Legal requirements, along with small businesses themselves, change constantly. Annual checkups with an attorney could reveal potential problems before they prove to be very costly for your business.
“There are a lot of small business owners out there who use a customer contract form they had a lawyer review 10 years ago and think they’re good to go,” said Erin Cleary, an associate with Kegler, Brown, Hill & Ritter. “We see owners who try to sell after a long, successful career of building their business, but the transaction proves costly and stressful as a result of neglecting certain legal compliance issues over the years.”
Smart Business spoke with Cleary about why it’s important to meet annually with an attorney and how it benefits your business.
What are examples of problems discovered during checkups?
Some small businesses are organized and taxed as C Corporations for no good reason. Those owners could save significant tax dollars by converting their structure to a pass-through entity. In the current environment of constantly shifting tax laws, it helps to check for such opportunities to improve tax structure or capitalize on other tax credits or incentives. These changes lead to real money in your pocket.
Another issue that can arise during a sale transaction concerns commercial contracts with customers or vendors. Contracts might include prohibitions on assignment, unusual indemnification clauses or warranty provisions that might be disadvantageous to the company. It can pose significant liability to hand out a template contract that’s outdated, for example, one that doesn’t take into account the unique risks and liabilities imposed by e-commerce and social media. Updating contracts that are regularly signed cuts down on future liabilities, especially in the context of a sale transaction where a buyer will inevitably ask the seller/owner to stay ‘on the hook’ for the contractual liabilities the business has accumulated.
One of the most serious liabilities can be the failure to properly pay, collect and report taxes, particularly sales taxes and payroll taxes. Generally, there is no statute of limitations for tax evasion, fraud or the failure to file a return, so those liabilities exist forever. In addition, it’s not possible to pass this liability on to the buyer of a business — a tax authority can always go after either the ongoing business or the original owner who failed to comply. In sale transactions with this kind of liability, the seller always ends up fully indemnifying the buyer for any future penalties, audits or investigations that might occur after closing the transaction.
Are there businesses for which legal checkups are particularly vital?
It’s probably more important among less regulated industries. Businesses that are highly regulated have closer relationships with attorneys and are more attuned to legal compliance. But legal oversight is not just about compliance. It’s also about best practices, like making sure employees sign contracts to protect the business’s intellectual property.
Checkups are worthwhile if you’re anticipating an exit from the business, whether it’s a sale, taking on a major investor, going public or transitioning the business to a family member. Even a sale to someone with whom you have a close relationship might undergo the same scrutiny as if you had a completely unrelated buyer. Many businesses, particularly professional practices, do not plan for succession. Periodic conversations with counsel might encourage you to take the time to think this through. If a professional practitioner passes away, a valuable business could quickly become worthless. Having a succession plan might mean the owner’s estate receives compensation for the business when it otherwise would not.
Some owners might like to hire different lawyers for specific needs. These owners should be careful to make sure that at least one of their lawyers is taking time to look at the overall picture to make sure nothing is falling through the cracks.
Unlike accountants, whom you’re naturally going to see annually to file taxes, there is no periodic event that requires you to update your attorney about your business. But keeping up with best practices would nevertheless make an ultimate transaction less expensive and stressful, and reduce post-closing liability.
Erin Cleary is an associate at Kegler, Brown, Hill & Ritter. Reach her at (614) 462-5420 or firstname.lastname@example.org.
Event: Change Orders, Claims & Disputes: “Star Wars” in the Construction Industry will take place on March 27. Visit keglerbrown.com for more information.
Insights Legal Affairs is brought to you by Kegler, Brown, Hill & Ritter
The Internet is the first place most people go to look for a business, yet 72 percent of small businesses in Ohio do not have their own website, says Ryan Niddel, CEO of Brain Host.
“It’s surprising because having a website seems so commonplace,” says Niddel. “But if you find businesses in the Yellow Pages or the state business registry and try to pull up their domains, you see they don’t have a Web presence.”
