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June 09, 2016 People in Tax

Remarks to the 2016 Midyear Meeting: The Tax Ghosts of Christmas Past, Christmas Present, and Christmas Yet to Come

By Terence Floyd Cuff, Loeb & Loeb LLP, Los Angeles, CA

Editor’s Note: In this issue of ATT, People in Tax deviates from its traditional interview format to present the remarks of Terence F. (Terry) Cuff, which he delivered at the Real Estate and Partnerships & LLCs Luncheon on January 29 at the 2016 Midyear Meeting in Los Angeles. Terry holds a B.A. from the University of California at Santa Cruz, a J.D. from the University of Southern California, Gould School of Law, and an LL.M. from the New York University School of Law. He speaks frequently on taxation at tax seminars around the country. He is the author of several hundred articles in tax-related publications, principally in the areas of partnership taxation, real estate taxation, like-kind exchanges and drafting partnership and LLC agreements.

I’d like to start by introducing my spouse, Florence Nelson, a person of infinite patience and character. I was going to give my normal, boring, monotonic tax talk, but I have to ratchet it up a bit because Florence is here, so she will not go to sleep.

I address the tax ghosts of Christmas past, Christmas present and Christmas yet to come. If you indulge me, I look back to the ghost of Christmas past.

It may have started with An Act for Better Securing and Encouraging the Trade of His Majesty’s Sugar Colonies in America, 6 George II, ch. 13 (1733). Then there was the Sugar Act, the Stamp Act, the Declaratory Act, the Townshend Duties, the Tea Act.

We Americans, we smuggled. We protested. We petitioned. We boycotted. We seized and destroyed revenue cutters. We roughed up and tore down the homes of colonial officials. We tarred and feathered tax collectors. We broke into ships and dumped tea into Boston Harbor.

James Otis, an early tax litigator, argued against writs of assistance used to enforce the tax acts. He said, “Taxation without representation is tyranny.” We, as tax professionals, should remember those words. We provide representation to taxpayers. We fight against tyranny. Tax lawyers are vital to the survival of America. That is how our tax history began.

Now, moving ahead a few years, I remember a young tax lawyer who started work one fine day in September of 1977. The world was filled with hope and promise. The Tax Reform Act of 1976 had fixed all of the problems of the tax system and ended tax abuse and tax shelters—or so we thought.

As a young tax associate, I inhabited the library from morning until night, diligently researching the tax law. We used books. We occasionally used Lexis for research, but it cost a fortune then, and we needed special permission from a partner to use Lexis for computer research. We dictated memorandums and letters with a dictaphone. We had secretaries to type them on typewriters.

We engaged the great partnership tax issues of the 1970s: service partners, partnership allocations, partnership audits, the audit lottery, tax shelters and aggressive tax planning. Am I glad we resolved all of those problems!

Some of the new ideas in 1977 were: tax reform for simplicity, fairness and equity; consumption tax; integration of individual and corporate tax; tax simplification.

Some things have not changed much since 1977.  Work in tax law was burdened in 1977 by complexity, by the overwhelming amount of the tax law. Our libraries bulged with volumes of cases. The Code was a big, fat volume. Regulations took up three or four volumes then.

We were challenged by the instability of the tax law. There was new tax legislation in 1939, 1954, 1969, 1976. The torrent just would not stop! It was difficult to keep up with all of these quick changes to the tax law.

Private letter rulings were newly published. We were not entirely sure what to do with them, but they certainly added to the bulk of the tax law.

The Internal Revenue Service in 1977 could not and did not audit partnerships. Auditors did not understand the tax law. The low audit rate created an audit lottery.

The technology of 1977 dramatically changed how we practiced. Correcting typewriters permitted lifting off and correcting small mistakes. You didn’t have to retype the whole page. Liquid paper covered larger mistakes and permitted greater corrections. But what was really big was the mag card typewriter. It enabled form documents and standard provisions you could just drop into those documents. We didn’t have to dictate our agreements. Mag typewriters typed the documents with a blazing speed of one minute per page.

Computers at the time . . . well, nobody had a computer on his desk then. Computers were limited to billing. Computers would fill a whole room.

The pace of practice in 1977, in retrospect, was leisurely. We had time to research, to think, to write carefully, properly, and grammatically. We even could proof our work.

Let us now move to Christmas present.

Many changes have occurred during nearly 38 years of practice. I’ve seen boom and I’ve seen bust in tax practice. The field of tax law once expanded and was prosperous. The ranks of tax lawyers recently have contracted.

We have been through a terribly rough patch with tax shelters and foreign bank accounts. Penalties available to the Internal Revenue Service have multiplied and increased dramatically. We have seen tax lawyers migrate to accounting firms like wildebeests migrating in the Serengeti. Some tax lawyers, unfortunately, have migrated to prison.

We’ve experienced tremendous pressure on some of us to generate business, and that may have added to the excesses of some tax shelters.

Complexity, ambiguity, change, and volume of tax law have enormously increased since 1977. The Code now occupies two volumes. Soon maybe there will be a third. You need a wheelbarrow to carry the regulations in print. There’s been a flood of cases, PLRs and other authorities. Treasury has promulgated many regulations that are long, intricate, difficult to understand and often unclear and ambiguous. There is much more tax law to know now than there was in 1977.

The Internal Revenue Service has become despised and unpopular, even in Congress—or should I say, particularly in Congress. It is underfunded, understaffed, underpaid, underappreciated, underqualified, perhaps dispirited. It is overwhelmed with work. Its staff may be over their heads and may not understand partnership tax law. Its responses can be ill thought out and slow. It is badly, badly backed up on guidance. It has very limited audit resources for partnerships or any other audits.

