The CCH summary of the new tax bill signed by the President today is now available.

For small businesses (with gross receipts <15 million), the most important news is that the 5 year NOL carryback is now extended to 2009.  For those businesses over $15 million, the 5 year NOL carryback is available for 2008 OR 2009, but there are limitations.

For individuals, the $8,000 first-time homebuyer credit is extended, and for non-first time homebuyers who have lived in their residence for 5 out of the last 8 years – there is now a reduced credit of $6,500.

While I realize I have not posted any new articles lately, there have been some great questions on this site lately and I have enjoyed answering them as they have inspired some ideas for future posts.  Thank you for the great questions!  I would definitely encourage you keeping posting any questions you may have on the posts on this site.

In addition, I would like to refer you to a great new tax question and answer site: TaxQueries.com.  They just opened and already have some good content.  The design uses OpenID, which is great because you can easily use any of your profiles from other OpenID sites without having to setup an account like with other sites.

It is definitely worth checking out as it should become a good resource for business owners, tax professionals, and anyone else who is looking for answers to their tax questions.

I had previously discussed this issue in my 1/22/09 post entitled “S-Corporation Failure to File Penalty”, but there have been so many comments and updates since January that I felt I should post a formal update.  It is an important issue now that the the first few rounds of IRS abatement request responses have been sent out and the fact that we still do not have a Rev Proc similar to 84-35 (automatic abatement for partnerships) issued to address this penalty.

Just to quickly review the basics from the previous post, this penalty is charged to S-Corporations that failed to file their 1120S return timely, which means you either failed to extend your return and filed after the March 15th deadline, or you extended but did not file by the September 15th extended deadline.  Other details of note on the penalty:

• Begins for returns filed after 12/20/07
• $85 per shareholder per month late ($89 for returns due after 12/31/08)
• Applies to any entities taxed as an S-Corporation

I recently sent an abatement letter for a client that used some of the language from Rev Proc 84-35, and even though the IRS abated the penalty, they made a point about the fact that they did not base the decision on any reasoning from 84-35.  In the response letter, the IRS stated that the abatement was ”based solely on the fact that you have a good history of timely filing and timely paying”. They also stated the removal was a “one-time consideration” and that future penalties would only be abated if the information met the “reasonable cause criteria”.

The thrill of getting the penalty abated quickly faded as I realized that this is not good news for S-Corporations if a Rev Proc similar to 84-35 is not forthcoming.  Based on recent reports of plummeting Federal tax revenues, I doubt we will see a Rev Proc anytime soon that would provide automatic abatement for small S-Corporations like we have for partnerships, so I would definitely suggest a few things with regard to requesting abatement of this penalty:

• If you request abatement of penalties, do not use any language from Rev Proc 84-35 – you are just inviting a short lecture from the IRS.
• If you have a history of timely filing and paying, state this in the letter as the reasoning for your abatement request along with an apology or two.
• If you do not have a good history – hopefully you have a sad story of unusual circumstances that will work as reasonable cause.  In my experience, the IRS rarely abates penalties for reasonable cause.

Lastly – in the future, FILE TIMELY!  March 15th is the deadline and if you are not going to be able to file by that date, make sure you call your CPA or accountant to make sure an extension is filed.

If you received a penalty notice and would like assistance in dealing with the IRS, feel free to call me at 503.244.8844.

There is often a lot of confusion surrounding an office in home and the mileage deduction and the difference between commuting and business miles.  I have heard many accountants over the years selling the deductions like in an infomercial, claiming that by simply setting up an office in the home used exclusively for the business that it will amazingly increase their auto deduction by 60%.  Plus, if you act now, they will throw in an exclusive tax table mouse pad and two free months of the tax savings newsletter…

Seriously though, while an office in home can increase your auto deduction in many cases, it is unfortunately not that simple – as is the case with the majority of IRS rules.  It is very important you understand all the requirements so that you can maximize your deduction without exposing yourself to audit risk.

