Double Taxation: A Take On All Things Taxes

Apropos of absolutely nothing tax related, I highly recommend you take two minutes out of your October 15th push and soak in the images below. We here at Double-Taxation spent a much-needed lunch break enjoying one of our favorite mountain bike rides along the Government Trail in Aspen today. The colors, as you’ll see, are simply otherworldly.

Enjoy.

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The IRS issued Notice 2011-80 today, requiring PTIN holders to annually renew their PTINs.

Background

The IRS has published final regulations providing that after December 31, 2010, all individuals who prepare all or substantially all of a tax return or claim for refund for compensation must have a PTIN and must use that PTIN as their sole identifying number. The PTIN comes at the price of a $50 user fee to the IRS, plus any IRS approved fee charged by the third-party vendor, to initially obtain and to annually renew a PTIN.

Only attorneys, certified public accountants, enrolled agents, registered tax return preparers, and individuals authorized under § 1.6109-2(h) are eligible to receive a PTIN.

Renewal Process

The IRS has decided that all PTINs must be renewed on a calendar year basis using the IRS’s online PTIN application available at www.irs.gov or paper application, Form W-12, IRS Paid Preparer Tax Identification Number (PTIN) Application and pay the required fee (currently $64.25, $50.00 IRS user fee plus $14.25 vendor fee) after October 15th and before January 1st each year.

PTINs renewed during this period will be valid from January 1st through December 31st of the following calendar year. PTINs obtained or renewed during a calendar year will expire on December 31st of that year.

Individuals obtaining a new PTIN after October 15th will have the option of receiving a PTIN for the current calendar year or the following calendar year. Individuals who choose to receive a PTIN for the current calendar year will be required to renew their PTIN before January 1st to prepare returns during the following calendar year. Individuals who choose to receive a PTIN for the following calendar year may not prepare tax returns for compensation during the remainder of the current calendar year. Instead, the PTINs issued to these individuals will be valid for the following calendar year.

To assist with the transition to a calendar year renewal period, the IRS has determined that PTINs issued after September 27, 2010 and before October 16, 2011 will expire on December 31, 2011.

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The prevailing attitude among most tax advisers is that if given their druthers, small businesses should be established as an S corporation or LLC. Setting up a business as a “C” corporation, with its seemingly inefficient potential for double-taxation (product placement!), is often not given much in the way of consideration.   

According to a recent study, however, there are nearly $1.6 million small businesses currently operating as C corporations. With treatment as an S corporation or LLC readily available to most taxpayers, why would so many businesses opt for the supposedly inefficient taxing regime imposed by subchapter C?

As illustrated by this excellent article by Martin A. Sullivan (Tax Analysts) – The Small Business Love-Hate Relationship With Corporate Tax –  there are more advantages to operating as a C corporation then most realize, including:

• the graduated tax rates available to corporations under Section 11;
• the current 15 percent rate on qualified dividends;
• the ability for a shareholder to defer individual taxation on undistributed earnings of the corporation; and
• advantageous rules regarding tax-free fringe benefits for shareholder-employees when compared with S corporations and LLCs. 

Give it a read. You know you want to.

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Now that we’ve had some time for the smoke to clear with regards to the President’s most recent proposal for tax reform (see earlier proposals here and here) it’s time for a quick overview as to what’s happened, and where we’re headed.

So what went down last Monday?

The President rolled out his $3 trillion federal budget Deficit Reduction Plan. It’s a veritable economic stew filled with succulent spending cuts, tasty tax increases, and robust revenue raisers. And much like my Mom’s mystery meat-and-vegetable concoction, many have had a difficult time choking it down. The plan — which targets the amount of tax paid by the nation’s cultural elite —  has been met with the expected Republican backlash, including accusations of class warfare and the standard shortsighted, incomprehensible rhetoric from Bill O’Reilly.[1]

So what does this mean to me?

Perhaps the most important thing is this: the plan takes aim at “wealthy taxpayers.” Unfortunately, whether or not a taxpayer is “wealthy” depends on which tax proposal we’re talking about. As you’ll see below, for some purposes of the proposal, you would be considered wealthy if your taxable income exceeds $200,000, while for other purposes, you’ll need to have taxable income in excess of $1,000,000 to meet the “wealthy” standard. 

How do these proposals effect the Bush-era tax cuts?

