Taxpayers, investors and the stock market anxiously awaited the changes promised in the American Taxpayer Relief Act of 2012 (the Act) only to find that most passed provisions in the Act generally create more questions and concerns for the 2013 tax year and beyond.
To help unravel the changes made to the current tax laws that impact business owners, Smart Business spoke with Cathy Goldsticker and Robin Bell, tax partners at Brown Smith Wallace LLC. They outlined the Act’s relevant changes and the ways business owners can take advantage of many of its provisions and identify areas for tax planning opportunities.
What effect did the extension of many tax provisions have on business tax?
One key business provision is the ‘Section 179’ expensing election for first year tax write-offs of furniture and equipment, which has been retroactively increased to what it had been in 2011. For 2012, there is a $500,000 immediate write-off available on up to a $2 million investment in equipment and furniture. Without this change, it would have been $139,000.
This means, if you bought more than $2 million in qualifying business assets, you would lose the ability to write off the $500,000 in year one. Conversely, if you bought qualifying assets in 2012 that totaled less than $2 million, you can write off $500,000 in 2012 immediately and depreciate the remaining purchase price over the prescribed IRS life.
The change ultimately results in added choices for business owners because, for some businesses, writing off $500,000 in 2012 is not such a good idea. For an S Corp. or a partnership, for example, it may be better to take the write-off over several years because the rates for higher-income individuals, which will be a marginal rate of 39.6 percent instead of 35 percent, makes waiting generally the better option. However, if you have a high income this year, but next year, you anticipate it will be lower, it might make more sense to take it in 2012.
On the other side, since the tax rates of C Corps. remain at 35 percent and it’s unclear whether rates will change, it would probably behoove that type of company to take the immediate expensing.
Additionally, the 50 percent bonus depreciation for the purchase of new business assets was retroactively reinstated to the beginning of 2012. But faster depreciation might not be the best choice if you expect a bigger benefit from a future deduction, similar to the Section 179 consideration. Also, the research and development credit was made retroactively available for 2012.
Were any permanent tax law changes made?
The one permanent tax law change that receives attention year after year relates to the alternative minimum tax and is referred to as ‘the AMT patch.’ It’s mostly applicable to middle-income and lower earners and has become permanent at $78,750 (married amount), with annual inflation adjustments. AMT affects business owners because many operate as S Corps. and partnerships, which means the tax is paid by the owner(s), not the business.
Another permanent tax law change is the estate and gift tax exclusion that’s now $5.12 million. It was widely believed that after 2012, the exclusion would decrease significantly by reverting back to the pre-2001 tax law amount. When it was believed it would expire, many undertook gifting and other estate planning measures before the end of 2012. Freezing it at the higher level enables many more people to take advantage of this provision.
What are the tax benefits for C Corps. that elect to become S Corps.?
There was a reduction in the S Corp. recognition period for built-in gains tax. If you’re currently a C Corp., you can make an election to be treated as an S Corp. for income tax purposes. When you make the election, you may have a double tax (built in gain tax) on certain asset dispositions during a 10-year period. Historically, the rule has been that from the day of conversion for 10 years, certain assets sold had additional income tax due on the difference between your basis in them at that time and their fair-market value. The 10-year period became five years for 2011 and that will continue for 2012 and 2013 under the Act. This provision is making it easier to avoid double taxation on certain assets or selling your business, but it’s also accelerating some collection by the IRS because in the first year there may be revenue to collect on certain transactions.
There are many reasons to change from a C Corp. to an S Corp., but the driver of avoiding double taxation could be part of a sound tax strategy. The Tax Act has raised the individual tax bracket up to 39.6 percent for higher-income taxpayers, so it’s possible a C Corp. structure, which utilizes a 35 percent maximum tax rate, is better.
Another permanent tax law change is the estate and gift tax exclusion that’s now $5.12 million. It was widely believed that after 2012, the exclusion would decrease significantly by reverting back to the pre-2001 tax law amount. When it was believed it would expire, many undertook gifting and other estate planning measures before the end of 2012. Freezing it at the higher level enables many more people to take advantage of this provision.
How were individual tax laws affected?
Although tax rates for lower-income taxpayers remain the same, higher income ($450,000 or higher) will now have a marginal tax rate of 39.6 percent (married taxpayers). Also, the capital gains and dividends tax rate is now 20 percent for higher-income taxpayers instead of 15 percent. These are just the basic income tax rates stemming from the 2012 Tax Act, but there is also a 3.8 percent Medicare tax coming with the implementation of health care reform on much of the same income. Another Tax Act provision reduces the tax benefits of personal exemptions and itemized deductions. Individual taxpayers are going to lose some itemized deductions and some or all of their personal exemption deductions as their income grows (phase-outs). This was the case when the Bush tax laws were in effect a few years back and didn’t get changed, modified or removed with the 2012 Tax Act. For the 2010 and 2011 tax years, these itemized deductions and personal exemption phase-outs disappeared. Because Congress didn’t do anything permanent to change the law, the phase-outs are in effect again, so the tax benefits for these two items are reduced.
What changes were made to estate and gift taxes?
The tax rate increased from 35 percent to 40 percent on taxable estates or deceased individuals with assets in excess of $5.12 million, indexed for inflation.
If you haven’t given away roughly $5 million from your estate in 2012, you have another chance because the larger exclusion remains in the law.
Another important aspect of the estate and gift tax is the portability feature of the exclusion. Historically, one person was entitled to an exclusion when they died. The Act made permanent a provision that allows one spouse to pass their unused estate exemption to their living spouse, doubling the amount the surviving spouse can gift during their lifetime without incurring a tax.
There are effects on this portability provision should the surviving spouse remarry, so make sure tax advice is obtained.
Which energy credits and provisions were extended?
