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The tax audits are coming!

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Oct. 27, 2016.


Chase H. Schnebel is a member of the Tax and Private Wealth Practice Group and assists clients in a variety of tax, business, and asset management issues.

By Phillips Murrah Attorney Chase H. Schnebel

The state of Oklahoma has ramped up efforts to collect tax revenue from those that may not be paying their fair share. Senate Bill 1579, signed into law in May, directs the Oklahoma Tax Commission “to enhance agency efforts to discover and reduce fraud and abuse of sales and use tax exemptions provided pursuant to the Sales and Use Tax Codes and the nonfiling and underreporting of sales and use taxes due and owing.”

The fiscal impact statement for SB 1579 has an estimated cost of approximately $4 million, but estimates increased revenues in excess of $50 million, with $26 million from increased sales tax collections. The law also directs the OTC to increase its audit staff to detect “through the use of enhanced technology” those who may owe the state money. With an estimated addition of 50 auditors, there is no doubt that the number of audits will increase.

An audit will typically start with the OTC requesting access to substantial business records. During the process, a taxpayer can expect to receive ongoing requests for documentation and explanations. The audit process involves close scrutiny of accounting records, tax returns, transactional documents, banking records and other relevant business records. If the audit results in a determination that the taxpayer owes tax, the OTC will issue a proposed assessment that may also include penalty and interest assessments.

A tax audit can be an invasive process and, upon receipt of an audit notification, individuals and businesses often feel vulnerable. A strategic approach to organizing and producing business records can substantially reduce exposure to assessments and the amount of time and resources necessary to complete the audit. Experienced tax professionals have knowledge of OTC audit procedures, statutes and regulations, which can be helpful in closing the audit process. If the OTC issues a proposed assessment, there are administrative procedures available that allow taxpayers to protest the assessment, request a waiver of penalty and interest assessments, and request an installment agreement to ensure a one-time assessment does not result in closure of the business.

The prospect of a state tax audit can be frightening and the process can be disruptive. To achieve the most desired possible outcome, it is important to involve tax professionals at the very beginning of the audit.

Chase H. Schnebel is an attorney at Phillips Murrah PC who specializes in tax issues.

Valuation discounts under threat

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Sept. 14, 2016.


Robert O. O’Bannon is a Director who represents business clients in a variety of transactional matters with an emphasis on taxation and wealth planning issues for both businesses and individuals.

Robert O. O’Bannon is a Director who represents business clients in a variety of transactional matters with an emphasis on taxation and wealth planning issues for both businesses and individuals.

By Phillips Murrah Director Robert O. O’Bannon

The current economic downturn in the oil and gas industry, combined with the low-interest-rate environment and the availability of valuation discounting techniques, creates a number of unique opportunities for tax planning, which include gifting or sale of equity interests in a family business to children or trusts created for their benefit.

However, recently proposed regulations by the U.S. Department of the Treasury to Section 2704 seek to eliminate most forms of valuation discounting for intra-family transfers of businesses. The proposed rules will likely take effect in 2017. Fortunately, the new rules would apply only to transfers that occur after the effective date.

The following are some proposed rules that would affect valuation discounts.

3-year lookback
Proposed Treasury rules would restrict changes in ownership intended to trigger a minority ownership discount, which occurs when a fractional ownership interest is worth less than its proportional share of the enterprise business. New rules would impose a three-year lookback to determine whether a minority valuation discount should apply, which is intended to limit “deathbed transfers” used to create a minority interest.

Restrictions required by law
If state law restricts the ability of a family-owned entity to liquidate, but allows partnership agreements to override the restriction, it will not be considered as “required to be imposed” and cannot be used to reduce the value of an interest for transfer tax purposes. Additionally, if state law restrictions cannot be removed by the family-controlled entity, but state law restrictions are specific to family-controlled entities, it will also be ignored.

Disregarded restrictions
Proposed regulations will create a new classification of restriction that is to be ignored in valuing interest in a family-controlled entity. Valuation discounts will be disregarded that include provisions that restrict the right of each interest holder in a family-controlled entity, whether a family member or not, to liquidate or redeem the interest in cash or other property payable within six months of liquidation or redemption.

These proposed rules are complex, and high-net-worth families who wish to seek valuation discounts may want to consider quick action in light of impending changes to tax law.

Robert O. O’Bannon is a director at Phillips Murrah law firm who represents clients in a variety of matters with an emphasis on taxation and wealth transfer planning issues for businesses and individuals.

2015 tax extenders – a PATH forward

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Jan. 7, 2016.


Robert O. O’Bannon is a Director who represents business clients in a variety of transactional matters with an emphasis on taxation and wealth planning issues for both businesses and individuals.

By Phillips Murrah Director Robert O. O’Bannon

On Dec. 18, President Obama signed into law a package of tax extenders called “The Protecting Americans from Tax Hikes Act of 2015,” or PATH.

