减少和避免所得税的艺术[文献翻译].docx

原文：
The Fine Art of Reducing and Avoiding Income Taxes
Starting with the Tariff Act of 1913, which encompasses the first income tax on individuals following the adoption of the Sixteenth Amendment; taxpayers have been zealously attempting to minimize their tax liability. Unfortunately in their desire to achieve this result various schemes have been devised which border on fraud. This article explores some tax planning ideas for individuals which may provide taxpayers the wherewithal to attain their goal-lower income taxes. It should be noted, however, that before implementing any of the suggested ideas, individuals should review them with qualified counsel.
CAPITAL GAINS AND LOSSES
Under the Tax Reform Act of 1969 the alternative tax on long-term capital gains (gains on the sale of capital assets held for MORE than six months) has been modified. For taxable years beginning after December 31, 1969 the first $50,000 of long-term capital gains, for individuals, estates and trusts, is taxed at 25%. Any net long-term capital gains (i.e. excess long-term capital gains over short-term capital losses) in excess of $50,000 is then subject to an effective maximum tax of 35% (50% of the current maximum tax rate of 70%). Net short-term capital gains (i.e. excess short-term capital gains over long-term capital losses) are still taxed as ordinary income. At first blush it would appear that significant tax savings could be achieved by structuring sales of capital assets to obtain the benefits of the alternative tax. In reality this is only illusory. The maximum tax savings one can hope to achieve via the alternative tax procedure is only $5,000.
EXHIBIT A
Maximum tax on net long-term capital gains 35%
Maximum tax on the first $50,000 of long-term capital gain 25%
Difference 10%
Tax Savings under the Alternative Tax; First $50,000 of
Long-term capital gain *10% $5,000
Probably more interesting is the fact that if the taxpayer’s only income is long-term capital gains the alternative tax procedure will ALWAYS yields a HIGHER tax than the normal tax computation. This is evidenced by the fact that the normal tax rates are graduated where the alternative tax is a flat 25% on the first $50,000 of long-term capital gains. If the taxpayer's net long-term capital gain is at least $50,000, the alternative tax procedure produces a tax which is higher than the normal tax by $6,480.
EXHIBIT B
$50,000 of long-term capital gain at 25% $12500
Tax on $50,000-Schedule Y-1972 Tax Rate Schedules $ 6020
Increase in Tax Using Alternative Method $6480
Also modified by the Tax Reform Act of 1969 was the utilization of net long-term capital losses (i.e. excess long-term losses over short-term gains) to offset ordinary income. Basically, if an individual has a net capital loss for the current year, he may reduce his ordinary income up to but not exceeding $1,000. Net short-term capital losses are used to offset ordinary income on a dollar-for-dollar basis. However, net long-term losses arising after 1969, reduce ordinary income on a two-for-one basis (i.e. forever $1 reduction against ordinary income $2 of the long-term loss must be used). It should be noted that in applying capital losses to offset ordinary income the short-term losses are applied first. Moreover, any losses not used to reduce ordinary income are carried forward to future years retaining their character as either short-term or long-term losses. Individuals who have numerous stock transactions should separately compute their stock transfer tax (generally shown on the broker’s advice). This tax would be an itemized deduction while increasing the net proceeds on the stock sale. Since the tax has been deducted from the net precedes it
Must be added back when claiming the tax as a separate deduction; otherwise it would be deducted twice. In this manner gains are increased, losses are reduced and the individual obtains a full deduction for the transfer tax at his normal tax bracket. The tax savings achieved by this method is surprisingly high.
Tax planning dictates that a careful analysis of the taxpayer's investment portfolio is made to ensure that the maximum benefits are achieved when using the capital gains and loss provisions. Obviously, the timing of the taxpayer’s sale of capital assets becomes crucial.
SHORT SALES AGAINST THE BOX-LONG IN BENEFITS
The sophisticated investor has been able to utilize the short-sale-against- the-box technique to control the tax timing of capital gains. Although the investor, at the time of the short sale, has fixed his overall economic gain, the taxable gain is not realized until the short sale is closed out; that is, the securities are delivered to the purchaser. Moreover, prior to August 1967 shorting against the box was also used to circumvent the wash-sale rules. Can this short sale technique be further extended to completely eliminate capital gains on sales of securities? Here is how it would work.
Mr. Smith owns 100 shares of X Co. which are held by his broker. On September 1, 1973 he instructs his broker to sell these securities “short against the box." At this point Mr. Smith is credited with the proceeds of the sale, in a short account, while still maintaining his long position in X Co. Stock. Thus, there is no taxable event as yet. Normally Mr. Smith would then close out the short sale in January 1974, effectively postponing the recognition of capital gain from 1973 to 1974. This is the standard transaction. However, Mr. Smith has no intention of closing out the transaction during his lifetime sincere can obtain a substantial amount of cash immediately without incurring any tax. The results would be as follows:
1. DURING HIS LIFETIME.
No recognition of capital gain on the sale of 100 shares of X Co. Since the sale was not closed out.
