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September 17, 2009

Federal Headlines


Baucus Unveils $856-Billion Health Care Reform Bill

 

Senate Finance Committee Chairman Max Baucus on September 16 unveiled an $856-billion plan to reform health care that does not add to the federal deficit. However, the legislation still lacks GOP support and is certain to undergo a lengthy amendment process when the committee takes up the bill on September 22.

 

The mark, as expected, does not include a government-run insurance option but would create nonprofit, consumer-owned cooperatives, and the absence of the government option has cost the support of the more-liberal Democrats on the committee. Several Democrats have also expressed concern over the mandate on health insurance coverage for individuals and the economic burden it would place on lower income households. Baucus remains confident, however, that those members will eventually come around and back the bill. So far, no Republican members have said they will support the measure.

 

"This partisan proposal cuts Medicare by nearly a half-trillion dollars, and puts massive new tax burdens on families and small businesses, to create yet another thousand-page, trillion-dollar government program," Senate Minority Leader Mitch McConnell, R-Ky., said in a written statement. "Only in Washington would anyone think that makes sense, especially in this economy."

 

"Unfortunately, we're operating under an artificial deadline set by the Democratic leadership and the White House," said ranking member of the committee Charles E. Grassley, R-Iowa, in a statement released on September 15. "I'm disappointed because it looks like we're being pushed aside by the Democratic leadership so the Senate can move forward on a bill that, up to this point, does not meet the shared goals for affordable, accessible health coverage that we set forth when this process began."

 

Baucus said he still believes his mark will ultimately receive the backing of some Republicans. "By the time we get to final passage in the committee, we will find Republican support," said Baucus. "There will be many amendments offered, some very good ones, and some of which I will support."

 

However, Senate Democratic Leader Harry Reid, D-Nev., said that, although he hopes for a bipartisan bill, he is ready to move the bill without Republican support if need be. Democratic leaders are prepared to use a legislative procedure known as budget reconciliation, which only requires a simple 51-vote majority versus the 60-vote threshold necessary under normal terms of debate.

 

The bill is primarily paid for through a 35-percent excise tax imposed on insurers if the aggregate value of employer-provided coverage is in excess of $8,000 for individuals and $21,000 for families, which the Joint Committee on Taxation (JCT) estimates will raise approximately $215 billion over 10 years. The other significant revenue- raisers include limits on flexible spending accounts in cafeteria plans, to $2,000, and changes to corporate information-reporting requirements. Overall, the financing proposals would raise $259 billion over 10 years. Additional revenue would be derived from fees imposed on pharmaceutical and medical device companies.

 

The America's Health Future Bill provides a tax credit to small businesses that offer health insurance to their employees with eligible employers receiving a credit for up to 35 percent of their contribution in 2011 and 2012. Once insurance exchanges are up and running in 2013, qualified small employers purchasing insurance through the exchanges can receive a tax credit for two years that covers up to 50 percent of the employer's contribution. The plan also proposes a refundable tax credit for low- and middle-income individuals to subsidize the purchase of health insurance.

 

Following release of the measure, the Congressional Budget Office (CBO) released its analysis, stating that the gross cost of the Chairman's Mark is $774 billion over 10 years. Finance Committee staffers do not question the CBO analysis, according to Finance Committee aides. Both numbers are accurate, depending upon whether related policy initiatives are scored individually or combined into a net score, they said. The $82-billion difference is principally attributable to this netting convention, according to the aides.

House Reaction

 

House Democratic leaders viewed Baucus' health care legislation as the next step in the process of passing comprehensive reform in 2009. The bill is viewed as a draft because it will be modified when it reaches a conference with the House, lawmakers said. House Speaker Nancy Pelosi, D-Calif., said House Democrats would be studying the bill to determine its impact on the cost of health care borne by families and businesses. She hopes that the Senate bill will be modified to better reflect House priorities that boost competition and force insurers to provide low-cost coverage. "I believe the public option is the best way to achieve that goal," she said.

