June 15, 2018
Trump Administration Backs Court Case to Overturn Key Obamacare Provisions
(Politico) June 7, 2018 – The Trump administration is urging a federal court to dismantle two of the most popular provisions of Obamacare, but to delay taking such drastic action until after the midterm elections this fall.
Responding to a lawsuit from conservative states seeking to invalidate the Affordable Care Act, the Justice Department told a judge in Texas on June 7 that Congress’ decision to repeal the penalty for failing to buy health insurance renders unconstitutional other Obamacare language banning insurers from charging people more or denying them coverage based on a pre-existing condition.
The Texas-led lawsuit filed in February claims that the recent elimination of Obamacare’s individual mandate penalty means that the whole health care law should now be ruled invalid. The mandate penalty was wiped out effective in 2019 as part of the GOP tax law passed late last year, H.R. 1 (115).
The administration's June 7 filing says it agrees with states bringing the suit that the individual mandate is unconstitutional, as are two of the law’s major insurance provisions meant to protect people with expensive medical conditions. With the filing, the Trump administration is asking the courts to wipe out protections that many congressional Republicans were wary of eliminating in their failed efforts to repeal Obamacare.
Attorney General Jeff Sessions, in a letter to House Speaker Paul Ryan, acknowledged that the executive branch typically defends existing federal law, but he said this was a “rare care where the proper course” is to forgo defense of the individual mandate. He said the two insurance provisions, known as guaranteed issue and community rating, should be struck because they are too closely tied to the individual mandate. Without the mandate, Sessions wrote, “individuals could wait until they become sick to purchase insurance, thus driving up premiums for everyone else.”
The administration's decision means that a group of 15 Democratic states led by California will be largely responsible for defending the Obamacare against its latest legal threat.
California Attorney General Xavier Becerra called the lawsuit “dangerous and reckless” and argued that the Supreme Court already upheld the legality of the individual mandate in earlier decisions. He estimated that the states that are defending the health law could lose half a trillion dollars in health care funding if the lawsuit is successful.
"I am at a loss for words to explain how big of a deal this is," University of Michigan health law professor Nicholas Bagley, an authority on Obamacare, wrote on Twitter. "The Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief torches that commitment."
Still, the Justice Department said that other provisions of the law, such as the health insurance marketplaces and Medicaid expansion, should not be struck down with the mandate. The administration also said the court shouldn’t grant the states’ request to immediately halt the law while the court challenge is pending because the individual mandate penalty will remain in effect until January.
The Trump administration has taken numerous steps to dismantle the law - eliminating a key subsidy, paring back outreach and marketing funds, and promoting health plans that don’t meet the law’s robust requirements.
Repeal efforts have largely stalled on the Hill, and the health law remains on the books. Insurers have begun to file 2019 rate proposals, and Virginia‘s governor signed Medicaid expansion into law June 7. Still, the Trump administration has been using executive power and regulations to further undermine the health law.
By adopting this legal position - refusing to defend key parts of the law - the administration is taking its fight against Obamacare even further, said Tom Miller, a resident health policy fellow at the American Enterprise Institute.
The federal government would usually defend a lawsuit brought against it by states. This filing reveals the Trump administration’s attempt to appease its base while defending other popular parts of the law. With this filing, Trump “can have his cake and eat it too by saying we got rid of individual mandate,” said Miller.
Conservative states hope the legal challenge will be the fifth involving Obamacare to reach the Supreme Court - although this lawsuit has been seen as a long shot.
Ironically, the states based their case in part on Chief Justice John Roberts’ 2012 decision that upheld the legality of the individual mandate as a tax and recognized the penalty as crucial to making Obamacare function. The states say that means the entire law should no longer stand without the tax penalty.
Conservative states hope they have improved their case’s prospects by finding individual plaintiffs who say they are still hurt by the mandate even though the penalty is gone and by filing the suit in a favorable venue.
The first arguments will be aired in Fort Worth later this year before District Judge Reed O’Connor, a George W. Bush appointee who in 2016 ruled against Obamacare regulations barring health care providers from discriminating against transgender patients and those seeking abortion-related care.
