Sunday, October 2, 2016

Some comments on the New York Times story about Donald Trump's tax returns

Decades ago - before I was a fund manager - I was the resident expert on tax avoidance working for the Australian Treasury. That was where I started to hone the accounting skills sometimes shown on this blog.

I very rarely do anything in tax - but now I think it is time.

The New York Times has published a story (including extracts) about Donald Trump's tax returns over two decades ago. The money-quote is this:

Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years...

According to the New York Times the losses came
... through mismanagement of three Atlantic City casinos, his ill-fated foray into the airline business and his ill-timed purchase of the Plaza Hotel in Manhattan.
There is an issue here.

Donald Trump did not repay all the debt associated with those investments.

Either


  • the loss is a real loss and the Donald was really was out of pocket by $916 million (in which case he has legitimate NOLs)
  • or the loss was passed on to someone else by The Donald defaulting on debt - in which case Donald Trump should be assessed for income from debt forgiveness.


After all if the debt is forgiven it is not Donald Trump's loss. The loss is borne by the person who lent Donald money and did not get it back.

That - clearly stated by example - is why most income tax systems assess debt forgiveness as income.

--

Okay - I do not know whether Donald Trump had the wherewithal in 1995 to bear $916 million of losses personally. But I doubt it. (If he did his financial career is different from what is popularly accepted.)

So the alternative is the debt was forgiven in some way. But then the story the New York Times is running is wrong - because the $916 million of losses would not have survived the debt forgiveness and hence would have wiped out his NOLs and thus he would not be allowed to shelter his income for the next 18 years.

Unless that is there is an avoidance scheme the New York Times has not worked out. Those schemes go by the name of "debt parking".

Debt parking

Here is how debt parking works. Suppose the debtor (in this case The Donald) is going to get his debt cancelled for (say) 1c in the dollar. When he gets the debt wiped out the debtor (ie The Donald) will have to report assessable income equal to the debt wiped out (in this case 99 percent of $916 million).

The alternative though is for the debtor to set up a dummy party. The dummy party might be his wife or children or some company or trust set up by them or more likely some completely opaque offshore trust.

And that dummy party goes and buys the debt for say 1.1 cents in the dollar. Then they just sit there.

They don't force the debtor (ie The Donald) to repay. They don't make a profit or loss on the debt. And because the debtor never has his debt forgiven he never gets the assessment on debt forgiveness and he gets to keep his NOLs even though the losses did not come out of his pocket.

Every tax system worth its salt has some rules on "effective debt forgiveness" to prevent debt parking. And - from my experience which is now over twenty years old - none of them work entirely.

Now if Donald really has all those tax losses its pretty clear that the debt must be parked somewhere.

There is a vehicle out there (say an offshore trust or other undisclosed related party effectively controlled by Donald Trump) - which owns over $900 million in debt and is not bothering to collect it.

I do not have the time or energy to find that vehicle. But it is there. Now that this blog has gone public journalists are going to look for it.

There is a Pulitzer prize for whoever finds it. Just give me a nod at the acceptance ceremony.





John

66 comments:

Longshorttrader said...

John,

What do you make of this quote, from that New York Times article: " What’s more, the reports said the losses he claimed were large enough to virtually cancel out any taxes he might owe on the millions of dollars of debt that was being forgiven by his creditors. (The I.R.S. considers forgiven debt to be taxable income."

Anonymous said...

35 days to find it in order to influence the outcome .....

Mike Albert said...

John - you should get in touch with Kurt Eichenwald who writes for Newsweek. He researched Trump's breaking of the Cuba embargo.

Anonymous said...

"That makes me smart"

James Wimberley said...

Cui bono? Why should a real creditor - and in the casino business, some of these will be the sort of men who use pliers to recover debts - just forget about $900m of them? Perhaps Trump bought his own distressed debt through fronts. Can this be legal?

James Wimberley said...

Ignore the second part of my comment, it's covered in the post.

cpinva said...

I'm a US CPA, and have been doing tax audits for over 30 years. a couple of points you neglected to touch on:

1. depending on what kind of entities those losses came from (and I'm guessing they were flow-through (1065, 1120S)), my guess is there wasn't sufficient basis for Mr. Trump to even claim any of those losses.

