MAY 2012
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Guest Column

REMUNERATION AND GAS STATION/CONVENIENCE STORE OWNERS

By MARC EICHENHOLTZ

In ever increasingly difficult times for most companies to make ends meet, gas station/convenience stores are also facing tough times. Between credit cards fees, mandatory upgrades to underground storage tank systems, small gas margins, etc. … it could be tempting to take the short path to earning a few extra dollars. Enter the environmental side of the gas station/C-store business.

For many owners, their sites are eligible for the cleanup of prior petroleum discharges under the state of Florida’s Petroleum Cleanup Program. In 1986, the Florida Department of Environmental Protection (FDEP) created through legislation the Early Detection Incentive (EDI) program to assist site owners with environmental cleanup of FDEP deemed eligible discharges. The FDEP subsequently created additional iterations of the cleanup program, including the PCPP, PLRIP and ATRP programs to assist the site owner(s) or responsible party(ies) with the costs associated with the cleanup of eligible discharges. The funds for this cleanup are collected through tax on gas and placed into the Inland Protection Trust Fund.

Under these programs, site owners are asked to designate a cleanup contractor from a list of FDEP-approved vendors. To do so, the site owners would simply complete the required Contractor Designation Form (CDF) and submit it to the FDEP. Unfortunately, due to the highly competitive nature of the environmental consulting industry, there are some environmental consulting firms that offer site owners a “reward” for signing their sites over to them. This is remuneration and it is illegal.

On the CDF it clearly states that the site owner(s) or responsible party(ies) designating the contractor may not take any kind of remuneration, whether it be directly or indirectly. Simply put, it is inappropriate and illegal to accept money for designating a contractor. Other forms of remuneration include, but are not limited to, commissions (whether directly or indirectly received from a third party), in-kind gifts, completing significant work on the site at no cost, paying someone else like a clerk at the store who in turn writes you as the owner a check, payment or reimbursement of FDEP-required deductibles, etc.

The law is pretty specific as it relates to such behavior. The FAC chapters and the actual language are cited below. In short, if a consultant offers the site owner(s) or responsible party(ies) remuneration of any kind, directly or indirectly, the consultant could be terminated from doing any work under the FDEP Petroleum Cleanup Program and may be charged with a misdemeanor of the first-degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g), by a fine of not less than $2,500 or more than $25,000, or punishable by 1 year in jail, or by both for each offense. Each day during any portion of which such violation occurs constitutes a separate offense. These would also apply to any site owner who accepts remuneration. In addition, the site owner or responsible party could have their eligibility for state-funded cleanup revoked on all of their eligible sites, thus requiring the owner or responsible party to pay any subsequent cleanup costs.

The FDEP is working vigorously to put an end to remuneration and several investigations are

under way. They may also offer amnesty to site owners who were not aware of the illegality of remuneration providing they come forward immediately and offer details to the

FDEP about the consultant who made the offers.

Certainly, the risks of being involved in remuneration do not outweigh the potential outcome of being found guilty of a misdemeanor of the first or second degree.

Marc Eichenholtz, president of MAS Environmental LLC, can be reached at (813) 833-1625, e-mail meichenholtz@mas-env.com or visit www.mas-env.com


IRS Reopens Offshore Disclosure Program: Should You Apply? – PART I

By Rahul P. Ranadive, J.D., LL.M. (Taxation) Global Tax and Estate Counsel, LLP

Over the last decade, the IRS has been increasing its enforcement efforts against U.S. taxpayers with undeclared foreign bank accounts. Many readers already may be aware of the 2009 and 2011 Offshore Voluntary Disclosure Initiative programs (“OVDI”). Since the OVDI closed on Sept. 9, 2011, taxpayers have asked what they can do if they still have not disclosed their foreign accounts. For a while, it appeared the only options available for taxpayers wishing to comply were either a formal disclosure through the IRS’ standard voluntary disclosure program (a “noisy disclosure”) or simply filing prior year original or amended returns and hope they don’t get audited (a “silent” or “quiet” disclosure).

Since closure of the 2011 OVDI, tax practitioners had speculated as to whether the IRS would institute another defined disclosure program similar to OVDI, and if so when. Previously, I was convinced an updated OVDI type program would not happen until sometime in 2013. However, the IRS on Jan. 9, 2012 announced it has reopened the OVDI, with certain important modifications noted below. Part I of this article reviews the newly reopened OVDI and highlights its important changes from the previous OVDI programs. Next month, in Part II, we will examine the relative benefits and risks taxpayers should be aware of in considering the merits of whether to enter the OVDI program or not.

Background

The IRS has increased its enforcement efforts against U.S. taxpayers with undeclared offshore accounts for many years. In the past year, we have seen the following significant developments:

Part I - Reopened OVDI

The IRS’ standard voluntary disclosure program has always been available to taxpayers making a timely, truthful and complete disclosure of their non-compliance before being audited by the IRS, a so- called noisy disclosure. The current and past OVDI programs are a subset of this larger voluntary disclosure program where taxpayers enjoy certainty of outcome from the fixed civil penalty structures, but lose the ability to make reasonable cause arguments against imposition of penalties. This contrasts with the regular voluntary disclosure program where taxpayers can assert reasonable cause as a defense. Accordingly, whether a taxpayer enters the OVDI program or not depends on whether the taxpayer is in danger of being classified a willful non-filer, or has credible reasonable cause arguments, or falls in the large gray zone somewhere in between.

