The environmental due diligence process can be time-consuming, which is why buyers should get started early when entering into negotiations to purchase property.
“Depending on when environmental due diligence begins, environmental issues might not be discovered until close to the end of the deal. That could result in a transaction not closing for months after initially planned, which was the case in a matter we had this year,” says Meagan Moore, a partner at Brouse McDowell. “Be ready to begin a Phase 1 assessment when you initiate discussions regarding a purchase.”
Smart Business spoke with Moore about Phase 1 and Phase 2 environmental assessments, and the protections they provide buyers regarding potential liability related to contamination.
What is the first step in the environmental due diligence process?
Hire an environmental consultant to perform a Phase 1 study. That will give you a better understanding about the property. Because of the way certain environmental regulations are written, even a purchaser that has no culpability for what is on the property could be responsible for cleanup costs. Therefore, it’s best to know what you’re getting in advance so you can plan for it during the transaction.
Phase 1 is a report intended to identify potential environmental issues associated with the presence of hazardous substances or petroleum products on a property. It involves a review of federal, state and local records, government databases, interviews with people familiar with the property and an on-site inspection by the environmental consultant. The review provides an overview of the property’s history and whether there is any information or visible signs of a release or contamination on the property.
Some sellers may conduct a Phase 1 study in order to expedite the transaction. It is important to note that Phase 1 is only valid for 180 days and typically the environmental consultant must grant third parties authority to rely on the report.
There are some environmental issues that the Phase 1 investigation does not cover, including whether the property has wetlands or the building contains asbestos. Those can be added to the scope of a Phase 1 if a buyer envisions potential issues with a property. Any documented or visible signs of contamination noted in the Phase 1 are considered a recognized environmental condition (REC).
If the Phase 1 report includes a REC, what should a potential buyer do next?
A Phase 2 assessment should be conducted, which typically involves a subsurface investigation. Soil and groundwater samples are taken for lab analysis to determine if there is hazardous material present. It’s not going to delineate the extent of the contamination, but it will confirm or deny the presence of hazardous materials.
If the contamination is confirmed, you’ll have to determine how it should be addressed — whether remediation should be done or if the material can be left in place.
All these concerns can be factored into the negotiation process with the seller. You could include indemnity agreements with the seller and establish an environmental escrow account to pay for any issues that arise.
Do any former uses require a different approach?
A Phase 1 assessment should be done for any industrial or commercial property. But you definitely need an assessment if there was a gas station, dry cleaner, auto repair shop or industrial use of the site. Phase 1 assessment requirements are the same no matter what type of business; it doesn’t matter if it was a textile plant or gas station. But if you’re looking at a property that had historical operations that could have led to contamination, a Phase 1 assessment is necessary to determine the condition of the property so you’re aware of what you’re buying. As a buyer, you want to know everything upfront so that can be a part of the negotiations and you can limit your liability. ●
Meagan Moore is a partner in the Environmental Practice Group at Brouse McDowell. Reach her at (216) 830-6822 or email@example.com.
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Expansion of the Medicaid program in Ohio was approved by the state Controlling Board because there wasn’t enough support to get it passed in the legislature. But there’s no economic reason for anyone in Ohio to oppose the expansion, says William F. Hutter, CEO of Sequent.
“The battle about Medicaid expansion was based on principle; it was about certain forces resisting an additional expansion of federal government in Ohio. And that somehow expanding Medicaid to the less affluent population in Ohio was an endorsement of health care reform,” Hutter says. “That is one view. I started taking a view that Medicaid expansion in Ohio is good for business and good for the population.”
Smart Business spoke with Hutter about how the Medicaid expansion helps businesses and what companies are doing in response to the program.
Why is Medicaid expansion good for businesses?
Under the Affordable Care Act (ACA), if an individual meets the criteria of having an income of less than 138 percent of the federal poverty level they can apply for Medicaid benefits.
Consider industries like hospitality and retail, which deal with a lower-cost, transient employee population. They’ve taken a position that they have employees they would like to move to full time, but have health care to deal with under ACA and the benefits cost too much. One of the advantages for that group of people, and those industries, in Ohio is that they might qualify under Medicaid.
