self employment tax

Payroll Tax Cut Extended

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Quick Background on Payroll Taxes

The Federal Insurance Contributions Act (FICA) imposes two taxes on employers, employees, and self-employed people.  One tax is the Old Age, Survivors and Disability Insurance (OASDI, commonly known as the Social Security tax).  The other tax is for Hospital Insurance (more commonly known as Medicare A).  The Social Security tax has been 6.2% and the Medicare tax has been 1.45%.  An employee pays the 6.2% Social Security Tax on her first $110,100 of wages (this wage base changes periodically), and pays the 1.45% Medicare Tax on all wages without limit.  The employer must match employees’ Social Security and Medicare Tax contributions.  Therefore, the employee pays a combined Social Security and Medicare tax rate of 7.65% of wages and the employer matches this 7.65% contribution for a combined FICA rate of 15.3%.

Self employed people pay both employer and employee portions of the tax on their self employment income.  The self-employment rate has been 15.3%.  There are two adjustments that self employed people make that are related to self employment tax:

  • The first adjustment is to multiply self-employment income by 0.9235. This adjustment basically allows the employer portion of FICA taxes to be deducted from self employment income.  Notice that the 0.9235 number is equal to 1 – 7.65%.  7.65% representing the employer portion of FICA

Example:  Joan has $100,000 of self employment income from her proprietorship.  She multiplies this income by 0.9235 and the product is $92,350, which is equal to her $100,000 self employment income less the employer portion of 7.65%.  The self employment tax rate of 15.3% is then multiplied by $92,350 to arrive at self employment tax of $14,129.

  • The second adjustment is a deduction equal to one-half of the self employment tax on the self employed person’s tax return.

On Joan’s personal tax return, she would be allowed an above the line deduction of $7,064.50 (one half of the $14,129 self employment tax).

What’s New

During 2011, the employee portion of Social Security was reduced to 4.2% from 6.2%.  The Social Security tax for self-employed individuals was 10.4% (6.2% employer portion plus 4.2% employee portion).  In December 2011, when Congress couldn’t agree on how to fund a full-year extension of the payroll tax cut, it passed the Temporary Payroll Tax Cut Continuation Act of 2011 that provided a two month extension of the 4.2% employee Social Security rate.  On February 17, Congress passed the Middle Class Tax Relief and Job Creation Act of 2012.  This new law extended both the 4.2% Social Security employee portion and the 10.4% Social Security portion of self employment tax until December 31, 2012.

The maximum savings for 2012 will be $2,202 (2% of $110,100) per taxpayer.  If both spouses earn at least as much as the wage base, the maximum savings will be $4,404.

An additional change is made for the above the line deduction for self employment tax.  The deduction is normally one half of the self employment tax to reflect the half that represents the employer portion of the tax.  However, the employee portion of the Social Security tax is 4.2% while the employer portion of the Social Security tax is 6.2%.  Thus, the deduction for Social Security tax is now 59.6% [6.2% employer portion divided by combined employer and employee Social Security tax of 10.4%].  The deduction for the Medicare portion of the self employment tax remains at 50% since the 2% reduction applied only to the Social Security Tax.

Example:  It is now 2012 and Joan still has $100,000 in self employment income.  The first adjustment is still to multiply her $100,000 income by 0.9235.  The product of $92,350 is multiplied by the Social Security portion of self employment tax of 10.4% to arrive at $9,604.40.  The $92,350 is also multiplied by the Medicare portion of self employment tax of 2.9% to arrive at $2,678.15 for a total self employment tax of $12,282.55.  Notice that the self employment tax is less than the first example by $1,846.45.  This difference is due to the 2% reduction in the Social Security portion of self employment tax times the self employment income of $92,350.

To calculate Joan’s above the line deduction:

  • multiply the Social Security portion of self employment tax by 59.6% ($9.604.40 times 59.6% equals $5,724.22)
  • multiply the Medicare portion of self employment tax by 50% ($2,678.15 times 50% equals $1,339.08)
  • Joan’s total above the line deduction for self employment tax is $7,063.30.
Thus, Joan has to cut a check for $12,282.55 to cover self employment tax.  The $7,063.30 above the line deduction for self employment tax is multiplied by her individual tax rate to determine its value.  If Joan is in the 30% bracket, the $7,063.30 deduction will reduce her income taxes by $2,118.99.

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.

Any tax advice contained in the body of this post was not intended or written to be used, and cannot be used, by the recipient for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or applicable state or local tax law provisions. Any information contained in this post does not fall under the guidelines of IRS Circular 230.

 

How LLC Owners Can Avoid Self-Employment Tax

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There is a 15.3% tax on self employment income.  Self employment income is defined as net income from any trade or business, including partnerships.  The IRS treats LLCs as partnerships for tax purposes.

Limited partners are usually not subject to self employment tax because they act merely as investors—they are not involved in the management and daily operations of partnerships.