I am not going to get into the details of business vehicle expenses in this post, but in general terms, business use of a vehicle does not includes personal or commuting miles.  Whether you use the standard mileage rate or the actual expense method, your deduction is limited to actual business use – which will be calculated based on your mileage log or reports from your mileage calculator app (for you iPhone enthusiasts).  For your standard business owner with rented office space outside the home who does not perform substantial administrative and management activity from a home office, the miles to and from the office each day are not deductible.  Depending on the business owner’s commute, this can be a significant portion of overall vehicle use, so you can see why this is a crucial issue.

How can these commuting miles be turned into business miles?

Well, it can be a bit complex when reading IRS Pub 587 as there are many requirements and exceptions, so I set up this office in home deduction mind map using FreeMind software, which walks through the first few pages of IRS Pub 587 and lays everything out visually.  If you look at the first three requirements, you’ll notice that you have probably heard about them before if you have a general understanding of the office in home.  Exclusive, regular, and business use are usually what most people focus on because the classic example you think of with office in home is the sole proprietor who uses their home as the sole business location.  However, most small or micro-businesses have office space at a location outside the home, so the fourth requirement that the home office be the principle place of business is the most crucial issue.  If this requirement can be met either through an exception or by re-arranging your business operations, then you have a qualifying office in home and mileage from that office to other business locations would qualify as business mileage.

How can you satisfy the principle place of business requirement?

In order for your home office to be considered the principle place of business, it must be used exclusively and regularly for administrative and management activities including:

• Billing customers, clients, or patients
• Keeping books and records
• Ordering supplies
• Setting up appointments
• Forwarding orders or writing reports

This means that it must be the only location that these administrative and management activities are conducted.  However, there are some exceptions to this rule and situations where it is permissible for these activities to be performed outside of the office in home :

• service providers can conduct administrative activities at other locations (payroll service, etc);
• management and administrative work done in a non-fixed location like a car or hotel room is permissible;
• administrative activities can be conducted at a fixed location outside the home office if occasional and minimal;
• substantial non-administrative, non-management activities can be performed outside the home;
• and even if suitable space is available outside the home for administrative and management activities, you can still choose the home office as the primary location for these activities.

If your home office does not qualify for any of these exceptions and is not the principle place of business, there are still two more exceptions that could help you:

• If you physically meet with clients, patients, or customer in you home office – and it is substantial and integral to your business;
• or your home office is a separate structure from the dwelling unit.

Meeting either of these exceptions will qualify your office in home even though it is not the principle place of business.  Again, this would make your mileage from the home office to the other business office deductible as business miles.  This can create significant tax savings, but you have to make sure you have a solid position as this issue does often come up in IRS audits.

Let’s look at an example…

Dr. Bob is a dentist who has two dental offices in the metro area and his commute is significant since he lives far outside the city.  Without a qualifying office in home, the commute to the an office and the commute home are personal and are non-deductible commuting miles.  Any trips made between the offices or for other business purposes during the day are deductible, but that long commute that is a majority of the miles driven is personal.

Now let’s assume that Dr. Bob has a large bonus room that he converts into a home office.  The office is not separate from his house, and he does not meet with patients at his home (for a number of reasons), so he must make the home office be the only place for administrative and management activities or meet one of the exceptions.  If Dr. Bob uses a third party service provider for billing and factoring, he and his wife complete the bookkeeping in QuickBooks at the home office, and his wife sets up appointments from the home office – then I think he would have a very solid position for a qualifying office in home and the mileage from the home office would be deductible.  However, if all the billing is done internally at one or both of the dental offices, or if an internal bookkeeper does a majority of bookkeeping at one of the dental offices, or the office managers at the two offices setup up all the appointments – then I think Dr. Bob is going to have a very weak case for arguing that his home office is the principle place of business.

Every case is going to be different and most business owners are not going to have clear-cut circumstances like our Dr. Bob; however, it is very important you go over this in detail with your CPA or accoutant to make sure you have a solid position for the auto expenses you are claiming.  With the technology available today, many business owners should be able to arrange their business so that the requirements are met.

If you like to discuss this with me or need help in laying out a strategy to maximize your tax deductions, feel free to email or call me at 503.244.8844.