If employees are covered under Medicaid, they are exempted from the full-time equivalent (FTE) count of businesses. That means they aren’t included in determining whether a business has 50 FTE employees and would be subject to penalties starting in 2015 if they do not provide health insurance coverage for employees. Normally, hours of all part-time employees are totaled to compute how many FTE employees are added to the number of full-time employees to see if a business hits 50.
Having more employees exempted from the FTE calculation could allow businesses to hire more people and get them qualified for Medicaid. Employees get medical coverage, the business gets exempted from the ACA and health care providers benefit.
How do health care providers benefit?
Providers complain that they don’t make money on Medicaid patients because reimbursement rates are lower. However, hospitals and urgent care centers do not turn people away; they provide medical care 90 percent of the time whether or not someone can pay. What’s better, to be paid zero for providing $500 worth of medical services, or to be paid $400? From a patient standpoint, while Medicaid might not cover all costs, it takes some pressure off because there is reimbursement from the federal government.
Have businesses developed strategies in response to the Medicaid expansion?
Absolutely. They are trying to get employees signed up for coverage. We’ve been working with clients on helping them with the Office of Healthcare Transformation, which built the Medicaid application portal in Ohio. Director Greg Moody has done a good job creating a portal that makes it easy for people to sign up.
There have been comments that only 30 percent of the people who register get qualified, but it’s a financial qualification — it’s not arbitrary. It’s a set amount based on income being up to 138 percent of the poverty level.
This is one of the more worthy social benefits that helps keep people healthy and is in-line with the intent of the ACA. It will be good for small and midsize businesses and keep more people employed. Yes, it’s not in high-wage positions, but it is an improvement and will move more money into Ohio and create economic flow.
Employers are starting to figure this out. They want to do what’s best for employees, the company and shareholders. For the current circumstances and environment, Medicaid expansion is good for Ohio. ●
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Benchmarking your business to see how it stacks up against industry competitors helps you learn about your company and where operations can be improved.
“If you focus on just sales or profits, you miss other variables and expenses that, with some tweaking, can make a substantial difference in your profit and cash flow,” says Dave Cain, vice president of operations at Rea & Associates.
Smart Business spoke with Cain about the benchmarking process and how to utilize the data that is produced.
Can the benchmarking process be applied to any business in any industry?
Benchmarking compares you to your industry. I’m not aware of any industry where it wouldn’t work — one service we use has a database of 10,000 different entity types that can be used for comparisons. Dental, medical, construction and manufacturing all have some type of benchmarking tools. Software programs are available that allow you to find real-time data and develop benchmarks based on immediate industry information rather than information that might have been accumulated a year ago.
What data should be benchmarked?
Net profit margin and liquidity ratios are two general ones that can be used for any business. If you’re in manufacturing or retail and have accounts receivable, one good benchmark is turnover ratio — how quickly do you collect receivables in comparison to other businesses of the same type?
Industry comparisons have substantial value because you can understand what’s going on in the industry and improve your company’s performance. For example, a manufacturer of plastic bags would be able to find information specifically about plastic bag manufacturers, not just the plastics industry as a whole. If that manufacturer has a sales percentage of revenue ratio of 10 percent, compared to 15 percent elsewhere, it would be worth investigating why competitors can operate at a lower margin.
Who should be involved in the benchmarking process?
Involve your accountant, your internal accounting department and members of senior management. Determine what ratios and analysis are important to your business. If accounts receivable turnover ratio is an area of priority, the person in charge of accounts receivable should be included.
Companies can do benchmarking themselves, depending on the level of experience within the accounting staff and the resources available to them. However, it also takes expertise to determine how to use the information. That’s where a CPA can work with your accounting team and senior management to develop a strategic plan.
Do you need to decide in advance how the benchmarking information will be used?
Benchmarking results will dictate what actions you take. If your inventory cycles through every 90 days, you might think that’s good. But having inventory sitting for three months could be why you have no cash flow. If you find competitors collect receivables in 45 days, you would look at how you can cut down that period and improve cash flow.
The whole idea of benchmarking is to discover areas where you can make an impact. It’s learning about your business to determine best practices. So many businesses only look at sales and profits, which are the basic indicators, but there are always other areas to review. One client increased his revenue by $200,000 and kept focusing on that top line, but it cost him $225,000 in payroll to get that boost.
Is the process different with internal benchmarks?