If the President were to do nothing, the Bush-era tax cuts are set to expire after December 31, 2012. As a result, the top two tax rates would revert to 36 and 39.6 percent.

The most recent proposal would allow these two higher rates to return for 2013 and beyond, but only for “wealthy”  taxpayers of the $200,000 variety. In other words, if your taxable income exceeds $200,000 ($250,000 for MFJ) in 2012, you’ll be paying tax at up to a 39.6 percent rate.

Will we still have the favorable 15 percent rates on long-term capital gains and qualified dividends?

This isn’t entirely clear, but even if the 15 percent rates remain in the taxing structure, it likely won’t remain for everyone. The goal of the President’s proposed tax reform is to require a wealthy taxpayer who generates mostly long-term capital gains or qualified dividend income to pay tax at an effective rate much closer to 35 percent than 15 percent. So while taxpayers with income below $200,000 may well continue to enjoy the benefits of the current 15 percent rates, taxpayers with more than $200,000 of taxable income likely will not.

Is this where the “Buffet Rule” comes in?

Precisely. While the “Buffet Rule” is not a specific proposal in terms of increased tax rates or a reduction in certain deductions, the goal is to insure that individuals with taxable income in excess of $1,000,000 pay tax at an effective rate of close to 35 percent. This could be accomplished in a number of ways; by increasing the graduated tax rates, phasing out certain deductions, or incorporating a second alternative to the alternative minimum tax. At this moment, the President is leaving it to Congress to figure out the details and methodology.

The Buffet Rule wouldn’t have a tremendous impact on taxpayers with more than $1,000,000 of “ordinary” taxable income, as this income is already taxed at the highest possible rates. Rather, the Buffet Rule takes aim at wealthy individuals earning the majority of their taxable income from long-term capital gains and qualified dividends taxed at preferential rates. These taxpayers could see a marked jump in their tax liability under this hypothetical new minimum tax should the President’s proposals become law.

Another alternative minimum tax? Are you #*@!ing serious?

Unfortunately, yes. While the President says he wants to overhaul and simplify the Code, implementing the Buffet Rule would most assuredly complicate matters. Congress would likely have to implement an entirely independent taxable income computation for individuals with taxable income in excess of $1,000,000 to guarantee the individual pays tax at the desired effective rate. Any such calculation would likely have to take into account the myriad of exclusions, above-the-line deductions, itemized deductions, and tax credits taxpayers are currently entitled to, generating an exponential increase in administrative headaches, late nights, and billable hours for tax advisors.

Are there any other individuals proposals I should know about?

The President’s proposal includes a plan to limit the tax benefit of itemized deductions for individuals with taxable income in excess of $200,000 ($250,000 MFJ) to 28 percent (as opposed to a current maximum benefit of 35 percent). While this proposal doesn’t appear to be integrated with the “Buffet Rule,” it would surely have to work in lockstep with any alternative alternative minimum tax. As mentioned, however, this rule targets individuals with taxable income in excess of $250,000, while the Buffet Rule is meant for wealthy individuals of the $1,000,000 variety.

What else makes the plan so complicated?

Let’s rehash what we’ve already discussed. If all the President’s proposals become law, we could potentially have three independent computations of tax going on in 2013 and beyond:

1. Taxable income < $200,000 ($250,000 if MFJ): Would still have a top rate of 35 percent, and it appears, would still be entitled to the 15 percent tax rate on long-term capital gains and qualified dividends.

 2. Taxable income > $200,000 but less than $1,000,000: Would fall into the “first tier” of wealthy taxpayers. These individuals would likely see their top rate revert to the old 39.6 percent, with the preferential rates on long-term capital gains or qualified dividends either being eliminated entirely or moved to a 20-25 percent rate. These individuals would also be subject to the additional 0.9 percent Medicare tax on wages and self employment income and the additional 3.8 percent Medicare tax on unearned income already enacted into law. Finally, these individuals would also be subject to the 28 percent cap on their itemized deductions. Good luck preparing/reviewing that tax return.

 3. Taxable income > $1,000,000: Will have to contend with all of the items discussed in #2 above, but will also have to wrestle with a separate computation to reach the goals of the “Buffet Rule.” Again, this sounds like a lot of moving parts that will challenge tax software and practitioners alike.