Smart Business spoke with Niddel about the reasons businesses need websites and the costs and options of building and maintaining an online presence.
Why do so many businesses not have websites?
People think it’s more difficult, expensive or time consuming than it is. Small businesses don’t understand that someone can operate the site for them and it’s not going to cost thousands of dollars.
Businesses can get a website for free as part of a Web hosting contract costing as little as $15 a month. That way they can test the marketplace and see if their ROI increases and they’re making more money before expanding the site or getting involved in a social media marketing program.
Is a website a necessary tool for every business, no matter the product or service?
Yes, based on the number of people who search for businesses from a smartphone, tablet or computer. People look for restaurants and small businesses online before becoming customers. They want to see a website that shows products and services offered, price points and testimonials.
E-commerce stores, businesses that actually sell products online, are a small piece of the marketplace. Most websites are informational; it’s giving a consumer peace of mind about what they’re getting into before doing business with a company. Websites can benefit service industries, nonprofits, specialty shops and everything in between.
What is the advantage of a website compared to a free Facebook page?
Websites give additional validity to businesses because everyone knows Facebook is complimentary. When someone sees you’re willing to invest in your brand, it gives an additional level of comfort. Also, Facebook is a couple of pictures and quotes about your company, whereas a website can be much more in-depth.
What is essential to having a good website?
A good website not only provides insights into your business, but also enables you to capture and consistently follow up with visitors. You should leave any visitor with a hook that allows you to stay in touch periodically and keep them engaged with your brand. A company selling golf equipment — and that golf equipment doesn’t have to be sold online — might have a free download or brochure about how to take five strokes off of your game. Potential customers give an email address, and you send them specials or information about clinics or new locations.
Circle back with Twitter and Facebook accounts by sending an email that offers a 5 percent discount coupon if they ‘like’ your Facebook page or follow you on Twitter. Then, potential customers get an automatic update every time you post something to Facebook or Twitter; you’re getting an entire marketing package at no cost.
Websites have been referred to as a modern equivalent of an ad in a telephone directory. Is that accurate?
That’s correct. Catalog-size paper telephone directories are a thing of the past. About 95 percent of consumers will do some sort of online research before setting foot in your establishment. If they do an Internet search on a small business and all they see are sites with reviews or contact information, that doesn’t make them very comfortable about the business.
If you have a competitor nearby that has an Internet presence and they come up right away on a Web search, consumers are twice as likely to go to that storefront because they will not feel as engaged with your brand.
In today’s market of Internet savvy consumers, it’s imperative for small businesses to maintain a solid web presence or risk becoming obsolete.
Ryan Niddel is the CEO of Brain Host. Reach him at (419) 631-1270 or email@example.com
Insights Internet is brought to you by Brain Host
Every business experiences risk, but determining the true cost of risk can be difficult.
“It’s much harder to calculate the impact that negative publicity has on your revenue versus lost productivity due to equipment downtime,” says Derek M. Hoch, president of Leverity.
“To develop the most appropriate risk management program for your organization, business owners should approach insurance through a variety of cost control strategies. These include identifying exposures, implementing control measures, transferring risk and managing your exposures,” Hoch says.
Smart Business spoke with Hoch about developing a strategic action plan to effectively monitor and manage risk, ultimately resulting in reduced costs.
How do you identify exposures?
Exposures are both qualitative and quantitative. Partnering with an insurance agent who understands these aspects of your business will provide important details that help to solidify a game plan. What keeps you up at night? If your biggest concern were to occur, would you be prepared to keep your business viable? How would your income or cash flow be affected if there were unforeseen depletions of capital or a shutdown in the plant? Is the company in a financial position to take on risk or would you rather transfer that risk to an insurance carrier? It’s also important to consider your industry, market position and competition in developing a risk management solution that fits the changing needs of your business.
Quantitative analysis supports the qualitative interview. Look at the hard numbers and review losses to identify:
• Average incurred costs per loss.
