Vito Curcuru

IRS Is On Lookout for Falsely Padded Deductions

February 13, 2016 by Sal Curcuru

Each year the IRS publishes a list of its Dirty Dozen tax scams list. The list usually includes scams such as abusive trusts, improperly inflating refundable credits such as the earned income tax credit, and hiding income or assets offshore.

A new entrant for 2016 is falsely padding deductions on tax returns. Recently, the IRS warned taxpayers to avoid the temptation of falsely inflating deductions or expenses on their tax returns to under pay what they owe or to increase their refunds.

The audit rate for personal tax returns is under 1% so many people feel they can inflate their deductions and there is little chance the IRS will find out. However, if the IRS does audit a return with inflated deductions, the taxpayer is in for a nightmare experience.

Civil Penalties

Significant civil penalties may apply for taxpayers who file incorrect tax returns, including:
• 20% of the disallowed for filing an erroneous claim for refund or credit
• $5,000 if the IRS determines a taxpayer has filed a “frivolous tax return.” A frivolous tax return is one that does not include enough information to figure the correct tax or that contains information clearly showing that the tax reported is substantially incorrect
• In addition to the full amount of tax owed, a taxpayer could be assessed a penalty of 75% of the amount owed if the underpayment on the return resulted from tax fraud

Criminal Penalties

Criminal penalties may also be imposed for actions such as:
• Tax evasion
• Willful failure to file a return, supply information, or pay any tax due
• Fraud and false statements
• Preparing and filing a fraudulent tax return
• Committing identity theft

The actual punishment for criminal actions include substantial monetary penalties and jail time.

Most tax return preparers will prepare returns honestly. However a cottage industry for tax scam artists exists. These preparers manufacture tax returns that grossly overstate deductions and create tax returns that qualify for substantial refundable credits such as the earned income tax credit.

The IRS published guidance to taxpayers on properly selecting a tax return preparer.

To see how this applies to you, give us a call at 248-538-5331.

How to Deduct Travel Expenses

August 9, 2012 by Sal Curcuru

Travel expenses include transportation, lodging, meals, and related incidentals. Business travel expenses are fully deductible (except for meal expenses, which are 50% deductible). The travel expenses must be properly substantiated.

There are different rules for domestic and foreign travel. There are also different rules depending on whether the travel is exclusively for business, primarily for business, or primarily for personal reasons.

Domestic Travel

Exclusively for Business: If a taxpayer’s trip is solely for business reasons, all reasonable and necessary travel expenses (travel fares, lodging, transportation, meals, and incidentals) are fully deductible (except that meals are 50% deductible).

Primarily for Business: the deductible travel expenses include the costs of getting to and from the business destination and any business related expenses while at the business destination. Personal expenses incurred while at the destination are not deductible.

Primarily for Personal Reasons: the costs of getting to and from the destination are not deductible because they are considered personal expenses. However, any business costs the taxpayer pays at the destination will be deductible.

Whether the trip is primarily for business or personal reasons depends on the facts and circumstances of the travel. The IRS tends to focus on the amount of time spent on business and personal activities. The primary purpose of the trip is determined based on which purpose (business or personal) exceeds 50% of the time spent on the trip.

Example 1: Joan has a business in Detroit. She travels to L.A. for meetings that span four days. Joan arrives in L.A., spends four days in meetings, and immediately returns home to Detroit. She spent $500 in airfare, $800 in lodging, and $500 in food. Since, Joan’s trip is exclusively for business, Joan can claim travel expenses of $1,550 ($500 airfare, $800 lodging, and 50% of $500 food).

Example 2: Same facts as above except Joan spends three days site seeing throughout California. She spends $600 in lodging, $250 in meals, and $150 in auto expenses while site seeing. Since the primary purpose of her trip was business (based on 4 days of business versus 3 days personal), she may still deduct the $1,550 travel expenses from Example 1. However, the expenses for lodging ($600), meals ($250), and auto expenses ($150) she spent while site seeing are nondeductible personal expenses.

Example: Same facts as example 2 except Joan spends 6 days site seeing. Since the purpose of her trip is now considered personal (based on 4 days of business versus 6 days personal), the costs of getting to and from the destination are nondeductible. Thus, the $500 airfare to L.A. is no longer deductible. Her site seeing expenses are also not deductible. However, Joan may still deduct her business expenses while in L.A. ($800 in lodging and 50% of her $500 food expenses from example 1).