 

House Ways and Means Committee Chairman Charles B. Rangel, D-N.Y., added that the Baucus bill will eventually lead to passage of comprehensive reform that President Obama will sign. Rep. Stephanie Herseth Sandlin, D-S.D., speaking on behalf of the House Blue Dog Coalition of conservative Democrats, said the Baucus bill meets the group's priorities of being deficit-neutral and bringing down the long-term cost of the health care.

White House Response

 

White House Press Secretary Robert Gibbs called the Baucus package "an important building block" for comprehensive health care reform but added that it does not reflect everything President Obama wants to see in a final plan. Noting that there are bound to be changes ahead as part of the legislative process, Gibbs said, "I don't think the President looks at today as the end."

 

Gibbs indicated that the White House is willing to make changes to the individual mandate proposal, including restructuring of the tax breaks to make health insurance more affordable to individuals. "I know that the president and his team will be working on ensuring affordability, structuring any benefit and tax credit so that it helps those that are looking for accessible and affordable insurance options," Gibbs said a press briefing on September 16.

Cash for Clunkers

 

On a separate issue, Gibbs said that the White House economic team is reviewing the popular cash-for-clunkers tax credit to determine whether it should be extended. Gibbs said the president's advisors are evaluating the impact of the tax credit on home sales and will come forward with a recommendation to the president. The White House had no further guidance on when the president would receive the recommendations.

 

By Jeff Carlson, Stephen K. Cooper and Paula Cruickshank, CCH News Staff

SFC Press Release: Baucus Introduces Landmark Plan to Lower Health Care Costs, Provide Quality, Affordable Coverage

Chairman's Mark: America's Healthy Future Act of 2009

Ways and Means Press Release: Chairman Rangel on Senator Baucus' Health Insurance Reform Proposal

CBO Analysis of Chairman's Mark

JCT Estimated Revenue Effects of the Revenue Provisions Contained in the Chairman's Mark of the America's Healthy Future Act of 2009, JCX-35-09

 

Final Regulations Issued Relating to Information Returns for Cancellation of Indebtedness by Certain Entities (T.D. 9461)

 

Final regulations have been issued relating to information returns for cancellation of indebtedness by certain entities under Code Sec. 6050P. Proposed regulations (TAXDAY, 2008/11/10, I.1) have been adopted without change and the corresponding temporary regulations have been removed. The final regulations are effective on September 17, 2009.

 

The regulations are intended to avoid premature reporting of cancellation of indebtedness under Code Sec. 6050P by certain lenders that are presently required to file Form 1099-C, Cancellation of Debt. The regulations limit the scope of the 36-month rule of Reg. §1.6050P-1(b)(2)(iv) to cover only those "applicable financial entities," to which Code Sec. 6050P, as enacted in 1993, originally applied, prior to its amendment in 1996. The amendments will also protect debtors from receiving information returns that prematurely report cancellation of indebtedness income from such entities.

TD 9461, 2009FED ¶47,031

Other References:

 

Code Sec. 6050P

 

CCH Reference - 2009FED ¶36,310B

 

CCH Reference - 2009FED ¶36,311B

 

Tax Research Consultant

 

CCH Reference - TRC FILEBUS: 9,300

CCH Reference - TRC SALES: 12,452

 

Travel Expenses Deductible Despite Overnight Stops at Home, Loss of Records (Freeman, TCM)

 

An individual taxpayer who drove a delivery route could deduct the cost of the trip from his last delivery stop to the main auto parts warehouse where his route began each day, even though he stopped overnight at home. The taxpayer's daily drive took him from home to the warehouse where he dropped off the previous day's receipts and picked up new items to be delivered to various customers' shops. After the last customer visit, the taxpayer returned home. The taxpayer could deduct the expense of making the full circuit from the warehouse, through all the stops, and back to the warehouse. Because the taxpayer was required to deliver items from the last stop to the warehouse, only the relatively short distance from the taxpayer's home to the site of the last stop was personal commuting travel.

 

The taxpayer's deduction of automobile expenses was allowed based on his testimony despite the absence of written records. He produced a certification from the state fire marshal that his house had been destroyed by fire, and testified credibly that he had a logbook that would have substantiated the deductions but was lost in the fire.