• Top loss drivers and trends.
• Fraud behaviors.
• Reporting lag time.
• Frequency and severity ratios.
• Occupational Safety and Health Administration (OSHA) recordable performance.
Both qualitative and quantitative analysis is important, as they help identify your total costs of risk and lead to the price of your risk management program.
What control measures can be implemented to reduce risk?
Once you’ve identified exposures, focus on control measures — an estimated 75 percent of commercial insurance expenses are claims-driven. A business can control and reduce this percentage through pre- and post-loss control measures. This process should help to establish a safety program that will deliver a comprehensive employee safety education campaign to address your exposures.
How do you decide what risk to transfer?
A trusted insurance adviser can help you balance how much risk you’re willing to take versus the cost of transferring that risk. Important questions to ask are:
• How much risk can I afford to assume in-house?
• How can a business insurance provider assist with contractually transferring that risk to a third party?
• What portion of the exposures do I want to finance through an insurance policy?
Answers to these questions provide direction on how to approach the proper placement of insurance policies. You also need to consider current cash flow needs. If you have a mature loss control program and financial reserves to cover shock losses that occur, self-insurance retentions are also a consideration.
How do you manage exposures?
Roughly 25 percent of businesses that sustain a major catastrophe go out of business within a year. You have to be prepared to respond if there is an interruption in your operations. Planning ahead and developing a comprehensive business continuity plan is vital to achieve this goal and keep your business viable.
Implementing risk management strategies will reduce costs, because the total cost of risk is synonymous with price.
Derek M. Hoch is president at Leverity. Reach him at (216) 861-2727, ext. 517 or firstname.lastname@example.org.
Insights Business Insurance is brought to you by Leverity
Considering the uncertainty in the stock market, 2012 turned out to be a good year for mergers and acquisitions (M&A), and the outlook is even better for 2013, says Albert D. Melchoirre, president of MelCap Partners, LLC.
“Last year was pretty tumultuous, with the overwhelming European debt crisis, a slowdown in certain emerging markets, uncertainty about the presidential election and its potential impact from a capital gains tax perspective, and the fiscal cliff debate,” Melchoirre says. “But there were several factors that would indicate reason to be optimistic about the M&A market in 2013.”
Smart Business spoke with Melchoirre about those factors and his expectations for the M&A marketplace in 2013.
How was 2012 from an M&A perspective?
The number of domestic M&A transactions was down by 4.6 percent from 2011. However, the average deal size increased 13 percent — from $138 million to $156 million. From a private equity standpoint, fundraising increased 31 percent compared to 2011. That bodes well for future M&A.
It’s interesting to note that deal volume was up 56 percent in December compared to November.
What was the reason for the end of the year activity?
The primary driver was the capital gains tax increase in 2013. There was concern that if President Barack Obama was re-elected taxes were going to go up significantly. The M&A process typically takes six to nine months, so that started before the election outcome was known. But there was pressure to try to get something done before the end of the year.
Another situation driving transaction activity was private equity dividend recaps. Many PEGS were going to the bank and taking out large dividends so the money would be taxed at the lower rates in 2012. They didn’t have enough time after the election to sell the business, so they paid out large dividends instead.
Because of the influx of closing activity in the fourth quarter of 2012, my sense is that 2013 will start out slowly. But I’m cautiously optimistic. When we look back at 2013, the numbers may be flat or down slightly because there isn’t enough time to make up for that lull.
Why are you ‘cautiously optimistic’ about the M&A market in 2013?
Some of the positive signs are the large amounts of cash reserves on corporate America’s balance sheets. The S&P 500 alone has over $1 trillion in cash, which is very strong. Combine that with favorable credit terms in the banking market and improved consumer confidence, and the elements are there for a solid year.
Another positive sign is more clarity with respect to the tax situation. Now business owners won’t be dealing with making decisions based on unknown, pending tax law changes. There’s something to be said for certainty. Uncertainty creates a tendency to be hesitant to make a move. When people know the rules of the game they can make decisions accordingly.