Yes, because then you’re measuring against yourself to ensure consistency. Whether by department or location, you look at the revenue and expenses, as well as the contribution margin to the rest of the organization. Then those metrics are applied to outside data information to see how you compare against your industry.
Benchmarking is usually done at year-end, although you might do an interim report to analyze if adjustments you’ve made are having the desired impact on your business.
Benchmarking is really learning about your market and your business, and helping you determine best practices. ●
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The early 2014 legislative priorities for the Ohio General Assembly include the mid-biennium review (MBR), the state’s capital budget, the Public Works Commission bond fund reauthorization and the municipal income tax uniformity bill (House Bill 5).
“House Bill 5 will be front and center because it is a top priority of the business community and affects all municipalities,” says Lloyd Pierre-Louis, a director at Kegler, Brown, Hill + Ritter.
While everyone agrees with the concept of uniformity, changes in tax rules create winners and losers, and thus, controversy, Pierre-Louis says.
Smart Business spoke with Pierre-Louis about HB 5 and other major Ohio legislative changes that may affect businesses in 2014. HB 5 passed the House late last year and is now in the Senate.
Why are some groups and cities opposing uniform municipal tax rules?
I have never talked to anyone who outright opposes reform. Everyone agrees that there should be uniform forms and filing dates. The average businessperson would be interested to know that the greatest threat to getting a municipal tax uniformity bill passed in 2014 is not the lobbying efforts of cities, but the overreaching efforts by a group of trade associations that are using the guise of uniformity to mask municipal income tax cuts that are targeted to suit selected industries, clients and taxpayers.
For example, there has been an effort to alter the currently uniform ‘casual entrant’ rule that determines how many days a non-resident may work in a city before tax liability attaches. The current rule requires 12 days of work, but the business groups want to expand it to 20 days.
There has also been an attempt to exempt supplemental executive retirement plans from municipal taxation even though they are taxable under federal law. Legislators who we talk to are increasingly uneasy that the advocates of HB 5 are asking to cut funding for municipalities rather than really trying to achieve uniformity.
What else will state legislators be working on that will affect businesses?
Gov. John Kasich is expected to introduce his MBR in February. In essence, it’s a revisit to the state budget one year into the two-year cycle to make adjustments and, as has been the case with this governor, to make significant public policy reforms.
The MBR’s tax treatment of hydraulic fracturing (aka fracking) will be interesting because there are competing viewpoints between the governor, who wants the drillers to pay higher rates to fund an income tax cut, and House Republicans, who introduced a bill that would phase-in higher rates over the next five years.
A number of proposals will be brought forward as to how to use the state’s $400 million in savings from Medicaid expansion. Some legislators suggest additional tax cuts, and others want to address Ohio’s increasing unemployment debt.
Ohio has borrowed more than $1 billion from the federal government to pay unemployment benefits and the debt service alone causes annual unemployment insurance premium increases. A pending bill aims to use Medicaid savings to pay down the principal, decrease the debt and stop the premium increase.
The capital appropriations bill, which will be introduced in February, will impact the construction industry since it will fund state-supported capital projects. Construction of and improvements to university buildings, arts facilities and community projects all will be funded by this legislation.
The construction industry, local government and ancillary businesses will also closely watch the public works reauthorization bills, Senate Joint Resolution 6 and House Joint Resolution 2, which will place an infrastructure bond package on the May primary ballot if it is passed by both legislative chambers. If approved by the voters, the proposal would provide about $1.9 billion of funding for public works projects over the next 10 years.
Those are the primary legislative issues statewide that will affect businesses in the first half of 2014. ●
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“It’s not something you try and then decide whether you maintain it. A good program requires a well thought out strategy and budget,” Howe says.
As for the wellness program itself, it should function outside of your health insurance provider so it doesn’t need to change if you switch carriers. Programs should include biometrics screenings — basically a blood draw. Conduct screenings at the workplace to make it easy for employees to participate.
You could bring educational support in to the office — a nutritionist to host healthy cooking demonstrations, a fitness instructor to conduct stretching and yoga. The idea is to change behavior, and making it fun makes it easier. Furthermore, the same data can drive strategy related to the medical plan design;
“The ones that have been with you for 20 or 30 years are the most problematic,” says Scott Swearingen, a partner at Moss Adams LLP. “They’re trusted more, so more opportunities for fraud arise.”
