Leasing Assets To Your Own Corporation
The fact that the corporate form is selected as the basic means of conducting a business enterprise does not mean that all of the physical components of the enterprise need to be owned by the corporation. Indeed, there may be legal, tax, and personal financial planning reasons for not having the corporation own all the assets to be used in the business.
Whether the corporation is to be the continuation of a sole proprietorship or partnership or a wholly new enterprise, decisions can be made about which assets owned by the predecessor or acquired for use in the corporation are to be owned by the corporation and which assets are to be made available to the corporation through a leasing or other contractual arrangement.
For the assets that go to the corporation, decisions must be made about how they are to be held and on what terms they are to be made available to the corporation.
There are several possible choices. The assets may by owned by:
- An individual shareholder or some member of his family;
- A partnership, limited or general, in which family members participate; or
- A trust for the benefit of family members.
A separate corporation is still another possibility, but the risk of being considered a personal holding company and incurring penalties due to passive income (including rent and royalties) may make this impractical.
Normally a leasing arrangement is used in order for the assets to be made available for corporate use. Assuming that the rental is fair, it would be deductible by the corporation and taxable to the lessor. Against the rental income, the lessor would have possible deductions for interest paid on loans financing the acquisition of the asset, depreciation, maintenance and repairs, insurance and administrative costs.
These deductions might produce a tax-free cash flow for the lessor. When depreciation and interest deductions begin to run out, a high-tax-bracket lessor might find that he/she is being taxed at too high a rate on the rental income. At this point, he may transfer the leased property to a lower-tax-bracket family member.
He might also consider a sale of the property to his corporation. This sale would serve to extract earnings and profits from the corporation at favorable tax rates. At the same time, it would give the corporation a high tax basis for the asset than it had in the hands of the lessor, thus increasing the corporation’s depreciation deductions. This, of course, would reduce the corporation’s tax liabilities and benefit the shareholders-the lessor included, if he/she is a shareholder.
How To Deduct Start-Up Costs Sooner
Avoid being forced to capitalize and amortize start-up costs over a five-year period. The trick is to get “in business” quickly. You can claim business deductions or losses only when you’re “in business.” (You’re considered to be “in business” when you’re trying to get sales.) Any subsequent expenses you incur will be to “expand” an existing business, and you can take full deductions for those items.
For example, let’s say you want to open a sales organization. The start-up costs include getting products to sell and interviewing salespeople. If you can get one line, no matter how small, and make a few sales, you’re considered to be in business. Then you can spend time looking to expand into other products and to hire a sales force.
Incorporating A Business Tax-Free
You may have a sole proprietorship or partnership and reach a point in the growth of your business where you want to incorporate. There’s a special provision in the Internal Revenue Code (Section 351) that enables a business before the incorporation own at least 80% of the business after incorporation.
If you incorporate in this way, the IRS can’t recapture depreciation deductions or investment credits (if still applicable). If the assets are subsequently disposed of, the recaptures will take place at the corporate and not at the individual level, even though you may have initially received the benefit from the investment credit or depreciation.
How To Set Up A Hobby As A Business
You can set up a hobby as a business and deduct your losses. However, you must be able to prove that the hobby is a for-profit business. If you realize some profit in at least three out of the most recent five consecutive years, it is presumed that the business is for profit. But even if you don’t show and profit, you may be able to prove that the business is intended to make a profit.
To prove that you have a profit motive in conducting your business, keep detailed records. Present evidence of your advertising campaigns, attempts to generate new business, and sales analyses. It’s not necessary to show that you run a big business, reaping huge profits, but only that you have genuine intentions of running the business in a businesslike way.
Best Way To Set Up A Family Business
A business can be organized as a corporation, a proprietorship, a partnership, or even a trust. Use combined forms of ownership to cut taxes.
Examples:
- Use a corporation to operate the business.
- Have an individual, as sole proprietor, or a partnership own the machinery and equipment and rent it to the corporation.
- Have an individual or partnership hold title to the real estate and rent it to the corporation.
- Use a trust (for the benefit of the children of the owners) as a partner in the partnership (in either the equipment partnership or the real estate partnership or both).
This arrangement reaps some important tax benefits:
- Tax losses are passed through to the high-tax-bracket owners. When partnerships begin producing income, transfer title to the low-bracket children for income-splitting purposes.
- Income from the rental goes to the owners without dilution for corporate taxes.
- Income to the children aged 14 or older benefits from income-splitting.
The possibilities for combining the above are endless. Consider such additional entities as S corporations, multiple corporations, and multiple trusts.
Caution: The “passive-loss” rules, imposed by the Tax Reform Act of 1986, severely restrict the deductibility of many partnership losses, S corporation losses, and losses from rental property. Always check with a tax professional before deciding on the structure of your business.
When To Set Up A Venture Partnership
You may be asked to help friends or relatives start up a small business by providing the capital to finance the deal. Set up the business as a partial shelter for the amounts you invest. Uncle Sam helps you reduce the amount that you’re investing by allowing you to deduct a large share of the losses. I call such a deal a venture partnership. Here’s how it works:
You become the limited partner. As such, you’re entitled to deduct a very large share of the losses, up to 99%, since you’re putting in all the money. At the point that the business turns around, the percentages drop. You might receive 50% of the profits after getting your money back, and the person you helped also received 50% of the profits. Now both of you can share in the profits as partners, but at the outset you get the benefit of a larger share of the losses. Caution: These write-offs are subject to the passive-activity-loss rules.
Best Tax Shelter In America
Tax Reform has taken dead aim at tax shelters. It’s not longer possible to offset your salary or investment income with paper losses generated by passive investments in oil wells, real estate developments, etc. Neither is it possible to cut the family’s tax bill greatly by shifting investment income to children who are under age 14.
But even under Tax Reform, the best tax shelter still remains. With it you can generate large paper losses, claim deductions for personal or hobby-like expenses, and legally shift income to your low-tax-bracket minor children.
The best tax shelter is a sideline business.
