By: Richard Bell
This is a good case to reference in determining reasonable compensation for a shareholder who owns all voting stock and works over the top type hours, in a non-publically traded company that is a C corporation for tax purposes.
Basic facts are that John Menard owns all voting shares of Menard, Inc, the third largest hardware and building supply company in the United States. Menard’s company earned $350 million in 1998 pre tax dollars, the year of the audit, Menard’s compensation consisted of three components, a base salary of $157,500 , a profit sharing bonus of $3,017,000, which was part of an overall compensation plan for all employees of the company, and a 5 % bonus of all pre tax profits, which amounted to about $17.5 million, which was questioned by the IRS. Total Compensation was $20 million for the year.
The US Tax Court decided that the bonus package should be driven by the companies’ rate of return and derived the formula by comparing the executive compensation paid other CEO ‘s in the industry, Lowe’s and Home Depot, and then develop a ratio of CEO compensation to the return on investment earned by each company. This ratio was then applied to the Menard’s earnings to derive the reasonable compensation of its CEO. The amount was $7.1 million, far short of the $20 million paid Menard. The IRS would have taxed the $13 million difference as a dividend. This would have increased the tax to the Menard Corporation by some estimated 40% federal and state or $5.2 million, and the dividend would have increased Menard individual tax bill by the same estimated 40% federal and state or another $5.2 million, thus, on the $13 million non allowed bonus, the tax could have been estimated as high as $10.4 million, not including penalty and interest. Menard would have received a personal refund credit for the excess bonus paid , of an estimated $5.2 million, so net out before penalty and interest would have been $5.2 million. Note, this cases was a 1998 case before the 15% dividend rates went into effect.
The US Court of Appeals reversed the Tax Court opinion, and upheld the incentive driven bonus paid Menard. The court looked at the following factors:
• Full Compensation packages paid the publically traded CEO’s were disregarded, such as stock options, severance packages, and retirement benefits.
• Differences in responsibilities and performance of the three CEO’s were different. Menard was described as micro managing the company, and was the Board of Directors, and held all voting shares of the company, compared to the publically traded companies, who had executive corporate structure.
• The Appeals Court pointed out that if an incentive plan was in place for a non shareholder employee, then a shareholder employee (Menard) should be allowed to participate as well. A shareholder employee is two distinct individuals, an independent investor, and an employee.
My own observation would be to question why Menard is a C corporation for tax purposes? It would appear that the company should consider “S” corp status, but that may be the case now, this was a 1998 matter, in question.
The latest court case can be found at http://caselaw.lp.findlaw.com/data2/circs/7th/082125p.pdf. .
Tuesday, March 17, 2009
Thursday, March 12, 2009
Tax Changes Included in the Stimulus Act
On February 17th, the American Recovery and Reinvestment Act of 2009 (the Stimulus Act) was signed into law by President Obama. As you know, the new legislation includes some federal income tax changes. However, you may not realize how many. This letter briefly summarizes what we think are the most important changes. That said, we encourage you to contact us for details because there are some new provisions that we simply don’t have space to even mention here. We will start with changes that affect individuals and personal returns.
Tax Changes for Individuals
Refundable Making Work Pay Credit. The Stimulus Act establishes the new Making Work Pay credit for 2009 and 2010. The credit amount equals the lesser of 6.2% of earned income or $400 ($800 for a married joint-filing couple). Since the credit is refundable, it can offset your entire federal income tax liability, including any Alternative Minimum Tax (AMT). Any leftover credit can be collected in cash or applied to your estimated tax payment obligation for the following year.
The credit is phased out (reduced or eliminated) by of 2% of your Modified Adjusted Gross Income (MAGI) in excess of the applicable threshold—$75,000 for an individual taxpayer or $150,000 for a married joint-filing couple. The $400 individual credit is fully phased out when MAGI reaches $95,000 and the $800 married joint-filing credit is fully phased out when joint MAGI reaches $190,000.
To get credit dollars into the economy quickly, the IRS has already released new federal employment tax withholding tables. The new tables will allow employees to collect credits in advance in the form of lower payroll tax withholdings for the rest of 2009. Self-employed individuals can collect credits in advance by reducing their quarterly estimated tax payments.
One-time $250 Economic Recovery Payment for Eligible Federal Program Recipients. The new law provides a one-time $250 Economic Recovery Payment to the following government program recipients.
• Adults eligible for Social Security benefits.
• Individuals of any age who are eligible for Supplemental Social Security
Income (SSI) benefits (other than those who receive them while in a Medicaid
institution).
• Adults eligible for Railroad Retirement benefits.
• Adults eligible for veteran’s compensation or pension benefits.
To receive the $250 payment, you must have been eligible for at least one of these programs for at least one month during the three-month period that includes November and December of 2008 and January of 2009. Congress has ordered these government agencies to get these payments underway as soon as possible, but they must begin no later than the middle of June.
One-time $250 Refundable Credit for Eligible Government Retirees. The Stimulus Act also provides a one-time $250 credit to certain government retirees who won’t qualify for the Economic Recovery Payment benefit. The money is delivered in the form of a refundable tax credit for 2009 of $250 for each eligible individual or $500 for a married joint-filing couple when both spouses are eligible individuals. To be eligible, you must pass all of the following three tests.
1. During the 2009 tax year, you receive any pension or annuity benefits for
service as any employee of the U.S. or any state (or instrumentality
thereof) that is based on wages that were not subject to FICA tax
withholding at the time they were paid.
2. You are ineligible for the aforementioned Economic Recovery Payment benefit.
3. You report a Social Security Number (SSN) on your 2009 Form 1040. (If
married, either you or your spouse must report an SSN on the return.)
Since the credit is refundable, it can offset your entire federal income tax liability, including any AMT. Any leftover credit can be collected in cash or applied to your 2010 estimated tax payment obligation.
Temporary Sales Tax Deduction for Buyers of New Vehicles and Motor Homes. The new law adds a new deduction for state and local sales and excise taxes paid on new (not used) (1) passenger autos and light trucks with gross vehicle weight ratings of 8,500 pounds or less, (2) motorcycles, and (3) motor homes purchased between 2/17/09 and 12/31/09. However, the deduction is limited to taxes allocable to the first $49,500 of the purchase price. The amount will be claimed as an additional itemized deduction if you itemize. If you don’t itemize, it will be added to your standard deduction.
