Business Pursuits
Business Pursuits
55) Deductions are still available if you conduct your
hobby as a part-time business. The IRS will argue that
you are not trying to make a profit, so the activity
really is a hobby. Then your deductions will be
limited to your income from the activity. But you can
take all the deductions by qualifying for the "safe
harbor" provision. Tax reform made the safe harbor
more difficult to reach. You now have to make a profit
in three out of any five consecutive years. If you
don't meet the standard, you still can take the
deductions by showing that you really want to make a
profit. You do this by conducting the business in a
professional manner. Keep good books and records.
Hire experts and advisors when necessary. Be sure all
your practices conform to generally accepted industry
standards. Take courses or some other form of
instruction to improve your skills in the field. You
also must devote enough time and skill to the activity
on a regular basis to indicate that you are serious
about it. If you're an 80-hour-a-week professional,
you probably cannot deduct losses from a sideline
business. An activity can be considered for profit if
you don't expect to generate much current income but
believe that assets used in the activity will
appreciate and produce significant capital gains in the
long term. By following these guidelines you can
deduct the costs as business expenses even if the
activity never turns a profit.
56) Don't improve rental properties, repair them. An
improvement to a property is considered a capital
expenditure. You cannot deduct the expense, but have
to add it to the property's basis and depreciate it. A
repair expense, however, can be deducted immediately.
The difference between a repair and an improvement is a
fine one, and often requires careful planning. A
repair maintains the current value or useful life,
while an improvement increases value or lengthens
useful life. The key is to avoid bunching repairs
together. When a large number of repairs are done at
one time, even if they are unrelated, all the work will
be lumped together and called a major renovation. You
can avoid this treatment by having work done over a
period of more than one year, using different
contractors for the work, and not drawing up a single
bid, blueprint, or contract for the combined work.
Treat each job as a separate repair, and do all you can
to make outsiders (such as the IRS) think they are
separate projects. A file of tenant complaint letters
requesting specific repairs can be very helpful --
don't through such notes away after the repairs are
completed.
57) You might not be saving money by doing repair and
renovation work yourself. Usually these costs can be
added to a property's basis. This increases your
depreciation deductions and later decreases your gain
on the property's sale. But the value of any personal
labor you put into the work cannot be added to the
basis. This is true even if you do that type of work
for a living and can establish what the fair market
value of your labor is.
58) Believe it or not, there are ways to "depreciate"
land. Generally only wasting assets can be
depreciated, and land is not considered a wasting
asset. It doesn't wear out over time. So when you buy
business or investment property, the cost of the land
and buildings must be separated. The buildings are
depreciated, and the land is not. But one way to get
the same result as depreciating land is to buy the
buildings and lease the underlying land. The rent
payments you make on the land will be deductible. If
the property seller doesn't want to lease land, that's
no problem. Many banks are happy to step in and buy
the land and immediately lease it to you. Of course,
you will want a long-term lease on the land to ensure
that you won't lose the lease when you still want to
use the buildings. You'll also want the rent to be
adjusted according to some fixed standard, because you
would be at the landlord's mercy otherwise.
59) Another option is to buy an "estate for years" in
the land. The owner of an estate for years essentially
is the owner of a piece of property but only for the
number of years stated in the deed. After that, the
property reverts to the original owner. Under the tax
law, the cost of an estate for years can be written off
over the life of the estate. It's possible that your
bank or a corporation formed by you can buy the
remainder interest in the land so that the property
will not revert to an unrelated third party when the
estate for years expires. The estate for years can be
tricky to execute. Your tax advisor should read the
case of Lomas Santa Fe, Inc., 74 TC 662, before the
deal is set up.
60) Real estate sellers should consider leasing instead
of selling their properties. Instead of an installment
sale, make a long-term lease with an option to buy.
The difference in your cash flow from the "buyer" will
be nominal, if anything, but the difference in your tax
situation could be dramatic. The lease income will be
considered passive income if things are structured
properly. That means losses from your other properties
will offset the lease income. Instead of capital gain,
you have ordinary income that is sheltered by the other
properties. The distinction between a lease and a sale
is a technical one, and depends on many fine
distinctions. You should not attempt this on your own.