2. Bankruptcy has its benefits, it also has its negatives. Any liabilities lifted by the bankruptcy courts eliminates those losses from being claimed on your tax return. you don't get the one without the other.

I suspect what the NYT's got was the un-audited, originally filed return. the audited one reduced that $916 mill NOL by at least half, if not more.

Anonymous said...

In the US, forgiveness of non-recourse debt is not taxable income. Debt secured by real estate is often non-recourse (more so in the past than today). Also, the IRS would take a very hard look at any claimed NOL of that magnitude. If there were any COD (cancellation of debt) income that should have been reported, the IRS surely would have caught it on audit.

Anonymous said...

The other part is if this is a write off for say Trump airlines or the Plaza Hotel, how is it an operating loss and not a capital loss? the former of course are more valuable then the latter

Anonymous said...

Read Art of the Comeback. He discusses all of this.

Anonymous said...

one of my favorite n y times stories was during the admin of Bush jr
Bush wanted to fire all the IRS agents who specialize in auditing returns from very wealthy individuals
the funniest thing was, the nyt article said that each agent, on avg, found ,iirc, 250k/yr in extra taxes

so they were a profit center
and bush wanted to fire them

wheatdogg said...

This may be irrelevant to the tax years covered in the Times articles, but Trump worked out a reduced indebtedness deal with his bank creditors for the Plaza Hotel. He paid way too much for it in 1988, spent more money renovating it, and had to get out from under all that debt by '92.

Kevin said...

NR debt forgiven is treated as a sale or exchange in the US, pursuant to Tufts v US, so there's no free ride.

Also, wrt "debt parking" the anti abuse provision in the US is the related party acquisition rule, I.e., if your related party acquires the debt, it's deemed to have been acquired by you.

C MItchell said...

If I am reading this correctly, if the parked debt is found would this be a much grander-scale twist/variation/3rd-cousin to DJT getting Papa Trump to buy millions of dollars worth of casino chips and sit on them, never cashing them in? At the very least seems to be along the same mentality as that documented episode.

Bill Maggs said...

I think you're not in real estate development, are you? Such losses have been used for decades to cover income, and while the system has been firmed up it is a fact of the tax code. The difference with Trump is that he's not a real estate developer, he is a brand management company, with lots of income that needs offsetting. But he has done enough to resemble a real estate developer that the IRS, which of course has looked at this hard, probably only reduced this number, not eliminated it. Presumably the audited return could show less loss, but does that really matter? He's already admitted that he's paid no federal taxes; the only thing he has left to hide is how little income he has made, how he's not a rich man, and the train wrecks of all of his ventures.

Steve Zorowitz said...

IN 1995, Trump Hotels and Casino Resorts went public in an IPO. Trump transferred many of his holdings (and the debt personally guaranteed by him) to it in exchange for the new stock.

Much of the IPO money and new debt raised went to paying off those Trump debts.

Could this explain the NOL in 1995 without any debt forgiveness?

Debraj Ray said...

This is an excellent article and goes right to the heart of the matter, which is the nature of the $915 million that he's claiming as loss. By focusing on whether he could have used those losses as carryover in future years, The NYT, CNN etc are just barking up the wrong tree. Because he can. I've been saying this as well ever since I saw the Guiliani interview on CNN where the Rudy was (alas and for once) completely correct.

Steve Waldman said...

fascinating. So let me if I have this right. He might have pulled this off through 'debt parking' situation which would mean there's some vehicle for that. If he didn't do that -- if he actually got his debt forgiven -- then he might not be able to carry forward the losses in a way taht would wipe out his income tax liability in future years. But here's a question: if that latter scenario is what happeend, wouldn't he have owed some taxes in 1995 or had some additional tax burden beyond what he did?

Anonymous said...

If cpinva is correct -- and I don't doubt for a minute that he is -- then why does DT continue to refuse to release his tax returns?

There is clearly some extremely damning material there, a priori more damning than not releasing it which has clearly proven costly to DT.

Likely, there is a string of suspect maneuvering and recurring battles with the IRS. Likely, DT has been repeatedly beaten by the IRS in his efforts to cheat the government. Likely, the stink coming off his tax returns make his other offenses pale in comparison.