The new standard deduction add-on or additional itemized deduction (whichever applies to you) is subject to phase-out provisions. The phase-out range is between MAGI of $125,000 and $135,000 for unmarried individuals and between MAGI of $250,000 and $260,000 for married individuals who file separately.
Liberalized Higher Education Credit. For 2009 and 2010, the Stimulus Act includes taxpayer-friendly modifications to the Hope Scholarship higher education tax credit. (The Hope credit is also temporarily renamed the American Opportunity credit, but we will stick to calling it the modified Hope credit for the sake of continuity.) Under the revamped rules, the modified Hope credit equals 100% of the first $2,000 of qualified post-secondary education expenses paid during the year plus 25% of the next $2,000. So the maximum annual credit is now $2,500. Under prior law, the maximum Hope credit for 2009 was only $1,800, and it probably would have been about the same for 2010.
The modified Hope credit covers the cost of tuition, fees, and course materials (but not room and board) for the first four years of post-secondary education in a degree or certificate program. It is unavailable for a year if the student has already logged in four years worth of academic hours as of the beginning of that year. Under prior law, the Hope credit was only allowed for the first two years of post-secondary study, and the cost of course materials did not count as a qualified expense.
The modified Hope credit is subject to phase-out rules, but they are considerably more lenient than the prior-law Hope credit rules. The modified Hope credit phase-out range is between MAGI of $80,000 and $90,000 for unmarried individuals and between MAGI of $160,000 and $180,000 for married joint-filers.
The modified Hope credit can offset your entire federal income tax liability, including any AMT. In addition, up to 40% of the modified Hope credit can be a refundable credit, which means you can get some cash back after reducing your federal income tax bill to zero.
Temporary Homebuyer Credit Extended and Liberalized. Legislation passed last year established a temporary refundable tax credit for first-time homebuyers. The Stimulus Act extends the credit for five more months, to cover qualified home purchases between 1/1/09 and 11/30/09. In addition, the maximum credit amounts are slightly increased for 2009 purchases. More importantly, the requirement to repay the credit over 15 years is deleted for 2009 purchases (but not for 2008 purchases).
For a qualified home purchase between 1/1/09 and 11/30/09, the maximum credit equals the lesser of: (1) 10% of the purchase price or (2) $8,000 ($4,000 if you use married filing separate status). Since the credit is refundable, it can offset your entire federal income tax liability, including any AMT. Any leftover credit can be collected in cash or applied to your estimated tax payment obligation for the following year.
Eligibility is restricted to individuals who have not owned a principal residence in the U.S. during the three-year period that ends on the home purchase date. If you are married, both you and your spouse must pass the three-year test.
If you make a qualified 2009 home purchase (between 1/1/09 and 11/30/09), you can choose to treat the purchase as having occurred in 2008. That allows you to claim the credit (which can be as high as $8,000) on your 2008 return and receive the benefit that much sooner.
Computer and Internet Costs—Qualified Expenses for 529 Plan Distributions. The Stimulus Act counts computer costs (including peripheral equipment and software) and charges for Internet access and related services as qualified higher education expenses for purposes of receiving tax-free distributions from 529 plan accounts. This change applies to eligible expenses paid in 2009 and 2010. To be eligible, however, the expenses must be for computer and/or Internet use by the 529 account beneficiary (the student) during any of the years of enrollment in an eligible educational institution. No harm is done if the student’s family also uses the computer and/or Internet access. The cost of software designed for sports, games, and hobbies won’t qualify unless it’s primarily educational in nature.
One-year AMT “Patch”. The Stimulus Act includes another one-year “patch” to prevent millions of individuals from being hit with the dreaded Alternative Minimum Tax (AMT) for the 2009 tax year. The new law increases the AMT exemption amounts for 2009 to $70,950 if you’re a married joint-filer or a surviving spouse (up from $69,950 for 2008), $46,700 if you’re unmarried (up from $46,200), and $35,475 if you use married filing separate status (up from $34,975). Unfortunately, these exemptions are phased-out (reduced or eliminated) for higher-income taxpayers, and the new law doesn’t make any changes in the phase-out rule. The Stimulus Act also includes changes that permit you to use all nonrefundable personal tax credits to reduce your 2009 AMT liability as well as your regular tax liability.
AMT Exemption for Interest on Certain Private Activity Bonds. Interest on public purpose municipal bonds (those issued by state and local governmental entities for public projects) is tax-exempt under both the regular tax and the AMT rules. However, interest on most qualified private activity municipal bonds (state and local government bonds issued for private sector projects like sports venues) has been taxable under the AMT rules (although tax-free under the regular tax rules). The Stimulus Act changes the landscape by making interest on all qualified private activity bonds issued in 2009 and 2010 exempt from the AMT. Therefore, interest on such bonds is exempt from both the regular tax and the AMT.
Tax-free Treatment for First $2,400 of 2009 Unemployment Benefits. In general, unemployment compensation benefits count as income for federal income tax purposes. However, the Stimulus Act grants a one-year exemption for the first $2,400 of unemployment compensation received in 2009. Unemployment benefits above the $2,400 limit will still count as taxable income.
Liberalized Employer-provided Transportation Fringe Benefit Rule. Starting with March of this year and through December of 2010, the Stimulus Act increases the amount you can receive as a tax-free fringe benefit for employer-provided transit passes and van pooling. The maximum tax-free amount is increased to $230. The $230 limit applies to the value of transit passes and van pooling separately or together. Before this change, the 2009 limit for these benefits (separately or together) was only $120.
Hybrid Vehicle Credits Can Offset AMT Liabilities. The new law includes another change that allows you to use your credit from buying a qualifying new hybrid or lean-burn diesel vehicle to offset your AMT liability as well as your regular tax liability. This favorable change is effective for 2009 and beyond.
