Have We Created a Two-Tiered Tax System—One for the Powerful and One for the Rest of Us?

By :: July 22nd, 2014

Unlike the rest of us, many high-income, influential people and organizations have close to a free hand when it comes to their taxes. Already underfunded and understaffed, the IRS seems incapable of stopping many aggressive or even abusive interpretations of the tax laws, often by hedge funds or politically-motivated tax-exempt organizations.

Over the past few weeks, two powerful examples of this bifurcated system have bubbled to the surface.

Last night, the Senate Permanent Subcommittee on Investigations issued a report on how some hedge funds and banks use derivatives to turn short-term capital gains into long-term gains and, thus, save billions of dollars in taxes. According to the committee staff, the partners of just one fund, Renaissance Technology Corp., used these transactions to avoid $6.8 billion in taxes from 2000 to 2013. One hedge fund. $6.8 billion.

The IRS has known about tax avoidance through these derivatives (called “barrier options” or “basket options”) for six years, according to testimony by Renaissance officials. Yet my Tax Policy Center colleague Steve Rosenthal—a tax lawyer who specialized in complex financial transactions when he was in private practice-- believes that claiming long-term gains through derivative transactions such as those used by Renaissance is already against the law.

The IRS doesn’t need any new legal authority to stop this activity, yet it can’t seem to do it.

The problem is the IRS is hopelessly outgunned, especially when it comes to complex areas of the law where aggressive entities can marshal armies of lawyers. In 2011, partnerships held $2.3 trillion in assets and reported $69 billion in income. But Amy S. Elliot of Tax Notes reports that the field audit rate for large partnerships was 0.8 percent.

In part, that’s because the agency was unlikely to collect any money from these entities. As pass-throughs, partnerships pay no taxes. Thus, the IRS was reluctant to audit them. The problem: businesses increasingly are organizing themselves in this manner, and the IRS has been unable to keep up.

The partners pay tax, of course, but they’d be subject to individual audits. Though the agency can always track that income back to the partnership itself, it rarely bothers. In effect, the agency usually takes the K-1 income a partner receives from his hedge fund at face value.

Then, there is the matter of those 501(c)(4) tax exempt social welfare organizations. These were once community groups whose jurisdiction resided in a sleepy corner of the IRS. But since the Supreme Court’s Citizen United decision, they have become the go-to vehicle for the wealthy and powerful to contribute anonymously to political candidates. In 2013, according to the Center for Public Integrity, these organizations distributed $256 million in dark money to favored politicians.

For more than a year, we’ve read about the IRS’s ham-handed handling of their applications for tax-exempt status. But while critics have focused on the IRS’s alleged targeting of certain organizations, they have ignored another, quite different story. According to a recent report by the non-partisan Center for Public Integrity, the audit rate for non-profits is 0.66 percent, even lower than for partnerships.

Even prior to the recent wave of budget pressures and well before Congress and the Obama Administration dumped even more work on the agency through the Affordable Care Act, partnerships and tax-exempts were IRS backwaters.

And like the partnerships, the benefit of auditing the 501(c)(4)s didn’t justify the cost. Until recently, at least.

These are extreme cases, but the IRS is desperately short-staffed everywhere. In 2013, the agency had fewer enforcement staff than a decade ago. And the problem would get far worse under the agency budget just passed by the House—which would slash funding by $1.4 billion, or 13 percent.

There are enormous consequences for tax compliance when ordinary people come to believe there are two tax systems—one for the rich and one for them. But it appears that is exactly what is happening. Some may think that’s just fine. I don’t.



  1. AMTbuff  ::  5:18 pm on July 22nd, 2014:

    “Then, there is the matter of those 501(c)(4) tax exempt social welfare organizations. These were once community groups whose jurisdiction resided in a sleepy corner of the IRS. But since the Supreme Court’s Citizen United decision, they have become the go-to vehicle for the wealthy and powerful to contribute anonymously to political candidates”

    Where was the outrage when MoveOn began this abuse of tax-exempt status FIFTEEN years ago? Am I the only one who finds it telling that complaints began only after right-wing groups copied MoveOn’s ploy?

    As to anonymous contributions, is there no right to privacy when it comes to supporting political speech? Political speech is at least as much a primary liberty as birth control or sexual preference, is it not?

  2. Michael Bindner  ::  3:24 am on July 23rd, 2014:

    On the rich-poor divide, I suspect it is much easier to get audited if you use the Earned Income Tax Credit than a basket account. Sadly, the best we can hope for for now is stopping the proposed House IRS budget cut, which while is proportedly beause of the 501(c)(4) flap, is probably more to do with not investigating basket funds.

    The problem of pass throughs on this issue leaves one thing very obvious – it is time for all businesses to file, with only the profit distributions going toward income taxation – and that means a Value Added Tax (receipt visible, no social deductions) and a Net Business Receipts Tax (invisible with social deductions). This won’t stop problems like the ones mentioned, but it will slow them down – since the political committees will pay both NBRT and VAT and financial firms taxation could include a Tobin Tax, which would essentially shut down the large computer traders – and that would not be a bad thing. Of course, if one of the NBRT social deductions was retirement – with social security conributions being equalized from the employer contribution, insured and holding employer voting stock, then most employers would go private and there would be no Wall Street to run these abusive trades.

  3. mac mc cabe  ::  12:26 pm on July 23rd, 2014:

    be assured, my question is not meant as snide but why might a question about a 2-tier system even arise. for so many of us, that’s the beast with whom we live

  4. Ralph H  ::  3:30 pm on July 23rd, 2014:

    A couple comments. First, we asked for the 501(c) abuse by limiting campaign contributions. Personally, I believe it limits free speech and anybody should be permitted to spend their (or their heirs) money as long as its not tax deductible or otherwise subsidized by the government. The current law just funds many middlemen and legal experts.

    Second, by reducing the personal tax rate and not lowering the corporate rate we have encouraged partnerships and other pass troughs. As Howard notes that may make it less likely to audit, but it seems that a big “whale” like Renaissance may be worthy to set example of.

    The IRS might get more support if they concentrated on big scammers and did fewer audits of individuals, small companies and 501(c)s with ideological differences with the administration. Sometimes I feel they are going after low hanging fruit.

    Finally, I rarely agree with Mr Binder but some sort of VAT or national sales tax would be easier to collect and have less ways to avoid than a business income tax.

  5. This Hedge Fund’s $6.8 Billion Tax Break Is Going to Enrage You | TheAllNews  ::  11:58 am on July 24th, 2014:

    […] Gleckman of the Tax Policy Center explains here why it is that the IRS might not yet have clamped down on this particular maneuver. Short answer: […]

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