Small Business Tax

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Restaurant Owners–What Are Your Numbers Really Telling You?

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Successful restaurant owners are focused on providing high quality food at reasonable prices and with very good service.  This is obviously a very important focus for restaurant owners.  Successful restaurant owners also know that there is a numbers side to the business—how profitable is the restaurant?

It is helpful for restaurant owners to know how their financial numbers look compared to their competition.  When restaurant owners compare their numbers to industry norms, interesting questions tend to arise.  They begin to take closer looks at certain aspects of their restaurants to make sure they are operating the restaurants as profitably as possible.

Our firm has access to real-time databases and we were able to gather information on privately held restaurants in Michigan with sales of $1 million and under.

We found the following information (percentages of sales):

Average Cost of Food    42.57%

Average Gross Profit      57.43%

Payroll                              22.22%

Rent                                  5.92%

Advertising                       4.16%

Example: JoJo’s Restaurant has the following Profit & Loss Statement:

Sales                      $1,000,000

Cost of Food               600,000  (60%)

Payroll                        280,000  (28%)

Rent                           100,000  (10%)

Advertising                   50,000  (5%)

There are some things to note:

JoJo’s cost of food is slightly higher than the average.

This can be caused by:

  • Underpricing the competition
  • Paying higher food costs than the competition
  • Buying higher qualify food than the competition
  • Inventory walking out the back door
  • High inventory waste or spoilage
  • Over-portioning
  • Inventory being eaten by the owners/employees and it’s still being counted as food cost expense

JoJo’s cost of labor is higher than the competition

This can be caused by:

  • Scheduling too many employees during shifts
  • Paying employees a higher wage/salary
  • Employees are moving slowly
  • Having too few employees and paying some employees overtime
  • Employees clock in early and clock out late

Going through the numbers on a regular basis may not be the most interesting thing to do, but it will reveal things about your restaurant that could surprise you.

Learn More About Restaurant Accounting and Tax Services We Provide

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Qualified Small Employer HRA Avoids $100 per Day Penalty

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Background

Over the past few years, there has been a $100 per day per employee penalty for employers who provided certain Health Reimbursement Accounts (HRAs) and/or Employer Payment Plans.

Under an HRA, an employer reimburses employees for the medical expenses up to a certain limit.  The reimbursement is deductible by the employer and tax-free to the employee.

Under an Employer Payment Plan, the employer either reimburses employees for the cost of health insurance premiums or directly pays the insurance company for the employees’ health insurance coverage.  Again, the payment is deductible by the employer and tax-free to the employee.

Under the market reform provisions of Obamacare, these plans became disfavored and subjected the employer to a $100 per day per employee (i.e., $36,500 per employee per year) penalty.  The primary reason for the penalty is because the market reform provisions eliminated any annual or lifetime cap on benefits.  HRAs are generally subject to an annual cap and Employer Payment Plans are deemed to be capped at the cost of the employee’s premium that is being paid.

Qualified HRAs No Longer Subject to $100 per Day per Employee Penalty

Beginning in 2017, qualified HRAs will be exempt from the $100 penalty.  Employer Payment Plans remain subject to the penalty.

For 2017 and later, eligible employers that do not offer group health insurance coverage to any employees can offer a Qualified Small Employer HRA (QSEHRA).  Eligible employers are employers that are not applicable large employers under Obamacare (applicable large employers have 50 or more employees).

The employer must offer a QSEHRA to each eligible employee.  An eligible employee is defined broadly as any employee; however, the employer can elect to exclude the following:

  • Employees who have not completed 90 days of service
  • Employees under age 25
  • Part-time or seasonal employees
  • Employees covered by a collective bargaining agreement covering accident and health benefits
  • Nonresident alien employees with no U.S. source income

A QSEHRA must be provided on the same terms to all eligible employees and funded entirely by the employer.  Payments and reimbursements are limited to $4,950 per year ($10,000 for family coverage) and are prorated if the employee is not covered for the whole year.  For example, if a single person starts employment on July 1, then the limit is reduced by 50%–$2,475 ($4,950 times 50%).  These amounts will be adjusted for inflation.