It is the that time of year again, when most people are on vacation – or at least they wish they were.  With the current heat wave in Portland, many would probably go for an Alaskan cruise right about now.  Whether it is colder weather you are looking for or a tropical paradise, if you are business owner, you should talk to your CPA or accountant about business planning trips and travel expense rules to make sure you are maximizing your deductions without getting too aggressive or raising your audit risk.

Whether you have an LLC, S-Corporation, Corporation, or a Single-Member LLC – you should consider an annual business planning meeting where you can get away from the everyday distractions that steal your focus and layout out your short and long term goals and strategies, look into new products or technologies, and brainstorm solutions for overcoming obstacles and bottlenecks in your business.  Without even getting into taxes, this makes sense from a marketing standpoint and would seem vital for a business to continue to thrive and grow.  Unfortunately, IRS agents are anything but marketers, so you have to make sure your deduction is well supported.

How do you maximize travel deductions that are also well supported before the IRS?  Here are my recommendations:

• To write off the actual travel expenses to and from the destination, the trip must be related primarily to the taxpayers business.  If the trip is primarily personal in nature, then these costs are not deductible and only the expenses incurred while at the destination allocable to the business are deductible.
• Document in detail all the business planning you completed on the trip, write-out the goals you came up with, and take care of any annual minutes and formal documents that should be completed for your entity.  Scribbling on a bar napkin will not cut it; in fact, the more documentation the better in this case as you need to prove substantial business reasons for the trip.
• If your spouse joins you on the trip, his or her expenses are generally only deductible if they are an officer, shareholder, member, director, or employee of the business – or if there is a bona fide business purpose for them to be on the trip.
• If it is a foreign trip, more detailed rules apply.  If the trip is seven days or less in length and primarily for business, then the travel is fully deductible.  However, if the trip is over seven days, the travel expense deduction is restricted if 25% or more of the days are not business days.  It becomes complicated as you can take advantage of “intervening days”, so you should definitely talk to your CPA or accountant first.

There are other considerations and the facts and circumstances of each trip need to be considered.  There is no clear rule on the number of personal days allowable before it becomes primarily a personal trip.  Also, bringing children on the trip can further complicate the issue as it can make it look much more like a personal vacation.  If anything – just make sure you document, document, and document some more, and again – I strongly suggest talking to your CPA or accountant before setting up a business planning trip that you intend to claim a business travel expense.

There is only a little over a month left of summer – get out there and do some business planning!

Recent articles in The Oregonian laid accolades on the Oregon legislature for all they have done for us during this last session–really important things like banning puppy mills, making it illegal to “top off gas tanks when filling,” requiring calorie counts on chain restaurant menus, and raising the cost of higher education, which, by the way, has increased tenfold in the last 15 years.  Don’t get me wrong, I have always been against the way pet stores have bred the poor puppies in rotten conditions, but I take exception to giving accolades to our government officials during a time of economic stress for spending so much time on trivial pursuits and for not delving into the real reasons behind our budget problems.

I won’t elaborate on the fact that raising taxes historically has produced less income to the government than when tax rates were lowered.  The fact is when more income is generated, more tax is paid.  When the incentive and ability to make money are lowered by raising taxes, less revenue is generated.  Instead I will explain with an actual example how the changes this legislature made during this economy will, in fact, make many businesses think harder about closing their doors and relocating across the river. I will also point out that many businesses this year with between two and twenty  million dollars in sales will possibly have losses, not income.  I will of course acknowledge that my view is somewhat skewed to an observation of only the 120 corporate clients I have firsthand experience with, but this is most likely a reasonable sample of small business in Oregon.

Currently in Oregon, all business entities established as C-corporations filing federal Form 1120, or set up as pass-thru entities such as multi-member LLCs filing federal Form 1065, and S-Corporations filing federal Form 1120S pay a minimum tax of $10 per year.  If the entity was a C-corporation, it would pay tax on its net taxable income at 6.6% but not less than $10, whereas the pass-thru entities only pay the $10, as their net taxable income is “passed through to the individual owners,” and the owners ADD it to their personal income tax returns and pay personal taxes on the combined amount.

