Taxation of Trust Income Deemed Unconstitutional: NC Supreme Court Decision in Kaestner

By John G. Hodnette

On June 8, the North Carolina Supreme Court affirmed the 2016 decision of the North Carolina Court of Appeals in Kimberly Rice Kaestner Family Trust v. North Carolina Department of Revenue holding that N.C.G.S. § 105-160.2 is unconstitutional under the due process clauses of both the U.S. Constitution and the North Carolina Constitution where taxation of the trust is based solely on the beneficiary residing in North Carolina.  The Court of Appeals had in turn affirmed the 2015 decision of the North Carolina Business Court, which ruled on the same grounds.

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Qualified Opportunity Zones

By Herman Spence III

On October 19 the IRS issued proposed regulations and a revenue ruling about opportunity zones, which are an important tax incentive program in the major tax legislation enacted late last year.  Although the guidance addresses many important issues, the IRS intends to issue further guidance on additional issues.

The opportunity zone program encourages investments in economically distressed qualified opportunity zones by allowing taxpayers to defer, and in some cases reduce or eliminate, tax on capital gains when they reinvest their gains within 180 days in qualified opportunity funds (“QOFs”).  Opportunity zones are receiving a great deal of attention because of significant tax advantages.

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When Are Meal Expenses Nondeductible Entertainment?

By Herman Spence III

The IRS recently issued Notice 2018-76 to provide transitional guidance on the deductibility of certain business meal expenses.  Taxpayers may rely on the Notice until regulations are issued.

1. Interim guidance. Under the Notice, taxpayers may deduct 50% of an otherwise allowable business meal expense if (a) the expense is ordinary and necessary and incurred in carrying on a trade or business, (b) the expense is not lavish or extravagant, (c) the taxpayer, or an employee of the taxpayer, is present at the furnishing of the food or beverages, (d) the food and beverages are provided to a current or potential customer, client, or business contact, and (e) where food and beverages are provided during or at an entertainment activity, the food and beverages are purchased separately from the entertainment or the cost is stated separately.

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Thoughts After Kiawah

By Keith Wood

It was great seeing many of you over the Memorial Day weekend at the Tax Section Annual Workshop in Kiawah.  I am pleased to say that we are making arrangements to be back at Kiawah next Memorial Day for the 2019 Tax Section Workshop.

I wanted to give out a special thank you to Kevin May for his efforts in coordinating with the Georgia Tax Section and the South Carolina Tax Section to plan an excellent program this year.  We also appreciate the generosity of our sponsors this year, Intuitive Compensation Group, Bessemer Trust, Monarch Private Capital, Forensic Strategic Solutions, LLC, Sterling Foundation Management and South Carolina Bar.

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Federal Income Tax Update, Part II

By Keith A. Wood

This is the second of two installments of this article. Read the first installment on the Tax Section blog here.

I. No Tax Basis Increase for Loan Guaranties Even After the S Corporation Loan Is Called in Full.

 An S corporation shareholder may deduct his/her pro rata share of any losses sustained by the corporation, but those loss deductions are limited to the sum of (a) the shareholder’s adjusted tax basis in the stock, and (b) any corporate indebtedness actually owed to the shareholder.  IRC § 1366(d)(1).

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Our Annual Workshop In Kiawah Is Just Two Months Away

By Keith Wood

On Wednesday, March 7, the Tax Section Council met at the Mecklenburg County Bar Center in Charlotte, and so I wanted to give everyone an update on some of the things happening in our Section.

First and foremost, Kevin May and his CLE Committee have organized an outstanding CLE agenda for the 17th Annual North Carolina/South Carolina/Georgia Tax Section Workshop to be held May 25-27 in Kiawah Island, S.C.  Below you will see a summary of the program agenda.

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Federal Income Tax Update, Part I

By Keith A. Wood

This is the first of two installments of this article. Read the second installment here.

I. Audit Statistics; What Are Your Chances of Being Audited?

The 2016 Internal Revenue Service Data Book (IR-2017-69) contains audit statistics for the fiscal year ending September 30, 2016.  Here are the audit statistics for returns filed for calendar year 2015 (“CY 2015”):

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Tax Reform: Selected Planning Points

By Herman Spence III

Below are selected planning points regarding recent tax changes. This summary does not discuss which provisions are temporary and which are permanent.

A. Bunching Into One Year Charitable Contributions That Would Otherwise Be Made Over Several Years

The new tax law raises the standard deduction to $24,000 for married couples filing jointly. Only $10,000 of state income taxes and property taxes may be deducted. Many expenses that were previously deductible, including investment management expenses and employee expenses, are no longer deductible. Many individuals will now use the $24,000 standard deduction rather than itemizing deductions. Such a taxpayer will, in effect, lose the deductibility of charitable contributions. Some taxpayers may be able to mitigate that by making in a single year charitable contributions they would normally make over several years. Such a taxpayer may have itemized deductions exceeding $24,000 in the year in which charitable contributions are bunched.

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Tax Questions For Discussion: Please Respond

By Herman Spence

Please provide comments about the issues below to Herman Spence at  hspence@robinsonbradshaw.com.  I will summarize the responses and post them on the Tax Section blog.  I will not mention any individual’s response and will not provide the names of responders.

  1.       North Carolina Stamp Taxes
  1.       Background. GS § 105-228.29 provides the stamp tax does not apply if no consideration in property or money is paid by the transferee to the transferor.  In an Attorney General’s opinion issued in 1973, a husband and wife were the sole shareholders of the corporation to which they conveyed a tract of land without consideration.  The Attorney General determined stamp taxes were not due but emphasized there would be  a contrary result if shares of stock were issued in consideration of the transfer of the property.
  2.       Transfer of real estate to an LLC upon the formation of the LLC.  To avoid the issuance of an LLC interest upon the contribution of property and to avoid the implication of the 1973 Attorney General’s opinion, do you first organize the LLC and issue LLC interests and later separately contribute property to the LLC without consideration?
  3.        Conveyance of property to LLC in anticipation of sale.  Is it reasonable to take the position no stamp taxes are due if property is transferred to a newly formed LLC shortly before the sale of the property, and the transaction is restructured as a sale of the LLC interests?  If it is unreasonable to convey the property to an LLC immediately before the sale of the LLC interests, is it reasonable to contribute the property to the LLC when the sale of the property is expected but there is not yet a sales contract?

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From the Chair: Kiawah In the Rear View — and On the Horizon

By Keith Wood

It was great seeing many of you over Memorial Day weekend at the North Carolina/South Carolina/Georgia Tax Update program in Kiawah. A special thanks to Isaac Bradley for all the hard work in putting that program together.

As some of you may already know, we have reserved the East Beach Conference Center for next year’s Annual Meeting in Kiawah again over Memorial Day weekend. We hope you will start making plans to join us in Kiawah that weekend. For those of you already planning to attend, we would ask that you encourage other co-workers and colleagues to make plans to attend as well.

Also, Kevin May of Graves May in Wilmington has agreed to chair this CLE Committee. I know he would appreciate suggestions for speakers or topics.

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