Residential Energy Credits Liberalized. The Stimulus Act liberalizes the nonrefundable personal credit for up to 30% of expenditures to install: solar water heating equipment, wind energy equipment, geothermal heat pumps, solar electricity generation equipment, or fuel cell equipment in your home. The new law also extends (through 2010) and liberalizes the separate nonrefundable personal credit for expenditures to install energy-efficient insulation, windows, doors, roofs, and heating and cooling equipment in your residence. Most importantly, the previous lifetime limit of $500 was replaced with an aggregate $1,500 cap for 2009 and 2010.
Business and Other Tax Changes
Generous Section 179 Deduction Rules Extended. The Stimulus Act extends the $250,000 Section 179 first-year depreciation deduction allowance by one year, through tax years beginning in 2009. Without this change, the maximum Section 179 deduction would have been only $133,000. The new law also extends the $800,000 phase-out threshold for reduced Section 179 deductions. Without this change, the threshold would have been only $530,000.
First-year Bonus Depreciation Extended. The Stimulus Act extends the 50% first-year bonus depreciation break to cover qualifying new (not used) assets that are placed in service by no later than 12/31/09. However, the deadline is extended through 12/31/10 for certain longer-lived assets, transportation equipment, and aircraft.
For a new passenger auto or light truck that’s used for business and is subject to the luxury auto depreciation limitations, the extended bonus depreciation break increases the maximum first-year depreciation deduction by $8,000 for vehicles placed in service by 12/31/09. The estimated maximum first-year depreciation deduction for 2009 is now $10,960 for new cars and $11,060 for new light trucks.
Corporate Election to Claim Credits Instead of First-year Bonus Depreciation Extended. Prior law allowed corporations that are otherwise eligible to claim 50% first-year bonus depreciation to elect to forego bonus depreciation and instead “free up” otherwise unusable R&D and minimum tax credit carryovers. Credits freed up by this election are refundable. However, the election was only available with respect to bonus depreciation on qualified assets that were: (1) purchased after 3/31/08 and (2) placed in service by 12/31/08 or by 12/31/09 for certain longer-lived assets, transportation equipment, and aircraft. The Stimulus Act extends the two placed-in-service deadlines by one year to 12/31/09 and 12/31/10, respectively.
Note: Making the election doesn’t result in any lost depreciation deductions. It just postpones depreciation deductions for affected assets.
Longer Carryback Period for 2008 Losses (Small and Medium-sized Businesses Only). The new law allows eligible businesses to elect to carry back 2008 Net Operating Losses (NOLs) for three, four, or five years to obtain refunds of taxes paid for those years. This is a favorable (but temporary) exception to the general two-year NOL carryback rule. The election is only available for losses generated by businesses with average annual receipts of $15 million or less.
For calendar-year taxpayers, the election is available for NOLs generated in calendar-year 2008. For fiscal-year taxpayers, the election is available for NOLs generated in tax years that either begin in 2008 or end in 2008. (A fiscal-year taxpayer can make the election for one year or the other—but not both.)
No Corporate ACE Adjustment for Interest on Tax-exempt Bonds Issued in 2008 and 2009. C corporations affected by the corporate AMT rules generally must include tax-exempt interest as income in calculating the Adjusted Current Earnings (ACE) adjustment for AMT purposes. The Stimulus Act deletes the ACE adjustment for tax-exempt interest on bonds issued in 2009 and 2010.
Government Contractor Withholding Rule Delayed until 2012. The Stimulus Act delays by one year a controversial provision that will eventually require 3% federal income tax withholding from certain payments to government contractors. The withholding rule is now scheduled to apply to payments made in 2012 and beyond. Before this change, it was to apply to payments made in 2011 and beyond.
Debt Discharge Income from Reacquiring Debt in 2009 and 2010 Can Be Deferred. The new law allows a business that reacquires its own debt at a discount to elect to defer the resulting taxable debt discharge income and then spread it out over five years. This election is available with respect to debt discharge income that results from debt reacquisition transactions that occur in 2009 and 2010. The intent is to allow struggling businesses to restructure their debts in a tax-favored fashion.
Pursuant to the election, debt discharge income from a debt reacquisition that occurs in 2009 is deferred until the fifth tax year after the tax year in which the reacquisition occurs (2014 for a calendar-year taxpayer). The income is then spread evenly over five tax years beginning with that fifth year (2014–2018 for a calendar-year taxpayer). Debt discharge income from a reacquisition in 2010 is deferred until the fourth tax year after the tax year in which the reacquisition occurs (2014 for a calendar-year taxpayer), and the income is then spread evenly over five tax years beginning with that fourth year (2014–2018 for a calendar-year taxpayer).
Break for S Corporation Built-in Gains in 2009 and 2010. When a regular C corporation converts to tax-favored S corporation status, the corporate-level built-in gains tax generally applies when built-in gain assets (including receivables and inventories) are turned into cash or sold within the recognition period. The recognition period is the 10-year period that begins on the conversion date.
The Stimulus Act establishes an exception for built-in gains recognized in S corporation tax years beginning in 2009 and 2010 if the seventh year of the recognition period has gone by before the beginning of the tax year beginning in 2009 or 2010. Gains that fall under this exception won’t be hit with the built-in gains tax.
Liberalized Small Business Stock Sale Rules for New Issues. Sellers of qualified small business corporation (QSBC) shares can potentially exclude up 50% of the resulting gains from federal income taxation (subject to several limitations). To encourage new investments in QSBC stock, the Stimulus Act increases the gain exclusion percentage from 50% to 75% for qualifying sales of QSBC shares that are issued between 2/18/09 and 12/31/10.
Work Opportunity Credit Rules Liberalized. The Work Opportunity Tax Credit (WOTC) is intended to give employers a tax incentive to hire members of certain targeted groups. The new law adds unemployed veterans and disconnected youths as new targeted groups. This change applies to unemployed veterans and disconnected youths who begin work for electing employers in 2009 and 2010.
COBRA Premium Subsidy. Group health plans maintained by employers that have at least 20 employees are required to offer certain employees and their dependents the opportunity to continue to participate in the group health plan for up to 18 months. This is referred to as COBRA continuation coverage. The Stimulus Act provides for a 65% government-provided subsidy for COBRA continuation payments for up to nine months to Assistance Eligible Individuals (AEIs) for periods of coverage beginning on or after 2/17/09. Although this subsidy is provided by the government, AEIs will pay 35% of their COBRA premiums with the remaining 65% being paid by the former employer, who is effectively reimbursed for these payments by a reduction in payroll taxes.