Do you expect corporate cash reserves to be utilized this year?
Absolutely. When you have corporate buyers sitting on these large cash reserves they have to deploy that capital in order to grow their business — there’s only so much equipment you can buy. When companies are sitting on trillions of dollars, one of the ways to accelerate that growth is through acquisitions. Cash is king and you can take advantage of opportunities in the market to grow and expand your business. And that cash will have to be deployed — the public markets will not let them sit on those reserves.
Last year, 75 percent of our sell-side deals were sold to strategic buyers who were sitting on a large amount of cash. Corporate buyers are acquiring competitors or complementary businesses through vertical or horizontal integration. With deals involving a private equity buyer, if they don’t have a portfolio company it would strictly be a financial play.
While I’m cautiously optimistic we’ll see more of the same activity this year, it looks like 2014 could be even better.
Albert D. Melchoirre is president of MelCap Partners, LLC. Reach him at (330) 239-1990 or email@example.com.
Insights Mergers & Acquisitions is brought to you by MelCap Partners
House Bill 479, known as the Ohio Asset Management Modernization Act (AMMA), is the new law that means Ohio residents will no longer have to set up trusts in other states in order to protect their assets.
“It’s an important piece of legislation,” says Richard H. Harris, partner and chair of the Estate Planning & Probate Administration Practice Group at Brouse McDowell. “Prior to this major change, we weren’t exactly at the forefront in this area of asset protection planning.”
Smart Business spoke with Harris about the legislation, which will go into effect on March 27.
What will the AMMA change?
It contains a number of different protections, but basically it provides better creditor protection across-the-board. One of the more significant provisions is the creation of a domestic asset protection statute known as the Ohio Legacy Trust Act, which, in layman’s terms, means that for the first time an Ohio resident will have the ability to create an irrevocable trust, retain certain beneficial interests in that trust and have the trust assets protected from creditors.
Long-standing law in Ohio and most other jurisdictions provides no creditor protection to settlors of revocable trusts — those trusts which you create during your lifetime to hold your assets for your benefit and which keep the trust assets from being subject to probate at your death. Other jurisdictions such as Delaware, South Dakota and Alaska have enacted statutes that enable an individual to set up a domestic asset protection trust in that jurisdiction that will give some creditor protection to the person who created the trust. One of the key requirements in these jurisdictions was that you had to use a trustee who was a resident of the state or a trust company that is legally authorized to operate in that state, and some or all of the trust assets had to be custodied in the state as well. House Bill 479 was enacted, in part, to keep trust assets and the trust administration business in Ohio and to make Ohio competitive with a growing number of other jurisdictions in providing creditor protection to self-settled asset protection trusts.
Are there any exceptions?
Yes. You can’t set up a domestic asset protection trust in Ohio to avoid alimony or child support, or if you already have an issue with a creditor — that would be a fraudulent conveyance. This type of planning is most useful in situations where someone is in a high-risk environment, such as a physician who has a high risk medical practice or entrepreneurs or any high-net worth individual whose work involves a significant amount of risk of personal liability.
What are the other significant creditor protection provisions contained in this new legislation?
One is a significant increase in the homestead exemption. Right now, it’s $21,625 per debtor. With the new law, it increases to $125,000 per debtor and it’s stackable, which means a married couple can protect up to $250,000 of equity in their house from the reach of creditors.
The legislation also created an optional personal property recording system. Transferors will be able to record a notice of transfer of personal property with the local county recorder. Recording a conveyance of personal property will put all creditors on constructive notice of the property transfer, which will have the effect of cutting off the right of the future creditor to challenge the transfer at a later date. The new legislation also clears up an ambiguity in Ohio law regarding inherited IRA accounts. Ohio’s exemption statute that exempts certain property from being subject to attachment by creditors has been revised to specifically include inherited IRA accounts and 529 Plans.
What might this mean for Ohio residents?
