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SCOTUS bars bankruptcy clawback from IRS

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The Supreme Court has denied the attempt of the bankruptcy trustee of a failed business to claw back assets fraudulently transferred to the Internal Revenue Service from the debtor-business’s assets to satisfy the personal federal tax liabilities of the shareholders. 

The shareholders had misappropriated $145,000 in company funds to satisfy their personal federal tax liabilities. The trustee filed an action pursuant to Section 544(b) of the Bankruptcy Code, which allows a trustee to “avoid any transfer of an interest of the debtor … that is voidable under applicable law by a creditor holding an unsecured claim.” 

In order to prevail under this section, a trustee must identify an actual creditor who could have voided the transaction under applicable law outside of bankruptcy proceedings. The government argued that the trustee’s claim failed because the trustee could not identify an “actual creditor” that could have voided the fraudulent transfer because sovereign immunity would have barred any such cause of action in Utah against the government. 

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The U.S. Supreme Court in Washington, D.C.

Stefani Reynolds/Bloomberg

The bankruptcy court, the district court and the Tenth Circuit disagreed. But the Supreme Court held otherwise, finding that the waiver of sovereign immunity in Section 106(a) of the Bankruptcy Code applies only to a Section 544(b) claim itself and not to state-law claims “nested within that federal claim.”

The opinion, issued in United States v. Miller, was an 8-1 decision, which likely surprised many who thought the government had an uphill battle to get a reversal, according to Alissa Castaneda, a partner at law firm Dorsey & Whitney. 

“Practically, the ruling means that the government — and only the government — can keep fraudulent transfers received between two to four years before bankruptcy,” she said. 

“The Supreme Court determined that if it adopted the trustee’s reading, that it would ‘transform that statute from a jurisdiction-creating provision into a liability-creating provisions,’ and affirmatively expand the trustee’s avoidance powers to a bankruptcy trustee, allowing the trustee to ‘avoid any transfer of an interest of the debtor … that is voidable under applicable law by a creditor holding an unsecured claim,” explained Castaneda.

“‘Applicable law’ can refer to any federal or state law other than the Bankruptcy Code, but trustees generally rely on state statutes, and most frequently, on ‘fraudulent transfer’ state statutes specifically,” she said. 

The Miller case involved a Chapter 7 trustee of a Utah company that filed for bankruptcy in 2017. The trustee filed a lawsuit against the United States, seeking to avoid $145,000 of tax payments made by the company in 2014 to the IRS to satisfy the personal income tax obligations of the company’s principals. 

Because the transfer of the $145,000 to the IRS took place more than two years prior to the bankruptcy petition date, the trustee could not void the transfer since that statute only had a two-year lookback period. Instead, the trustee invoked Utah’s fraudulent transfer statute, which had a four-year lookback period as the ‘applicable law,’ she noted. 

“The government did not dispute that the debtor received nothing of value in exchange for this transfer, but rather asserted that the trustee could not satisfy the ‘actual creditor’ requirement, because there was no actual creditor who could have voided the transaction because sovereign immunity would bar any Utah state cause of action against the government,” Castaneda added.

The bankruptcy court rejected the government’s arguments and entered judgment for the trustee. The district court adopted the bankruptcy court’s decision and the Tenth Circuit affirmed the decision. 

The Supreme Court reversed the Tenth Circuit and held that waivers of sovereign immunity are jurisdictional, and not substantive in nature, nor as broad as the trustee claimed. It did not alter the substantive waiver of immunity that would not exist under the applicable Utah state law.

On the surface it looks like a favorable result for the shareholders who engaged in the fraudulent transfer. Their debt to the IRS is satisfied, and depending on Utah’s statute of limitations and prosecutorial discretion, there may be no future legal action.

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Trump says tax bill ‘close’ as holdouts threaten to sink it

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President Donald Trump said his massive tax package is close to being finalized, having notched a deal over the state and local tax deduction, but the White House has yet to win over a faction of conservatives who want more austere spending cuts.

“We’re doing very well. It’s very close,” Trump told reporters Wednesday.

House Speaker Mike Johnson announced Wednesday that he had an agreement with lawmakers from high-tax states to increase the limit on the SALT deduction to $40,000. 

“The members of the SALT caucus negotiated yesterday in good faith,” Representative Mike Lawler, a New York Republican, told Bloomberg Television. “We settled on something that we believe in, we support.”

However, several hardline Republicans said House GOP leaders aren’t honoring concessions the White House promised them and are threatening to tank the bill. 

But the White House says they never made a deal, instead presenting some of the conservative holdouts with a menu of policy options that the Trump administration can live with, a White House official said. 

The White House made clear to conservatives they would have to persuade their moderate colleagues to sign onto those ideas, the official said, a challenging feat given Republicans’ narrow and fractious House majority.

Trump and Johnson plan to meet with some of the ultraconservative lawmakers at the White House at 3 p.m., a person familiar with the plans said. That meeting will be an opportunity to strike a deal, the Trump official said.

Ultraconservative Representative Andy Harris of Maryland cast the conversations with the White House as a “midnight deal” for deeper cuts in Medicaid and faster elimination of Biden-era clean energy tax breaks.

“I’m sorry, but that’s a pay grade above the speaker,” Harris said. 

Harris said the bill doesn’t reflect that agreement and hardliners will block the package if it comes to a vote. Representative Ralph Norman, an ultraconservative from South Carolina, said the bill “doesn’t have the votes. It’s not even close.”

Freedom Caucus members said they aren’t moving the goal posts by asking for more spending cuts than the budget outline they already voted for. They said they want to rearrange the spending cuts to focus on ending “abuse” in Medicaid and immediately ending green energy tax breaks.