An AEI is an employee (and COBRA eligible family members) whose employment has been involuntarily terminated between 9/1/08 and 12/31/09 and who elects COBRA coverage. AEIs who were involuntarily terminated after 8/31/08 and before 2/17/09 and did not enroll for COBRA benefits at the time of their termination, have a special extended 60-day period in which to elect COBRA benefits. They can make the COBRA election during the period beginning on 2/17/09 and ending 60 days after the date on which their former employer provides them the notice regarding the extended election period.
Conclusion
Even though this letter is too long, we have only scratched the surface. We ask you to contact us if you want additional information or if you have questions. We will be pleased to help. For more information you may call Deanna at 501.753.9700.
Tax Changes for Individuals
Refundable Making Work Pay Credit. The Stimulus Act establishes the new Making Work Pay credit for 2009 and 2010. The credit amount equals the lesser of 6.2% of earned income or $400 ($800 for a married joint-filing couple). Since the credit is refundable, it can offset your entire federal income tax liability, including any Alternative Minimum Tax (AMT). Any leftover credit can be collected in cash or applied to your estimated tax payment obligation for the following year.
The credit is phased out (reduced or eliminated) by of 2% of your Modified Adjusted Gross Income (MAGI) in excess of the applicable threshold—$75,000 for an individual taxpayer or $150,000 for a married joint-filing couple. The $400 individual credit is fully phased out when MAGI reaches $95,000 and the $800 married joint-filing credit is fully phased out when joint MAGI reaches $190,000.
To get credit dollars into the economy quickly, the IRS has already released new federal employment tax withholding tables. The new tables will allow employees to collect credits in advance in the form of lower payroll tax withholdings for the rest of 2009. Self-employed individuals can collect credits in advance by reducing their quarterly estimated tax payments.
One-time $250 Economic Recovery Payment for Eligible Federal Program Recipients. The new law provides a one-time $250 Economic Recovery Payment to the following government program recipients.
• Adults eligible for Social Security benefits.
• Individuals of any age who are eligible for Supplemental Social Security
Income (SSI) benefits (other than those who receive them while in a Medicaid
institution).
• Adults eligible for Railroad Retirement benefits.
• Adults eligible for veteran’s compensation or pension benefits.
To receive the $250 payment, you must have been eligible for at least one of these programs for at least one month during the three-month period that includes November and December of 2008 and January of 2009. Congress has ordered these government agencies to get these payments underway as soon as possible, but they must begin no later than the middle of June.
One-time $250 Refundable Credit for Eligible Government Retirees. The Stimulus Act also provides a one-time $250 credit to certain government retirees who won’t qualify for the Economic Recovery Payment benefit. The money is delivered in the form of a refundable tax credit for 2009 of $250 for each eligible individual or $500 for a married joint-filing couple when both spouses are eligible individuals. To be eligible, you must pass all of the following three tests.
1. During the 2009 tax year, you receive any pension or annuity benefits for
service as any employee of the U.S. or any state (or instrumentality
thereof) that is based on wages that were not subject to FICA tax
withholding at the time they were paid.
2. You are ineligible for the aforementioned Economic Recovery Payment benefit.
3. You report a Social Security Number (SSN) on your 2009 Form 1040. (If
married, either you or your spouse must report an SSN on the return.)
Since the credit is refundable, it can offset your entire federal income tax liability, including any AMT. Any leftover credit can be collected in cash or applied to your 2010 estimated tax payment obligation.
Temporary Sales Tax Deduction for Buyers of New Vehicles and Motor Homes. The new law adds a new deduction for state and local sales and excise taxes paid on new (not used) (1) passenger autos and light trucks with gross vehicle weight ratings of 8,500 pounds or less, (2) motorcycles, and (3) motor homes purchased between 2/17/09 and 12/31/09. However, the deduction is limited to taxes allocable to the first $49,500 of the purchase price. The amount will be claimed as an additional itemized deduction if you itemize. If you don’t itemize, it will be added to your standard deduction.
The new standard deduction add-on or additional itemized deduction (whichever applies to you) is subject to phase-out provisions. The phase-out range is between MAGI of $125,000 and $135,000 for unmarried individuals and between MAGI of $250,000 and $260,000 for married individuals who file separately.
Liberalized Higher Education Credit. For 2009 and 2010, the Stimulus Act includes taxpayer-friendly modifications to the Hope Scholarship higher education tax credit. (The Hope credit is also temporarily renamed the American Opportunity credit, but we will stick to calling it the modified Hope credit for the sake of continuity.) Under the revamped rules, the modified Hope credit equals 100% of the first $2,000 of qualified post-secondary education expenses paid during the year plus 25% of the next $2,000. So the maximum annual credit is now $2,500. Under prior law, the maximum Hope credit for 2009 was only $1,800, and it probably would have been about the same for 2010.
The modified Hope credit covers the cost of tuition, fees, and course materials (but not room and board) for the first four years of post-secondary education in a degree or certificate program. It is unavailable for a year if the student has already logged in four years worth of academic hours as of the beginning of that year. Under prior law, the Hope credit was only allowed for the first two years of post-secondary study, and the cost of course materials did not count as a qualified expense.
The modified Hope credit is subject to phase-out rules, but they are considerably more lenient than the prior-law Hope credit rules. The modified Hope credit phase-out range is between MAGI of $80,000 and $90,000 for unmarried individuals and between MAGI of $160,000 and $180,000 for married joint-filers.
The modified Hope credit can offset your entire federal income tax liability, including any AMT. In addition, up to 40% of the modified Hope credit can be a refundable credit, which means you can get some cash back after reducing your federal income tax bill to zero.
Temporary Homebuyer Credit Extended and Liberalized. Legislation passed last year established a temporary refundable tax credit for first-time homebuyers. The Stimulus Act extends the credit for five more months, to cover qualified home purchases between 1/1/09 and 11/30/09. In addition, the maximum credit amounts are slightly increased for 2009 purchases. More importantly, the requirement to repay the credit over 15 years is deleted for 2009 purchases (but not for 2008 purchases).
