The New York Times reports that with inequality at its
highest levels in nearly a century the very richest Americans have financed a
sophisticated and effective apparatus for shielding their fortunes, consisting
of expensive lawyers, estate planners, lobbyists and anti-tax activists who
exploit and defend an array of tax-avoidance maneuvers, virtually none of them
available to taxpayers of more modest means. The ultra-wealthy “literally pay
millions of dollars for these services,” said Jeffrey A. Winters, a political
scientist at Northwestern University who studies economic elites, “and save in
the tens or hundreds of millions in taxes.” Whatever tax rates Congress sets,
the actual rates paid by the ultra-wealthy tend to fall over time as they exploit
their numerous advantages. The major industry group representing private equity
funds spends hundreds of thousands of dollars each year lobbying on such issues
as “carried interest,” the granddaddy of Wall Street tax loopholes, which makes
it possible for fund managers to pay the capital gains rate rather than the
higher standard tax rate on a substantial share of their income for running the
fund.
Operating largely out of public view — in tax court, through
arcane legislative provisions and in private negotiations with the Internal
Revenue Service — the wealthy have used their influence to steadily whittle
away at the government’s ability to tax them. The effect has been to create a
kind of private tax system, catering to only several thousand Americans.
“There’s this notion
that the wealthy use their money to buy politicians; more accurately, it’s that
they can buy policy, and specifically, tax policy,” said Jared Bernstein, a
senior fellow at the left-leaning Center on Budget and Policy Priorities who
served as chief economic adviser to Vice President Joseph R. Biden Jr. “That’s
why these egregious loopholes exist, and why it’s so hard to close them.”
“We do have two different tax systems, one for normal
wage-earners and another for those who can afford sophisticated tax advice,”
said Victor Fleischer, a law professor at the University of San Diego who
studies the intersection of tax policy and inequality. “At the very top of the
income distribution, the effective rate of tax goes down, contrary to the
principles of a progressive income tax system.”
Two decades ago, when Bill Clinton was elected president,
the 400 highest-earning taxpayers in America paid nearly 27 percent of their
income in federal taxes, according to I.R.S. data. By 2012, when President
Obama was re-elected, that figure had fallen to less than 17 percent, which is
just slightly more than the typical family making $100,000 annually, when
payroll taxes are included for both groups. From Obama’s inauguration through
the end of 2012, federal income tax rates on individuals did not change
(excluding payroll taxes). But the highest-earning one-thousandth of Americans
went from paying an average of 20.9 percent to 17.6 percent. By contrast, the
top 1 percent, excluding the very wealthy, went from paying just under 24
percent on average to just over that level.
Each of the top 400 earners took home, on average, about
$336 million in 2012, the latest year for which data is available. If the bulk
of that money had been paid out as salary or wages, as it is for the typical
American, the tax obligations of those wealthy taxpayers could have more than
doubled. Instead, much of their income came from convoluted partnerships and
high-end investment funds. Other earnings accrued in opaque family trusts and
foreign shell corporations, beyond the reach of the tax authorities. The
well-paid technicians who devise these arrangements toil away at white-shoe law
firms and elite investment banks, as well as a variety of obscure boutiques.
But at the fulcrum of the strategizing over how to minimize taxes are so-called
family offices, the customized wealth management departments of Americans with
hundreds of millions or billions of dollars in assets. Family offices have
existed since the late 19th century, when the Rockefellers pioneered the
institution, and gained popularity in the 1980s. But they have proliferated
rapidly over the last decade, as the ranks of the super-rich, and the size of
their fortunes, swelled to record proportions. Family offices, many of which
are dedicated to managing and protecting the wealth of a single family, oversee
everything from investment strategy to philanthropy. But tax planning is a core
function. While the specific techniques these advisers employ to minimize taxes
can be mind-numbingly complex, they generally follow a few simple principles,
like converting one type of income into another type that’s taxed at a lower
rate.
Organizing one’s business as a partnership can be lucrative
in its own right. Some of the partnerships from which the wealthy derive their
income are allowed to sell shares to the public, making it easy to cash out a
chunk of the business while retaining control. But unlike publicly traded
corporations, they pay no corporate income tax; the partners pay taxes as
individuals. And the income taxes are often reduced by large deductions, such
as for depreciation. The IRS is not allowed to collect underpaid taxes directly
from these partnerships, even those with several hundred partners. Instead, it
must collect from each individual partner, requiring the agency to commit
significant time and manpower. The budget deal that Congress approved in
October allows the I.R.S. to collect underpaid taxes from large partnerships at
the firm level for the first time — which is far easier for the agency — thanks
to a provision that lawmakers slipped into the deal at the last minute, before
many lobbyists could mobilize. But the new rules are relatively weak — firms
can still choose to have partners pay the taxes — and don’t take effect until
2018, giving the wealthy plenty of time to weaken them further.
The wealthy can also avail themselves of a range of customized
tax deductions that go far beyond writing off a home office or dinner with a
client. One strategy is to place income in a type of charitable trust,
generating a deduction that offsets the income tax. The trust then purchases
what’s known as a private placement life insurance policy, which invests the
money on a tax-free basis, frequently in a number of hedge funds. The person’s
heirs can inherit, also tax-free, whatever money is left after the trust pays
out a percentage each year to charity, often a considerable sum.
The inheritance tax has been a primary target. In the early
1990s, a California family office executive named Patricia Soldano began
lobbying on behalf of wealthy families to repeal the tax, which would not only
save them money, but also make it easier to preserve their business empires
from one generation to the next. The idea struck many hardened operatives as
unrealistic at the time, given that the tax affected only the wealthiest
Americans. But Ms. Soldano’s efforts — funded in part by the Mars and Koch
families — laid the groundwork for a one-year elimination in 2010. The tax has
been restored, but currently applies only to couples leaving roughly $11
million or more to their heirs, up from those leaving more than $1.2 million
when Ms. Soldano started her campaign. It affected fewer than 5,200 families
last year.
For the ultra-wealthy, “our tax code is like a leaky
barrel,” said J. Todd Metcalf, the Democrats’ chief tax counsel on the Senate
Finance Committee.