Many credits for energy-efficient home improvements, appliances, new construction, two- and three-wheeled plug-in electric vehicles and alternative fuel sources were extended. However, while the credits have been preserved, there are still limitations on the applicability and amounts of the credits.
From a general perspective, the energy incentives should be here to stay and more should be in the pipeline. Those who are interested in understanding them should do a careful cost/benefit analysis on your purchase or construction.
That’s not to minimize the environmental impact of these purchases, but sometimes it is very expensive to try to be energy-efficient. And sometimes, the benefit from the credit perspective side does not offset the cost of trying to be green.
Ultimately, if you’re inclined to be green, that’s wonderful, but proceed with caution because the tax benefit may not outweigh the costs.
Cathy Goldsticker, CPA, is a partner, Tax Services at Brown Smith Wallace LLC. Reach her at (314) 983-1274 or firstname.lastname@example.org.
Robin Bell, CPA, is a partner, Tax Services at Brown Smith Wallace LLC. Reach her at (314) 983-1217 or email@example.com.
There had been much talk surrounding the fiscal cliff, or the triggering of automatic federal spending cuts if Congress did not act by the end of 2012.
“It was everywhere — you couldn’t escape a newscast or report without hearing about it as 2012 came to a close,” says Todd Jolicoeur, tax senior at Cendrowski Corporate Advisors LLC.
However, the crisis was averted when the U.S. Congress approved the American Taxpayer Relief Act (ATRA), which paved the way for President Obama to sign the bill into law a day later. While not much has changed because of the bill, it did lay out a plan, freezing some tax rates and deductions that will offer taxpayers some answers as to how to plan for the coming years.
Smart Business spoke with Jolicoeur about the act and its tax implications.
What are some of the highlights of ATRA?
The most discussed is the return of the 39.6 percent tax rate for taxable income above $400,000 for single tax filings and $450,000 for those filing jointly. There is also a change to the tax rate on capital gains and dividends, as well as estate and gift tax. Additionally, there is the needed patch for the Alternative Minimum Tax (AMT). Many enhanced education credits were also extended.
How will taxpayers be affected by the 39.6 percent rate?
The new rate only affects individual taxpayers with bottom-line taxable income above $400,000 — $425,000 for head of household filers, $450,000 for married taxpayers. The other marginal income tax rates, 10, 15, 25, 28 and 33 percent, will remain the same going forward. The 35 percent rate has been carved to include those taxpayers between the top of the 33 percent rate and the income threshold established for the new 39.6 percent bracket.
What about the tax rate increase on capital gains and dividends?
The top rate for capital gains and dividends was increased from 15 to 20 percent. The increase on the top rate comes with the same income threshold that applies to the 39.6 percent ordinary income rate — $400,000 for single filers, $425,000 for head of household filers and $450,000 for joint filers. The previous zero percent tax rate remains as it was. The previous 15 percent rate still applies to those taxpayers between the two income thresholds established for the zero and 20 percent tax rate. Qualified dividends for all taxpayers will continue to be taxed at capital gains rates instead of ordinary income tax rates.
You mentioned a new maximum rate for estate and gift taxes. How has that changed?
The maximum rate for estates of decedents dying after Dec. 31, 2010, and before Jan. 1, 2013, is 35 percent, but has increased to 40 percent for estates of decedents dying after Dec. 31, 2012. In addition, the annually inflation-adjusted $5 million exclusion was extended.
Did the AMT patch become a part of ATRA?
Yes, ATRA contains a provision that ‘patches’ AMT for 2012 and beyond. It has done this by increasing the exemption amounts while also allowing nonrefundable personal credits to the extent of a taxpayer’s regular and AMT tax. The exemption rates for 2012 increased to $50,600 for individual filers, $78,750 for taxpayers filing joint returns or those of a surviving spouse, and $39,375 for returns of married taxpayers filing separately.
Does ATRA affect small businesses at all?
There are a few tax provisions that are applicable to businesses. There is the extension of the dollar limit and investment limit when calculating Section 179 depreciation and the extension of the 50 percent bonus depreciation through 2013. Another business credit that is extended is the research tax credit.
Is that the extent of the ATRA changes?
No. In addition to other provisions that relate to individuals and businesses, the new tax on investment income remains in effect. Also, the employee portion of FICA taxes on wages was restored to 7.65 percent. Ask your CPA to look into the tax rates, deductions, credit, and extenders as part of your 2012 tax preparation and planning for 2013.
Todd Jolicoeur is tax senior at Cendrowski Corporate Advisors LLC. Reach him at (248) 540-5760 or firstname.lastname@example.org.
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Tax planning is even more uncertain and complex this year because of the number of tax changes scheduled to take place when the calendar flips to 2013.
“The expiration of the Bush-era tax cuts, the imposition of the Medicare surtax in 2013, whether or not certain tax provisions will be extended and President Obama’s proposed extension of the 36 percent tax bracket to married couples earning more than $250,000 adds a level of uncertainty to year-end tax planning not seen in years,” says Tom Tyler, partner with Crowe Horwath LLP.
Smart Business spoke with Tyler about potential tax changes and what business owners should do in preparation.
What are the Bush-era tax cuts, and what would be the effect of their expiration?
President George W. Bush cut individual tax rates to 10 percent, 15 percent, 28 percent, 33 percent and 35 percent, depending on a taxpayer’s taxable income, and reduced to 15 percent the rates for qualified dividends and capital gains. Taxpayers in the 10 percent and 15 percent brackets pay zero percent on qualified dividends and capital gains.
If Congress does not extend these rates beyond 2012, the new tax rates beginning in 2013 would be 15 percent, 28 percent, 31 percent, 36 percent and 39.6 percent. Dividends would no longer receive preferential tax treatment; instead, they would be taxed at ordinary income rates. Capital gains would be taxed at 20 percent — 10 percent for taxpayers in the 15 percent tax bracket.
