Tax Gap: Administration Proposal to Require Information Reporting on Merchant Payment Card Reimbursements
Tax Gap: Administration Proposal to Require
Information Reporting on Merchant
Payment Card Reimbursements
Updated July 31, 2008
James M. Bickley
Specialist in Public Finance
Government and Finance Division
Tax Gap: Administration Proposal to
Require Information Reporting on Merchant
Payment Card Reimbursements
Summary
The high current and forecast budget deficits as well as pay-as-you-go
(PAYGO) procedures have resulted in congressional and executive branch interest
in raising additional revenue through proposals for improved tax compliance. The
Bush Administration’s FY2009 budget includes a proposal (the proposal) to require
each payment card processor to inform the IRS on the net dollar amount paid to
reimburse each merchant (i.e., seller) for his payment card receipts in a calendar year.
Payment cards consist of both credit cards and debit cards. The card processor is
responsible for delivering the payment card transaction to the appropriate card issuer
in order that the customer is billed and the merchant receives funds for the purchase.
The proposal would allow the IRS to compare the aggregate net payment card
amounts reported by processors with the payment card amounts reported by
merchants. The proposal would be effective for payment transactions made on or
after January 1, 2010. The Bush Administration maintains that this third-party
reporting would significantly increase compliance.
The payment card industry has several possible configurations. A configuration
may consist of four parties, three parties, or two parties. A four-party system would
include a payment card association, a card issuer, a merchant acquirer, and a
processor. Regardless of the number of parties in the configuration, the processing
function is the point where the proposed reporting requirement would apply.
The Treasury argues that the proposal would yield substantial revenue because
of third-party reporting, which has been shown to significantly increase compliance.
Proponents maintain that the proposal would improve the allocation of productive
resources. They also claim that private sector compliance costs would be reasonable.
And, they argue that the IRS has the ability to process additional information returns.
The proposal is not without its critics. Some question the accuracy of the U.S.
Treasury estimates of the revenue yield. Opponents also are concerned about the
possible reduction in privacy from the proposal. In addition, they maintain that
private compliance costs would be substantial. Some argue that numerous potential
administrative difficulties have not been addressed, and there would be a
disproportionate burden on small businesses.
The proposal was included as a revenue offset in H.R. 6275, the Alternative
Minimum Tax Relief Act of 2008, which passed the House on June 25, 2008, and
was referred to the Senate Committee on Finance. The proposal was also included
as a revenue offset in H.R. 3221 , the Housing and Economic Recovery Act of 2008,
which was signed into law (P.L. 110-289) by President Bush on July 30, 2008. The
inclusion of the proposal in a public law will obviously preclude its use as a revenue
offset in future legislation including any patch or reform of the alternative minimum
tax (AMT).
This report will not be updated.
Contents
Current Law......................................................1
Proposal .........................................................2
Structure of the Payment Card Industry.................................2
Justifications for the Proposal........................................4
Revenue Yield Due to Third-Party Reporting........................4
Improved Economic Efficiency...................................4
Reasonable Private Sector Compliance Costs .......................5
Current Reporting Practices of Payment Card Processors...........5
Compliance Costs of Existing Information Reporting..............5
IRS’s Ability to Process Additional Information Returns...............6
Criticisms of the Proposal...........................................6
Accuracy of Revenue Estimates...................................6
Privacy Concerns..............................................7
High Private Compliance Costs...................................7
Administrative Issues...........................................7
Disproportionate Burden on Small Businesses.......................8
Revenue Offset in H.R. 6275 and P.L. 110-289..........................9
Tax Gap: Administration Proposal to
Require Information Reporting on Merchant
Payment Card Reimbursements
The high current and forecast budget deficits as well as pay-as-you-go
(PAYGO) procedures have resulted in congressional and executive branch interest
in raising additional revenue through proposals for improved tax compliance.1 The
Bush Administration’s FY2009 budget includes a proposal (the proposal) to require
each payment card processor to inform the IRS of the net dollar amount paid to
reimburse each merchant (i.e., seller) for payment card receipts in a calendar year.