The big excuse is: I'm being audited. So, show us the final, audited versions for the last years' you have settled the IRS audits.

I'd prefer to not be anonymous but I don't have any of the required credentials, so anonymous I'll have to be.

joseph said...

How does an individual get to use the corporate loss?

Anonymous said...

cpinva is on the right track. Unless you know the nature of the losses (Partnership basis? Debt? Equity investment? Other?),you're engaging in pure speculation. I imagine Trump gets audited frequently and often by the IRS. Especially if claiming massive losses. If there was anything of substance going on, there would be healthy IRS fines or related litigation in Tax Court.

Anonymous said...

Something with Russian oligarchs?

Anonymous said...

I think he had personal guarantees all over the Casino business, that's why the banks were up to their necks with him, as they'd accepted guarantees he couldn't fulfill. This forced them to do a deal with him, as he was in so much debt he probably could have caused some bank failures or at least ruined careers.

With personal guarantees the debt was essentially recourse and hence could be used as NOL.

I agree the IRS would have looked at this with a microscope.

Anonymous said...

I hope you keep your accounting hat on for the next few months and dig into this story and related issues. Real estate "losses" and NOLs are little understood by the general public.

The primary issues I'd like to see explored is why do governments allow debt to be deducted and why do they allow phony depreciation deductions when the assets already existed before being purchased.

If I use 80% debt to buy an asset for 100, and the asset goes up by only 10%, I get a 50% gain! If the asset goes up by 50% in 5 years, I have a 250% gain! In the meantime the government is letting me deduct the interest. It's insane.

Even more egregious is that when I buy an existing asset, governments allow me to "depreciate" it even when I have no intention of ever replacing it. Landlords don't build new buildings, but the government allows them to write off their apartment buildings as if they will replace them one day. This part of the tax laws is a quasi-fraud on taxpayers since it encourages assets to get bid up, and when the loans go bad - as they often do in a long real estate cycle - the loans are often absorbed by the government when the banks go bankrupt from all the bad real estate loans.

Fledgling analyst said...

If trump has been able to use a $900 mm loss to cover 20 years of income, his businesses don't make very much money. If you discount it back, he's not close to a billionaire. And he claimed over $600 mm of income last year in the debate, which would have surely used up any remaining NOL. So lies all around.

Fledgling analyst said...

If Trump has not used a $900 mm NOL in 20 years his businesses don't seem to generate much income. Hard to see how a DCF would produce a billion dollar valuation. And, at the debate, he claimed income last year of over $600 mm. That would seem to have used the NOL up. Besides lying, what's the explanation?

Anonymous said...

My guess is the loss crystalized when he gave the guarantee - how this ran through, unclear. But if so, the gtee release converts to offset, at least partially. But that would be future years. So no gtee he offset 15 years of taxes.

Mario said...

Great post John. You state when you're explaining debt parking this:

"that dummy party goes and buys the debt for say 1.1 cents in the dollar. Then they just sit there."

If that's true then DT needed to come up with the cash to buy all that debt. That's a lot of cash! If he was able to park that debt then it implies he IS successful. Also the papertrail and repeating would show who bought the debt from the lender, etc. It seems unlikely that it's being parked like this for thrsw reasons to me. What do you guys think? Thanks again!

Bmac said...

So many presuppositions. And so many in error. First the easy stuff: you can't carry NOL's forward "for the next 18 yrs". You lost me on credibility there. Back 3, forward 15.

Next, no lender will permit a related party to buy it's debt at big discounts. They aren't in the business of letting borrowers off the hook.

The presumption is the total loss is from allocated paper losses. That only comes from depreciation/amortization. but typically approximate nondeductible cash payments for principal redux. So it's typically a cash wash. Hence, much or some of $916my may be actual cash payments into business by taxpayer.

Finally, all this flips and income is really ignited at either sale of asset or interest in property. If no personal bankruptcy, then any business bankruptcy does not wipe out personal income tax recapture, either thru depreciation recapture or forgiveness of debt income recognition.

Too many guesses in your analysis.

Anonymous said...

