The leaked tapes that show how the rich avoid taxes

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0:21People go to incredible lengths to pay the smallest amount of taxes, sometimes in legal ways, sometimes in less-than-legal ways, in the shadows. And it's not always clear which is which. Figuring that out, that used to be the job of Carolyn Shank. She spent nearly two decades at the IRS. And she says the way the IRS uncovered the newest, hottest tax crimes ran the gamut. Surveillance, wiretaps, old-school trash pools, which is obviously a phenomenal source of information.

0:55Kind of dirty, but, you know, could be very fruitful. I'm shocked y'all still do that. That's incredible. Then, of course, there are the times when people reach out to them and say, I've got information. I'd like to whistleblow. We've seen people come forward and sit with, you know, in a dark room or a bag on their head, and they've gone through the most intricate banking details. Have you been in one of those interviews? Not with a bag over my head. She says the bag thing is just a term of art. Sometimes, though, people are afraid to talk, even anonymously.

1:26Carolyn says one time, after a long day at a conference, she got to her hotel room. And someone shoved, and I'm not sure how they even did it because it was so thick, an enormous manila envelope with a whole bunch of bank documents in it underneath my hotel room door, which was totally unnerving because, you know, I don't... How did they know where I was staying? Exactly. She says she changed rooms, and the documents, they turned into a case. Can you say any more details about it? No, other than I was extremely freaked out.

1:56And I also was thinking to myself, you know, what if this thing got shoved and stuck? Like, they should have put it in two different envelopes, right? Yeah, come on, guys.

The Malta Loophole

2:05Right. The case I wanted to talk with Carolyn about came from a much less dramatic tip. And it really paints a picture of how hard it is to draw a clear line between what is OK and what is not when it comes to taxes. Carolyn first heard about this questionable tax move in 2021. She was at a meeting with another top IRS lawyer. He just said, there's this weird thing out there that I think taxpayers are doing. This maybe is the new thing. What do you think about it? And I said, where is it?

2:37And he said, Malta. And I said, what? Yes, Malta, tiny island nation in the middle of the Mediterranean, known for amazing beaches and apparently an attractive tax arrangement with the U.S. that was helping Americans avoid paying piles and piles of taxes. I think I was oscillating between a woe and WTF. Hello and welcome to Planet Money. I'm Nick Fountain here with Lauren Loricchio, reporter over at the nonprofit tax reporting outlet Tax Notes. Lauren, hi. Hi. How are you?

3:07Well, thanks. Normally, the world of tax can be kind of dry and procedural. But Lauren, I have this theory about you, and that's that you have this deadpan matter of fact way about you that somehow gets tax lawyers to open up and spill all of their dirtiest secrets. What do you think about that theory? I think you're wrong. Really? No, I think you're probably right. I'm just a tax nerd. I can't help it. All right. Well, today, how do the rich avoid taxes? We try to trace how a loophole is born and how it dies and is maybe put on life support.

3:41You might call this a tale of a tax shelter, an anatomy of an avoidance. The life cycle of a loophole. And you have secret recordings. I do. Ooh. There is a litany of reasons why the IRS is going to lose. If they had any brains, they would be stopping right now and going back. This message comes from LinkedIn ads. Ever invest in something that seemed incredible at first but didn't live up to the hype? For marketers, that's impressions.

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Tax Avoidance vs Evasion

5:38To be clear, it is perfectly fine and reasonable and understandable to want to pay as little in taxes as possible. When you do that legally, we call it tax avoidance. This story is about the mushy area between tax avoidance and doing illegal things to avoid taxes. Tax evasion. And it turns out the line between those two things is not hard and fast. It's ever-changing and contested.

6:09People and the government are constantly pushing it back and forth. It's a battlefield. And because it is a battlefield, people don't love to talk openly about their tactics. I've made many calls for this story where people say, I would want to talk to you, but my lawyer says, don't do it. Welcome to my life. Yes. But one person who, Lauren, you suggested might agree to go on the record and try to help us understand how the wealthy move their money around to pay fewer taxes is Andrew Gradman.

