This page contains a single entry from the blog posted on October 6, 2008 3:13 AM. The previous post in this blog was Will the bailout "work"?. The next post in this blog is Is the end near for City of Portland credit card finance?. Many more can be found on the main index page or by looking through the archives.

E-mail, Feeds, 'n' Stuff

Monday, October 6, 2008

Palin per diems: State didn't follow its normal policies

Yesterday we posted our analysis of Sarah and Todd Palin's 2006 and 2007 tax returns. We concluded that the travel payments the Palins received for their children's travel were definitely taxable income, and that since the Palins did not report the kids' payments, they owe substantial back federal taxes (in the neighborhood of $6,000) on them.

And their tax deficiency could run substantially higher. For example, we left open the possibility that the amounts paid for Sarah Palin's own travel might have been taxable. We noted that the issue probably turned on whether the Anchorage area (including Wasilla) was her "tax home," as opposed to Juneau. If Anchorage was her "tax home," per diem allowances and other amounts paid for her expenses in Anchorage or Wasilla would be taxable, thus increasing her tax liability substantially.

An alert reader, Richard J. Koppel, an attorney in southern California, points out that the State of Alaska had already issued a policy paper on this very tax issue, years before Palin became governor. The state concluded then that long-term per diems (such as those now being paid to Sarah Palin) were taxable, because when an employee spends a majority of his or her time over an extended period in a given location on state business, that location becomes his or her "tax home," even though it is not his or her official Alaska "duty station." The state apparently did not follow these established policies in the case of the governor, because if it had, her long-term per diems would have appeared on her W-2 wage statement filed with the IRS.

The official memo, apparently written by someone in the state's Finance Division, is entitled "Income Tax Implications of Long-Term Per Diem." That document, bearing dates in both 2000 and 2004, appears on the state website, here. The most pertinent passage is this:

If the employee does not work at their PCN duty station at least 50% of the time (vacation time does not count toward time worked at the duty station), then the State must first consider whether the employee works the majority of their time at another location, making this location their principle place of business. If they do, this other location becomes their tax home. This occurs in situations where an employee is in long-term travel status at this other location for a period of time which is expected to exceed one year. It can also occur when a seasonal employee is assigned to a project or series of projects in one general location for two or more years in a row.

Please note, per diem becomes taxable at the point at which it is determined the assignment will last one year or more. The following are a couple of examples to illustrate:

• An employee is assigned to a project which is expected to last 16 months. Since we know from the beginning that the project assignment will place the employee at this location for more than one year, all per diem paid to the employee at this location (starting with the first day) will be taxable.

• An employee is assigned to a project which is expected to last four months. At the end of the second month, the employee is assigned to a subsequent project which is expected to last ten months. Because the total time it is expected the employee will be assigned to this location will exceed one year, all per diem becomes taxable at this location starting with the third month.

We have discussed this issue with the IRS and the following summarizes the IRS comments on the one-year rule and taxable per diem.

• One year does not necessarily mean 365 consecutive days.

• Interruptions generally do not start the clock over again on the one-year rule unless they are significant (significant was not defined, but IRS rulings indicate seasonal shutdowns are not considered significant).

• The one-year rule requires the employer to look at the total time spent at the "temporary" location. If an assignment to a location is expected to last more than one year, or actually lasts longer than one year, then any per diem paid at this "temporary" location is considered compensation. The one-year rule applies beginning with the date the employer determines the assignment will exceed one year. Also, the IRS looks at “location” broadly and encompasses a general vicinity (generally a 50 mile radius).

• The remoteness of the duty assignment does not change the application of the one-year rule.

• The fact the employee may be incurring duplicate lodging expenses does not change the rule. The IRS has long ruled that duplicate expenses have no bearing on the determination of the tax home.

• With regards to seasonal employees, if the employee is assigned to the same general location two years in a row, or would otherwise meet the one-year rule, per diem paid would be considered compensation.

• The employer essentially has an obligation to determine the employee's tax home.

This document is a potential blockbuster. It establishes two important facts:

(1) The state has long acknowledged that it had a duty to determine whether Palin's "tax home" was really Anchorage and Wasilla, a conclusion which would have required that her per diems be reported as taxable income.

(2) The state knew that when an employee is planning to spend a majority of her time on state business in the Anchorage area for a four-year period, Anchorage is the employee's "tax home," and per diems for time spent in the "tax home" are taxable income.

So why didn't Alaska officials follow the state's official policies and report Palin's per diems as taxable income on her W-2? Only they can answer that.