The issue is whether members of an LLC should be treated as limited partners and should therefore be exempt from self employment tax.

In 1997, the IRS issued proposed regulations that stated that an LLC member is a limited partner (and exempt from self employment tax) unless he:

  • has authority to enter into contracts on behalf of the LLC
  • participates in the LLC’s business for more than 500 hours during the year
  • has personal liability for debts or claims against the LLC by reason of being a member [this is not a problem in Michigan since LLC members have limited liability]

For service partnerships (accounting, legal, architectural, consulting, engineering, etc.), service partners cannot be treated as limited partners unless they only provide de minimis services to the LLC. Naturally de minimis services are not defined.

Based on the first two limitations, most active LLC owners will be subject to self employment tax on their share of the LLC’s profits.  There was such an uproar about this that Congress passed a law blocking the proposed regulations and stating that the IRS could not issue regulations defining limited partner until 1998.  Neither the IRS nor Congress has acted on this issue since.

Under the proposed regulations (which technically are not binding), there are two ways active LLC members can exclude a portion of their profit from self employment tax.

First:  Have More than One Class of Ownership Interest

An LLC can have more than one class of ownership—for example, a general class (management class) and a limited class (investment class).  An owner who owns shares in both classes will only pay self employment tax on the profit allocated to the management class.

There are two requirements:

  • limited members who are not active in the business own a substantial interest in the limited class.  Substantial interest is defined as 20% or more.
  • the active business member’s rights and obligations for his limited class is identical to the rights and obligations of the limited members’ limited class interests

Example:  Evade LLC is offering one membership unit for $1,000 and 99 investment units for $1,000 each.  The one membership unit allows the holder to manage the day to day operations of the LLC.  The investment unit holders do not participate in the management or operations of the LLC.  Sandy buys the 1 management unit and 49 investment units for $50,000.  Other limited members buy the remaining 50 investment units. 

The LLC has profit of $100,000.  Sandy has 50 units out of 100, so her share of the profits is $50,000.  Of this amount, only the $1,000 attributed to her 1% management unit is subject to self employment tax.  The remaining profit of $99,000 is allocated to limited members, including Sandy.

In most circumstances, however, the active LLC member will also receive compensation (guaranteed payments) from the LLC, and will be subject to self employment tax on these payments.

Second:  LLC Members who Participate More than 500 Hours, but Abstain from Entering into Contracts on Behalf of the LLC

The proposed regulations allow an exemption from self employment tax for individuals holding one class of interest if the individual works more than 500 hours in the LLC, but cannot enter into contracts on behalf of the LLC.

This exemption allows LLCs the flexibility to attract investors with management skill and yet shield them from self employment tax.  Note that these LLC members cannot execute contracts on behalf of the LLC.

What’s an LLC Member to Do?  Well, There are Five Options

1. Adopt the Proposed Regulations:  Follow the above rules defining limited partners and try to meet the exemptions from self employment tax.  The benefit of this approach is that following the proposed regulations will shield you from penalty if the IRS challenges your position.  The downside is that it is VERY difficult for active LLC members to avoid self employment tax

2. Adopt the Position that All LLC Members are Limited Partners: Basically, claim that all LLC members are exempt from self employment tax.  Take this position if you want to be audited!

3. Treat a Portion of Profits as Return on Investment and Exempt from Self Employment Tax: Investment gains are not subject to self employment tax because the gains are the result of investment activity, not business activity.  An owner of an LLC can claim that a portion of the profit is merely a return on the capital he invested in the LLC, and is therefore exempt from self employment tax.  This is the position the American Bar Association and American Association of CPAs are recommending Congress to adopt.

4. Adopt the Position that Only Reasonable Compensation is Subject to Self Employment Tax: This position is used by S corporation owners to avoid self employment tax.  Under this position, LLC members receive guaranteed payments for services they provide to the LLC and pay self employment tax on these guaranteed payments.  The LLC members treat the remainder of the LLC profit as being exempt from self employment tax.  This is probably the approach adopted by many LLC owners, however there is no authority for this position.

5. Simply Operate Your Business as an S Corporation: The self employment tax rules for S corporations are more established.  I have a prior blog post explaining them here.  However, the rules for S corporations that provide professional services may be about to change.  More about that in a future post.

BONUS STRATEGYUse an S Corporation to Own LLC Interests

S corporation owners are only subject to self employment tax on their compensation (which must be reasonable).  An S corporation can be used to own an LLC interest.  When the LLC distributes profit to the S corporation, the shareholder is taxed on the income but is not subject to self employment tax.  However, the S corporation should pay a reasonable salary to the shareholder for work performed.  Finally, a business purpose should exist for the S corporation owning the LLC interest (tax savings alone is not a valid business purpose).

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.

Buzzkill Disclaimer: Any tax advice contained in the body of this post was not intended or written to be used, and cannot be used, by the recipient for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or applicable state or local tax law provisions. Any information contained in this post does not fall under the guidelines of IRS Circular 230.

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