For a qualified home purchase between 1/1/09 and 11/30/09, the maximum credit equals the lesser of: (1) 10% of the purchase price or (2) $8,000 ($4,000 if you use married filing separate status). Since the credit is refundable, it can offset your entire federal income tax liability, including any AMT. Any leftover credit can be collected in cash or applied to your estimated tax payment obligation for the following year.
Eligibility is restricted to individuals who have not owned a principal residence in the U.S. during the three-year period that ends on the home purchase date. If you are married, both you and your spouse must pass the three-year test.
If you make a qualified 2009 home purchase (between 1/1/09 and 11/30/09), you can choose to treat the purchase as having occurred in 2008. That allows you to claim the credit (which can be as high as $8,000) on your 2008 return and receive the benefit that much sooner.
Computer and Internet Costs—Qualified Expenses for 529 Plan Distributions. The Stimulus Act counts computer costs (including peripheral equipment and software) and charges for Internet access and related services as qualified higher education expenses for purposes of receiving tax-free distributions from 529 plan accounts. This change applies to eligible expenses paid in 2009 and 2010. To be eligible, however, the expenses must be for computer and/or Internet use by the 529 account beneficiary (the student) during any of the years of enrollment in an eligible educational institution. No harm is done if the student’s family also uses the computer and/or Internet access. The cost of software designed for sports, games, and hobbies won’t qualify unless it’s primarily educational in nature.
One-year AMT “Patch”. The Stimulus Act includes another one-year “patch” to prevent millions of individuals from being hit with the dreaded Alternative Minimum Tax (AMT) for the 2009 tax year. The new law increases the AMT exemption amounts for 2009 to $70,950 if you’re a married joint-filer or a surviving spouse (up from $69,950 for 2008), $46,700 if you’re unmarried (up from $46,200), and $35,475 if you use married filing separate status (up from $34,975). Unfortunately, these exemptions are phased-out (reduced or eliminated) for higher-income taxpayers, and the new law doesn’t make any changes in the phase-out rule. The Stimulus Act also includes changes that permit you to use all nonrefundable personal tax credits to reduce your 2009 AMT liability as well as your regular tax liability.
AMT Exemption for Interest on Certain Private Activity Bonds. Interest on public purpose municipal bonds (those issued by state and local governmental entities for public projects) is tax-exempt under both the regular tax and the AMT rules. However, interest on most qualified private activity municipal bonds (state and local government bonds issued for private sector projects like sports venues) has been taxable under the AMT rules (although tax-free under the regular tax rules). The Stimulus Act changes the landscape by making interest on all qualified private activity bonds issued in 2009 and 2010 exempt from the AMT. Therefore, interest on such bonds is exempt from both the regular tax and the AMT.
Tax-free Treatment for First $2,400 of 2009 Unemployment Benefits. In general, unemployment compensation benefits count as income for federal income tax purposes. However, the Stimulus Act grants a one-year exemption for the first $2,400 of unemployment compensation received in 2009. Unemployment benefits above the $2,400 limit will still count as taxable income.
Liberalized Employer-provided Transportation Fringe Benefit Rule. Starting with March of this year and through December of 2010, the Stimulus Act increases the amount you can receive as a tax-free fringe benefit for employer-provided transit passes and van pooling. The maximum tax-free amount is increased to $230. The $230 limit applies to the value of transit passes and van pooling separately or together. Before this change, the 2009 limit for these benefits (separately or together) was only $120.
Hybrid Vehicle Credits Can Offset AMT Liabilities. The new law includes another change that allows you to use your credit from buying a qualifying new hybrid or lean-burn diesel vehicle to offset your AMT liability as well as your regular tax liability. This favorable change is effective for 2009 and beyond.
Residential Energy Credits Liberalized. The Stimulus Act liberalizes the nonrefundable personal credit for up to 30% of expenditures to install: solar water heating equipment, wind energy equipment, geothermal heat pumps, solar electricity generation equipment, or fuel cell equipment in your home. The new law also extends (through 2010) and liberalizes the separate nonrefundable personal credit for expenditures to install energy-efficient insulation, windows, doors, roofs, and heating and cooling equipment in your residence. Most importantly, the previous lifetime limit of $500 was replaced with an aggregate $1,500 cap for 2009 and 2010.
Business and Other Tax Changes
Generous Section 179 Deduction Rules Extended. The Stimulus Act extends the $250,000 Section 179 first-year depreciation deduction allowance by one year, through tax years beginning in 2009. Without this change, the maximum Section 179 deduction would have been only $133,000. The new law also extends the $800,000 phase-out threshold for reduced Section 179 deductions. Without this change, the threshold would have been only $530,000.
First-year Bonus Depreciation Extended. The Stimulus Act extends the 50% first-year bonus depreciation break to cover qualifying new (not used) assets that are placed in service by no later than 12/31/09. However, the deadline is extended through 12/31/10 for certain longer-lived assets, transportation equipment, and aircraft.
For a new passenger auto or light truck that’s used for business and is subject to the luxury auto depreciation limitations, the extended bonus depreciation break increases the maximum first-year depreciation deduction by $8,000 for vehicles placed in service by 12/31/09. The estimated maximum first-year depreciation deduction for 2009 is now $10,960 for new cars and $11,060 for new light trucks.
Corporate Election to Claim Credits Instead of First-year Bonus Depreciation Extended. Prior law allowed corporations that are otherwise eligible to claim 50% first-year bonus depreciation to elect to forego bonus depreciation and instead “free up” otherwise unusable R&D and minimum tax credit carryovers. Credits freed up by this election are refundable. However, the election was only available with respect to bonus depreciation on qualified assets that were: (1) purchased after 3/31/08 and (2) placed in service by 12/31/08 or by 12/31/09 for certain longer-lived assets, transportation equipment, and aircraft. The Stimulus Act extends the two placed-in-service deadlines by one year to 12/31/09 and 12/31/10, respectively.
Note: Making the election doesn’t result in any lost depreciation deductions. It just postpones depreciation deductions for affected assets.
Longer Carryback Period for 2008 Losses (Small and Medium-sized Businesses Only). The new law allows eligible businesses to elect to carry back 2008 Net Operating Losses (NOLs) for three, four, or five years to obtain refunds of taxes paid for those years. This is a favorable (but temporary) exception to the general two-year NOL carryback rule. The election is only available for losses generated by businesses with average annual receipts of $15 million or less.