While there was no fixed penalty OVDI program open, taxpayers could try to utilize the open-ended nature of the general voluntary disclosure program to assert credible, perhaps even aggressive, reasonable cause arguments to attempt settling their cases for less than the OVDI program fixed penalties. On the other hand, many risk-adverse taxpayers are wary of an open-ended voluntary disclosure and prefer the certainty of the OVDI program. With the reopening of the OVDI program, one thing is certain: any noisy disclosure involving offshore accounts will be herded into the OVDI program with fixed civil penalties and no ability to make reasonable cause arguments. In other words, an open-ended regular voluntary disclosure of offshore accounts is not possible while the OVDI program is open.

Many practitioners believe the IRS reopened the OVDI program to allow the thousands of taxpayers soon to be disclosed by the dozen or so foreign banks currently under investigation, an opportunity to apply for the OVDI program before their names are disclosed by such banks. The reopened program is similar to the 2011 OVDI but with two major differences. As with the 2011 OVDI, taxpayers must file eight years of tax and information returns and pay all taxes, interest and a 20 percent accuracy penalty on omitted income (plus late filing and late payment penalties if applicable).

The first major difference is that the offshore penalty on the taxpayer’s highest aggregate balance of offshore accounts is now 27.5 percent, as opposed to 25 percent for the 2011 OVDI program and 20 percent for the 2009 OVDI program. Certain taxpayers, however, still may qualify for a lower offshore penalty rate of 12.5 percent for aggregate balances under $75,000, or 5 percent for certain inherited accounts, and for qualifying bona fide foreign residents or dual-citizens. The second major difference is the reopened program is open indefinitely. There is no deadline to make a full submission, however, the IRS stated it may end the program and/or may change the terms and conditions of this reopened OVDI at any time. In other words, while there is no deadline, there is still urgency for taxpayers to comply soon since the program could close or the 27.5 percent offshore penalty could be increased, at any time, perhaps even without forewarning from the IRS.

For more detailed information, the OVDI homepage on the IRS’ Web site (www.irs.gov) has a series of 53 frequently asked questions and their answers, which are helpful in understanding the terms of the program, its parameters, and its procedures. Next month, we will examine the relative merits and drawbacks of entering the OVDI program, or pursuing an alternative compliance method and procedure.

To be continued...

Rahul P. Ranadive is admitted to the Florida and California bars and the U.S. Tax Court, and has practiced international and domestic tax planning focusing on high net-worth families with international ties for over 10 years. He is based in Miami, and can be reached at rranadive@gtecllp.com or (305) 913-7128 or by visit www.gtecllp.com

The foregoing is not tax or legal advice and should not be relied upon as such. No attorney-client relationship is created or implied with any reader of this article. All taxpayers should seek independent advice from a qualified tax professional based on their individual circumstances.


BENEFITS AND USE OF ROBOTICS IN WOMEN’S HEALTH

MEENAKSHI JAIN, M.D., FACOG

By DR. MEENAKSHI JAIN,
M.D., FACOG

Till recently, more than 80 percent of women's surgeries were performed by open traditional technique. The incisions for the surgery were large, cosmetically unsightly, the patient usually stayed in the hospital for 3-4 four days, there was a considerable amount of pain for many weeks, and recovery took about six weeks. In general, patients were not able to return to work for 6 to 8 weeks.

In comparison, when the da Vinci Surgical System (consisting of a console for the surgeon, patient-side cart, four robotic arms, 3D vision system and instruments) is used for gynecological surgeries, blood loss is minimal and much less compared to traditional surgery. Usually, the patient goes home on the same day and thus the risks of a long hospital stay such as infection and blood clots, etc., is eliminated. The pain is much less, and most patients can return to work within two weeks after a major surgery.

Lastly, the incisions with robotic surgery are small compared to traditional large incisions, which were associated with the old way of doing hysterectomies. Cosmetically, these scars are barely visible.

Robotics is being used in gynecology to do hysterectomies and other complex gynecological surgeries, such as removing cysts, fibroids and cancerous tumors, etc.

Robotic surgery is also being used treat and fix women's conditions such as dropped bladder or dropped uterus, pelvic relaxation and urinary leakage, etc. Several medical conditions are common after childbirth but patients suffer in silence because of the fear of a major surgery. Now, these patients have an option. The da Vinci Surgical System is rapidly becoming the standard of care in gynecological surgery in United States.

Robotics is also used in general surgery, oncology, cardiothoracic surgery, gall bladder and major bowel surgeries. Most prostatectomies in the U.S. are being performed through robotic surgery.

Dr. Meenakshi Jain can be reached at (727) 343-2568 or visit www.JainGynecology.com

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