The Trump administration’s decision not to defend a law it administers has recent precedent. In 2011, the Obama administration said it wouldn’t the defend the Defense of Marriage Act, which banned federal recognition of same-sex marriage. Two years later, the Supreme Court struck down a key part of DOMA, and it recognized the right to same-sex marriage nationwide in 2015.
Lease Accounting Standard Has Technology Hurdles
(Pub) June 7, 2018 –
The lease accounting standard that public companies are gearing up to comply with by the end of the year is presenting them with some technology obstacles, according to a new report from Big Four firm Deloitte.
The challenges include new data elements, data housed in various systems, relevant information being spread across multiple lease agreements, a high volume of data fields, and multiple languages, contracting parties and currencies. In many cases, the lease agreements aren’t in electronic format, and there’s often a lack of in-house resources to deal with the new standard.
“We are definitely seeing that companies are not fully prepared for implementing the lease standard,” said Jeanne McGovern, an audit and assurance partner at Deloitte. “They’re seeing a number of key challenges in terms of operationalizing this, surrounding data collection and working through any system, either modifications or implementing a new system. At this point, the challenge is that the time is running very short to be able to execute and be in compliance by Jan. 1, 2019.”
Lease accounting standard concerns
The new lease accounting standard, which the Financial Accounting Standards Board and the International Accounting Standards Board collaborated on for several years, will add operating leases to the balance sheets of companies for the first time. It’s likely to have a large impact on the financials of companies in many industries, including airlines, real estate and the retail sector. Although there are differences between the versions of the individual standards that eventually emerged from FASB and IASB despite their long-running convergence effort between U.S. GAAP and International Financial Reporting Standards, both standard-setting boards made the significant move of putting leases on the balance sheet.
One question for many companies is deciding whether to use cloud-based technology or an on-premise solution, according to the report. Another strategic question is considering whether or not to centralize or decentralize the systems and processes related to leases.
“From our research, it comes down to what the company’s lease portfolio actually looks like, and how complex it is,” said Sean Torr, a managing director at Deloitte. “It’s clear that most companies are looking for some form of technology solution, whether it be modifying their existing solutions or procuring a new solution. For most companies there is a technology component to their overall implementation. The level of preparedness for most companies is lower than would be expected at this point, so companies are grappling with the timeline component of this implementation. You’ve got a few very long lead time activities that have to be conducted: selecting, installing and testing technology solutions, as well as populating that solution with the data that is required to perform all the calculations, so the window of time is narrowing quickly for companies. Companies are starting to realize there’s still a lot to effort to be ready for the standard.”
During a recent Deloitte conference in Washington, D.C., on the leasing standard, the firm polled the corporate executives in attendance about their concerns in adopting the new standard. It found that 49 percent of the respondents cited the cost of implementation, 21 percent referred to the material impact on the company’s financial statements, 12 percent cited the time limitations for executive involvement, and 5 percent said data security issues.
Some companies might decide to install a temporary technology solution before they run out of time.
“There are certainly solutions that a company can put in place in the interim,” said Torr. “We’re actually starting to see more companies exploring an interim solution while in parallel they implement a longer-term solution. There are solutions that companies are starting to realize they need to achieve the compliance deadline. This does provide companies an opportunity to focus on the broader process and technology components for the long-term. Some companies are exploring implementing a lease administration as well as a lease accounting solution. Those solutions may take a longer time to implement than the window of time that they have. That’s why they’re exploring this interim solution as well.”
If companies do opt for a temporary fix, they should try to avoid repeating the same work.
“When companies think they need to implement an interim solution before they get to a long-term vision of how they’re managing their lease portfolios, try to aggregate and gather the data from lease agreements once with a long-term solution in mind so that leases don’t need to be handled twice,” McGovern advised. “They only need to be reviewed and the appropriate data collected once. It’s important for companies to be thinking about what their longer-term objectives are and incorporating that into their planning, even if they do need to choose an easier to implement solution.”
When asked what area of their corporate planning is most impacted by the new lease accounting changes, 37 percent of the respondents polled by Deloitte cited compliance, 23 percent said new corporate policies, 14 percent named financial planning, 9 percent cited lease vs. buy decisions, and 5 percent referred to tax planning.