In addition, President Obama has proposed extending the 36 percent tax bracket to adjusted gross incomes greater than $200,000 and $250,000 for single filers and joint filers, respectively. Note that adjusted gross income is determined before personal exemptions and itemized deductions; taxable income is determined after personal exemptions and itemized deductions. Absent the Obama changes, the 36 percent bracket would start at taxable income of $183,250 and $223,050, for single and joint filers, respectively.
What other tax changes are on the way in 2013?
The Patient Protection and Affordable Care Act added a 3.8 percent Medicare surtax beginning in 2013 for higher-income taxpayers. The tax applies to the lesser of a taxpayer’s net investment income or the amount by which the taxpayer’s modified adjusted gross income — adjusted gross income with foreign income added back — exceeds $200,000 in the case of a single filer or $250,000 in the case of a joint filer. Net investment income includes interest, dividends, royalties, rents, capital gains and passive income from trade or business activities. Higher income individuals with wages or self-employment income exceeding $200,000 for single filers and $250,000 for joint filers will see an increase in their Medicare tax rate from 1.45 percent to 2.35 percent.
For the past two years, the employee share of Old Age, Survivors, and Disability Insurance (OASDI) has been reduced from 6.2 percent to 4.2 percent. This rate reduction is scheduled to expire at year-end and will return to 6.2 percent. Employers that typically pay bonuses after year-end should consider accelerating the payment of those bonuses into 2012 for those employees below the Social Security wage base of $110,100.
Any other steps people should take before the tax rates change?
With respect to the tax rate increases and Medicare surtax, individuals might want to consider selling in 2012 appreciated capital assets that would generate long-term capital gains to take advantage of the 15 percent tax rate — zero percent for those in the 10 percent or 15 percent bracket. Loss assets could be held and sold in 2013 when the loss could be deducted at higher rates and result in increased savings.
If an individual controls a C corporation, consider distributing dividends from the corporation in 2012 instead of 2013, when the maximum rate on dividends is 15 percent instead of a potential rate of 43.4 percent — 39.6 percent plus 3.8 percent Medicare surtax. An S corporation that was formerly a C corporation and is considering distributing former C corporation earnings and profits could do so in 2012 to take advantage of the 15 percent tax rate on dividends.
Taxpayers also might want to consider repositioning their investment portfolios in light of these changes. Higher tax rates make tax-exempt investments more appealing. A shift away from dividend-paying stocks to nondividend paying stocks makes tax sense given the expiration of the favorable tax rate on dividends and the application of the 3.8 percent Medicare surtax to dividend income in 2013.
These tax saving ideas should be considered just one tenet of an individual’s overall investment plan.
Are deductions and exemptions going to change as well?
Unless extended by Congress, personal exemptions and itemized deductions will be subject to a phase-out beginning in 2013. Personal exemptions will begin to phase out at $267,200 of adjusted gross income for joint filers and $178,150 for single filers. Itemized deductions will be reduced by 3 percent of the amount adjusted gross income exceeds a threshold, projected at $178,150 for 2013.
Another uncertainty is the alternative minimum tax (AMT) exemption. Without congressional action, the exemption for 2012 would be $45,000 for joint filers and $33,750 for single filers. However, we are hopeful that an AMT ‘patch’ will be passed prior to year-end and increase the exemption. Last year’s exemption for joint filers was $74,450.
Tom Tyler is a partner with Crowe Horwath LLP. Reach him at (214) 777-5250 or email@example.com.
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Although it’s risky to take money from a fund set aside for retirement, the advantage of using pre-tax cash has led to people taking their 401(k) funds and investing them in their own businesses.
This option is available when someone leaves a job and can rollover a 401(k) plan into a new investment. They don’t have to be the business owner, but that’s often the case.
“That’s the case with 80 percent of my clients who have done this,” says Tim Jochim, chair of the Business Succession & ESOP Group at Kegler, Brown, Hill & Ritter. “They’re in the business with a larger company, they decided they didn’t want to work in the corporate bureaucracy anymore and they can do better than their existing employer. They developed their business plan, left to start their own company and this is how they funded it.”
Smart Business spoke with Jochim about what’s involved in rolling over a 401(k) plan into a new or existing business.
How can you use your 401(k) plan to start or invest in a business?
When you terminate employment, you’re eligible for a distribution from your 401(k) plan. You do a direct rollover into the 401(k) plan, profit-sharing plan or employee stock ownership plan (ESOP) of your new company.
For example, an executive decides he wants to leave his job to start a new company and there are assets he wants to buy. He does a direct rollover of the $5 million in his 401(k) into the 401(k) of the new company. The trustee of the 401(k) plan is then directed to purchase $5 million of newly issued stock of the new company. Now the company has $5 million in cash, which it uses to buy the target business. In effect, he’s used his 401(k) plan from a prior employer to start his own business.
What are the tax advantages?
Pre-tax dollars are used to buy a business. That’s saving somewhere between 30 percent and 40 percent when you count federal, state and local income taxes. So instead of $5 million to buy this business, he would have had only $3 million because the other $2 million he would have paid in taxes.
Theoretically you could do it with any amount of money, but with the cost of documentation and the risk of compliance to make this pay, you really need a minimum of $1 million to work with in your 401(k) plan.
Why is setting up an ESOP the best option in most cases?
The company can be a C Corporation or an S Corporation. If it’s a C Corporation, the corporation pays taxes on its profits. If it’s an S Corporation, the owner pays the taxes on the profits, because it’s a pass-through entity. However, the individual is not the owner — the 401(k) is the owner and the 401(k) must pay the taxes. But if it’s an ESOP, those profits are exempt from federal and most state income taxes. That’s the advantage of an ESOP.