And how can the tax lawyer whose opinion was released by the McCain campaign on Friday say that "no special consideration was ever given to Governor Palin, notwithstanding that she was the governor of Alaska"?

UPDATE, 10/7, 4:40 p.m.: The state is now "reviewing" the situation in light of the questions raised by this post. As well it should.

Comments (34)

hmmm....you are a lot more rabid about this on your blog than you are on the radio. Yesterday with Kremer, you all but said this whole thing is no big deal.

Rabid? Nice, objective word choice. Here's how it looks to me, Butch: a fortuitous three-way intersection of the Blogmeister's profession, hobby and news reporting activities where he draws a curtain back on political corruption relevant to our voting choices next month.

I meant by comparison to his stance on the radio yesterday. Yesterday it came across as no big deal. Just a typical middle class family turning in their W2's to H&R Block and paying their taxes accordingly. Now suddenly its a political scandal.

When does the investigation of Obama's home purchase get started? Tony Rezko anyone?

Ron has a point. Palin's accomplishments look a lot like George W. Bush's. That's not comforting.

Jack, may I just say that YOU ROCK!?!

Seriously, you've made what normally seems impossibly arcane understandable and relevant in terms that we can all understand.

Win, lose or draw in the political sense, you've done your readers a service.

My comments on the radio yesterday were made before I found out about the state apparently violating its own published policies in keeping the travel amounts off her W-2. That changes this story considerably.

Jack, have you done any investigation of the Obama home purchase and the apparent discrepancy in valuation and the purchase arrangements?

I had to read this twice, because I'm slow, but it seems pretty damn straightforward to me!

But, Jack, (slightly OT), why is there a sponsor link to the McCain-Palin campaign site in your right-hand sidebar? I actually clicked on it to make sure it wasn't a joke (it's not).

Lee, as you probably know, other organizations have looked into that, repeatedly. Here are a couple of the links to Factcheck.org.



I know the Obama home purchase details backward and forward as well as the previous and subsequent transaction history of the property and the infamous side lot. I lived in the neighborhood for years and am a real estate professional familiar with real estate pricing in South Kenwood at the time of the transactions.

If you looked at the facts as shown in recorded documents, as related by the broker and sellers, and as reflected in the MLS, and the buyers and sellers were just everyday Smiths and Does, no one would think that the Obama's home purchase was remotely interesting. Nothing about the Obama purchase, on its face, reveals anything similar to the income tax matters put forth on this page.

why is there a sponsor link to the McCain-Palin campaign site in your right-hand sidebar?

That space is controlled by Google ads, and I don't vouch for the messages there.

"That space is controlled by Google ads"

I thought it must be something like that, but it's still a bit disconcerting, if not ironic, to see her big old face smirking right at you...

I just finished my second telcall of the day with a gentleman with a wire service.

At his request, I foolishly called him back after reviewing IRC 162(a), IRS Tax Topic 511, and rev. ruling 75-432. While he had seemed intent on trying to get me to reverse my call on the taxability of Palin’s per diem, I think he finally got it, that the most important factor in determining Palin’s principal place of business, when you have more than one place of business, is time spent in any location. Here, 312 out of 19 months in Anchorage pretty much says it all. The other two factors mentioned in 511 for consideration, I opined, didn’t seem applicable here; degree of activity and revenue derived from work at a location.

The gentlemen seemed stuck on the one year rule. My position being that it really has nothing to do here, one you determine that Palin’s tax home is Anchorage.

The young fellow brought up the over night rule. If I understood correctly, many of the Governor’s trips lasted for less than a day. I advised him that I hadn’t given much thought to it, but there is an issue as to whether Palin was in travel status for purposes of the deductibility of her per diem

Again, I emphasized that there are to main issues and this time I think the interviewer got it. Palin’s tax home is Anchorage, in which case you needn’t considet the one year rule. Most importantly is why the State of Alaska failed to follow its own policy? Does it apply one policy to the worker bees and another to the Queen, I mean Governor?

Comments? Have I got it all wrong?

A trustworthy source advises me that the State of Alaska is treating Governor Palin's expenses the same as it treats a legislature. Someone ought to take a look at IRC section 162(h), which codifies special provisions regarding the taxability of state legislator who make an election to be treated per the subsection.

