The purpose of most lawsuits is to make a plaintiff whole after an injury or other loss. Settling a lawsuit might bring the litigation to a close, but the plaintiff must still contend with the IRS. Luckily, taxation of lawsuit settlements is fairly straightforward once one understands a few principles that our Los Angeles tax advisors can explain.

Settling a Lawsuit vs. Winning a Verdict or Judgment

The IRS makes no distinction between a payment received due to a settlement and one that comes after a jury verdict or court order. In either case, a taxpayer receives compensation for one or more legal claims. We will use the term “settlement” for the sake of brevity, but the same principles apply to damage awards.

One advantage of a verdict or court order is that it is more likely to contain a breakdown of damages. Verdicts often specify the amounts awarded for different claims. This can help a plaintiff when they are preparing their taxes. For this reason, it is often advisable to include a written allocation of damages in a settlement agreement.

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One aspect of estate planning involves devising strategies to minimize the amount paid in federal taxes out of one’s estate. At the end of 2017, the total exemption for the federal estate, gift, and generation-skipping transfer (GST) taxes doubled. This increase is currently set to expire after eight years, after which it will revert to pre-2018 levels. This provides taxpayers with a limited window of time to take advantage of the significantly higher exemption amounts. Our Los Angeles tax advisors can help you make use of this opportunity.

What Are the Estate, Gift, and GST Taxes?

The Internal Revenue Code (IRC) defines the estate tax in a rather circular fashion as a tax on “the transfer of the taxable estate of” a decedent. The gift tax is defined in a similar fashion as a tax “on the transfer of property by gift.” A highly-oversimplified definition of GST is a transfer to an individual, known as a “skip person,” who is at least two generations younger than the transferor, such as a grandchild and grandparent. The term “skip person” may also refer to a trust in which all beneficiaries are skip persons.

Tax Exemptions for 2020 and Beyond

The IRC allows for a “unified credit” against the estate tax, which also covers the gift and GST taxes. The tax reform law passed in 2017 amended the IRC to double the unified credit from $5 million to $10 million, with adjustments for inflation. The adjusted unified credit for 2020 is $11,580,000, or $23,160,000 for married couples. Those numbers will likely increase in 2021, and every year after that through 2025. The unified credit amount reverts to $5 million, adjusted for inflation, on January 1, 2026, unless Congress amends the IRC again.

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As of November 2019, Senator Elizabeth Warren of Massachusetts is one of the front runners in the Democratic primary contest to determine the party’s 2020 presidential nominee. She has released detailed proposals for programs she would support as president. One initiative that has caught the attention of our California tax advisors involves proposed changes to the Internal Revenue Code (IRC) that would provide additional revenue to the federal government. Rather than expand the longstanding trend of taxing individual and business income, Senator Warren’s proposals would tax wealth and eliminate a major loophole with regard to the taxable value of inherited property.

What Is a Wealth Tax?

The Sixteenth Amendment to the U.S. Constitution, ratified in 1913, authorized Congress to impose an income tax at the federal level. This has been the primary source of tax revenue for the federal government ever since. The idea, for many, is that people with greater income would pay larger amounts of tax in order to benefit society as a whole. The IRS collects taxes on income, and on capital gains from the sale of assets.

Unlike income tax, which looks at how much a person earns in a particular year, a wealth tax would look at how much wealth a person has accumulated. A high net worth does not necessarily mean that a person has a high income, and vice versa. The New York Times notes that one of the richest people in the United States (and the world) has a net worth of about $84 billion, but an annual salary of only $100,000, plus capital gains on assets he actually sells. Under current tax law, he only pays tax on that income.

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The IRS has many options for collecting unpaid taxes, but a limited budget means that the agency must prioritize its enforcement and collection efforts. For most taxpayers who are in arrears, penalties and interest accrue as the IRS sends notices by mail. Eventually, the IRS might place liens on a taxpayer’s property, and then execute a levy. This can be costly and time-consuming, and the agency would rather obtain unpaid taxes by other means. It recently announced that IRS revenue officers will be conducting in-person visits with delinquent taxpayers in several states. While this will not affect California taxpayers right away, that could change in the future. If you are behind in filing and/or paying taxes, you may want to speak with a California tax advisor about your situation.