Payment cards consist of both credit cards and debit cards. This report examines the
proposal by describing current law, presenting the proposal contained in the FY2009
budget, describing the structure of the payment card industry, analyzing the
justifications for the proposal, and explaining the criticisms of the proposal.
Furthermore, there is a description of the inclusion of the proposal as a revenue offset
in H.R. 6275 (Alternative Minimum Tax Relief Act of 2008) and H.R. 3221
(Housing and Economic Recovery Act of 2008), which was signed into law (P.L.
110-289) by President Bush on July 30, 2008. P.L. 110-289 requires information
reporting on merchant payment card reimbursements on returns for calendar years
beginning after December 31, 2010. The inclusion of the proposal in a public law
will obviously preclude its use as a revenue offset in future legislation including any
patch or reform of the alternative minimum tax (AMT).
Current Law
Under current law, a taxpayer making payments to a noncorporate recipient,
which total $600 or more for services or determinable gains in the course of a trade
or business in a calendar year, is required to send an information return to the IRS.2
This information return (generally on Form 1099) indicates the payment amount and
the name and address of the recipient.3 This requirement is far from universal.
Information reporting is not required on many other types of transactions including
1 For an analysis of current PAYGO procedures in the Senate and House of Representatives,
see CRS Report RL34300, Pay-As-You-Go Procedures for Budget Enforcement, by Robert
Keith.
2 U.S. Treasury, General Explanations of the Administrations’s Fiscal Year 2009 Revenue
Proposals, Feb. 2008, p. 65. Available at [http://www.treas.gov/offices/tax-policy/library/
bluebk08.pdf], visited July 10, 2008.
3 Ibid.
payments not in the course of a trade or business and payments for purchases other
than services.4
Proposal
The proposal would require the institution that makes the payment to the
merchant (i.e., the seller) for a card transaction (for example, the merchant
acquiring bank) to make an annual information report to the IRS.
Generally, the reporting institution would be the bank or central organization to
which the merchant sends payment card transactions for actual payment. The
report would state the net total amount paid to the merchant during a calendar
year. The report would reflect appropriate adjustments for amounts that
represent cash advances made by the merchant via the payment card or other
amounts not included in the merchant’s gross income. Where an electronic
payment facilitator or other third party processes payments between a merchant5
acquiring bank and a merchant, the third party would be subject to the
information reporting requirement. Similarly, if payment card transactions of
several merchants are aggregated, the intermediary acting on behalf of the
merchants and actually making the payment to the merchants also would have to
report. In that case, the bank (or central organization) would report only as to the6
intermediary.
The U. S. Treasury estimates that the proposal would yield additional revenue
of $5.735 billion from FY2009-FY2013 and $18.730 billion from FY2009-FY2018.7
The proposal would be effective for payment transactions made on or after January
Structure of the Payment Card Industry
The proposal would require credit- and debit-card processors to inform the IRS
annually about all aggregate reimbursement payments made to merchants. To fully
understand the proposal, an understanding of the structure of the payment card
industry is helpful.
The payment card industry has several possible configurations. A configuration
may consist of four parties, three parties, or two parties. A four-party system would
include a payment card association, a card issuer, a merchant acquirer, and a8
processor. The primary payment card associations are Visa and MasterCard.
4 Ibid.
5 This term is defined on page 3.
6 Ibid.
7 Ibid., p. 66.
8 Ramon P. DeGennaro, “Merchant Acquirers and Payment Card Processors: A Look Inside
(continued...)
“MasterCard and Visa provide the networks through which financial institutions
interact to complete payment transactions pursuant to their respective rules and
regulations.”9 A card issuer is simply a nonfinancial or financial institution (usually
a bank) that issues payment cards. A merchant acquirer is “a card association
member that initiates and maintains relationships with merchants that accept payment
cards.”10 A processor is “an organization that is connected to a payment card
association and provides authorization, clearing and settlement services on behalf of
a member.”11 “The processor is responsible for delivering the transaction to the
appropriate card issuer so that the customer is billed and the merchant receives funds
for the purchase.”12
In a three-party system, the roles of card issuer and acquirer are combined in
one institution.13 Examples of the three-party systems are American Express and
Discover Card.14 For a two-party system, “payment cards are issued by a merchant
to its retail customers for use only at the issuing merchant’s locations.”15 An example
of a two-party system is a department store that issues its own payment cards.