Payments/Reimbursements are Taxable If Employee Does Not Have Minimum Essential Coverage

Unlike a regular HRA, premiums for individual health insurance policies, as well as other medical expenses such as deductibles and copays, can be paid or reimbursed by a QSEHRA.  However, any payments or reimbursements from a QSEHRA for medical care (including insurance premiums) that are provided when an individual does not have minimum essential coverage are included in the employee’s income.  Generally, an individual health insurance policy qualifies as minimum essential coverage, but the employer must verify that the employee has minimum essential coverage.  Payments under a QSEHRA will affect the employee’s amount and qualification for the premium tax credit.

Employer Must Provide Notice to Employees

An employer funding a QSEHRA must provide written notice to each eligible employee no later than 90 days before the beginning of the year (or the date the employee first becomes eligible to participate).  The notice must state the amount that will be available for reimbursement or payment for the year.  Additionally, the notice must remind the employee that any benefits available under a QSEHRA must be disclosed to the health insurance marketplace if the employee applies for coverage through the marketplace and requests advance payment of the premium tax credit.  The notice must also include a statement that if the employee does not have minimum essential coverage for any month, he may be subject to a penalty for the month and that payments and reimbursements under the QSEHRA may be included in income.

Employers that do not provide proper notice to employees are subject to a penalty of $50 per employee.  The total penalty that can be assessed for one year cannot exceed $2,500.

Finally, amounts paid under a QSEHRA must be reported on the employee’s W2 (even though the payments are generally tax-free).

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Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

Hired Your First Employee? Your Tax Obligations

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It’s a major milestone for you, but it comes with a lot of paperwork that must be done correctly.

Bringing a new employee into your business is a reason to celebrate. You’ve done well enough as a sole proprietor that you can’t handle the workload by yourself anymore.

Onboarding your first worker, though, comes with a great deal of extra effort for you at first. You have to show him or her the ropes so you can offload some of the extra weight you’ve been carrying.

But first things first. Before your employee even shows up for the first day of work, you should have assembled all the paperwork required to keep you compliant with the IRS and other federal and state agencies.

A New Number

As a one-person company, you’ve been using your Social Security number as your tax ID. You’re an employer now, so you’ll need an Employer Identification Number (EIN). You can apply for one here.

The IRS’s EIN Assistant walks you through the process of applying for an Employer Identification Number (EIN).

Once you’ve completed the steps in the IRS’s EIN Assistant, you’ll receive your EIN right away, and can start using it to open a business bank account, apply for a business license, etc.

You’ll also need an EIN before you start paying your employee. It’s required on the Form W-4. If you’ve ever worked for a business yourself, you’ve probably filled out this form. As an employer now, you should provide one to your new hire on the first day. When it’s completed, it will help you determine how much federal income tax to withhold every payday. If you’re not bringing in a full-time employee but, rather, an independent contractor, you won’t be responsible for withholding and paying income taxes for that individual. You’ll need to supply him or her with a Form W-9.

Note: Payroll processing is probably the most complex element of small business accounting. If you don’t have any experience with it, you’ll probably want to use an online payroll application. After you’re set up on one of these websites, you enter the hours worked every pay period. The site calculates tax withholding and payroll taxes due, then prints or direct deposits paychecks. Let us know if you want some guidance on this.

Don’t forget about state taxes if your state requires them, and any local obligations. The IRS maintains a page with links to each state’s website. You can get information about doing business in your geographical area, which includes taxation requirements.

More Forms

You also have to be in contact with your state to report a new hire (same goes if you ever re-hire someone). The Small Business Administration (SBA) can be helpful here, as it is in many other aspects of managing a small business. The organization maintains a list of links to state entities here.

All employees are required to fill out a Form I-9 on the first day of a new job. New employees must also prove that they’re legally eligible to work in the United States. To do this, they complete a Form I-9 from the Department of Homeland Security. As their employer, you’re charged with verifying that the information provided is accurate by looking at one or a combination of documents (U.S. Passport, driver’s license and birth certificate, etc.). By signing this form, you’re stating that you’ve done that.

You can also use the U.S. government’s E-Verify online tool to confirm eligibility.

A Helping Hand

The Department of Labor has a great website for new employers. The FirstStep Employment Law Advisor helps employers understand what DOL federal employment laws apply to them and what recordkeeping they they’re required to do. Please consider us a resource, too, as you take on a new employee. Preparing for a complex new set of tax obligations will be a challenge. We’d like to see you get everything right from the start.