Are there any tax changes for corporations in the plan?

Right now, the President is showing an inclination to reduce corporate tax rates as long as certain loopholes are closed. No specific tax rates have been discussed, but it’s clear the President is prepared to provide some incentive for US corporations to remain onshore rather than seeking out greener pastures overseas.  

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On Monday, it appears the President is poised to propose replacing the Alternative Minimum Tax on individuals with what is being called the “Buffet Rule,” which will impose a minimum tax rate on individuals with taxable income in excess of $1,000,000. The goal is to insure that high-income taxpayers pay the same percentage of  income as middle-class earners, a characteristic of the taxing system that Warren Buffett has repeatedly called for.

No details are currently available regarding the proposal, but we’ll be all over it when they are.

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As you may have heard, the Small Business Jobs Act of 2010 removed cell phones from the dreaded “listed property” classification. While that was a step in the right direction, the IRS did little to piggyback on the law change and clarify what the removal actually means to employers and employees.

Well, here it is…as long as an employer issues cell phones to its employees for work-related purposes — taking client calls, taking calls from the employer, etc… — and not compensatory purposes such as attracting talent or improve the morale of existing employees, the entire value of the cell phone is tax-free to the employee. The business use is a working condition fringe excludable to the employee under Section 132(d), and the personal use is treated as a de minimis fringe benefit excludable to the employee under Section 132(a)(4).

See Notice 2011-72:

This notice provides that, when an employer provides an employee with a cell phone primarily for noncompensatory business reasons, the IRS will treat the employee’s use of the cell phone for reasons related to the employer’s trade or business as a working condition fringe benefit, the value of which is excludable from the employee’s income and, solely for purposes of determining whether the working condition fringe benefit provision in section 132(d) applies, the substantiation requirements that the employee would have to meet in order for a deduction under §162 to be allowable are deemed to be satisfied. In addition, the IRS will treat the value of any personal use of a cell phone provided by the employer primarily for noncompensatory business purposes as excludable from the employee’s income as a de minimis fringe benefit.

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Last week, we discussed the tax incentives in President Obama’s proposed “American Jobs Act.”  For the most part, it all sounded familiar: incentives for hiring and extended bonus depreciaiton opportunities.

Yesterday, however, the White House issued detail regarding the legistlative language and section-by-section analysis of the Act, which included a number of revenue raisers. Now, these particular revenue raisers are nothing new, as the Obama administration has been pushing for them since his election, but they may be enough to insure that the Jobs Act never gets passed in its current form.

Among the more important revenue raisers include:

28 Percent Limitation on Certain Deductions And Exclusions. This section would limit the value of all itemized deductions and certain other tax expenditures for high-income taxpayers by limiting the tax value of otherwise allowable deductions and exclusions to 28 percent. No taxpayer with adjusted gross income under $250,000 for married couples filing jointly (or $200,000 for single taxpayers) would be subject to this limitation. The limitation would affect itemized deductions and certain other tax expenditures that would otherwise reduce taxable income in the 36 or 39.6 percent tax brackets. A similar limitation also would apply under the alternative minimum tax. This section would be effective for taxable years beginning on or after January 1, 2013.

Tax Carried Interest in Investment Partnerships as Ordinary Income. This has been bandied about for years, and it appears Obama is dead-set on making it happen. Current law allows service partners to receive capital gains treatment on labor income without limit, which creates an unfair and inefficient tax preference. This section would tax as ordinary income, and make subject to self-employment tax, a service partner’s share of the income of an investment partnership attributable to a carried interest because such income is derived from the performance of services.

Close Loophole for Corporate Jet Depreciation, General Aviation Aircraft Treated As 7-Year Property. Current law contains a loophole that allows corporate jets to be depreciated faster than jets used by airlines to carry passengers courtesy of bonus depreciation. This section closes this loophole, requiring corporate jets to be depreciated over the same number of years as other aircraft. This section would be effective for taxable years beginning after December 31, 2012.

Repeal of Deduction for Intangible Drilling and Development Costs in the Case of Oil and Gas Wells. This section would not allow expensing of IDCs or 60-month amortization of capitalized IDCs. Instead, IDCs would be capitalized as depreciable or depletable property, depending on the nature of the cost incurred, in accordance with generally applicable rules. This section would repeal current law expensing of IDCs and 60-month amortization of capitalized IDCs effective for costs paid or incurred after December 31, 2012.

