Taxes Slash $2 Billion Roundup Weedkiller Verdict To $27.5 Million

Another Roundup verdict is in, and once again, bizarre new tax rules make the IRS the biggest winner. This time, a Northern California jury found that Monsanto failed to warn users that Roundup was dangerous, awarding Alva and Alberta Pilliod $55 million in compensatory damages and a whopping $2 billion in punitive damages. Alva and Alberta Pilliod used Roundup on their San Francisco Bay Area property for 35 years. They were both diagnosed with non-Hodgkin lymphoma, but are currently in remission. This is the largest jury award in the U.S. so far this year, and the eighth-largest ever in a product-defect claim, according to BloombergLast year, jurors gave $289 million to a man they say got cancer from Monsanto’s Roundup. That verdict was later reduced, and is on appeal. In early 2019, jurors awarded Edwin Hardeman $200,000 for economic losses, $5 million for past and future pain and suffering, and $75 million in punitive damages. Bayer has said it would appeal the jury award. Monsanto faces over 13,400 claims, and is fighting hard. But even if Monsanto pays up, new tax rules could swallow up many of the verdicts plaintiffs might be hoping to collect. 

(AP Photo/Haven Daley, File) Photocredit: Associated Press

President Trump’s tax bill passed in late 2017 imposes a new tax on litigation settlements in the form of no deduction for legal fees. Amazingly, many legal fees can no longer be deducted. That means many plaintiffs must pay taxes even on monies their attorneys collect. Of course, the attorneys must also pay tax on the same money. Here’s the bizarre tax math. The Pilliods were awarded approximately $55 million in compensatory damages and $2 billion in punitive damages. Their combined legal fees and costs might total as much as 50%. If so, they would get to keep half, or $27.5 million of the $55 million compensatory award. Since it is for their claimed non-Hodgkin’s lymphoma, that part for physical injuries should not be taxed. Of the $2 billion punitive award, $1 billion could go to legal fees and costs, with $1 billion to the Pilliods. So before taxes, the plaintiff’s could take home $1,027,500,000. The case will be appealed, so no money will be paid for quite a while. Even so, it’s worth reviewing the math to see how this could come out.

So what about after taxes? The $2 billion in punitive damages are fully taxable, with no deduction for the legal fees to their lawyer. Between federal taxes of 37% and California taxes of up to 13.3%, the Pilliods could lose about 50% to the IRS and California’s Franchise Tax Board. That could make their after-tax (and after legal fee) haul from a $2.55 billion verdict only about $27.5 million. Does that seem fair? $27.5 million isn’t pocket change, but it is a shocking result. So is being taxed on money you do not receive. The bizarre result comes from the Trump tax law, which kills tax deductions like Roundup for many legal fees. Notably, compensatory damages for physical injuries or physical sickness are still tax-free, but what injuries are “physical” can be a chicken or egg issue.

When punitive damages or interest enter the picture, many plaintiffs cannot deduct their legal fees. It can mean being taxed on their gross recoveries, even if the lawyer is paid first. According to a 2005 U.S. Supreme Court tax case, if you are the plaintiff with a contingent fee lawyer, the IRS treats you as receiving 100% of the settlement or judgement, even if the defendant pays your lawyer directly. If your case is fully nontaxable, that causes no tax problems. But if your recovery is taxable, all or in part, you could be taxed on more money that you actually collect. Up until the end of 2017, you could claim a tax deduction for your legal fees. In 2018 and after, there may be no deduction for these legal fees. Fortunately, not all lawyers’ fees face this terrible tax treatment.

If the lawsuit concerns a plaintiffs’ trade or business, the legal fees are a business expense. If the case involves claims against the plaintiff’s employer or certain whistleblower claims, those legal fees are also still deductible. But in other cases, plaintiffs are out of luck unless they are awfully creative. In some cases, there may be ways to circumvent these tax rules, but you’ll need sophisticated tax help to do it. Advice on the taxation of damage awards before the case settles is best if you hope to avoid a terrible tax result.