When asked what area they are most focused on with their auditor or clients, 73 percent of the survey respondents cited the completeness of lease accounting, 11 percent referred to materiality issues, 7 percent named internal controls, and 2 percent said technology advice.
Privately held companies get an extra year to implement the new standard, just as they do with the revenue recognition standard. But they shouldn’t wait long to get ready for the leasing standard, even though they’re still in the midst of implementing the rev rec standard that takes effect for them next year.
Another recent survey by Deloitte found that private company professionals are beginning to assess the impact of the revenue recognition standard on their financial statements along with business functions outside of finance and accounting. While 25 percent of the survey respondents expect a material impact on their company’s financial statements due to the rev rec standard, 13 percent reported that their organization has already developed a plan for other parts of the business. Another 23 percent are still in the preliminary stages of assessing the revenue recognition standard’s impact across business functions.
“Private companies should start to take a look at the lessons that we’re seeing and learning from public companies and get started sooner because there are long lead times on some of these activities,” said McGovern. “When we have polled some recent clients, including both public and private, we were seeing numbers around 21 percent that feel that they are well prepared for implementing the [leasing] standard, and that’s much lower than we would expect with this short of a time left. Hopefully private companies will start to put teams together to work on this.”
The technology for handling the leasing standard will need to be widely available at companies. “One of the things that we’re seeing is companies realizing how important stakeholder engagement is in this initiative,” said Torr. “This standard really impacts a broad number of stakeholders across the organization. As companies are going down the final path of the standard preparation, make sure that stakeholders are very well informed and involved in the process. A number of stakeholders will be leveraging the technology. The data will impact a broad number of people. The clear message we’re hearing from the market and from conferences is that stakeholder engagement, communication and training are really important.”
Analysis: 2018 Income Tax Rule Changes Are Creating Lots of Myths and Misconceptions
(USA Today) By Russ Wile, June 7, 2018 –
Though tax talk has died down now that the annual return-filing season is mostly concluded, new provisions as part of income tax reform already have filers thinking about next year.
But many Americans apparently are confused about various rules under the new law. Here are some of those reform-related myths and misconceptions cited by tax experts:
Tax reform will make it easier to file returns
Simplification was a major goal of tax reformers, and the new rules will make things easier for some filers. In particular, an estimated one in five taxpayers will switch from itemizing to taking the standard deduction. These people no longer will need to hang onto charitable-donation receipts and other paperwork.
However, not everyone will find tax-return filing to be any simpler, especially those who continue to itemize.
"Overall, the legislation was not simplifying," said Mark Luscombe, a tax analyst with Wolters Kluwer Tax & Accounting. "The only thing you can point to is the increased standard deduction."
In addition, there are some new provisions taxpayers will need to learn. Among them is a new 20% deduction, a tax-shaving break for people who own "pass-through businesses." This provision "will require complex calculations that have never existed in the past," said LBMC, a Tennessee company that provides accounting and other services.
The reform law didn't simplify other potentially complex areas, such as sorting through capital gains or losses or assessing eligibility to make deductible contributions to Individual Retirement Accounts.
Reform means mortgage interest no longer is widely deductible
Actually, mortgage interest will remain deductible for the majority of homeowners.
The new law did change the rules so that mortgage interest now only can be deducted on up to $750,000 in debt on your primary home and one additional dwelling. But that's still enough to cover loans on most U.S. homes, where the median price is near $246,000, according to the National Association of Realtors. Besides, many buyers make substantial down payments of 20% or more, thus taking out smaller loans.
At any rate, this restriction applies only to newer loans taken after Dec. 14, 2017, noted Tim Steffen, director of advanced financial planning for Baird Private Wealth Management. "Any loans in place prior to then are still subject to the previous $1 million debt limit," he said. "So, if the interest on a loan was deductible in 2017, it will likely still be deductible in 2018."
Borrowers no longer can deduct interest on home equity loans
For many people with home-equity loans, the interest deduction has been eliminated. But some borrowers still will be able to make use of this tax break. It really boils down to how loan proceeds are used.
As long as the borrowed amount is used to buy, build or substantially improve a home, the interest remains deductible, Steffen said.