6:41Andrew is a tax lawyer and he's looked into the Malta loophole. And what we wanted to learn from Andrew in particular was how exactly these loopholes came into existence. In particular, how this loophole having to do with Malta came to be. Like, where did this all start? Who discovered it? You're asking the human story about who thought of it and then, you know, what kind of a bath were they thinking of when they said Eureka, which is pleasant. That's exactly what I'm looking for. Yeah. Tell me about the bath. Andrew says we cannot definitively figure out who this came from.

7:12But we have some clues as to where it came from. It all started because of a treaty with Malta, the U.S.-Malta tax treaty of 2008. And boy, treaties are complicated. Yeah. I did not know this before working on this story. But Lauren, you taught me we have tax treaties with many countries. In alphabetical order, Armenia, Australia, Austria, Azerbaijan, Bangladesh. I'm going to stop you there. There are dozens of them. More than 50. And the general idea is the U.S. is unique.

7:42We tax our citizens' income even when they live outside of the U.S. But we generally do not like to tax their income that has already been taxed by the country they're living in. So we create treaties, like the one with Malta, which say, among other things, if Malta has already taxed this, we won't. And vice versa. It's like a prenup, but for taxes. And this treaty with Malta, it left a few key details up for interpretation. Yes. In particular, details about how each country would tax retirement accounts.

8:16The context here is that when the U.S. and Malta were drafting this treaty, there was this relatively new retirement account in the U.S. It's called the Roth IRA. Roths, you might remember from the haze of trying to figure out retirement options, allow you to put your already taxed money into an account, let it grow. And then when you reach a certain age, you can take it out tax-free. Which Andrew says is all fine and good until an American moves to some other country and that country wants to tax what's supposed to be tax-free.

8:46We didn't have a system that would protect the U.S. worker who moves to a foreign country, takes the money out to retire, expecting that it'll be tax-free, but finds that the foreign country under the treaty has the right to tax it for some other reason. So, the drafters of that tax treaty with Malta put in language that says if a U.S. retirement account is going to be tax-exempt, then Malta will also exempt it from taxes and vice versa. Yeah, and this ended up being very important because a few years later, Malta created their own Roth-like retirement accounts to help their citizens save more money.

9:22Right, and these accounts were much more lucrative than the American ones. Because in the U.S., the amount of money you can put into Roths is capped. It's actually pretty small. And if you have assets like stocks or real estate or fancy paintings that have gone up a lot in value, you can't put those in. You have to sell them first and pay taxes on the gains. But these Maltese accounts were way supercharged. They allowed people to put in unlimited amounts and not just cash, but whatever, real estate, ownership of a company, Bitcoin. Then sell it and pull out the proceeds entirely tax-free, starting when people hit 50 years old.

10:00And because of the U.S.'s tax treaty with Malta, it seemed like the U.S. would need to abide by those rules, too. Which means, in theory, if Americans stashed their appreciated assets in these Maltese accounts, then sold them, and took the proceeds back to the U.S., the U.S. couldn't tax them. So, if you were a tax lawyer trying to figure out how to help your favorite client avoid paying capital gains taxes on her Google stock, you'd have hit the jackpot. This was an enormous loophole just sitting there for the using, and seemingly legit.

10:35You might be tempted to yell about it from the rooftops. Nah, that's not something that people actually do, because if they're loud about it, the government might come and close the loophole. Maybe they don't yell it from the rooftops, but they do pitch their wealthy clients. And it is rare for normies like me to see those pitches, but Lauren, you actually got your hands on one of them. I did. It's a pitch deck put together by people selling this loophole idea that was passed around behind closed doors. Yeah, I got some of those materials. How did you get your hands on that? Someone shared it with me.

11:06What's the pitch to the ultra-wealthy? Okay.

11:12This one's from Dominion Fiduciary Services. Which is like an international money manager. And this is its sales pitch for Americans to use the loophole. The pitch lays out how lucrative one of these Maltese accounts could be for different kinds of people. Like, for example, they talk about this made-up person, Max Franklin, a venture capitalist at a boutique private equity firm in New York, who owns a chunk of a company that's about to be sold for $15 million profit. So the materials say he would have to pay federal and New York tax on the gain of approximately $4.725 million.

11:48But the bottom line is that he would, quote, really prefer to have the full amount available for his retirement. Luckily, the pitch goes on. And if Max hires the right people, there is a way for him to avoid this. Because of Malta's amazing retirement laws, if he just puts a chunk of the company into a Maltese retirement account, when the company is sold, the proceeds will land in his account tax-free. And when he hits $50, he can start getting his money out, also tax-free, without ever setting foot in Malta.