Can you set up an ESOP as an individual?
If your new company has other employees, they must be given the same opportunity to direct their assets into company stock. Usually that’s only a temporary window to get it started. The Employee Retirement Income Security Act (ERISA) prudence rules limit investment in sponsor company stock, and certain IRS rules require that the benefits, features and rights be nondiscriminatory. If the owner can do this, then you have to provide that opportunity to everyone else who is a participant in the 401(k) plan, subject to the prudence rules. Because of the prudence rules, employee elective deferrals are usually not invested in company stock.
Considering the tax advantages with ESOPs, why would you take another route with investing your 401(k) rollover?
If you have an S Corporation ESOP, there is an ESOP anti-abuse test — in order to pass, the company should have at least 10 employees because the test prohibits concentration of stock ownership in a few people. That is sometimes called the ‘Seinfeld rule.’ This is hearsay, but the story is that TV’s Seinfeld family had discovered this magic thing called S Corporation ESOPs. They had their own entertainment company and only a few family members who were shareholders. They set up an ESOP, sold all of their stock to the ESOP and were the only participants. So they got all of their stock back and didn’t have to pay any federal income taxes. There was an uproar in Congress about this type of transaction and the S Corporation Anti-Abuse Act was passed.
What risks are involved in having a 401(k) fund a business?
Under the ERISA prudence rules, qualified plans are supposed to be diversified. They are not supposed to be primarily invested in employer securities, such as their own company stock. Only an ESOP has statutory exemption from the diversification requirement. You can amend a profit-sharing plan or a 401(k) plan to allow that, but you’re taking a greater risk under pension law because they don’t have the statutory exemptions that ESOPs have. The risk is that, as a fiduciary of the plan, you’re acting imprudently by permitting investment exclusively or primarily in company stock, and therefore you’ve breached your fiduciary duty and are subject to sanctions from the U.S. Department of Labor.
Do you need to hire an attorney to fund a business with a 401(k) rollover?
There are consulting firms that sell this concept, but they don’t draft the documents, they just sell the concept. A client who did this a couple of years ago had a group that was going to charge $30,000 just for the concept and wasn’t actually going to do the work. The problem is finding qualified attorneys. There are only a handful nationally that do this well. It’s high benefit, but it’s also high risk.
Tim Jochim is chair of the Business Succession & ESOP Group at Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5443 or TJochim@keglerbrown.com.
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Tax planning is especially complex this year given the turbulent political environment and a litany of tax laws due to expire at the end of 2012. From bonus depreciation to capital gains tax rates, if Congress fails to act and these provisions and others are allowed to expire, taxpayers could carry a significantly heavier financial burden in 2013.
“We know that tax laws are going to change, but we’re just not sure how,” says Cathy Goldsticker, CPA, member, tax services, at Brown Smith Wallace, St. Louis, Mo.
This year, more than ever, it is critical that businesses/business owners consult with their tax advisers as early as possible to discuss the what-ifs so they are prepared in December when we have a better idea of what 2013 tax law will bring, she says.
“All you can do with this level of uncertainty is plan, plan, plan,” says Robin Bell, CPA, member, tax services, at Brown Smith Wallace. Businesses and individuals should have several options depending on the outcome of the election.
Smart Business spoke with Goldsticker and Bell about tax provisions due to expire in 2012, and how business owners can best prepare and be flexible in light of the uncertain tax environment.
What measures can business owners take given tax law uncertainty?
Businesses that have not yet met their Section 179 threshold 2012 of $560,000 can invest in qualifying equipment and furniture so they can take the full write-off this year. Until the calendar year turns, the bonus depreciation of 50 percent still applies, and we’re not sure what will happen to this tax advantage next year.
Along the same lines, consider taking advantage of the current 15-year depreciation rate on qualified leasehold improvements, which fall into the three categories of commercial, retail and restaurant. This could roll back to the traditional 39-year depreciation tax write-off if the provision is not extended for 2013.
What could happen to the current low capital gains and dividend tax rates that are due to expire in 2012?
If nothing is done to extend current tax rates into 2013, the existing lower capital gains rate will expire. The 15 percent extended tax rate bracket changes to a 20 percent tax rate. Dividend income reverts from a 15 percent tax rate to a taxpayer’s ordinary income tax rate, which could be as high as 39 percent.
For business planning purposes, it may make sense to pay out dividends, if your corporation has accumulated earnings and profits, before the end of the year so those are taxed at the current 15 percent rate.
A potential capital gains and dividend tax rate hike could drastically affect retirement and investment planning, as well. Individuals may want to reconsider their investment strategy in dividend-paying stocks and choose exempt or fixed-income bonds, depending on projected rates of return.
What is known for certain about the 2013 tax situation?
Tax rates will not decrease, but it is not known how much they may increase or if possibly they may stay the same. That depends on how tax legislation shakes out at the end of 2012 following the presidential election and the decisions that Congress makes before new legislation starts during the lame duck session or afterward.
What we do know for certain is that the Medicare surtax is current law as part of the Patient Protection and Affordable Care Act. This 3.8 percent tax on net investment income will be imposed starting with the 2013 tax year on the lesser of an individual’s net investment income for the tax year or the amount by which their modified gross income exceeds the threshold amount that tax year — $250,000 for joint filers, $125,000 for married filing separate and $200,000 for all other filers. Essentially, this is a double tax that applies to individuals since this is a non-deductible tax.
Additionally, the 2 percent decrease to the Federal Insurance Contributions Act (FICA) rate that has been in effect for the past two years expires on Dec. 31, 2012, restoring the rate to 6.2 percent on wages and self-employment income. This will affect the take-home pay of all employees and owners.
For closely held businesses, it is important to consider salary management — look at payments and strategize the source of those payments in the most tax-efficient way.
