To understand some of the issues contained in Trump’s tax returns, let’s assume the role of an IRS auditor and examine Trump’s tax returns based on the information available in news reports, principally the New York Time’s (NYT) massive investigation published on September 28, 2020.
1. Disguised Gifts:
Fred Trump (Donald’s father) apparently made numerous disguised gifts to his children, designed to avoid gift taxes and that Donald has been following in his footsteps (“like father, like son”) with suspicious payments in 2017 to Ivanka of $747,600 for “consultant” fees, when she received a salary of $2.0 million working for the Trust Organization. At first glance, if Ivanka pays income taxes on the consulting fee, what’s the big deal – the government collected the income tax, whether it was from Donald or Ivanka. We’d want proof that Ivanka actually paid taxes on the money and did not generate dubious deductions to offset the income, such as non-deductible personal expenses.
If the consulting fee was a disguised gift, Trump would owe gift taxes on the $750,000 at a rate of 40% ($300,000) in addition to the income taxes he’d owe on the non-deductible transaction, a combined federal tax approaching 80%, plus applicable state taxes. Under the tax law, if we assert a gift tax, the burden of proof is on Trump to show there was not a gift, our determination is presumed to be correct.
By doing this numerous times, Trump would be transferring wealth to his children, grandchildren or other family members without paying gift taxes, just like his father, a generational family tax dodge. Because the transaction was not reported as a gift, there is no statute of limitations, which means we could go back 20 years or more and audit each and every transfer from Trump to his children, grandchildren or other family members, searching for disguised gifts. The penalty for failure to report gifts is 20% if the actions were negligent and 75% if they were fraudulent. Depending on how consistent the pattern was, there could be sufficient evidence to assert a fraud penalty, which means if there were $1.0 million in gift taxes, the penalty would be an additional $750,000.
Conclusion: Trump has huge exposure to gift taxes, penalties and interest.
2. Deducting Personal Expenses
The press is all a flutter about Trump deducting his hair cuts and personal care. Flat out: these are non-deductible personal expenses. The IRS and courts have ruled time and time again that expenses for personal appearance and clothing (except for uniforms worn by police and firefighters, for example) are not deductible. There have been specific cases involving athletes (a tennis pro cannot deduct shoes or clothing because those items can be worn outside of playing tennis), similarly, a newscaster cannot deduct suits and ties worn on camera for the same reason. That means Kim Kardashian cannot deduct payments to her “booty” tailor; however, Lady Gaga can deduct her meat dress since it is not practical to wear it off stage (especially if she works as a dog walker….) IRS has expressly ruled that expenses to enhance one’s personal appearance cannot be deducted, even if the goal is to generate income.
The NYT article describes several other instances where Trump improperly deducts personal expenses. One involves a vacation home in which he claims was a rental property, although his children have stated the property was used exclusively by his family. Since deducting personal expenses appears to be a favorite tax dodge by the Trumps, we’d want to audit other family members to make sure they are not doing the same thing. The penalty for this misconduct is usually negligence, but if it is blatant and repeated, fraud penalties could apply.
Conclusion: This is a no-brainer, Trump cannot deduct his personal expenditures.
3. Deducting Real Estate Losses Against Non-Real Estate Income.
The NYT article stated that a special provision allows real estate developers to deduct their real estate losses against non-real estate income. As a general statement, that is incorrect; a taxpayers must be considered a “real estate professional” under a set of stringent factual tests supported by sufficient evidence, before they are permitted to use real estate losses to offset other income and the test is reapplied for each tax year.
When Trump became involved with the Apprentice in 2004 through 2016 and then president thereafter, he could no longer qualify as a real estate professional. Indeed, Trump paid millions in taxes from on the earnings from the Apprentice during tax years 2005-2007, which indicates that he did could not use real estate losses to offset this income.
After 2004, the NYT article establishes that Trump was in the entertainment and licensing business and was not a real estate professional. Thus, his entertainment and licensing profits were taxable to him without reduction or offset by real estate losses. As auditors, we’d look to see whether Trump deducted real estate losses against his non-real estate income. The NYT article indicates tax year 2009 and future years are remain open for audit.
Conclusion: If real estate losses generated after 2004 were used to offset entertainment or licensing fee income, those losses should be disallowed.
4. Trump’s Current Tax Audit
According to the NYT, IRS is auditing Trump for his claim of a refund for taxes paid on his earnings from the Apprentice and other licensing ventures. Trump paid taxes totaling $72 million in 2005, 2006 and 2007, then the great recission of 2008 hit the US and the Obama administration in 2009 changed the law to allow the carryback of losses for four years. In 2009, Trump declared losses of $600 million and carried them back to tax years 2005-2007, claiming a full refund of $72 million in taxes.
From all indications, the dubious transaction (a purported “abandonment” loss) occurred after Congress was considering a change in the law and was devised solely for tax benefits. A bedrock tenant of tax law is that a transaction must have economic substance apart from its tax benefits, so even if the abandonment transaction was within the literal provisions of the tax code, it must first pass muster under the economic substance doctrine. This transaction may have been concocted after it was apparent that the loss carryback rules were being changed and devised solely with the purpose of claiming a tax benefit. At this point, there is not enough facts or evidence to analyze wither the economic substance doctrine applies.
Assuming the transaction is not stymied by the economic substance doctrine, the tax code does not allow a taxpayer to claim an abandonment loss that easily. For an abandonment loss to offset ordinary income, the taxpayer may not have received any income or economic benefit from the transaction. Relief of debt (failure to repay the debt in full) is considered income, which means that Trump had to own the investment free and clear of any debt, which goes against his established business practice of being leveraged (in debt) to the hilt.
If Trump received anything of value — note, the NYT reports Trump received a part of his abandonment transaction a 5% equity interest in new company — then the abandonment rules do not apply. In addition, there is an obvious issue of whether Trump truly had $600 million in losses. Remember, if he financed his interest in the transaction, in general he has offsetting income to the extent he was relieved of debt, meaning if he had $600 million of losses, but was relieved of debt by $550 million, losses are limited to $50 million and would be characterized capital losses ineligible to offset the ordinary income he earned in tax years 2005 through 2007. In short, it is extremely doubtful Trump can successfully run the gauntlet of the economic substance and abandonment rules, which means he could owe IRS $100 million in taxes, penalties and interest if his refund is denied, plus additional taxes, penalties and interest from tax year 2009 forward.
Although the press has been packed with articles about how the tax code is unfair and is gamed by the wealthy (which is certainly true), Trump’s tax planning seems to consist of potential fraud, phony deductions, disguised gifts, and overstatements of losses, rather than sophisticated gaming of the tax code. IRS has him in their gunsights, whether they pull the trigger is a political issue rather than an application of the tax code. In Trump’s case don’t blame the tax code, blame the taxpayer.