How to Deduct 100% of Meal Expenses

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Taxpayers are normally allowed to deduct 50% of their meal and entertainment expenses.  The reason is because the IRS believes that taxpayers inflate the amount of meal and entertainment expenses they claim as deductions, and therefore the IRS automatically throws out 50% of these expenses.  The IRS has some trust issues.

Fortunately, there are exceptions to the 50% rule.  If any of these exceptions are met, taxpayers may deduct 100% of their meal expenses.

The exceptions are:

De Minimis Meals

These are usually small, occasional meals that an employer provides to employees (e.g., coffee and occasional bagels).  The IRS requires that accounting for these food items is unreasonable or administratively impracticable.

Recreational or Social Meals

These include expenses related to recreational, social, or similar activities incurred primarily for the benefit of employees (e.g., company picnics, holiday parties).  If these events are only held for highly compensated employees, they will not qualify under this exception.  This exception only applies to employees; it does not apply to independent contractors.

Meals for the General Public

Examples of this exception include free hotdogs and popcorn at a grocery store.  The exception also applies to food provided to potential customers as part of a sales presentation (e.g., a free meal provided by a real estate broker to potential real estate investors).  This exception does not apply if the meals are provided on an invitation-basis only and not otherwise available to the general public.

Department of Transportation Meals

Individuals whose work is subject to the hours of service limitations of the Department of Transportation (e.g., interstate truckers, certain railroad employees) can deduct 80% of their food expenses.

Meals Treated as Compensation to Employees

Meals that are included in an employee’s W2 as wages are not subject to the 50% limitation by the employer.  The employer will claim a 100% deduction for the meal expenses as a payroll expense.  However, if the employee tries to deduct the meal expenses, she will be subject to the 50% limitation.

Meals Reimbursed under an Accountable Plan

When an employee or independent contract is reimbursed for meal expenses by a business owner under an accountable plan, the employee or independent contractor will not include any of the meal reimbursement as income (i.e., 100% of the meal reimbursement is excluded from income).  However, the employer will be limited to a 50% deduction for the meal expenses that it reimbursed.

Meals for Nonemployees who Receive a Form 1099

When a business provides a meal to a nonemployee and issues the nonemployee a Form 1099 for the value of the meal, the business can obtain a 100% deduction for the meal cost.  An example would include a business that holds a raffle and the winner receives a free dinner for himself and his family valued at $500.  If the business issues a Form 1099 reporting the $500 as income to the winner, the business can obtain a $500 deduction.

Meals during a Move that are Reimbursed by the Employer

An employer may obtain a 100% deduction for meal expenses she reimburses an employee during a move required for employment or business reasons.

Meals Sold by a Business

This exception is a technical exception to prevent businesses such as restaurants and daycare centers that sell food from being disallowed a valid deduction for cost of goods sold.

Meal expenses may be substantial.  If a business incurs any of the above expenses, they should be accounted for separately from meals that will be subject to the 50% disallowance rule.

 If you need help with small business taxes,

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Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

Pros and Cons of a Paperless Business

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Has your bank, broker, credit card company, or maybe even your phone or utility company sent you information about getting your statements online instead of through the mail? Going paperless has its advantages — not the least of which may be seeing your countertop for the first time in months. But it also has its drawbacks. Before you completely eliminate paper statements, look at both the pros and cons.

The Benefits

When customers manage their accounts online, companies can save substantial amounts of money in printing and mailing costs. That’s why many companies offer incentives, such as reducing interest rates or fees or making donations to environmental groups, to encourage customers to go paperless. And fewer mailings mean there’s less risk that someone could steal personal documents from your mailbox and use the information fraudulently.

The Drawbacks

While companies claim financial information sent electronically is more secure, not everyone agrees. When they happen, security breaches can put your personal information at risk. And it may be easier to miss the e-mail or forget about reviewing statements or paying bills when you don’t have them right in front of you.

Another potential drawback: Retrieving statements that are more than a few months old may be difficult, although many companies say they’re working on archiving several years’ worth of documents.

Going paperless may be to your advantage, but weigh everything carefully before you sign up.

Take charge of your financial future. Give us a call, today, to find out how we can assist you and your business.

What Are Your Financial Ratios Telling You?

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hulksterHow’s business? Most business owners can answer that question without consulting a financial statement. But what if someone asks about “return on assets” or “average collection period”? To answer those questions, you need the help of financial ratios.