Here’s how a sideline business can be used to get the big tax-sheltering-type deductions, along with winning examples of taxpayers who have already done it…
Income-Shifting
Under Tax Reform, investment income exceeding $1,300 for a child under age 14 is taxed at the rate paid by the child’s parents. But this rule does not apply to the earned income of a child.
Result: When a child works for a parent’s sideline business, earning are taxed at the child’s own low tax rate. Since the parent deducts the salary paid to the child as a business expense, the family’s total tax bill is lowered by the difference between the parent’s high tax rate and the low or zero rate on the child’s salary.
Of course, this income-shifting technique is also available for children over age 14 and other family members. And even greater tax benefits can be obtained when family members use the salary you pay to make deductible IRA retirement contributions, or when the business pays for deductible benefits.
The only rule that governs paying salaries to family members is that they must actually earn their salaries. Salary deductions have been allowed when:
- • A doctor paid his four children, ages 13 to 16, to answer telephone calls, take messages, and prepare insurance forms.
Source: James Moriarity, TC Memo 1984-249.
- • The owner of a rental property hired his teenage sons to maintain and clean the building.
Source: Charles Tschupp, TC Memo 1963-98
- • A business owner hired his wife to act as the company’s official hostess.
Source: Clement J. Duffey, 11 AFTR2d 1317.
What Qualifies
A part-time activity can easily qualify as a business. The only requirement is that you operate your activity with the objective of making a profit. You don’t actually have to make a profit, nor do you have to expect to make a profit in the near future. Examples:
Home Deductions
A major benefit of running a sideline business out of your home is the possibility of claiming a home-office deduction. This entitles you to deduct expenses that were formally personal in nature, such as rent, utility, insurance, and maintenance costs attributable to the office. Even better: You can depreciate the part of your home that’s used as an office, getting large paper deductions that cost your nothing out of pocket.
To qualify for the deduction, you must have a part of your home that’s used exclusively for business and is that primary place where you conduct the sideline business. Winning examples:
- • A doctor who owned and managed rental properties to get extra income could deduct one bedroom in his two-bedroom apartment as an office.
Source: Edwin R. Cruphey, 73 TC 766.
- • A woman who did economic consulting work out of a home office could deduct it, even though her husband, a famous newspaper editor, use the same office for nondeductible activities. The Tax Court did not reduce her deduction because her husband shared the office.
Source: Max Frankel, 82 TC 318.
Big Dollar Deductions
Tax Reform prohibits taxpayers from offsetting their salary and investment income with losses from businesses in whish they participate as passive investors (as shareholders or limited partners without management duties).
But if you actively manage your own sideline business, it’s still possible to claim big loss deductions. Important: Tax losses do not necessarily mean cash losses. Items such as depreciation on cars, equipment, and real estate can result in deductible tax losses while the business is earning a cash-flow profit.
A sideline business is presumed to have a profit objective if it has reported a profit in three out of five years (two out of seven year for horse breeders). But such a business may be deemed to have a profit objective, even after reporting many years of continuous losses. Winning examples:
- • A real estate operator tried to develop and market an automatic garage door opener. He was entitled to deduct $355,000 over 11 years because he had made a sincere effort to sell the door openers.
Source: Frederick A. Purdy, TC Memo 1967-82.
- • A horse farm incurred 20 straight years of losses totaling over $700,000. During the next seven years, it lost another $119,000, but in two of those years it had profits totaling $17,000. Since the two-out-of-seven-years test had been met, the farm was ruled to be a profit-motivated business, and all of its losses were deductible.
Source: Hunter Faulconer, 48 F2d 890
- • A corporate vice president and management expert ran a breeding farm as a sideline and lost $450,000 over 12 years. The loss was deductible because evidence indicated that it often takes 8 to 12 years to establish an acceptable bloodline for the animals involved.
Source: Lawrence Appley, TC Memo 1979-433
Start-Up Tactic
When starting a new sideline business, you can protect your deductions by electing to have the IRS postpone its examination of your business status until after you’ve been operating for four years (six years in the case of a horse farm). You’ll be able to treat your sideline as a business during that period, even if it earns continuous losses. But if you can’t demonstrate a profit objective at the end of that period, you’ll owe back taxes. Make the election by filing the IRS Form 5213, Election to Postpone Determination That Activity Is for Profit.
Winning examples:
- • Eugene Feistman, a probation office, collected and traded stamps for many years. The Tax Court initially refused to let him deduct his costs, saying his collecting was merely a hobby. So he filed a business registration certificate with the local government, opened an account that allowed him to make sales by charge card, set up an inventory, and started keeping good business records concerning purchases and sales.
New ruling: Now Feistman could deduct his costs because he was operating in a businesslike manner. The Tax Court allowed him to deduct $9,000 over two years.
Source: Eugene Feistman, TC Memo 1982-306
- • Gloria Churchman, a housewife, admitted that she painted for pleasure, but she was also able to show that she made a serious effort to sell her works at shows and galleries. The Tax Court allowed her to deduct her expenses and losses, including the cost of a studio in her home.
Source: Gloria Churchman, 68 TC 696
- • Melvin Nickerson, an executive who lived in the city, bought a farm and began renovating it on weekends. He intended to retire to it in the future. Although Nickerson didn’t expect to make a profit from the farm for another 10 years, the Court of Appeals allowed him to deduct his renovation costs right away. It said that his expectation of future profits, combined with the real work he put in, sufficed to justify a deduction now.
Source: Melvin Nickerson, 700 F2d 402
- • Bernard Wagner, an accountant, fancied himself a songwriter and music promoter. He hired a band, rehearsed it, booked It, and copyrighted the songs he wrote. Although his chances of success were slight, he intended to succeed, so the Tax Court allowed him to deduct his costs and losses.
Source: Bernard Wagner, TC Memo 1983-606
- • J.V. Keenon bought a house, moved into it, then rented an apartment in the house to his own daughter. The Tax Court agreed that he was now in the real estate rental business, so he could deduct depreciation on the rented apartment, along with utilities, insurance, and related expenses. And this was in spite of the fact that he charged his daughter a below-market rent. The Court felt that the rent was fair because it’s safer to rent to a family member than to a stranger.
