July 10, 2001

Inside Veritas -
Article 1 -State/region: single family activity falls
Article 2 - Business News & Issues
Article 3 - Rulings explain last fall’s “big $”
Article 4 - Taxation and Finance -Employee v. Independent Contractor or ‘W-2 v 1099’
Article 5 - Sprawl Battle: State v County
Association News Update
Economic Update -
Gasoline Prices + Confidence = Growth?
BS: Still about Nothing in particular

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State/region: single family activity falls But the “Flint” sector of Metro-Detroit is Michigan’s one bright spot

   Michigan’s single family home building activity is off to its slowest start since 1997, according to data posted on the Census Bureau’s web site last Tuesday. For the first five months of the year, 15,594 permits have been issued across the state, 1,698 fewer than during the same period last year, for a year-to-date decline of 9.8%.
   Three quarters of the state’s decline was centered in southeast Michigan, as permits fell in the “Metro-Detroit” area (includ-ing Flint and Ann Arbor) by 1,267 units, or 13.9%. However, most of the region’s decline was confined to the traditional “Detroit” (Wayne, Oakland and Macomb) sector, which saw permits plummet by 1,390 units, or 21%. So, in reality, the “traditional” Detroit area was responsible for 82% of Michigan’s total decline.
   Nearly every Michigan metro-politan area charted by the department experienced a small decline in comparison to 2000, as permits declined in Ann Arbor, Grand Rapids, Kalamazoo, Lansing and “Saginaw” by between 25 and 42 units. The one bright spot was the Flint sector of Metro-Detroit, where permits were up by 156 units (21.9%).
   Not only is “Flint” area activity running well above 2000’s pace, it’s running 11.3% above the 28 year record pace of 1999, when 2,059 units were built for sale.
   The government’s figures are nearly identical to the Housing Consultants’ five month data reported here in the 6/19 issue, which showed Genesee County non- rental permits up 23%, with the rest of the region down 10% (minor differences primarily due to HC’s inclusion of condos), leading to the question: Why is Flint area activity rising when the rest of the state can’t hold even with recent data? Well, most likely it’s not (rising).
   What the January through May single family data tell us is, after roughly eight years of torrid growth, the Metro Detroit area is settling back to a more normal rate of job creation and housing activity. However, since the outlying counties of the metro area (Washtenaw, Livingston and particularly Genesee) have become the region’s “new frontier,” experiencing the biggest upturn in “Detroit” related development in recent years, they are far less likely to be hit with the brunt of the downturn as the older, more traditional building areas.
   So, we find that the Ann Arbor section of Metro Detroit (primarily Washtenaw and Livingston Counties) is experiencing a modest decline, that’s similar in scope to the rest of the state. While the “Flint” sector, which more recently was classified as part of Metro-Detroit, continues to experience the benefits of its new affiliation and, as is evident in the chart above, is taking a greater share of the shrinking regional housing market.

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Business News & Issues

   Like homes, autos sales are running at a much faster than expected pace this year. In fact, some experts believe that sales will actually hit 17 million units by year’s end, barely behind 2000’s record breaking pace of 17.4 million.
   A primary reason for stronger sales has been the affordability factor. Surprisingly, vehicles are far more affordable today than in years past. During this year’s 1st quarter, the average monthly vehicle payment was just 7% of U.S. average monthly income. Fifteen years ago the average monthly payment was 10%.
   In fact, according to an Associated Press report, cars are more affordable today than they have been at any time since ‘79. Of course, rebates and low financing incentives are primarily responsible.

   One brand of vehicle not selling well is the Ford Explorer, so the company is being urged to change its name. Frank DeLano, head of a “brand” consulting firm, told CNN that “once a brand name has a plague on it, it’s time to back away. I think the name is dead.”
   Of course, we suspect Ford will be reluctant ... after all, the owners haven’t changed the name of the Detroit Lions .... a name that’s been plagued for more than forty years.

   A Wall Street Journal note told “plans to expand tax incentives for land conservation are attracting strong bipartisan support.” Under consideration is a 50% exclusion of the gain on sales of land to a government agency or conservation group.