But if the proceeds are used to buy a vehicle, pay off credit-card balances or other debts or for other, non-housing purposes, then the interest no longer is deductible. "This means that borrowers will need to carefully track the use of their home-equity loan proceeds in order to maintain the tax deduction," he said.
Reform means parents no longer will receive tax breaks for their kids
The personal exemption was repealed, which means there no longer is a $4,050 deduction for a spouse and each dependent, Steffen noted. However, the newly expanded child tax credit will help to offset that.
The tax credit for children under age 17 has doubled to $2,000, plus there's a new $500 credit for other dependents. "So older kids or even your parents who are dependents can qualify for a new credit," Steffen said.
Also, income levels for eligibility have risen dramatically, meaning many additional families will benefit. For many households, "The new credits will more than offset the loss of the deduction," Steffen said.
Federal tax reform doesn't affect state income taxes
Not quite. Most states base their own income-tax systems on the federal tax code pretty much entirely or use it as a starting point. So, the drastic changes at the federal level could affect some of these states and the taxes their residents pay.
Reform will broaden the federal tax base, subjecting more personal income to taxation by eliminating various deductions and exemptions. Congress largely offset this by cutting federal tax rates.
But so far, most states haven't yet cut their own rates or made other adjustments. Unless they do, "most states will experience a revenue increase," and residents of those states will pay more, the Tax Foundation predicted. "The vast majority of filers will receive a tax cut at the federal level, but they could easily see a state-tax increase unless states act to prevent one," the group said.
In particular, federal tax reform eliminated the personal exemption but increased the standard deduction. Yet "eliminating the personal exemption broadens the tax base considerably more than raising the standard deduction narrows it," subjecting more income to taxes, the Tax Foundation said.
It thus will be important for people to monitor what actions, if any, their state legislatures take.
New Accounting Rules Test Companies’ Mettle
(CFO) June 8, 2018 –
Companies’ level of readiness for complying with the new revenue recognition standard was a popular topic throughout 2017, leading up to the rule’s effective date for public companies.
As it happens, the talk hasn’t yet died out.
The rule is effective for public-company fiscal years beginning after Dec. 15, 2017. However, among 442 public-company finance executives surveyed in April and May by PricewaterhouseCoopers, 15% said they were still working on implementing the new rules and related activity.
That 15% broke down to 9% who said they were “remediating issues” and 6% who were “exploring/implementing revenue-automation options.”
About one in five public-company respondents (19%) were still in the process of completing implementation because they had non-calendar-year fiscal years. That left two-thirds (66%) who reported that their revenue-recognition implementation process was complete.
Now it appears that companies may be facing similar challenges in implementing the other big change in accounting rules. The new standard for lease accounting is to be effective for public companies with fiscal years starting after Dec. 15 of this year. However, if anything, that one may prove more difficult to implement than the revenue-recognition standard.
More than half (53%) of survey respondents at public companies said they expected to make “significant” systems changes to accommodate the leasing standard. By comparison, only 18% of such participants said they had done or expected to do the same on the revenue-recognition side.
Still, 42% of the public-company respondents said they either were still assessing the impact of the new lease accounting rules or had not even gotten that far, while 57% reported that implementation was in progress.
Among those who were assessing such impact, a large majority (83%) indicated the assessment was no more than half completed.
For both new standards, a significant minority of public-company finance executives said the effort required to date in addressing or implementing them has been “greater than expected” — 42% for revenue recognition, and 39% for leasing.
“Even though the accounting for the two standards is very different, and different companies and different areas within companies will have different issues, both of them are requiring a level of effort that’s perhaps greater than what companies had earlier anticipated,” Chad Kokenge, a PwC partner, tells CFO.
(In addition to the public-company executives, PwC surveyed 198 executives from nonpublic companies. The next two paragraphs, on difficulties in implementing the new accounting rules, reflect combined responses from the two groups.)
On the leasing side, the most difficult aspect is proving to be data abstraction (68% of the surveyed executives rated it as “somewhat” or “very” difficult). Trailing that were human capital/resources (62%), processes and controls (61%), identification of lease populations (60%), project management (58%), and system implementations (51%).
For implementing the revenue-recognition standard, the most difficult aspect has been contract reviews (64%), followed by accounting policies (58%), business processes (55%), human capital (54%), internal controls (44%), and IT systems (38%).