Source: J.V. Keenon, TC Memo 1982-144.
Tips for Avoiding Identity Theft
in Tax Tips/by Steve GentryDo not give out personal information over the phone, through the mail or over the Internet unless you have initiated the contact or know with whom you are dealing.
Shred all discarded documents, including bank statements, pre-approves credit card offers, insurance forms and other documents that contain financial information.
Do not use your mother’s maiden name, birth date or last four digits of your Social Security number when creating a password.
Carry only credit cards you use on a regular basis. Never carry your Social Security card, birth certificate or passport unless necessary.
Do not write your Social Security number on checks or give it out to businesses. If a government agency requests the number, a privacy notice should accompany the request.
Do not put your credit card number on the Internet unless it is encrypted on a secure site.
Cancel all credit cards you have not used in the last six months.
If you order a new credit card, make sure it arrives within the appropriate time. If not, call the credit card grantor to find out if it was mailed and to what address.
Order your credit report at least twice a year. Correct all mistakes with the credit bureau.
Tax-Free-Income Loopholes
in Tax Tips/by Steve GentryOne of the shortest sections of the federal Tax Code is Section 61. It defines gross income as “all income from whatever source derived.” But don’t take this literally. There are many kinds of income that are not taxable. Types of income that you don’t pay federal income tax on:
Gain on the sale of your home
If you sale a house that was your primary residence for at least 2 of the previous 5 years you can exempt up to $250,000 from tax ($500,000 if married filing jointly). If you don’t mind moving every few years this strategy can be used over and over. This is ideal for a young couple that buys a run down house and moves into it while they fix it up. They would then sell the house after living there for at least 2 years, and pay no taxes on the gains (up to the limits listed above). Then they can buy another run down house and do it all again.
Gifts you receive. Any gift tax is payable by the person who makes the gift. The recipient gets the gift free and clear of tax.
Money you borrow. Normally, borrowing is not a taxable transaction. But you’ll be taxed if you borrow from your IRA, if you borrow more than $50,000 (or half your account) from your company pension fund, or, in some cases, if you get an interest-free loan from your company or a family member.
IRA rollovers. No tax is payable on a lump-sum distribution that is received from a company pension plan if you put it into an IRA within 60 days. (Tax will be withheld, however, if you don’t transfer the money directly from the company plan to the IRA trustee.) You can also take money tax-free from your IRA if you roll it over within 60 days into another IRA.
Inheritances. Beneficiaries don’t pay federal estate tax on anything they inherit – the estate pays any tax that’s owed. Moreover, if you inherit property that’s increased in value, you receive it at its “stepped-up” estate value. you would then use this value, rather than the original cost, to calculate your taxable gain if you sell the property.
Life insurance proceeds. The beneficiary gets the full amount tax-free. But the estate may be liable for estate tax on the proceeds.
Property settlements between spouses in divorce or separation proceedings. The recipient owes no tax at the time property is transferred. (There may be a tax later if property is sold at a gain.)
Child-support payments. They are tax-free to the recipient. Alimony payments to a spouse or ex-spouse, however, are taxable to the recipient.
Money recovered in lawsuits for personal injuries or defamation of character. But money recovered to compensate you for lost wages or other income is taxable.
Workers compensation payments.
Disability payments from accident and health-insurance plans. The payments are tax-free if you paid for the insurance, but taxable if your employer paid the premiums.
Federal income tax refunds. (But any interest the IRS pays you on a late refund is taxable.)
State income tax refunds…provided you didn’t itemize deductions on your federal return for that year.
Municipal bond interest. Generally, it’s exempt from federal income tax and sometimes from state and local taxes, as well. However, interest from some “private purpose” municipal bonds is subject to the Alternative Minimum Tax. And, municipal bond interest is taken into account in figuring your income level to determine whether any of your Social Security benefits are taxable.
“Like-kind” property exchanges-swaps of tangible property or real estate are tax-free if the properties are of similar nature.
Vacation home rental. If you rent your vacation place out for 14 days or less, the income is not taxed.
Kids’ wages. Dependent children can earn up to the annual standard deduction amount for single taxpayers which is $6,300 in 2016.
Kids’ investment income. Dependent children can receive up to $600 of unearned income tax-free (dividends, interest, etc.).
Scholarships and fellowships granted on or before August 16, 1986, to candidates for degrees, are tax-free. But, if granted after that date, they are tax-free only to the extent they are used to cover tuition, fees, books, and course equipment. Grants for room and board, etc., are taxable.
Fringe benefits from your employer. Examples: Health insurance, pension contributions, up to $50,000 of life insurance coverage, up to $5,000 of death benefits, education expenses (up to $5,250 a year), certain child- and dependent care, legal services under group plans, and supper money.
Meals and lodging, if furnished by your employer for the employer’s convenience-for example, to enable the employee to remain at the workplace.
Recordkeeping Hotline
in Tax Tips/by Steve GentryRecordkeeping Alert
As a result of Tax Reform, recordkeeping is now necessary in some areas that never required records before. Crucial: Keep flawless records.
IRA contributions. For most people, the new rules have cut out deductible Individual Retirement Account contributions. If you or your spouse has a company pension plan and your Adjusted Gross Income is greater than $50,000 ($35,000 for single taxpayers), your IRA contributions aren’t deductible. However, nondeductible contributions to IRAs are still slowed (generally up to $2,000).
Recordkeeping alert: Taxpayers who have both deductible and nondeductible IRAs must now begin keeping special, detailed records of all their contributions for tax purposes. Reason: When you withdraw money from your IRA, the IRS aggregates all your IRA accounts together and treats the withdrawal as if it were both from your deductible and your nondeductible contributions, even if they were in separate IRAs. Result: Part of every withdrawal is going to be taxed, and part of every withdrawal is going to be tax-free.