(h) State legislators’ travel expenses away from home
(1) In general
For purposes of subsection (a), in the case of any individual who is a State legislator at any time during the taxable year and who makes an election under this subsection for the taxable year—
(A) the place of residence of such individual within the legislative district which he represented shall be considered his home,
(B) he shall be deemed to have expended for living expenses (in connection with his trade or business as a legislator) an amount equal to the sum of the amounts determined by multiplying each legislative day of such individual during the taxable year by the greater of—
(i) the amount generally allowable with respect to such day to employees of the State of which he is a legislator for per diem while away from home, to the extent such amount does not exceed 110 percent of the amount described in clause (ii) with respect to such day, or
(ii) the amount generally allowable with respect to such day to employees of the executive branch of the Federal Government for per diem while away from home but serving in the United States, and
(C) he shall be deemed to be away from home in the pursuit of a trade or business on each legislative day.
(2) Legislative days
For purposes of paragraph (1), a legislative day during any taxable year for any individual shall be any day during such year on which—
(A) the legislature was in session (including any day in which the legislature was not in session for a period of 4 consecutive days or less), or
(B) the legislature was not in session but the physical presence of the individual was formally recorded at a meeting of a committee of such legislature.
(3) Election
An election under this subsection for any taxable year shall be made at such time and in such manner as the Secretary shall by regulations prescribe.
(4) Section not to apply to legislators who reside near capitol
For taxable years beginning after December 31, 1980, this subsection shall not apply to any legislator whose place of residence within the legislative district which he represents is 50 or fewer miles from the capitol building of the State.

The governor is not a state legislator.

One has to ask why the State of Alaska or anyone is graping at patently inapplicable straws such as 162(h) unless they realize that they are in trouble regarding Palin's tax returns.

I'm not an accountant or an attorney but........

The capitl of Alaska is in Juneau, 600 miles away from SouthCentral Alaska which is home to half the state's population. Juneau is isolated and closer to Seattle than Anchorage. Over the years, the voters have objected to the Legislature spending months and millions of dollars hidden away from their constituents. This situation has proven to lead to an environment where corruption can thrive so over the years, the citizens have imposed limits on session length. This, in turn, means that when the Legislature is not in session, there is nothing going on in Juneau and a number of State departments and functions have moved to Anchorage, a process known in Juneau as 'capitol creep.'

As Governor, Sarah Palin needs to be in Juneau during the session - but the public wants her in Anchorage the rest of the year. Her employer, the State, can't switch her duty station back and forth every time the legislative session ends so either Juneau is her duty station and she gets per diem in Anchorage.......or Anchorage is her duty station and she collects per diem in Juneau. Given that she spends about half her time in each, it really doesn't matter.

Thanks for some local knowledge. I don't know about Alaska governors historically spending half their time in Juneau and the other half in Anchorage, but in the Governor's case she is spending 75% of the time in Anchorage.

Nor do I believe that her travel expenses would be the same for her time spent in Juneau as it is for working in Anchorage. She is provided with a home at state expense in Juneau; the governor's mansion. Fact is, State of Alaska bears the cost of maintaining the manison, while Palin is charging for per diem for time spent in Anchorage.

Federal income tax is clear in at least one aspect. It does not permit one to have two tax homes. You are only entitled to receive nontaxable travel expenses while you are away from your tax home.

Palin failed to pay taxes on travel expenses incurred while she was at her tax home. To make things worse, it looks as though someone in the Division of Finance of the State of Alaska may have assisted Palin in a scheme to evade paying her taxes. Note I said "evade" and didn't say "avoid". One is legal and the other criminal. If she was assisted in evading taxes by someone in the Department of Administration or its Division of Finance, we are talking conspiracy to commit tax fraud.

So much for Sarah Palin; anti corruption crusader/reformer.

A couple of random points: The State letter on per diem policy quoted earlier was prepared in 2004, several years before Palin took office.

The Legislative sessions have gotten shorter and shorter as voters have imposed time limits. Sessions used to run over 180 days but were cut to 120 and then 90 days. As a result, the Governor, be it Palin or her predecessors, have spent increasing amounts of time in Anchorage.

Why not simply move the capital to Anchorage? Been proposed often but voted down every time.

And this brings up another point: When an elected official is granted the use of a residence, is that ever reported as income? Does George Bush get a 1099 for the White House? What about other state governors, do they declare the homes they use for free, the food that is prepared?

I don't see why those Alaska people should be paying federal taxes at all. We should be paying them for keeping an eye on Putin.

When an elected official is granted the use of a residence, is that ever reported as income? Does George Bush get a 1099 for the White House? What about other state governors, do they declare the homes they use for free, the food that is prepared?

Meals and lodging furnished on the business premises of the employer aren't taxable in certain circumstances. Sec. 119 of the tax code says so -- and it expressly covers family members of the employee. It may be that the official mansions and food that the President and governor get can be excluded under that provision.