12:21Because of our amazing tax treaty with Malta. Andrew says, unlike a lot of loopholes, this one actually had an air of legitimacy. So people started to advertise it publicly in law journals. Saying, yeah, we know this looks too good to be true. But whether it was a mistake or not, it's right there in the treaty. Unlike some of these other loophole-y type things, the authors and people really believed in it. I think it's really important to emphasize. The public might look at this and say there's something really shady and creepy about this. But I think the fact that they published public articles about this meant they really believed in it.

12:56And that they were not trying to hide anything. But it seems like they also knew this might not last for long. Like there was a ticking clock. Talking about this publicly meant the IRS would see it and take a good hard look. A tax loophole is a wasting asset. If you really believe that this was a mistake that was made, then you know it has a limited life. And so you have to figure out how do I squeeze the juice out of it as much as possible. And squeeze they did. Yeah, my sources say hundreds of taxpayers use the loophole.

13:27And they estimate billions of dollars went into these accounts. One attorney told my colleague that his client had between $100 and $300 million stashed away in Malta. And when those taxpayers put that money in there, nobody was giving them any trouble. That didn't happen until the next chapter of the story.

The Crackdown

13:44The crackdown. Right. This next part is about the moment that line between legit loophole and illegitimate tax shelter comes into focus. These tax professionals have been pushing on one side of that line. Now the government is going to start pushing back from the other side. Which brings us back to Carolyn, the lawyer who spent nearly two decades at the IRS. In 2021, she says, The IRS was soliciting from their staff candidates for this list they put together every year where they call out tax schemes that people should be very wary of.

14:16Like, do this at your own risk because it might come back to bite you. It's called the dirty dozen list. I mean, I guess it sounds a lot sexier than it probably is.

14:28But it's literally like a laundry list of all of these abusive schemes. Everyone at the IRS is duking it out to get their favorite tax scheme on the list. And Carolyn is digging into the Malta thing. I called up my friends, the lovely agents at the Offshore Compliance Initiative Group. And these are awesome crack agents. I mean, they scraped a lot of the data that we already had. They did a deep dive to any mention of it on the internet, on YouTube, on any of these videos, on any of these websites. We also floated it around to some of the private practitioners at the time.

15:02That means tax lawyers? Tax lawyers, right. Said, hey, have you heard of this? And they more or less confirmed that they were aware of this and aware of, you know, clients that were doing this. You know, we seem to be the only ones who weren't invited to this party. And she says one way the IRS figures out if something is legit or not is whether there's any economic logic to it other than avoiding taxes. There's a technical term for this that holds up in tax court, the economic substance doctrine. What is the real purpose of this? Like, is there a business reason a person or a company might need a Maltese account?

15:36Does this make economic sense other than the purpose of doing a turn and burn on the asset and then sheltering the gain? It does not. Yeah, it did not. So she nominated it for that year's Dirty Dozen list, arguing that putting your highly appreciated assets into a Maltese retirement account, like imaginary Max Franklin sticking his chunk of a company in there, is a tax shenanigan. A move that ultimately denies the American government and people the money they're due. My pitch was, this is an incredibly abusive scheme.

16:09We got to put this out there because it seems legitimate. We think taxpayers are going to get pulled into this. We need to get the word out there. This has got to go. In 2021, the IRS makes its first big public announcement, that it's aware of the Maltese loophole and skeptical. It sends out a big press release saying putting appreciated assets into Maltese retirement accounts in order to avoid taxes is probably sketchy. We're looking into it and officially adding it to the Dirty Dozen. Is that a huge day for you? Just walking to the office with a lot of bravado?

16:39You got him. Drop the list. Boom. I mean, it was a shot across the bow to those promoters out there, like, hey, we see you, you know? But then also to the taxpayers, like, hey, we got you. Like, don't do this. Yeah. Dirty Dozen activated. Industry put on notice. But the loophole was still out there. They needed to figure out a way to truly close it. And it turned out that inside of the treaty, there contained a little important take-backsies clause, which said, basically, if there's something that's not clearly defined in the treaty, we can come back to it.