Regardless of the number of parties in the configuration, the processing function
is the point where the proposed reporting requirement would apply. The proposal
states, “Generally, the reporting institution would be the bank or central organization
to which the merchant sends payment card transactions for actual payment.”16 The
Treasury’s description of the proposal gives an example of the processor as “the
merchant acquiring bank.” The processor would inform the IRS of the net dollar
amount paid to reimburse each merchant for their payment card receipts in a calendar
year. This reported amount by the processor can be compared with the amount
reported by the merchant to the IRS.
8 (...continued)
the Black Box,” Federal Reserve Bank of Atlanta Economic Review, First Quarter, 2006, p.
28. Available at [http://www.frbatlanta.org/filelegacydocs/erq106_degennaro.pdf], visited
July 10, 2008.
9 American Bankers Association, White Paper on the Administration’s Proposal to Require
Information Reporting on Merchant Payment Card Reimbursements, June 8, 2007, p. 2.
10 Indiana University, Office of the Treasurer, “Glossary of Payment Card Terms,” p. 1.
Available at [http://www.indiana.edu/~iutreas/pmtcardterms.html], visited July 19, 2008.
11 Ibid., p. 5.
12 DeGennaro, p. 31.
13 American Bankers Association, White Paper on the Administration’s Proposal to Require
Information Reporting on Merchant Payment Card Reimbursements, p. 2.
14 Ibid.
15 Ibid.
16 U.S. Treasury, General Explanations of the Administration’s Fiscal Year 2009 Revenue
Proposals, p. 65.
Justifications for the Proposal
The Treasury maintains that the proposal would raise substantial revenue at a
relatively low cost. The Treasury further asserts that “some merchants are
underreporting gross income derived from payment card transactions.”17
Justifications for the proposal are high revenue yield, improved economic efficiency,
reasonable private sector compliance costs, and the ability of the IRS to process
additional information returns.
Revenue Yield Due to Third-Party Reporting
The Treasury argues that the proposal would yield substantial revenue because
of third-party reporting, which has been shown to significantly increase compliance.18
The Internal Revenue Service has estimated individual income tax underreporting by
“visibility” categories for 2001. For income subject to little or no information
reporting, the net misreporting percentage was 53.9%.19 For income subject to some
information reporting, the net misreporting percentage was 8.6%.20 These data
suggest that the proposal would substantially reduce noncompliance.
In addition, payment card reimbursement information for a business could be
used to determine if revenue from cash payments to the business has been
understated. Former IRS Commissioner Mark Everson gave the following example:
What this would do is if you had a dry cleaning business, for example, and let’s
assume that the typical breakdown of that revenue is 50 percent credit and 50
percent cash, and if you were reporting to us $1 million in revenues, and then we
got a notice from a series of credit card issuers that there was actually $1 million
of credit card revenues from that business, that would raise a real red flag and21
might prompt an audit. It would certainly prompt a communication.
Improved Economic Efficiency
Proponents argue that the proposal would improve the allocation of productive
resources. Better tax compliance due to greater enforcement causes some resources
to shift to away from sectors of the economy where they were attracted by the ease
of tax evasion. These resources will shift to other sectors where they will now earn
a higher after-tax rate of return.
17 Ibid.
18 Ibid.
19 U.S. Treasury, Internal Revenue Service, Feb. 2007, Tax Gap Data for 2001, p. 2.
Available at [http://www.irs.gov/pub/irs-utl/tax_gap_update_070212.pdf], visited July 10,
20 Ibid.
21 U.S. Congress, House Committee on the Budget, Hearing on IRS and the Tax Gap,
Testimony of Mark Everson, Commissioner, Internal Revenue Service, Feb. 16, 2007,
Washington, U.S. Govt. Print. Off., p. 20. Available at [http://budget.house.gov/hearings/
Reasonable Private Sector Compliance Costs
Proponents argue that private sector compliance costs would be reasonable as
indicated by current reporting practices of payment card processors and compliance
costs of existing information reporting.