The AMMA obviously provides much better asset protection planning for anybody who lives or works in Ohio. Gov. John Kasich approved it because he thought it would encourage business activity and professionals would be more likely to maintain their assets in Ohio. ?
Richard H. Harris is a partner and chair of the Estate Planning & Probate Administration Practice Group at Brouse McDowell. Reach him at (330) 535-5711 or firstname.lastname@example.org.
Insights Legal Affairs is brought to you by Brouse McDowell
Benefit administration systems put information at employees’ fingertips while freeing up HR staff to focus on strategic issues such as employee engagement and retention.
“Everything related to employee benefits and an employee’s life cycle can be stored in a technology solution and then used by both the employee and the HR department,” says Meghann Guentensberger, Director of HR Services at Benefitdecisions, Inc. “Medical, dental, vision, and even ancillary benefits like transportation and flex are all in one system that’s accessible to everyone.”
Smart Business spoke with Guentensberger about the advantages of automation using an online benefit administration tool and how to choose a system that fits your needs.
What can a such a tool do?
It automates the administration process through an employee’s life cycle from onboarding to termination. The system also handles annual benefits enrollments and life event changes. When someone gets married or has a baby, they can make health care enrollment changes through the system rather than filling out a 20-page application with an HR person.
The system can also be electronically connected to the insurance carriers, feeding information directly to them in real time. This ensures timely and accurate enrollments and terminations while also facilitating the billing reconciliation process, ensuring you’re not paying for someone inadvertently left on an insurance plan. Between savings generated from efficiency of staff and error reduction, a benefit administration system can save more than $19 per employee per month.
In addition to employee benefit information, many of the tools have Human Resources Information System components and can track compensation history, paid time off and leaves of absence. Skills and past performance history can also be tracked for succession planning purposes, which facilitates resource allocation. The tools empower employees to update their electronic personnel files and promote their skills by updating certifications, education or training.
How do you choose the right solution?
There are five advantages of a benefit administration system that should be considered when selecting the appropriate system: cost savings, productivity enhancements, increased communication, facilitation of employee retention and recruitment, and the ability to eliminate paper transactions.
But first, take a step back and document current processes so you know what you’re paying for your system and in HR time. This will help build perspective around the hard and soft costs of what you’re doing now versus what you could be doing. Then list what features and functions you want, so you can evaluate providers and do a direct comparison.
It’s also important to think about the solution globally rather than getting carried away by the presentation of a tool that takes current pain away. Develop a plan for where you’re going and how it fits in. Often, the tools provide scalable solutions that will allow you to add features as time goes on.
Adding a benefit administration system doesn’t mean you have to revamp everything. These tools interface with existing systems such as payroll, so you don’t have to overhaul what you have.
Have an independent third party ask questions and go through the process of how it will be used. When a vendor does a demonstration everything looks amazing, but you’re only seeing what they’re showing. A neutral third party can provide an unbiased perspective.
Who needs a benefit administration system?
Any company big or small — the complexity of the system is dependent on the company’s size and needs. With health care reform, it will be more difficult to remain compliant using paper, both because regulations change so quickly and the required reporting. This system allows you to analyze your population and compute costs to ‘pay or play.’ You can pull the data and run models to make a decision that makes the most business sense.
For smaller companies without an HR department or just one HR person, this tool can really help them be more effective and efficient instead of being transactional.
Meghann Guentensberger is Director of HR Services at Benefitdecisions, Inc. Reach her at (312) 376-0449 or email@example.com.
Insights Employee Benefits is brought to you by Benefitdecisions, Inc.
It’s a good time to refinance a commercial real estate loan or purchase a property.
“The market has become more competitive. The big retraction of lender funds in 2008 and 2009 that resulted from increased reserve requirements and unfavorable market conditions has flipped. More banks, insurance companies and other financing sources are back in the mix and looking to lend as the economy continues to improve,” says Kimberly Rysyk, a senior vice president in the Real Estate Lending Division at Bridge Bank.
