David D. Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: one weird trick.

In an ideal world, we would be able to trust the tax tips and advice widely posted on social media, but misinformation has become so prevalent that the IRS felt the need to issue an alert. One of its "Dirty Dozen" is a warning to taxpayers to be wary of advice seen on social media.

So why has misinformation become such a hot topic for the IRS, and how can the IRS combat this? In a minute we'll hear more about this from Tax Notes Capitol Hill reporter Cady Stanton. 

Cady, welcome to the podcast.

Cady Stanton: Thanks for having me.

David D. Stewart: To start off, I mentioned in the intro the IRS Dirty Dozen. For our listeners' benefit, what is that?

Cady Stanton: Absolutely. The Dirty Dozen is an annual list compiled by the IRS of common scams for both taxpayers and tax practitioners to be aware of during filing season.

David D. Stewart: Now, I understand you recently talked to someone about misinformation on social media. Could you tell us about your guest?

Cady Stanton: I spoke with Samuel Brunson, who is a professor at Loyola University Chicago School of Law and a researcher in tax law.

David D. Stewart: What sort of things did you talk about?

Cady Stanton: We spoke about social media tax information scams, how they affect taxpayers, and how the IRS has responded to them.

David D. Stewart: All right, let's go to that interview.

Cady Stanton: Well, thanks for joining us on the podcast, Sam.

Samuel D. Brunson: Well, thanks for having me.

Cady Stanton: Could you start by telling me a little bit about your background in tax and your understanding of the intersection of tax and social media?

Samuel D. Brunson: I am a tax law professor at Loyola University of Chicago. I practiced tax law for a number of years before I came here. My research largely surrounds nonprofits and religious organizations, but my interests largely surround Twitter.

I spend way more time than a human should on Twitter, and I have teenage children who adore TikTok. I use Instagram and Facebook to show pictures of my adorable children to my family. So social media is something that has become almost omnipresent, and so when my interest in tax and my interest in social media aligned, that makes for a fun discussion.

Cady Stanton: Absolutely. I guess to start off here, why do taxpayers and practitioners turn to social media for tax advice?

Samuel D. Brunson: I think in part because it's easy and it's available. We're used to at this point being able to get information online, and where that information comes from; once upon a time it was Yahoo or Google, but social media becomes advice from our friends or from people that we think that we've gotten to know. For the same reason that it played a big part in politics, for the same reason that it helps shape our worldview, I mean, there's no reason why tax wouldn't eventually show up there.

Cady Stanton: The IRS recently included tax advice scams on social media, including advice to misrepresent income on W-2 forms, as part of its Dirty Dozen list of tax scams, which is a list used to raise awareness for both taxpayers and professionals. Could you tell me a little bit about those specific scams that were in the Dirty Dozen list?

Samuel D. Brunson: The Dirty Dozen list warns about essentially things that are too good to be true, ideas that you can easily reduce your taxes or avoid paying taxes, that are spread on social media. I don't actually remember if it names social media in particular, but it doesn't really matter because this stuff is, from what I can tell, on all the social media.

Cady Stanton: Thinking about social media scams in particular, who profits from tax advice scams on social media?

Samuel D. Brunson: I mean, there isn't any direct profit that I can tell to the people, but I had my daughters be my research assistants and text me a number of TikToks the other day. And looking at them, a lot of these people seem to be influencers or would-be influencers who are trying to attract a bigger audience. So they're not necessarily directly selling anything.

One of them explicitly says, "Hey, my accountant would kill me because I'm giving away the information that I paid for for free." So he's not trying to directly monetize the fact that he's giving you this information, but he's trying to create interest and monetize his social media presence in whatever way social media influencers monetize social media presence.

That's not everyone. There's someone else who gives a minute-and-a-half spiel about a half-dozen different things. He seems to be selling some sort of, "Come back to me, and I talk in detail about all of these things." I have to admit, I am not a huge TikTok fan, so I didn't bother following up to see if this is an actual sales thing or if it's just other free advice.

So there may be a way that some people are monetizing their advice by directly selling it in ways that taxation evasion scams have historically been sold, once upon a time Xerox sheets, now whatever you do for social media. But a lot of the people, it looks like they're trying to build an audience, and they're trying to build an audience of people interested.