Instead, your tax advisor should read Frank Lyon & Co.
v. U.S. (435 US 561 (1978)) and structure the deal for
you.
61) Business start-up expenses are deductible if you
play it smart. The key is that you must actually be in
the business and ready to serve customers or clients
before the expenses can be deductible. Any expenses
you incur while preparing to enter a business must be
capitalized. So you should delay significant expenses
for as long as possible. If feasible, hold yourself
out as ready to serve customers before all the expenses
have been incurred. There is another option for
unincorporated businesses that cannot wait to incur
their start-up expenses. The proprietors can try
deducting the start-up expenses as miscellaneous
itemized deductions incurred for the production of
income. There haven't been many cases on this
treatment yet, but some tax advisors and the Tax Court
believe the deduction is proper.
62) Your business's income goes up, but the tax rate
drops. All it takes is a little planning. Suppose you
are ready to introduce a new product or expand the
scope of your business. You could do what most people
do, and simply grow normally through your own
corporation. Or you could form another corporation,
being sure that more than 20% of the stock is
transferred to a third party who does not own stock in
the old corporation. You'll want to do this when the
corporation is financed by a new investor or when one
or more employees will be key to its success. Give
them stock in the corporation. When you do this, the
corporation will be taxed separately. It will not be
grouped with the other corporation for tax purposes the
way it would if the same people owned more than 80% of
both corporations. The result is lower taxes and more
money for everyone. Corporate income under $75,000 is
taxed at less than the maximum rate.
63) Business owners should have their businesses pay
the medical expenses. The best way to do this probably
is by establishing a medical reimbursement plan. The
firm sets a policy under which it will reimburse
employees for medical expenses. You can set limits on
the amount that will be reimbursed and the types of
care that will be covered. The key is that full-time
employees must be treated equally. When an employee
incurs an expense, documentation is given to the firm
and the expense is reimbursed according to the plan.
The firm can buy a health insurance policy that will
cover all or most of the expenses, and use its own cash
to cover any expenses not paid for by the policy. The
medical reimbursements are not taxable to the employees
as long as the plan is nondiscriminatory and
reimbursements do not exceed expenses.
64) Sometimes it makes sense to put different business
operations in separate corporations. In the 1970s
multiple corporations allowed the owner many tax
advantages, including multiple pension plans. But now
corporations that are 85% or more owned by related
individuals are grouped into one corporation in most
cases. But at times it still pays to place business
operations in separate corporations. When the
businesses are in different states, multiple
corporations ensure that profits are not hit with taxes
from more than one state. Multiple corporations give
the owner more flexibility in estate planning or when
trying to sell one operation with a minimal tax bite.
Splitting operations also qualifies each business for
several advantages that are available only to small
businesses, such as the section 1244 ordinary loss
deduction for corporate stock that becomes worthless.
Also the different businesses generally can select
different accounting methods and tax years.
Multiple corporations do have nontax advantages as
well. The debts and other legal liabilities of one
business will have no effect on the assets of another
business. This is important when you have a prosperous
business and plan to start a riskier one. When a large
number of employees are involved, separate corporations
make stock ownership incentive plans more effective.
Employees feel that their individual efforts will have
a more direct effect on the bottom line. If there are
labor problems, such as strikes, multiple corporations
ensure that the dissatisfaction of one group of
employees won't affect the other business. When
considering multiple corporations, be sure to balance
these advantages against the disadvantages of
additional bookkeeping, tax returns, and other
administrative work.
For information on a highly-recommended national
service that can form a corporation for you in any
state, write to Incorporation Information Package, 818
Washington Street, Wilmington DE 19801.
65) It's smart business to pay yourself a bigger salary
than the business can afford. Maybe business is a
little slow right now and you're thinking of cutting
your salary or eliminating the usual year-end bonus.
