would consider changing the statute of limitations for these particular tax audits. The report examines case studies showing that three years is simply not enough time to effectively catch tax cheats who are running away as fast as they can. The New York Times' Edmund Andrews has the story. The Talking Taxes weblog has commentary.