This particular kickback involved delivery charges: The employee would add another hour or two for traffic and split the difference with the vendor. Cases involving collusion outside the company, such as kickback schemes, are difficult to uncover. More control or oversight of pricing or tracking may have allowed the client to see that one employee had more travel time compared to the company average or their peers.
Auditors refer to a fraud triangle where opportunity, rationalization and motive all exist. Unfortunately, we bucket things into thirds. One third of people would never steal, even given the opportunity; another third will look for chances to steal no matter what; and the final third wouldn’t ordinarily steal but will if given the right situation with weak or little controls. Internal control practices address that final third.
We’ve seen fraud cases where employees have the ability to authorize credits on accounts receivable for returns and realize they can put a credit on their personal credit card as well. One clerk was building credits on her card to move out of the country. No
Don’t wait for something to happen before taking the control environment more seriously. ●
While tax laws continue to affect estate plans, protection of assets has become an increasing priority as baby boomers age.
“There’s been a lot more conversation in the last five years about asset protection, not just about the client’s assets, but also about protecting the assets the children will eventually inherit,” says James P. Cashman, a partner at Berliner Cohen.
Smart Business spoke with Cashman about trends in estate planning and what has occurred in response to the American Taxpayer Relief Act of 2012, which changed estate, income and gift tax laws.
What has changed with estate and gift taxes?
Large estates — the applicable credit for each individual is now $5.34 million per person — i.e., the amount that can be passed to family members (or anyone else for that matter) without any estate or gift tax. In the last several years the credit has grown from $1million to what it is today. Married couples can now shelter up to $10.68 million from estate taxes.
Because of that change, we expected married couples with estates of under $10 million to want to simplify their existing plans by leaving everything to the surviving spouse and then to the children; however, such has not been the case. Married couples with estates under $10 million are still opting for dividing the estate into two parts upon the death of a spouse. In so doing, each spouse wants to make sure that if they die first, their share of the estate ends up with the children rather than the surviving spouse’s new spouse or someone else.
How has the end of the Bush-era tax cuts affected estate plans?
Especially in California, which now has a state income tax rate of 13.3 percent on top earners, more estate planning decisions are being made based on income tax and capital gains tax issues than ever before.
Not only do people want to know about estate transfer taxes when they die, they also want to limit or avoid income or capital gains taxes while they’re alive. Therefore, the conversation of shifting income to family members in a lower bracket and charitable gifting techniques has increased tremendously.
That includes increased interest in charitable remainder trusts or gift annuities, where a person can donate a highly appreciated asset in return for a guaranteed income stream for a term of years or their lifetime and avoid having to pay capital gains tax.
More people also are inquiring about moving to jurisdictions without state income taxes, like Florida, Texas and Nevada. They have businesses in California and want to know how to detach from the state, as rules regarding how California recognizes residents are becoming stricter.
For example, one client with substantial real estate holdings all over the country wanted to move to Florida; he’s a better candidate than someone with real estate only in California. But my advice was that if he wanted to be a Florida resident, he must give up all (or most all) of his contacts in California, including, but not limited to, his California business office, his California license and his California voting registration.
But not all estate planning trends are about taxes. Protection of assets for children and grandchildren has been a growing concern.
Why has protection of assets become more important?
Baby boomers like to be very clear about what they want. They worry about where assets would go if a child got divorced or owed creditors. Perhaps people have become more aware of our litigious society, and they now are talking to professionals to review all options.
Baby boomers are also concerned about who inherits their personal effects. Traditionally, personal property distribution was covered in wills. Now, in many instances, this is covered by a letter of instruction form that the client can update easily.
This trend also extends into other areas, such as health care directives. Clients are getting more clear about what they want — feeding, hydration, CPR — and want to be able to make these choices clearly in their health care directive or the POLST. ●
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Salespeople always have goals they need to meet. Giving them a road map on how to achieve these goals can help increase accountability and boost sales.
“We developed something to make salespeople a little more responsible. We put a program together that not only sets goals, but helps them achieve their goals,” says Rick Voigt, president of Today’s Business Products.
Smart Business spoke with Voigt about setting sales goals and how businesses can get better results by making employees part of the process.