L. Freeman, Jr., TC Memo. 2009-213, Dec. 57,939(M)

Other References:

 

Code Sec. 162

 

CCH Reference - 2009FED ¶8550.269

 

CCH Reference - 2009FED ¶8570.175

 

CCH Reference - 2009FED ¶8590.1319

 

Code Sec. 274

 

CCH Reference - 2009FED ¶14,417.31

 

CCH Reference - 2009FED ¶14,417.50

 

Tax Research Consultant

 

CCH Reference - TRC INDIV: 36,154

CCH Reference - TRC BUSEXP: 24,450

CCH Reference - TRC BUSEXP: 24,850

CCH Reference - TRC ACCTNG: 3174

CCH Reference -

TRC LITIG: 6260

 

 

 
 


CCH Projects Inflation-Adjusted Tax Brackets and Other Amounts for 2010

 

As a service to our subscribers, CCH Tax & Accounting has prepared projected inflation-adjusted tax bracket numbers for the 2010 Tax Rate Schedules, the standard deduction and personal exemption for use in year-end and 2010 tax planning. The projected figures are based on the inflation-adjustment provisions of the Internal Revenue Code (IRC) as currently in force and the average of the Consumer Price Index for All Urban Consumers (CPI-U) published by the Department of Labor for each month in the 12-month period ending on August 31, 2009. Official IRS figures will not be released until later in 2009.

 

Due to the historically low inflation rate of below 0.2 percent for purposes of tax indexing, many 2010 indexed amounts will increase only slightly. Some, in fact, will not increase at all for the first time since indexing started in the early 1980s because of the combination of negligible inflation and application of "rounding-down" indexing rules found in the IRC.

Tax Brackets

 

Joint returns. For married taxpayers filing jointly and surviving spouses, the maximum taxable income subject to the 10-percent bracket will rise from $16,700 in 2009, to $16,750 in 2010; the top of the 15-percent tax bracket will increase from $67,900 to $68,000. The bracket amounts for the remaining tax rates will show similarly proportionate increases: $137,300 as the maximum for the 25-percent bracket (up $250 from 2009); $209,250 for the 28-percent bracket (up $400 from 2009); and $373,650 for the 33-percent bracket (up $700 from 2009). Amounts above the $373,650 level will be taxed at the 35-percent rate.

 

Unmarried filers. For single taxpayers, the maximum taxable income for the 10-percent bracket will increase to $8,375 for 2010 (up from $8,350 in 2009). The remainder of the rate brackets show inflation increases of: $50 for the top of the 15-percent bracket (to $34,000); $150 for the 25-percent bracket (to $82,400); $300 for the 28-percent bracket (to $171,850); and $700 for the top of the 33-percent bracket (to $373,650).

 

Married filing separately. Married taxpayers filing separately will see a $25 increase for the upper limit of the 10-percent bracket (to $8,375) and a $50 increase for the 15-percent bracket (to $34,000). The top of the 25-percent bracket will increase by $125 (to $68,650); the 28-percent bracket will increase by $200 (to $104,625); and the 33-percent bracket will increase by $350 (to $186,825).

 

Heads of household. For heads of households, the maximum taxable income for the 10-percent bracket will see no increase, holding at $11,950. The top of the remainder of the bracket amounts will increase only slightly: up $50 from 2009 for the 15-percent bracket, to $45,550; up $200 from 2009 for the 25-percent bracket, to $117,650; up $350 from 2009 for the 28-percent bracket, to $190,550; and up $700 from 2009 for the top of the 33-percent bracket, to $373,650.

 

Estates and trusts. For estates and nongrantor trusts, there will be no changes in the rate bracket amounts from 2009 levels, except a $50 increase in the highest 35 percent bracket. For 2010, brackets amounts will end at $2,300 for the 15-percent bracket (there is no 10-percent bracket for these taxpayers); $5,350 for the 25-percent bracket, and $8,200 for the 28-percent bracket. The top of the 33-percent bracket will rise to $11,200 in 2010.