Inside the Numbers

A financial ratio is the numerical relationship between certain figures on your income statement and balance sheet. “Profit margin” is probably the most familiar financial ratio. Expressed as a percentage, profit margin is calculated by dividing net income by sales.

There are many useful ratios. They can provide information about liquidity, turnover, and debt, as well as profit. Digging “inside” the numbers can reveal such things as how quickly receivables are collected, how frequently inventory is turning over, and whether you’re in a good position to repay your financial obligations on time.

Putting Ratios to Work

While the numbers themselves are interesting, the real value comes from analyzing financial ratios. You can use ratios to spot trends, both good and bad, by comparing your company’s current situation with the past. And ratio analysis can help you with forecasting and goal setting.

Ratios can also be used to compare your company’s financial performance with that of other companies and with the industry as a whole. Another important use: Bankers frequently review a company’s financial ratios as part of the loan application process.

Some Common Ratios

The following key financial ratios are essential business management tools.

Current Ratio Current assets ÷

current liabilities

Does the company have sufficient resources to meet current liabilities when they come due?
Debt-to-Equity Total liabilities ÷

stockholders’ equity

How heavily is the company leveraged?
Gross Profit Margin Gross profit ÷ sales How much profit is available to cover operating expenses?
Net Profit Margin Net income ÷ sales How much profit is earned on each sales dollar after all expenses are accounted for?

For more tips on how to keep business best practices front and center for your company, give us a call today.

The Most Beautiful Summary of Trump’s Business Tax Cut. Period.

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Republican U.S. presidential candidate Donald Trump speaks during a campaign rally at the Treasure Island Hotel & Casino in Las Vegas, Nevada June 18, 2016. REUTERS/David Becker - RTX2GYKG

With some very broad brushstrokes, the Trump administration laid out its tax plan.  It is still very early in the process, and skepticism about how much of the plan will survive negotiations should be maintained.  This article will discuss a substantial reduction in taxes for business owners.

Very Major Overview

During the campaign, Donald Trump proposed cutting the maximum business tax rate to 15%.  There was uncertainty as to whether this 15% maximum tax rate would also apply to pass through entities such as LLCs and S corporations.  The uncertainty has been resolved as it is now clear that the 15% maximum tax rate applies to pass through entities and to sole proprietorships.

Tremendous and Beautiful Tax Cut

Example:  John owns an S corporation and it has profit of $200,000.  Assume John has other income and he is in the 35% tax bracket.  Under current law, his tax liability on the $200,000 S corporation profit would be $70,000 (35% times $200,000).  Under the Trump proposal, John’s maximum tax rate on the S corporation profit would be 15%, so his tax under the Trump plan would be $30,000. 

Example:  Same facts as above except John is a member of an LLC and his share of the LLC profit is $200,000.  Again, his maximum tax rate under the Trump plan is 15%, so his tax on the share of the LLC profit would be $30,000.

You May Even Get Tired of Paying Lower Taxes and You’ll Say “Please, Please, It’s Too Much.  We Can’t Take It Anymore.”   

There has been an incentive for S corporation owners to minimize officer compensation because S corporation owners only incur payroll taxes on their payroll, not on the remaining business profit.  The Trump plan would further encourage S corporation owners to minimize officer compensation because officer compensation would remain subject to higher income tax rates, while S corporation profit would be subject to the 15% maximum rate.

Example:  Jennifer has an S corporation with $100,000 profit before officer compensation.  Assume she has other income and is in the 35% tax bracket.  She has officer compensation of $60,000 and S corporation profit of $40,000 after officer compensation. 

Under current law, her tax would be:

Tax on Officer Compensation:       $21,000 (35% times $60,000)

Tax on S corporation profit:         $14,000 (35% times $40,000)

Total Tax                                             $35,000

Under the Trump plan, her tax would be:

Tax on Officer Compensation:    $21,000 (35% times $60,000)

Tax on S corporation profit:         $6,000 (15% times $40,000)

Total Tax                                             $27,000

 Joan prefers paying tax at the 15% tax rate so she reduces her payroll to $40,000 (leaving S corporation profit of $60,000). 

Under Trump plan with officer compensation reduction, her tax would be:

Tax on Officer Compensation      $14,000 (35% times $40,000)

Tax on S corporation profit:         $9,000 (15% times $60,000)

Total Tax                                             $23,000

Joan saves $4,000 by reducing her higher-taxed payroll and increasing her S corporation profit that is taxed at the 15% maximum rate.