Tax extenders are nothing new. Historically, as tax provisions expire, extenders are put forward to temporarily keep them active. This helped extend the provisions, but it did nothing to develop the kind of certainty that many in the business community want when planning for the future. The real breakthrough for PATH is that some of the tax extenders are made permanent, including those that benefit individuals as well as businesses.

For example, for businesses, there are enhancements and permanent extensions to the Research and Development Tax Credit; the Code Sec. 179 expensing limitation of $500,000, and the $2 million phase-out limit, are retroactively and permanently extended, and both are indexed for inflation for tax years beginning this year; and Bonus Depreciation, which allows retailers and restaurants to initially depreciate half of remodeling and improvement fees. For individuals, the Child Tax Credit, American Opportunity Tax Credit and the Earned Income Tax Credit are all strengthened and made permanent.

Another breakthrough for the PATH Act is in the bipartisanship it achieved. Republicans achieved supply-side expansion that favors business and growth and Democrats enhanced and made permanent tax laws that more directly favor individuals. On both sides of the aisle, PATH turned out to be a nice Christmas present.

Moving forward into 2016, here are some other items to keep in mind about the PATH Act:

  • A deduction for state and local general sales tax in lieu of state income tax is retroactively extended and made permanent.
  • Individuals at least 70 1/2 years of age may now exclude from gross income qualified charitable distributions from IRAs of up to $100,000 per year.
  • The New Markets tax credit is extended through 2019 and the carryover period for unused new markets tax credits is extended for an additional five years, to 2024.
  • The tax credit for new, energy-efficient homes built by a contractor and acquired for a residence in the tax year is retroactively extended for two years to 2017.

Taxing behavior

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Oct. 8, 2015.


Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

By Phillips Murrah Director Dawn Rahme

Generally, people think of taxes as money that governments charge citizens in order to facilitate infrastructure. However, in many cases, governments also use the tax system to modify behavior by using the power of the purse.

Behavior is undoubtedly affected by the tax code. For example, when Congress increases the expense deduction for businesses, it encourages businesses to spend money through equipment purchases or other qualifying expenditures. When they allow for charitable deductions, it encourages giving to qualified organizations.

Oklahoma also offers a variety of tax incentives, including the Quality Jobs Program and the Oklahoma Film Act, which offer credits and rebates to make Oklahoma more attractive to those deciding where to do business.

On the flip side, behavior can also be discouraged by the tax code. Some excise taxes are imposed on items deemed unhealthy, commonly referred to as sin taxes. For example, Oklahoma levies an additional tax on tobacco products, including cigarettes. The intent is to discourage tobacco use with the implication of having an overall effect on health care. Additionally, according to Bloomberg, Oklahoma sin tax revenue has risen about 200 percent in the past decade.

Some argue that sin taxes are regressive, or that they have a disproportionately higher burden on the poor because they spend a larger share of their income on consumption. However, in the case of luxury taxes, or taxes on products or services that are deemed to be unnecessary or nonessential, it can be difficult to make the argument regressive taxes affect only lower tax brackets.

There are some rather notorious examples of efforts to influence behavior, including a poorly conceived idea in Dallas to place a 5-cent fee on disposable plastic grocery store bags. The tax passed, only to be repealed six months later. And who can forget New York City’s failed effort to ban sugary drinks from being sold in containers larger than 16 ounces? Although their efforts failed, the city of Berkley, California, was able to pass a 1-cent-per-ounce tax on soft drinks.

The next time you are making a purchase, it may be an interesting exercise to ask yourself how much of an influence taxes have on your decision.

Taxes and new businesses

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Aug. 26, 2015.


Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

By Phillips Murrah Director Dawn Rahme

Starting a new business can be exciting. However, it can also be overwhelming, especially when it comes to determining tax obligations.

While income tax obligations are the most obvious, other decisions you may make when starting out will affect your business. Below are some tax tips to consider.

Structure: When starting your business, you must choose a business structure that is right for you. Your choices are many, including sole proprietorships, limited liability companies, partnerships and corporations. The most common type of business structure is a limited liability company or corporation because of the potential benefit of liability protection offered to owners.

Business structure will also determine how business taxes will impact your business. Generally, there are four types of business taxes: income, self-employment, employment and excise tax. Depending on the type of business you operate, there may be additional state and local taxes that could apply. It’s important to determine those obligations at the start of your business so you can register with the appropriate federal or state agencies and obtain any licenses or permits necessary to run your business.

Accounting: Another item to consider when starting your new business is an accounting method, which your business will need to track the organization’s income and expenses. In most cases, you can choose the cash method or accrual method, as long as you use a consistent method.

As a business owner, you should know how each method works as well as the advantages and disadvantages of each so you can choose the better one for your business.