Finally, the 3 percent ‘haircut’ for itemized deductions and personal exemptions is also set to expire in 2012. Bear in mind that itemized deductions and exemptions are phased out as income increases, so taxpayers will not get the benefits of all of their deductions as they have in the recent past. This calls for income management; if your income will increase in 2013, that may disallow some of your tax benefits and, theoretically, could put you in a higher tax bracket.
What additional tax provisions should individuals keep on the radar as they plan for 2012 and beyond?
For those taking advantage of the Refundable Alternative Minimum Tax (AMT) credit, this is set to expire in 2012. Also, the $1,000 child credit will revert to $500 if the provision is not extended.
Beyond these provisions, there is a laundry list of tax law changes that could occur in 2013 if there is no tax bill passed in 2012 or early 2013. We know there will be at least some change. To know what these changes will be, we need to see how the tax structure shakes out after the election and final congressional session of 2012. That said, the best way for business owners and their families to prepare is to plan carefully, including working out several tax scenarios. Then, wait to act until there is a clearer picture of 2013 tax legislation.
Last but not least, remember, there is an opportunity to transfer significant family wealth without incurring gift tax before the end of the year, and those opportunities might go away if the estate/gift tax structure is not extended.
Cathy Goldsticker, CPA, is a member, tax services, at Brown Smith Wallace LLC, St. Louis, MO. Reach her at firstname.lastname@example.org or (314) 983-1274.
Robin Bell, CPA, is a member, tax services, at Brown Smith Wallace. Reach her at email@example.com or (314) 983-1217.
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What you paid for your assets and how the Internal Revenue Service values them are not the same considerations, but taxpayers often don’t know the difference.
“This is not the kind of thing you run into every day,” says Thomas H. Ahlbeck, CPA, managing director at SS&G’s Des Plaines, Ill., office. “Some people might only run into this complexity a couple of times in their lifetime.”
However, the wrong basis can add thousands of dollars to your taxes, so it’s important to understand how this can happen, especially as your net worth grows and affairs become more complicated.
Smart Business spoke with Ahlbeck about how to get a handle on this important, but nebulous, accounting concept.
What is basis?
Basis is what the IRS uses as your asset value for determining your gain/loss or taxability of a transaction. For example, if you bought a common stock but don’t know or cannot prove your purchase price, you might have to enter the basis as zero even though you paid significantly more. You’ll pay more taxes on the proceeds you receive — or not be able to write off a loss if the security is worthless.
What is the biggest problem area for figuring basis and how can it be detrimental for your taxes?
Taxpayers are losing a small fortune with nondeductible individual retirement accounts. IRAs can be problematic because you pay thousands of dollars into an IRA and the basis is not easy to track. When people put in after-tax contributions to their IRAs, they might not be keeping track or telling their accountant as it doesn’t have anything to do with their current taxes. Later, unless you can prove those were after-tax contributions, you’ll have to pay taxes on the money again when you take it out.
Once you’re making withdrawals from the IRA, the nondeductible contributions are taken as a percentage of every withdrawal. So, if you put in $100,000 of after-tax dollars originally and the account grows to $150,000, then only two-thirds of that is not taxable and a third of each withdrawal will be taxed.
How is real estate another area where basis is often wrong?
Real estate is another neglected area for basis — particularly primary and secondary residences where accountants aren’t completing a depreciation schedule. Today, many homeowners look at the current market and assume their home will never appreciate. Therefore, they don’t keep records of improvements, which should be added to the basis to narrow any gains when it comes time to sell in 10 or 20 years. This is even more critical for a vacation home because you don’t get the $500,000 exclusion of taxable gain that you might get on your primary home.
Real estate transactions, by their very nature, are held for a sizeable length of time, making it difficult to keep all the records. Your basis can be further complicated because the land and building are held as separate values and the land’s original value is often forgotten when configuring basis for a sale years later. If a property goes through a bankruptcy or debt forgiveness, those also will change the value of the basis.
Another problem is when inheriting or gifting occurs because, again, records can be lost. If someone inherits real estate, the basis value is stepped up to the current market value, which is why an appraisal needs to be done at the time of death. The idea of the increased value, which can happen for no other reason than inflation, is to counteract estate taxes.
However, if a property is gifted, the value of the basis is what the original owner paid for it. Therefore, if a couple jointly own property and one spouse dies, half of the basis will stay at the original purchase price, while the other half will be stepped up to the date-of-death value.
What can you do to prevent some of these difficulties?
The simple rule of thumb is to know the basis of all your assets at all times, meaning what you can use as value against the selling price in the eyes of the IRS. Know what will change the character of an asset, such as when a personal residence becomes rental property. There’s a lot of logic to basis, but with fair market value of property, the contract cost, debt involved, after-tax dollars, inheritance and gifting, the original basis can be confusing and even change without you realizing it.
You also might not recognize the tax consequences of your actions. For example, if you bought a stock for $10,000, you also need to keep track of the reinvestment because it becomes part of the cost to give you a higher basis.
Don’t assume your financial adviser or accountant is tracking basis. If they are, keep an eye on it to ensure they are doing so correctly. Many financial advisers now are tracking basis for stocks and mutual funds, especially with new rules from the IRS, but there can also be basis issues and related loss limitations with a closely held corporation or a partnership.
Know what records you need to have and how long to keep them. When someone gifts you a vacation home, you might not think that you’ll need the paperwork stating what the home originally cost. A lot of people think they only need to save three years of tax records before they throw them out. But as long as the transaction hasn’t been completed, it needs to be tracked.
Thomas H. Ahlbeck, CPA, is a managing director of SS&G’s Des Plaines, Ill., office. Reach him at (800) 869-1834 or TAhlbeck@SSandG.com.