For calendar-year taxpayers, the election is available for NOLs generated in calendar-year 2008. For fiscal-year taxpayers, the election is available for NOLs generated in tax years that either begin in 2008 or end in 2008. (A fiscal-year taxpayer can make the election for one year or the other—but not both.)
No Corporate ACE Adjustment for Interest on Tax-exempt Bonds Issued in 2008 and 2009. C corporations affected by the corporate AMT rules generally must include tax-exempt interest as income in calculating the Adjusted Current Earnings (ACE) adjustment for AMT purposes. The Stimulus Act deletes the ACE adjustment for tax-exempt interest on bonds issued in 2009 and 2010.
Government Contractor Withholding Rule Delayed until 2012. The Stimulus Act delays by one year a controversial provision that will eventually require 3% federal income tax withholding from certain payments to government contractors. The withholding rule is now scheduled to apply to payments made in 2012 and beyond. Before this change, it was to apply to payments made in 2011 and beyond.
Debt Discharge Income from Reacquiring Debt in 2009 and 2010 Can Be Deferred. The new law allows a business that reacquires its own debt at a discount to elect to defer the resulting taxable debt discharge income and then spread it out over five years. This election is available with respect to debt discharge income that results from debt reacquisition transactions that occur in 2009 and 2010. The intent is to allow struggling businesses to restructure their debts in a tax-favored fashion.
Pursuant to the election, debt discharge income from a debt reacquisition that occurs in 2009 is deferred until the fifth tax year after the tax year in which the reacquisition occurs (2014 for a calendar-year taxpayer). The income is then spread evenly over five tax years beginning with that fifth year (2014–2018 for a calendar-year taxpayer). Debt discharge income from a reacquisition in 2010 is deferred until the fourth tax year after the tax year in which the reacquisition occurs (2014 for a calendar-year taxpayer), and the income is then spread evenly over five tax years beginning with that fourth year (2014–2018 for a calendar-year taxpayer).
Break for S Corporation Built-in Gains in 2009 and 2010. When a regular C corporation converts to tax-favored S corporation status, the corporate-level built-in gains tax generally applies when built-in gain assets (including receivables and inventories) are turned into cash or sold within the recognition period. The recognition period is the 10-year period that begins on the conversion date.
The Stimulus Act establishes an exception for built-in gains recognized in S corporation tax years beginning in 2009 and 2010 if the seventh year of the recognition period has gone by before the beginning of the tax year beginning in 2009 or 2010. Gains that fall under this exception won’t be hit with the built-in gains tax.
Liberalized Small Business Stock Sale Rules for New Issues. Sellers of qualified small business corporation (QSBC) shares can potentially exclude up 50% of the resulting gains from federal income taxation (subject to several limitations). To encourage new investments in QSBC stock, the Stimulus Act increases the gain exclusion percentage from 50% to 75% for qualifying sales of QSBC shares that are issued between 2/18/09 and 12/31/10.
Work Opportunity Credit Rules Liberalized. The Work Opportunity Tax Credit (WOTC) is intended to give employers a tax incentive to hire members of certain targeted groups. The new law adds unemployed veterans and disconnected youths as new targeted groups. This change applies to unemployed veterans and disconnected youths who begin work for electing employers in 2009 and 2010.
COBRA Premium Subsidy. Group health plans maintained by employers that have at least 20 employees are required to offer certain employees and their dependents the opportunity to continue to participate in the group health plan for up to 18 months. This is referred to as COBRA continuation coverage. The Stimulus Act provides for a 65% government-provided subsidy for COBRA continuation payments for up to nine months to Assistance Eligible Individuals (AEIs) for periods of coverage beginning on or after 2/17/09. Although this subsidy is provided by the government, AEIs will pay 35% of their COBRA premiums with the remaining 65% being paid by the former employer, who is effectively reimbursed for these payments by a reduction in payroll taxes.
An AEI is an employee (and COBRA eligible family members) whose employment has been involuntarily terminated between 9/1/08 and 12/31/09 and who elects COBRA coverage. AEIs who were involuntarily terminated after 8/31/08 and before 2/17/09 and did not enroll for COBRA benefits at the time of their termination, have a special extended 60-day period in which to elect COBRA benefits. They can make the COBRA election during the period beginning on 2/17/09 and ending 60 days after the date on which their former employer provides them the notice regarding the extended election period.
Conclusion
Even though this letter is too long, we have only scratched the surface. We ask you to contact us if you want additional information or if you have questions. We will be pleased to help. For more information you may call Deanna at 501.753.9700.
Friday, March 06, 2009
Cash or Accrual?
By: Brady Pipkin, CPA
Businesses with gross receipts under $1 million are eligible to elect to file tax returns on the cash basis of accounting. Most businesses with gross receipts between $1 and $10 million are eligible to file returns on a cash basis. Taxpayers who derive the largest part of their gross receipts from the following activities are not eligible to file cash basis tax returns.
• Mining activities
• Manufacturing
• Wholesale trades
• Retail trade
• Information industries such as newspapers, periodical books, database
publishers and sound recording industries
Why does this matter? By filing returns on the accrual basis of accounting (the other way to do it), taxpayers are taxed on receivables. Taxpayers are not able to deduct your prepaid expenses until they are actually expensed. The accrual method also allows taxpayers to deduct unpaid expenses (accounts payable and accrued liabilities) in the year the expenses are incurred. By switching to the cash basis of accounting for tax purposes, taxpayers can postpone the tax on receivables until collected and can deduct prepaid expenses when paid. The cash method also disallows deductions for unpaid expenses until those expenses are paid (i.e. you cannot deduct your expenses in accounts payable until you pay them).
Ultimately, the amount difference between the accrual and cash method comes down to the timing of when you will be taxed on income and allowed deductions for expenses. For many trucking companies, receivables are large, especially in today’s economy when customers are paying slower. By switching to the cash method for tax reporting, the tax on these receivables can be deferred until they are collected. In the year that taxpayers elect cash basis, it is typical to have a large adjustment that has a large decreasing effect on taxable income.