This is a very poor article. A great shame - I have been a big fan of your work previously. A large part of this is because of the level of forensic analysis you have put in to forming your opinions. So now in relation to Trunp (a candidate whose flaws are as obvious as Hilary's, albeit different ones) you post an article that is: entirely speculative; reveals no insight into the US Tax Code (upon which the whole thing is based); is premised on some theory that most tax systems don't allow this sort of thing (which may be correct now but certainly was not always the case); and encourages people to go find the bogus debt that apparently underlies all of this. So off go the hares.

Maybe you are right, maybe not and maybe the IRS denied the loss - we just don't know. My point, here is that unlike most of your work and the great posts you have made here, you have made no effort to find out - granted it is not obviously the case that with so little information available that you could do much in this line. But why wouldn't the null hypothesis be that the IRS who have all the resources to do so have looked at this and blessed it? They will know far more about the situation than you right? And even if it is a result that you, me or the rest of the world don't like if the IRS has agreed that the position is in accordance with the law as it was at the time then who are we to cry foul.

If this is a result that is permitted by the system then discredit the system by all means. But don't impugn Trump - at least in this respect - without something more than pretty basic speculation. You are better than this!

Anonymous said...

Look into qualified non-recourse debt. It applies to real estate only. It is a "special feature" of the US tax code bought and paid for by the real estate industry.

officiousintermeddler said...

Trump might as well release his taxes voluntarily. I imagine they've all been leaked to Clinton's campaign by friendly IRS staffers, and she's going to be releasing them over the next 30 days with sequence and timing of the releases carefully chosen to do maximum damage.

But this discussion is a prime example of why even a completely honest man in Trump's position might withhold his returns. Trump's 1995 tax return was surely thousands of pages long. Even if it were completely clean, a hostile commentator will always be able to select some in that mountain of paper that can be characterized as suspicious.

Besides that, Donald Trump does not prepare his own returns and probably does not understand them himself except in the vaguest detail. It's implausible to think that he orchestrated a tax swindle of the kind suggested here. Mark Cuban made this point about his own tax returns, and I'm sure it's equally true of Trump's:

"I have no idea if my tax returns are more or less complicated than Donald Trump’s. I truly don’t know what is on my tax returns. The people that work for me know and understand that I don’t like to pay taxes, but I’m not against it either. I truly believe that its patriotic to pay taxes. So I tell them to be very conservative in making choices. But what I do hate is how much of that money is wasted on bureaucratic overhead. But that is a blog post for another day.

"For me, the days before my taxes are due go something like this: all my tax returns from what seems like all 50 states and all the federal forms are lined up around a long , long, long dining room table in my house. The signature pages are tabbed. Then I spend the better part of 45 minutes signing them till my hand cramps.

"Do I read any of them ? Not a one. I have to trust the big tax accounting firm I hire to get it right."

James B. Shearer said...

I am not a tax lawyer but it appears that due to a drafting error in the tax laws under some circumstances a tax payer could (prior to 2001) avoid including discharge of indebtedness in taxable income while still taking the corresponding losses. See the 2001 Supreme Court decision Gitlitz v. Commissioner . However I don't know if this applies to Trump's situation.

Anonymous said...

He may or may not understand them, the fact that he signed each and every one of them makes him responsible for their content and accuracy.

James hodges said...

Trump entertainment resort, Inc. was a publicly traded company from 1996-2012. The information you are speculating and seeking isn't a mystery. You're a professional investor, you say? :)

Unknown said...

All trump has to do is explain what happened. He can get that info from his accounting team.
The issue isn't the loss. It's the unwillingness to own what happened and explain it

babar ganesh said...

i bet the reason he won't release his tax forms claiming that he can't because they are under audit is that he throws all sorts of stuff at the irs and lets them audit him to see what sticks.

Anonymous said...

Trump WAS a developer at the time. After banks told him to get lost, he moved to brand management and made others acquire the debt.

Anonymous said...

I've been making this same point. Apparently the NYT writers were interested specifically in the 1995 return. We can't really know what happened before and after without looking at his 1065s and all the years before and after. If Trump uttered a single truth it's that his returns are being constantly audited. Good attorneys know the tricks so it wouldn't surprise me if it was all found to be legal.

A better line of attack would be, what kind of "success" looses $1B in 1 year, after loosing almost a billion more 5 years earlier?

Unknown said...