2. MR.SMITH'S ESTATE.
The possibility of no recognition of capital gain. The tax basis of the 100 shares of the X Co., held in the long position, would take on a stepped-up estate tax value. If these securities are then used to close out the short sale, the stepped-up basis would This excerpt on short sales is reprinted by permission from Mr. Malaga's "Short Sales Against the Box-Long in benefits,” Copyright 1969 by the American Institute of Certified Public Accountants, REDUCING AND AVOIDING INCOME TAXES presumably be equal to or greater than the original proceeds received, hence no capital gain. Although the estate must include the value of the 100 shares of X Co., held in the long position, in the gross estate it also has an obligation to deliver 100 shares of X Co. to close out the short position and to that extent would be entitled to an estate tax deduction under Section 2053(a) (4). Furthermore, the resulting "taxable estate” would not be affected by the short sate against the box.
3. ESTATE’S INCOME TAX.
The IRS may take the position that the covering of the short sale, by the estate, is income in respect of the decedent (Section 691). If this view can be substantiated, which is questionable, any "gain" on the short sale would now be included in the estate's fiduciary return. The computation of this "taxable gain" raises the following question: What is the basis of those shares delivered to close out the short sale? Presumably the IRS position would be that such basis is the decedent's basis at the time the short sale was entered into.
Mr. Smith has gained economically in this entire transaction. He could conceivably obtain 90% of the proceeds on the short sale in cash, since only a 10% margin requirement is imposed by the SEC.
However, the consensus of those brokers queried indicated that the investor could only obtain approximately 20% in cash immediately, thereby maintaining the current margin requirement of 80%. In the alternative, Mr. Smith could leave the proceeds from the short sale in his account and utilize them to acquire additional securities.
Since the individual brokerage firms have set up their own regulations regarding a short sale against the box, they should be questioned as to the economics involved prior to entering into any proposed sale. Note, however, that a short sale of stock during the three year holding period for stock acquired through the exercise of a qualified stock option is a disposition and is taxed as ordinary income. This is the 1RS position in a recent ruling. (Rev. Rul. 73-92).
SUBCHAPTER S CORPORATION
Tax wise, the Subchapter S Corporation provides the owners of a closely held company the means for solving certain business problems. What is a Subchapter S Corporation or what some tax practitioners call a tax-option Corporation? Basically, it is a corporation which may elect to have its income taxed directly to its shareholders avoiding, the tax at the corporate level. Income received by the shareholders are taxable to them when received while undistributed corporate profits are taxed to the share- holders as if they distributed on the last day of the corporation's taxable year.
These profits are allocated to the shareholders on a pro rata basis in accordance with their stock ownership on the last day of the corporation’s taxable year. However, the computation of a net operating loss of the corporation which is allowed to shareholders as a deduction is more complex. Every individual who was a shareholder AT ANY TIME during the taxable year, in which the Subchapter S Corporation sustained a loss, is permitted a deduction from gross income for his portion of such loss. The shareholder's portion of such loss is the corporation's daily net operating loss (net operating loss divided by the number of days in the corporation's taxable year) assigned on a pro rata basis to the stock owned by the shareholder on each day of the taxable year. But in no event shall the deduction for such loss exceed the shareholder's adjusted basis of his stock in the corporation plus any indebtedness owed him by the corporation.
To qualify to elect the Subchapter S status, the following requirements must be met:
1. The corporation must be a domestic corporation; that is one organized under the laws of the United States.
2. The corporate ownership may NOT exceed 10 shareholders.
3. The shareholders must only consist of individuals or estates.
4. A nonresident alien may NOT be a shareholder.
5. The capital structure of the corporation must consist of only one class of stock. If these requirements can be met then some tax planning techniques may be employed, using the Subchapter S Corporation, to achieve tax benefits.
1. Accumulated Earnings Tax Problem
Under Section 531, corporations formed or availed of for the purpose of avoiding the individual income tax with respect to its shareholders are subject to the accumulated earnings tax. This tax is 27 1/2% of the first $100,000 of accumulated taxable income plus 38 1/2% on any excess accumulated taxable income over the first $100,000. These high rates are used as a deterrent against accumulating corporate income rather than distributing such income to shareholders as a dividend.
One exception is that, during the period a Subchapter S election is in effect, the corporation is not subject to the accumulated earnings tax. Under the Subchapter S rules all taxable income is “deemed" distributed and therefore is not "availed of for the purpose of avoiding the individual
REDUCING AND AVOIDING INCOME TAXES
One note of caution is necessary however. If the corporation were established for the specific purpose of tax avoidance, the IRS could disregard the entire set-up. A valid business purpose for creating multiple corporations should be sought. For example, it may be sound business acumen to have separate selling and manufacturing corporations.
Shifting of income among members of a family may be accomplished through the utilization of the Subchapter S provisions. Undistributed taxable income of a Subchapter S corporation is allocated to its shareholders on the last day of the corporation’s taxable year. Therefore, gifts of stock before the year-end to low-bracket taxpayers within the family would shift corporate profits to the domes. Bear in mind however, that the IRS has the authority to allocate income to a shareholder to reflect the value of his services to the corporation.

Source: Stanley Malaga,2006 “The Fine Art of Reducing and Avoiding Income Taxes” . Journal of the Academy of Marketing Science, vol. 1, no.1, January,pp. 34-42.

