Tax Notes has seen fit to put an informative article by Lee Sheppard about Mitt Romney’s tax returns outside its paywall. This piece shows that questions about what might lurk in the returns that Romney has withheld has diverted attention from some dodgy tax issues in the filings he has provided.
The public has gotten understandably unhappy about the $3 million Swiss bank account he held. Sheppard points out that it was common for people like Romney not to report it at all, and the release of older returns would reveal whether he had complied before the US crackdown. Her comment:
Swiss bank account. Issue: Did Romney report it properly?
A Romney grantor trust had a $3 million Swiss bank account at UBS that the trustee closed in 2010. Romney’s campaign said that the account was disclosed on foreign bank account reports and that U.S. tax was paid on the interest from it…
Nondisclosure was common among rich people before the 2010 enactment of the Foreign Account Tax Compliance Act. The penalty for failure to file an FBAR was bupkes, and the agency in charge of enforcing the law, Treasury’s Financial Crimes Enforcement Network, had no interest in enforcing it. Very few FBARs were filed before 2010. At about 200,000 filings annually, the rate of FBAR compliance was estimated to be less than 20 percent before the IRS crackdown.
Another issue which the media has flagged is the monster size of Romney’s IRA. The tax expert’s view:
IRAs. Issue: Can profits interests or special classes of shares in private equity target companies be contributed to IRAs?
Romney has a gigantic IRA, which may hold as much as $100 million in assets. We do not know what it contains. We can only speculate. Given the applicable contribution limits, it is hard to see how the IRA got so big, even if Bain deals were hugely profitable. Regardless of what is in the IRA, serious valuation and self-dealing questions are raised.
A detailed discussion follows, and it’s hard to see how this IRA is kosher.
The article discusses nine additional troubling aspects of the Romney returns that have been put on view, and they are instructive and pointed. For instance, finance people always refer to the manage participation in fund profits as a “carried interest”. But as Sheppard stresses, the IRS calls that a “profits interest” and they have specific valuation rules. And she is clearly not happy with how the popular press missed the real issue with Bain’s use of Cayman Islands investment vehicles:
Private equity. Issue: Cayman residence of funds.
The places where some of Bain Capital’s numerous private equity funds are organized — Bermuda and the Cayman Islands — are tax havens. The widespread use of tax and banking havens by large U.S. multinationals and investment funds as an escape hatch from U.S. tax, banking, and securities laws, while offensive, is tolerated and even encouraged by U.S. law and administrative practice.
Mainstream newspapers howl that Romney has assets in the Caymans, but the reality is worse. Bain Capital invests in the United States and other countries, including China, but it organizes its funds in the Caymans to keep investor lists secret while availing itself of British corporate law. Every other investment fund does the same thing.
The practical effect of Cayman registration is that if investors were of a mind to lie to their home governments about the existence of or income from their Bain investments, the secrecy of investor lists makes it easier to do so. As the Romney campaign pointed out, all these investors still owe tax to their home governments (including the U.S. government) on their Bain income.
She flags the Marriott tax shelter as improper, some treatments as particularly questionable, such as the intramarital/intrafamily transfers and the notorious show horse:
Ann Romney’s Olympic horse. Issue: Is Rafalca a business?
Probably not. Before the Romneys can claim any passive loss deduction for Ann Romney’s share of Rafalca’s expenses, the LLC that owns the horse, Rob Rom Enterprises, has to be engaged in a trade or business. For that, it has to satisfy the hobby loss rule for horses, which has a rebuttable presumption of a business if there is a profit in two out of seven years (section 183(c)). Rob Rom has owned Rafalca for six years.
Rafalca’s rider said she would be bred when her show career was over. That may be a stretch, because the horse is 15 and has been in strenuous competition for 11 years. If she could produce a foal or two, it would have to be sold for $500,000 or more.
Moreover, the prize money in dressage competitions doesn’t come close to covering the roughly $120,000 per year for Rafalca’s upkeep and transportation from California to European competitions. So it is unlikely she would ever make a profit for her owners
I encourage you read the article in full. It is very accessible and informative. In closing, Sheppard observes:
It is often said that the rich get rich and stay rich by watching every penny. Romney certainly fits that description. He looks for every tax angle, to a degree that is unbecoming in someone who would be the executive in command of the administrative apparatus that enforces the tax law.
And that is what is so bizarre about Romney on this issue and many others. He’s not a Perot, who entered politics abruptly and therefore could be expected to have some trouble in making the transition from corporate life to being on the public stage. But Romney is an archetypal member of the 0.1%. He is so far removed from ordinary Americans that he can’t grok what proper behavior is even if he were to try.