Standard Deduction

 

The 2010 standard deduction will stay put for all taxpayers except heads of households, who will see a $50 increase because of rounding conventions. The standard deduction amounts for 2010 will be $5,700, for single taxpayers; $8,400, for heads of households; $11,400, for married taxpayers filing jointly and surviving spouses; and $5,700, for married taxpayers filing separately. The standard deduction for dependents also hold at $950 (or earned income plus $300).

Personal Exemptions

 

The amount of personal and dependency exemptions for 2010 will remain at their 2009 level of $3,650.

Gift Tax

 

The gift tax annual exemption, which rose from a base of $10,000 to $11,000 in 2002; $12,000 in 2006, and $13,000 in 2009, will remain at $13,000 for 2010. Pursuant to the IRC, the exemption can rise only when the inflation adjustment produces an increase of $1,000 or more.

Other Tax Figures

 

In addition to the projected tax figures for 2010 listed above, the IRC requires other possible adjustments based on the September 2008 through August 2009 CPI amounts. These additional amounts include:

 

Code Sec. 179 expensing. Unless Congress intervenes, Code Sec. 179 expensing will return to pre-2008 levels for 2010. For tax years beginning in 2010, the Code Sec. 179 expensing limit will be $134,000 and the cost-of-equipment limit set at $530,000. (Note: Expensing is currently scheduled to return to $25,000 ($200,000) levels in 2011.)

 

Roth IRAs. The AGI limits for maximum Roth IRA contributions will be: married filing jointly, $167,000 ($166,000 in 2009); the AGI limit for other filing statuses, other than married filing jointly or separately, will remain at $105,000.

 

IRAs. The AGI limits for maximum IRA contributions for individuals covered by a retirement plan will remain at $89,000 for married filing jointly, but rise by $1,000 to $56,000 for head of household and single filers. The AGI limit for joint filers when only one spouse is covered by a retirement plan will be $167,000 in 2010. The maximum on base IRA contribution amount, which is subject to indexing, nevertheless will remain at $5,000 for 2010.

 

Saver's Credit. For 2010, the saver's credit will be available based on AGI limit and filing status as follows: Joint filers: $33,500 AGI for a 50 percent credit; $36,000 for a 20 percent credit, and $55,500 for a 10 percent credit. Head of household: $25,125 AGI for a 50 percent credit; $27,000 for a 20 percent credit, and $41,625 for a 10 percent credit. Other filers: $16,750 AGI for a 50 percent credit; $18,000 for a 20 percent credit, and $27,750 for a 10 percent credit.

 

Education savings bond interest exclusion. When U.S. savings bonds are redeemed to pay expenses for higher education, the interest may be excluded from income if the taxpayer's income is below a certain range. For 2010, that phase-out range for singles will be $70,100 - $85,100 and for joint filers, $105,100 - $135,100 (up from starting points of $69,950 and $104,900, respectively, in 2009)

 

Student loan interest income phaseout. The $2,500 student loan interest deduction phaseout will begin at $60,000 AGI for singles, and $120,000 for joint filers in 2010. These levels represent no change from 2009.

 

Adoption expense credit. This $10,000 maximum credit was first subject to an inflation adjustment after 2002. For 2010, the amount will increase to $12,170 ($20 more than in 2009), with the AGI phaseout beginning at $182,520 (up $340 from 2009).

 

Transportation fringe benefits. The monthly cap on the exclusion of qualified parking expenses will be $230 in 2010, as it is in 2009. Because of a recent law change, the $230 amount also applies to van pooling and transit passes.

 

Medical savings accounts. The minimum-maximum range for MSAs in 2010 will be $2,000 - $3,000 with a $4,050 maximum out of pocket for single plans and $4,050 - $6,050 with $7,400 out of pocket for family plans.

 

Long-term care insurance. The per diem exclusion for long-term care insurance proceeds for 2010 will be $290 per day. The dollar level of long-care premiums deductible as health insurance premiums will range from $330 for those 40 years or younger to $4,110 for those over 70 years of age.

 

Gifts to noncitizen spouses. The first $134,000 of gifts in 2010 to a spouse who is not a U.S. citizen will not be included in taxable gifts, up $1,000 from 2009.