Effective for tax years beginning on or after January 1, 2009, the minimum tax on  pass-thru entities goes to $150; however, for taxable C-corporation entities, the minimum tax will be based on the gross Oregon sales, regardless if the corporation has a net taxable income or not. I have long felt the $10 minimum was way too low. It takes much more than $10 to administrate the filing of these returns. I even feel that $150 is low. California, which has one of the nation’s highest minimums, is $800. However, to base the minimum on gross sales for a taxable C-corporation entity is nothing more than a disguised attempt to charge the entities a sales tax.

What the legislature and our governor do not understand is that small businesses provide much more in terms of long-term revenue to our State, regardless of whether they end up with a net taxable income. Let me give you the following example from an actual business that has operated in this state since 1971, employing between 50 and 100 people per year.

This company has an average of $19 million in sales per year and averages 60 employees, so the payroll is an average of $3.2 million per year. The company is a wholesale operation and purchases $12 million worth of products per year. The company provides health insurance and retirement benefits to its employees. It also pays rent to another Oregonian for $350,000. Sometimes we believe that the owner is taking a majority of the $3.2 million in wages.  However, in this example, the owner averages $200,000 or less. Now here is the kicker:  Because this company is generous to its work force, hiring, paying health insurance, retirement, and other expenses, its average annual net income is less than $200,000. And due to economic conditions, last year and this coming year, it will actually have zero net income.

Here is the problem with the current change to the C-corporation minimum tax:  This corporation, and many others like it, will provide jobs to Oregonians, will provide health insurance to Oregonians, will provide revenue to other entities from purchasing products, both in Oregon and across the country, will provide revenue to another entity for rent, will provide retirement to people who might not otherwise save, and for its efforts will pay Oregon $7,500 in minimum tax. In addition, Oregon will pick up revenue from the $3.2 million in wages, both in employment-related taxes and income taxes from those individuals, and from the $350,000 in rent. If you do the math, here is how it looks:  When the corporation makes a net of $113,636, it would pay 6.6%, or $7,500. But if it has a loss of, say, $100,000 and makes nothing, it would still pay $7,500.

Now, let’s examine this same company if it were a pass-thru entity meaning, again, that the net income or loss would be added to the individual’s return and taxed with the personal income. Let us further assume the owner received a salary of $200,000, owned a home with a mortgage and property taxes and, being generous, gave to various charities so that the owner had itemized deductions of $35,000, including a state income tax of $10,000. His state tax under these conditions would be approximately $15,000. Now, if the company had a loss of $100,000, which will be likely during these economic times, his Oregon tax, which would include the company, would go down to $6,000, plus the company’s minimum Oregon tax on a pass-thru entity of $150.

Here is the comparison:  Nothing else in the company is different other than whether it is a pass-thru entity or a C-corp. The owner’s salary is the same, the company expenses and operations are the same. But in one case, the loss saves the taxpayer $9,000 in Oregon taxes, and in the other case, because it is a C-Corporation, not only does the individual still pay $15,000 but the corporation is out another $7,350, for a total difference of $16,350. Even if there isn’t a loss and the company just breaks even, the difference is the minimum tax of $7,350. All this is only because of the type of entity the business chose years ago.

I do not believe the Oregon legislature understands the tax system, or they are more concerned with just showing they did something rather than developing a well thought out change that does not penalize the only source of revenue that they need to correct their budget problems. That source is the working America.

Single member limited liability companies seem to be the popular choice these days for small business owners that want limited liability protection without the extra cost  and hassle of an S-Corporation or a two-member LLC.  However, SMLLC owners need to be aware of the court case listed below regarding payroll tax liability as they are personally liable not only for trust fund withholdings taken from employee checks (Code Sec 6672), but also the employer share of payroll taxes.

Medical Practice Solutions, LLC, Carolyn Britton, Sole Member, Petitioner v. Commissioner, Docket No. 14668-07L, 132TC, No. 7 (3/31/09)

Medical Practice Solutions follows several similar rulings in the last few years regarding disregarded entities (SMLLCs) and payroll tax liability, and given the current recession it is very important the single member LLC owners understand that their limited liability protection does not extend to unpaid employer payroll tax liabilities.  In plain terms, employer payroll tax consists of the taxes not deducted from the employees check, which would be taxes like employer Social Security and Medicare tax, federal unemployment tax, and state unemployment tax.  The trust fund withholdings are the amount deducted from the employee’s gross pay that need to be paid to the respective agencies, which business owners have always been personally liable for.