FWIW, the subject of Alaska per diem has been raised before and I was able to find 2 audits done when Democrat Tony Knowles was Governor:



I concede that the payments themselves may have been perfectly legal.

But they were taxable, and she didn't pay her taxes on them.

And the state's official policy says there was supposed to have been federal tax withholding and reporting to the IRS. Which there wasn't.

JimAK - Take a look at this comment Jack Bogdinski, the owner of this blog, made here a few weeks ago.

"Ignorance of the tax law is a defense to a criminal prosecution, but the taxpayer would still owe the tax, interest, and possible penalties.

How the employer characterizes reimbursement of nondeductible personal expenses is irrelevant.

There are some special rules for members of the U.S. Congress and for state legislators, but not for governors.

And it is not as though this is a new issue. As reported in the Post:

In the past, per diem claims by Alaska state officials have carried political risks. In 1988, the head of the state Commerce Department was pilloried for collecting a per diem charge of $50 while staying in his Anchorage home, according to local news accounts. The commissioner, the late Tony Smith, resigned amid a series of controversies.
"It was quite the little scandal," said Tony Knowles, the Democratic governor from 1994 to 2000. "I gave a direction to all my commissioners if they were ever in their house, whether it was Juneau or elsewhere, they were not to get a per diem because, clearly, it is and it looks like a scam -- you pay yourself to live at home," he said.

Knowles, whose children were school-age at the start of his first term, said that his wife sometimes accompanied him to conferences overseas but that he could "count on one hand" the number of times his children accompanied him.

"And the policy was not to reimburse for family travel on commercial airlines, because there is no direct public benefit to schlepping kids around the state," he said. The rules were articulated by Mike Nizich, then director of administrative services in the governor's office, said Knowles and an aide to another former governor, Walter Hickel.

Nizich is now Palin's chief of staff. He did not return a phone call seeking comment. The rules governing family travel on state-owned aircraft appear less clear. Knowles said he operated under the understanding that immediate family could accompany the governor without charge.

But during the Murkowski years, that practice was questioned, and the state attorney general's office produced an opinion saying laws then in effect required reimbursement for spousal travel.

Posted by Jack Bog | September 10, 2008 10:31 PM"

Remember that whether travel reimbursement is authorized under Alaska law is one thing, but the federal taxation of those payments is another.

JimAK is most likely a RNC or McCain campaign surrogate. He's commented on this position before, using the same specious arguments, in the NY Times.

They boil down to:
1) Alaska can legally pay the Governor what it wants. (True)
2) Alaska can decide if federal tax laws apply to their payments. (False)

On the face of it, per diem reimbursement for lodging while occupying the family residence seems like graft. If the state wants to pay her for that, fine.

The basic idea behind the tax code regarding business travel expenses is that if employees are required to travel for their jobs, any reasonable compensation tied to that travel should not be taxable. Reasonable can be determined by standard per diem rates, or actual expenses.

Compensation for staying in your own house certainly doesn't meet the intent, or the letter of the law. She's in trouble on this one.

She's in real trouble on not reporting as income her children's travel reimbursement, or the value of same. This was essentially decided in 1972.

I remember a few years back when NBA refs got in hot water regarding business travel. The scam in that case was that their contract required first class tickets, but the refs were trading the tickets in for coach and pocketing the difference. They didn't report the imputed income to the IRS (the difference between their actual expense and what they were given as reimbursement).

My own read is the McCain campaign did not have the time or energy to devote to this issue, and figured that the election would be over before the chickens came home to roost (hehehehe...)

Sometime after the election, the Palins are either going to cough up a substantial amount of money in unpaid taxes, penalties, or perhaps fines. Or even better, they go to trial. I guess when you think that paying taxes is unpatriotic, this is what happens.

Don't mess with the IRS...

Er, so when has having a million dollars called middle class?

Another Palin lie. She knows how much she has. She can't deny that!

"The Drum Major Institute...places the range for middle class at individuals making between $25,000 and $100,000 a year."


Jim, I do have a question after reading IRS Pub 511. There is an example that seems to be controlling, but I wonder if it is?

A taxpayer is employed in Milwaukee, and lives in Chicago. His tax home is Chicago, so any reimbursements of living expenses is taxable. His travel on weekends to his family home in Chicago is not for work, so these expenses are also not deductible.

Here, the IRS differentiates between a family home, and a tax home, and in each case, expenses are not deductible.

Now, hypothetically, if Governor Palin had stayed in downtown Anchorage at a Marriott Suites, would she have a case her per diem is not taxable?