Foreign Travel

Majority of Time on Business: ALL travel expenses are allocated between deductible business expenses and nondeductible personal expenses. The expenses should be allocated to deductible and nondeductible categories using a day-to-day allocation method based on business days and personal days. There are two things to take note of:

This differs from the domestic travel rules where the costs of getting to and from and destination are fully deductible if the trip is primarily for business. For foreign travel, the costs of getting to and from the destination must be allocated if the trip is not exclusively for business, even though the majority of time is spent on business
ALL travel expenses (not just getting to and from the destination) must be allocated

Majority of Time for Personal Reasons: ALL travel expenses (costs of getting to and from the destination, lodging, meals, etc.) are not deductible because they are considered personal expenses. However, any expenses that the taxpayer pays at the destination will be deductible if they are directly related to business.

While the foreign travel rules require an allocation of expenses if business travel is combined with personal travel, there is a safe harbor. If the primary purpose of the trip was business AND any of the following exceptions is met, allocation of travel expenses is not required–the trip is treated as being exclusively for business (and 100% of the travel costs are deductible):

No more than seven consecutive days are spent outside the U.S.
Less than 25% of the total time on the trip is devoted to nonbusiness activities
The taxpayer has no substantial control over arranging the trip—a self employed taxpayer is generally considered to have substantial control over his travel and won’t qualify under this exception. Employees may qualify under this exception.
The taxpayer establishes through a facts and circumstances analysis that personal vacation was not a major consideration.

This is just an overview of the travel deduction rules. They get more complicated. If you have any questions on how this applies to you, just give us a call.

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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.

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

The Right Way and The Wrong Way to Reimburse Employees

August 6, 2012 by Sal Curcuru

When a business reimburses an employee for incurring business expenses, there is a right way and a wrong way to do so. The right way is through what is known as an accountable plan. The wrong way is through…wait for it…a nonaccountable plan.

The Wrong Way

If the employer has a nonaccountable plan, when the employer reimburses an employee for business expenses the employer takes a deduction in the amount of the reimbursements. The deduction is treated as a compensation deduction and the reimbursement is included in the employee’s income. Payroll taxes on this amount are due. If the employee has substantiation for the expenses, she can deduct them as an itemized deduction on her personal tax return. These expenses are reported on Form 2106, and are subject to the 2% of AGI floor. Additionally, if the employee had meal expenses, she can only deduct 50% of them.

Example: JoJo Corp employs John and JoJo Corp does not have an accountable plan. John incurs business expenses of $1,000 for travel and supplies and $500 for meals. JoJo Corp reimburses $1,500 of John’s expenses. JoJo Corp takes a $1,500 deduction (JoJo Corp’s deduction for meals is not reduced by 50%). JoJo Corp pays FICA, FUTA, and state unemployment tax on this $1,500 compensation deduction. John’s W-2 is increased by the $1,500 reimbursement. John will also pay his share of FICA tax. John can take an itemized deduction for $1,000 of the travel and supplies expenses and an itemized deduction of $250 for the deductible 50% of meal expenses. However, these expenses are reduced by 2% of Jon’s AGI. If John has AGI of $100,000, the $1,250 deduction is reduced by $2,000 (2% of $100,000 AGI). Since the deductions are less than 2% of AGI, John cannot take a deduction.

The Right Way

If the employer has an accountable plan, expense reimbursements are deductible by the employer as business expenses rather than as compensation. The 50% meal limitation now applies to the employer. The reimbursements are excluded from the employee’s income and are exempt from payroll tax.

Example: Same facts as above, except JoJo Corp has an accountable plan. JoJo Corp will have a business deduction of $1,250 ($1,000 for travel and supplies plus 50% of the $500 meal expense). John will not have to report the amount of the reimbursement as income. Neither JoJo Corp nor John will owe any payroll taxes on the reimbursement. Since JoJo Corp takes the deduction for the business expenses, the 2% of AGI floor is irrelevant.

There are three requirements of an accountable plan:

PROVING A BUSINESS CONNECTION

The plan pays reimbursement and allowances only for otherwise deductible business expenses (such as travel, lodging, or meal expenses)

MAINTAINING ADEQUATE SUBSTANTIATION

The employee accounts for the business expenses by submitting to the company a detailed written record substantiating the expense’s time, place, amount, and business purpose.