17:18And so, in late 2021, the IRS and Maltese officials met and clarified something. They said, oh, by the way, when the treaty said the U.S. would honor the terms of these Maltese retirement accounts for Americans, it didn't mean that Americans could put in highly appreciated assets. It meant they could deposit their already taxed cash, just like in the U.S. In other words, no real estate, no Bitcoin, no chunks of companies. And just like that, less than a year after Carolyn first learned about the loophole, the IRS was able to clarify a previously mushy-mouthed area of tax law.

17:54It was awesome. I mean, the flash to bang is pretty fast, right? I mean, there was a very short period of time that transpired here. And then all of a sudden, we're standing here with our treaty partner right next to us, standing in a joint statement. This was a scary time for people who did this Maltese thing. And the whole cottage industry that encouraged them to do it. Because the government had sort of shifted that line between legitimate and illegitimate. They said, you cannot use that loophole.

18:24And actually, you maybe never could. So like the wealthiest Americans always do, they said, okay, we won't. No, of course they didn't do that. Their lawyers and advisors started to meet to strategize on how they were going to fight back against the IRS and protect their loophole. After the break, we hear someone who is now one of the most powerful tax officials in President Trump's administration on tape, leading the charge to protect the Malta tax loophole. This message comes from American Home Shield.

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20:45So advertise on LinkedIn. Spend $250 and get a $250 credit. Just go to LinkedIn.com slash NPR pod. Terms and conditions apply. So, you've got all these very wealthy people with millions, even billions of dollars in these Maltese retirement accounts. But now the IRS is telling them, no, you can't be putting your chunks of companies or any appreciated assets in there. But just because the IRS says, uh-uh, doesn't necessarily make it so.

21:17As much as they want to draw a clear line between legit loopholes and illegitimate tax shelters, sometimes people fight back. Especially people with a lot at stake. Right. So that's where this story goes next.

Fighting Back Against the IRS

21:30The tax lawyers and wealth managers and peddlers of these Maltese retirement accounts started to organize. In early 2022, they had their first meeting. It was a video call. So how many people have you got coming on the call? Someone recorded it, and I ended up with a copy. 20-thumbish schedule. Now, in these tapes you're hearing, nobody's saying anything illegal. They're not a gotcha kind of recording. What's extraordinary about them is that we don't usually get to hear how the wealthiest Americans or the tax professionals who help them push to pay less in taxes.

22:02In these tapes, you hear how malleable that line between legal loophole and not-so-legal tax shelter really is. On the call, they introduced this high-powered lobbyist, Kenneth Keyes. He is one of the top, if not the major tax lobbyists in Washington, D.C. So with that, Ken, I'm sending the program over to you. Okay, so let me... Ken Keyes today has some very important jobs at the Treasury Department and the IRS.

22:33The government told us in a statement that Mr. Keyes never lobbied on behalf of the Malta pension issues. But in the recordings, you hear him walking people on the call through some of the possible strategies to defend the Malta loophole. He's hoping to get Congress involved because, in his telling, the IRS should not be allowed to modify the American tax treaty with Malta. Just because you were able to affect bully Malta into signing this document, it doesn't make what it says accurate or correct.

23:03He argues treaties are the domain of Congress, so the IRS overstepped. Their changes don't count. And if you want to change the Malta treaty, you have to follow the process that is essentially laid out in the Constitution. He talks about the senators he hopes to get on their side. Rand Paul potentially is a good candidate for us to talk to because this is the kind of thing that would just drive him crazy. They're also basically talking about delay tactics. If you get one senator who decides he's going to be outraged about this, he can bring the whole place to a dead stop.

23:39For some things in tax, if you can make it past the statute of limitations, you can sleep easy. Over 20 members of the Senate Foreign Relations Committee, we probably only need to win one. This group holds several meetings. I've listened to hours and hours of them talking. And at times, they sound pretty confident that they're going to get their way. But in 2023, the IRS really goes on the offense about this. They propose a rule. We'll call it the come clean rule, which says if you or someone you advise stashed your appreciated assets into a Malti's account, you got to come tell us.

24:15Come clean. Pay what you owe. And if you don't, we can penalize you. And there's an important political context here. Yeah, they're hiring tons of people. The wind is at Carolyn's back. She thinks this rule has a great chance of making it officially into the Federal Register as a finalized rule. I thought for sure, hey, we are going to finally be able to round out some of these issues. In 2023, according to reporting by Tax Notes and others, the IRS even issued criminal summonses to gather more information on who was using these retirement accounts and who was telling them it was OK.

