Over the last few weeks, we have heard a lot about how the health care bill will change the delivery of health services, but there has been very little attention paid to the revenue raising provisions of the bill. There are a lot of tax provisions designed to enhance the health care purposes of the bill, but there are others that are simply designed to raise revenue. The next few posts will discuss these new provisions.
The first item I would like to discuss relates to the positions taken on tax returns by large corporations. To understand this provision, I will provide some background on the incredibly stupid rules dealing with positions taken on tax returns.
Generally, penalties are imposed on any taxpayer who, in the preparation of its tax return, reports a transaction in a manner that is contrary to law. The size of the penalty depends on the reasonableness of the position taken by the taxpayer in reporting the transaction, and here is where the insanity takes hold. If the taxpayer reasonably thought that it was more likely than not the transaction was reported correctly, then no penalty is applied. If the taxpayer was negligent in when it reported the transaction, or reported the transaction intentionally (knowing it was incorrect), then a penalty is imposed.
But between these two situations, there is a middle ground. If there is "substantial authority" for the manner in which the transaction was reported, then there is no penalty. It is important to understand what this means. A taxpayer may think that the position it takes on the return is a loser, but if it can find a statutory provision, or a regulation, or a case that could possible be viewed as supporting that position, then no penalty is applied.
Now there are two really bad consequences to these rules. First, a taxpayer can report a transaction believing it is reported incorrectly, but there is no penalty for doing so. This encourages them to take these kinds of positions in the knowledge that if they lose, no penalty is imposed. In other words, there is no risk to the taxpayer from reporting the transaction incorrectly, so it might as well report the transaction incorrectly in the hopes that the IRS doesn't discover the incorrect position. Given the limited resources of the IRS to examine returns, there is no doubt a substantial amount of tax goes uncollected because of this position.
Second, there are a number of accounting firms, law firms and others that peddle transactions that are designed to reduce taxes. The "buyers" of these transactions are generally large corporations and wealthy individuals. One of the things the sellers of these transactions have to do is to advise the buyer of the probability that the transaction will work to reduce taxes. Often times, the sellers advise that there is "substantial authority" that the transaction will reduce taxes. Understand this - the seller of the transaction believes the position is incorrect, and the buyer of the transaction believes it is incorrect, but nevertheless the buyer will pay the seller a fee because the chances are it won't be caught on audit, or if it is no penalty will be imposed.
Thankfully, the health care bill passed by the House (section 563) ends this madness at least where large corporations are concerned. It essentially provides that a large corporation must report a transaction reasonably believing that the manner in which it is reported is correct. Otherwise, the penalty for understating income is imposed.
Now I have my doubts that this provision will ultimately survive, assuming the health reform bill is enacted in any event. It is aimed at those who have the greatest influence on legislation passed by Congress - large publicly-traded corporations. Nevertheless, it is good to see that there is at least some effort being made to prevent large corporations from reducing their taxes by misreporting their income.