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Rulings explain last fall’s “big $”

   Last fall, Michigan’s trial law-yers, with support from their labor and environmental allies, went on a mission to reclaim control of the state’s Supreme Court, pouring millions of dollars into the campaign coffers of the challengers to incumbent Justices Steve Markman, Cliff Taylor and Bob Young.
   The state’s business community responded to the Lawyers’ challenge, and was virtually unified in its support for the three incumbents. In fact, much to its credit, the Michigan Association of Home Builders political arm made its biggest commitment in the association’s 51 year history.
   At the time, the court had a 5 to 2 pro-business majority, that would swing to a lawyer/labor bent if two of the incumbents were defeated. So, with billions in future jury awards at stake, campaign contributions continued to flow like the fate of the free world was in the balance.
   I haven’t thought much about the Markman, Taylor and Young victories since early on that November 7th evening as, immediately thereafter, the Presidential race took on the persona of the energizer bunny. But a short note in last Wednesday’s Flint Journal gave its importance a true perspecitive.
   The note related to a Supreme Court ruling in a pair of cases that will hardly make a law student’s reading list: Lowry v Pine Knob and McDonald v Pine Knob. Both sued the “concert venue” for injuries resulting from a piece of sod being thrown by other concert patrons.
   What caught my eye was not that the five justice majority held for the defendant. It stated that Pine Knob had a duty to respond to the situation, which it did by calling police, while labeling the incident an “unreasonable risk that’s unforeseeable.”
   What did draw my attention was the minority opinion by Justices Cavanagh and Kelly that Pine Knob should be held responsible because it had control over whether the venue contained sod. In other words, due to a concert ground being sodded, its owner becomes food for a trial lawyer if some idiot rips up the sod and throws it.
   Of course, had the trial lawyers won last November, Cavanagh and Kelly would have been voting in the majority ... and that’s what clearly puts the value of our efforts in perspective.

Barry

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Taxation and Finance ---- Employee v. Independent Contractor or ‘W-2 v 1099’

   If you misclassify a worker as an independent contractor and fail to withhold income taxes, you can be assessed with penalties (1.5% of wages for federal income tax not withheld and 20% of the worker's share of FICA taxes not withheld). Furthermore, you may be assessed with additional penalties of 3% of the federal income tax not withheld, and 40% of the worker's share of FICA if you failed to file a Form 1099.
   The Internal Revenue Service (IRS) has used a common law 20-factor test to determine whether a worker is an independent contractor. However, recent changes in the tax law have made it easier for an employer to fend off the IRS challenge that someone treated as an independent contractor is an employee. For audits beginning in 1997, Section 530 of the Internal Revenue Code (IRC) now provides an exclusion that an individual will not be treated as an employee provided the employer: (1) did not treat the worker as an employee for any period;
(2) did not treat any other worker holding a similar position as an employee;
(3) filed Form 1099 in a timely fashion for each worker, and
(4) has a reasonable basis for not treating the worker as an employee.

   The employer can argue it has a reasonable basis for independent contractor treatment based on three safe harbors:
(1) a judicial precedent;
(2) failure of the IRS to challenge the independent contractor classification on prior audits, and
(3) industry practice to treat such workers as independent contractors.

   A recent IRS summary is designed to clarify the relief that is now available under IRC Section 530. As amended, it states that the reasonable basis standard may also be met when a business owner relied on a business attorney or accountant who knew the facts about the business, when classifying the worker as an independent contractor.
   The burden of proof in applying the Section 530 safe harbors has also been eased for taxpayers. First, the taxpayer must establish a prima facie case that it was reasonable not to treat the worker as an employee. Then, assuming the taxpayer fully cooperated with the IRS in providing relevant information about the treatment of the worker, and one of the three safe harbors exists, the burden of proof shifts to the IRS to show that the worker was not an independent contractor. In short, business owners who wish to treat workers as independent contractors should:

· Treat similarly situated workers identically.
· Determine that it is industry practice to treat such workers as independent contractors.
· Issue Form 1099 to their independent contractors regularly.
· Assess whether there is a judicial or administrative precedent for the treatment.

   In addition, to make certain that the treatment is proper, they can perform a common law analysis based on the IRS’ 20-factor test for determining the relationship between the worker and business owner and who controls the work being performed. Finally, have the independent contractor sign contracts annually specifying the length of the relationship and indicating that the independent contractor is responsible for payment of income and payroll taxes.