via Robert W. Wood


Trump’s Billion In Tax Losses And IRS Statute Of Limitations

New reports suggest that President Trump claimed a whopping $1.17 billion in tax losses between 1985 and 1994. The New York Times says much of the data for this finding came from IRS transcripts. IRS transcripts list certain key reporting data under a taxpayer’s taxpayer identification number. Even so, it is hard to see how transcripts could reveal the kind of sweeping picture being painted. Yet the President has not exactly disputed the accusations, instead suggesting in Twitter posts that these were just real estate techniques for tax purposes and that the Times report was fake news. Meanwhile, of course, Democrats are using this latest reveal about the President’s taxes, deal acumen and wealth to once again call for an urgent look-see at Trump’s elusive tax returns. Representative Bill Pascrell Jr., D-NJ, said this about the latest revelations about President Trump:

President Trump holds a chart as he speaks at a rally in Panama City Beach, Fla., Wednesday, May 8, 2019. (AP Photo/Gerald Herbert) photocredit: ASSOCIATED PRESS

Trump was perhaps the worst businessman in the world. His entire campaign was a lie. He didn’t pay taxes for years and lost over $1 billion — how is that possible? How did he keep getting more money and where on earth was it all going? We need to know now.

It seems unlikely that President Trump or his administration will hand over the returns anytime soon, whether or not the President’s storied audit has finally been completed. Yet it does make one wonder just how many tax returns could be examined, and how far back is fair game in an audit. If the New York Times reports are accurate, could the IRS go back to audit those 1985 through 1994 tax years? It is hard to see how. IRS audit exposure is usually finite, and tax lawyers and accountants routinely monitor it. They watch the calendar until the returns are clear of audit. The IRS normally has three years to audit, which may make you wonder how President Trump could have so many years under review. In some circumstances–including where you under-report your income by more than 25%–the IRS is allowed to go back six years.

Omitting more than 25% of his income was probably not the President’s problem, which means he probably consented to extending the IRS’s normal three years. Why would anyone give the IRS more time? The IRS often asks, and usually you should grant IRS more audit timeIf you say “no” or ignore an IRS request, the IRS assesses extra taxes based on whatever information the IRS has. Usually that will put you at a disadvantage. President Trump may be perennially under audit as he has suggested. But after three or six years, aren’t most people completely out of the woods? Maybe, but in some cases, the IRS statute of limitations never runs. Examples are where you don’t file a return, don’t sign your return, or alter its normal penalties of perjury language. There’s also no time limit on fraud. 

Another set of rules governs amended tax returns, although they normally don’t restart the three-year clock. If your amended return shows an increase in tax, and you submit the amended return within 60 days before the three-year statute runs, the IRS only has 60 days after it receives the amended return to make an assessment. An amended tax return that does not report a net increase in tax does not trigger an extension of the statute of limitations. Statute of limitation issues come up frequently with partnerships, LLCs and S corporations, and Trump probably has many such entities. The partners or shareholders pay tax, but the return is filed by the entity. Untangling audit issues for an entity and its partners or shareholders can be complex. For offshore accounts, you also usually have six years of exposure to IRS audits. If you have an offshore company, it can trigger an IRS Form 5471. Failing to file it means penalties, generally $10,000 per form, even if no tax is due. And if you omit this tax form, it allows the IRS to audit you forever.

Finally, there are also situations where the statute of limitations is on hold. Certain types of IRS summonses can stop the three or six years from running, even if you have no notice of it. The IRS statute of limitations can also be on hold when you are outside the U.S., or if you commit certain continuing violations that tie years together. Some of the President Trump’s critics might suggest that there is some way the IRS could go back to 1985, or even 1994. But as a practical matter, it is very hard to imagine the IRS making such an argument, or winning if it did.

via Robert W. Wood

Can You Claim Higher Tax Bills As Lawsuit Damages?

Can plaintiffs get damages for additional taxes they will owe because of the defendant’s actions? Increasingly, the courts seem to be siding with plaintiffs and allowing these tax-based damages. This is a bright spot in this tough area. After all, most legal settlements and judgments are taxable. Even worse, starting in 2018, it can be tough for plaintiffs to deduct their legal fees. That can mean paying taxes on 100% of the money, even though a contingent fee lawyer takes 40% off the top. Fortunately, there is often considerable tax planning at settlement time to address these rules. But with tax-based damages, there can be tax issues at play long before a case is resolved.  

photocredit: Getty

Historically, many courts were reluctant to gross up a plaintiff’s damages by the taxes the plaintiff must pay. One reason was a lack of precision in tax calculations. Another is that we all have to pay taxes. Yet what if the lump sum nature of a verdict or settlement itself causes the tax problem? Let’s say the plaintiff would not have faced those extra taxes if payments were made over time as they should have been paid? Shouldn’t a plaintiff who can prove this recover the extra taxes too? In 2017, the Ninth Circuit said yes in Arthur Clemens, Jr. v. CenturyLink Inc. and Qwest Corporation. The case was limited to tax gross ups in Title VII employment cases. Even so, it may have application to many types of cases.