I always tell my students tax is interesting. They may or may not agree, but tax is at the very least eye-catching, especially when someone says, "Hey, you can use this one simple trick to not pay taxes."

Cady Stanton: And do the scams being on social media specifically as a platform make it more complicated to address them?

Samuel D. Brunson: That actually strikes me as one of the problems with these things on social media, because what I was looking at, some of them were flat-out wrong. I don't want to say they were lying because lying requires some sort of knowledge, and as we all know, tax is an esoteric set of knowledge. But some of the things were flat-out wrong. Some of them really weren't. They were legitimate things but lacking the context that you need to understand.

One of the big ones I saw was you can buy a car that weighs more than 6,000 pounds, less than 12,000 or 14,000 pounds, and write it all off in the first year as a tax deduction under section 179. I learned early on in my career that if you try to interest people, you don't say section numbers of the code, but section 179 seems to be a favorite two words for these TikTok influencers.

They're both right and wrong. They're wrong that 179 lets you deduct the full amount, there's actually a limit. I think it's $25,000 adjusted for inflation on the amount that you can expense under section 179. Under bonus depreciation, by contrast, you could do the whole thing.

But even though the guy says you can write off the cost of a car that you use for your business, he doesn't go into any detail, and he leaves out the intricacies of what is trade or business. He at least hints that all you have to do is buy a big enough car and claim that you use it in your business and that's good enough.

Again, tax people all know that that isn't enough. But [to] nontax people, this seems to be an authoritative guy. He says he did it himself. And so if you're inclined to believe him because he said other things that you like, or because you tend to believe TikTok, or because it really sounds great that you can buy a car and deduct the whole price of the car, he hasn't given us the context that we would need to actually be able to do that.

Cady Stanton: It's interesting what you said, too, just given the complicated nature of the tax code, who are the people who are most vulnerable to falling victim to these kinds of tax advice scams on social media, and why is that the case?

Samuel D. Brunson: My first impulse, especially on TikTok, would be to say young people, but I don't think that young people are really — I mean, he talked about buying a $125,000 Escalade, and I don't think most young people, 20-somethings, are buying $125,000 cars.

But at the very least it gets in their heads. Maybe they say something to their parents. I would say probably the most vulnerable people or the people who are aware enough of the news to know that there are people who get good tax deals, that there are people who can afford to pay for tax advice and reduce their taxes.
They may not understand what that means, but they've heard about Amazon and Jeff Bezos paying nothing in taxes or Elon Musk or whomever the rich person is, and they feel bad about it and they want in on it, but they don't have the money to go to their tax accountant, tax attorney, and say, "How can I reduce my taxes?" They're doing their own taxes on TurboTax, going to H&R Block, and they think: "Wait a second, I could do this thing that rich people do. I could save money, and I could do it by following this TikTok person."

And again, that assumption isn't entirely out of line. When I watch a TurboTax or an H&R Block ad on TV, they say: "We'll get you your maximum refund. We'll minimize the amount that you have to pay in taxes."
I mean, it's different because they're not saying, "You can use this one simple trick." But they're legitimate, trustworthy companies saying, "It's possible to reduce your taxes by doing the right things." So now I have people telling me, "These are the right things that you can do, and if you do these right things, you're reducing your taxes just like the big boys, just like the wealthy people."

Cady Stanton: For someone who might see a scam like this on social media that may be too good to be true, as you described, the IRS now has this listed in their Dirty Dozen to try to inform people about these scams. Could the IRS be doing more or working in different ways to try to reach taxpayers and practitioners and warn them about these scams?

Samuel D. Brunson: Yeah, I think so. I really like the IRS's Instagram and Twitter presence. But their Instagram and Twitter presence — I don't know if they have a TikTok presence or not — but it tends to be, "Keep your personal information safe," or "Tax day is coming." It tends, when I've seen it at least, to be more benign. I don't see a lot of the Dirty Dozen. I do occasionally see a, "If it's too good to be true, it probably is," kind of post, but they could take their social media presence and be more aggressive about it.