On average, most employers stay current with their payroll tax liability, and most underpayments are the result of calculation errors.  However, over the years I have witnessed several employers get behind on their payroll tax liabilities due to large drops in income, embezzlement and theft, and business owners over-extending themselves in too many business ventures.  In addition, I have seen many businesses close their doors that had to deal with significant amounts of debt and/or were facing a lawsuit.  If you have a SMLLC or are thinking of starting one, you should definitely talk to your attorney about this.  If it is of significant concern, you may consider adding a spouse or friend to the LLC to take advantage of the credit ordering rules available to a two-member LLC.

I would also recommend using a payroll service provider or a CPA that will get you in the discipline of depositing your payroll tax timely.  Whether you have a SMLLC or not, the IRS is not a creditor you want to put off as the penalties involved with payroll tax payments are very substantial.

In our previous post, we discussed the Oregon business tax increases resulting from House Bill 3405, which passed the Oregon Senate last Thursday.  Coupled with HB3405 is the sister bill regarding individual tax increases – House Bill 2649.  This bill is also headed for Governor Kulongoski, who has already made a statement of support for the bill, so now is the time to start looking at the details and adjusting your estimated tax payments if needed.

Individual Tax Rate Increases

For tax years beginning on or after January 1, 2009, the Oregon income tax rate increases for individuals with taxable income of more than $125k is as follows (previous tax rate was a flat 9% at these income levels):

• 10.8% on excess taxable income over $125k but under $250k
• 11% on excess taxable income over $250k

For tax years beginning on or after January 1, 2012, the 10.8% rate is reduced to 9.9% for excess taxable income over $125k but under $250k; however, the 11% rate for excess taxable income over $250k remains the same.

The tax rate on taxable income under $125k remains unchanged at 9%, so we are just talking about the income above $125k here.  For a more detailed breakdown of the rates at different income levels, see page 2 of HB2649.

Phase-Out of Federal Income Tax Subtraction

HB2649 also creates a new phase-out of the Federal income tax subtraction that starts at $125k for single taxpayers and $250k for married filing joint.  Under current law, there is no phase-out of the subtraction and as of 2008, the maximum deduction was $5,600 MFJ or $2,800 single/MFS.  Below are the phase-out windows for the subtraction under HB2649 beginning January 1, 2009:

• Single/MFS – phase-out starts at $125k with complete phase-0ut at $145k.
• MFJ -  phase-out starts at $250k with complete phase-0ut at $290k.

Not All About Tax Increases

There are some small “benefits” they threw into HB2649:

• Oregon will exempt the first $2,400 of unemployment income received.
• They will not charge penalty and interest to taxpayers that underpay as a result of the tax increases (how gracious of them).

I am sure they will be releasing more detailed information after the Governor signs this into law, but hopefully this helps give you an basic understanding of the new changes.  To get an idea of the impact of the tax increase, review these 2006 Oregon tax statistics.

If you will be affected by these tax increases, be sure to call your CPA or tax professional as you may want to revise your remaining Oregon estimated tax payments for 2009 – or at least get an estimate of the additional tax that will be due.

As many of you may already know, there was a bit of drama last Wednesday in the Oregon Senate when House Bill 3405, which increases taxes on corporations and businesses in Oregon, was derailed by just one vote.  However, Thursday the vote changed and bill passed the Senate,  and now it is on its way to Governor Kulongoski, who has already made a statement about it leaving no doubt that we need to start preparing the changes.

All businesses in Oregon or doing business in Oregon are affected by this change – whether you have a C-Corporation, S-Corporation, LLC, LLP, or partnership, you will be paying more for Oregon excise tax, filing fees, and annual registration fees.  Here is what you will need to know:

Increased Minimum Excise Tax

The low $10 minimum tax for filing business entities (not including disregarded entities) has been increased to $150 for tax years beginning on or after January 1, 2009.  For C-Corporations, the minimum tax of $150 only applies to corporations with Oregon sales less than $500k.  C-Corporation with Oregon sales over $500k will now pay a minimum tax based on a multi-tiered calculation based on the level of sales.