For a trucking company that has $350,000 in receivables and $100,000 in payables (and yes, we can still elect cash basis for 2008), the adjustment would result in a $250,000 decrease to taxable income in the first year. This adjustment usually results in substantial tax savings for the stockholders. If you assume a 25% tax rate (which is not unrealistic with both federal and state taxes) and that the company would still have income after the adjustment with no carryover losses from prior years, the tax savings would be $62,500.
As with any major tax election or change, you should consult with us or your tax advisor. If your tax advisor has not informed you that this election is available, you should consider switching (or at a minimum, get a second look at your tax returns). Failing to take advantage of the cash method can cost businesses a lot of money in taxes that are paid too early. In today’s economy, trucking companies need to defer the tax and use the savings to pay other bills.
If you would like to discuss the benefits of converting your company to the cash basis for income tax reporting, please contact Brady Pipkin, CPA at 501.753.9700.
Businesses with gross receipts under $1 million are eligible to elect to file tax returns on the cash basis of accounting. Most businesses with gross receipts between $1 and $10 million are eligible to file returns on a cash basis. Taxpayers who derive the largest part of their gross receipts from the following activities are not eligible to file cash basis tax returns.
• Mining activities
• Manufacturing
• Wholesale trades
• Retail trade
• Information industries such as newspapers, periodical books, database
publishers and sound recording industries
Why does this matter? By filing returns on the accrual basis of accounting (the other way to do it), taxpayers are taxed on receivables. Taxpayers are not able to deduct your prepaid expenses until they are actually expensed. The accrual method also allows taxpayers to deduct unpaid expenses (accounts payable and accrued liabilities) in the year the expenses are incurred. By switching to the cash basis of accounting for tax purposes, taxpayers can postpone the tax on receivables until collected and can deduct prepaid expenses when paid. The cash method also disallows deductions for unpaid expenses until those expenses are paid (i.e. you cannot deduct your expenses in accounts payable until you pay them).
Ultimately, the amount difference between the accrual and cash method comes down to the timing of when you will be taxed on income and allowed deductions for expenses. For many trucking companies, receivables are large, especially in today’s economy when customers are paying slower. By switching to the cash method for tax reporting, the tax on these receivables can be deferred until they are collected. In the year that taxpayers elect cash basis, it is typical to have a large adjustment that has a large decreasing effect on taxable income.
For a trucking company that has $350,000 in receivables and $100,000 in payables (and yes, we can still elect cash basis for 2008), the adjustment would result in a $250,000 decrease to taxable income in the first year. This adjustment usually results in substantial tax savings for the stockholders. If you assume a 25% tax rate (which is not unrealistic with both federal and state taxes) and that the company would still have income after the adjustment with no carryover losses from prior years, the tax savings would be $62,500.
As with any major tax election or change, you should consult with us or your tax advisor. If your tax advisor has not informed you that this election is available, you should consider switching (or at a minimum, get a second look at your tax returns). Failing to take advantage of the cash method can cost businesses a lot of money in taxes that are paid too early. In today’s economy, trucking companies need to defer the tax and use the savings to pay other bills.
If you would like to discuss the benefits of converting your company to the cash basis for income tax reporting, please contact Brady Pipkin, CPA at 501.753.9700.
Wednesday, February 25, 2009
Stimulus - Tax Provisions of Sepcific Interest to Motor Carriers
FEBRUARY 23, 2009
**See comments about write offs and bonus depreciation in this ATA article about
the Stimulus Bill.
TAX PROVISIONS IN STIMULUS BILL
The $787 billion economic stimulus bill signed today by President Obama contains several tax provisions of specific interest to motor carriers. First is an extension of net operating loss carry backs for businesses that averaged less than $15 million in revenue over the last three years. For 2008, qualifying businesses are permitted to carry back losses for five years, compared to two years under prior law. Carriers that qualify for this provision may be able to amend past tax returns for profitable years to claim refunds of taxes to use as current operating funds. A much more generous net operating loss carry back provision, which would have applied
to all businesses, was deleted from the bill in conference. The package also extends for another year two current provisions that allow businesses to write off current expenditures for equipment up to $250,000 and to benefit from bonus depreciation on capital purchases. Carriers that are government contractors will be interested to know that the requirement for all levels of government to withhold three percent of contract payments to cover potential federal taxes has been moved back a year to 2012. More generally, some segments of the industry may be expected to benefit from the outlays for housing, loans and infrastructure contained in the package.
**See comments about write offs and bonus depreciation in this ATA article about
the Stimulus Bill.
TAX PROVISIONS IN STIMULUS BILL
The $787 billion economic stimulus bill signed today by President Obama contains several tax provisions of specific interest to motor carriers. First is an extension of net operating loss carry backs for businesses that averaged less than $15 million in revenue over the last three years. For 2008, qualifying businesses are permitted to carry back losses for five years, compared to two years under prior law. Carriers that qualify for this provision may be able to amend past tax returns for profitable years to claim refunds of taxes to use as current operating funds. A much more generous net operating loss carry back provision, which would have applied
to all businesses, was deleted from the bill in conference. The package also extends for another year two current provisions that allow businesses to write off current expenditures for equipment up to $250,000 and to benefit from bonus depreciation on capital purchases. Carriers that are government contractors will be interested to know that the requirement for all levels of government to withhold three percent of contract payments to cover potential federal taxes has been moved back a year to 2012. More generally, some segments of the industry may be expected to benefit from the outlays for housing, loans and infrastructure contained in the package.
Monday, February 23, 2009
Survive to Thrive CCJ Article
Following is a recent Article in CCJ magazine in which Richard Bell was quoted. We found the article very interesting and wanted to post for all to read.
January 2009
Survive to thrive
It appears that 2009 will be an ugly year for trucking companies – and pretty much everyone else for that matter. But the continuing and potentially deepening pain may lead to a severe capacity crunch once the recovery materializes. That’s great news – provided you are one of the lucky survivors. If times are tough or look like they will be, take steps now to improve your odds of being around to reap the rewards.
Maximize cash flow. Work to speed your accounts receivable, and employ every responsible and ethical tactic to push debt and vendor payments to the last possible moment. For specific steps you can take, consult the “How to Manage Cash Flow” manual at www.commercialcarrieruniversity.com.