译文：
减少和避免所得税的艺术
从1913年有关税法开始，包括个人所得税后第16修正案得以采用，纳税人必须试图竟可能的减少说物的负担。不幸的是，在他们实现愿望的过程里却在不同的层面上被欺诈。本文从个人所得税筹划方面来让纳税人实现用最少的钱来交纳必要的税款。然后值得注意的是，在实施这些想法之前，人们应该先评估一下你的法律顾问。
资本得利和盈亏
在1969年税收改革法案中，另一种税(销售收益资产的销售适用超过6个半月）已经被修改了。1969年12月31日新税发实施开始，首次为个人、房地产和信托，长期资本收益在5万美元的人群观众，是按25%。每位得到长期的资本收益(及多余的长期的资本收益超过短期资金亏损）超过5万美元的人群中，就需要进行最大税收达35%(最高税率70%的一半）。得到短期资本收益(即多余的短期资金的收益）却仍然长期资本亏损与普通人纳税收入相同。起初，这重要的税金节约额似乎可以通过构建有利资本的销售额从替换税中得到好处。事实上这只是虚幻。人们希望能通过另一种税收程序达到最大的税金节约额只有5万美元。
展示A
最大税务上得到的长期资本收益 35%
最高税额在长期资本收益的第一个5万美元 25%
差异 10%
税金节约额从属于替换税，也许更有趣的事实是对于第一个5万美元长期基金收益*10% 5000美元
如果纳税人的收益仅仅遵守替换税程序，将会产生比正常预算更高的税额。这个事实的证据是正常税额比率在替换税第一个5万美元长期收益基金是25%上是累进的。如果纳税人的净长期资本增值至少5万美元,替代税务程序产生税额高于正常的税务6,480美元。
展示B
以25%为税率的5万美元收率长期资本 12500美元
使用Y计划——1972税率计划的50000美元的应交税额 6020美元
运用替代方法增加的税额 6480美元
同时1969年税收改革法案改性的净长期资本损失(即多余的长期过度短期利益损失）利用普通收入来抵消。基本上，如果一个人有一个当年净资本损失，他可能会减少他的普通收入，但不超过1,000元。净短期资本亏损用于抵销普通收入一元对一元的基础。然而，长期净亏损1969年以后产生的，减少对两为一的基础上普通收入(即永远一美元对普通收入必须使用美元的长期损失2减少）。应当指出，在应用资本损失来抵消普通收入的短期损失是首先应用。此外，不使用任何损失减少普通收入结转至要么保留其作为短期或长期亏损的字符今后几年。谁拥有众多的个人，应分别计算股票买卖他们的股票转让税(一般在经纪人的意见所示）。这种税将是一个分项扣除，同时增加对股票转让所得款项净额。由于税收已从净之前扣除必须补充回来时，声称作为一个单独的扣除税，否则将被扣除两次。在这种方式下收益增加，亏损减少，在他的个人取得正常税率为转让税全额扣除。这种方法的税款，节省的是高得惊人。
税收筹划要求，如果纳税人的仔细分析，投资组合，以确保取得最大的好处是使用时的资本利得和损失准备金。显然，纳税人的资本资产的出售时间变得至关重要。
在效益一中的卖空与箱长
这种先进的投资者已经能够利用卖空打击的现成技术来控制资本利得税的时机。虽然投资者在短期出售时，有固定的整体经济利益，应纳税收益没有实现，直到卖空平仓，也就是说，证券交付予买方。此外，1967年8月之前对中做空也被用来规避洗售规则。可这短暂的销售技术进一步扩展至完全取消对出售证券的资本收益？下面是它如何工作。
史密斯先生拥有100的X公司是由他的经纪人持有的股份。九月一日，1973年，他指示他的经纪人出售这是与史密斯先生的销售收入在很短的帐户，贷记点这些证券“对中短。”，同时仍然保持其在X公司的好仓股票。因此，不存在尚未应税事件。史密斯先生通常会关闭了在1974年1月短期销售，有效地推迟了资本得到认可73年至1974年。这是标准的交易。然而，史密斯先生没有关闭了在他的一生真诚能获得大量的现金，而不会产生任何即时交易税的意图的结果将如下：
1．在他的一生。
由于出售没有结束，因此没有资本对100的X公司出售股份获得认同。
2．史密斯先生的遗产。
对资本收益的不承认的可能性。该公司的X 100股的好仓举行，计税依据将采取阶梯式房地产税值。如果这些证券，然后用来关闭了短期销售，加紧基础将这种对卖空摘录转载来自马拉加先生的许可“反对箱长短期销售收益，”1969年美国版权协会会计师，减少和避免所得税大概等于或大于原来收到更大的收益，因此也没有资本利得。虽然房地产必须包括对X公司的100股股票的价值，在长期职位，在总地产也有责任提供100 X的公司股价收出短地位，将有权根据第2053对地产减税的范围(一）(4）。此外，由此产生的“应课税房地产“不会受到打击框短州。
3．村的所得税。
美国国税局可能采取的立场是涵盖卖空由破产财产，是