"I imagine they've all been leaked to Clinton's campaign by friendly IRS staffers,"

The leaked pages were state tax records: "The first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return."

return."http://www.nytimes.com/2016/10/02/us/politics/donald-trump-taxes.html

Just keep imagining.

James hodges said...

Trump Entertainment Resorts Inc. was a pass-through-entity. Plain and simple.

Anonymous said...

http://m.hospitalitynet.org/news/4011646.html

Maybe this helps.

Kristin Kirby said...

Hi there. I am a CPA and am also extremely curious how Trump could have the "basis" to warrant these losses. Great to read previous comments about this.

Anonymous said...

It was a New York Times story. There's no reason to believe it's true.

Anonymous said...

So much we dont know brought up by posts here.
Recourse debt non recourse debt qualified
Cod cancellation of debt.Businesses bankruptcies

Were losses generated thru sch c's sch e's1120s pass thrus 1065 pass thrus.Real estate vs non realestate

Arun said...

1.1 cents on the dollar of $916 million is $10.1 million.

Anonymous said...

https://assets.donaldjtrump.com/Tax_Doc.pdf

GlobalTrader said...

What does John Hempton know about US tax law? The answer is not very much, but that doesnt stop him from trying to influence the US election. Classic

Anonymous said...

This article says the same as Steven Zorowitz above:
https://theintercept.com/2016/10/03/it-takes-a-remorseful-tax-cheat-to-catch-a-tax-cheat-and-donald-trump-isnt/

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Charweb said...

Wrong. There us no maguc here. Number 1 forgiven debt is treated as taxable income. Number 2 a person cannot write off more than what they have put in - called "basis." That money had to come from taxable income from I despise Trump but the only issue here is that this supposedly brilliant business man experienced such huge losses.

NPR listener said...

This was explained on NPR yesterday by some guy who wrote a Trump book. Apparently as part of his tax avoidance scheme, he decided to forgo the possibility of taking hundreds of millions of dollars in future depreciation on a bunch of Trump properties in exchange for taking those losses. Apparently this is allowed in the law. Then, since those properties were then worth much less because of the loss of the ability to take future depreciation, he spun them off into a new 1995 publicly traded company - Trump casinos, which then proceeded over the next years to lose hutge amounts of money while paying Trump like $50-100 mil in salary/compensation. So, he effectively parked the $900 mil in losses in "loss of the ability to take future depreciation" in his properties, which he then transferred to a publicly traded company, which then lost huge dollars in part because of those parked losses in the form of the inability to take depreciation. It would be very interesting to see whether the loss of future depreciation was disclosed to buyers of stock in the publicly traded company. Seems like multiple levels of potential fraud to me.

1 said...

There is good basis for all of those practices. There is abuse? Yeah, but that's a matter of implementation, not of ethical or moral justification for the rule.

1- If you go into debt, at some point you will have to repay the principal. So you end up paying 100% of the asset. Thus, you're on the hook (and real the benefits) of the total asset. Nature of the beast. Equity gives you the full result of the operation, as good or as bad as it be. Debt gives you a defined benefit, no matter how good or bad things went.

2- Interest is deductible because if you think about it, that's a cost to you and an income for your lender. The tax burden of that interest is your lender's to cover. At least in principle.

3- Depreciation is not only about replacing assets. It's about correctly reflecting that an asset's value will be spread over time. If you didn't have depreciation, you would end up paying no tax on year 1, and have tax credits for a couple years afterwards. That's not something fun for the IRS. Businesses usually prefer faster rather than slower depreciation.

Anonymous said...

May I suggest that people read the WaPo article below, which suggests that our host's assumption about the need for debt parking is not right
https://www.washingtonpost.com/news/powerpost/wp/2016/10/03/five-big-questions-from-trumps-tax-return-revelations/?hpid=hp_hp-top-table-main_5questions-7a%3Ahomepage%2Fstory

Anonymous said...

"Read Art of the Comeback. He discusses all of this."

Donald Trump has never written, let alone read a book before, and any 'discussion' is probably, true to his nature, very far from truthful.

Bob Schriver said...

