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For ten boom-powered years at the turn of the twenty-first century, some of America's most prominent law and accounting firms created and marketed products that enabled the very rich -- including newly minted dot-com millionaires -- to avoid paying their fair share of taxes by claiming benefits not recognized by law. These abusive domestic tax shelters bore such exotic names as BOSS, BLIPS, and COBRA and were developed by such prestigious firms as KPMG and Ernst & Young. They brought in hundreds of millions of dollars in fees from clients and bilked the U.S. Treasury of billions in revenues before the IRS and Justice Department stepped in with civil penalties and criminal prosecutions. In Confidence Games, Tanina Rostain and Milton Regan describe the rise and fall of the tax shelter industry during this period, offering a riveting account of the most serious episode of professional misconduct in the history of the American bar. Rostain and Regan describe a beleaguered IRS preoccupied by attacks from antitax and antigovernment politicians; heightened competition for professional services; the relaxation of tax practitioner norms against aggressive advice; and the creation of complex financial instruments that made abusive shelters harder to detect. By 2004, the tax shelter boom was over, leaving failed firms, disgraced professionals, and prison sentences in its wake. Rostain and Regan's cautionary tale remains highly relevant today, as lawyers and accountants continue to face intense competitive pressure and regulators still struggle to keep pace with accelerating financial risk and innovation.
- Sales Rank: #347143 in Books
- Brand: Rostain, Tanina/ Regan, Milton C., Jr.
- Published on: 2014-04-25
- Original language: English
- Number of items: 1
- Dimensions: 9.00" h x .88" w x 6.00" l, 1.26 pounds
- Binding: Hardcover
- 424 pages
Review
Confidence Games is a lively and deeply informed human story of what went on inside the big legal and accounting firms before, during, and after the tax shelter scandals that made front page news at the turn of the millennium. Rostain and Regan give readers a solid primer, translating arcane principles of accounting. Then they add a human touch with telling details mined from a public record few others have explored.
(David Cay Johnston, Pulitzer Prize-winning tax journalist and Syracuse University law and accounting lecturer)Few of us imagine that we will cross the line in our professional lives -- and be jailed, fined, or both. But Confidence Games tells a sobering tale of individual weakness and institutional and regulatory failure that allowed esteemed law firms, accounting firms, and multinationals to reap illegal profits at the expense of the nation.
(Diane Ring, Professor of Law, Boston College Law School, and coauthor of Ethical Problems in Federal Taxation)This book manages what many might think impossible: it's a page-turner about tax. It shows what can happen when very smart people unconstrained by ethics invent and use ingenious schemes. The history is fascinating in its own right, but it is also, unfortunately, a much-needed reminder of how gameable regulation can be.
(Claire Hill, Professor and James L. Krusemark Chair in Law, University of Minnesota Law School)Rostain and Regan have captured one of the most interesting -- and most troubling -- episodes in the checkered history of tax shelters. Their analysis raises critical ethical and policy questions about how we train, monitor, and discipline lawyers and other financial professionals today.
(Anne L. Alstott, Jacquin D. Bierman Professor in Taxation, Yale Law School) About the Author
Tanina Rostain is Professor of Law and Research Director of the Center for the Study of the Legal Profession at Georgetown Law School. Milton C. Regan, Jr., is Codirector of the Center for the Study of the Legal Profession and McDevitt Professor of Jurisprudence at Georgetown Law School.
Most helpful customer reviews
7 of 7 people found the following review helpful.
The authors do a great job of mining some of the big themes there
By John A. Townsend
I represented a KPMG defendant in the big criminal prosecution, so I knew, from that perspective, a lot of the matters discussed in the book. From that perspective, I wasn't sure what I would learn new from the book. The authors do a great job of mining some of the big themes there. They get the details pretty much correct, as best I can see it. But they deal with larger issues -- particularly, what was the mission drift that permitted big accounting and law firms do these deals when, in the past, they would not have touched them with the proverbial ten foot pole. Of course, it was greed and a type of groupthink and dispersion of responsibility that permitted the players to keep pushing the envelope -- ultimately across the line. Excellent read. History will repeat itself. These cycles will come back, particularly as big accounting firms and law firms look for ever increasing revenue and profits per equity partner.
1 of 1 people found the following review helpful.
A Must Read!!
By stefan f tucker
This book -- subtitled “Lawyers, Accountants, and the Tax Shelter Industry” -- should be required reading for, first and foremost, all members of Congress, irrespective of the side of the aisle they occupy, and, second, those pundits who seem to have nothing better to do than criticize, often in the most negative and vituperative manner, the Internal Revenue Service.