IRS Debt Collection

Federal law gives the agency two main options for pursuing tax debt that has remained on the books for some time. These may apply to both individual taxpayers and businesses. The Taxpayer’s Bill of Rights (TBOR) applies in all cases.

Revenue Officers

The IRS describes revenue officers (ROs) as “civil enforcement employees” assigned to cases involving unpaid taxes or missing tax returns. A RO’s involvement in a case typically begins with another written notice sent by mail. The RO’s job, according to the IRS, is to help bring taxpayers into compliance, “not to make threats or demand some unusual form of payment for a nonexistent liability.”

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Virtual currency, which the IRS defines as “a digital representation of value” that does not represent the U.S. dollar or any other national currency, has gained in popularity in recent years. For some, it offers an alternative to “real currencies” like the dollar for financial transactions. For others, virtual currencies offer investment opportunities. The IRS has held since 2014 that virtual currency is “property” for the purposes of federal income tax. A recent ruling, Rev. Rul. 2019-24, offers further guidance for investors and California tax advisors alike. The ruling addresses two specific events, known as “hard forks” and “airdrops.”

What Is Cryptocurrency?

Several key features define cryptocurrency and distinguish it from other virtual currencies:
Cryptography: Encryption protects cryptocurrency from forgery and other forms of manipulation. Many cryptocurrencies use blockchain technology, which creates a new and unique record every time a unit of currency is transferred.
Decentralization: Cryptocurrencies are not issued by any centralized financial authority. Instead, they are created through computing processes known as “mining.” Cryptocurrency transactions are logged on databases known as “distributed ledgers,” which are maintained across multiple computer systems, or “nodes.” This also protects against forgery or falsification of records.

Taxable Gross Income

Section 61 of the Internal Revenue Code (IRC) identifies various forms of “gross income” that is subject to federal income tax. This includes “gains derived from dealings in property.” The IRS ruled in 2014 that cryptocurrency is “property” for the purpose of calculating gross incomes.

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The IRS has estimated that U.S. taxpayers underpay their taxes by around $300 billion each year. Each taxpayer is responsible for calculating their own tax bill, but the IRS also uses other sources of information. It compares the information provided on taxpayer returns to that other information. If it finds a discrepancy, it sends a notice to the taxpayer. For years, the IRS used a form known as the CP2000 Notice, or the “Notice of Underreported Income.” The IRS recently began to use another form, the CP2057. Taxpayers should be aware of both notices, and our California tax advisors urge you to be aware of what you should do if you receive either one.

Warning Letters

Federal law gives the IRS extensive authority to collect unpaid taxes, but the process involves a lengthy series of notices. CP2000 and CP2057 are preliminary notices. They are not “bills,” in the sense that receiving one of these notices does not immediately trigger an obligation for the taxpayer to send money to the IRS. Instead, they are ways for the IRS to notify a taxpayer about discrepancies in their file, and to give them an opportunity to correct the information.

In order for the IRS to pursue a collection action against a taxpayer, they must send a formal notice and demand for payment, known as a CP501 Notice. This notice identifies a specific amount owed and gives a deadline for payment. If the taxpayer fails to pay by the deadline, or otherwise fails to respond to the notice, the IRS can file a tax lien. If the IRS intends to levy the taxpayer’s property, it must send a CP504 Notice.

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The estate tax applies to property transferred by a will or other probate proceedings. Congress has set extensive limitations on who is obligated to pay estate tax. The most recent tax reform bill, enacted in 2017, more than doubled the size of estates that are excluded from estate tax liability. A handful of states have enacted their own taxes on estates or inheritances, but California is not among them. Even if a person does not expect their estate to be large enough to incur an estate tax liability, understanding how the tax works is an important part of estate planning.

What Is the Estate Tax?

The Internal Revenue Code (IRC) defines the estate tax as a tax on “the transfer of the taxable estate of every decedent who is” a U.S. citizen or resident. The executor of the estate is responsible for paying the tax.

The tax is calculated as a percentage of the value of the non-exempt part of an estate. Tax rates start at eighteen percent for values of $10,000 or less. For a value of more than $1 million, the amount of tax is $345,800 plus forty percent of the amount in excess of $1 million.