R, P & T

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Sprawl Battle: State v County

   As Michigan’s legislative and business leaders focused on the evils of sprawl during the past couple of years, the state had been host to a seemingly endless barrage of “Land Use” conferences and seminars. And, nearly every session contained multiple references to Maryland, a state lauded as a model of virtue by the bastion of so called “smart growth” advocates.
   That’s why a New York Times article noting the proverbial line in the sand drawn by Carroll County (MD) officials vowing to “defend home rule” against intrusive state policies, caught our eye.
   The Maryland fight is over the rezoning of 145 acres to accommodate a golf course community with fifty homes, the largest in the past 30 years in the rural county with a historical reputation for pioneering preservation of agricultural land. The vote by the county commissioner was ruled unjustified under state law in a legal challenge by opponents of the development. However, the ruling was “rendered moot because a new county master plan had already been mapped with the zoning change included,” according to the Times.
   Enter Governor Parris Glendening, a nationally renowned darling of the anti-sprawl movement, who considers Carroll County a “sprawl scofflaw that’s violating state preservation plans.” Glendening says he’s going to use a 25 year old law that allows the state to challenge potentially harmful rezonings, telling the Times his “$21 billion state budget will not be used to subsidize sprawl.”
   One of the commissioners in favor of the rezoning explained it was generated by an “older farm family seeking retirement.” Glendening countered that the family could have sold easement rights under existing state programs, just not for as much, noting it’s “not the government’s obligation to guarantee huge profits to farmers.”
   Michigan farmers being sold the Maryland type of plan should take note: Whose interest does the state really have in its plans?

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Beyond Seinfeld: It’s still about "Nothing" in particular

Vacation Home Trend?
   You’ve always wanted to be a regular at the Cannes Film festival, Carnival in Rio, Grand Prix of Monaco, regattas at the Australian shore, and dozens of other jet set events, but you just can’t afford a vacation home in each venue? Well, “ChristiesGreat Estates” has the answer to your prayers with the “World of ResidenSea,” the world’s first “oceangoing luxury resort,” set to begin its maiden voyage at the first of the year.
   Soon you can have “a home of your own in every major port you’ve ever wanted to live in” ... but hurry, only about 30 of the 110 condos (for lack of a better description) remain available.
   Once it sets sail, The World’s going to “embark on continuous circumnavigation of the globe in pursuit of natural, historic, and cultural attractions. In fact, we could probably get it to dock at Mackinaw Island for MAHB’s summer convention if a few more association members purchase one of those remaining condos, which begin at $2 million for the entry level 1,100 square foot model. And, don’t forget, luxury amenities include “World Class” dining and a 24 hour concierge.

Shocking News: Environmentalists distort facts?
   School kids are recruited into an army of radicals through deceptions and outright lies. This may sound like the 3rd Reich, but it’s actually happening right here in America in 2001. And, who are these 21st Century malcontents who rely on Nazilike propaganda techniques? They’re the activist environmental community who claim to be defending the earth from what most of us call progress.
   The distortions of facts to terrify elementary school children was just one of the tactics featured last Friday on an ABC special about tampering with nature. Throughout the hour, news correspondent John Stossel took a look at environmental claims, ranging from the dangers of global warming, to genetically engineered food, to cloning of human organs, and questioned environmental activists with real scientific facts. He even mocked his own industry’s coverage of environmental issues: particularly the media’s propensity to report environmental claims which just aren’t true.
   The special presented a clear illustration of the lengths the environmentalists will go to deceive the public. (A video tape is available in the BAMF library).

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Association News and Events -- Fall Parade; Regional Meeting; Golf Outing

   Contracts for this Fall’s Parade of Homes were mailed to roughly 110 builder members last week. The event will open on Saturday, October 6th, and run through Sunday, the 21st.
   The entry fee remains $2,500 if received prior to the first (July 23rd) deadline. Hours will remain the traditional noon to six on weekends, with the recent fall weekday schedule (Thursdays and Fridays only; 4 p.m to 7 p.m.). The final deadline will be August 13 (the day before the Golf Outing). Note: Any builder putting more than one home in the event is charged $1,750 for the second, and each additional home.
   Additional contracts and rules are available by calling the office at 810-603- 2200.

   A final reminder on the regional meeting for the eastern region of Genesee County, set for breakfast at 8:00 a.m. July 11th, at Walli’s East. Because of the seminar on the Michigan Residential Code (see below) and the MAHB summer convention, the next regional meeting won’t be held until the first week of August. Check the July 16th Veritas for details.

   As of this morning (Monday), there are 139 golfers registered for the August 14th golf outing (or, we had room for one foursome and a single golfer). We will be compiling a waiting list when those spots are gone.
   There are a few remaining hole sponsorships ... Remember, each sponsored hole has a contest: it’s $150 if the association buys the prize; $100 if the sponsor buys the prize. Normally we have 15 to 18 sponsors.