Then, in 2019, a California Appeals Court gave an even broader reading, upholding tax neutralization in a wrongful termination case involving state law. In Economy v. Sutter East Bay Hospitals, a doctor sued a hospital for wrongful termination. The trial court awarded him $3,867,122 in damages, comprised of $1,136,906 in lost income, $1,159,354 in future lost income, $650,910 for tax neutralization, $19,000 for the cost of a particular program, $650,000 for emotional distress and $250,952 in prejudgment interest. The hospital appealed. The only element of damages awarded the plaintiff which the hospital specifically challenged was $650,910 for tax neutralization. This amount was calculated to offset the increased tax burden on the plaintiff resulting from a lump-sum award of damages, compared to the taxes if the earnings had been paid annually. The amount was based on testimony by plaintiff’s expert, an economist.

Prior to trial, the hospital made a motion to exclude the expert’s testimony. The hospital said it did not meet the requirements for admissibility of scientific evidence. See People v. Kelly and Frye v. United States. The hospital said it also did not comply with Evidence Code sections 801 and 802, claiming that it was highly speculative, and based on information not reasonably relied upon by experts. But the court denied the hospital’s motion and allowed the evidence. On appeal, the hospital again argued that the expert testimony was based on speculative assumptions about future tax rates, etc. The appeals court admitted that there were no reported decisions in California on the concept of tax neutralization. But many federal appellate courts allow such tax gross ups. See Equal Employment Opportunity Commission v. Northern Star Hospitality, Inc.Eshelman v. Agere Systems, Inc.; Sears v. Atchison, Topeka & Santa Fe;and Clemens v. CenturyLink Inc.

A lump-sum award may push a plaintiff into a higher tax bracket. In fact, failing to consider taxes might effectively deny the plaintiff full relief. The court said there was no reason why tax neutralization on back pay could not be established with sufficient certainty. The expert provided detailed testimony regarding his calculations of plaintiff’s total tax liability if he had not been terminated. He figured the taxes plaintiff would have paid. And to make up for receiving a lump sum, he figured the amount needed to offset the adverse tax consequence. The tax expert laid a sufficient foundation to establish the probability and reasonableness of his tax neutrality projections.

via Robert W. Wood

Why Trump Should Not Hand Over His Tax Returns

The fervent quest for President Trump’s tax returns continues, and is actually heating up. So with all the tax return fever, shouldn’t he just hand them over? Like MAGA hats and the Wall, President Trump’s tax returns are polarizing, perhaps even a flash point. Scuffles over President Trump’s tax returns are hardly new, although the stakes and the forum may be changing. Anyone else would surely have handed them over before the 2016 election. But at this point, the President should arguably keep them private until the courts order otherwise. His administration may well help him do that. It is not surprising that the President’s tax advisers are telling him to sit tight. In fact, as a lawyer for clients with tax problems, it hard for me to conjure up a tax reason for the President to reveal his returns for dissection. Of course, this isn’t really about taxes. But political considerations may well cut the same way. Any scrutiny he faced as a candidate will pale against today’s feeding frenzy. Trump’s tax returns will be pilloried by armies of experts, perhaps even placing him on the grassy knoll with Ted Cruz’s father. Even if his storied audit is over, Congressional or public viewing could change that. His tax returns could become the new Mueller investigation.

