BILL ANALYSIS Ó
RECONSIDERATION - FOR VORE ONLY
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 157 HEARING: 1/11/12
AUTHOR: Anderson FISCAL: Yes
VERSION: 3/21/11 TAX LEVY: Yes
CONSULTANT: Grinnell
FRAUDULENT INVESTMENTS
Conforms state law to federal treatment for Bernie Madoff
Ponzi scheme losses.
Background and Existing Law
Bernard L. Madoff Investment Securities, Inc. began
liquidating on December 11, 2008, with the appointment of
the trustee under the Securities Investor Protection Act.
Bernard Madoff individually went into an involuntary
Chapter 7 liquidation in April 2009. His bankruptcy case
was consolidated with the firm's liquidation. Madoff is
serving a 150-year prison sentence following a guilty plea.
Investors lost approximately $17 billion of principal
according to the trustee, which would normally be treated
as capital losses for state and federal tax purposes.
Under state and federal law, taxpayers may generally only
claim $3,000 of capital losses per year to offset income
earned from other sources, known as a capital loss
limitation.
In response, the Internal Revenue Service (IRS) issued
Revenue Ruling 2009-9 and Revenue Procedure 2009-20 in
March, 2009. Revenue Ruling 2009-9 defines losses on
fraudulent investment schemes as business losses, thereby
converting losses from Madoff investment from capital
losses to business ones, and allowing taxpayers to apply
them as net operating losses (NOLs). Revenue Procedure
2009-20 provides a safe-harbor method of computing and
reporting losses from Madoff investments.
Federal and state law provides that a NOL is incurred when
a business taxpayer has negative taxable income in a
taxable year. Taxpayers can use NOLs as deductions against
income realized in future taxable years, called a "carry
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forward," or as a deduction against past income, receiving
a refund for previous taxes paid, known as a "carry back."
Under federal law, a NOL can generally be carried back two
years and forward 20 years. Special rules apply to the
carry back of NOLs relating to issues such as specified
liability losses, casualty or theft losses, disaster losses
of a small business, and farming losses. Recent changes in
federal law extend the carry back period up to five years
for specified losses. The American Recovery and
Reinvestment Act, enacted in March, 2009, allowed certain
taxpayers to make an irrevocable election to carry back
applicable 2008 losses for up to five years. The Worker,
Homeownership, and Business Assistance Act, enacted in
November, 2009, allowed taxpayers with business losses to
make an irrevocable election to carry back losses incurred
in one year (ending after 2007 and beginning before 2010)
for up to five years.
State law previously allowed taxpayers to deduct income for
the next ten taxable years by a percentage of the past NOL,
until the Legislature allowed 100% NOL deductions for the
2004 taxable year and thereafter as part of a measure that
suspended taxpayers from applying NOLs in the 2002 and 2003
taxable years (AB 2065, Oropeza, 2002). However, the
Legislature further expanded the use of NOLs when it again
suspended taxpayers from using NOLs in the 2008 and 2009,
tax years except for taxpayers with less than $500,000 in
net business income. The Legislature extended carry
forwards from 10 to 20 years, and authorized two-year NOL
"carry backs" beginning in the 2011 taxable year (AB 1452,
Committee on Budget, 2008). Last year, the Legislature
again suspended NOLs for the 2010 and 2011 tax years, and
extended the effective dates for NOL carry backs from 2011
to 2013, while exempting taxpayers with less than $300,000
in modified adjusted gross income or corporate taxpayers
with less than $300,000 in pre-apportioned income (SB 858,
Committee on Budget, 2010). SB 858 also exempted one
company from the 2008 and 2009 NOL suspensions.
Proposed Law
Senate Bill 157 conforms state law to federal law by
applying Revenue Procedure 2009-20 for purposes of the
state personal income and corporation tax. If the taxpayer
deducts the loss as a theft loss, discovers the loss in the
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same taxable year detailed by the Revenue Procedure, and
calculates the amount as the same as specified by the
Revenue Procedure, the NOL for state purposes:
Is exempt from the 2008 through 2011 NOL
suspensions.