Repeal of Percentage Depletion for Oil and Gas Wells. This section would repeal the percentage depletion method available under existing law for recovery of the capital costs of oil and gas wells. Under the percentage depletion method, the amount of the deduction is a statutory percentage of the gross income from the property. Instead of the percentage depletion method, taxpayers would be permitted to claim cost depletion on their adjusted basis, if any, in oil and gas wells. Under the cost depletion method, the basis recovery for a taxable year is proportional to the exhaustion of the property during the year. This method does not permit cost recovery deductions that exceed basis or that are allowable on an accelerated basis. This section would be effective for taxable years beginning after December 31, 2012.

 Section 199 Deduction Not Allowed With Respect to Oil, Natural Gas, or Primary Products Thereof. This section would deny the deduction available under existing law with respect to income attributable to domestic production activities (the manufacturing deduction) for oil and gas production. The manufacturing deduction generally is available to all taxpayers that generate qualified production activities income, which under current law includes income from the sale, exchange or disposition of oil, natural gas or primary products thereof produced in the United States. The proposal would retain the overall manufacturing deduction, but exclude from the definition of domestic production gross receipts all gross receipts derived from the sale, exchange or other disposition of oil, natural gas or a primary product thereof. This section would be effective for taxable years beginning after December 31, 2012.

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Hating your neighbor is as American as Mom, apple pie, and frivolous litigation. God knows I can’t stand mine.

No matter what I do, he’s got to find a way to one-up me. I come home with a new car, he buys a nicer one. I get the yard landscaped,  he adds a koi pond. I have a son, he has a good-looking son. And on it goes….

Since the advent of caller ID rendered unsolicited bulk pizza deliveries a thing of the past, guys like me have been desperately seeking a way to passive-agressively exact revenge on the guy next door. Well, if your neighbor has made known his disdain for paying taxes, the IRS has a way for you to hit him where it hurts, while lining your pockets in the process. From the Wall Street Journal:  

How to Turn in Your Neighbor to the IRS

If tax cheating sticks in your craw, the Internal Revenue Service has a deal for you: Turn in a lawbreaker and collect some of the proceeds.

The bigger the amount recouped, the bigger your take. The agency has two whistleblower programs: The small-awards program is for cases involving less than $2 million of tax, and the award can be as high as 15%, though it often is less. The large-awards program is more generous: For cases involving $2 million or more of tax, the reward can go as high as 30%.

Since then, according to just-released data, the agency has had 1,328 qualified submissions involving nearly 10,000 alleged tax cheats under the large-awards program.

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(Ed note: Ok, I’ll admit it…that clumsy title was just a way for me to sneak the name “Butkus” into a post). Funny stuff.

What follows is a deconstruction of the Tax Court’s decision last week in Miller v. Commissioner,[i] a case involving a purported real estate professional that we here at Double Taxation feel has some important implications. Bear with us.

A few weeks ago, we took a look at Harnett v Commissioner, another in the long line of cases analyzing whether a taxpayer qualifies as a ”real estate professional” under Section 469(c)(7). Our analysis focused on the progress the Tax Court has seemingly made in applying the “750 hour test,” one of the two tests a taxpayer must satisfy in order to meet the definition of a real estate professional, thus removing the taxpayer’s rental activities from de facto passive classification.

As a reminder, the two tests are:

• More than one-half of the personal services performed in trades or businesses by the taxpayer during the year must be performed in real property trades or businesses in which the taxpayer materially participates.
• The taxpayer performs more than 750 hours of services during the tax year in real property trades or businesses in which the taxpayer materially participates.

With regards to the 750 hour requirement, we stated in our analysis of Harnett that the Tax Court had erred in previous decisions[ii] by requiring a taxpayer who failed to elect to aggregate his rental activities to spend more than 750 hours in each rental activity.

What follows is the Tax Court’s rationale for its decision in Jahina:

Because petitioners did not properly elect to treat the rental properties as a single activity, they cannot group them. As an additional consequence of the failure to elect, Mrs. Jahina must qualify as a real estate professional with respect to each property separately in order to avoid a determination that the rental activities were per se passive…Thus, to hold in petitioners’ favor, the Court must find: (1) That more than one-half of Mrs. Jahina’s personal services during the taxable year were performed in each rental property activity in which a loss deduction is claimed, and (2) that Mrs. Jahina performed more than 750 hours of services during the taxable year on each of the claimed properties.