One of the things that one of my daughters found on TikTok that she didn't send to me, so I didn't have a chance to review it, but it was somebody responding to these claims on TikTok in the way that you do on TikTok, creating the split screen, the person says something, and then they say something back. I don't know if that's the right approach for the IRS, but that's a potential approach.

At the same time, the tax community, probably, many of us, it's a learning curve to learn how to appropriately use TikTok and Instagram and Facebook. But we could participate, too. We could see these and either respond or put out good information.

Because the thing is, there is good tax information on social media. I've curated my Twitter feed, and I follow some really good tax attorneys and some really good tax journalists and some really good tax academics. I mean, the difference is they don't give advice on social media, but when they discuss issues, they're discussing it correctly and they're contradicting and correcting bad advice and they're talking about the nuances and the strange things.

Nuance may be hard to sell in a minute-and-a-half video, but there are ways that the tax community probably should become more involved in this and probably should work to make sure that there's good information out there, too. I don't know how successful it will be. As we've seen in recent elections, it's really easy to get incorrect information to go viral.

The information that we don't know it's complicated might be a little bit harder, or we might have to do a better song and dance, use better production values, I don't know. But there is a place both for the IRS to do better and for tax professionals to engage and maybe do better.

Cady Stanton: Would you say, to reach that same audience who might fall victim to these scams, using those same platforms, like you said, Twitter, TikTok, Reddit, etc., to fact-check them or to pass along good tax advice as well, might be a good tool?

Samuel D. Brunson: I think it probably would be, and again, there is a learning curve. It takes time to figure out what the right tone for Twitter is, and that right tone for Twitter is different than the right tone for Facebook.

I went through a pandemic year where I recorded music on TikTok, and it turns out that just doing a TikTok video takes way more time than typing 280 characters on Twitter. I never actually made it look great, but it's a skill set that would have to be learned.

So it's not going to be automatic, but there's probably some value in it. And that value, depending on your goal, it may be for a law or accounting firm attracting a new younger demographic that would otherwise just get TurboTax or whatever.

I know when I was in practice we wanted to make money, but we believed in the tax system. And it may be almost a pro bono thing of helping educate the public about taxes to make the whole system better. Maybe that's a little bit too idealistic, but I was in a fairly idealistic practice.

Cady Stanton: Something you said earlier caught my ear in that you mentioned that tax advice on these platforms isn't all bad and that there is good tax advice as well. Could you give me some examples of good tax advice you've seen and then also speak to how someone might be able to dig through the fray and figure out what's good tax advice and what is bad?

Samuel D. Brunson: The hard thing about digging through it is the hard thing about finding an attorney or an accountant. I know what's good tax advice because I'm familiar with tax and because I know people and I know the people that they trust. I mean, if a listener wanted to reach out to me, I could point to the accounts that I think are really good, but that would mean that they would have to trust me. I would say, though, looking at tax advice, if someone is saying, "This is a trick. This is a secret... " I want to say if it sounds too good to be true, but if you don't know tax, you may or may not know what sounds too good to be true, that's a judgment thing. But if they're advertising it as a secret, as a trick, it's probably not good tax advice.

The good tax advice tends to be boring, quotidian stuff that is, "You can reduce your taxes by making a donation." The good advice isn't, "You can buy something to reduce your taxes." The good advice isn't, "There's this secret that will take advantage of it."

One of the big things that I saw is, "Hire your children to work for you and then you can deduct their salaries, and if they make less than the standard deduction, they don't have to include anything in income." I had never heard this name before until I started going down social media rabbit holes, but the Augusta Rule, which is, if you rent your house for less than 15 days, you don't have to include it in gross income.
Those are both true to an extent, but I suspect that, for instance, if you follow some of the advice and rent your home to your unincorporated business for 14 days and pay an extraordinary amount of rent to yourself, I suspect that you'll get some sort of sham transaction ruling if you hit the courts. They'll say, "You didn't actually do these things, this is a sham."

But that's more complicated than what you're going to say in a minute-and-a-half video or in a seven-paragraph blog post or the 280 characters of Twitter. So again, I guess if someone is telling you that you can reduce your taxes and you do it by doing something artificial that doesn't actually cost you anything, I'm going to be at least skeptical of that.