May be carried back five years, or carried forward
twenty years.
The bill bars FTB from challenging the treatment of a loss
determined under the Revenue Procedure. The measure
conforms by reference to the federal statute of limitations
rules with respect to NOL carrybacks for losses
attributable to application of the Revenue Procedure.
State Revenue Impact
According to FTB, SB 157 results in revenue losses of $6
million in 2011-12, and revenue gains of $3.3 million in
2012-13, $1.8 million in 2013-14, and $400,000 in 2014-15.
Comments
1. Purpose of the bill . According to the Author, "The
state should not gain from a criminal act perpetrated
against the victims of a swindle. Senate Bill 157 is a
bi-partisan measure which would provide tax relief for
California families and businesses that have been the
victim of a fraudulent investment scheme such as the highly
publicized Madoff case. If passed, SB 157 would conform
California law to federal law by allowing a net operating
loss carryover of any deduction from losses that are
attributable to criminal investment fraud. This would
include people who, through no fault of their own, were
victims of Madoff. This is a simple issue of fairness -
innocent investors swindled by Madoff should not be taxed
as if it was just like any other business loss."
2. One of many . Ponzi schemes have occurred often
throughout history, including the eponymous Charles Ponzi
and the match-king of Sweden, Ivar Krueger. Scam artists
have used these rackets to cheat unwitting people out of
money, all of whom didn't receive the tax benefits granted
by the IRS in the Revenue Procedure, and proposed in SB
157. Ordinary taxpayers that suffer capital losses are
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subject to capital loss limitations that cap the amount of
loss that can be used to reduce other income, and must wait
until a trustee determines the final amount of the loss
before they can claim it. Only for Madoff investors has
the IRS conferred such unique benefits.
The great majority of investing taxpayers in recent years
haven't invested in a Ponzi scheme, but may have lost money
in investments that can hardly be distinguished from one,
such as AIG stock or in real estate, and therefore don't
benefit from this bill. The measure also applies only to
individuals who directly invested with Madoff; those
invested through intermediary "funds of funds" do not get
the special protection. Additionally, SB 157 provides this
special treatment for one set of taxpayers in the midst of
fiscal crisis, when all Californians have been subject to
cuts in public services and higher taxes, more of which
would be necessary should the Legislature enact SB 157.
The Committee may wish to consider the equity of providing
a unique benefit to taxpayers that suffered from one
particular investment scam, and whether the precedent
created will be cited in the future.
3. A little help . In most cases, when taxpayers lose
property in a casualty or theft-related loss, no special
exceptions apply; however, victims of the Madoff Ponzi
scheme receive favorable federal tax treatment by
converting the capital losses to business losses, which can
be carried forward and backwards under federal law, and
providing a realization date for the loss. Even if the
Madoff losses were simply converted from capital losses
into business losses without carry backs, affected
taxpayers could only have applied the losses to future
income, taking many years to recoup what would likely be
only some portion of their lost principal. Under the
ruling and SB 157, taxpayers can apply the losses to past
taxable years, and receive refunds for previous taxes paid,
which California taxpayers can't do at all until the 2013
taxable year. In California, taxpayers could not apply
NOLs at all for the 2010 and 2011 tax years, unless they
meet the definition of a small business or are the one firm
the Legislature exempted.
4. Play it again . SB 157 is identical to SB 876 (Florez,
2010), which the former Senate Revenue and Taxation
Committee held on its suspense file.
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5. Second thoughts . The Committee is considering SB 157
today on reconsideration, having previously rejected a
motion to approve the measure on May 18, 2011 by a vote of
4 to 3. While the author has not amended the measure since
the hearing, FTB revised the revenue estimate to show much
smaller revenue losses. FTB revised the estimate because
the trustee administering the Madoff bankruptcy has been
more successful recovering losses on behalf of direct
investors, and that the trustee limited actual losses to
the amount of principal and real earnings lost, and not to
the fictitious earnings Madoff reported.
Support and Opposition (1/11/12)
Support : California Taxpayers' Association, State
Treasurer Bill Lockyer;
6 individuals
Opposition : Unknown.