As the authors point out, in a manner that flows so smoothly that one never feels bogged down with minutiae, but rather wishes to read on and on late into the night, the great mass of the taxpaying public, who in large measure pay their Federal and state income taxes via withholding, were effectively hostage to the tax shelter games undertaken by very well-to-do taxpayers who were seduced by lawyers and accountants, as well as bankers and financial institutions. Yes, lawyers, the very professionals who, by their Codes of Professional Responsibility, are tasked with protecting the public from predators -- even (and importantly) those who have the masks/facades of great respectability by virtue of being members of the Bar and often of highly respected law firms, and accountants, who have similar marks of respectability as members of the American Institute of Certified Public Accountants.
The authors start their tale rolling forward by pointing out that in the late 1990s the IRS was under scrutiny by Congress due, in part, to claims at Senate hearings on alleged misconduct by the IRS made by various taxpayers, including a taxpayer who reported that the IRS had instigated an armed nighttime raid on his house. A year after the hearings were held, the authors note that it became “clear that the most serious charges against the IRS were grossly exaggerated and, in many cases, simply false.” Nonetheless, in 1998 bills captioned the “IRS Restructuring and Reform Act” were passed by both the Senate and the House, and, after the two versions were reconciled, the Act was signed into law by President Clinton.
The Act mandated that the IRS was to become more user friendly, which was interpreted to mean that the IRS had to become more “service oriented” and less enforcement focused. The authors sum up the impact of the Act as follows: “Given the risks of taking a hard line with recalcitrant taxpayers, the best strategy for enforcement agents was to be nice and keep their heads down. ‘Don’t aggravate taxpayers,’ one agent was instructed by his manager. xxx Talking to a reporter, one collection agent said: ‘Please don’t call us tax collectors in the newspaper. We don’t collect taxes anymore. We aren’t allowed to.’” [footnotes omitted]
With this lead-in as to the IRS under attack, the authors flow from one fascinating Chapter to another, explaining how wealthy individuals and corporations, urged by banks and other financial institutions to go into these tax shelters, marketed by accounting firms with the support of lawyers, took advantage of the IRS and avoided paying large amounts of tax. Interestingly, not only did the banks and financial institutions encourage their clients to “invest” in these tax shelters in order to earn massive fees for simply making the introductions to the accounting firms selling the shelters, but also many of the banks and financial institutions entered into tax shelters on their own.
As the authors go forward, they reveal that the accounting firms were selling the tax shelters, but so often the lawyers -- in big, prestigious, well-known and respected law firms, based in New York, Washington, DC, Chicago and other large cities -- were designing the shelters. And, most importantly, these lawyers were giving “legal opinions” to the shelter purchasers that the purchasers were led to believe would protect them from being challenged by the IRS on audit and, even if challenged, would mean that there would not be penalties if disallowed, only the income taxes that would have been owed in any event plus interest on the amount of income taxes owed.
As it turned out, these “legal opinions” were, in significant part, cookie cutters, based on assumed facts, without in any way being attuned to the specific taxpayer or the actual logistics of the tax shelter itself from its inception. Moreover, in many cases, the “legal opinion” was issued months after the tax shelter was entered and, further, often months after the tax return was filed for the tax year in which the shelter was acquired. This, of course, meant that the taxpayer could not claim that the legal opinion was in fact relied on in deciding to enter the shelter.
Ironically, too often these wealthy taxpayers were seeking to shelter long-term capital gains, which would have been taxed at far lower rates than compensation or other ordinary income. And they were paying really big fees for the shelters and the legal opinions.
All of this blew up, as the authors show, when the IRS decided that, in spite of its lack of resources, it had no choice but to go after these shelters, which, as the courts, in support of the IRS, almost unanimously articulated, had no economic substance. And so the conniving assemblage of lawyers, accountants, banks and other financial institutions that was the tax shelter industry received their come-uppance.
As George Santayana said so well and succinctly: “Those who cannot remember the past are condemned to repeat it.” Now, we are again seeing the IRS as a scapegoat, in this case because of some missteps by some persons in connection with tax-exempt foundations. We all must admit that the IRS is not perfect, but neither are those of us who chastise and seek to punish the IRS for its missteps. The American public needs a strong tax-collecting agency if the Federal government is to fund its financial needs (even without focusing its financial wants -- such as improved infrastructure or seeking to save the world from despots).
“Confidence Games” should, indeed must, be read in order to understand how an understaffed and beleaguered IRS may – due to the ability of seemingly respectable “confidence persons” in white shirts and blouses, blue suits and expensive shoes, who are clever and seeking the big dollars – cost the United States billions of dollars in lost revenues in the decades to come, moving the country to a seriously weakened position in the world, militarily and economically.
Stefan F. Tucker
2 of 2 people found the following review helpful.
Four Stars
By whalin
A little difficult to get into and preachy at the end, but spectacular reporting in the middle.
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