President Donald Trump and first lady Melania Trump walk from Marine One helicopter to board Air Force One, Thursday, April 18, 2019, at Andrews Air Force Base, Md. President Trump is traveling to his Mar-a-Lago estate to spend the Easter weekend in Palm Beach, Fla. (AP Photo/Pablo Martinez Monsivais) photocredit: ASSOCIATED PRESS

Democrats have said they want to check if the President benefited personally from the 2017 tax law. They want to look for conflicts of interest between his presidential duties and his business interests, and more. This debate isn’t just between the President’s lawyers and democrats. House Ways and Means Committee Chair Richard E. Neal, D-Mass., made the requests, and the IRS Commissioner and Treasury Department are in the mix. It might be efficient to have a quick solution, but it is hard to imagine that now. Remember, candidate Trump flouted tradition by refusing to release his returns, and remarkably was still elected, so why disclose them now? Sure, Trump’s returns may reflect considerable income and many aggressive tax maneuvers. Would President Trump’s many haters expect anything less? For that matter, would President Trump’s fans? Our tax laws are complex, and even media darlings such as Warren Buffett say they pay as little tax as legally allowed.

Taxes make a poor spectator sport, yet many voters consider candidate tax disclosures to be essential badges of trust. Perhaps they are. But Trump surely lost those votes in 2016, and disclosing now will surely not win any votes for 2020. House Democrats want the returns, invoking a 1924 law they say is clear. Republicans say political motives taint the request, and a protracted court battle seems inevitable. Plainly, there was never a legal impediment to the President voluntarily releasing his returns, but continuing to resist is unlikely to earn the President any more enemies. He might even lose loyalists by disclosing. Many Americans believe tax disclosures should be mandatory for candidates, a kind of public vetting of truth and citizenship. They may be right. But until the law requires it of candidates or the courts mandate disclosure, Trump should arguably stand pat.

via Robert W. Wood

For ‘Jeopardy!’ Big Winner, IRS Wins Big Taxes Too

If you’re like me, watching 34-year-old professional sports gambler James Holzhauer on Jeopardy! may make you feel pretty dense. He is just so knowledgeable about just about everything. His unique strategy of finding Daily Doubles and betting aggressively has paid off big time. And in a 10-day streak, he’s already shattered his own record with a $131,127 single-day win.  His 10-day total is $697,787. That’s not exactly matching Ken Jennings, whose record 74-day winning streak makes him the all-time champion. Jennings won a total of $3,196,300, of which $2,520,700 was from regular season play. Holzhauer is now the second highest-earning winner of all time. Of course, like just about everything else, does the IRS get a slice? You bet. All winnings on game show are ordinary income, taxed up to 37% by the IRS. Most states have state income tax too. Of course, Gambling winnings are also taxed. You must report game show winnings, and you will receive an IRS Form 1099–just in case you forget to put your win on your tax return. Winnings are generally just “other income” or miscellaneous income.

IRS headquarters building in Washington, D.C., U.S., on Feb. 17, 2016. Photographer: Andrew Harrer/Bloomberg photocredit: © 2016 Bloomberg Finance LP

Many shows warn you about taxes and Forms 1099 in advance, just so contestants don’t go in with the wrong impression. And if you go on a show that awards prizes, even if you don’t win cash, the goods that you receive are taxable too. You’ll have to pay tax on their fair market value, including goods, services or trips. Yes, winning a car means taxes too. Remember Oprah Winfrey’s car giveaway of 2004? Millions of Americans recently filed their tax returns and had to pay up. But some changes in the big tax bill that passed at the end of 2017 can make tax time even worse. For example, how about writing off expenses? Suppose that our Jeopardy! winner logically says he wants to claim his hotel, air, and other expenses on his taxes, to offset some of that income?

It sounds logical enough, and up until 2018, you could deduct expenses as miscellaneous itemized deductions. But for 2018 and beyond, that deduction is gone. So even though a Jeopardy! or other game show winner might well have legitimate offsetting expenses, there’s no easy way to claim them. A big winner like Mr. Holzhauer might argue he’s in business, and file a schedule C. That could mean he’s taxed only on his net. But he might subject himself to self-employment tax on top of income tax. Ouch. If he stayed off of Schedule C, game show winnings, fortunately, steer clear of self-employment tax. Of course, Mr. Holzhauer  says he’s a sports gambler, so is tax return may already be tricky. And maybe his Jeopardy! wins tie into his professional role, which could help.