Current Reporting Practices of Payment Card Processors. The
payment card processors (usually banks that have issued payment cards) already
report summaries of payment card transactions to both customers who have
purchased goods and services and merchants who have been reimbursed for selling
these goods and services.22 Thus, former IRS Commissioner Mark Everson argued23
that the proposal merely required that available information be sent to the IRS.
Compliance Costs of Existing Information Reporting. The
Government Accountability Office (GAO) conducted a study concerning two
information reporting proposals: merchant payment card reimbursements and
payments to corporations. One of the purposes of this study was to identify the24
compliance costs of existing information reporting using case studies. A finding
of low existing compliance costs would suggest that compliance costs of additional
reporting requirements may also be low.
GAO examined nine case studies to determine “the kinds of third-party
compliance costs that may result from merchant payment card reimbursements.”25
GAO obtained some of its information through structured interviews. GAO
interviewed five companies that it selected “from lists of vendors, IRS approved e-26
filers, and Information Reporting Program Advisory Committee members....” GAO
also interviewed four organizations volunteered through International Accounts27
Payable Professionals or the National Federation of Independent Business. GAO
found the following:
In our nine case studies, filers of information returns told us that existing
information return costs, both in-house and for external payments, were
relatively low. In-house compliance costs included the costs of getting taxpayer
identification numbers (TIN), buying software, tracking reportable payments,
filing returns with IRS, and mailing copies to taxpayers. One small business
employing under five people told us of possibly spending three to five hours per
year filing Form 1099 information returns manually, using an accounting
package to gather the information. An organization with more than 10,000
employees estimated spending less than .005% of its yearly staff time on
preparing and filing Forms 1099, including recordkeeping. Two external parties
22 Ibid.
23 Ibid.
24 U.S. Government Accountability Office, Tax Administration: Costs and Uses of Third-
Party Information Returns, GAO-08-266, Nov. 2007, summary page.
25 Ibid., p. 2.
26 Ibid.
27 Ibid.
reported prices for preparing and filing Forms 1099 with IRS of about $10 per
form for five forms to about $2 per form for 100 forms, with one of them
charging about $.80 per form for 100,000 forms. As expected, unit prices for
services provided to payers by selected software vendors, service bureaus, and28
return preparers decreased as the number of forms handled increased.
GAO notes that the case study results are intended to provide examples and are not
generalized to the entire population.29 The sample is not random and is too small to
yield statistically significant results.
IRS’s Ability to Process Additional Information Returns
GAO found that the IRS could process additional information returns. For
FY2008, IRS budgeted $8.0 million for programming and start-up costs for the
payment card proposal. The IRS estimated administrative implementation costs after
FY2008 would be $12.7 million.30
Criticisms of the Proposal
Criticisms of the proposal concern the accuracy of the revenue estimates,
privacy concerns, third-party compliance costs, administrative issues, and burden on
small businesses.
Accuracy of Revenue Estimates
Some opponents of the proposal question the accuracy of the estimated revenue
yield.
In the FY2007 report, the Treasury estimated that the reporting requirement
would help generate $9 million in 2007, $92 million during the years 2007-2011,
and $225 million during the years 2007-2016. In contrast, the FY2008 report
stated that the reporting requirement would help generate $113 million in 2008,
$3.3 billion during the years 2008-2012, and $10.8 billion during the years 2008-
2017. Both the FY2007 and FY2008 report are based on data gathered from the
jumped astronomically from 2007 to 2008.