Predictably, for a number of survey questions private-company executives had different responses than their counterparts at public companies.
For one, they reported that they were not as far along in implementation of the new standards. That makes sense, because they have more lead time — for them, the effective dates are one year later in both cases.
But they also are having, or expect to have, less difficulty in adopting the new standards (see the graphic below). Additionally, fewer private-company respondents saw a need to alter systems to accommodate the new leasing rules.
PwC also asked survey-takers their thoughts about still another change in accounting rules, the upcoming new hedge-accounting standard. It’s slated to take effect for fiscal years starting after Dec. 15, 2019, for public companies and Dec. 15, 2020, for private companies.
Some survey participants said they were already making or expected to make some changes to their hedging strategies in response to the updated standard.
Eighteen percent said they have revisited their overall approach to financial risk management. The same proportion said, “We can now apply hedge accounting to additional risk management strategies.” And 10% said they had already increased their use of hedging instruments.
Interest Rates Remain the Same in the Third Quarter of 2018
(IRS) June 8, 2018 –
The Internal Revenue Service announced that interest rates will remain the same for the calendar quarter beginning July 1, 2018, as they were in the quarter that began on April 1. The rates will be:
- 5 percent for overpayments, 4 percent in the case of a corporation;
- 2.5 percent for the portion of a corporate overpayment exceeding $10,000;
- 5 percent for underpayments; and
- 7 percent for large corporate underpayments.
Under the Internal Revenue Code, the rate of interest is determined on a quarterly basis. For taxpayers other than corporations, the overpayment and underpayment rate is the federal short-term rate plus 3 percentage points.
Generally, in the case of a corporation, the underpayment rate is the federal short-term rate plus 3 percentage points and the overpayment rate is the federal short-term rate plus 2 percentage points. The rate for large corporate underpayments is the federal short-term rate plus 5 percentage points. The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus 0.5 of a percentage point.
The interest rates announced today are computed from the federal short-term rate determined during April 2018 to take effect May 1, 2018, based on daily compounding.
Revenue Ruling 2018-18, announcing the rates of interest, is attached and will appear in Internal Revenue Bulletin 2018-26, dated June 25, 2018.
Tax Court Approves of Consultant as Statutory Employee - Tax Act Makes Case Significant
(FORBES) By Peter Reilly, June 12, 2018 –
What was known as the Tax Cuts and Jobs Act has raised the stakes on the issue of whether someone is an employee or an independent contractor. Unreimbursed employee business expense will no longer be deductible at all and new Section 199A may allow a 20% deduction for independent contractors. This all makes the partial taxpayer victory in the Judge Pugh's Tax Court decision in the case of Slawomir and Alicia Fiedziuszko more significant. Mr. Fiedziusko successfully argued that his consulting gig with Space Systems Loral did not make him a "common law employee," despite the W-2 he received.
What Is A Statutory Employee?
One theory is that the concept of "statutory employee" was created to aggravate income tax preparers like me. We have this pile of paper in front of us and we say to ourselves - some W-2s, no 1099-MISC or 1099-NEC, so no Schedule C - piece of cake. Nah. That would be too easy. (One thinks of the Robin Williams routine in which the inventor of golf explains the game) Let's throw in a W-2 with a box checked that means you need a Schedule C. That is not actually it.
You need to go to Code Section 3121(d) where employee is defined under Chapter 21 of the Internal Revenue Code - Federal Insurance Contributions Act. (The Income Tax is in Chapter 1) The definition lists any officer of a corporation, any individual who "under the usual common law rules" is an employee and a third, any person who provides services for remuneration:
(A) as an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services, for his principal;
(B) as a full-time life insurance salesman;
(C) as a home worker performing work, according to specifications furnished by the person for whom the services are performed, on materials or goods furnished by such person which are required to be returned to such person or a person designated by him; or
(D) as a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for side-line sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations;
if the contract of service contemplates that substantially all of such services are to be performed personally by such individual;
So the "employer" pays FICA for those folks and sends them a W-2, but they are only employees for FICA purposes - Chapter 21 - not for computing income tax - Chapter 1.