The evidence fails to establish that Mrs. Jahina was a real estate professional with respect to each of the rental properties considered separately.The requirements of section 469(c)(7)(B) were not met with respect to any of the rental properties individually. During all of 1996 and until August 1997, Mrs. Jahina had a full-time job with a standard work requirement of 1,800 hours per year. During the latter months of 1997, she had a part-time job. She did not work on any one of these properties more than she worked on her wage jobs. Further, she did not satisfy the 750-hour statutory minimum for any one of them.

Now, we’ve never agreed with that approach. To the contrary, we believe that even when a taxpayer fails to make the election to aggregate rental properties, they should only be required to satisfy the 750-hour test on an aggregate basis through a two-step process: 1) First identifying the activities in which the taxpayer materially participates, and 2) Aggregating the hours spent on those activities to see if they  exceed 750.

We were particularly encouraged by Harnett, because the Tax Court seemed to embrace this line of thinking. In determining whether Harnett was a real estate professional, the Tax Court combined the hours spent by the taxpayer on only those properties in which  the taxpayer materially participated, without making mention of an election to aggregate the activities.

This brings us to the Tax Court’s decision this week in Miller v. Commissioner, another real estate professional case, and one which provides further evidence that the failure to elect to aggregate activities is not fatal to the taxpayer.

In Miller, the taxpayer was a boat pilot and the owner of six rental properties. Miller deducted the losses from his rental activities without limitation, taking the position that he was a real estate professional. Miller, however, failed to elect to aggregate his six rental properties.

Using the rationale from the Jahina decision, the Tax Court would have required Miller to 1) spend more time on each of his rental properties than he spent on his full-time gig as a boat pilot, and 2) spend more than 750 hours on each of the six properties in order to qualify as a real estate professional. But that’s not how things went down.

The court quickly determined that Miller met the first (more than half) requirement of the real estate professional test, stating

We find that Mr. Miller has established that he spent more than 750 hours performing significant construction work as a contractor and on his rental real estate activities. We find that Mr. Miller spent more time on his construction work and rental properties than he did piloting vessels in the years at issue. Having found that Mr. Miller is a qualified real estate professional, we now consider whether petitioners materially participated in their rental activities. For this purpose, each interest in rental real estate is treated as a separate rental real estate activity unless the qualifying taxpayer makes an election to treat all interests as a single activity. Petitioners did not make such an election.

This quote is fascinating for at least four reasons:

1. Clearly, the Tax Court did not take the same approach as it did in Jahina, where when the taxpayer failed to elect to aggregate its rental activities, the court  required “that more than one-half of Mrs. Jahina’s personal services during the taxable year were performed in each rental property activity in which a loss deduction is claimed.”

In Miller, the court simply added up the hours spent on the taxpayer’s real estate activities and compared it to his hours spent piloting his boat, and concluded that he spent more time on the former. More importantly, it did this without Miller having made an election to aggregate his rental activities, an approach I believe is in line with the intent of the law, if not the specific language.

 2. If all the court was doing in the quoted paragraph was determining if Miller spent more than half his time on real estate activities for the year, why did it state that Miller spent more than 750 hours on his activities? This seems irrelevant if the court was not analyzing the 750-hour test yet, which it wasn’t (or at least shouldn’t have been).

 3. How can the court proclaim they “found that Mr. Miller is a qualified real estate professional” without first determining if Miller spent 750 hours on the rental activities in which he materially participated? Doesn’t Section 469(c)(7) require a taxpayer to meet both prongs of the test to meet the definition of a real estate professional?

 4. Doesn’t the first (more than half) test require that the taxpayer spend more than half his time on rental activities in which he materially participated? It would follow, then, that the court would have to determine if Miller materially participated in his activities before it could hold that he met the more than half test. For example, what if Miller spent more than half of his year working on his rental activities, but did not actually meet the material  participation test for any of the activities? Wouldn’t he fail the more than half test?

So many questions, but let’s move on…

The Tax Court next set out to determine whether Miller materially participated in his six separate rental activities. The court looked to the 100-hour test of Treas. Reg. §1.469-5T[iii] and  held that Miller met the test for two of his properties but not the remaining four.