Since the deferred earning on IRAs are taxed at withdrawal, every withdrawal must be broken down into three parts to figure out the tax:
Earnings on the IRA. (100% is taxed at withdrawal whether the earnings are from deductible or nondeductible contributions.
Return of a deductible contribution (i.e., contributions made before 1987, while you were still allowed to deduct the contribution on you tax return). It’s taxed at withdrawal because it wasn’t taxed in the year you made the contribution.
Return of a nondeductible contribution (i.e., contributions made in 1987 or after that will not be deductible on your tax return). It’s not taxed at withdrawal because it was taxed in the year you made the contribution.
Income shifting. Gifts to children under age of 14 that generate investment (unearned) income over $1,300/year will be taxed at the parents’ tax rates.
Recordkeeping alert: Avoid mixing this type of unearned income with the child’s earned income (which is always taxed at the child’s own rates no matter how much he/she earns). Put the unearned income into an account that is separate from the earned income so there will be no question as to how to treat the income for tax purposes.
Meal and entertainment expenses that you incur in the course of your business are only 50% deductible. This limit applies whether you are eating out alone or entertaining clients in order to get new business. Included in this limit: Food, beverages, cover charges, gratuities, taxes, theater tickets, etc.
Exception: An employment who is reimbursed for these expenses by his employer doesn’t have to worry about this rule once he has properly accounted for them to his employer. The employer, rather than the employee, takes the 50% deduction.
Recordkeeping alert: Don’t lose or misplace a single receipt for meal and entertainment expenses. Keep a diary to record the details, especially if you entertained others. Carry this diary around with you at all times.
Interest Recordkeeping Requirements
The IRS requires that you document fully the flow of funds for all loans you take in order to determine the deductibility of the interest.
Personal mortgage interest on two residences is fully deductible up to certain limits. The deductibility of other interest depends on how the funds are used.
For example, funds you borrow for the purpose of making investments are deductible to the extent of your investment income. Personal interest isn’t deductible. Interest that you pay on funds used to purchase a passive activity or real estate is lumped with the gains or losses from that activity. To the extent that there’s a net loss, the interest may not be deductible because of the limitations inherent in those transactions.
The recordkeeping requirements are very stringent. In the past, if you borrowed money on a margin account, the IRS presumed that the interest was for investment purposes. Now the burden is on you, the taxpayer, to show proof of the flow of funds.
Advice: If you borrow money and want to get a tax deduction for the interest, keep careful records to indicate the uses and applications of the monies borrowed. Also, keep records proving you repaid the principal. Obviously, if you have a choice of which loan to repay first, you should repay the loan that gives you the least deductibility of interest.
Retaining Records
Most records have to be held for only three years after the due date of you tax return. That’s when the statute of limitations expires for tax audits by the IRS and refund claims by the taxpayer. But some records should be kept indefinitely, especially those relating to the acquisition of property, whether by purchase, gift, or inheritance. Reason: If you ever sell the property, you can’t determine profit or loss without proof of its original cost or other tax basis.
Lost Records
John and Louise Kranc deposited all their records with their accountant in order to prepare their tax return. The accountant lost the records. The Krancs then argues that the substantiation requirements for their deductions should be waived because it wasn’t their fault that the records had been lost. Tax Court: The Krancs were out of luck. They should have kept copies of the records they gave to the accountant.
Paying Your Child A Tax-Deductible Allowance
in Tax Tips/by Steve GentryA favorite tax-planning tactic is to have a minor child work for the family-owned business. Income earned by the child is taxed at the child’s tax rate, which is likely to be much lower than the parents’ rate. In addition, the company gets a deduction for the child’s salary. A dramatic taxpayer victory* shows just how effective this tactic can be.
The facts: The taxpayers owned a mobile-home park and hired their three children, aged 7,11, and 12 to work there. The children cleaned the grounds, did landscaping work, maintained the swimming pool, answered phones, and did minor repair work. The taxpayers deducted over $17,000 that they paid to the children during a three-year period. But the IRS objected, and the case went to trial. Court’s decision: Over $15,000 of deductions were approved. Most of the deductions that were disallowed were attributable to the seven-year-old. But even $1,200 of his earnings were approved by the court.
Key: The children actually performed the work for which they were paid. And the work was necessary for the business. The taxpayers demonstrated that if their children had not done the work, they would have had to hire someone else to do it.
Loopholes in setting up a business
in Tax Tips/by Steve GentryLeasing Assets To Your Own Corporation
The fact that the corporate form is selected as the basic means of conducting a business enterprise does not mean that all of the physical components of the enterprise need to be owned by the corporation. Indeed, there may be legal, tax, and personal financial planning reasons for not having the corporation own all the assets to be used in the business.
Whether the corporation is to be the continuation of a sole proprietorship or partnership or a wholly new enterprise, decisions can be made about which assets owned by the predecessor or acquired for use in the corporation are to be owned by the corporation and which assets are to be made available to the corporation through a leasing or other contractual arrangement.
For the assets that go to the corporation, decisions must be made about how they are to be held and on what terms they are to be made available to the corporation.
There are several possible choices. The assets may by owned by:
A separate corporation is still another possibility, but the risk of being considered a personal holding company and incurring penalties due to passive income (including rent and royalties) may make this impractical.
Normally a leasing arrangement is used in order for the assets to be made available for corporate use. Assuming that the rental is fair, it would be deductible by the corporation and taxable to the lessor. Against the rental income, the lessor would have possible deductions for interest paid on loans financing the acquisition of the asset, depreciation, maintenance and repairs, insurance and administrative costs.
These deductions might produce a tax-free cash flow for the lessor. When depreciation and interest deductions begin to run out, a high-tax-bracket lessor might find that he/she is being taxed at too high a rate on the rental income. At this point, he may transfer the leased property to a lower-tax-bracket family member.
He might also consider a sale of the property to his corporation. This sale would serve to extract earnings and profits from the corporation at favorable tax rates. At the same time, it would give the corporation a high tax basis for the asset than it had in the hands of the lessor, thus increasing the corporation’s depreciation deductions. This, of course, would reduce the corporation’s tax liabilities and benefit the shareholders-the lessor included, if he/she is a shareholder.