Health care: If your new business is going to have employees, make sure to consider the tax issues that come with employee health care. Depending on the number of employees you have, you may be subject to the Affordable Care Act and information reporting responsibilities to the Internal Revenue Service regarding minimum essential coverage that you offer.

These are just a few of the decisions that you will consider when starting your new business. With proper information and planning, you can get your new business up and running and minimize the risk of being caught off guard later.

King v. Burwell: U.S. Supreme Court Decision Upholds ACA Tax Credits

By Mary Holloway Richard, JD, MPH

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

On Thursday, June 25, 2015, the United States Supreme Court issued its long-awaited opinion in King et al. v. Burwell, Secretary of Health and Human Services, et al. .[i]  The decision came the week before many of the nation’s foremost health care attorneys met in Washington, D.C. to share information, meet with regulators and network in the interests of their clients.  As you might imagine there was significant discussion about the impact of the decision both in the contexts of formal presentations and hallway conversations.

The decision in this case was considered by some attorneys and commentators to hold the key to the future of the Affordable Care Act (ACA).[ii]   In the King case the ACA’s premium tax credits, as applied to federally financed plans, were challenged.  The premium tax credits worked to reduce the premium amounts for nearly 90% of all persons who have purchased health insurance through the state health insurance marketplace, known as a “health insurance exchange,” which provides consumers the opportunity to compare prices and plans.

The Supreme Court’s 6-3 decision held that the premium tax credits at issue would continue to be available in the dozen or so state-sponsored exchanges as well as in the more than thirty states with federally sponsored exchanges operated by the federal government.  The Court applied familiar theories of statutory interpretation to interpret the both the meaning of the statute and the intent of Congress to make premium tax credits available to individuals enrolled in insurance plans through both state- and federally-operated exchanges.  The Court chose not to defer the interpretation to the federal agency responsible for enforcing the tax credit, the Internal Revenue Service.  This is significant because it effectively forecloses the opportunity for any future administration to alter the interpretation to restrict the premium tax credits to the state-operated exchanges.

The challengers to the ACA language argued that, read literally, the specific ACA language at issue limits premium tax credits to state-operated exchanges only.  Justice Scalia’s twenty-one page dissent was described as scathing by many of us who made presentations at AHLA last week.  Justice Scalia wrote that “[w]ords no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”[iii]  He also wrote in his dissent, “Perhaps sensing the dismal failure of its efforts to show that ’established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ This Court, however, has no free-floating power to ‘rescue Congress from its drafting errors.’”[iv]

Oklahoma is the site of a federal marketplace where, had the decision come down for the challengers, more than 87,000 persons would have been at risk for losing tax credits, and the state was at risk of losing over $18,000.00 in revenue, according to the Kaiser Family Foundation.[v]  The average tax credit per Oklahoma enrollee is $209.00, and, without the tax credit, there would have been an estimated 243% increase in the average premium.

At least while President Obama is still in office, the Court’s decision in King v. Burwell means that the threats to the ACA will mostly disappear.  The national uninsurance rate is likely to continue to fall because the ACA incentives—the ACA requires individuals to buy health insurance or face a penalty on their taxes and helps them afford health insurance through the premium tax credits. Fewer uninsured presumably also means health care providers will have less uncompensated care.

In the nation and in Oklahoma, we will continue, at least during this administration, generally to see a decreasing uninsured population and less uncompensated care for providers.  However, all of this is in the context of complex, increased regulation such as the proposed regulations for both Medicare and Medicaid that were indirectly and directly respectively spawned by the ACA.  The King decision, so long-awaited, appears to have deflated the opponents to the ACA for the time being.  The Court’s decision also means that the next Presidential and congressional elections may be critical to the fate of the ACA as changes now would only be placed in motion by Congress.



[i]
 576 U.S. ____  (2015), No. 14-114, slip op (June 25, 2015).

[ii] The Patient Protection and Affordable Care Act, 42 U.S.C. §18001 et seq. (2010).

[iii] 567 U.S. at ___-___ (principal opinion) (slip op. dissent, at 2.

[iv] Id. at 17.

[v] Kff.org/interactive/king-v-burwell-effects/

Gavel to Gavel: Year end tax advice

My grandmother always told me you should be generous, especially during the holidays. She also said you typically get more out of giving than receiving. Such is the case with charitable donations – you might not get more out of it, but the deduction for charitable contributions gives back to you, especially during year-end tax planning.

Generally, a tax deduction is available for cash contributions to qualified charities of up to 50 percent of your adjusted gross income and for charitable gifts of appreciated property of up to 30 percent of your adjusted gross income. As you climb into higher income levels, charitable contributions can offer more value as a deduction to help reduce your tax liability. This year, Uncle Sam has decided to raise tax rates on higher-income earners; those taxpayers may realize greater savings from their charitable donations.

