Is Fresh Start the Best Start?
By Michael J. Fleming
State tax amnesties are few and far between, so when Texas Comptroller Susan Combs announced an amnesty for the state of Texas on March, taxpayers had cause for celebration. Amnesties are usually beneficial for the state as well as for many taxpayers. In general, the states offer amnesties with the hope they will get a quick revenue boost to fill their coffers immediately, as well as add new or more reliable revenue streams from the new or newly compliant taxpayers. Most states kick off their amnesty programs with a lot of fanfare to generate interest and offer a limited window of time to create a sense of increased urgency. Texas is no different. Texas’ program began on Tuesday, June 12, and will run through, Friday August 17; slightly longer than two months. To help build excitement, the state named the amnesty program “Project Fresh Start.”
Before we get caught up in the building excitement and expanding sense of urgency, let’s ask the question, “ Is Fresh Start the Best Start?” The answer, as is so often the case when it comes to sales tax, is: It depends! It depends on your particular set of circumstances. A voluntary disclosure program (VDA) is often called an “ongoing amnesty” program, which is an appropriate phrase to describe a program very similar to a state amnesty program in some ways, and different in others. The differences in the programs combined with your circumstances determine if a VDA is a better choice for you. Let’s examine both programs to help you decide what the best plan is for your fresh start.
Whether we are talking about amnesties or VDAs, note that neither is a full pardon or “true amnesty.” In both cases, you still have to pay the back taxes. Amnesties typically only waive penalties and all or part of the interest owed on the back taxes. True amnesties do exist, though.
The Streamlined Sales and Use Tax Agreement allows for the waiving of all payment of back sales taxes, penalty, and interest. From the time a state becomes an associate member until 12 months after it becomes a full member, participating states must offer a true sales tax amnesty. Ohio, Tennessee, and Utah currently offer amnesty as associate members, and Georgia will continue to offer amnesty as a full member until July 31, 2012. These amnesties do not expire until 12 months after the states become full members. However, utilizing these amnesties is very complicated. Before using this program, we suggest you learn more about it, as it has some drawbacks. A good place to start is with an article by Andrew Johnson, founding partner of Peisner Johnson & Company, “Are You For or Against Amnesty?”
The Rationale Behind the Programs
States are looking for ways to close budget gaps and increase revenue, so offering amnesty may seem counter-intuitive because they forgo penalties and interest revenues. You may be thinking, “If it sounds too good to be true, then it probably is.” However, with state amnesty programs that adage is wrong. To understand why this is wrong we should realize that states expend a good deal of effort and money tracking down and auditing non-registered and non-compliant companies. By encouraging companies to step forward voluntarily, this allows states to redirect their efforts in other directions. When a company comes forward, the state receives an immediate lump-sum cash infusion consisting of numerous years of back taxes and perhaps some interest. Revenues from VDAs or amnesty programs is basically a windfall. Not only does the state receive a lump sum payment of back taxes owed, but it now has a taxpayer that will likely continue to pay taxes on a going-forward basis.
Texas Voluntary Disclosure Program
One of the most advantageous features of a VDA to a taxpayer is the limited look-back feature. If a company has not been registered, then there is no statute of limitations. In theory, in an audit, a state could go back to the first day the company began to do business in that state. In practice, most states go back only seven to 10 years. VDA agreements are attractive to taxpayers because the states agree to limit the look-back period, typically to three or four years. Each state is different. Texas has a look-back period of four years.
The second greatest feature of a VDA is the waiving of penalty and possibly some interest. While just about all the states waive 100 percent of the penalty, only a handful waive any interest. Texas is unique in that it waives 100 percent of the penalty and 100 percent of the interest. This feature more than makes up for the slightly longer look-back period of four years.
One of the major drawbacks of a VDA program is that most states will not enter into a voluntary disclosure agreement if they have already contacted you. A handful of states — like Michigan — will, but the majority will not. Texas falls into the majority and generally will not allow you to enter into a VDA once they have contacted you. Companies that have already registered in most states, including Texas, are ineligible for a voluntary disclosure agreement. VDAs have several other benefits and drawbacks, but for the purposes of our Fresh Start comparison, we will concentrate on these. If you would like to learn more about VDAs or amnesties, read “You Missed the Tax Amnesty Express”
Texas Fresh Start Amnesty Program
The biggest reason we generally prefer VDAs over amnesties, as mentioned in a previous tax amnesty article, is because many amnesties don’t allow for a limited look back period. Texas offers no look-back protection. If you have not registered in the state previously, then the state will require you to file and pay taxes for either how long you have been doing business in Texas, or seven to eight years, whichever is lesser and depending on tax type. Waiver of penalty and interest are the same. The Fresh start program waives 100 percent of the penalty and 100 percent of the interest.
The greatest advantage the Fresh Start program offers over the VDA is that it is more flexible for existing taxpayers. Texas VDA excludes registered companies for the tax in question, but the Fresh Start amnesty program may allow you to participate. The exceptions are: You cannot have already reported the tax on a return, be under audit, be identified for an audit, or have signed a settlement or VDA agreement.
The Fresh Start amnesty program covers all state and local taxes and fees administered by the Comptroller’s office, with the exception of Public Utility Commission gross receipts assessments, and is available for those periods where the filings were due prior to April 1, 2012.
Could a VDA be a better start when considering a fresh start in Texas? Although the answer depends on your circumstances as discussed, in most — but not all — scenarios, we believe that a VDA program will be the better choice.
If you have exposure, now is the time to step forward. In many states, we have seen a concerted effort to step up discovery and enforcement activities in the periods following an amnesty. Texas has a very large department of auditors and is aggressive in assessing interest and penalties, which can add up very quickly. I recently spoke with Daniel Holcomb, a former state auditor with almost 30 years of service in the Texas Comptroller’s office and now a CPA with Peisner Johnson, and he said, “Amnesties come very infrequently, so between the VDA and the Fresh Start, we currently have some great options and incentives for companies to become compliant.” I couldn’t agree more.
Peisner Johnson, founded in 1992, is the largest national CPA firm that is focused entirely on solving state and local tax issues. Peisner Johnson is comprised of former state auditors and other professionals with years of state and local tax experience. Peisner Johnson has worked with clients of all sizes, in all industries and currently works in all 50 states, U.S. territories and Canadian Provinces. We work with many CPAs who find us to be a perfect complement to their business since we limit our practice to state and local taxes. We do nothing else. If you would like information on any of our free webinars, free chart services or would like to learn how we may be able to help, you may email Michael Fleming or call him at 972-277-4820.