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The number of small businesses is increasing, and as owners focus on growing their companies, many are overlooking available tax incentives.
“Capital is so important to a growing company to facilitate growth and ensure stability,” says Jeremiah E. Thomas, an associate with Kegler, Brown, Hill & Ritter. “However, small business owners often get focused on running their business and miss out on opportunities to qualify for programs that can ease tax burdens and reduce capital restrictions.”
He says it’s important to know what’s available so that you can maximize your access to money for the benefit of your business.
Smart Business spoke with Thomas about how to uncover government programs that can help ease your company’s tax burden.
Are funds readily available to small businesses?
There are many programs and incentives available, but some can be hard to obtain. While businesses may have the impression that there are easily accessible grants available, many of them are designed for very specific purposes and the average startup likely wouldn’t qualify. However, that doesn’t mean there aren’t other opportunities to lower costs through tax credits and intelligent tax planning on the federal, state and local levels.
What types of tax incentives are available for a new business?
The most easily available tax incentives may be federal tax incentives because, in many instances, they are automatic. Knowing which federal incentives you qualify for and accounting for them on your annual tax return allows you to access ‘easy’ money.
For example, there is relief on capital gains taxes if you own qualified small business stock. There is also the ability to immediately deduct from taxable income certain expenses for starting a business, and small businesses are able to use tax credits for providing health care, energy efficiency improvements, and research and development expenditures.
In contrast, a lot of state and municipal tax programs require some negotiation, for instance, with county representatives to get an abatement for real estate taxes. These credits are valuable, but they take extra steps and costs to receive the benefits.
How are some tax incentives ‘automatic’?
Receiving the benefits of a tax credit can be as simple as knowing the credit exists, factually qualifying for it and checking the appropriate box on your return to get the benefit — there’s no application process.
Also, some of the existing tax software can help automatically identify tax benefits by asking questions to determine if you qualify. However, squeezing every benefit out of a particular tax incentive is more complicated than reading the form. Consulting with attorneys and accountants is a great way to identify the applicable credits, especially with more complex ones.
Are there other incentives that are more valuable or more easily accessed?
Well, there are certainly other programs. There are Small Business Administration loans, with which businesses can take advantage of lower rates to borrow capital to grow, but those programs are pretty complex and take time to apply and qualify for. At the state level, another more complex option is the Technology Investment Tax Credit Program, which provides investors with a tax credit for the money they invest in technology companies. Small companies advertise to investors the ability to get 25 percent of their investment back from the state in the form of a credit. But in order for it to benefit the company, they have to find an investor and understand the credit. Then the investor has to apply and the company has to qualify to receive the benefit, so there are many moving parts.
The state also provides some loan programs and tax credits based on job creation. The state may lay out a number of milestones during negotiation that a company must reach for it to receive a tax credit or qualify for low rate loans.
Are there options for more mature businesses?
On the federal level, large and small companies can both benefit from good structural planning. However, there are certain federal tax incentives that are only available to small businesses, which can be outgrown.
At the state level, broadly speaking, it’s easier for a more mature business to take advantage of the tax programs that exist, as Ohio is more interested in backing companies that can create more jobs, while startup companies might only be looking to hire one or two employees and may need to rely on a narrower band of incentives, such as those focused on technology.
What is the key to finding incentives that work for your business?
The real key is thinking holistically. A business is subject to different taxes. The property you own is subject to real estate tax, but programs such as the Enterprise Zone Abatement Program allow municipalities to establish local development areas where qualified companies can locate and take advantage of real estate tax abatements. There are also a number of ways companies can minimize their sales tax responsibilities, such as Ohio’s research and development sales tax exemption.
It is important to think creatively about the sources of tax and have good advisers on the accounting and legal side to keep you apprised of changes in the law. You can also talk with your local development entities to uncover state and local incentives; these programs are great marketing tools for governments to show how successful small businesses are performing in their area.
Jeremiah E. Thomas is an associate with Kegler, Brown, Hill & Ritter. Reach him at (614) 462-5447 or firstname.lastname@example.org.
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With several tax provisions set to expire this year, and tax rates set to increase, business owners need to start planning now for the impact on their businesses.
“Business owners need to be collaborating with their tax advisers on a level they may not be accustomed to in the past,” says Gregory C. Brown, tax partner at Sensiba San Filippo LLP. “Discuss your plans with your tax adviser and look at the tax implications in light of the expected changes. This will require more time, energy and communication than in the past with respect to tax planning for 2012 and beyond.”
Smart Business spoke with Brown about expiring tax provisions and how they could potentially impact businesses and their owners.
What could happen with tax legislation in 2012, in light of it being an election year?
It’s difficult to say. Congress is challenged with many difficult issues and a very limited number of days that they will be in session to address these issues. A few possible Congressional outcomes for tax provisions could be a complete tax reform overhaul or a simple extension of provisions that have expired or are set to expire. Or Congress could let things expire and the set changes take hold. If something does happen this year, it’s probably going to be later in the year, after the election.
What provisions set to expire this year would have the biggest impact on business owners?
For small business owners, cash is vital. A few of the more prominent tax provisions that will impact operating cash flow stem from equipment purchases and the cost recovery through bonus depreciation. Currently, if you purchase certain capital assets, under bonus depreciation, you can expense a large amount of the purchase costs right off the top in the year that asset is placed in service. This means the recovery of the purchase cost is realized sooner than later, saving tax dollars and making more cash available. These provisions are being reduced and eliminated.
Another significant tax provision is IRC (Internal Revenue Code) Section 179, which is expense electing for equipment and other capital purchases. If you purchase certain qualified equipment, you can expense 100 percent of the cost with certain limitations. In 2011, the maximum amount that could be expensed is $500,000, with an overall purchase limitation of $2 million before the expense amount is reduced. In 2012, the expense election is reduced to a maximum of $125,000, with a purchase limitation of $500,000. As these expensing limits are scaled back, and barring a change by Congress, the cost recovery time is increased and may impact the business’s ability to make these purchases.