House Republicans leaders are also planning to accelerate new Medicaid work requirements to December 2026 from 2029 in a bid to satisfy ultraconservatives, according to a lawmaker familiar with the discussions. 

How deeply to cut safety-net programs such as food assistance and Medicaid health coverage for the poor and disabled has been a sticking point in reaching agreement on Trump’s tax bill, as Johnson attempts to navigate a narrow and fractious majority.

Harris and Norman spoke shortly after Johnson announced the SALT agreement on CNN. 

Johnson said there is “a chance” the package could come to a vote Wednesday.

But several ultraconservatives cast doubt on that. “There’s a long way to go,” said Representative Chip Roy of Texas, another Republican hardliner.

The speaker can only lose a handful of votes and still pass the bill, which is the centerpiece of Trump’s legislative agenda.

The $40,000 SALT limit would phase out for annual incomes greater than $500,000 for the 10-year length of the bill, Lawler said. The income phaseout threshold would grow 1% a year over a decade, a person familiar with the matter said.

The cap is the same for both individual taxpayers and married couples filing jointly, the person added.

Another person described the income phase-out as gradual, so that taxpayers earning more than $500,000 would not be punished.

Several lawmakers —  New York’s Lawler, Nick LaLota, Andrew Garbarino and Elise Stefanik; New Jersey’s Tom Kean, and Young Kim of California — have threatened to reject any tax package that does not raise the SALT cap sufficiently.

The current write-off is capped at $10,000, a limit imposed in Trump’s first-term tax cut bill. Previously, there was no limit on the SALT deduction and the deduction would again be uncapped if Trump’s first-term tax law is allowed to expire at the end of this year.

Johnson’s plan expands upon the $30,000 cap for individuals and couples included in the initial version of the tax bill released last week. That draft called for phasing down the deduction for those earning $400,000 or more. That plan was quickly rejected by several lawmakers from high-tax districts who called the plan insultingly low.

The acceleration of new Medicaid work requirements could become an issue in the midterm elections — which fall just one month earlier — with Democrats eager to criticize Republicans for restricting health benefits for low-income households. 

House leaders’ initial version of legislation pushed back the new requirements until after the next presidential election.

The earlier date for the Medicaid work requirement could alienate several Republicans from swing districts concerned about cuts to the healthcare program. It is also likely to provoke a backlash in the Senate.

It will be very difficult for states to implement the work requirements in a year and a half, said Matt Salo, a consultant who advises health care companies and formerly worked for the National Association of Medicaid Directors.

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PCAOB offers advice on auditing accounting estimates

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The Public Company Accounting Oversight Board released a publication Wednesday to assist smaller firms with the vagaries of auditing accounting estimates as the board comes under threat of being eliminated.

The publication, “Audit Focus: Auditing Accounting Estimates,” gives auditors a set of reminders and good practices about accounting estimates, which can be a challenging part of financial statements.

Accounting estimates — including impairments of long-lived assets or allowances for credit losses — are commonplace in financial statements and can substantially impact a company’s financial position and results of operations. They typically involve subjective assumptions and measurement uncertainty, leaving them susceptible to management bias. Some estimates involve complex processes and methods. That means accounting estimates are often some of the areas of greatest risk in an audit.

The release of the publication comes as the PCAOB is finding itself at risk of being absorbed into the Securities and Exchange Commission after the House Financial Services Committee passed legislation at the end of April that would transfer the PCAOB’s responsibilities to the SEC. The bill is expected to be part of the massive tax reconciliation bill now making its way through the House. PCAOB chair Erica Williams has spoken out against the bill, pointing to the inspection agreements that the PCAOB has with other countries’ audit regulators, including China’s. SEC chair Paul Atkins said at a conference this week the SEC could handle the PCAOB’s work, although it would need to have the funding and be able to bring over people from the PCAOB, according to Thomson Reuters. Earlier this month, six former PCAOB officials wrote a letter to lawmakers expressing concerns about the proposal.

The PCAOB’s inspection staff is continuing to find deficiencies related to auditors’ testing of accounting estimates. The deficiencies include not identifying the significant assumptions employed by a company to determine an accounting estimate.

The latest Audit Focus publication includes: reminders for auditors from the PCAOB standards related to auditing accounting estimates; the PCAOB staff’s perspectives on common deficiencies in auditors’ work; and good practices that audit firms that audit smaller companies have implemented in the area of accounting estimates.

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Republican hardliners threaten to block deal on Trump tax bill

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Conservative hardliners threatened to block Republicans’ massive tax and spending package, jeopardizing passage of President Donald Trump’s signature economic legislation.

Ultraconservatives lashed out shortly after House Speaker Mike Johnson announced he had an agreement with lawmakers from high-tax states to increase the limit on the deduction for state local taxes to $40,000.

Several hardline Republicans said House GOP leaders aren’t honoring concessions the White House promised them.

Ultraconservative Representative Andy Harris of Maryland said Wednesday morning the Trump administration promised them in a “midnight deal” deeper cuts in Medicaid and faster elimination of Biden-era clean energy tax breaks.

“I’m sorry, but that’s a pay grade above the speaker,” Harris said.

Harris said the bill doesn’t reflect that agreement and hardliners will block the package if it comes to a vote. Fellow hardliner Ralph Norman of South Carolina said the bill “doesn’t have the votes. It’s not even close.”

The White House didn’t immediately respond to a request for comment. 

Johnson said there is “a chance” the package could come to a vote Wednesday.

— With assistance from Skylar Woodhouse

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