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Cypen & Cypen
December 13, 2018

Stephen H. Cypen, Esq., Editor

With the approach of the holidays and the 2019 filing season, the Internal Revenue Service, state tax agencies and the nation’s tax industry warned people to be on the lookout following a surge of new, sophisticated email phishing scams. Taxpayers saw many more phishing scams in 2018 as the IRS recorded a 60 percent increase in bogus email schemes that seek to steal money or tax data. These schemes can endanger a taxpayer’s financial and tax data, allowing identity thieves a chance to try stealing a tax refund. The Internal Revenue Service, state tax agencies and the tax community, partners in the Security Summit, are markED “National Tax Security Awareness Week” Dec. 3 -7, with a series of reminders to taxpayers and tax professionals. In part two, the topic is email phishing scams. “The holidays and tax season present great opportunities for scam artists to try stealing valuable information through fake emails,” said IRS Commissioner Chuck Rettig. “Watch your inbox for these sophisticated schemes that try to fool you into thinking they’re from the IRS or our partners in the tax community. Taking a few simple steps can protect yourself during the holiday season and at tax time.” In the second part of Tax Security Awareness Week series, the IRS and Summit partners warned against a new influx of phishing scams. Tax-related phishing scams reported to the IRS declined for the prior three years until a surge in 2018. More than 2,000 tax-related scam incidents were reported to the IRS from January through October, compared to approximately 1,200 incidents in all of 2017. One recent malware campaign used a variety of subjects like “IRS Important Notice,” “IRS Taxpayer Notice” and other variations. The phishing emails, which use varying language, demands a payment or threatens to seize the recipient’s tax refund. Taxpayers can help spot these schemes by examples of misspelling and bad grammar. Taxpayers can forward these email schemes to The most common way for cybercriminals to steal money, bank account information, passwords, credit cards or Social Security numbers is to simply ask for them. Every day, people fall victim to phishing scams or phone scams that cost them their time and their cash. Phishing attacks use email or malicious websites to solicit personal, tax or financial information by posing as a trustworthy organization. Often, recipients are fooled into believing the phishing communication is from someone they trust. A scam artist may take advantage of knowledge gained from online research and earlier attempts to masquerade as a legitimate source, including presenting the look and feel of authentic communications, such as using an official logo. These targeted messages can trick even the most cautious person into taking action that may compromise sensitive data. The scams may contain emails with hyperlinks that take users to a fake site. Other versions contain PDF attachments that may download malware or viruses. Some phishing emails will appear to come from a business colleague, friend or relative. These emails might be an email account compromise. Remember, criminals may have compromised your friend’s email account and begin using their email contacts to send phishing emails. Not all phishing attempts are emails — some are phone scams. One of the most common phone scams is the caller pretending to be from the IRS and threatening the taxpayer with a lawsuit or with arrest if payment is not made immediately, usually through a debit card. In addition, continues to receive a large volume of IRS telephone scam complaints. These phone scams increased again in 2018 with reports to recording thousands of telephone numbers from email complaints each week. Phishing attacks, especially online phishing scams, are popular with criminals because there is no fool-proof technology to defend against them. Users are the main defense. When users see a phishing scam, they should ensure they don’t take the bait. Here are a few steps to take to protect against phishing and other tax-related schemes:

  • Be vigilant; be skeptical. Never open a link or attachment from an unknown or suspicious source. Even if the email is from a known source, approach with caution. Cybercrooks are adept at mimicking trusted businesses, friends and family -- including the IRS and others in the tax business. Thieves may have compromised a friend’s email address, or they may be spoofing the address with a slight change in text, such as vs In the latter, merely changing the “m” to an “r” and “n” can trick people.
  • Remember, the IRS doesn't initiate spontaneous contact with taxpayers by email to request personal or financial information. This includes asking for information via text messages and social media channels. The IRS does not call taxpayers with aggressive threats of lawsuits or arrests.
  • Phishing schemes thrive on people opening the message and clicking on hyperlinks. When in doubt, don’t use hyperlinks and go directly to the source’s main web page. Remember, no legitimate business or organization will ask for sensitive financial information via email.
  • Use security software to protect against malware and viruses found in phishing emails. Some security software can help identify suspicious websites that are used by cybercriminals.
  • Use strong passwords to protect online accounts. Each account should have a unique password. Use a password manager if necessary. Criminals count on people using the same password repeatedly, giving crooks access to multiple accounts if they steal a password - creating opportunities to build phishing schemes. Experts recommend the use of a passphrase, instead of a password, use a minimum of 10 digits, including letters, numbers and special characters. Longer is better.
  • Use multi-factor authentication when offered. Some online financial institutions, email providers and social media sites offer multi-factor protection for customers. Two-factor authentication means that in addition to entering your username and password, you must enter a security code generally sent as a text to your mobile phone. Even if a thief manages to steal usernames and passwords, it’s unlikely the crook would also have a victim’s phone. 

The IRS, state tax agencies and the tax industry are working together to fight against tax-related identity theft and to protect taxpayers. Everyone can help. Visit the “Taxes. Security. Together.” awareness campaign or review IRS Publication 4524, Security Awareness for Taxpayers, to learn more. Tax professionals can also get more information through the Protect Your Clients; Protect Yourself campaign as well as the Tax Security 101 series. IRS Newswire, Issue Number IR-2018-240, December 4, 2018.

Powerful institutions in Washington are taking a renewed look at the way proxy advisory firms conduct business. A bipartisan group of senators introduced a bill November 14, 2018, that would "hold proxy advisory firms accountable" by requiring the Securities and Exchange Commission to regulate major proxy advisory firms under the Investment Advisers Act. The following day, the SEC hosted a roundtable discussion seeking industry input on improving the proxy voting system, including an examination of how proxy advisory firms should be regulated. Laura D. Richman, counsel at Mayer Brown LLP in Chicago, said there's a good chance changes are coming to the proxy advisory market. The interest from Washington "could easily result in some additional regulation. But it also, I think, has the impact of making ISS and Glass Lewis think about what they're doing, and they may become more transparent on their own." There have been calls to make proxy advisory firms more transparent about the way they formulate reports and further disclose conflicts of interests. Executives at the two proxy advisory firms that control approximately 97% of the market — Institutional Shareholder Services Inc. and Glass Lewis & Co. — said at the SEC roundtable that they're working diligently to diminish and disclose any conflicts. Katherine Rabin, San Francisco-based CEO of Glass Lewis, which is owned by the Ontario Teachers' Pension Plan and the Alberta Investment Management Corp., said her firm always discloses conflicts on the front page of a given report. At ISS, Gary Retelny, New York-based president and CEO, said his firm has "a strict firewall in place" between its consulting and research businesses. "If a company buys a product it won't help with a recommendation," he said, adding ISS already is a registered investment adviser. Sean Egan, president and founding partner of Egan-Jones Proxy Services, Haverford, Pa., said his company does not have a consulting business, but there are "conflicts that arise from consulting when you're also in the proxy advisory business." Mr. Retelny acknowledged "there are potential conflicts of interests in what we do and we work extremely hard to mitigate those conflicts of interest."