How To Deduct Start-Up Costs Sooner
Avoid being forced to capitalize and amortize start-up costs over a five-year period. The trick is to get “in business” quickly. You can claim business deductions or losses only when you’re “in business.” (You’re considered to be “in business” when you’re trying to get sales.) Any subsequent expenses you incur will be to “expand” an existing business, and you can take full deductions for those items.
For example, let’s say you want to open a sales organization. The start-up costs include getting products to sell and interviewing salespeople. If you can get one line, no matter how small, and make a few sales, you’re considered to be in business. Then you can spend time looking to expand into other products and to hire a sales force.
Incorporating A Business Tax-Free
You may have a sole proprietorship or partnership and reach a point in the growth of your business where you want to incorporate. There’s a special provision in the Internal Revenue Code (Section 351) that enables a business before the incorporation own at least 80% of the business after incorporation.
If you incorporate in this way, the IRS can’t recapture depreciation deductions or investment credits (if still applicable). If the assets are subsequently disposed of, the recaptures will take place at the corporate and not at the individual level, even though you may have initially received the benefit from the investment credit or depreciation.
How To Set Up A Hobby As A Business
You can set up a hobby as a business and deduct your losses. However, you must be able to prove that the hobby is a for-profit business. If you realize some profit in at least three out of the most recent five consecutive years, it is presumed that the business is for profit. But even if you don’t show and profit, you may be able to prove that the business is intended to make a profit.
To prove that you have a profit motive in conducting your business, keep detailed records. Present evidence of your advertising campaigns, attempts to generate new business, and sales analyses. It’s not necessary to show that you run a big business, reaping huge profits, but only that you have genuine intentions of running the business in a businesslike way.
Best Way To Set Up A Family Business
A business can be organized as a corporation, a proprietorship, a partnership, or even a trust. Use combined forms of ownership to cut taxes.
Examples:
This arrangement reaps some important tax benefits:
The possibilities for combining the above are endless. Consider such additional entities as S corporations, multiple corporations, and multiple trusts.
Caution: The “passive-loss” rules, imposed by the Tax Reform Act of 1986, severely restrict the deductibility of many partnership losses, S corporation losses, and losses from rental property. Always check with a tax professional before deciding on the structure of your business.
When To Set Up A Venture Partnership
You may be asked to help friends or relatives start up a small business by providing the capital to finance the deal. Set up the business as a partial shelter for the amounts you invest. Uncle Sam helps you reduce the amount that you’re investing by allowing you to deduct a large share of the losses. I call such a deal a venture partnership. Here’s how it works:
You become the limited partner. As such, you’re entitled to deduct a very large share of the losses, up to 99%, since you’re putting in all the money. At the point that the business turns around, the percentages drop. You might receive 50% of the profits after getting your money back, and the person you helped also received 50% of the profits. Now both of you can share in the profits as partners, but at the outset you get the benefit of a larger share of the losses. Caution: These write-offs are subject to the passive-activity-loss rules.
Best Tax Shelter In America
Tax Reform has taken dead aim at tax shelters. It’s not longer possible to offset your salary or investment income with paper losses generated by passive investments in oil wells, real estate developments, etc. Neither is it possible to cut the family’s tax bill greatly by shifting investment income to children who are under age 14.
But even under Tax Reform, the best tax shelter still remains. With it you can generate large paper losses, claim deductions for personal or hobby-like expenses, and legally shift income to your low-tax-bracket minor children.
The best tax shelter is a sideline business.
Here’s how a sideline business can be used to get the big tax-sheltering-type deductions, along with winning examples of taxpayers who have already done it…
Income-Shifting
Under Tax Reform, investment income exceeding $1,300 for a child under age 14 is taxed at the rate paid by the child’s parents. But this rule does not apply to the earned income of a child.
Result: When a child works for a parent’s sideline business, earning are taxed at the child’s own low tax rate. Since the parent deducts the salary paid to the child as a business expense, the family’s total tax bill is lowered by the difference between the parent’s high tax rate and the low or zero rate on the child’s salary.
Of course, this income-shifting technique is also available for children over age 14 and other family members. And even greater tax benefits can be obtained when family members use the salary you pay to make deductible IRA retirement contributions, or when the business pays for deductible benefits.
The only rule that governs paying salaries to family members is that they must actually earn their salaries. Salary deductions have been allowed when:
Source: James Moriarity, TC Memo 1984-249.
Source: Charles Tschupp, TC Memo 1963-98
Source: Clement J. Duffey, 11 AFTR2d 1317.
What Qualifies
A part-time activity can easily qualify as a business. The only requirement is that you operate your activity with the objective of making a profit. You don’t actually have to make a profit, nor do you have to expect to make a profit in the near future. Examples:
Home Deductions
A major benefit of running a sideline business out of your home is the possibility of claiming a home-office deduction. This entitles you to deduct expenses that were formally personal in nature, such as rent, utility, insurance, and maintenance costs attributable to the office. Even better: You can depreciate the part of your home that’s used as an office, getting large paper deductions that cost your nothing out of pocket.
To qualify for the deduction, you must have a part of your home that’s used exclusively for business and is that primary place where you conduct the sideline business. Winning examples:
Source: Edwin R. Cruphey, 73 TC 766.
Source: Max Frankel, 82 TC 318.
Big Dollar Deductions
Tax Reform prohibits taxpayers from offsetting their salary and investment income with losses from businesses in whish they participate as passive investors (as shareholders or limited partners without management duties).
But if you actively manage your own sideline business, it’s still possible to claim big loss deductions. Important: Tax losses do not necessarily mean cash losses. Items such as depreciation on cars, equipment, and real estate can result in deductible tax losses while the business is earning a cash-flow profit.
A sideline business is presumed to have a profit objective if it has reported a profit in three out of five years (two out of seven year for horse breeders). But such a business may be deemed to have a profit objective, even after reporting many years of continuous losses. Winning examples:
Source: Frederick A. Purdy, TC Memo 1967-82.