Smart Business spoke with Rysyk about the state of the lending market and opportunities that are available.
How is the current commercial real estate lending market?
It’s favorable for borrowers, as lending sources increase and interest rates remain low. Many banks have re-entered the market as their financial positions have increased along with the economy. The increase in sources has created competition, resulting in a decrease in spreads. This has translated into a drop in rates. The bottom line is that there are more lenders looking for the same deals.
What about lending for new projects?
Finding lending sources for new projects remains difficult but improved through the latter half of 2012. Cash equity of 25 to 35 percent is standard and projects with higher risk may approach 50 percent. Certain housing markets warrant new construction as demand for new housing and rents increase. Lenders are interested in those builders and developers who have been able to sustain themselves through the recession and have cash to invest. There is financing out there for speculative construction as well, provided the cash equity is sufficient and the buyer is financially strong.
For owner-occupied businesses it can make sense to find property that’s not necessarily in a top location, but in a place where they can have a brand new building suited to their specific needs that works based on debt coverage, cost of the project and cost of the land.
Is it a good time to invest in such properties?
Historically low interest rates and real estate prices still depressed from the Great Recession have created some opportunity. There has also been a slow but steady improvement in the labor market and a leveling of vacancies and rents, which are positive signs for the economy. This is a good time to invest in commercial properties if you know your market.
In San Francisco, for example, payroll tax incentives for businesses that relocate are making some areas attractive that previously were considered B-rated. This has led to big companies, such as Twitter, Zynga and Salesforce.com, to relocate to areas that were not considered desirable but are now looking up. Other companies or investors can take advantage of the depressed values here, refurbish or rebuild, and greatly affect the end value of the project. There are lenders out there who can recognize the end value and will lend on the resultant cash flow, rather than the current depressed value.
What should you consider when choosing a bank?
Strength and longevity are key. Has the bank been in the commercial real estate business through the downturn? Were they able to navigate changes in the market? An experienced banker will look at your past and future projections, uncover the pros and cons, and help you determine the best solution for your needs, whether it be building new, renovating an existing building or refinancing your current debt.
What concerns do you have for the future?
A significant swing in interest rates is concerning. Properties that were refinanced at extremely low rates may have difficulty finding refinancing sources at maturity. This concern would be heightened if the facility were not amortized or if property values do not rise sufficiently. The European financial crisis, for example, has had an effect on companies that do business on a global scale. This type of uncertainty affects the stock market, which has a strong bearing on the continued strength of the economy. Finally, federal regulators are considering increasing the reserve requirement for real estate loans. A significant increase could chase many lenders out of the market once again.
Kimberly Rysyk is senior vice president, Real Estate Lending Division, at Bridge Bank. Reach her at (408) 556-8392 or firstname.lastname@example.org.
Insights Banking & Finance is brought to you by Bridge Bank
Whether it’s a major event such as Hurricane Sandy or simply a snow day, businesses need to be aware of the wage and hour implications of weather-related absences.
“It is important to have clearly defined policies in place that address the many pay-related issues that are involved with a weather-related closing,” says Jenny Swinerton, general counsel at Sequent. “In addition, it’s always a good idea to implement a contingency plan that identifies essential personnel who are vital to the continued operations of the company and establish procedures for communicating with employees regarding emergency closures.”
The same issues apply in cases when businesses close because of an outbreak of the flu.
“This is expected to be one of the worst flu seasons we’ve had in years, so it’s a good time for businesses to review their existing policies to ensure that they address all of the various issues that arise when an employer is forced to close for any reason.”
Smart Business spoke with Swinerton about weather-related absences and how the Fair Labor Standards Act (FLSA) dictates pay requirements.
What happens to employees’ pay when a business closes because of weather?
Employees are treated differently under the FLSA depending on whether they are classified as nonexempt or exempt. Briefly, nonexempt employees are those who are entitled to overtime pay. Exempt employees are those who are paid on a salaried basis and also meet specific legal requirements to be exempt from the overtime pay requirements.