Furthermore, as previously indicated, the U.S. Treasury estimates that the proposal
would yield $5.735 billion from FY2009-FY2013 and $18.730 billion from FY2009-
28 Ibid., p. 3.
29 Ibid., p. 2.
30 Ibid., p. 65.
31 Carla Balakgie, Executive Director of Electronic Transactions Association, Statement
before the House Committee on Ways and Means, Subcommittee on Oversight, Hearing on
Internal Revenue Service Operations and the Tax Gap, April 3, 2007, p. 3. Available at
[http://waysandmeans.house.gov/hearings.asp?formmode=printfriendly&id=5919], visited
July 10, 2008.
FY2018. The proposals are the same in the FY2008 and FY2009 budgets, but the
U.S. Treasury offers no explanation for the substantial rise in its estimated revenue
yield.
In addition, the effect on revenues of a possible behavior response are unknown.
Some merchants may require or encourage their customers to pay them in cash rather
than by payment card, in order to prevent the IRS from obtaining full information
about their payment card sales.
Privacy Concerns
Some opponents are concerned about possible reductions in privacy from the
proposal. For example, a spokesperson for the NSBA (National Small Business
Association) stated that “NSBA fully supports efforts to collect legally owed tax
revenues, but not at the undue expense of the privacy and integrity of honest, hard-
working entrepreneurs.”32
High Private Compliance Costs
GAO found that new information-reporting requirements for payment card
reimbursements would impose new compliance costs such as “(1) merging separately
stored taxpayer and merchant identification numbers, especially in the case of
multiple locations or franchises; and (2) more generally, new systems and added33
customer service requirements.” But some of these compliance costs could be
mitigated. For example current systems and procedures that generate and report34
related data could be extended.
Administrative Issues
Some opponents argue that before the proposal can be formulated into
legislation, numerous potential administrative issues need to be addressed such as
definitions of terms, reporting of transactions, timing of transactions, and35
administrative procedures. The actual settlement process for payment cards can be
com p l i cat ed.
32 Paul Hense, Immediate Past Chairman of the National Small Business Association,
Statement before the House Small Business Committee, Hearing on Closing the Tax Gap
Without Creating Burdens for Small Businesses, April 26, 2007, pp. 5-6.
33 U.S. Government Accountability Office, Tax Administration: Costs and Uses of Third-
Party Information Returns, p. 15.
34 Ibid.
35 Many of these difficulties were examined by the American Bankers Association (for
example, see American Bankers Association, White Paper on the Administration’s Proposal
to Require Information Reporting on Merchant Payment Card Reimbursements, pp. 8-11.
Another source for an explanation of administrative difficulties is Martin A. Sullivan,
“Treasury Expects Billions from Credit Card Reporting Proposal,” Tax Notes, vol. 115, no.
In its report, GAO indicates some policy options to mitigate potential problems.
In its description of the proposal, the Treasury does state that
The proposal would grant regulatory authority to allow exceptions from the
requirements where the benefit of improved compliance from information
reporting is outweighed by the cost of compliance, and to prevent double36
reporting of amounts potentially reported under other provisions.
Two examples of likely administrative difficulties serve to demonstrate the
complexities of the proposal. First, “transactions processed on one day may be
subsequently reversed when cardholders return merchandise or invoke their rights
under the federal Truth in Lending Act, Electronic Fund Transfer Act, or similar state37
laws.” Cardholders may be entitled to credits from their card issuers, which can
result in the transaction being reversed or “charged back.” The proposal does not
discuss this issue.
Second, a gift card may be sold in one time period but used to purchase a
product in a latter time period. If the initial sale of the gift card is reported as a
transaction then the seller’s “gross reimbursements” may be overstated. The proposal
does not address the issue of gift card sales.
GAO indicates several possible methods of mitigating charge backs, gift cards,
and other items that may cause payment reimbursements not to match merchant
receipts. For one of its methods of mitigation, GAO states, “Since IRS is not
planning an exact match anyway, it could announce it was developing industry norms
of net-to-gross ratios to evaluate information, although norms may not be foolproof38
or always possible.”