Where did the idea originate and how does the program work?
The program came out of a sales management group; another company had great success with it, and we tweaked it to suit our needs.
We call it ‘Stand and Deliver.’ Salespeople were given quotas, which were broken down by quarters. Then they were asked how they intended to reach these goals. That included things like what customers they were going to get, their top 10 prospects and leads they were working on.
It makes someone more accountable than just giving them a goal of $1 million and letting them figure out how to accomplish it. We’ve given salespeople quarterly quotas, but never asked them to come up with a plan for how those sales would be achieved. This way they take more ownership of their goals.
It’s a road map to success. By making it very detailed, it’s easier to follow through on the results. If someone says they are going to call on these 15 customers and try to expand their categories — try to get them to add janitorial products, for example — a manager can follow up on that and see the outcome.
How was the plan presented to employees?
They were provided with an outline and a template to work with, as well as examples of how to create a road map. A spreadsheet was provided that had different tabs to be filled out, including a section on what salespeople needed from the management team to be successful.
There also was a SWOT analysis — they were asked to identify strengths, weaknesses, opportunities and threats, both internally and externally. That provided us with a chance to evaluate their opinions of the company and our customers.
Where there any surprises?
No, but there were things mentioned that are needed and we’re working on those, such as a new software program that will provide them with a mobile app to access customer information.
The process was very positive; they did a great job making their presentations and were well prepared.
The intent of doing the road map is to eliminate excuses. At the end of the quarter, if all steps of the process are followed, then everyone should meet his or her goals. We made sure goals were manageable, although there also are stretch goals for employees who go above and beyond.
What if a salesperson follows through on the plan and doesn’t get the desired results?
Quarterly goals are set, but there are still monthly meetings to go over sales and see where assistance is needed. It could be a matter of sending out another salesperson, manager or even the owner to help the salesperson.
If someone hits 95 or 97 percent of the goal, but is really working and giving everything, you work with them. You can also tell, however, if someone is falling short because of attitude or work ethic. If they’re calling in sick frequently, coming in late or are never around, if they’re not asking questions of clients, that’s a different situation.
If you train employees well and they help each other out, there’s no reason why someone would fail. Some salespeople liked the road map because they wanted that direction and structure. They thought it would help them improve sales.
This helps employees understand what they need to do. Some were doing something similar already. This program just creates a more defined process. ●
Rick Voigt is president of Today’s Business Products. Reach him at (216) 267-5000 or firstname.lastname@example.org.
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Companies are getting away from the old IT model of purchasing an on-site solution and having an internal staff working to solve problems. Instead, many companies are utilizing a professional service provider to handle tasks that are not directly related to core company business.
“That allows staff IT to focus exclusively on their lines of business — specific applications and training programs rather than a phone not working, a locked password, or more extreme, the data center/network being down,” says Karl Seiler, president of DataServ.
Smart Business spoke with Seiler about why companies are taking this approach and how professional IT service providers work as partners with businesses.
What IT services should be contracted to service providers outside of a company?
Things that are common to every organization: support, infrastructure, network, wireless, smart devices, collaboration architecture, security, help desk and inventory.
These needs are common across almost any organization and can be done from a professional service provider perspective rather than at an internal level. It allows for higher efficiencies and lets your team focus on its core business rather than solving remedial issues.
How does partnering for IT differ from building IT?
Building IT is the old approach. It’s slow to move and internal people may not have the skills to do a proper evaluation of return on investment or assess the real business fit within the environment. IT is often based on a person with a single mindset who provides the only view. And because CEOs and CFOs are often not the technology experts, that leaves critical decisions to one person who might not always have the knowledge or passionate team around them to proceed down the best path.
With IT as a service, a team of experts complete a comprehensive assessment for the organization. There are engineers who specifically understand infrastructure, applications, networks or collaboration. All that information is reviewed and analyzed to determine the best solution.
A professional IT provider knows how to partner with an organization and learns and develops an understanding of the company’s objectives, allowing them to build appropriate solutions. They become a trusted partner — not a vendor.
How can you tell if an IT service provider would make a good partner?
That’s part of the due diligence process. Vet companies and get a sense of how they work. Talk to references. Visit their workplace, talk with the leadership and see how they utilize the collaboration tools and other technology in their environment to grow their business.