Tap existing credit lines – immediately. In the current credit environment, some lenders are capping lines of credit at the current balance without cause, says Jay Taylor, managing director of Capital Resource Partners. Consider drawing the maximum availability on any existing credit lines as quickly as possible to create a cash reserve.
Try to work with lenders. Because lenders also are hurting, you may have limited or no success, but it’s worth a try. Taylor recommends asking for considerations such as interest-only for a time, skipping payments or moving payments to the end of the finance contract.
Pare your fleet. “The big issue is utilization – excess capacity, in the form of trucks on the fence,” says Richard Bell, chief executive officer of accounting and business advising firm Bell & Co. “Pay the note payment, or sell the truck at a lower price. In today’s market, a 50-unit fleet may need to be a 25- to 30-unit fleet based on freight.”
Increase freight network density. “Nothing will improve short-term performance more than reducing the scope of a small company’s freight network,” Taylor says. Focus on core customers and lanes that have repetitive shipments. Eliminate shipments to destinations that are infrequent and where there are no core customers.
Hedge fuel. Based on today’s pricing, fleets probably should cap prices on at least 15 percent of their fuel volume for all of 2009, says Brad Simons, president of Simons Petroleum’s Pathway Network. If the price of a barrel of oil drops to $40 or below, fleets should look to cap at least 30 to 40 percent.
Eliminate noncritical expenses. Focus on each dollar spent on items that do not keep the company running, Taylor advises. Eliminate exceptions – even if they affect owners.
Slash overhead. Most carriers could reduce overhead by 30 to 40 percent for a year or two without destroying core capabilities, Taylor says. He suggests offering furloughs without pay, cutting hours for hourly employees, having employees share shifts, leaving all vacancies in place and, ultimately, instituting a reduction in force if necessary. And Bell suggests looking at situations where technology can take over. “Instead of five trucks per one support person, shoot for eight trucks to one support person.”
Watch customers very closely. Don’t forget that the recession may be hurting your customers more than you. Stay on top of accounts receivable and any other indicators of financial health. If you aren’t careful, bankruptcy could not only wipe out receivables but also even require you to return recent freight payments to the trustee. For more on dealing with bankrupt customers, see “Become a critical vendor,” Law, November 2008.
Reduce management compensation. In a crisis, Taylor recommends imposing “voluntary” 25 percent pay cut on the management team to show leadership. At a minimum, shareholders should reduce their own compensation.
Look within the business for solutions. “If your company turns south, fix the problem, but do not throw all your personal funds into the company,” Bell says. “The ship is sinking for some reason, and 90 percent of the time, it is revenue-driven.”
These are tough tactics, but more profitable days lie ahead if you manage to stick around for them.
This article was written by:
AVERY VISE is editorial director of Commercial Carrier Journal · E-mail avise@ccjmagazine.com
January 2009
Survive to thrive
It appears that 2009 will be an ugly year for trucking companies – and pretty much everyone else for that matter. But the continuing and potentially deepening pain may lead to a severe capacity crunch once the recovery materializes. That’s great news – provided you are one of the lucky survivors. If times are tough or look like they will be, take steps now to improve your odds of being around to reap the rewards.
Maximize cash flow. Work to speed your accounts receivable, and employ every responsible and ethical tactic to push debt and vendor payments to the last possible moment. For specific steps you can take, consult the “How to Manage Cash Flow” manual at www.commercialcarrieruniversity.com.
Tap existing credit lines – immediately. In the current credit environment, some lenders are capping lines of credit at the current balance without cause, says Jay Taylor, managing director of Capital Resource Partners. Consider drawing the maximum availability on any existing credit lines as quickly as possible to create a cash reserve.
Try to work with lenders. Because lenders also are hurting, you may have limited or no success, but it’s worth a try. Taylor recommends asking for considerations such as interest-only for a time, skipping payments or moving payments to the end of the finance contract.
Pare your fleet. “The big issue is utilization – excess capacity, in the form of trucks on the fence,” says Richard Bell, chief executive officer of accounting and business advising firm Bell & Co. “Pay the note payment, or sell the truck at a lower price. In today’s market, a 50-unit fleet may need to be a 25- to 30-unit fleet based on freight.”
Increase freight network density. “Nothing will improve short-term performance more than reducing the scope of a small company’s freight network,” Taylor says. Focus on core customers and lanes that have repetitive shipments. Eliminate shipments to destinations that are infrequent and where there are no core customers.
Hedge fuel. Based on today’s pricing, fleets probably should cap prices on at least 15 percent of their fuel volume for all of 2009, says Brad Simons, president of Simons Petroleum’s Pathway Network. If the price of a barrel of oil drops to $40 or below, fleets should look to cap at least 30 to 40 percent.
Eliminate noncritical expenses. Focus on each dollar spent on items that do not keep the company running, Taylor advises. Eliminate exceptions – even if they affect owners.
Slash overhead. Most carriers could reduce overhead by 30 to 40 percent for a year or two without destroying core capabilities, Taylor says. He suggests offering furloughs without pay, cutting hours for hourly employees, having employees share shifts, leaving all vacancies in place and, ultimately, instituting a reduction in force if necessary. And Bell suggests looking at situations where technology can take over. “Instead of five trucks per one support person, shoot for eight trucks to one support person.”
Watch customers very closely. Don’t forget that the recession may be hurting your customers more than you. Stay on top of accounts receivable and any other indicators of financial health. If you aren’t careful, bankruptcy could not only wipe out receivables but also even require you to return recent freight payments to the trustee. For more on dealing with bankrupt customers, see “Become a critical vendor,” Law, November 2008.
Reduce management compensation. In a crisis, Taylor recommends imposing “voluntary” 25 percent pay cut on the management team to show leadership. At a minimum, shareholders should reduce their own compensation.
Look within the business for solutions. “If your company turns south, fix the problem, but do not throw all your personal funds into the company,” Bell says. “The ship is sinking for some reason, and 90 percent of the time, it is revenue-driven.”
These are tough tactics, but more profitable days lie ahead if you manage to stick around for them.
This article was written by:
AVERY VISE is editorial director of Commercial Carrier Journal · E-mail avise@ccjmagazine.com
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