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Businesses with employees have federal tax obligations besides income tax. The Internal Revenue Code (IRC) makes both employers and employees responsible for paying employment taxes, but the responsibility for transmitting those tax payments to the IRS belongs solely to the employer. If an employer fails to pay employment taxes or file an employment tax return, the IRC authorizes the government to create a return for the employer and assess the amount of tax due. The IRS has created a program that allows automated creation of missing returns, but the program is reportedly understaffed and lacking in other resources. A recent audit by the Treasury Inspector General for Tax Administration (TIGTA) found that these deficiencies in the program caused the IRS to miss billions of dollars in employment tax assessments.

What Are Employment Taxes?

The Federal Insurance Contributions Act (FICA) requires both employees and employers to pay the following employment taxes:
– 6.2 percent of the employee’s wages for “old-age, survivors, and disability insurance,” also known as Social Security; and
– 1.45 percent of the employee’s wages for “hospital insurance,” or Medicare.
The Social Security Administration (SSA) sets a cap on the amount of earnings subject to the 6.2 percent Social Security tax. As of the end of 2018, the cap is set at $132,900. There is no cap on earnings subject to the 1.45 percent Medicare tax.

The Federal Unemployment Tax Act (FUTA) requires employers, but not employees, to pay an excise tax of 6.0 percent of each employee’s wages up to $7,000.
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More than five million United States citizens live outside of the U.S., according to estimates by the federal government. Regardless of where they live, all citizens are required to pay federal income tax to the IRS. Federal law provides several methods for renouncing or relinquishing U.S. citizenship, but doing so comes at a significant cost. The U.S. Department of State (DOS) requires citizens seeking to renounce their citizenship to pay a substantial fee, and the IRS imposes an expatriation tax on some former citizens and others living abroad. Recently, the IRS announced new procedures, known as the Relief Procedures for Certain Former Citizens (RPCFC), that streamline the process for certain former U.S. citizens to resolve tax compliance issues.

Under the Fourteenth Amendment to the U.S. Constitution, any person born on U.S. soil is a citizen by birth, or natural-born citizen. The only exceptions are children born to foreigners who are in the U.S. in diplomatic capacities, and therefore subject to diplomatic immunity from U.S. laws. Immigrants to the U.S. can become naturalized U.S. citizens by following the procedures set forth by the Immigration and Nationality Act (INA).

Section 349(a) of the INA, codified at 8 U.S.C. § 1481(a), identifies seven ways that a U.S. citizen can lose their citizenship. The U.S. Supreme Court has ruled multiple times, such as in 1967’s Afroyim v. Rusk, that the government cannot involuntarily strip a person of their citizenship. Under § 349(a)(5), an individual can renounce their citizenship by voluntarily and knowingly “making a formal renunciation of nationality” at a U.S. consulate or embassy abroad.

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The federal Internal Revenue Code (IRC) allows taxpayers to deduct various business expenses from their income for the purposes of computing their total tax bill for a given year, with numerous exceptions. Section 280E of the IRC, for example, prohibits deduction of expenditures involved with “the illegal sale of drugs.” More than half of all U.S. states allow the medical use of marijuana to some extent, but it remains a Schedule I controlled substance under federal law. This is causing problems for businesses that are complying with state cannabis laws. In late 2018, the U.S. Tax Court ruled that a California medical marijuana company could not deduct millions of dollars in business expenditures. The company has announced that it intends to appeal this decision on business tax deductions.

IRC § 162 allows taxpayers to deduct all “ordinary and necessary expenses” that they pay or incur as part of their “trade or business,” subject to various exceptions scattered throughout the statute. The exception for the “illegal sale of drugs” applies to any substance included in Schedules I or II of the federal Controlled Substances Act (CSA), or similarly prohibited by the laws of the state in which the taxpayer does business. The CSA classifies marijuana (or “marihuana”) in Schedule I, which requires a finding that a drug has “no currently accepted medical use in treatment.”

California law takes a substantially different view of marijuana, as do the laws of at least thirty-one other states, the District of Columbia, and several U.S. territories. In 1996, California became the first state in the U.S. to allow the use of marijuana for medical purposes, after voters passed Proposition 215, also known as the Compassionate Use Act of 1996. A 2005 decision by the U.S. Supreme Court, Gonzales v. Raich, held that federal law may continue to criminalize marijuana production, distribution, and possession even when state laws allow those activities. Conflicts between federal and state marijuana laws are an ongoing matter of dispute.

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