There is already incentive for S corporation owners to minimize officer compensation because officer compensation is subject to payroll taxes (generally 15.3% FICA plus unemployment taxes) while S corporation profit is not subject to payroll taxes.  The Trump plan increases the incentive to minimize officer compensation.

If you need help with small business taxes,

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 Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

Realistic Like-Kind Exchange Scenarios

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MyRealty.am-2

A like-kind exchange allows a property owner to exchange properties with another person and defer paying tax on the exchange.  A prior post explained the basic mechanics of like-kind exchanges.  This post will focus on a couple more complicated, but also more realistic, situations.  These situations occur:

  • when one of the parties wants to receive cash instead of replacement property.  This situation usually involves a third or fourth person to qualify the transaction as a like-kind exchange.
  • when the exchanges do not occur simultaneously

Three Party Exchanges

Marty owns Property M.  Doc owns Property D.  Marty wants to enter into a like-kind exchange with Doc to acquire Property D.  Doc wants to sell Property D for cash.  After some searching, Marty finds Biff who wants to buy Property M for cash.

The three parties enter into a three party exchange as follows:

  1. Biff buys Property D from Doc for cash
  2. Biff exchanges Property D for Marty’s Property M in a like-kind exchange.

Everyone is happy—Doc gets the cash he wants; Marty exchanged Property M for Property D in a like-kind exchange; Biff paid cash and ultimately ended up owning Property M.

Four Party Exchanges

Assume the same facts as above, except that Biff does not want to acquire Property D because of environmental liability concerns.  A like-kind exchange can be accomplished through a four party exchange involving a qualified intermediary.

A qualified intermediary is a person who is not the taxpayer or a disqualified person and who expressly agrees under the terms of an exchange agreement to acquire the taxpayer’s relinquished property, transfer the relinquished property to another taxpayer, acquire the replacement property, and transfer the replacement property to the taxpayer.

A disqualified person is either related to the taxpayer or someone that has acted as the taxpayer’s agent, such as an attorney, accountant, real estate agent/broker,  at any time during the prior two years.  However, routine financial services provided to the taxpayer during this time by a financial institution (i.e., a bank), title insurance company, or escrow company are not taken into account—these institutions may serve as qualified intermediaries.

To see this in action, assume four parties enter into the following simultaneous exchanges:

  1. Marty engages Title Company as a qualified intermediary
  2. Title Company borrows money and buys Property D from Doc for cash (Doc receives the cash he wanted)
  3. Title Company exchanges Property D with Marty’s Property M (Marty exchanges Property M for Property D in a like-kind exchange)
  4. Title Company sells Property M to Biff for cash and pays off the loan (Biff pays cash to directly purchase Property M)

When Exchanges Do Not Occur Simultaneously

These exchanges are referred to as deferred exchanges.  These can occur when someone who wants to enter into a like-kind exchange finds a cash buyer for his property but needs additional time to find replacement property.  In these situations, the person will transfer property to the buyer, the buyer will transfer proceeds to an escrow agent, and the escrow agent will purchase replacement property to the seller once replacement property has been identified.  The seller cannot take possession of the cash, otherwise the transaction will fail as a like-kind exchange; that is why the escrow agent takes possession of the cash.

There are two primary requirements in deferred exchanges:

  • Identification Period:  Before this period expires, the taxpayer must identify replacement property to the other party who is obligated to transfer the replacement property to the taxpayer.  The identification period begins on the date the taxpayer transfers the relinquished property and ends 45 days after.  Up to three replacement properties can be identified without regard to the market value of the replacement property.  If more than three replacement properties are identified, the market value of all identified replacement properties cannot exceed 200% of the relinquished property.
  • Exchange Period:  Before this period expires, the taxpayer must receive the replacement property.  The exchange period also begins on the date the taxpayer transfers the relinquished property and ends on the earlier of (1) 180 days after OR (2) the due date (including extensions) of the tax return for the year in which the transfer of the relinquished property occurs.

