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IRS giving relief to some Madoff investors

THE Internal Revenue Service issued guidelines yesterday that will allow tax relief and refunds for some Bernard Madoff victims who were levied for investment earnings that turned out to be nonexistent.

IRS Commissioner Douglas Shulman told Congress the new guidelines are for taxpayers who have suffered losses from pyramid investment schemes such as the massive Madoff swindle.

He said the guidelines will apply to victims of all pyramid schemes - financial scams in which early investors are paid returns from money put in by later investors. But given the scope of the Madoff scandal, the IRS wanted to establish an easy system for investors to recover taxes they paid on "fictitious income," Shulman said.

Thousands of people with billions of dollars invested in various schemes could potentially be affected, experts said.

Madoff investors should have reported earnings from their investments with him through the years - the scheme stretched from the early 1990s to Madoff's arrest on Dec. 11 - and thus paid taxes on those earnings. Given that some of those were "phantom" profits, investors have said they should be entitled to refunds of the taxes they paid.

Investors in some of these cases are entitled to a "theft-loss" deduction, not subject to the limits on normal capital losses from investments, according to the IRS guidelines, Shulman testified at a Senate Finance Committee hearing.

The theft-loss deduction can be taken in the year a fraud is discovered, except to the extent an investor has a "reasonable prospect" of recovering the lost money, Shulman said. Investors will be able to deduct 95 percent of their losses immediately. If they are unable to recover the remaining 5 percent, they can claim those deductions in subsequent years.

Determining the amount and timing of losses from pyramid schemes is "factually difficult" and it can take years to determine the prospects for recovering the lost money, he noted.

Democratic Sen. Charles Schumer, a member of the Finance Committee who has been pushing for tax relief for victims of pyramid schemes, said that with the new guidelines the IRS "has done the right thing here."

"In most every area where there was a major dispute, they have sided with the victims," Schumer said. "These victims were not only sophisticated financial professionals, but also ordinary people who believed they were making safe, responsible investments for their future. The steps announced today mean victims won't owe taxes on income they never received."

If deductions claimed this year result in a "net operating loss" for taxpayers, meaning they would owe no taxes, they can apply excess deductions to prior years, getting a refund for taxes already paid. They can also use the deductions in future years to lower their tax burden, under the guidelines.

By some estimates, the IRS could be out as much as US$17 billion in lost tax revenue from refunds to investors who earned fictitious profits in the Madoff scheme.

"I think it's a very fair procedure the IRS has offered," John Barrie, a tax attorney at law firm Bryan Cave LLP in New York, said by telephone.

The guidelines, which clarify how the IRS is interpreting existing law, are close to some legislative proposals spawned in Congress as a result of the Madoff scandal and a spate of other pyramid schemes recently.

To date, about US$1 billion in assets have been identified for Madoff investors, a tiny portion of the US$65 billion that he told his 4,800 investors he had on hand in November. Authorities say they believe the figure included what would have existed if much smaller original investments had grown for decades.

The 70-year-old disgraced money manager and former chairman of the Nasdaq Stock Market has been living in a small cell at the Metropolitan Correctional Center in lower Manhattan since he pleaded guilty Thursday to securities fraud, perjury and nine other charges. He could be sent to prison for up to 150 years at a June sentencing.

Prosecutors stepped up their scrutiny of Madoff's family and assets Tuesday, telling a federal judge in Manhattan they want to seize jewelry, business interests and more than US$30 million that he and his wife lent to their two sons.

Thousands of victims who lost money investing with Madoff have been identified - including ordinary people, Hollywood celebrities and scores of famous names in business and sports - as well as big hedge funds, international banks and charities in the U.S., Europe and Asia.

The Securities Investor Protection Corp., the industry-funded organization that steps in when brokerage firms fail, has begun sending out the first checks to Madoff victims. Investors are eligible for up to US$500,000 from the organization and have until July to file claims.

Around US$1.6 billion or so is currently available to SIPC.

Shulman said that investors should deduct the US$500,000 they receive from SIPC from the amount they claim as a "theft loss" on their investment.

The IRS expects that statements provided to investors, showing the amounts they put in, should be sufficient documentation to establish losses for filing tax claims, he told the hearing.


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