PARADISE PAPERS: MORE INQUIRIES INTO THE GLOBAL ELITE

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The ICIJ released what is now known as the “Paradise Papers,” which claim to reveal tax avoidance strategies of the rich and famous. 1 In particular, the papers claim to:

  • Reveal offshore interests and activities of more than 120 politicians and world leaders, including Queen Elizabeth II, and 13 advisers, major donors and members of U.S. President Donald J. Trump's administration
  • Expose the tax engineering of more than 100 multinational corporations, including Apple, Nike and Botox-maker Allergan;
  • Reveal tax haven shopping sprees by multinational companies in Africa and Asia that use shell companies in Mauritius and Singapore to reduce taxes;
  • Shine a light on secretive deals and hidden companies connected to Glencore, the world’s largest commodity trader, and provides detailed accounts of the company’s negotiations in the Democratic Republic of the Congo for valuable mineral resources; and
  • Provide details of how owners of jets and yachts, including royalty and sports stars, used Isle of Man tax-avoidance structures.

Appleby appears to be the law firm at the heart of the leak. It is an offshore law firm with around 470 people, having 10 offices, primarily in offshore tax havens. It apparently had 31,000 US clients.

1 See https://www.icij.org/investigations/paradise-papers/.

While many of items highlighted by the papers are legitimate tax planning strategies and therefore should not be correlated with a negative connotation notwithstanding media bias, we encourage our clients to review the release and to compare them with their tax filing obligations. Clients ensnared by the release of these documents should make sure they have filed all requisite forms with respect to their offshore holdings. The US requires substantial information reporting relating to offshore holdings and activities. Failure to file the appropriate forms may result in significant penalties. For example, willful intent to file an FBAR may result in penalties up to fifty percent (50%) of the account balance. We also encourage our clients that have any offshore holdings to review their historical compliance, notwithstanding the use of Appleby. It appears that attacks on offshore service providers will continue and may only get worse. The desire to obtain confidential information for political or nefarious gains is real and should be taken seriously.

Should you have any questions relating to this release or need assistance, feel free to contact us. We would be happy to assist.

 

 

REMINDER: ENTITY FILING DEADLINES

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Dear Clients and Friends:

The IRS has provided relief for partnerships who filed their extension by 4/18 instead of 3/15. As noted in prior client alerts, the deadlines were switched for tax years 2016 and thereafter. Some persons may not have been aware of, or were confused by, the switch. Therefore, in general, the IRS is providing relief, as long as the extension form was actually filed by 4/18 and the partnership return is filed by the due date of 9/15 with respect to calendar year taxpayers.[1]

Enclosed you will find the Notice 2017-47 describing the requirements for relief in more detail.

Please do not hesitate to contact us with any questions.

Sincerely,

GRAY TOLUB LLP

[1]          The IRS also later applied the relief to REMICs. 

REMINDER: ENTITY FILING DEADLINES

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Dear Clients and Friends:

This is a friendly reminder that the new entity US federal income tax filing deadlines for companies that filed a timely extension with respect to the 2016 tax filing year are, in general, as follows, as follows:

·       Partnerships: 9/15

·       Corporations: 10/15

Congress changed the law on partnership and corporation filings. Under the new law, before January 01, 2026, corporations would still have to file by 9/15; thereafter, the deadline would be 10/15. However, the IRS has provided for a six-month extension for corporations for the 2016 calendar year.[1]

You should check, however, that, to the extent there is a state and local income tax filing obligation, such deadlines follow federal.[2]

 

[1]          See, instructions to Form 7004.

[2]          In general, NYS and NYC follow federal. 

FINCEN 114: NEW FILING DATE

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Dear Clients and Friends:

This is a friendly reminder that the Report of Foreign Bank and Financial Accounts (known as an “FBAR”) is now due October 15.[1] In general, a US person that has a financial interest in, or signature authority over, foreign financial accounts must file a FBAR if the aggregate value of the foreign financial accounts exceeds $10,000 at any time during the calendar year.

In general, a change in law changed the due date of the FBAR to April 15 from June 30.[2] The reason for the change was for the FBAR deadlines to coincide with the US federal income tax filing deadlines.

FinCEN has also granted FBAR Filers an automatic six-month extension to October 15 of each year. No specific request needs to be made to receive this extension. The extension is effective for foreign financial accounts maintained during and after the calendar year 2016, i.e., for FBARs filed in 2017 and thereafter.

[1]          For 2016, the deadline is October 16, 2017, because October 15 falls on a Sunday.

[2]          Section 2006(b)(11) of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, P.L. 114­4

 

NYS ASSESSMENT CHALLENGED

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On July 20, 2017, in John L. Weslowski v. Assessor of Schenectady, the Supreme Court of New York, Appellate Division, Third Department, granted summary judgment to petitioners who asked a reduction of the tax assessment of their single-family dwelling, following its overvaluation by the Taxing Authority.

Petitioners bought their dwelling located in the City of Schenectady in June 2013. The seller listed the subject property for sale at the price of $149,000 in June 2011, and reduced one year later this price to $110,000. In June 2013 petitioners offered to purchase the house for the sum of $103,000, which was accepted by the precedent owner following the 30 unsuccessful showings during the last two years.