 

Foreign gifts. A U.S. person receiving aggregate foreign gifts exceeding $14,165 in 2010 will be required to file an information return.

 

Foreign earned income. The amount of the foreign earned income exclusion under Code Sec. 911 for 2010 will be $91,500. The foreign earned income housing deduction for 2010 will be set at $27,450.

 

Expatriation exclusion. The exclusion of income from deemed sales upon expatriation will rise to $627,000 in 2010.

No Adjustments

 

Some tax figures that have been indexed in past years, will not be indexed for 2010. This group includes:

 

--Personal exemption phaseout, which is repealed entirely for 2010;

 

--Itemized deductions phaseout, which is repealed entirely for 2010;

 

--A more generous American Opportunity Tax Credit for 2009 and 2010, which temporarily replaces the Hope and Lifetime Learning Credits; and

 

--A lower refundable child credit earned income threshold of $3,000 for 2009 and 2010. This amount is set by statute.

 

By George Jones, CCH News Staff


 

State Headlines


Ohio --Corporate Income Tax: Constitutional Challenge to CAT Dismissed on Procedural Grounds

 

An Ohio court of common pleas dismissed a constitutional challenge to the commercial activity tax (CAT) for lack of standing and the absence of a justiciable controversy. The taxpayer bringing the challenge sells a multitude of products to consumers throughout the United States via its Web site. The CAT levies a tax on "persons with substantial nexus with this state." Ohio law (R.C. §5751.01) states that a person has bright-line presence in Ohio for a reporting period and the remaining portion of the calendar year if the person has taxable gross receipts during the calendar year of at least $500,000.

 
Background

 

The Ohio Department of Taxation sent the taxpayer two letters requesting it register as subject to the CAT. The taxpayer stated that it did not believe that it was subject to the tax and failed to register. The department responded that it believed that the taxpayer had more than $500,000 in annual taxable gross receipts, which made the taxpayer liable pursuant to R.C. §5751.01. After the taxpayer failed to answer, the department sent an email stating that a failure to respond would result in estimated assessments against the taxpayer based on the best available information.

 

The taxpayer interpreted the email as a "threat" from the department and filed suit accordingly. The taxpayer contended that the CAT, both on its face and as applied, violates (1) the Commerce Clause of the U.S. Constitution, (2) the Due Process Clause of the U.S. Constitution, and (3) the Due Process Clause of the Ohio Constitution. The taxpayer named the governor, the attorney general, and the tax commissioner as defendants.

 
Tax Commissioner's Motion to Dismiss

 

The court found the taxpayer's contention that the email from the department was a threat to be unpersuasive. The estimates could have led to the conclusion that the taxpayer's taxable gross receipts were less than $500,000 annually, which would have led to the taxpayer not being subject to the CAT. Because the department did not state that it would commence collection under the CAT, there was no justiciable controversy.

 

Furthermore, the court held that had the department conducted an assessment and had it concluded that the taxpayer was subject to the tax, the statutes provide adequate remedies. Taxpayers are entitled to appeal an assessment to the Board of Tax Appeals (BTA). Taxpayers that do not agree with the decision of the BTA are provided the opportunity for a direct appeal to the Ohio Supreme Court. Because adequate remedies existed for the taxpayer were it to be found subject to the CAT, declaratory judgment was inappropriate. Thus, the court granted the tax commissioner's motion to dismiss.

 
Attorney General's and Governor's Motions to Dismiss

 

Both the attorney general and the governor argued that they were not proper parties to the suit. The attorney general does not have any involvement in tax collection within Ohio until the tax laws have been violated and criminal prosecution is necessary. The governor was even more remotely connected to the matters in this action and would also not be required to be involved prior to any criminal violation of the tax laws. The court noted that because the CAT had not been levied on the taxpayer, the taxpayer was not subject to criminal prosecution for failure to pay the CAT. Thus, the attorney general's and governor's motions to dismiss were also granted.

 

Overstock.com, Inc, v. Levin, Ohio Dept. of Taxation Commissioner, Ohio Court of Common Pleas, Franklin County, No. 08 CV 16412, July 28, 2009

 


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