I think the 18 years to shelter income refers to the max look back at the time - to the point of "discounting the $50" per year. The point made that he was a developer then (went broke) and became a figurehead for others afterwards rather than investing himself I've seen elsewhere. How any one manages to lose money in the casino business in a market with 30 million people is however mind boggling.

Bob

Anonymous said...

Sure, you probably caught something here that the IRS completely missed, didn't even think about, in their yearly audits of Trump.

Julio said...

Anonymous makes the key point. The "genius" who manage to shield future income from taxes, did it by managing to lose a billion dollars in real estate, his supposed area of expertise.

anonymous said...

Non-recourse refers to debtor/creditor relationship; not to taxing entity. The forgiven debt would still be considered income for federal tax purposes.

Frank Arnot said...


The "cancellation of debt" issue has had me scratching my head from the beginning. I think this video explains the issue.

http://www.cnn.com/2016/10/04/politics/donald-trump-republicans-reaction/index.html

It seems as if what we know about cancellation of debt is based on a revision of the tax code that only now applies to developers. About 1:18 into the video, a tax expert, Richard Lipton, explains that prior to 2002, developers could take the loss on the project, without taking a gain for cancellation of debt. He says this was a "quirk" that many, many developers benefited from. Apparently this was just a shockingly poorly written code section that has since been revised.

It is very likely that many of the "great" developers availed themselves of this benefit and have had a leg up ever since! This is incredibly sad!

PayThePiper said...

See Lee Sheppard's article in Tax Analysis entitled "The Donald's Double Dip"; a good technical discussion of the likely issues and grandfathering of tax attributes that has been subsequently modified

Joe said...

To NPR Listener:

There was a company called TRUMP PLAZA HOLDING ASSOCIATES (filings through 1996-02-01). After the 1995 bankruptcy was over, it became: TRUMP ATLANTIC CITY ASSOCIATES.

Here is the prospectus for TRUMP ATLANTIC CITY ASSOCIATES, filed April 12, 1996: https://www.sec.gov/Archives/edgar/data/791446/0000950130-96-001222.txt

I don't believe it mentions anything about a "loss of the ability to take future depreciation".

Marc Aaron Goldbach said...

A billionaire like Donald Trump is not free from Corporate Bankruptcy. Thank you John for the thorough assessment of Donald Trump's tax returns. As a lawyer, this is very helpful for me to understand the figure of Donald Trump's tax returns. Very informative. Donald Trump is a businessman and I don't see him as a next President of the USA.

Ed Kickham said...

Mr. Hempton: You almost understand this, but you don't really. In any given foreclosure or debt non-payment situation there is net loss or or net income to the debtor, not both. You left out the concept of cost basis. A few illustrations. I build an office building for $10. I put in $2 of my money and I borrow $8. No one rents space in my building. The bank takes my building. I lose $2 is the obvious answer. But let's dig a little deeper. I lost a building. As is common in real estate I was not personally liable for the debt so the bank does not sue me. But I have debt forgiveness or debt cancellation income of $8. But I lost a building that cost me $10. So my net loss is still $2. Now suppose in the same example, I hold the building for a few years. I take depreciation losses of $3. My cost basis therefore decreases from $10 to $7. The debt is still $8 because I paid interest but no principal. Now if I lose the building, I have debt cancellation of $8 against a cost of $7, thus $1 of income. It's painful because I just lost my building, I got no cash and the IRS says I owe taxes on $1. This is where "parking" might come in. If my father buys the debt and holds it and does not foreclose, I can delay realization of this $1 of phantom income, which is what we call income disassociated from cash receipts. If my building has come to be worth 10 cents, such a thing might be worked out with the bank. It will probably cost 20 cents. The key point is this: If Trump had a tax return that showed a $900,000,000 loss from projects gone bad, it means he lost $900,000,000 in real green dollars. It does not represent parked debt. No one parks debt to avoid a loss. If he parked the debt, the loss would not have been realized and would not be on his return,

Anonymous said...

more on this from the times - http://www.nytimes.com/2016/11/01/us/politics/donald-trump-tax.html

jonno said...

Might be time for a smug update ? That Pulitzer nod is getting a little closer....

https://www.washingtonpost.com/news/wonk/wp/2016/11/01/a-big-dirty-secret-from-donald-trumps-tax-returns-has-been-exposed/

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