Voting record
In research released before the SEC roundtable, the American Council for Capital Formation (ACCF), a corporate governance advocate in Washington, concluded many asset managers "automatically rely on proxy firms' recommendations," in what's known as robo-voting. The ACCF research concluded robo-voting enhances the influence of proxy advisory firms and "undermines the fiduciary duty owed to investors." ISS and Glass Lewis executives took issue with the robo-voting notion. At the roundtable, Mr. Retelny said 87% of the shares for which ISS executes votes are done so per custom client policies. Ms. Rabin added: "At the end of the day, what we're doing is executing votes in accordance of the specific instructions of our clients." Nearly all of the time, proxy votes are simple and don't require much scrutiny, said Jonathan Bailey, managing director and head of Environmental, Social and Governance (ESG) investing at Neuberger Berman, LLC, New York, at the roundtable. "It is efficient and cost-saving for our clients to be able to use the workflow management capabilities that the proxy advisory firms offer us to be able make those decisions," he said. Patti Brammer, corporate governance officer of the $101.4 billion Ohio Public Employees' Retirement System (OPERS), said her fund votes in roughly 10,000 shareholder meetings each year and simply doesn't have the time and resources to form an opinion on each vote. Proxy advisory firms allow "us to fulfill our fiduciary duty, and it would be virtually impossible to do that without that aspect being available," she said at the roundtable. OPERS has its own guidelines and policies that ultimately guide its votes, Ms. Brammer added. Timothy M. Doyle, vice president of policy and general counsel for the ACCF, said the SEC should require proxy advisory firms to be more transparent with how they formulate their recommendations, and put in place a uniform process for conflict disclosures. "If that is done in a more transparent way we would be much more satisfied with the existence of the proxy advisory firms and their corresponding benefit to the shareholders," he said. The best solution, Mr. Doyle added, would be one from Congress. Although it's highly unlikely to become law this congressional session, which ends next month, three Republican and three Democratic senators introduced the Corporate Governance Fairness Act earlier this month. The bill is similar to the Corporate Governance Reform and Transparency Act of 2017, which passed the House of Representatives late last year, but excludes some of the latter's more controversial elements. In an email, Steven Friedman, ISS general counsel, said based on an initial review, the new Senate bill does not contain some of the "most concerning aspects" of the House bill, "in particular the ability of issuers to pre-review our reports, a provision that was troubling both to ISS and to many of our clients."
Registration not required
Under the proposed Senate bill, smaller proxy advisory firms would not be required to register under the Investment Adviser Act so as to not discourage new entrants into the market. "Requiring proxy advisers to register with the SEC will help reinforce these firms' integrity by addressing any potential conflicts of interest and by assessing the accuracy of their communications," said Sen. John Kennedy, R-La., one of the bill's sponsors. "This bipartisan legislation will protect investors by holding proxy advisory firms responsible for the services that they provide to clients." Mr. Retelny said additional regulation is not necessary and would add a "significant amount of potential costs, and will stress the logistics of the workflow that many institutional investors depend on." Ms. Rabin said Glass Lewis already applies high standards to is business. It has globally adopted the principles developed by the independent Best Practice Principles Group, based on recommendations from the European Securities and Markets Authority, she added. Any additional regulations should bear in mind potential changes to the timelines and independence of the proxy advisory firms' research and data aggregation work, Neuberger Berman's Mr. Bailey said. "If either of those were threatened that would not help the quality of the decision-making, which is ultimately why we used this advice in the first place," he added. Chris Burnham, president of the Institute for Pension Fund Integrity in Washington, said the SEC should take the lead on any further regulation. "They're going to have the vast expertise to make the most informed opinion and bring together key constituent groups and stakeholders," he said. In an earlier panel discussion about proxy voting infrastructure, Ken Bertsch, executive director of the Council of Institutional Investors, endorsed looking into using blockchain technology in proxy voting as a way to streamline the process. The technology would ensure vote confirmation, enhance privacy and security, and reduce mailing costs, he said. At the roundtable, SEC Chairman Jay Clayton said it's necessary for participants to come together to solve the complex issues surrounding proxy voting, adding: "So hopefully this is not the last meeting of groups like this." Brian Croce, Pensions & Investments, November 26, 2018.