Disproportionate Burden on Small Businesses
Some critics argue that the proposal would impose a disproportionate burden on39
small businesses. First, the proposal would require payment card processors to
verify a business’s Taxpayer Identification Number (TIN). If the payment card
processor fails to verify the TIN then the processors would be required to withhold
28% of the gross receipts of the business. The President of the National Small
Business Association maintains that this provision would impose a disproportionate
burden on small businesses who may have to prove to the IRS that their TINs are
36 U.S. Treasury, General Explanations of the Administration’s Fiscal Year 2009 Revenue
Proposals, p. 65.
37 American Bankers Association, White Paper on the Administration’s Proposal to Require
Information Reporting on Merchant Payment Card Reimbursements, p. 9.
38 Government Accountability Office, Tax Administration: Costs and Uses of Third-Party
Information Returns, p. 42.
39 For a congressional testimony on this issue, see House Committee on Small Business,
Electronic Payments Tax Reporting: Another Tax Burden for Small Businesses, June 12,
correct.40 Second, the Senior Policy Counsel of the Center for Democracy and
Technology states that small businesses would have greater privacy concerns because
they are more likely to use their Social Security numbers as their merchant taxpayer
identification number.41 Third, the Executive Director of the National Association
of the Self-Employed (NASE) argues that some administrative costs of the proposal
on payment card processors may be passed onto businesses through higher fees for
accepting payment cards, and these higher fees would disproportionately affect small
businesses.42
Revenue Offset in H.R. 6275 and P.L. 110-289
On June 17, 2008, Representative Charles B. Rangel, Chairman of the House
Ways and Means Committee, introduced H.R. 6275, the Alternative Minimum Tax
Relief Act of 2008, which would provide individuals temporary relief from the
alternative minimum tax. One of the revenue offsets was the enactment of “a
proposal contained in the President’s FY2009 Budget to require institutions that
make payments to merchants in settlement of payment card transactions to file an
information return with the Internal Revenue Service.”43 The proposal would be
effective for information returns for reportable transactions for calendar years
beginning after December 31, 2011.44 The Joint Committee on Taxation estimated45
that this revenue offset would yield $9.802 billion for FY2011-FY2018. On June
26, 2008, this bill passed in the House and was referred to the Senate Committee on
Finance
The proposal was also included as a revenue offset in H.R. 3221, the Housing
and Economic Recovery Act of 2008, which was signed into law (P.L. 110-289) by46
President Bush on July 30, 2008. This offset would raise an estimated $9.8 billion
40 Testimony of Todd McCracken, President of the National Small Business Association,
before the House Committee on Small Business, June 12, 2008, pp. 3-4.
41 Testimony of David Sohn, Senior Policy Counsel for the Center for Democracy and
Technology before the House Committee on Small Business, June 12, 2008, pp. 1-2.
42 Testimony of Kristie L. Darien, Executive Director of the National Association of the
Self-Employed (NASE) before the House Committee on Small Business, June 12, 2008, pp.
43 House Ways and Means Committee, The Alternative Minimum Tax Relief Act of 2008,
June 17, 2008, p. 1.
44 Joint Committee on Taxation, Description of H.R. 6275, The “Alternative Minimum Tax
Relief Act of 2008”, June 17, 2008, p. 27. Available at [http://www.house.gov/jct/x-50-
45 Joint Committee on Taxation, Estimated Revenue Effects of H.R. 6275, JCX-51-08, June
46 This proposal is Section 6050w in Subtitle B of Title III of the Housing and Economic
Recovery Act of 2008, H.R. 3221, P.L. 110-289. Available at
[http://www.house.gov/apps/list/press/financialsvcs_dem/hr3221_bill_text.pdf], pp. 681-
(continued...)
over 10 years. The inclusion of the proposal in a public law will obviously preclude
its use as a revenue offset in future legislation including any patch or reform of the
alternative minimum tax (AMT).47
46 (...continued)
47 Heather M. Rothman, “Use of Offset in Housing Bill Leaves $10 Billion Pay-For Hole in
AMT Patch,” Daily Tax Report, July 24, 2008, pp. G5-G7.