All posts by Amanda.Gawron@VerticalAdvisors.com

RE: Paycheck Protection Program — Tax Implications of Expenses Paid with a Forgiven PPP Loan

The Internal Revenue Service (IRS) recently issued Revenue Ruling 2020-27 which provides that expenses paid with Paycheck Protection Program (PPP) loan proceeds are not deductible in the tax year paid or incurred, if at the end of the tax year the taxpayer has a “reasonable expectation of forgiveness.” As a result, many calendar-year taxpayers that received a PPP loan will have additional income to report on their 2020 tax return if they wish to be in accord with IRS guidance.

The IRS states in Rev. Rul. 2020-27 that a taxpayer has a reasonable expectation of forgiveness if he/she intends to apply for loan forgiveness. Therefore, unless a taxpayer has decided not to file for loan forgiveness, the taxpayer is presumed to have a reasonable expectation of forgiveness.

Subsequent to the IRS’s ruling, several members of Congress have expressed concern with the IRS’s position and have made it clear that the congressional intent in the CARES Act was to ensure that PPP loan recipients whose loans are forgiven are not required to treat the proceeds as taxable income. Thus, they are strongly encouraging the IRS to reconsider its position on the deductibility of these expenses, and the timing of those deductions, to provide relief to the small businesses that need it most. In addition, there may be state income tax implications as many states have not conformed to the federal government’s tax treatment of PPP loans or related forgiveness.

Although there is a possibility that congressional action could reverse the IRS position, its likelihood remains uncertain. Given the potential of penalties for underpayment of estimated tax because of the disallowance of the related expenses, our firm believes impacted taxpayers should take proactive action. In order to avoid underpayment of estimated tax penalties, taxpayers should increase their withholding or estimated tax payments to satisfy the prior-year tax safe harbor rules (100% / 110% of 2019).

If you have applied, intend to apply, or are undecided as to whether to apply for PPP loan forgiveness, then, absent further guidance, you should consider the following options for the filing of your 2020 federal income tax return:

1. Extend your tax return to allow additional time for congressional action in opposition to the IRS position.
2. File your tax return based on Notice 2020-32 and Revenue Ruling 2020-27 guidance by NOT deducting expenses paid with forgiven PPP loan proceeds. If the current IRS position is reversed, you can file an amended return to claim these deductions.
3. File your tax return taking a deduction for expenses but disclose (i.e., file IRS Form 8275) a position that is contrary to current IRS guidance. Disclosure helps to avoid the imposition of penalties if the IRS ultimately disagrees with the position but likely increases the taxing authority’s scrutiny of your return.
4. Choose not to apply for the PPP loan forgiveness and deduct the expenses as usual.
Immediate Action Required
Given the uncertainty that exists with the conflict between the current tax guidance as promulgated by the IRS and the congressional intent of the PPP, we strongly encourage you to reach out to us as soon as possible for some tax planning guidance to help minimize your risk for the potential underpayment of estimated tax penalties because of the disallowance of the related PPP expenses. Again, to avoid underpayment of estimated tax penalties, you may need to increase your estimated tax payments for the 2020 tax year as soon as possible to satisfy the prior-year tax safe harbor rules.

If you have any questions regarding this communication or if you need assistance in determining the impact of these rules to your specific tax situation, please contact us. We recognize that these are difficult and uncertain times, and we remain committed to supporting you.

CAA 2021 Extension and Expansion on Employee Retention Credit

Scope

This  is to alert Vertical Advisors’ clients about Expansion and extension of Employee Retention Credit (ERC) provided by the Consolidated Appropriations Act, 2021 (CAA, 2021) which was signed on December 27, 2020. This credit is also available for the period March 12, 2020 to January 1, 2021 based on the prior bill called Families First Coronavirus Response Act. However, if a business received a PPP related to the prior period, generally the credit will not apply.

Under the CARES Act, the Employee Retention Credit is a refundable tax credit against certain employment taxes equal to 50% of the qualified wages an eligible employer pays to employees after March 12, 2020, and before Jan. 1, 2021. The CAA includes the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (TCDTR), which extends and expands upon the ERC provided by the CARES Act until June 30, 2021 (Sec. 207).

This credit will generally benefit businesses that have employees that did not receive PPP money. However, if a business has received PPP money, the ERC could still be applied related to wages not included in the PPP covered period.

Highlights

ERC Calculation:

As noted above, the credit applies to wages paid in both 2020 and 2021.

For wages paid prior to 12/31/2020, the credit amount is 50% of qualified wages, up to $10,000 in total per employee. Thus, the maximum Retention Credit in total amount is $5,000 per employee. The Retention Credit applies to:

  • The employer’s share of Social Security tax under IRC Section 3111(a) (6.2% of wages)
  • The portion of the employer’s and employee representative’s share of RRTA tax under IRC Sections 3211(a) and 3221(a) that corresponds to the 6.2% Social Security tax rate due.