If credit card payments were squeezing our budget and our wealthy aunt suddenly left us money, most of us would use the windfall to pay down our debt. That would certainly be the responsible thing to do. California government should be no different. That’s why Gov.-elect Gavin Newsom should resist the temptation to spend a supposed state budget surplus on new programs and instead trim the escalating debt for public employee retirement costs. Newsom will inherit a staggering $257 billion shortfall in state and school workers’ pension and retiree health care funds. It’s money the state should invest now so that there are enough future funds to pay the benefits workers have already earned. The longer the state waits to repay that debt, the greater the cost to taxpayers. Despite Gov. Jerry Brown’s claim to be a pension reformer, the state’s retirement debt increased during his eight-year tenure. To be fair, he set up repayment schedules for the debt, but those schedules spread the cost over 30 years, leaving future generations to pay for the sins of their elders. To put the size of the debt in perspective, it’s nearly double the state’s annual general fund tax revenues. Or, for scale using one of Brown’s other legacy goals, the retirement debt is about three times the current cost estimate for building a high-speed rail system from Anaheim to San Francisco. So when state Legislative Analyst Mac Taylor gushed earlier this month about the annual state budget being in “remarkably good shape” with a forecast $15 billion surplus for the upcoming 2019-20 fiscal year, we had to question that characterization. The only reason there is a surplus is because Brown kept payments on retirement debt low by irresponsibly stretching them out for decades. It’s especially appalling when one considers that this debt is for benefit costs for labor workers have already performed. We wouldn’t consider borrowing to cover their salaries, but somehow, it’s become acceptable to make installment payments for decades on their benefits. It’s unfair to workers, who deserve more solid funding of the retirement systems. It’s unfair to the next generation of taxpayers, who will be saddled with debt incurred by their parents. And it’s disappointing that the legislative analyst has gone along with this charade. Newsom, when he takes office, should not perpetuate it. He should do what any responsible household would do: Use the “surplus” to reduce the debt. As Brown repeatedly warns, we’re overdue for another recession, but right now, state revenues are strong. Now is the time to pay down that credit card. The Mercury News, November 24, 2018.

The private pension system in the US is in transition from defined benefit plans to defined contribution plans. On balance, this may be a step in the wrong direction. The jury is still out, however, and much will depend on how defined contribution plans evolve in the future.
Essential Differences Between Defined Benefit and Defined Contribution Plans
Early in my career I worked for the Federal Reserve Bank of New York, which had a defined benefit plan for their employees similar to those at most large firms. Under this plan, the bank contributed periodically to a reserve fund earmarked for future payments to retired employees. The promised future payment amounts were based on the employee’s compensation levels and years of service. The pension vesting period was 10 years, which meant that if you left the bank after 9 years, as I did, you lost the pension rights. In accepting a professorship at the University of Pennsylvania, I also transited from the defined benefit pension plan of the bank to a 401K defined contribution plan at the university. Under this arrangement, I assumed control over my pension. 401K accounts were opened in my name at TIAA/CREF and Vanguard, into which I made periodic tax-deferred contributions. With this type of plan, I vested immediately in that the money contributed to the accounts belonged to me. Employers offering defined contribution plans may or may not contribute to the plans. In many cases they offer to match the employee’s contribution up to some maximum amount. Employer contributions may be subject to a vesting period. While states, municipalities and public agencies have continued with defined benefit plans, private business firms have largely shifted to defined contribution plans. This enables them to avoid the large balance sheet liability generated by the commitment to provide defined benefits over an indefinite future period. From a retiree perspective, however, defined contribution plans have some major weaknesses.
Pre-Retirement Weaknesses
The weakness that has generated the most attention is that employees have not been saving enough in their 401Ks to assure a comfortable retirement. With a defined benefit plan, employees qualify automatically, but with defined contribution plans they must enroll and authorize a deduction from their paycheck. Short sightedness is part of the human condition, it results in procrastination, which results in underfunding. A number of initiatives aimed at combating this problem are in process including automatic enrollment. A second pre-retirement weakness is that small firms find the costs of administering a 401K plan too burdensome to bother. For this reason, a large number of private-sector employees do not have access to a 401K at work. Legislation that would authorize plans covering multiple employers is now making its way through Congress with bipartisan support.
A Post-Retirement Weakness: Unmanaged Mortality Risk
The post-retirement weaknesses in 401K-based plans have not generated nearly as much attention. Perhaps the most critical is the problem of managing mortality risk. With defined benefit plans, the employer manages mortality risk by spreading pension commitments across a population of employees with different lifespans. The employee who retires with a 401K, in contrast, is on her own. She knows how much is in her accounts when she retires, and she can estimate the future earnings rate on those funds, but she does not know how long those funds have to last because she does not know how long she will live. The obvious remedy is to purchase an annuity, but she will have great difficulty finding an investment advisor who will support that decision. Many are hostile to annuities, and none offer a service package that integrates the management of financial assets with annuities.
Another Post-Retirement Weakness: Unmanaged Home Equity
Another weakness of 401K-based plans is applicable to retirees who have a significant part of their wealth in their homes. The conversion of home equity into spendable funds using a Home Equity Conversion Mortgage (HECM) reverse mortgage is ad hoc and separated from the other elements of retirement planning. The retiree has to do it on her own, just as she must purchase an annuity on her own. To deal with the two post-retirement weaknesses identified above, I am involved in a project to integrate financial asset management, annuity purchase, and the HECM reverse mortgage into a coherent retirement plan. It is called the Retirement Income Stabilizer or RIS. Stay tuned. Jack Guttentag, Forbebs, November 24, 2018.