24:56Carolyn wouldn't go into specifics, but she says they have very powerful tools. They can go to the promoters of these schemes and say, tell me who your clients were, who hired you to set up a Malti's retirement account. Or they go to parcel delivery companies like, say, FedEx and give them a list of tax professionals they're looking at and ask, who have these people sent documents to? The goal is to identify the John Doe. And so by getting their address, like, boom, that's awesome. But in the middle of this big push to close up this loophole, a few things happened.

25:30Donald Trump was elected president. Doge cleared out a bunch of IRS staff. And that guy you heard on the calls describing the industry's defense of these Malti's retirement accounts, Kenneth Keyes, he got two huge jobs in the administration. Assistant Secretary of the Treasury and acting IRS chief counsel, meaning Keyes became the head of all tax policy and tax enforcement in the country. We reached out several times over several weeks to the Treasury and the IRS asking for an interview with Keyes.

26:00They didn't give us one. But they gave us a statement saying, Assistant Secretary Keyes has recused himself from all matters related to Malti pension plans and his capacity at Treasury and the IRS. Carolyn, if it isn't obvious, is no longer on the case. She does not work for the government anymore. Like a quarter of the IRS's staff, she left when Doge was gutting the agency. After 20 years of working there, she took early retirement. Did you have more work to do on the Malti thing?

26:30I did. I think that – I'm trying to figure out how to answer this.

26:39Yeah. I mean there were other things to do on Malti.

26:48Yeah. Meanwhile, we don't know what's going to happen with that come clean regulation at the IRS, the one that would force everyone who did this thing to reveal themselves. What is the status of this rule? As far as I know, the regulation did not become final. I think it died on the vine. You think it's done? At this point, I don't even know where it is. I think it's nowhere. I think it's nowhere. Which means that effort to make Stark the line between legit loophole and illegitimate tax shelter, which started back in 2021, has so far not succeeded.

27:22Carolyn now works for a big fancy law firm. So she's on the other side of things, defending clients against the IRS. Nothing to do with Malta, though. Her law firm does have clients who are involved in the Malta thing, and it was among many firms that joined those strategizing calls. But that was long before Carolyn's time, and she has recused herself from any Malta cases. Since she's recused from the cases and is outside of government now, Carolyn can't really say what's happening with the government's efforts to close the Malta loophole. All we know is that they haven't publicly moved on it for a while.

27:53How do you feel about that? Well, I think the government missed an opportunity to not only, you know, protect the Treasury and the FISC, but also to help taxpayers from, you know, either getting put into these schemes or being convinced to be put into these schemes. So it's disappointing. Yeah. Did you say the FISC? Is that how you say the fiscal situation of the U.S.? Like protecting the bank account of the Gov.

28:24I mean, right? Like America's checking account, right? Before I worked on this story, and maybe this is naive, I kind of assumed that tax law was pretty black and white. Like, if the IRS says something is off limits and you get caught, you got to pay. Their word wins. I did not know that you could just fight back against the feds, tell them that off limits line that you're so sure of, you're wrong. And that you could maybe win. In other words, I thought the Ben Franklin maxim, nothing is certain except death and taxes, was true.

29:01Now I'm not so sure about the taxes thing. If you are in the mood for more planet money in your life, and I know you are, I have a suggestion for you. It is free. It is the Indicator newsletter with fun insights about the economy every week in your inbox. You can subscribe to it at NPR.org slash Indicator Newsletter. You will not regret it. Lauren, an extra special thanks to you for bringing us this story.

29:32And who else at Tax Notes should we thank for helping with this story? Tax Notes legal reporter, Chandra Wallace, and the editorial staff. Thank you, guys. Their website is taxnotes.com. This episode of Planet Money was produced by Luis Gallo with help from Emma Peasley. It was edited by Marianne McCune. It was fact-checked by Sierra Juarez, engineered by Sina Lafredo and Robert Rodriguez. Alex Goldmark is Planet Money's executive producer. I'm Nick Fountain. I'm Lauren LaRicchio. This is NPR. Thank you for listening. This message comes from American Home Shield.

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