Example:  Fred wants to exchange Property F in a like-kind exchange.  Barney wants to buy Property F for cash.  Fred enters into a deferred exchange where he transfers the property to Barney and Barney transfers cash to an escrow agent who will acquire the replacement property when it’s identified by Fred.  Fred has 45 days to identify replacement property to the escrow agent beginning the date he transfers the property to Barney.  Fred has 180 days to receive the replacement property beginning on the date he transfers the property to Barney. 

Assume Fred transfers the property to Barney in December.  Fred believes the exchange period will end in 180 days during June.  He files his tax return by April 15 and does not file an extension.  Fred closes on the replacement property in May, within the 180 days.  However, Fred failed the exchange period requirement because his return was not extended.  Remember—the exchange period ends on the earlier of (1) 180 days after the transfer or (2) the due date (including extensions) of the tax return.  Here, the April 15 unextended due date marked the end of the exchange period because it is earlier than 180 days after the transfer.  The exchange does not qualify as a like-kind exchange and Fred has a taxable gain based on the difference between the market value of the new property and his cost in the relinquished property. 

If you need help with small business taxes,

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 Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

 

Before You Start Development on that Land Investment…

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sale to s corporationLand prices have been recovering since the Great Recession. People who hold land for investment may be interested in developing then selling the land. If held for more than 12 months, gains from sales of investment real estate are subject to favorable capital gain rates (generally 15%, but up to 23.8% for high income individuals). However, people who do any development of the land generally will not qualify for capital gain treatment; they will be subject to ordinary income rates (up to 43.4%) on their entire gain from the sale of developed land.

Example: Jane owns a parcel of land she bought as an investment 20 years ago. She originally paid $200,000 for the parcel and it is now worth $300,000. Jane has not performed any development activity on the land. If she sells the land, her gain of $100,000 will be subject to the favorable capital gain tax rate of 15%. Her tax on the sale will be $15,000.

Example 2: Same as above, except that Jane spent $20,000 improving and developing the lane. She sells the parcel for $350,000. Her cost basis in the land is the $200,000 purchase price plus the $20,000 she spent on improvements–$220,000. If she sells the land for $350,000 her gain will be $130,000. Since she began developing the land, the gain of $130,000 no longer qualifies for capital gain treatment. The gain will be taxed at ordinary income rates. If Jane is in the 28% tax bracket, the tax on her gain will be $36,400.

Tax Strategy: Sell the Undeveloped Land to Your S Corporation

Through a tax-saving strategy, it is possible to have pre-development gains subject to the capital gain tax rate, and only gains from development will be subject to ordinary income rates. This is done by selling the investment land to an S corporation that the real estate investor owns before performing any development activity.

Example: Carrying on with the same fact scenario as above. Instead of developing the land herself, Jane first sells her investment property that she purchased for $200,000 to her 100% owned S corporation. The purchase price is the $300,000 market value of the land. She recognizes a $100,000 gain that is taxed at the 15% capital gain tax rate. Her tax on the pre-development gain is $15,000.

Her S corporation will now develop the land. The S corporation spends $20,000 to develop the land and the land is now worth $350,000. The S corporation’s cost basis in the land is the $300,000 purchase price plus $20,000 development costs–$320,000. When the S corporation sells the developed land for $350,000, it recognizes a $30,000 gain that is taxed at Joan’s ordinary tax rate of 28%. The tax on the $30,000 gain is $8,400. Her and her S corporation’s total tax is $23,400.

The Tax Savings

If she developed the land herself, her total tax would be $36,400 on $130,000 of total gain. By first selling the land to her S corporation, she is able to preserve capital gain treatment on the pre-development gain ($100,000) and only pays ordinary income tax rates on the gain allocable to development ($30,000). Her total tax with the S corporation strategy is $23,400. She saved $13,000.

Strategy Does NOT Work with an LLC

This strategy will generally only work with an S corporation. It will not work with LLCs because there is a rule denying capital gain treatment when an LLC owner sells property to his LLC and the property is ordinary income property of the LLC. Since the property held by the LLC will be sold at ordinary income rates, the LLC owner’s gain on the sale to the LLC will also be ordinary income.

Make Sure It’s a Bona Fide Sale for Fair Market Value

For this strategy to work, the sale to the S corporation must be a bona fide sale for fair market value. There should be a sales agreement, and if the sale is on an installment agreement, regular payments should be made and interest to the S corporation should be charged.

If you have any questions on how this applies to you, please feel free to give us a call at 248-538-5331.

