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New IRS rules offer relief for Madoff victims

By Ross Kerber
Globe Staff / March 18, 2009
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New IRS rules issued yesterday aim to ease the pain for some victims of Bernard Madoff's swindle and other Ponzi schemes.

The rules allow victims to claim refunds on federal income taxes they paid on what turned out to be phantom investment gains. Madoff has pleaded guilty to operating the largest Ponzi scheme in history, with a value estimated by prosecutors of up to $65 billion.

The long-awaited Internal Revenue Service rules don't promise full recovery of money lost to the disgraced New York money manager. But they should provide significant tax relief by allowing victims to treat much of the money they lost as "theft losses," rather than ordinary investment losses, for which deductions are capped at $3,000 per year.

Roger Marino, a cofounder of Hopkinton data-storage giant EMC Corp. who lost an undisclosed amount of money invested with Madoff, said yesterday he welcomed any change to account for the losses.

"Here I've been paying taxes every year for all those gains, which never materialized, so I've been paying taxes on air," Marino said. "I don't see why it's not fair to reclaim taxes paid on nonexistent profits."

"For most taxpayers, this is probably good news," said Gary Hayes of the CBIZ Tofias accounting firm in Cambridge, which represents a number of people who lost money with Madoff. "You at least get some relief."

Doug Shulman, commissioner of the IRS, said in Senate testimony yesterday the new rules follow reports that thousands of investors were duped in dozens of fraudulent schemes. The Madoff case in particular "raises numerous tax and pension implications for the victims," he said.

The rules only apply to cases where specific frauds are alleged by authorities. According to the IRS, for the year in which a fraud is discovered, taxpayers can deduct 95 percent of their net investment minus any funds they recovered either from the perpetrator or insurance organizations such as the Securities Investor Protection Corp. Investors who put money into a fraud through a third party can deduct 75 percent of their net investment.

Importantly, the rules also allow investors to "carry back" the deductions on returns up to five years in the past, or to carry them forward 20 years, which should provide additional tax savings even for investors who parked money with Madoff for a decade or longer.

Joseph Devlin, assistant dean of the Massachusetts School of Law in Andover, said the rules also will help many investors by allowing victims to take losses quickly. But not all victims will be helped by the changes, he said, including nonprofit charities that aren't subject to income taxes and don't benefit from tax breaks.

That includes some of Madoff's best-known Massachusetts investors, including the Robert I. Lappin Charitable Foundation in Salem, which has shut down and reorganized after sharp losses, and the Carl and Ruth Shapiro Family Foundation in Boston, which lost almost half its assets, or about $145 million.

Ross Kerber can be reached at kerber@globe.com.

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