For example, it might be best to consider donating the shares of stock your grandmother bought you when you were born. As long as the shares have appreciated and you’ve held them for more than one year, you can deduct the current fair market value of the stock and avoid the capital gains tax you would pay if you sold the property, which has increased from 15 percent to 20 percent for higher-income taxpayers.

Additionally, for taxpayers 70½ years and older with IRA accounts, it’s likely they are required to withdraw a percentage of their IRAs annually. For taxpayers in this category, a transfer of IRA assets directly to a charity is permitted through the end of the year. No charitable deduction is allowed because a deduction was permitted when the IRA originally was funded. However, the transfer is not a taxable distribution from the IRA account, yet it fulfills the obligations of the required minimum distributions for such taxpayers.

Consider that prepaying donations that you would otherwise make next year can reduce your 2013 federal income tax bill, because your total itemized deductions will be that much higher. As my grandmother would say, with the spirit of Christmas, coupled with the charitable donation deduction, consider how making charitable donations can work in your favor as you address your year-end tax planning.

Take advantage of expiring gift tax cuts—before it’s too late

As the presidential election nears, there has been much discussion about tax increases—especially taxes on the wealthy. The Bush-era tax cuts and many others, including the 2010 gift and estate tax cuts, are scheduled to expire at the end of 2012—just a little over two months from now.

Read more

Okla. Historic Rehab Tax Credits: good policy – no boondoggle

Historic Tax Rehab Credit

The Oklahoma legislature, lead in large part by State Rep. David Dank, is taking a hard look at tax incentives this legislative session. Dank has asserted that Oklahoma’s tax credit system is convoluted and wasteful, and he has been advocating the repeal of many Oklahoma tax credits, including the historic rehabilitation tax credits. While the repeal of some of the Oklahoma tax credits may be warranted, the historic rehabilitation tax credit should be left intact, since that credit has actually accomplished what it was designed to do – promote historic preservation, revitalize communities and create jobs.

Like similar credits in thirty other states, the Oklahoma historic rehabilitation credit piggy-backs the Federal historic rehabilitation tax credit. The positive economic impact of the federal historic rehabilitation tax credits has been studied extensively and is well documented. One such source is the Federal Tax Incentives for Rehabilitating Historic Buildings, Statistical Report and Analysis for Fiscal Year 2011 prepared by the National Park Service (the “Report”). In its Report, the National Park Service states that rehabilitation projects that qualified for the historic rehabilitation credits in 2011 created an estimated 55,458 new jobs nationwide, in spite of the downturn in the economy, which particularly affected the real estate market. The Report further indicates that in 2011 alone the historic rehabilitation credits resulted in $3.47 billion in private investment in completed rehabilitation projects around the country.

Since Oklahoma adopted the historic rehabilitation tax credit, many historic buildings in need of major renovation in Oklahoma City, Tulsa and other cities and towns have been restored. According to information available through the Oklahoma State Historic Preservation Office, over $47 million dollars in rehabilitation expenditures for Oklahoma historic preservation projects were certified by the National Park Service in 2011. Historic buildings restored in Oklahoma City include the Park Harvey, the Classen, the Candy Factory, the Founder’s Tower, the City Place and of course the Skirvin Hotel.

Historic buildings restored in Tulsa include the Philtower, the Mayo Hotel and the Mayo Office Building. Smaller towns have also benefited from the historic rehabilitation tax incentives. In Muskogee, for example, both the Surety Building and the Manhattan Building were restored and are now residential rental properties for fixed income seniors. Without the historic rehabilitation credits, none of these projects would have been economically feasible, and these old buildings would have continued to sit either vacant or in disrepair. Instead, the credits have been instrumental in the preservation of these historic places that give our cities, towns and rural areas their special character.

Because of the credits, Oklahoma developers have been able to attract new private investment to historic preservation projects. The Oklahoma historic projects resulting from the tax incentives have also generated jobs, enhanced property values and increased revenues to the local areas. In 2007, historic building preservation projects in Oklahoma qualifying for the state and federal historic rehabilitation credits created 3,186 jobs and resulted in an additional $96 million in gross state product according to the Economics Impact of Historic Preservation study conducted by Preservation Oklahoma, Inc.*

While some reform of the Oklahoma tax credit system may be prudent, we need to be careful not to throw the baby out with the bathwater. The historic rehabilitation tax credits are clearly having a positive economic impact on our state and local communities and should be not be repealed.

Elizabeth K. Brown, Tax Counsel to Real Estate Professionals in Historic Preservation Projects

Keep abreast of the latest tax credit policy developments impacting your historic preservation projects. For more information, contact Elizabeth K. Brown: (405) 235-4100.

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*”Economic Impact of Historic Preservation in Oklahoma,” is a research Study conducted for Preservation Oklahoma, Inc. by Rutgers Edward J. Bloustein School of Planning and Public Policy released in 2009.