C-Corporation Minimum Excise Tax Increase

Oregon minimum excise tax for C-Corporations can now range from $150 all the way up to $100k depending on the level of Oregon sales.  For a complete breakdown of the tax based on Oregon sales tiers, see page 2 of HB3405.  Here is a quick summary of the minimum tax amounts for smaller businesses:

• Oregon sales over $500k but under $1 million = $500 tax
• From $1 million to 2 million = $1,000 tax
• From $2 million to 3 million = $1,500 tax
• From $3 million to 5 million = $2,000 tax

In addition, the tax rate for C-Corporations increases from 6.6% (current rate) to 7.9% for taxable income in excess of $250k.

Filing Fee Increases

In addition to tax increases, HB3405 will double most business registration filing fees with the Oregon Secretary of State from $50 to $100.  Some filing fees, like those for authority to transact business in the state,  will increase to $275.

Increased Document Fees

Most copy and certificate fees will also increase at the Secretary of State’s office.  In addition, the notary public fees will increase from $20 to $40.

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All in all, the increases are not a surprise for most of us.  The Oregon excise tax has been much lower than similar taxes in most states, and there was talk before the recession about increasing the tax to $50.  However, for the small business owner in Portland, this is not the best news – especially after the Multnomah County minimum tax increase for 2008.

For those of you with C-Corporations, you may want to talk with your CPA regarding the cost to convert to an S-Corporation.  For many, the large amount of built-in gains tax would not make the conversion worthwhile, but with this tax increase and the likely upcoming expiration of qualified dividends and low capital gains rates, it is definitely worth looking into as some could see long-term tax savings.

If you were to loan me $20k today, would you insist on loan documents, regular payments, and interest?  Of course you would!  Such requirements and documentation would seem to be common sense, so why do many shareholders fail treat the loans to their S-Corporations the same way?

An S-Corporation is a separate legal entity, and any transactions between shareholder and the corporation have to be treated as such.  Any funds contributed by the shareholder are either capital contributions or loans from the shareholder.  If the corporation pays personal expenses for the convenience of the shareholder, the payment has to be reclassified as a loan from shareholder repayment or a distribution.  There needs to be a very clear distinction between shareholder and corporation with these transactions and the documentation should be the same as if the transactions were with an unrelated third-party.

In my experience, I have seen this issue come up in IRS audits and with bank loan renewals and applications – especially with S-Corporations owned by a single shareholder.  Without other shareholders to help keep things formal and a clear separation between business expenses and shareholder personal expenses, the single shareholder can get lazy and end up using their S-Corporation like a personal checking account.  If matched with very poor documentation, this can lead to big problems with the IRS – even loss of the S-election status in serious cases.

How can you avoid these problems and make sure you are properly documenting your shareholder loans?  Here are my suggestions based on my experiences with small S-Corporations:

• Keep your personal expenditures and transactions out of the S-Corporation.  It is a separate legal entity and there is no reason for co-mingling personal and business transactions except for the occasional payment for the convenience of the shareholder.
• Reimburse any expenses paid personally on a regular basis via an signed expense report.  Attach receipts and document the who, where, what, and why for meals and entertainment, travel, and other expenses that need explanation as to the business purpose.
• Avoid using personal credit cards for the business; however, if you must resort to this, try to use the card(s) exclusively for business and then use other personal credit cards for personal transactions.
• If you loan funds to the S-Corporation, keep a record of the loan and try to have the corporation make regularly scheduled repayments.  If the loan exceeds $10k, the corporation needs to start tracking and paying interest on the loan principal.
• Talk with your CPA and make sure you understand any reclassification entries made to loans from shareholder accounts.
• Use a lawyer that specializes in small business that will prepare demand notes and documentation for the loan from shareholder on a regular basis.  Many small S-Corporations try to cut corners in this area and it can really hurt them down the line.
• Document, document, document!  I know life is busy and small businesses require more time than you have, but do not get behind on this or create excuses for yourself.  If you cannot meet documentation requirements, then you should not be incorporated.