REQUIRING EMPLOYEES TO RETURN EXCESS ADVANCES

This mainly applies when an employer advances funds to the employee to pay business expenses. Advances in excess of business expenses must be returned to the employer.

A few years back, the IRS had an audit initiative focused on executive compensation, fringe benefits, and employee reimbursement plans. IRS found a great deal of noncompliance and, in future audits will spend more time auditing these items. It is very important to properly comply with the three requirements of accountable plans if you want to take advantage of the benefits they offer.

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Getting Schooled—Providing Employee Educational Assistance

August 3, 2012 by Sal Curcuru

There are two primary methods for business owners to provide tax-free educational assistance to themselves and to their employees. The methods are:

Working Condition Fringe Benefit
Section 127 Plan

Working Condition Fringe Benefit

Educational expenses paid under this method are deductible by the employer and are tax free to the employee. The educational expenses are also excluded from payroll taxes such as FICA and FUTA. There is no limit on the amount of educational expenses that qualify; however, the educational expenses must be ordinary and necessary business expenses.

To qualify as a working condition fringe benefit, the educational program must relate to maintaining or improving the skills required by the employee’s job. The education itself must NOT lead to the student qualifying for a new trade or business. Education required to meet the minimum skill level required for the job does NOT qualify. Job related education may be furnished directly by the employer or through a third party such as an educational institution or seminar organization. The educational expenses of the business owner also qualify.

Example: ABC Corp employees Joan as an engineer. Joan is climbing the corporate ladder and believes an MBA will help her develop management skills to help her advance her career. ABC Corp pays for her MBA. Since the MBA will improve her skills, the educational expenses paid by ABC Corp will not be taxable to her. In addition, ABC Corp can take a deduction for the educational expenses.

Example 2: John is a law student working in a law firm as a legal assistant. The law firm offers to pay John’s law school tuition. These expenses will NOT qualify as a working condition fringe benefit because the law degree is required for John to meet the minimum requirements for his job as an attorney. However, the tuition may qualify for exclusion as a Section 127 plan.

Section 127 Plan

A Section 127 plan is a qualified education assistance program. The first $5,250 of qualified educational assistance provided during the year is exempt from tax, including FICA and FUTA.

To qualify under Section 127, a plan is required. The plan must:

Be in writing
Provide educational assistance exclusively to employees (possibly including owners)
Not provide employees with a choice of education assistance and taxable compensation
Provide reasonable notice of the availability and terms of the program
Not discriminate in favor of highly compensated employees or their dependents
Not pay more than 5% of the benefits to more-than-5% owners or their spouses or dependents

Children of owners can participate in a Section 127 plan if they are at least 21 years of age, are legitimate employees, are not more than 5% owners, and are not dependents of the owner. Children under age 21 can still participate in Section 127 plans, but their educational expenses are subject to the nondiscrimination rules (which could disqualify the plan).

Example: ABC Corp is owned by John. ABC Corp has three employees—Adam (John’s son) and two unrelated employees. All employees are 22 years old. John does not claim Adam as a dependent. ABC Corp pays $5,000 towards each employee’s tuition. Since Adam is at least 21 years old, is a legitimate employee, is not a dependent, and is not a more-than-5% owner, the tuition paid on his behalf is not counted as being for a highly compensated employee or a more than 5% owner. All employees may exclude the $5,000 tuition payment from their incomes.

Example 2: Same facts as above except that Adam (John’s son) is 20 years old. Since Adam is under age 21, he is attributed ownership from his father (i.e., Adam is considered a 100% owner). Since 33% of the benefits ($5,000 tuition for Adam divided by $15,000 total tuition paid) are paid for a more-than-5% owner, EACH employee must report the $5,000 tuition payment as income.

Key Difference between a Working Condition Fringe Benefit and Section 127 Plans:

A $5,250 cap applies to Section 127 Plans, but not working condition fringe benefits
- If over $5,250 is spent on educational expenses under a Section 127 plan, the excess may qualify as a working condition fringe benefit
The cost of travel, meals, and lodging may qualify as a working condition fringe benefit but not under a Section 127 plan
The working condition fringe benefit is not subject to nondiscrimination rules
The limitation on expenses that qualify a student for a new job or to meet minimum eligibility requirements will not qualify as a working condition fringe benefit, but may qualify under a Section 127 plan.

These rules are fairly complex. If you need help navigating through these rules, give us a call and we’ll be happy to help.