Can a winner who doesn’t need the money avoid taxes via gifts to charity, family, and friends? Only gifts to charity qualify for a tax deduction, and the deduction math favors the government. As for gifts to family and friends, you can’t generate an income tax deduction by those transfers. In fact, you could double up on taxes, even triggering gift tax too. But cheer up, a big Jeopardy! winner is still a big winner, and his expenses are probably small in any event. Contrast that to people who win lawsuits and get a legal settlement. Many litigants used to deduct their legal fees as miscellaneous itemized deductions. So if they won $1M, and $400K went to their lawyer, they would report $1M, and deduct the $400K. But amazingly, many legal fees now simply can’t be deductedThere are a number of exceptions from this strange tax rule for certain types of cases, where legal fees are still fully deductible. But unless you meet one of them, some plaintiffs are actually paying tax on their gross recovery, not their net recovery after legal fees.

In that sense, being a big Jeopardy! winner is actually awfully sweet, tax bill or not.

via Robert W. Wood

April 15 Tax Day Is Key Offshore Account Deadline Too

Are you tired of tax season and the annual chaos leading up to April 15th? If you have foreign bank accounts or offshore assets, you also have other filings to make. If you have a foreign bank or financial account, April 15, 2019 is the deadline to file an annual Report of Foreign Bank and Financial Accounts (FBAR). FBAR flubs have serious penalties, separate from tax penalties, but you also want to check to see if you have a U.S. tax liability and a tax return filing requirement. The deadline for filing FBARs is the same as for a federal income tax return. That means your 2018 FBAR, now Form 114, must be filed electronically with the Financial Crimes Enforcement Network (FinCEN) by April 15, 2019. Fortunately, FinCEN grants filers missing the April 15 deadline an automatic extension until Oct. 15, 2019, to file their FBARs.

Photocredit: Getty

Notably, you don’t file an FBAR with individual, business, trust or estate tax returns. If who want to paper-file an FBAR, you must call the Financial Crimes Enforcement Network’s Regulatory Helpline to request an exemption from e-filing. In general, the FBAR filing requirement applies to anyone who had an interest in, or signature or other authority, over foreign financial accounts whose aggregate value exceeded $10,000 at any time during 2018. Because of this threshold, the IRS encourages taxpayers with foreign assets, even relatively small ones, to check if this filing requirement applies to them. The form is only available through the BSA E-Filing System website. Taxpayers with foreign financial accounts that report their accounts to the U.S Treasury Department should also visit the FBAR Fact Sheet posted on

Living overseas doesn’t excuse you from filing U.S. taxes. An income tax filing requirement generally applies even if a taxpayer qualifies for tax benefits, such as the Foreign Earned Income exclusion or the Foreign Tax credit, which substantially reduce or eliminate U.S. tax liability. These tax benefits are only available if an eligible taxpayer files a U.S. income tax return. A special extended filing and payment deadline applies to U.S. citizens and resident aliens who live and work abroad. For U.S. citizens and resident aliens whose tax home and abode are outside the United States and Puerto Rico, the income tax filing and payment deadline is June 17, 2019. Taxpayers have two extra days because the normal extended deadline—June 15—falls on a Saturday this year.  The same applies for those serving in the military outside the U.S. and Puerto Rico on the regular due date of their tax return.

Interest, currently at the rate of 6 percent per year, compounded daily, will apply to any payment received after the regular April 15 deadline. See U.S. Citizens and Resident Aliens Abroad for details. Nonresident aliens who received income from U.S. sources in 2018 also must determine whether they have a U.S. tax obligation. The filing deadline for nonresident aliens is April 15. See Taxation of Nonresident Aliens on In addition to the annual Report of Foreign Bank and Financial Accounts (FBAR) requirements outlined above, U.S. citizens and resident aliens must report their worldwide income, including income from foreign trusts and foreign bank and securities accounts.

In most cases, affected taxpayers need to complete and attach Schedule B to their tax return. Part III of Schedule B asks about the existence of foreign accounts, such as bank and securities accounts, and usually requires U.S. citizens to report these items for the country in which each account is located. Also, separate from the foreign accounts reporting requirements above, certain taxpayers may also have to complete and attach to their return Form 8938, Statement of Specified Foreign Financial Assets. Generally, U.S. citizens, resident aliens and certain nonresident aliens must report specified foreign financial assets on this form if the aggregate value of those assets exceeds certain thresholds. See the Instructions for Form 8938 for details. Certain domestic corporations, partnerships and trusts that are considered formed for the purpose of holding (directly or indirectly) specified foreign financial assets must file Form 8938 if the total value of those assets exceeds $50,000 on the last day of the tax year or $75,000 at any time during the tax year. For more information on specified domestic entity reporting, as well as the types of specified foreign financial assets that must be reported, see Do I need to file Form 8938, “Statement of Specified Foreign Financial Assets”? and its instructions.