Cady Stanton: Thinking about the inclusion of some of these social media scams on the Dirty Dozen list, do you think that's an indication of the prevalence or the frequency of these kinds of scams on social media?

Samuel D. Brunson: I think they're easy to find. I asked my daughters to be my research assistants and told them what I wanted, and 30 seconds later, my daughter had texted me three of these examples. They didn't show up in my daughters' feeds because I actually don't know what my daughters watch on TikTok, but it seems to generally be music-oriented, or for one of them at least fashion or makeup oriented.

And so the algorithm isn't throwing these kinds of things, isn't throwing tax advice at my daughters. But it took no time for them to find it when I asked them to look. I don't know how much it's being fed, I don't know how big it is in the first instance, but it's really easy to find. I assume that if you watch a couple of them they're going to start showing up in your feed more and more frequently. And then as they show up more frequently, they'll show up even more frequently.

I suspect that once you start down that rabbit hole, it becomes prevalent fairly quickly.

Cady Stanton: You mentioned a couple of examples throughout our conversation, but I thought I'd follow up to ask, what are some of the worst tech scams you've seen on social media either through your daughters' research or things you found yourself or have heard about?

Samuel D. Brunson: The worst one that I heard was someone did a very complicated thing about selling your house, where you bought the house for $100,000, now it's worth $1 million. Did they say $1 million? Yes, now it's worth $1 million and you want to sell it, so do a [section] 1031 transaction, which is cool, except that 1031 only applies to real property used in the trade or business right now.

So that advice is both wrong and completely wrong. That was probably the absolute worst of the five or six things that I looked at. But I would also say that expensing your car strikes me as very common and really bad just because there are so many more steps.

I mean, the 1031 exchange is plausible, but the "expense your car" strikes me as really plausible because they're being very specific, giving code sections, giving weights that it has to be, and mentioning briefly using your business but not going into that. So that one strikes me as being very plausible and in practice very wrong.

I think that's probably the kind of thing that would scare me the most. Doing a 1031 transaction takes some work. You're going to have to find someone to give you advice to figure out how you would do it, and I suspect that in the real world you can get it knocked down fairly easily.

But if I'm doing my own taxes and I put "depreciable car," I'm expensing it this year, my tax software might ask me questions about it, but because the definition of trade or business is so "I know it when I see it" for tax attorneys, I don't think there's a lot to get in the way of a taxpayer making a mistake with that.

Cady Stanton: Do you have any final wisdom both for taxpayers and for practitioners to keep aware of these scams and operate under the assumption that they could come up and they could be fooled by them?

Samuel D. Brunson: For practitioners, I would just say, when you hear it, go to the code and actually look it up. A few of the things I had to run down. The expensing an SUV, like the 6,000- and 14,000-pound thing, seemed very specific. It took me about 15 minutes last night because that's not an area that I usually look at to run down where those numbers come from and why they exist and how they interact with other things. That's what led me to understand that it was close to accurate without actually being accurate.

Some of the things that people suggested, the Augusta Rule, I had to Google that. And you know how tricky it can be to Google something and find a website that says what code section it is. But eventually I found that. And unfortunately, the wonderful Tax Notes, federal income tax, put in Augusta, and that's not in the code, so that's not going to show up.

But I would say for practitioners, if you hear this idea, if a client comes in and says: "I heard that I can expense my car. I heard that I can do a like exchange with my home," to actually go back to the code in the regs and run it down and see what they're talking about, and if they're wrong, being able to explain to them what is right about it, what's wrong about it, and if they really want to do that, how to do it.

If you're a nontax person and you see this great idea, you probably have less access and less training. But again, if it seems like you're reducing your taxes without doing anything, it's worth looking for actual professional advice from somebody who has a duty and an obligation to give you good advice as opposed to someone on social media who doesn't owe any duties or obligations to you and may or may not actually know what they're talking about.

The unfortunate part about that is that probably incurs some expense. So alternatively, you could find a good tax person, tax journalist, tax academic on social media, and ask them to point you in the direction of someone. And at least [on] tax Twitter, people tend to be generous and would probably actually respond well.

Cady Stanton: That sounds like some really sound advice to me as opposed to some of the scams we've been seeing on social media. Thank you so much for your time here, Sam. We really appreciate your insight.

