Section 1377(a)(1) generally provides each shareholder of an S corporation is allocated income or loss of the corporation by (a) assigning an equal portion of each item of income or loss to each day of the year, and (b) dividing that portion pro rata among the shares outstanding on that day. For example, if there is $365 of taxable income for the year, $1 of income is allocated to each day. That $1 is allocated among the shareholders pro rata based on stock ownership on that day.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00TAXhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngTAX2023-02-28 09:44:122023-02-28 09:44:12Section 1377(a)(2) Elections for S Corporations
Section 401(a)(9) requires annual minimum distributions from traditional IRAs beginning in the year the owner of the account attains age 72 or, if later, the year in which the person retires. These minimum distributions trigger income taxes at ordinary income rates where otherwise the recipient may wish not to receive distributions. Fortunately, for those who are charitably minded, the Code provides a mechanism whereby retired individuals can support charities of their choice and also minimize the income taxes caused by required minimum distributions.
This is the last of three installments of this article.
I. Bookkeeper Falls Victim to Section 6672 Trust Fund Recovery Penalty; Kazmi, TC Memo 2022-13.
In Kazmi, a bookkeeper was found liable for the Section 6672 trust fund recovery penalty. The facts of this case are particularly sad.
The bookkeeper, Mr. Kazmi, worked part-time at an hourly rate for an urgent care medical practice. He had no ownership interest in the practice, nor was he an officer or director. Mr. Kazmi was not listed as an authorized signatory on any of his employer’s bank accounts. He did not have any check signing authority nor any authority to direct payments to the employer’s creditors. Unfortunately, Mr. Kazmi did handle all payroll functions. Because he transmitted payroll tax returns and made federal tax deposits for his employer when he was aware withheld taxes had not been remitted to the IRS, he was responsible for the trust fund recovery penalty.
The Tax Cuts and Jobs Act of 2017 capped the deduction available to individual taxpayers under Section 164 to $10,000 for 2017 through 2025. That deduction includes state income taxes, real property taxes, and personal property taxes. To benefit taxpayers who own partnerships or S corporations, many states have enacted elective pass-through entity (“PTE”) taxes that allow the entity to pay the owners’ state income taxes at the entity level. That is significant because Congress explicitly stated the $10,000 limitation does not apply to pass-through entities.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00TAXhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngTAX2022-12-14 10:47:572022-12-14 10:47:57New North Carolina PTE Tax Can Reduce Federal Income Taxes
This is the second of three installments of this article.
I. Contemporaneous Written Acknowledgment Rules for Charitable Contributions of Aircraft and Vehicles; Izen vs. Commissioner (5th Cir. 2022).
Mr. Izen donated a 50% interest in an aircraft to a charitable organization. The Fifth Circuit Court of Appeals upheld the earlier decision of the Tax Court denying any charitable contribution deduction because the purported contemporaneous written acknowledgment (“CWA”) letter failed the strict requirements of Section 170(f)(8)(B). There are specific substantiation requirements when the subject of the gift is a vehicle or an airplane with a value in excess of $500. Under Section 170(f)(12)(B), the CWA from the donee organization must include the name and taxpayer identification number of the donor.
This is the first of three installments of this article.
I. Audit Statistics: What Are Your Chances of Being Audited?
The 2021 Internal Revenue Service Data Book contains audit statistics for 2011 through 2019. Below are audit statistics for 2019 returns:
A. Audit Rates for Individual Income Tax Returns. During FY 2021, only 0.2% of individual income tax returns filed in 2019 were audited (about the same as for 2018 returns).
Total individual returns audited: 0.2%
(1) With no positive income 8%
(2) $100,000 to $500,000 1%
(3) $500,000 to $1 Million 3%
(4) $1 Million to $5 Million 6%
(5) $5 Million to $10 Million 1%
(6) $10 Million or More 2%
In general, operating a business through an entity can provide limited liability in the event the entity is insolvent or goes out of business. Limited liability applies even to business taxes owed by an entity such as a C corporation. Some taxpayers have attempted to take advantage of that by causing a corporation to transfer to its shareholders assets that should be used to pay taxes. Such shareholders liquidate the corporation and ignore IRS attempts to collect. Absent Section 6901, the IRS might have no ability to collect the corporate taxes from the owners of the corporation. However, Section 6901 imposes transferee liability on the owners of the business who received such assets. Read more
Purchasers of a successful business have the reasonable concern that the prior owners will use their expertise to open a new business across the street that immediately competes with the one they just purchased. Noncompete agreements are key to ensuring that does not happen. How is the consideration paid for the noncompetition agreement treated under the tax law for both the seller and the purchaser?
A seller may expect, particularly in a stock sale, the cash allocated to a noncompetition covenant will be taxed as long-term capital gain, like the proceeds from the sale of stock. However, payments received for a noncompetition agreement are actually taxed as ordinary income. Therefore, the seller will want to allocate as little as possible to the noncompete and instead maximize the allocation to the stock (in the case of a stock sale) or to goodwill (in the case of an asset sale). In both cases, that allocation will generally result in long-term capital gain, which is taxed at lower rates than ordinary income. Read more
A person who is both an employee and a partner in a partnership is not treated as an employee for tax purposes. Rev. Rul. 69-184 states “bona fide members of a partnership are not employees of the partnership [for employment tax purposes because a partner is] a self-employed individual.” An employee will generally be treated as a partner if he or she (a) receives a profits interest, (b) receives a vested capital interest, or (c) makes a Section 83(b) election. Read more
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Our colleague Wells Hall is now the chair of the ABA Tax Section. Congratulations Wells! Wells is an attorney with Nelson Mullins and a long-time mainstay of the North Carolina Bar Tax Section.
Recently Wells publicly defended appropriate funding of the IRS. We appreciate Wells’ principled position, notwithstanding the temptation to demonize the IRS.
Herman Spence III is an attorney with Robinson Bradshaw in Charlotte.
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