Nearly a decade since the Great Recession, many workers and their employers haven't yet recovered. More than half (58 percent) of workers and almost half (49 percent) of employers recently surveyed by Transamerica Center for Retirement Studies (TCRS) responded that they're still working their way back from the Great Recession, which lasted from September 2007 to June 2009. But there's some good news, too, in the TCRS September 2018 report, which compared conditions in 2007 to those in 2017.

  • Participation in 401(k) plans at work remained relatively constant from 2007 to 2017, at 80 percent of workers. Contributions have also held up: The 2007 median contribution of 8 percent of pay increased to 9 percent in 2017.
  • More than half (58 percent) of surveyed 401(k) participants used some form of professionally managed investments, either a target-date fund, strategic allocation fund or a managed account.
  • The amount of money in retirement savings accounts has increased significantly, from an estimated median of $47,000 in 2007 to $70,000 in 2017. Baby boomers reported a median of $157,000 in 2017. 

Misplaced confidence
However, American workers still need to make a lot of progress when it comes to understanding how to finance a comfortable retirement. The TCRS survey reports that almost two-thirds (61 percent) of workers were confident or somewhat confident that they would be able to fully retire with a comfortable lifestyle. This confidence is misplaced. Many workers don't have a clue about how much savings it takes to fund a long retirement. When asked how much money they would need to retire comfortably, the median response was $500,000. But almost half (49 percent) of these workers were simply guessing. Only 15 percent used a potentially accurate method to estimate their retirement savings needs. Ten percent used a retirement calculator or completed a worksheet, and 5 percent said a financial adviser provided their estimate. That prompted Catherine Collinson, president of TCRS and author of the 2018 report, to make this recommendation: "Calculate your retirement savings needs or have a professional financial adviser help you, develop a retirement strategy and write it down."
How far will your savings go?
Let's look at some retirement savings challenges older workers face. Boomers report that they've accumulated a median savings of $157,000, but their assumed target savings amount is $500,000. Simply put, most boomers don't have enough remaining years of work to close this gap. But here's another challenge: While $500,000 may sound like a lot of money, it's not if you expect it to last another 20 to 30 years. Let's do a rough estimate of the amount of retirement income a boomer worker with $500,000 in savings might expect:

  • Using the 4 percent rule as a ballpark estimate of the amount of income that can be generated by savings, $500,000 can generate lifetime retirement income of about $20,000 per year (4 percent of $500,000 is $20,000).
  • According to Social Security's "2018 Fast Facts and Figures" report, the average monthly Social Security benefit was $1,460 per month for new retirees in 2017, or $17,520 per year. Add that to the income generated by savings and you get total retirement income of $37,520 per year.
  • If you're married, the average monthly Social Security benefit for spouses with new benefit awards in 2017 was $627, or $7,524 per year. In this case, the total retirement income for the married couple would be $45,044 per year. 
  • It's possible that many single retirees could get by on $37,520 per year and that married couples could get by on $45,044 per year. But remember that the $500,000 amount is a target. Most boomers will fall well short of saving that amount, according to a by the Stanford Center on Longevity. 

Tough choices ahead
The fact is, most older American workers haven't saved enough to retire full-time at age 65 under their current standard of living. So they face tough choices. They'll need to work beyond age 65, reduce their standard of living or do some combination of the two. To help make these critical decisions, workers need to understand how much retirement incomethey can expect to generate at different possible retirement ages. Retiring in your 60s and living to your late 80s or 90s won't be easy. You'll need to do your homework to make sure you can live comfortably for a long time. CBS Money Watch, November 23, 2018.