Source: Hunter Faulconer, 48 F2d 890
Source: Lawrence Appley, TC Memo 1979-433
Start-Up Tactic
When starting a new sideline business, you can protect your deductions by electing to have the IRS postpone its examination of your business status until after you’ve been operating for four years (six years in the case of a horse farm). You’ll be able to treat your sideline as a business during that period, even if it earns continuous losses. But if you can’t demonstrate a profit objective at the end of that period, you’ll owe back taxes. Make the election by filing the IRS Form 5213, Election to Postpone Determination That Activity Is for Profit.
Winning examples:
New ruling: Now Feistman could deduct his costs because he was operating in a businesslike manner. The Tax Court allowed him to deduct $9,000 over two years.
Source: Eugene Feistman, TC Memo 1982-306
Source: Gloria Churchman, 68 TC 696
Source: Melvin Nickerson, 700 F2d 402
Source: Bernard Wagner, TC Memo 1983-606
Source: J.V. Keenon, TC Memo 1982-144.
Insurance: A Great Investment Vehicle
in Tax Tips/by Steve GentryThe Darlings of Tax Reform
Since Tax Reform policies went into effect, the insurance industry’s deferred annuities have become on of the most attractive investment products around.
Deferred annuities can serve as an alternative for individuals whose incentive to continue to make IRA contributions was greatly weakened by Tax Reform. Although contributions to a deferred annuity are not tax deductible, earnings do accumulate tax deferred. Advantage over an IRA: There is no limit to the amount of money you can invest in an annuity.
The new variable annuity can serve as the ideal replacement for investments that used to receive the benefit of favorable long-term capital gains treatment. Long-term gains from investments in stocks can be sheltered in a variable annuity. That income is not taxed until you withdraw your money.
How Annuities Work
An individual buys and annuity from an insurance company, paying a lump sum or a series of payments over time. In return, the insurance company guarantees that the funds will grow at a certain tax-free rate. Then, beginning on a specified date, the individual receives regular income payments for life.
Payments depend on the amount of money contributed to the account, the length of time the funds are left in it, and the rate of return earned on the funds. Also a factor in determining the size of the payments is whether you include your spouse and other heirs as beneficiaries. Different options enable you to have payments continue to your spouses, or to your children, or for a minimum of, say, 20 years, regardless of who is there to receive them after you die.
Deferred annuities, therefore, can be considered part insurance and part investment. If you are willing to part with at least $5,000 (the minimum amount can differ from company to company) for five years or longer, you can be guaranteed a competitive, tax-free return on your funds. Because the earned income is not taxed until you begin withdrawing the money (presumably at a lower tax rate), your funds accumulate much faster than they would if they were taxed. The insurance component, of course, is guaranteed regular monthly income payments for the rest of your life-taking the worry and risk out of budgeting for your retirement income. Also, should you die before you begin receiving payments, your heirs are guaranteed to receive the full amount of your original principal.
Fixed Rate Versus Variable
There are two basic types of deferred annuity-fixed and variable.
Fixed annuity: The insurance company guarantees that your funds will grow at a specified rate for a specified period of time. Most companies guarantee a specific rate of return for at least the first year. Thereafter, the rate usually fluctuates at least once a year, according to the then-prevailing interest rates. Although the rates of return for fixed annuities may vary, your principal always remains intact.
Variable annuity: The rate of return is determined by the performance of investments you select from a broad range of mutual funds offered by the insurance company. Investing in a variable annuity is almost identical to investing in a family of mutual funds. You have the same exchange privileges and the choice of putting all your money into one fund or a blend of different funds, or even of dividing your money between a fixed annuity and a variable annuity. You can earn a much larger return than you might with a fixed annuity. However, if your investments perform poorly, your original principal may diminish.
The minimum investment for a deferred annuity is generally $5,000, although some single-premium annuities can require a one-time lump-sum investment of as little as $2,500. A flexible premium annuity, paid over time, may have an initial minimum as low as $1,000 and require small monthly payments.
Most companies levy an annual management charge of 0.5%-1.5% of total assets. If you invest in a variable annuity, you will also pay a percentage of your total assets to cover management costs for the mutual fund.
Insurance companies typically charge a declining surrender fee of 5%-6% (which usually falls to zero after five or six years) if you liquidate the principal of your annuity. And if you withdraw your money before age 59 1/2, the IRS will charge you a penalty.
Get the most out of modifiers
in Tax Tips/by Steve GentryYou’ve probably heard a lot about how the accurate use of modifiers can increase your income. Fortunately, it takes only a few minutes for you and your staff to learn how to use these valuable coding tools.
To prompt yourself to use modifiers, when appropriate, alter your encounter form by adding a column next to the one for the CPT code. While you’re at it, add a column for ICD-9-CM diagnosis codes, as well. So your new encounter form would contain these columns: CPT code/Modifier/Description/ICD-9-CM/Fee.
Here are some examples of how to use the most common modifiers:
-25 Significant, separately identifiable E&M service on the same day as a procedure or other service. This is primary care’s most frequently used modifier. It allows you to bill for a procedure plus an office visit on the same day.
When insurance companies evaluate claims that use this modifier, they review the “separately identifiable” requirement. In other words, they ask whether the E&M service is above and beyond the basic protocol for performing the procedure itself.
They also want proof that the E&M service was “significant”. Many carriers require enough documentation to support the equivalent of a 99213. (Of course, this is in addition to documentation related to performance of the procedure.)
Example: You examine a patient and discover prostate nodules, though you can’t make a certain diagnosis. So you order a biopsy. How do you bill this visit? Bill for the biopsy, then select the appropriate E&M code for the office visit, and append modifier -25. This modifier allows you to get paid your full fee for both codes.
-26 Professional component. Certain procedures are a combination of physician and technical components. When the physician component is claimed separately, you may report the service by adding modifier -26.