Samuel D. Brunson: Thank you for having me. It was a pleasure talking to you.

David D. Stewart: And now, coming attractions. Each week we highlight new and interesting commentary in our magazines. Joining me now is Executive Editor for Commentary Jasper Smith. Jasper, what will you have for us?

Jasper B. Smith: Thanks, Dave. In Tax Notes Federal, in the first installment of a new regular column, Eye on Energy, four Holland & Knight practitioners examine section 48c and the advanced energy project credit. Robert Carney and James Dawson explain how the centralized partnership audit regime creates problematic anomalies in the statute of limitation provisions.

In Tax Notes State, four Deloitte practitioners examine federal conformity and the need for states to allow time between the due dates of federal returns and state returns. In a new state column, Andersen's Sodium Podium, three Andersen practitioners examined residence-based taxation.

In Tax Notes International, Mindy Herzfeld reviews the status of the OECD's pillar 2 implementation in countries and jurisdictions around the world. Michael Durst explains how pillar 2 will reduce the use of profit shifting by multinational groups to lower effective tax rates while increasing the use of non-tax incentives.

In Featured Analysis, Nana Ama Sarfo discusses a recent ruling on Hungary's public tax defaulter list and argues that European tax authorities should revisit their taxpayer data protections in the wake of the ruling.

And now, for a look at what's new and noteworthy in our magazines, I'm joined by Robert van Brederode, the founding partner of Brederode Tax. Welcome to the podcast, Robert.

Robert van Brederode: Oh, thank you. I'm glad to be there.

Jasper B. Smith: So today we're going to chat about your Tax Notes International article titled "Disclosure of Presidential Tax Returns Violates Right to Privacy." So can you just give us, please, a brief overview of your article?

Robert van Brederode: Sure. Most people will be familiar with the fact that the U.S. Supreme Court ruled that tax returns of a former president had to be given to the House Ways and Means Committee for review and they published it. So that's what's triggered my interest in writing about it.

If you take a step back, we are all interested in privacy, and the income tax is intrusive when it comes to our privacy. If you have a consumption tax like the sales tax, well, you buy something in your store, you pay, you pay your tax, nobody knows who made the purchase, at least not the tax authorities. The government doesn't know your income. It doesn't know what you bought, all that. It's basically very private.

But with your income tax, the government knows that you have an income. If you are employed and in positive health then they know that you are employed and by whom, they can see whether you have a house and the mortgage interest. If you have charitable giving, then that is there. If you have very high medical expenditure that is deductible, they know that. And if they audit you, they can see what kind of illnesses you have, what kind of doctors you went to.

So the income test can be quite intrusive, so our privacy has to be protected. And of course, that is exactly what the Internal Revenue Code says as that it is protected in the Taxpayer Bill of Rights and also in section 6103 of the IRC. There are few exceptions. Most of the time it has to do with exchange of information, other tax authorities, or law enforcement if fraud is suspected, or exchange with the Social Security Administration.

But there is one other exception, and that is Congress. Congress made an exception for themselves. So you could assume that since privacy is the most important thing here, that they would take care of that. There are three committees depending on who it is. The House has the Ways and Means Committee. The Senate has a Finance Committee, and jointly they have the Joint Committee of Taxation. So those are the three committees that have the right to see taxpayers' return. An individual senator can of course not say, "Hey, I want to know what my neighbor's income is." That doesn't work, it has to go through the committees. It is not without limitations because the Supreme Court says that a congressional inquiry must relate to a legitimate executive purpose.

So it is not just for whatever reason they want. So there is a presidential order program and you can imagine the president is head of the executive branch, so basically he's also the boss of IRS. So he could abuse that. It's theoretically and practically possible. That's why they have a presidential order program. The IRS looks particularly at tax returns of presidents and vice presidents, not other people than those two. The Ways and Means Committee said, "We want to know how their program works in practice, particularly for Donald Trump."

I think it was triggered by the fact that President Trump, at least when he was a president, said he did not want to release his tax returns. There is no legal obligation for him to do so. But it became sort of a tradition for 45 years for presidents and vice presidents to do so.

