Paul L. Caron

Wednesday, September 26, 2012

Fleischer: Mitt Romney's Use of the John Edwards Tax Shelter

NY Times DealBookNew York Times DealBook:   A Tax Shelter Mitt Romney Could Love, by Victor Fleischer (Colorado):

Gov. Mitt Romney’s 2011 tax return highlights the use of a questionable tax planning technique that may have avoided Medicare tax liability on up to $2 million of services income derived from his past employment at Bain Capital. ...

Mr. Romney continues to receive cash payments from the companies that manage Bain Capital’s funds. A couple of weeks ago in this column, I described how private equity firms like Bain Capital convert management fees, which would normally generate ordinary income, into investments that yield capital gain.

R. Bradford Malt, the trustee who manages Mr. Romney’s Bain holdings, has stated that Mr. Romney did not participate in the fee conversion program. One might have logically inferred, then, that Mr. Romney’s share of the management fee income would be reported as wage income on Mr. Romney’s tax return.

Not so. Instead, the payments are reported on Schedule E of the return as distributions from S corporations — the largest being $1,961,325 from Bain Capital Inc. The distinction between wage income and an S corporation distribution is meaningless from a business standpoint, but it’s important for tax purposes.

Current law imposes a 2.9% Medicare tax on all wages and self-employment income. To avoid this tax, taxpayers have an incentive to characterize as much labor income as they can as investment income (like carried interest) or as a distribution from an S corporation. ...

This strategy, more or less, was made famous by the trial lawyer and former presidential candidate John Edwards, giving rise to what is sometimes known in tax policy circles as the Edwards Loophole. (It has been employed more recently by Newt Gingrich, who has provided speaking and consulting services through an S corporation.) The IRS has challenged this abuse of S corporations, finding some success in the courts. ...

The problem is that the line between return on human capital and return on investment capital is difficult to draw. By paying themselves a (modest) salary, the owners of S corporations put the IRS in the difficult position of having to estimate what a reasonable wage is.

In a recent article, the law professor Richard Winchester noted that under current law, the government can rightfully attack these distributions “as being nothing more than disguised compensation.” But because the government is ill equipped to perform the kind of audits that would help detect all potential instances of disguised compensation, Mr. Winchester notes that “the vast majority of these cases probably go unchallenged.”

The use of the S corporation as a tax shelter is widespread. A 2002 Treasury inspector general report stated that of 84 S corporation returns under audit, the average shareholder wage was only $5,300, while the average shareholder distribution was nearly $350,000. Obviously, in many of these cases the wage portion is being deliberately understated.

In the case of Mr. Romney, the issue of his Medicare tax liability is complicated because he no longer provides services to Bain Capital. Some portion of the payment represents payment for past services rendered, but perhaps some amount could be attributed to nonwage income.

Existing case law gives the IRS ample authority to challenge at least some amount of the “true up” payments as remuneration for services rendered. If the entire amount were attributed to past services, then Mr. Romney’s use of the S Corporation avoided $58,000 in Medicare taxes. Without knowing the terms of the severance agreement, however, determining Mr. Romney’s proper tax liability is difficult.

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So does Professor Fleischer, when teaching his Venture Capital and Private Equity and Deals courses, tell his students this tax planning technique is bad-wrong-evil-illegal? What utter hypocrisy to attack someone for doing exactly what he teaches.

Posted by: TexEcon | Sep 26, 2012 8:22:05 AM

When Romney's wife had cancer, unlike Edwards, he didn't cheat on her. Character matters.

Posted by: Woody | Sep 26, 2012 9:20:03 AM

He means pass-through income, not distributions, since the latter are non-taxable events that reduce basis for an S-corp. Weird error for a law prof to make.

Posted by: jpe | Sep 26, 2012 9:45:18 AM

Interesting that it's linked to John Edwards. I would have linked it to Warren Buffett. It's reported he takes a salary of about $100k. Wonder how that would compare to the salary of someone similarly situated in a large investment firm...

Posted by: Julie | Sep 26, 2012 12:50:55 PM

Why is Vic Fleischer emulating David Cay Johnston?

Posted by: Jake | Sep 26, 2012 5:32:55 PM