That might be good right now, but it could hurt you in
the long run. When business improves you will no doubt
want to increase your compensation significantly. Then
the IRS would step in with a claim of unreasonable
compensation. The IRS will deny the salary deduction
and claim that the increase is a dividend that's income
to you but not deductible by the corporation. It can
do this because salary is supposed to be tied to your
individual performance, not to the company's
performance and cash flow. The solution is not to cut
your salary. But you also have to establish arguments
that demonstrate the high salary during the down year
is not itself unreasonable compensation. You do this
by listing the adverse factors that were not your fault
such as high turnover which brought an increased
workload for you. You should also cite specific
problems that were caused by the downturn and forced
you to spend a long time solving them. If your company
is doing better than competitors, that is evidence that
you are worth the high salary.
There should also be corporate board minutes that
approve the salary and give reasons for it. In
addition, there should be a clause stating that you
cannot draw the salary if the corporation needs the
cash for operating expenses. This means that in a bad
year you do not have to take cash out of the company,
and it also puts you in a strong position if the IRS
forces you to go to court.
66) Lodging provided by your employer can be tax free
income. You must be required to live in the
employer-provided lodging as a condition of employment,
and the lodging must be provided on the employer's
place of business. This provision is often used to
provide tax-free lodging for motel managers, but there
are other possibilities. In one case, a farmer
incorporated his farming business and contributed the
entire farmþincluding the personal residenceþto the
corporation. He then signed an employment contract
with the corporation. One of the conditions of
employment was that the farmer had to live in the
residence provided on the farm. The corporation
depreciated the house and deducted all taxes,
maintenance, and utilities. The farmer did not include
the value of the housing in taxable income. The IRS
objected to this treatment, but the Tax Court agreed
with the farmer. The IRS's own witnesses at trial
admitted that they did not know of a farm of that type
that was run by a non-resident farmer and agreed that
the farm would have to be run by someone on the
premises. (J. Grant Farms, 49 TCM 1197 (1985). The
courts also have broadly defined an employer's
premises. Two forest watchmen were required to live in
lodging provided in the forest area they patrolled.
The IRS said the lodging was not tax free since the
area they patrolled was quite large and the lodging was
on only a small part of it. But the Tax Court said
that the lodging was an integral part of the employer's
premises, so it was tax free. (Vanicek, 85 TC 731
(1985)).
67) Buying small businesses is cheaper and more
attractive under the new rules. Previously the cost of
goodwill (the most valuable asset of many small
businesses) could not be deducted by a purchaser. It
simply sat on the books at cost. Other intangible
assets arguably could be written off over their
estimated useful lives, but the IRS fought such
deductions routinely on audits. The 1993 law provides
uniform rules under which acquired intangible assets
can be deducted. In general the cost of these assets,
including goodwill, can be written off over a 15-year
period that begins with the month of acquisition. This
applies to intangibles that were acquired after August
10, 1993, and that are held in connection with a trade
or business or an activity for the production of
income. You can elect to have the rules apply to
intangibles acquired after July 25, 1991. Intangibles
that get these new rules are: goodwill; going-concern
value; workforce in place; information base; know-how;
any customer-based intangible; any supplier-based
intangible; any license, permit, or other right granted
by a government or agency; any covenant not to compete;
and any franchise, trademark, or trade name.
The rules and definitions are lengthy. So do not
go into a deal without good tax advice on the details.
There will be winners and losers under this
provision. In some industries, certain intangibles
were being written off over less than 15 years without
strong opposition from the IRS. Customer lists, for
example, are often considered to lose value in much
less than 15 years. Another downside is that you only
get the benefit by purchasing the assets of a business.
If you purchase the stock of a corporation, for
example, you do not get to write off the intangibles
acquired. But overall the provision should improve the
cash flow of small business buyers and should make the
businesses more valuable to potential buyers.
68) There are times when a home office will increase
your tax bill. Suppose you've had a home office and
have been properly taking related deductions. Now you
want to sell the home. You plan to either defer the
gain on the home by investing it in another home or
exclude the gain from income by using the $125,000
exclusion for those over age 55. The problem is that
the home office is not considered a personal residence
and will not qualify for either of these treatments.