So they tried to do it in this way around and said, "We're going to evaluate the presidential order program, so we want to see Mr. Trump's tax returns." Mr. Trump disagreed, he said, "I don't believe that that's the reason they do it. It's pretextural. The only reason they do it is to disclose it to the public." Well, that became a fight of course, all the way to the Supreme Court, and the Ways and Means Committee won.
It was at the end of the congressional term, so they could not really evaluate the presidential order program. So what did they do? They released the tax returns.

And then basically, I mention Professor Hamel who is from New York University. He's certainly not a Trump fan, but he said, "Yeah, they should not have done that." He believes that it's fairly unethical to do. He suggests that the Senate could take over the investigation because that's still under Democratic control. The House actually, I'm sure listeners will know, switch to the Republicans. But they did not do that. They released the tax returns. And with that, they were in the court saying, "No, there is no pretextural. It's not about releasing the information to the public, it is for justified purpose, evaluating the order program." And now basically they contradict that by their action. I found that a very interesting topic.

I think it is wrong not only for ethical reasons, but also legally because if you need justification to see the tax returns or into the Supreme Court, then that should also apply for revealing the information you have gathered, right? If you need a legitimate legislative purpose, then that should also be required for the disclosure, and they didn't give any. I think that in the end Trump may have proven his point, and I think the Ways and Means Committee made a technical mistake here apart from a legal and an ethical one. Some people say, "But we don't like Trump." But that's not the point. It is a precedent that should not have been set, I believe.

Now, was Trump treated differently? Well, perhaps we don't know, but the interesting thing is that they only looked at Trump's tax returns, but there were no comparables. Because if you want to do a good review, you should look at the tax returns, let's say, of all the presidents still we have that program, or at least the last five. And even if Trump was treated differently, the question will be whether there was a justification or a reason for that. I think there is, but IRS cannot defend itself because they are bound by the privacy of the climate, they cannot disclose any information.

But I write also in the article, I believe that they deserve our defense here. Trump, of course, is probably the first president that has such enormous financial holdings and very complex ones that the IRS could have a good reason to wait with what we call the presidential tax return, so the returns for the period that he was president, because all the returns relate to the newer ones. In his case, he has a lot of net operating losses. If you have a net operating loss that you deduct in 2017 when he was president and it comes from earlier years, then the earlier returns has to be evaluated first before you can determine whether the deduction was correct in 2017. So in that sense, I thought it was a missed chance. I also suggest because the Ways and Means Commission says, "Well, we should make a law on how it should be handled," I think that is micromanaging that we do not need.

The IRS can certainly themselves determine what expertise is needed for a tax return. That will generally differ from president to president, but most presidents do not have a complicated tax return like Trump.
I also suggest that we should not limit their review to presidents and vice presidents because there are other very powerful people when it comes to tax who have influence on our tax laws. Yes, the president of course, and the vice president, but also the Speaker of the House, which is a parallel position to vice president, who's the head of the Senate. But you could say also the majority and minority leaders and chairs and ranking members of the tax committees of the House and the Senate and the Joint one, because they all have enormous influence on what tax law actually comes to the House and the Senate. That's basically what the article is about.

Jasper B. Smith: Excellent. Thanks you, Robert, for that overview. Certainly an interesting and polarizing topic, and I'm sure it is something that will be discussed for years to come. We appreciate you taking the time to go over that with us. And before we let you go, where can listeners find you online?

Robert van Brederode: Well, I have a LinkedIn account, and that's the only social media I have. They can find, of course, the business website, www.brederodetax.com, and they can email me on my business email if they read the article and want to comment on it or have a question, some people do, feel free to use that email address.

Jasper B. Smith: Excellent. Well, thank you once again for coming on the podcast and spending some time with us, Robert.

Robert van Brederode: Pleasure was all mine.

Jasper B. Smith: You can find Robert's article online at taxnotes.com, and be sure to subscribe to our YouTube channel, Tax Notes, for more in-depth discussions on what's new and noteworthy. Again, that's Tax Notes with an S. Back to you Dave.

David D. Stewart: That's it for this week. You can follow me online, @TaxStew, that's S-T-E-W, and be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for future episode, you can email us at podcasttaxanalysts.org. And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.

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