Is there a difference between a family home and a tax home for IRS purposes?

Associated Press just released an article taht begins " Gov. Sarah Palin's practice of charging the state when she stays in her home must be reviewed to determine if she should pay taxes on the payments, state Finance Director Kim Garnero said Tuesday."

The link to the Associate Press article is http://ap.google.com/article/ALeqM5gp77q25DPCEibEdOBHWiKkz5EVWQD93LTUNG0

Brecenridge, the reporter, seems to have a handle on the situation. I posted the first paragraph. I encourage you to read the full article, but its last paragraph says a lot.

"No special consideration was ever given to Governor Palin, notwithstanding that she was the governor of Alaska," Olsen wrote in a three-page letter outlining his review of the family's tax returns."

My apologies for mooshing Blackledge into Brecenridge. I even misspelled my own name.

Following up on the Blackledge article. The State of Alaska seems to admit that the number of days spent working in a location determines Palin's tax home. It is trying to spin the rules, by claiming that in her case you use a 365 day work year, because she is on call always.

Nice try, but if you are going to play it that way, then you don't just consider the days she was actually working in Anchorage, but you also have to consider the days she wasn't actually working and was in Anchorage or Wasilla (they are the same geographic area) Perhaps shooting moose.

"Palin listed 157 days spent in Anchorage during 2007 on her travel forms. Garnero said Palin's work place as governor is considered to be Juneau, so she filed for the per diem payments when she stayed at her home in Wasilla.That's something we need to confer with the governor's office on," said Garnero, who said she was not aware of the number of days Palin spent working in Anchorage.


A typical work year for most employees is 260 days in a calendar year, but Garnero said the governor's staff told her Tuesday that her work year is considered 365 days because she is on call around the clock. That would mean Palin spent about 43 percent of last year working in Anchorage, and would allow the governor to continue receiving per diem payments that aren't taxed when she stays at her home, Garnero said."

In determining her "tax home," if she's "working" 365 days a year, the relevant fraction would be the total number of days spent in Anchorage-Wasilla divided by 365. From what I have read, that was much more than one half, and therefore Anchorage-Wasilla is her "tax home." Her per diems are thus taxable income.

The Alaska bureaucrats will probably twist themselves into pretzels to argue that they didn't violate their own policies. But their argument rings hollow. In the terms of their own memo, they say:

If the employee does not work at their PCN duty station at least 50% of the time (vacation time does not count toward time worked at the duty station), then the State must first consider whether the employee works the majority of their time at another location, making this location their principle place of business. If they do, this other location becomes their tax home.

If she's working 24/7, the question under the state's memo is how many total days she was working (i.e., physically present) in Anchorage-Wasilla -- not just the number of days she put in for per diem for. Under that analysis, she loses.

My take is that Garnero is either clueless or a liar. Whether or not Palin was in Anchorage/Wasilla more or less than 50% of the year, regardless if it is a normal work year or the full calendar year is irrelevant. The key is the location at which you less than half the time at your duty station. If you do, your tax home is where you spend most time..

Notice nothing was said as to how many days Palin is in Juneau. My guess is it is a lot less than 50% of the year and a lot less than the number of days spent in Juneau/Wasilla.

Ultimately, this is just a stall. McCain-Palin knows it isn't going to be easy for outsiders to find out how many non-working-but-working-on-call days Palin was in any particular location and the name of the game is to put judgment day off until after Nov 4.

The Alaska Finance Division Director is now trying to excuse her office's failure to correctly designate Palin's tax home on the fact that Governor doesn't have a supervisor.

"State rules for employees who receive a large amount of per diem payments are difficult to apply to Palin because she has no supervisor monitoring how long she works at another state office, Garnero said."

Is she serious about no one knowing where the Governor of the state was on any particular day. Her secretary didn't know, the Chief of Staff did't know, and nobody else knew, because they could easily have kept a daily log of where she was. For that matter, Palin could have turned in a monthly log of where she was on any paricular day. That or Palin could have notified Junea of where she was via one of Palin's of the record Yahoo accounts.

This probably closes the door on any fines regarding the per diem. And once the correct determination has been made, Palin will owe the back taxes and interest.

I still think it's wrong to be paid tax-free for staying in your own home. It's been reported that her per diem was for lodging, not meals and incidentals. What's the expense of staying in the family home? Did she pay Todd rent? Don't they already deduct mortgage interest?

Unless there's something else going on (like Palin directing Garnero on how to handle her per diem) the evasion case is probably dead as well.

Still... there is the matter of compensation for family travel. That's the next shoe to drop.

Clicky Web Analytics