You will be considered to have sold two buildings --
your residence and your office. There will be capital
gains to pay on the sale of the office. The way to
avoid this treatment is to stop using the home office
before the year in which you sell the home. Be sure
you do not qualify for the home office deductions and
do not take them on the tax return during that year.
69) Are S corporations still the best deal for business
owners? In the Tax Reform Act of 1986, the top
individual tax rate was lower than the top corporate
tax rate for the first time ever. This provided a
great incentive for profitable small business owners to
convert their businesses to S corporations. Also known
as "small business corporations," these corporations
generally paid no taxes. Instead, all income and
deductions were passed through to the owners and taxed
at the owners' top tax rate.
The main disadvantage of this strategy was that a
2% or greater owner lost some fringe benefit advantages
that are available to owners of regular corporations.
But when a corporation was generating substantial
taxable income, the income tax savings more than made
up for the lost tax-free benefits.
Does the Clinton plan mean abandoning S
corporations?
Not necessarily. You want to consider more than
the tax rates. The main case for revoking S status is
when: you would end up in the highest individual tax
bracket as an S corporation shareholder, you plan to
reinvest most of the corporation's earnings to fund its
growth, and the corporation does not have appreciated
assets (including goodwill) that would be subject to
double taxation if they were sold by a regular
corporation. In many other cases, S status still makes
sense despite the higher rates.
A good reason to retain S corporation status is
that the tax basis of your stock rises as you pay
income taxes on the corporation's undistributed income.
The increasing stock basis reduces the taxable gain
incurred when you eventually sell the stock. An S
corporation also can sell appreciated assets without
paying double taxes on the gain in most cases. A
regular corporation cannot. The S corporation also
cannot be penalized by the IRS for unreasonably
accumulating earnings and is less likely to be
challenged for paying unreasonably high salaries.
You can revoke S status for a calendar year
anytime up to March 15 of that year by filing a
statement with the IRS along with consent agreements
signed by shareholders owning at least 50% of the
stock. But if you revoke S status, it cannot be
reelected for five years without permission from the
IRS. What about having an existing regular corporation
elect S status? The main disadvantage, after the
higher individual tax rates, is that any gain from the
sale of appreciated assets within 10 years after the
conversion will be subject to double taxation.
You can revoke S status for a calendar year
anytime up to March 15 of that year by filing a
statement with the IRS along with consent agreements
signed by shareholders owning at least 50% of the
stock. But if you revoke S status, it cannot be
reelected for five years without permission from the
IRS. What about having an existing regular corporation
elect S status? The main disadvantage, after the
higher individual tax rates, is that any gain from the
sale of appreciated assets within 10 years after the
conversion will be subject to double taxation.
If you currently are operating as a regular
corporation and want to elect S status, be sure to
distribute any accumulated earnings and profits of the
corporation. Failure to do this could result in a
double taxation of some distributions in the future.
To elect S, you must have no more than one class of
stock (though you can have voting and nonvoting shares
of that class), no more than 35 shareholders, and no
shareholders who are nonresident aliens or nonhuman
entities (though certain trusts and estates will
qualify as shareholders). The election is made by
filing Form 2553 along with the written consent of each
shareholder. An election must be made by the 15th day
of the third month of the year for which the election
is to be effective. Thus, taxpayers wishing to make
the election for calendar year 1990 must file the form
by March 15, 1990. A corporation in its first year of
existence must make the election by the 15th day of the
third month of its existence. The election can be
revoked by a majority of shareholders at any time.
It is possible for an S corporation to
inadvertently terminate its status, for instance by
adding too many shareholders or acquiring a subsidiary.
If this happens, the corporation can regain S status by
correcting the mistake soon after it is discovered. In
addition, the restrictions on passive income were
revised in 1982 so that it is fairly difficult for a
business to lose S status by earning too much passive
income. Those corporations most at risk in this area
are those that earn the bulk of their income from
rentals or leasing.