And that means that if there are expenses they get to deduct them on Schedule C as opposed to miscellaneous itemized deduction or from here on in not at all. And there is that Section 199A deduction to be thinking about. (We are still waiting for guidance on that)
About Those Common Law Employees
You got some people and you are paying them to do something for you. Are they employees? There is a lot more than this but probably the place to start is Revenue Ruling 87-41 which gives you a 20-factor test. Well we're not going to get into that. I'll give you the executive summary. If you are asking the question, they are probably employees.
Looking at things practically, I would argue that you might want to err on the side of them being employees, even though with payroll taxes and this and that, it is probably a better deal to have independent contractors. If the IRS successfully reclassifies, it gets real ugly.
Regardless, now there is a big incentive for the "employees" to push for independent contractor status. And Mr. Fiedziuszko might be their inspiration.
It Doesn't Take A Rocket Scientist, But That Doesn't Hurt
Mr. Fiedziuszko is a semiretired aerospace engineer. He worked for Space Systems Loral through a contract with West Valley Engineering Co. West Valley processed his pay for Loral withholding federal income tax as well as social security and Medicare. On his 2011 W-2, they checked the statutory employee box, but not on his 2012 W-2. Regardless, Mr. Fiedziuszko claimed statutory employee status:
Petitioners claimed deductions on Schedule C of their Form 1040 for the following expenses related to Mr. Fiedziuszko's consulting business: $2,000 for supplies, $5,000 for travel (including meals and lodging), $9,500 for insurance (other than health), and $2,000 for advertising. In addition, they claimed a $29,540 deduction for self-employed health insurance on their 2012 Form 1040. The record contains no substantiation for these deductions other than “statements of fact” that outline Mr. Fiedziuszko's business expenses, which he prepared for trial.
Where Does He Fit?
I had a little trouble figuring out how Mr. Fiedziuszko fit into the statutory employee box. His work was described this way:
He worked primarily from home on a satellite development project, Flexible Satellite, producing reports and components for Loral.
Judge Pugh saw that as fitting into “as a home worker performing work, according to specifications furnished by the person for whom the services are performed, on materials or goods furnished by such person which are required to be returned to such person or a person designated by him.”
I haven't put the time in to trace down the legislative history on that definition, but it seems to go back to at least 1954 and brings to my mind images of garment workers rather than an aerospace engineer consultant. I'm wondering whether telecommuters might start using this decision as the new act makes the notion of being a statutory employee more attractive.
The Rest of the Case
Mr. Fiedziuszko did not do well on a number of other issues. It was mainly about substantiation including a classic.
Mr. Fiedziuszko testified that when he attended church services in 2012 he typically would make a cash contribution of at least $20. Petitioners produced no records to substantiate these contributions and no evidence showing how often he attended church or how much he gave each time he went, other than cryptic calendar entries. While we found his testimony that he attended church and made contributions to be credible, we have no reliable evidence on which we can base an estimate of the total amount that petitioners contributed in 2012.
Next time you go to church, peek at how many pictures there are of old Andy Jackson in the plate that is passed around. Even today it seems that George Washington is our holiest president.
Lew Taishoff has Win On The Facts. Mr. Taishoff observes that Mr. Fiedziuszko may have had trouble arguing good faith on the penalties, because he was a rocket scientist. (Actually I don't know that an aerospace engineer is necessarily a rocket scientist. Likely smarter than most accountants and attorneys though.)
Bryan Camp treated the case along with three others on TaxProf Blog - Lesson From The Tax Court: A Haunting. He is focusing on a procedural issue.
In all four cases the Service asked the Tax Court to re-open the record to allow it to introduce the theretofore-unrequired-but-now-required evidence. The cases were heard by three different Tax Court judges. In two cases, the Court allowed the record to be reopened and in two cases the Court refused. Taken together, the cases illustrate how the fallout from the Tax Court’s Graev decision continues to elevate procedure over substance.
Small Business Taxes & Management has a brief treatment.
I ran the decision by Andrea Carr, who in my view is the best source for accounting humor since Going Concern. Puns are one of her specialties, she suggested "Statutory employee. Not a statue, not a Tory, only kind of an employee." I haven't seen her tweet that yet, but I can hope.