This is where things get even more interesting. The court stated:

We hold that petitioners materially participated in the [two rental properties] and the deductions attributable to those activities are not subject to limitation under section 469. Petitioners have not shown, however, that they participated in [the other four rental properties] for over 100 hours per year for the relevant years. We sustain respondent’s disallowance of losses with respect to the [four rental properties].

Deconstructing Miller further, this paragraph is particularly meaningful in two ways:

1. Noticeably absent from the court’s analysis is any mention of whether Miller spent more than 750 hours on the two rental properties in which he materially participated. Should this just be assumed? We know he materially participated in those two activities, but did he spend more than 750 hours in the activities, either combined (as we would argue) or separately (as Jahina held), as Section 468(c)(7) requires?

Now, the court mentioned in its earlier quote that Miller spent more than 750 hours on his rental activities, but they didn’t isolate that only to those activities in which he materially participated. It’s almost like the Tax Court has gone to the opposite extreme: instead of requiring the taxpayer to spend more than 750 hours on each property if an election to aggregate activities is not made, it appears in Miller the court simply looked to whether the taxpayer spent 750 hours total on his rental activities, and then allowed deductions for only those activities in which Miller materially participated, the reverse of the steps we infer from our reading of the Code.

2. Knowing now that Miller only materially participated in two of the six rental properties, did his hours spent on those two properties exceed his hours spent on his boat piloting activities, thus passing the “more than half test?” Isn’t that is what’s required under the first test of Section 469(c)(7).

If you’re confused by this…well, you’re not alone. Clearly, we don’t understand much about Miller, even after a thorough deconstruction. But one thing we do know is that the taxpayer failed to elect to aggregate his six rental activities, and the court still held that he was a real estate professional with regards to two of the activities, requiring only that he materially participate in the activities, not that he spend 750 hours in each activity. This is a step in the right direction to satisfying the intent of the real estate professional rules: to remove de facto passive status from those that spend the majority of their time materially participating in real estate activities.

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Below are the tax provisions found in the President’s proposed “American Jobs Act,” or as most people are calling it, “That thing that almost interrupted football.”

I wish I could add some insightful and poignant commentary along the lines of  ”The payroll tax incentives are a red herring meant to distract small business owners from the fact that the banking institution continues to show an unwillingness to lend,” but frankly, I would have no idea what the hell I’m talking about.  Everything I know about politics and the inner workings of the government I learned from Chris Rock and Bernie Mac in “Head of State.”

So to keep things simple, I’ll let the readers digest the tax proposals and provide the bipartisan bluster.

first things first, the President is proposing three tax cuts to provide immediate incentives to hire and invest:

Cutting the Payroll Tax Cut in Half for the First $5 Million in Wages:  This provision would cut the payroll tax in half to 3.1% for employers on the first $5 million in wages, providing broad tax relief to all businesses but targeting it to the 98 percent of firms with wages below this level.

Temporarily Eliminating Employer Payroll Taxes on Wages for New Workers or Raises for Existing Workers:  The President is proposing a full holiday on the 6.2% payroll tax firms pay for any growth in their payroll up to $50 million above the prior year, whether driven by new hires, increased wages or both. .

Extending 100% Expensing into 2012: The President is proposing to extend 100 percent expensing, the largest temporary investment incentive in history, allowing all firms – large and small – to take an immediate deduction on investments in new plants and equipment. (Ed note: unfortunately the whole point of the bonus depreciation rules back  in 2001 was to make taxpayers go “Oooh, I better buy all this equipment this year before the tax break expires, thereby stiumulating the economy. After ten years of the same incentive, I would argue that taxpayers have grown numb to the idea of bonus depreciation and won’t feel overwhelmingly compelled to go spend money on capital improvements.)

There’s also some hiring incentives in the plan…

Tax Credits and Career Readiness Efforts to Support Veterans’ Hiring:The President is proposing a Returning Heroes Tax Credit of up to $5,600 for hiring unemployed veterans who have been looking for a job for more than six months, and a Wounded Warriors Tax Credit of up to $9,600 for hiring unemployed workers with service-connected disabilities who have been looking for a job for more than six months, while creating a new task force to maximize career readiness of service members.

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