The Internal Revenue Service advised taxpayers that the doubling of the standard deduction due to tax law changes is likely to reduce the number of taxpayers who normally itemize. This is the sixth in a series of reminders to help taxpayers Get Ready for the upcoming tax filing season. The IRS has recently updated its Get Ready page with steps to take now for the 2019 tax filing season. In previous years, about one out of three taxpayers itemized. The IRS expects that number to be less for tax year 2018. The Tax Cuts and Jobs Act (TCJA) passed in December 2017, significantly affects deductions in several ways, impacting those taxpayers who normally itemize. The TCJA doubles the standard deduction amount for all filing statuses. The standard deduction is a dollar amount that reduces the amount of income on which a taxpayer is taxed and varies according to their filing status. Because of this, many qualifying taxpayers may find the increased standard deduction more than their total itemized deductions and opt for choosing the standard deduction rather than itemizing. Taxpayers should check their 2017 itemized deductions to make sure they understand what the tax reform changes could mean for their tax situation in 2018. Those who still plan to itemize will complete an updated version of Schedule A, Itemized Deductions, and attach it to their tax return.
Publication 5307, Tax Reform Basics for Individuals and Families, is a key resource to understanding the impact of the tax reform law on deductions. The publication provides information about:

  • increasing the standard deduction,
  • suspending personal exemptions,
  • increasing the child tax credit,
  • adding a new credit for other dependents, and
  • limiting or discontinuing certain deductions. 

IRS Newswire, Issue Number IR-2018-230, November 21, 2018.

One northern Virginia lawmaker wants federal employees’ pension programs to have parity in how annual cost of living adjustments are applied, ending more than 30 years of what he described as an “unfair system.” Rep. Gerry Connolly, D-Va., introduced the Equal COLA Act, a bill that would ensure that enrollees in the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) receive equal cost of living adjustments to their annuities each year. Under current rules, which date back to 1986, the CSRS methodology for calculating cost of living adjustments is tied to the change in the consumer price index. But FERS COLAs are extrapolated from the CSRS adjustment: if the CSRS sees a COLA under 2 percent, FERS retirees receive the full COLA. If the adjustment is between 2 and 3 percent, FERS enrollees would only receive a 2 percent increase. And if the CSRS COLA is 3 percent or more, FERS retirees would receive that adjustment, minus 1 percentage point. Connolly’s bill would ensure that FERS cost of living adjustments are calculated in the same way as CSRS COLAs each year, so that retirees in each program see the same increase in their annuities. “Over time, we now realize that this two-tiered system fails to protect FERS retirees who are living on a fixed income,” Connolly said in a statement. “This legislation will rectify this unfair system and ensure these dedicated public servants are protected throughout their retirement.” The bill has the support of unions and federal employee associations, including the National Active and Retired Federal Employees Association (NARFE), American Federation of Government Employees, National Federation of Federal Employees, the Federal Managers Association and the Senior Executives Association. In a statement, NARFE National President Ken Thomas urged Congress to approve the legislation in time for 2019. Next year, while CSRS retirees will see a 2.9 percent cost of living adjustment, FERS retirees will only receive an additional 2 percent. “Nearly 800,000 FERS retirees are wondering why they are only receiving a 2-percent COLA when consumer prices increased by 2.8 percent,” Thomas said. “[Without] adequate COLAs, FERS retirees will see inflation erode the value of their earned retirement income year after year; yet, that is exactly what COLAs are designed to prevent. Federal retirees are not asking to be made better off than they were last year. We just want to maintain the value of what we have rightfully earned through careers of service.” Government Executive, November 20, 2018.
“When you’re good to others, you’re best to yourself.”  
Why is "phonetic" not spelled the way it sounds?  
You can’t fall if you don’t climb. But there’s no joy in living your whole life on the ground. — Unknown
On this day in 2003, Former Iraqi President Saddam Hussein is captured near his home town of Tikrit, during Operation Red Dawn by US forces.


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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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