Studies show huge challenges for businesses in terms of collaboration tools in the workplace. Millennials coming into the workforce are naturally collaborative and organizations are not structured effectively for that. Webconferencing, video technology and other services allow you to conduct business in real time. We provide a dashboard interface that shows who is available in our organization so we can connect with that person, see them on video, and effectively share information and data.
The workplace is everywhere now and technology needs to allow for collaboration whether someone’s at home, school, work or Starbucks. You have to build the architecture for your organization so that team members can collaborate from anywhere. Most businesses don’t understand how to architect a network — it’s just not their area of expertise. They have obsolete phone systems that do not work efficiently and are not connected to other company communication tools.
Another area of importance is your data. How do you organize the data (analytics) and build business intelligence tools in real time so you can make informed decisions and implement them faster? Applications have to allow for that level of integration.
Everything starts with finding a trusted partner and beginning the journey of unifying your technology. Effectively building a collaboration architecture begins with equal parts of culture, process and technology. That’s the most important area to address when growing your organization and business. ●
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The Internal Revenue Service defines the depreciable life of a building as 27.5 to 39 years. But that doesn’t mean that all assets grouped with the building have to be on the same depreciation schedule.
A cost segregation study can identify personal property assets that can be reclassified to allow for a shorter depreciable life.
“By accelerating depreciation deductions, you’re deferring taxes, which creates a cash flow benefit.” says Robert W. Haggerty, CPA, Partner, Tax Services at Brown Smith Wallace.
Smart Business spoke with Haggerty about what assets might qualify and the potential benefit to businesses.
How does a cost segregation study work?
Typically, blueprints or architectural drawings are used to identify what went into the building. Engineers analyze the drawings and perform site visits to identify qualifying property. Information from the general contractor or estimating manuals is used to determine the cost. A tax analysis is performed, which involves reviewing court cases and rulings that address which particular assets qualify for a shorter life.
Cost segregation studies can be performed anytime you build, acquire or expand. If the cost is $1 million or more, it is worth looking at.
The IRS also allows you to do a ‘catch-up adjustment.’ For example, if you bought or built a building five years ago and didn’t do a cost segregation study, you could still do one today and take the benefit on your current tax return.
With certain income tax rates rising, it’s a nice time to consider a catch-up adjustment.
What types of assets typically qualify for shorter depreciation?
Generally, property that is unique to a particular trade or business qualifies for a shorter life. An example I often use is the lights used to showcase merchandise in a retail store. Those lights are considered five-year property even though, by definition, lighting is part of the building. Not only do the light fixtures qualify, but so does the wiring and the portion of the electrical system supporting the fixtures.
Manufacturing facilities benefit the most from cost segregation studies because they typically have a lot of specialty systems or design inherent in the building that function as part of the manufacturing process. A large portion of the plumbing, electrical and HVAC systems qualify for a shorter life. Even the concrete floors can qualify. Hospitals and medical facilities are another industry with big benefits from cost segregation. Think about all of the specialty systems in a medical setting.
What are the tax benefits?
The benefit is the deferral of income taxes by accelerating depreciation expense. Moving costs from a 39 year building life to a five or seven year life can significantly increase depreciation expense for the building. Cost segregation studies can provide a permanent, time-value-of-money benefit of 10 to 50 times the cost of the study, which typically runs $5,000 to $10,000. Studies for larger projects can be much more costly, but the benefit usually increases with the cost of the project.
Any new developments of interest to businesses?
Yes, businesses can also take advantage of new final ‘Repair Regulations’ and proposed ‘Partial Disposition Regulations,’ which were issued in September 2013.
Under the old rules, you could not retire a portion of a building, so taxpayers who had a roof replaced, for example, could have two layers of roofs depreciating on their books. The new rules allow you to write-off the old roof.
In situations where it may be difficult to quantify the portion of the building that relates to the old roof — there might be only one asset on the books called ‘building’ — we are helping clients quantify the amount of the partial disposition.
Windows, interior build-outs and elevator replacements are other examples of items that may be eligible for partial disposition.
The Repair Regulations offer some safe harbors for small businesses and include de minimis rules that can apply to all taxpayers. So, there are even opportunities for businesses to take some tax deductions with very little effort. ●
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