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Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

IRS Taxes Sweat Equity

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sweat equityWhen a taxpayer forms an LLC and contributes appreciated property to the LLC, the taxpayer generally does not recognize gain on the transfer.   The IRS does not force taxpayers to recognize gain on property contributions to LLCs because taxpayers didn’t sell or exchange the property; they continue to own an interest in the contributed property, albeit through a business entity.  Naturally, there are exceptions to this rule where gain can be recognized such as where debt encumbered property is transferred to the LLC or investments are transferred to an investment LLC.

On the other hand, when a taxpayer performs services (i.e., sweat equity) in exchange for an interest in an LLC, the taxpayer will usually recognize compensation income equal to the fair market value of the LLC interest received.  The IRS treats the transaction as if the taxpayer received cash compensation (which is taxable), and then used the cash to purchase the LLC interest at fair market value.

There are two forms of ownership interests in an LLC—a capital interest and a profits interest.  A capital interest gives the owner a claim to assets when the LLC is dissolved.  A profits interest is defined as an interest other than a capital interest.  Helpful.  Basically, a profits interest does not entitle the owner to assets upon the LLC’s liquidation, but instead entitles the owner to a share of the LLC’s profits (if any).

A taxpayer who performs services in exchange for a capital interest recognizes income in the amount of the fair market value of the capital interest.  However, a taxpayer who performs services in exchange for a profits interest will not recognize income on receipt of the profits interest.  This is because the profits interest holder is not entitled to liquidation proceeds of the LLC, but is instead entitled solely to LLC profits (if any).  Profits interests holders therefore have an speculative value in their interests and will not recognize income upon receipt of the interest, but will instead pay tax on any profits that are allocated to them.

Example 1:  Thelma and Louise form an LLC.  Thelma contributes land that is currently worth $50,000 and was originally purchased for $20,000 for a 50% capital interest.  Louise will perform real estate advisory services for a 50% capital interest.  Since both parties own a 50% capital interest, each would be entitled to 50% of the assets upon liquidation—Thelma and Louise would each own 50% of the land upon liquidation.  Thelma does not recognize income upon her contribution because it is a contribution of property.  Louise will recognize income of $25,000 because she contributed services in exchange for a capital interest.

Example 2:  Same as above except that Louise received a profits interest instead of a capital interest.  If the LLC liquidates, Louise will not share in the liquidation assets.  Instead, Thelma will receive 100% of the land.  Louise will not be taxed on her contribution of services because she received only a profits interest.  However, Louise will recognize income for any profits that are allocated to her in the future.

While a profits interest is generally not subject to tax because of their unascertainable value, there are circumstances where their value is ascertainable.  In these circumstances, the profits interests will be taxable upon receipt.  These circumstances include:

  • the profits interest relates to a substantially certain and predictable stream of income from the partnership assets (such as a net lease);
  • the partner disposes of the profits interest within two years of receipt; or
  • the profits interest is a limited partner interest in a publicly traded partnership.

While a capital interest received in exchange for services usually is taxable, it is not immediately taxable if the capital interest is subject to a substantial risk of forfeiture.  Property is subject to a substantial risk of forfeiture if the rights to its full enjoyment are conditioned (directly or indirectly) upon either of the following:

  • Future Performance of Substantial Services. A requirement of future performance (or refraining from performance) of substantial services by the recipient is a substantial risk of forfeiture. The regularity of the performance of services and the time spent in performing them tend to indicate whether the required services are substantial.
  • Occurrence of a Condition Related to a Purpose of the Transfer. For example, a requirement that the recipient complete an advanced educational degree, obtain a professional designation, or attain a certain job position within the company to receive unrestricted access to the property would likely be a substantial risk of forfeiture, which would exist until that condition was met.

When the capital interest is subject to a substantial risk of forfeiture, the service provider will not recognize gain until the substantial risk of forfeiture is eliminated.

Example:  Same as Example 1 above except that Louise’s capital interest will be forfeited if Louise does not provide 5 years of services to the LLC.  Since Louise’s capital interest is subject to a substantial risk of forfeiture, it is not taxable in the year of receipt.  Instead, it will be taxable after Louise completes 5 years of service and her capital interest is fully vested.

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 Buzzkill Disclaimer:  This post contains general tax information that may or may not apply in your specific tax situation. Please consult a tax professional before relying on any information contained in this post.

 

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