Technology has changed our modern practice. Email provides instant written communication, but what you email, you can’t take back. Careless email is incredibly dangerous. With email, you can destroy your career in a minute or two of carelessness—and some of us will do so.

The cell phone enables instant communications. You’re available to clients and colleagues anywhere in the world at any time. But too often the cell phone may lead you to give an answer before you consider it properly.

We all have computers on our desks. They provide us access to electronic research. Typing our own work reduces overhead, but typing our own work also often reduces quality. Drafting documents and even some research memoranda has become a cut and paste practice. This permits us innocently to repeat mistakes dozens or even hundreds or thousands of times.

Computers have revolutionized tax preparation, but computers also enable Congress and the Internal Revenue Service to require many, many complicated return computations.

There’s increasing reluctance of clients to pay for quality work. Clients are more willing to challenge bills, to impose billing limits or to expect billing deals. Too many clients consider tax professionals and their firms to be fungible, like so many bottles of milk. This attitude too often can lead to us cutting corners and to inferior and compromised work.

We all work very hard. This creates increased stress. We often suffer from not enough sleep and relaxation. Stress and lack of sleep negatively impact our work, intrude on home life, result in ignored spouses and forgotten children. Some of us do not even know our children’s names. It leads to too many divorces. Too many of us know about that.

And now, on to the tax ghost of Christmas yet to come.

“The phantom slowly, bravely, silently approached. When it came near him, Scrooge bent down upon his knee; for in the very air through which this spirit moved, it seemed to scatter gloom and mystery.”

I’m not sure about the future. I’m not sure whether the future is dark or rosy. I know that those who are young will see many changes in the future, but I cannot tell what those changes will be. I may not live to see many of them.

Will there be more partnership audits?

Will partnership audits ever go beyond travel and entertainment expense?

Will the Internal Revenue Service learn partnership taxation?

Will partnership taxation become simpler?

Will we ever start learning about collapsible partnerships?

I’m uncertain where tax reform will lead. In the past, tax reform and simplification typically have led to increased complexity and confusion. We may have a VAT—or we may not. We may move to a consumption tax—or we may not. A consumption tax would require incredible transition rules. We could even have a flat tax—or we might not. I have a binding faith that Congress could make a flat tax complicated, burdensome and ambiguous.

Could the tax laws perhaps be reduced to two pages? Well, perhaps, if someone can just find rolls of paper long enough. Perhaps my friend, who, unfortunately, cannot be here, Professor Julia Grier of Cal Tech, will find a way to etch the Code on nanostructures, using nano-etching.

Truly, it is not clear to me what will happen to partnership tax, but I do fear it will become more difficult, more uncertain and more complex.

Will the future resolve the great partnership tax issues of our time and of 1977—service partners, partnership allocations, partnership audits, Section 752, foreign partnerships? I imagine these issues will be resolved every bit as quickly and competently and decisively as they have been in the past.

Otherwise, my crystal ball is murky.

I can only dream how technology may change the practice of law in the future – as it certainly has done in my career.

I’m not sure what our firms will look like, but I suspect that many will be larger. I’m not sure whether we will even have our own offices or our own tiny cubicles. Many of us may even work from home. Some of us may work great distances from our firms. Some of us may be more specialized.

I do worry about the crushing debt burden of so many new lawyers. I worry about the many young tax professionals who are unemployed or underemployed.

Looking to the future, I see a need for tax professionals with dedication to improvement in the tax system, to resolve the complex, to help clarify the ambiguous and uncertain, to propose solutions to the difficult problems of partnership taxation, bravely to go beyond mere client concerns and personal economic interests.

There is a need for capable tax professionals who practice with energy and compassion and dedication and patience and intellectual brilliance. We need men and women who work hard, who reason carefully, and who write clearly. There is room for each of us. There is a crying need for each of us to work to improve the tax laws.

There is a simple issue that each of us can help to resolve. We can each have our own tax issue. We can give a simple talk. We can teach a class. We can write a simple article. We can participate in an ABA or a state or local bar comment project. We can do something!

My message to you when you’re challenged by the overwhelming demands of day-to-day practice, long nights late at the office, trips far away from home, days in distant conference rooms, stressing over transactions where it seems that the pressure never will quit, my message comes from Tennyson’s poem Ulysses:

And see the great Achilles, whom we knew.
Though much is taken, much abides; and though
We are not now that strength which in old days
Moved earth and heaven, that which we are, we are,
One equal temper of heroic hearts,
Made weak by time and fate, but strong in will
To strive, to seek, to find, and not to yield.

Between 38 and 39 years of practice have passed quickly. My time to contribute to the tax bar has come and nearly has gone.

I once was young. I have become old.

My vision, once strong, is dim.

My hair is thin and has turned from blonde to gray.

But my mind is a kaleidoscope of the most wonderful memories of times past. It has been a good run.

I have sought to help others. I have sought to be a friend. I have written a little. I have spoken occasionally. I have distributed a few emails to colleagues.

My career has brought me joy and challenge, far exceeding the fondest expectations of a young tax lawyer when he started work on a sunny day on September 19, 1977.

This may be my last opportunity to thank you collectively. I do thank you all. You’ve been my inspiration, my aid, my comfort, my colleagues, and my friends.

I’m not quite done yet. You’re not quite rid of me yet. But the end of my career as a tax lawyer is much closer in sight than it was before.

In closing, I recall a few lines from an old Scottish poem. It was composed in 1601 in Edinburgh by a young man, Johnnie Armstrong, on the way to the gallows for the murder of Sir John Carmichael.

This night is my departing night,
For here nae langer must I stay;
There’s neither friend nor foe o’ mine,
But wishes me away.

What I have done thro’ lack of wit,
I never, never can recall;
I hope ye’re a’ my friends as yet;
Good night, and joy be with you all.