As in the past, the S corporation can be used to
pass losses through to shareholders, provided the
shareholders materially participate in the activity as
required by the passive loss rules. Losses can be
deducted only to the extent of a shareholder's basis in
the stock. A major difference between a partnership
and an S is that a partner's basis includes a pro rata
share of debt owed by the partnership. That isn't so
with an S. An S shareholder's basis includes only debt
owed to the shareholder by the corporation.
Shareholders expecting to pass through losses should
keep this in mind when arranging financing for the
business.
70) Small businesses can write off more equipment each
year. The amount of equipment purchases that you can
elect to expense when the equipment is put in service
is increased to $17,500 (from $10,000). The amount is
reduced for each dollar that a business's equipment put
in service during the year exceeds $200,000. And the
write off cannot exceed the taxable income for the
year. Any excess amount that is disallowed because of
a lack of taxable income can be carried forward to a
future year. You can expense any part of the basis of
a particular piece of equipment. Any remaining cost
that is not expensed is depreciated under the normal
depreciation rules. This is effective for property put
in service after Dec. 31, 1992.
71) Small businesses might find financing more
plentiful due to new write offs. Two provisions in the
1993 law make small business investments more
attractive by offering investors new tax breaks.
The first provision allows individuals and regular
C corporations to defer capital gains on the sale of
publicly traded securities if within 60 days the sale
proceeds are used to purchase common stock or a
partnership interest in a "specialized small business
investment company." A SSBIC essentially is one that
finances businesses owned by disadvantaged taxpayers.
The SSBIC must be licensed under Section 301(d) of the
Small Business Investment Act of 1958.
The amount of gain that can be rolled over in a
tax year is limited to the lesser of $50,000 or
$500,000 minus any gain previously deferred in this
way. For C corporations, the limits are $250,000 and
$1 million.
The second provision allows investors to exclude
from income up to 50% of any gain they earn from the
disposition of qualified small business stock that was
held for at least five years. The stock must have been
originally issued after the date the tax law was
enacted (August 10, 1993) and must be issued in return
for money, property, or compensation for services. The
corporation also must conduct an active business.
There are extensive rules covering this provision.
For example, not all types of businesses qualify, so
there are definitions of the businesses that qualify.
In addition, there are rules that prevent an investor
from excluding the gain if options or other hedging
strategies are used to protect the investment. Another
drawback is that one half of the excluded gain is a
preference item for the alternative minimum tax.
Investments through partnerships, S corporations, and
common trust funds qualify for the exclusion.
72) Leasing assets can create deductions where none
existed before. Some assets cannot be depreciated,
even when purchased for your business. This is
particularly true of some office furnishings, for which
the IRS periodically likes to deny deductions. If your
office is furnished with antiques, art, oriental rugs,
or other collectibles, an auditor might rule that the
items do not deteriorate or depreciate, so they have an
unlimited useful life. In this case, you cannot
depreciate them or otherwise write off their cost.
One way around this is to lease the furnishings
instead of buying them. The lease payments are
deductible. But some businesses get into trouble by
entering into a lease with an option to buy or similar
arrangement. The lease/purchase option can work,
giving you deductions during the lease period and
ownership of the items at the end of the lease. But
you need to have a good tax expert carefully draw up or
review your lease agreement so the IRS will not say
that it actually is a disguised sale and deny all your
deductions.
The Tax Court analyzes what it thinks is the
"economic reality" of the transaction. For example, if
lease payments are substantially equal to what the
purchase price would be, the transaction is considered
a sale. The IRS has issued a series of rulings which
give the factors it will consider. Factors that
indicate you have a disguised sale include: you acquire
title after making a certain number of payments; a
portion of the lease payments give you equity; the
rental payments materially exceed the fair market
value; or the option purchase price at the end of the
lease is nominal in relation to the value. If you
avoid the pitfalls of a lease option, you can furnish
your business with valuable items while deducting part
of the cost.
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