If you, as a business owner, are considering purchasing capital equipment, these provisions need to be considered.
What will the impact be of expiring tax provisions on business owners personally?
Without Congress acting, several provisions will expire at the end of 2012. Business owners, along with all individual taxpayers, will be subject to increased capital gain, dividend, and ordinary income tax rates. The long term capital gain, for capital assets held at least 12 months, are taxed currently at a max rate of 15 percent. This rate is slated to go up to 20 percent starting in 2013. In addition, dividends are currently taxed at the 15 percent capital gain rate. Starting in 2013, dividend income will be taxed at increased 2013 ordinary income rates, with a top rate of 39.6 percent.
Also in 2013, as part the health care overhaul of 2010, there will be a new Medicare tax of 3.8 percent on unearned income, which includes interest, dividend and capital gains. This will impact taxpayers with income of more than $200,000 for individuals and $250,000 for a married couple. This is a new add-on surtax, on top of all other income taxes.
What should business owners be doing now in respect to the current tax environment?
Look at your business plan and determine what you are planning to do. On the individual side, gain an understanding of what you are doing now and what you are planning to do, and superimpose those plans on top of what is potentially going to happen with tax provisions. That means looking at different scenarios with respect to the plans you have with your business — with hiring, with capital equipment purchases, etc. — to see if there are things you want to do imminently, or if there are things you want to delay. Questions you should ask include, ‘What is the tax impact of what I am thinking, and is this the right time?’
In 2011, everything was relatively static with respect to expiring provisions. 2012 is going to be a real wild card and tax planning is going to be daunting because there is not a lot of clarity about which way business owners should go.
The most critical advice I can give is to not delay in approaching professional advisers. If you are thinking about a significant transaction for 2012, you need to start talking to your business advisers now, versus later. Your CPA, attorney, investment adviser and other professionals can help you get your arms around your situation and things will go much more smoothly if it’s not the 11th hour.
It can be a tough situation when a business owner does not talk to his or her tax adviser to later find out, when it is too late, that there was a more tax efficient route to take. Good tax professionals are experts at boiling down complicated tax code and regulations and working with business owners to get to the right answer. Putting business owners in the best possible tax position is the primary job of the tax adviser.
Gregory C. Brown is a tax partner at Sensiba San Filippo LLP. Reach him at (925) 271-8700 or email@example.com.
As you continue to rummage through income tax receipts and other miscellaneous forms, don’t you wish you could make this process more productive? Throughout the calendar year we accumulate tax receipts into piles or folders. So now the task begins to organize last year’s income and expense history. Could you add a new dimension to tax filing that would make this activity more enjoyable as well as financially profitable?
I propose that sometime in the first quarter of every year, you adopt a “5-day Financial Self-Care” program. This take-care-of-me program gives you permission to carve out 5 days (40 hours) to take the time to review your family’s goals and progress to date.
Income tax preparation and organizing is just one of the pieces in financial self-care. Rather than just hunt and gather “stuff” for tax preparation, why not elevate this process and revisit your purpose in the “why” you do what you do?
Let’s start with an obvious theme for your inaugural self-care regime: retirement planning. What is your strategic financial purpose to be achieved? Once you and your wealth manager quantify that specific financial goal, you may want to adopt “tunnel vision.” In other words, that goal, that end-result, will now drive every decision you make from this point on. It is the benchmark that every other decision is weighed against. So let’s couple retirement planning with the necessity to accumulate more capital, and let’s ponder some issues.
Financial success is a journey toward a worthwhile predetermined goal. With that mindset, you begin to see each component of the wealth management process with a different perspective. You may begin to see your tax bracket as a tool to leverage the accumulation of more wealth. If Uncle Sam and your resident state tax put you into the 30 percent marginal income tax bracket, can your marginal income tax bracket provide you any leverage to accumulating more wealth? In a simplistic observation, a 401(k) contribution can generate a 30 percent reduction of income taxes on the amount contributed to a 401(k). So if you contribute $12,000 to a 401(k), you will owe $3,600 less in income taxes because your reportable income is $12,000 less for that calendar year. Another way of looking at it is that the taxing authorities are contributing 30 percent of your contribution. Those contributions are pre-tax, and your deposits and earnings compound on a tax-deferred basis.
So are you maximizing the benefit of your employer-sponsored retirement plans? If not, why not? Are other expenses competing for your quest for self-care?
There are times when the discussion about taxes may appear to be counter-intuitive. Another pitfall to accumulating wealth is to Roth or not to Roth? Why convert your traditional IRA to a Roth IRA? It’s expensive to convert. How much do you have to make up in future gain to reimburse yourself for the taxes paid on the conversion? If accumulation is the goal, then paying the conversion taxes may at best be “taking a step back to take two steps forward.” Predicting the future tax system is akin to predicting the weather.
Remember financial planning is part art and part science. Successful retirement planning requires soul-searching and dogged-determination to your chosen path. Your passion for that objective keeps both the advisor and you on that path to achieve a positive outcome. Temptations are bound to distract you from clearly seeing your outcome. My role as your confidante and wealth management coach is to continue to remind, clarify and quantify that specific target. Not only do we collaborate with you on long-term strategies, we also identify those events that could potentially sidetrack you from the big picture. What past behaviors and habits need to be altered to create this new outcome, rather than repeating habits that failed in the past?
What passion do you want to manifest? What is your vision that requires our collective energy? I ask you to describe with clarity and detail that picture in your mind and heart. That becomes the aim and purpose for your family.