via Robert W. Wood

Meghan Markle, Prince Harry Baby Needs Tax Planning…Already

How early is too early to do tax planning? This time of year, most tax advisers might say it is never too early. Sometimes, that can mean even before birth. Recently, the Wall Street Journal’s Laura Saunders rightly pointed out that, bundle of joy aside, Meghan Markle is about to have a little bundle of tax headaches. Her parents are too. Unless Meghan Markle manages to get rid of her U.S. citizenship fast–which seems unlikely–the baby will be a dual citizen. And while that may sound exotic, the tax headaches are palpable. Early reports after the royal wedding suggested that Ms. Markle might gain British citizenship, and then give up her American citizenship. But so far, it appears that both Ms. Markle and the baby will have U.S. tax obligations for a long time to come.

For the child, ironically, that could start almost immediately, since some assets are likely to be placed in the child’s name and start earning income. Even if the baby never sets foot in the U.S., that means U.S. taxes and an annual return to the IRS. Bank accounts, even if someone else is the signatory, can mean other forms too. And missteps in the U.S. can be costly.

Britain’s Prince Harry and Meghan, Duchess of Sussex attend a reception at Buckingham Palace, London, Tuesday March 5, 2019, to mark the fiftieth anniversary of the investiture of the Prince of Wales. (Dominic Lipinski/Pool via AP) Photocredit: ASSOCIATED PRESS

FATCA, the Foreign Account Tax Compliance Act, was passed in 2010, and then ramped up worldwide. It requires an annual Form 8938 filing with the IRS that could end up involving royal assets. FATCA‘s unparalleled network of reporting requires foreign banks and governments to hand over secret bank data about depositors. Non-U.S. banks and financial institutions around the world must reveal American account details or risk big penalties. Markle could follow London’s former Mayor Boris Johnson, then Britain’s Foreign Secretary. Having been born in New York but raised in Britain, Johnson was a dual citizen until a run-in with the IRS eventually led him to renounce his American citizenship.

The number of Americans who renounced their citizenship fell slightly in 2017 (5,133) from the previous year (5,411)which had been a record. These may seem to be small numbers, but advisers say that many who leave are not counted. Even so, both the IRS and FBI track Americans who renounce. America’s global income tax compliance and disclosure laws can be a burden. Many foreign banks do not want American account holders. Americans living and working in foreign countries must generally report and pay tax where they live. But they must also continue to file taxes in the U.S., where reporting is based on their worldwide income. A foreign tax credit may not eliminate double taxes. Annual foreign bank account reports called FBARs carry big civil and even criminal penalties. Ironically, even leaving America can be costly.

If Markle were to renounce her U.S. citizenship, America charges $2,350, a fee that is more than twenty times the average of other high-income countries. Moreover, to exit, one generally must prove 5 years of IRS tax compliance. And getting into IRS compliance can be expensive and worrisome. For some, a reason to get into compliance is only to renounce, which itself can be expensive. Even some time ago, Markle was said to have a net worth of $5 million, which would mean also paying an exit tax to the U.S. if she renounces. If you have a net worth greater than $2 million, or have average annual net income tax for the 5 previous years of $165,000 or more, you can pay an exit tax. It is a capital gain tax, calculated as if you sold your property when you left. A long-term resident giving up a Green Card can be required to pay the exit tax too. Sometimes, planning and valuations can reduce or eliminate the tax, but the tax worry can be real, even for those who will not face it.

Fortunately, the royal baby should get one big U.S. tax break. If the child relinquishes before the age of 18 and a half years, and has not lived in the U.S. for the prior 10 years, there is a kind of get-out-of-jail-free card for the U.S. exit tax. This is an important rule, that many young people do not learn about until it is too late. Here, I’m betting that a cadre of U.S. and U.K. tax advisers will be helping, so this goes more smoothly than it did for Boris Johnson, who was dogged by an IRS tax bill for years. 

via Robert W. Wood