The FLSA requires employers to pay their nonexempt or hourly employees only for those hours that the employees have actually worked. As a result, if a nonexempt employeed are unable to come to work or the office is closed, the employer is not required to pay them.
Exempt employees generally must be paid their full salary for any week in which they perform work. So, if an employer closes the office because of inclement weather or other disasters for less than a full workweek, the employer must pay the exempt employee’s full salary for the week. The employer may, however, require the exempt employee to use vacation or paid time off.
Does the length of a shutdown determine how you handle absences?
It really doesn’t matter for nonexempt employees because they’re paid only for hours worked. So if you shut down for a week, you don’t have to pay nonexempt employees during that time. With salaried employees, unless an employer suspends operations for an entire workweek, they must be paid their regular weekly salary regardless of the number of hours they worked. This becomes tricky with telecommuting because an exempt employee is often going to be checking email or responding to phone calls even while stranded at home during a storm. If exempt employees work for a small portion of the workweek, they must be paid for the entire week.
If you make deductions from exempt employees’ compensation for absences attributed to inclement weather, you may jeopardize the employees’ exempt status and incur liability for any overtime they may have worked.
What happens if an employer’s business is open, but exempt employees don’t show up?
If the employer remains opens during or after a natural disaster and an exempt employee cannot report to work, the Department of Labor considers this to be an absence for personal reasons. But deductions may only be made from the exempt employee’s salary in full day increments. However, it is important to remember that if a salaried employee performs even a little bit of work during the day, employers are still required to pay the employee’s full day salary.
What else should be considered?
Employees who are instructed to remain on call during inclement weather and who cannot use the time for their own personal benefit must be compensated for this time. Additionally, if employees are performing job duties outside their normal scope, such as sweeping the floor, they may be considered a volunteer and do not need to be paid for that time.
Read Sequent’s blog — frequent posts from a wide range of Sequent experts regarding HR, technology and consulting.
Jenny Swinerton is general counsel at Sequent. Reach her at (614) 410-2362 or email@example.com.
Insights HR Outsourcing is brought to you by Sequent
Ohio legislators are considering tax law changes that would relieve headaches for companies that do business across many municipal boundaries.
While Ohio has a uniform law limiting how a municipality may tax, it serves only as a ceiling for what a city may do. Cities can and have imposed their own rules and treatments within those guidelines.
Nonuniform municipal rules and multiple filings have made it difficult for companies to determine what taxes they owe and have deterred others from doing business in the state, says Joseph R. Popp, JD, LLM, tax supervisor at Rea & Associates.
“One of the challenges is the definition of a day. Are you working in a municipality for a day if you’re present at all, or do you have to work half of the day, or the full day? What if your workers pick up a truck at your office and then spend the rest of the day outside that city?” Popp says.
“Cities are taking different approaches, which could result in multiple cities trying to tax you for the same day,” he says. “That’s an example of the complexity that businesses are facing and why they feel that the Ohio municipality taxation structure is burdensome.”
In addition to creating uniform definitions, House Bill 601 would eliminate the need to file tax returns in cities where less than 1 percent of your income is allocated and the tax owed is less than $50. It would also change rules regarding a “free pass” that has been given in cases when workers spend fewer than 12 days in a city. That would be extended to 20 days, and tax would then be collected going forward only.
Smart Business spoke with Popp about the problems posed by current municipal tax laws and what proposed legislation would do to rectify the situation.
What types of businesses does this affect?
Those that are mostly going to be affected will be service-based groups — those that do cable TV installation or something service-based that would take company representatives to many different municipalities while working under the same business umbrella. Temporary agencies that have people going to multiple locations would also be a business group that would have interest in this.
Are there things businesses should do in preparation for the bill’s passage?
Businesses should consider looking at where they might have done things wrong in the past.