Only two weeks later, the Tax Authority assessed the subject property to $156,000 to determinate the property taxes. The new owners paid the corresponding taxes before seeking a reduction upon the ground that their property was overvalued according to Real Property Tax Law (RPTL) Article 7.

Petitioners took the case to Supreme Court to contest the assessment made by the Taxing Authority.

Private residences are annually assessed by an Assessor by referring to the subject property’s characteristics and the comparable sales.

Under the Article 7 a proceeding to review an assessment of real property, the proceeding shall be brought at a special term of the Supreme Court in the judicial district in which the assessment to be reviewed was made. Moreover, the grounds for reviewing an assessment shall be that the assessment to be reviewed is excessive, unequal or unlawful, or that real property is misclassified (RPTL 706).

In a previous tax certiorari proceeding, the Supreme Court of New York considered that “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” (Matter of Board of Mgrs. Of French Oaks Condominium v. Town of Amherst, 23 NY3d 168, 174-175, 989 N.Y.S.2d 642, 12 N.E.3d 1072). Petitioners need to rebut the presumption to present substantial evidence to demonstrate that the subject property is overvalued. The minimal threshold is met by demonstrating the existence of a valid and credible dispute regarding valuation based on sound theory and objective data.

However, the Supreme Court has consistently held that evidence of a recent sale of the property is a highly reliable measure of value. Nevertheless, the subject property should not be purchased in any abnormal manner, such as, for example, in a related party sale. Otherwise the purchase price shouldn’t be taken as evidence of real assessment.

Thanks to the associate real estate broker affidavit who had been engaged to sell the subject property, together with their owns, petitioners offered evidence that the subject property was overvalued by the assessor. Indeed, the property was for sale since June 2011, and had been continuously, publicly and widely advertised on a multiple listing service throughout the Capital Region.

The Appellate Court affirmed the lower court’s decision by taking account the petitioners’ evidence presented. It finally selected two essential points to retain petitioners’ assessment:

  1. Supreme Court retains that the subject sale was an “arm’s length transaction” which means that is not explained away as abnormal by any fashion. It adds that this is the very best form of evidence.
  2. Supreme Court highlights that the appraiser’s method of valuation makes him unable to obtain reliable adjustments by referring to comparable sales. Indeed, this appraiser was unable to inspect the interior or exterior of the subject property, which prevented him from providing a fair and realistic value of the subject property.

The Supreme Court confirmed a reversal of the burden of proof in favor of petitioners. The Taxing Authority should refer to the purchase price when the subject property has been sold by an arm’s length transaction shortly before the assessment unless the transaction was not arms-length.

This case illustrates the way to contest an assessment made by the Taxing Authority used to calculate the Real Property Tax. Even if Taxing Authority has a presumption of validity attached to the valuation of properties, it’s possible for the owners to challenge this assessment by giving the proof of a recent sale in normal conditions. Under these circumstances, the Taxing Authority should refer to this purchase price to determine the amount of Real Property Tax due.

 

AGREEMENT EXECUTED IN CONJUNCTION WITH A WILL NOT ENFORCED

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On May 17, 2017, in Tretter v. Tretter,  the Supreme Court of New York, Appellate Division, Second Department, dismissed an action of a son (as plaintiff) against his mother (as defendant) to enforce a side agreement executed between the mother and her late husband in conjunction with a last will and testament (the “Will”), which stipulated that the Will would not be modified unless it was by mutual written consent of the husband and wife.  

Husband and wife entered into a written agreement (the “Agreement”) stating that each will execute a Will that leaves all their properties to the surviving spouse and then to their issue. In addition, husband and wife agreed, pursuant to such Agreement, that “they will not revoke the Wills executed by them this day, modify them by codicil, or execute any further Wills unless it is by the mutual written consent of the parties.”

The husband died two months later and according to the Agreement and the Will, the wife inherited all the properties of the husband. She then made certain inter vivos transfers during her life to her other children other than the plaintiff.

The son sued the mother to enforce the Agreement and therefore sought: (i) to render the prior gifts null and void; (ii) to prevent her from making further gifts during her life time, (iii)to prevent her from revising the Will; and (iv) to recover damages relating to the inter vivos gifts made. On

October 31st, 2014, the Supreme Court, Kings County (Toussaint, J.) denied his motion for a preliminary injunction. The son appealed the decision.

The Appellate court affirmed the lower court’s decision and dismissed the case. The court noted that “there is nothing in the unambiguous language of the agreement which prevents the defendant from making inter vivos gifts or transfers of assets she inherited from her husband” and further went on to preclude the son from maintaining an action predicated upon a breach of the agreement as it relates to the defendant's promise not to revoke or modify her will or execute a new will.

The case illustrates the point that careful consideration should go into succession planning. For example, if the father’s intent was to ultimately leave his assets to his children but to allow his wife to use such assets during her life, among other things, a trust could have been made that could have facilitated such wish.