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IRS Provides Relief for Credit Card Sales Reported on 1099-K

July 31, 2012 by Sal Curcuru

Beginning in 2011, credit card companies were required to report business’ credit card sales to the IRS via Form 1099-K. This form reported a business’ total credit card sales for the year, and the form broke that sales figure down into monthly totals.

A substantial problem with this form was that the credit card sales reported on the 1099-K included sales tax and employee tips.

Example: JoJo’s Restaurant has credit card sales (excluding sales tax) of $600,000 for 2011. At the end of the year, JoJo’s Restaurant received Form 1099-K showing credit card sales of $731,400. The reason the sales on the 1099-K is much larger than the actual credit card sales is because it includes sales tax of $36,000 plus tips of $95,400 (assuming a 15% tip rate).

Since the sales reported on Form 1099-K will almost certainly exceed actual sales, businesses were required to reconcile the sales reported on Form 1099-K with their actual sales. The above example was a fairly simple one—imagine if those sales included carry-out sales on which tips are not paid. A point of sale system should be able to capture this information, but for restaurants using cash registers, it will be very, very difficult to gather this information.

Recognizing the hardship this would cause on businesses (plus the hardship on the IRS to actually audit this information), the IRS waived the reconciliation requirement for 2011 tax returns. Based on a recent letter from the IRS deputy commissioner for services and enforcement, Steven Miller (not the singer), to the National Federation of Independent Businesses, the IRS is extending indefinitely the waiver of the reconciliation requirement. Mr. Miller stated, “There will be no reconciliation on the 2012 form, nor do we intend to require reconciliation in future years. (emphasis added)”

Good news! However, credit card companies will continue to issue Form 1099-K. If the sales amount on these forms differ substantially from sales reported on tax returns, you may still want to conduct an informal reconciliation (not included on any tax filings) in case of an audit.

Special Tax Credit for Restaurants

July 27, 2012 by Sal Curcuru

There is a tax credit available to restaurants that have tipped employees. The credit is based on the FICA taxes paid by the restaurant on reported tips. Although this credit has been available to restaurants for years, many tax professionals fail to inform their clients that the credit is available. If you’re a restaurant owner, keep reading.

Background

Restaurants must pay FICA taxes on any tips reported by tipped employees. This requirement has been criticized by the restaurant industry since 1987 because reported tips in excess of the minimum wage are not counted as wages under the Fair Labor Standards Act (FLSA). Since tips in excess of minimum wage are not counted as wages under the FLSA, it is argued that it is not appropriate to require restaurants to pay FICA taxes on these tips.

As a result of lobbying by the restaurant industry, Congress created a tax credit in 1993 to offset some of the FICA taxes paid by restaurants on excess tips (tips that get the employee over minimum wage). The credit is named the Credit for Portion of Employer Social Security Paid with Respect to Employee Cash Tips. They tried, but couldn’t come up with a longer name.

How it Works

The credit is calculated as 7.65% of tips in excess of the federal minimum wage. For purposes of this tax credit, the federal minimum wage is capped at $5.15, and not at the normal $7.25 federal minimum wage. Michigan’s minimum wage of $7.40 is not relevant to this credit; however, under Michigan law the employee’s base wage plus tips must be at least $7.40.

Example: JoJo’s Restaurant has a tipped employee who earns $2.65 per hour. The employee worked 1,500 hours during 2012 and had tips of $8,000.

The tip tax credit is calculated as follows:

Hourly Tip Rate: $5.33 ($8,000 tips divided by 1,500 hours)

Tips Deemed Wages: $2.50 ($5.15 federal minimum wage less $2.65 wage)

Excess Tips per Hour: $2.83 ($5.33 total tips less $2.50 tips treated as wages)

Total Excess Tips: $4,245 ($2.83 excess tips per hour times 1,500 hours worked)

Tip Tax Credit $325 ($4,245 times 7.65% FICA rate)

The tip tax credit for this single employee is $325.

The tip tax credit is calculated for each individual employee. Modern payroll software makes it much easier to determine how much of each employee’s tips are deemed wages and how much are excess tips.

There has been some confusion as to whether restaurant owners could claim the credit on unreported tips discovered during an IRS audit. The answer is yes—restaurant owners can claim the tip tax credit on unreported tips discovered during an audit (good news if you’re looking for a silver lining during an audit.)

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Vito Curcuru

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