A client of ours has a real estate rental company and thought it was in a jurisdiction where tax was not due. However, we found that it was in city limits and tax was due to the city. We’ve prepared returns showing this taxpayer owes $20,000 for a couple of different years. Because of that city’s interest and penalty structures, the client will pay another $20,000 in penalties and interest. Under the new rule, the city would be limited to imposing only $4,000 in penalties and interest, although it’s not clear if the new legislation would be a retroactive change.
So, companies may want to see if there are opportunities to leverage the rule change and end up paying less to the municipality. The municipality may not like the rule change and it wants to get as much tax, interest and penalties as it can now, so that opens up another bargaining chip for businesses to use in their negotiations with a municipality’s tax administrator.
Is the legislation likely to pass?
Yes, and the reason for this confidence stems from how this came about. The major cities are on board with this, the Ohio Society of CPAs is presenting the professional point of view and the members of the legislature are involved in the process. There was a lot of effort put forth to ensure that there was agreement and buy-in by all interested parties.
Click here, to stay informed on the issues affecting your business today and visit the accounting article library.
Joseph R. Popp, JD, LLM is a tax supervisor at Rea & Associates. Reach him at (614) 923-6577 or firstname.lastname@example.org.
Insights Accounting is brought to you by Rea & Associates
When it comes to zoning and land use regulations, things are not always as they appear. You may want to move into a building that housed a similar operation and sign a lease, only to find that the prior use had been grandfathered.
“There are all kinds of things out there that are not necessarily apparent that you need to check out before you do anything,” says Catherine A. Cunningham, a director at Kegler, Brown, Hill & Ritter. “One of the unique features of zoning is that it is not a state law, it’s a local law under the police powers of the local government. Every local government has its own rules. They have some commonality in how they do things, but the rules and regulations that you would be subject to are unique to the jurisdiction where the property is located.”
Smart Business spoke with Cunningham about the importance of reviewing local ordinances and regulations when considering a business site.
Do companies neglect to consider local ordinances and regulations when looking at potential locations?
It sometimes happens that way. Companies should consider all local ordinances and regulations to make sure that when they choose a location, they are able to do all the operations that they intend at that location.
Normally, most jurisdictions require that if you are constructing a new building, changing a use, or expanding an existing facility that you get a certificate of zoning compliance or zoning clearance from the local government to ensure that you are in compliance before you get too invested in the project.
What common mistakes do businesses make when choosing a location?
They might choose a location where the zoning doesn’t permit what they do, and sometimes they move to a location and find out they can’t expand or the building had a prior zoning violation that they’ll inherit.
Part of the due diligence, anytime you’re going to construct, lease or buy, is to check to make sure that what you want to do and the way you want to use the property are permitted under the current zoning law.
Do companies sign leases before realizing they have a zoning or regulation issue?
That happens more often than it should, in my view. Very often a business is dealing with someone it’s leasing from who is assuring its that it’s OK. Sometimes the company just makes a call to a government authority and talks to somebody, assuming that’s an adequate approval, when really what you need to do is to file an application and be sure that the governmental authority has had adequate time to review all of your information and make an approval.
Often it appears, or it is assumed, that a project or proposed use of property is in compliance with zoning, but then, when the government understands the exact nature of the project or operation, it may find it doesn’t comply with local zoning. Then companies can be prohibited from using the property or from making the expansion or adding the equipment that they think they need in their operations.
In many cases, businesses that have manufacturing facilities, hazardous materials or other special uses, such as outside storage, may trigger special permits from the local government regulator. A lot of times those businesses aren’t aware those permits are required, and sometimes they don’t qualify for the permits and can’t use that location.
Once you identify a property you want to look into, it’s critical to contact the local government or legal counsel to make a determination of how the property is zoned, whether you can use it the way you intend, and to try to get a certificate of zoning compliance or authority to use it that way so you’re cleared before leasing or buying a building.
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Catherine A. Cunningham is a director at Kegler, Brown, Hill & Ritter. Reach her at (614) 462-5486 or email@example.com.
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