Example: You’re called to the emergency room at 3 am to diagnose and treat a patient who is presenting with respiratory problems. You suspect pneumonia. After examining the patient, you order and X-ray. Because a radiologist is not available, you bill for the X-ray operation using -26. You’ll need to prepare a separate, signed report of your interpretation.
-53 Discounted procedure. Example: You attempt a sigmoidoscopy, but even using your smallest instrument, you’re unable to enter the colon. So you stop the procedure.
Submit your bill at your full fee with the addition of modifier -53. Along with your documentation, include a cover letter explaining why you discontinued the procedure.
Another example: You’re unable to complete excision of subcutaneous birth control implants. Let’s say you’re unable to remove only three of the six implants before the patient experiences edema and pain. The rest will require anesthesia and surgical removal.
In this situation, you can bill the procedure at your full fee with the addition of modifier -53. Your reimbursement should be between 75 and 100 percent of your normal fee.
If you late complete the procedure, bill for it a second time. You should receive your full fee. If you perform the second attempt under anesthesia on the same day, add modifier -59 to claim. (More on -59 below.)
-55 Postoperative management only. This modifier allows you to share in a surgical fee if you provide the postoperative follow-up.
Example: You refer a patient to a surgeon in another town. It will be difficult for the patient to see the surgeon for a follow-up, so the surgeon agrees for you to do it.
To get paid, simply bill the CPT code for the surgery and append modifier -55. The postoperative fee for most surgical procedures is 10 percent of the procedure reimbursement.
The only other requirement is for the surgeon to append modifier -54 to the surgical procedure code. This indicates that he’s billing for surgery only, thus allowing you to bill for the postoperative services.
-59 Procedures and services not normally reported together. This may represent a different session or patient encounter, different procedure or surgery, different site or rate lesion, or a separate injury not ordinarily encountered on the same day by the same physician.
Example: You treat a patient for an upper respiratory infection. Since the patient is overdue for a breast/pelvic exam, you perform one during the same office visit. Append modifier -59 to the code for the breast/pelvic exam. Expect to be reimbursed at 50 percent of the allowable fee.
-76 Repeat procedure by same physician. Use this modifier if you need to repeat an X-ray, ECG, or other service.
Example: You order an ECG but decide that the results look wrong, so you have the procedure repeated. Add modifier -76 to the second test in order to receive payment for both. You can also use the modifier if you re-order a test to monitor responses to medications or changes in symptoms.
-91 Repeat clinical diagnostic laboratory test. This relatively new modifier is used to report a lab test that’s repeated on the same day in order to obtain subsequent results.
Example: Say you need to repeat a test for serum creatinine to diagnose renal insufficiency. Similarly, you may want to order multiple tests on a given day for blood sugar values after administration of medication to lower elevated glucose. Append modifier -91 to claims for the later tests.
Child’s Compensation Taxed
in Tax Tips/by Steve GentryA seven-year-old child received a $30,000 court award for personal injuries. The award will be invested on the child’s behalf. How will it be taxed?
A court’s award of damages as compensation for personal injuries is tax-free when received. However, when the award if invested, the income it produces is taxed under normal rules.
In the case of a child under age 14, investment income exceeding $1,300 may be taxed at the top-bracket rate of the child’s parents. To avoid tax, the award may, of course, be placed in an investment that is tax-exempt (such as municipal bonds) or in one that will defer taxes (such as growth stocks or Series EE saving bonds).
Business-Travel Loopholes
in Tax Tips/by Steve GentryVacation Costs As A Business Expense
Tax Reform has cracked down on many travel-related deductions. But there are still deductions you can take for travel, and you should not miss those that still apply.
Traveling for Business
Travel expenses. You can fully deduct the cost of getting to and from your destination on a trip made primarily for business reasons. This expense remains fully deductible, even if you extend the trip for pleasure or take a side trip for pleasure. In addition, during the business part or your stay, you can deduct the cost of hotel, lodging, local transportation, and 50% of meals and business-related entertainment.
Example: You travel to New York City strictly for business reasons and decide to take a side trip for the weekend, vacationing at a sumptuous Long Island beach resort. The trip between New York City and home remains fully deductible, as long as you can prove you traveled there for business. But the cost of traveling between New York City and the resort is not deductible because that part of the trip is entirely for personal pleasure. Also, the related expenses of meals, lodging, and local transportation while at the beach resort are not a deductible business expense.
Mixing business with pleasure. The cost of traveling to and from your destination on a trip made primarily for vacation or pleasure isn’t deductible, even if you conduct some business while on the trip. However, some of the other business-related expenses may be deductible.
Example: You go on a vacation to Florida, but while there you take a customer who lives in Florida out to lunch. Under Tax Reform, 50% of the meal expense is deductible if business was actually discussed during the meal. Be sure to include tax, tips, and parking-lot fees at the restaurant when calculating the 50%. The cost of traveling to the restaurant, if you take a taxi, for example, is 100% deductible.
Ship travel can be an asset on a combined business-vacation trip. Reason: Days spent in transit count as business days in the allocations formula. Example: A two-day business meeting in Paris is followed by a two-week European vacation. If you fly (one day each way), only 22% is deductible (two business days plus two days of travel out of a total of 18 days away). But if you sail (five days each way), 46% is deductible (two business days plus 10 days of travel out of a total of 26 days away).
Acceptable Per Diem
Is there an official rate of per diem meal expenses that the IRS accepts as reasonable while working away from home?
The IRS recognizes a standard per diem meal allowance equal to the greater of $26 to $38 depending on the location, or the rate allowed by the federal government to its employees in the locality where travel occurs.
When reimbursements exceed the per diem, an employee must report them in income and claim an offsetting travel-expense deduction, while maintained all the records necessary to do so. But an employee who received no more than the per diem allowance from his employer need not report it in income.
The per diem allowance can be used only by employees receiving reimbursements. Self-employed persons cannot use the allowance to get an automatic deduction for expenses.
Business meals, travel, and entertainment deductions
in Tax Tips/by Steve GentryBusiness-Meal Loopholes
The Tax Reform Act of 1986 put tough limits on deductions for business meals and entertainment. Only 50% of these expenses is deductible. The limit applies to food, beverages, taxes, tips, tickets, cover charges, and whatever else you spend for business purposes on eating out and entertainment. All are just 50% deductible.