You may comment that you cannot afford to maximize your retirement contributions because you have other bills to pay. What if your mortgage lender has convinced you to accelerate your mortgage payment or refinance and reduce the term-loan on your mortgage from 30 to 15 years or less? How does that get you to your financial retirement nest egg? Will a paid up home make your retirement financial objectives a reality? After all, your parents always told you to pay off your mortgage.
What if your retirement financial objectives fall short because you invested your extra cash into an illiquid investment — your home? And how does your home provide you income in retirement, without resorting to a reverse mortgage in your retirement years?
Therein lies my argument. Most decisions to pay off the mortgage, buy a car for the children, or be self-indulgent create reductions in 401(k) contributions and other retirement accounts. Paying off your mortgage, buying your child a car and being self-indulgent are good ideas, however, relative to your goal to accumulate wealth for retirement, how do those choices fit in to your true overall strategic purpose? What’s the long-term implication of a decision made in a vacuum today?
Join Dan Cunningham and me on our next SBN webinar on Wednesday March 28 at 1 pm EST. We’ll discuss How Strategic Finance Helps Grow Your Business and Your Personal Net Worth.
Robert A. Valente, CFP®, AEP®, is CEO and Managing Member of RAV Financial Services LLC. He can be reached at firstname.lastname@example.org.
If your company exports products or provides certain services abroad, you may be able to achieve significant tax savings by establishing an Interest Charge Domestic International Sales Corporation (IC-DISC).
“Despite the name, this tax saving technique is fairly straightforward,” says Mark D. Klimek, chair of the Tax Practice Group at McDonald Hopkins. “It is not aggressive from a tax standpoint or overly complicated from a legal or accounting standpoint. In fact, it’s not very complicated at all. An IC-DISC can be set up for a relatively low cost, which can easily be recovered in the first year of tax savings alone.”
Determining whether an IC-DISC makes sense for your company is as simple as looking at your export sales and profits on them and then comparing the tax savings versus the set-up costs. As for companies that already have an IC-DISC in place, Klimek says there are probably opportunities to achieve even greater tax savings.
Smart Business asked Klimek for more details on this tax saving opportunity.
How is an IC-DISC structured?
An IC-DISC is simply a separate corporation that is formed by the owners of an existing company (the ‘manufacturer’). The new corporation’s shareholders, which can be individuals or other types of business entities, make an election to treat the corporation as an IC-DISC. The IC-DISC is paid a commission on foreign sales by the manufacturer, and the manufacturer can take a deduction for the commission payment. This deduction normally generates a tax benefit of 35 percent to the manufacturer. The IC-DISC itself is a tax exempt entity; tax is paid only by the IC-DISC shareholders on dividends received from the IC-DISC. Currently, these dividends are taxed at the favorable 15 percent rate. Therefore, the tax savings occur because the commission arrangement between the IC-DISC and the manufacturer provides a corporate deduction (usually worth 35 percent) in exchange for the tax cost of a dividend to the IC-DISC shareholders (taxed at only 15 percent), generating a net tax benefit of 20 percent on the allowable commissions paid.
Is the commission limited?
Yes, the commission is limited under the IRS rules to a maximum of the greater of 4 percent of total export sales or 50 percent of profits from export sales. However, this is a very basic analysis and is really the minimum commission. A consultant can study a company’s product lines and gross sales figures and come up with very sophisticated ways to maximize the commission.
What are some of the requirements that must be met in order to qualify as an IC-DISC?
The company has to be a C corporation and can only have one class of stock. There must be an initial capitalization of at least $2,500. There is an election form to be signed by all shareholders and filed with the IRS. The IC-DISC should follow the normal corporate requirements of any other corporation There needs to be a commission agreement between the manufacturer and the IC-DISC. This commission agreement is normally flexible in terms of stating how the commission is to be calculated.
Please provide some estimates of the potential tax savings.
The tax savings depend on the profitability of the company’s export sales. A company taking the 4 percent commission on $5 million in gross export sales would save at least $40,000 of federal income taxes, assuming the tax rates are as discussed earlier. If the same company had $5 million in gross export sales and $1 million in profits and was able to deduct the 50 percent commission, the tax savings would be at least $100,000. Again, these savings are minimums; various techniques exist for increasing the effective commission by, for instance, applying the commission limitation to different product lines.
What types of related planning opportunities are associated with this technique?
You can use the IC-DISC to provide shares to family members or to employees. If it’s a family business, you can give family members shares in the IC-DISC, which will provide them with income every year, but not ownership rights in the primary business. If you’re transitioning a business to the next generation by selling shares to that generation, perhaps you’re wondering how your children will get the money to pay you for the business. You can pay them a higher salary to generate this cash, and the company can take a 35 percent deduction on that payment, but the children have to pay tax on this income at ordinary income rates so there is not much tax efficiency. If you or the children own shares in an IC-DISC, the company still gets to take the 35 percent deduction for the commission, but now your children only have to pay tax on the dividends at 15 percent (versus having to pay the ordinary income rates). You can also use an IC-DISC to provide an equity type of incentive to employees, which can serve as a motivation tool to improve productivity and increase export sales.
Does a company have to be making a certain level of sales for the IC-DISC to make sense?
Again, this depends on a company’s profitability. A company doing $1 million in export sales could save at least $8,000 per year under the 4 percent commission scenario. However, if this same company has $200,000 in profits, the tax savings would be $20,000 — still making the IC-DISC an attractive option. Anything less than $100,000 in profits on $1 million in sales would require a closer look at some of the commission-maximizing strategies to see if the IC-DISC makes sense.
MARK D. KLIMEK is chair of McDonald Hopkins’ Tax Practice Group and is a member of the firm’s mergers and acquisitions practice group. Reach him at (216) 348-5453 or email@example.com.