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Economic Update: Gasoline Prices + Confidence = Growth?

   As we neared the end of the 1st quarter of ‘01, the nation’s confidence was in shambles, we were bracing for gasoline prices of $3 per gallon, stock prices fell as even the Dow Industrials dropped well under 10,000, manufacturing activity was plummeting, several analysts believed recession was imminent, and some even thought Alan Greenspan’s legacy was in jeopardy. Today, as we begin the 3rd quarter, confidence has been on the rise for three of the past 4 months, the “Dow’s” back in the 11,000 range, manufacturing appears to have bottomed out and gasoline prices are well below their June ‘00 level.
   In reality, it’s the gas prices that may be the most important of these issues. In spring, much of the concern related to the likelihood of higher gasoline prices cutting into households’ disposable income, creating a ripple effect that would reduce consumer spending on other commodities and, ultimately, drive the economy into recession. Now there’s a feeling that today’s lower gas prices could be the key that restores the nation’s growth to a solid level.
   Let’s remember, each of the past 3 economic recessions were preceded by a substantial spike in energy prices. As prices for gas, heat and electricity sap the consumer’s wallet, there’s far less remaining for other expenditures. And, the resulting affect on consumer prices, and ultimately every “cost of living” related payment by business and government, saps budgets and profits alike. So, higher energy prices have a drastic affect America’s economic psyche.
   Last Thursday (one day after the Federal Reserve cut rates for the 6th time this year) Greenspan told the Economic Club of Chicago that recent declines in the price, and rise in supplies, of gasoline and natural gas “give hope” that the worst” for the country may be over. Add that to the fact that Fed cut rates just 1/4 point (rather than 1/2), further suggests the “man in charge” truly believes, like a growing number of economists, that solid growth is about to be restored in the second half of the year. In other words, as he did in the mid ‘90s, it’s beginning to look like he engineered another “soft landing.” Which means there’s one more point to be made regarding the changes from late March to the present .... Greenspan's legacy no longer appears in jeopardy.

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Housing Industry Update

New Housing Data Solid
   All measures of the nation’s housing activity remained solid according to data released during the final half of June. Even though housing starts declined during the month, the drop was “miniscule” at 0.4%, as both single and multi family production fell modestly. But the 1.62 million unit rate was higher than forecasts, as housing continues to outperform market expectations.
   Regionally, the Midwest was the leader with an increase of 15.8%, while the West showed a modest rise. Starts were off slightly in the South, but plummeted more than 28% in the Northeast. Permits were up 2.1 percent nationally, a 1% in the Midwest.
   The Commerce Department also reported new home sales continued their record pace for the year, and were on the rise during May, up 1% from April at a seasonally adjusted rate of 928,000 units. It also noted that sales were 9% above the rate of May ‘00.
   In actual numbers, the industry’s sold 423,000 new homes during the first 5 months of the year, an 8.7% rise over the January through May period a year ago (note: mortgage rates were at 8.62% last May).
   As we reported last month, the department revised the way it calculates new housing activity. So, the historical record for new sales is 885,000 units in 1998. So far this year, homes sold at an annual rate of 948,000.

Existing Sales Rise 2.9%
   Existing home sales also continued to exceed expectations, according to the National Association of Realtors’ monthly release last week, stating that sales were up 2.9% to a near record rate of 5.37 million, as the real estate industry is also on pace for a record breaking year. Although the industry’s trade association has yet to make such a prediction, sales rates for the five months of 2001 have averaged 5.28 million, above the 5.205 million record set in 1999. Furthermore, through the first five months of the record year, sales averaged slightly under 5.2 million.
   Since mortgage rates have been on the rise, though slightly, since the beginning of the year (see page 12), while the economy continued to slow, forecasters have been expecting sales to slow ... but it just isn’t happening.
   Nationally, the median existing home price was up 5.7% since May 2000, to $145,500. In the Midwest it was up 3.9%, to $124,000.

Housing Market Index Gains
   Roughly two-thirds of Home Builders surveyed for NAHB’s monthly housing market index (HMI) feel positive about the current sales outlook, along with their expectations for the next six months. Association President Bruce Smith noted, in a release of the June HMI, that “builders’ assessment of the condition of the single family housing market are remarkably upbeat, considering the state of the overall economy and the job market.”
   The one area where builders show discontent is in traffic of prospective buyers, which has remained low, even when the HMI as a whole, was at a record level.
   Still, the overall index climbed back to 58, equaling its highest level this year.

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