Even though the value of deducting an extra $1 of business-meal expenses was reduced because of the drop in tax rates, the incentive to get the biggest deduction legally possible still exists.
The Angles
Reimbursement angle. Employees are not subject to the 50% rule if their company reimburses them for business-meal and entertainment expenses. It’s the company that’s subject to the rule-the company must limit the amount of the deduction it claims on its tax return to 50% of the amount given to reimburse the employee. Bottom line: The tax law has no adverse effect on the expense account of an employee who is reimbursed in full for business-meal and entertainment costs. It may be more desirable to have your employer reimburse you than for you to receive an expense allowance and deduct meal and entertainment expenses on your own return, as they will be limited to 50%.
Lodging loophole. The 50% rule applies to business meals (including those you eat while traveling away from home on business) and to entertainment of travel expenses and, thus, are not subject to the rule. Question: What if your hotel rate is stated only on the European or American plan and includes either two or three meals a day? Is your hotel bill (including meals) fully deductible? The new law does not say. This may be a loophole.
Company-party loophole. The 50% rule does not apply to certain traditional employer-paid social or recreational activities that are primarily for the benefit of the employees. Holiday parties and annual summer outings will continue to be fully deductible.
Strategy: Include in your travel plans conventions that provide three meals a day and a speaker at each meal as part of the cost.
Source: Randy Bruce Blaustein, former IRS agent, now a partner of Blaustein, Greenberg & Co., 155 E. 31 St., New York 10016
How To Prove Business Purpose Of Spouse On Company Trip
It’s possible to deduct the cost of taking your spouse on a business trip. The key is to prove your spouse’s involvement in the business aspects of the trip.
Guidelines:
Explain your job responsibilities to your spouse.
Involve your spouse in interacting with people relevant to the trip and with other spouses who are present. They should discuss general aspects of the job being worked on. There’s no need for detailed descriptions of the business project
Make sure there are official functions, such as seminars, dinners, and parties, to which spouses are invited. (If you’re not self-employed, ask your employer to specify that it’s mandatory to take spouses to these events.)
Eat all your meals with business associates. Make sure that business is discussed at each of these meals and that your spouse participated in the discussions.
Document all of your spouse’s ideas on the business by having your spouse write memos to you containing these ideas.
If it’s the policy of the company not to pay for spouses on business trips but to require the spouse’s attendance, request a written memo from your employer stating this policy.
Source: New Tax Traps/ New Opportunities by Edward Mendlowitz, CPA, Boardroom Special Report, Springfield, NJ 07081.
Business-Gift Loophole
An advertising company employed an independent salesman. As favors to prospective customers, he gave out $40,000 worth of tickets to shows and sporting events. The company paid for the tickets and deducted their full cost. IRS position: The company’s expense deduction was subject to the limit of $25 per recipient under the tax law. Court’s decision: The ticket expenses were deductible by the company. The $25 business-gift limitation applied to the independent salesman, not to the company that employed him.
Source: World Wide Agency, Inc., TC Memo 1981-419
Expense Formula Fails
A company had many representatives traveling on the road. It reimbursed their travel costs for transportation, meals, and lodging on a cents-per-mile basis. IRS ruling: The number of miles and employee travels doesn’t give an adequate indication of the amount he/she spends on meals or lodging. Thus, the company’s reimbursement formula in not sufficient to make the reimbursements tax-free.
Source: IRS Letter Ruling 8634029.
Travel and Entertainment Rules
The Tax Reform Act of 1986, as amended, limits deductions for most meals and entertainment to 50% of cost. Moreover, the expenditures qualify as business meals or business entertainment only if business is actually being discussed. Business transportation (air fare, cabs, etc.) remains fully deductible, but travel to investment seminars or investment conventions is not.
Here’s a checklist showing the deductibility of some common travel and entertainment expenses:
Type of expense Deductible
Lunch with customer; business discussed before, during,
Or after the meal…………………………………………………………50%
Cab fare to restaurant…………………………………………………….100%
No business discussed……………………………………………………None
Air far to Chicago to call on customer……………………………….100%
Lodging in Chicago………………………………………………………100%
Meals in Chicago (alone)…………………………………………………50%
Meals with customer, no business discussed:
Your meal…………………………………………………………50%
Customer’s meal………………………………………………….None
Air fare to L.A. for doctor to attend medical convention…………….100%
Meals in L.A………………………………………………………………50%
Air fare to Houston for investment seminar…………………………..None
Lodging in Houston……………………………………………………….None
Tickets to ballgame for taxpayer and customer; business discussed….50%
Cab fare to game…………………………………………………………..100%
Food and drink at game……………………………………………………50%
Complimentary theater tickets for customer; taxpayer not present……None
Lunch at service organization as member……………………………..50%
Tickets to charity golf tournament run by volunteers…………………100%
Greens fees, carts, food and beverages consumed while
Hosting customers; business discussed……………………………………50%
Trooper Costs
Minnesota State Troopers were required to take their on-duty meals in public restaurants to maintain public visibility. When off duty, they were required to make sure their patrol cars were parked off the street. Steven Pillsbury and Karl Christey were troopers who claimed business deductions both for their meal costs and the cost of renting garage space for their vehicles. Court: The meals were properly deducted because they were clearly a required part of the job. The garage costs were not deductible because it was not necessary for the troopers to rent garage space in order to keep the cars off the street.
Source: Steven Pillsbury, D Minn., No. 3-85-1361
On-The-Job Meals
Robert Walsh worked in a grocery store and was required to be on the premises at all times during his shift, in order to meet emergencies. For meals, he bought food from the store, ate on the premises, and deducted the cost as a business expense. Tax Court: To get a deduction a worker must be required to buy meals that are provided by the employer. Walsh was not entitled to a deduction because he could have brought his lunch from home.
Source: Robert M. Walsh, TC Memo 1987-18