If the Retention Credit exceeds the employer’s Social Security or RRTA tax liability for the quarter, the excess may be refunded to the employer. The credit will need to be claimed on IRS Form 941 (Quarterly Payroll form).  Please see Item D of this section for details on how to claim and report the credit.

For wages paid after 12/31/2020, the credit amount is 70% of qualified wages, up to $10,000 per quarter (up from $10,000 total) of qualified wages paid to an employee. Thus, the maximum ERC amount available for 2021 is $14,000 per employee ($7,000 per quarter).  This would apply to Q1 and Q2, 2020 payroll form 941.  If you have already filed the forms, it can be amended.

CAA also allows businesses with 500 or fewer employees to advance the credit at any point during the quarter based on wages paid in the same quarter in a previous year (Sec. 207(e)(1)).

Qualified Wages:

CARES Act section 2301 created the ERC for wages paid from March 13, 2020 to December 31, 2020, by employers that are subject to closure or significant economic downturn due to COVID-19. The CAA extends the ERC to include wages paid before July 1, 2021 (from January 1, 2021). Qualifying wages are based on the average number of a business’s employees.

Prior to 12/31/2020, for employers of 100 or fewer employees, qualified wages are wages paid to any employee during a COVID-19 shutdown or during a calendar quarter with a significant decline in gross receipts, without regard to whether the employee is providing services; For employers of more than 100 employees, qualified wages remain wages (as defined under the Federal Insurance Contributions Act) paid for services an employee is not providing due to a COVID-19 shutdown or a significant decline in gross receipts.

CAA increases the 100-employee delineation for determining the relevant qualified wage base to employers with 500 or fewer employees (Sec. 207(e)(1) for period beginning after 1/1/2021.

The CARES Act previously contained a limitation that qualified wages paid or incurred by large employers could not exceed what the employee would have been paid for an equivalent amount of work in the 30 days immediately preceding the period for which the employer claimed the credit. The expanded ERC eliminates this limitation.

Eligible Employer:

All employers are eligible for the employee retention credit, including tax-exempt organizations. There is no size limitation or threshold.

Prior to 12/31/2020, to be eligible for the Retention Credit for the period, an employer must carry on a trade or business in 2020 that experiences one of the two following COVID-19-related occurrences:

(1) COVID-19 Shutdown: operations were fully or partially suspended on orders from a governmental authority due to COVID-19, or

(2) Gross Receipts Decline: the business experienced a 50% reduction in gross receipts for a calendar quarter as compared to the same calendar quarter in the prior year.

  • For 1/1/2021-6/30/2021, CAA Expands eligibility for the credit by reducing the required year-over-year gross receipts decline from 50% to 20% and provides a safe harbor allowing employers to use prior quarter gross receipts to determine eligibility (Sec. 207(d)(2)(B))

 

Employers who received forgiven PPP loans can still qualify for ERC: As originally enacted, employers who received PPP loans were not eligible to claim the ERC. Retroactive CAA, 2021 provisions retroactively clarifying the limitation such that employers who receive PPP loans may elect to treat payroll costs paid during the loan-covered period as qualified wages to the extent the wages are not paid for with forgiven PPP loan proceeds (Sec. 206(c)). As a result, for that portion of wages the employer may claim the ERC.

How to Claim ERC:

Form 941, Employer’s Quarterly Federal Tax Return, will be used to report total qualified wages and claim ERC for each calendar quarter. The nonrefundable portion of the ERC will be reported on line 11c and the refundable portion, if applicable, which is the amount that exceeds the employer’s social security or RRTA tax liability for the quarter will be reported on line 13d.

Wages paid by forgiven PPP loans are excluded from qualified wages. Therefore, if you have applied for PPP loan and did not pay it back, the portion of the loan used to pay wages will be subtracted from total qualified wages.

Please ensure the quarterly qualified wages and ERC are properly reported and claimed on Form 941. 2020 Q4 Form 941 is due by 1/31/2021.

Tax deduction offset: Please also note that ERC reduces the expenses that could otherwise deducted because CARES Act Sec. 2301(e) provides that rules similar to Code Sec. 280C(a) apply for purposes of applying the employee retention credit. Code Sec. 280C(a) generally disallows a deduction for the portion of wages paid equal to the sum of certain credits determined for the tax year. As such that an employer’s aggregate deductions would be reduced by the amount of the ERC.

Next Steps:

If you are interested in VA running some numbers for your business related to the ERC, we will need the following items?

  1. Did you receive a PPP? If so, we will need the amount of the PPP, your covered period, and information about the loan forgiveness.
  2. We will need payroll reports for the ERC covered period.
  • Please provide the quarterly wages report for Q2, Q3 and Q4.
  • For Q1, please provide payroll report covering 3/13/2020-3/31/2020.
  • Alternatively, you can share your payroll access with us.
    1. Please let us know if you need our assistance in the filing to claim the ERC.

If you have filed Form 941 without claiming the ERC for 2020 Q2-Q4, you can still claim the credit for by filing Form 941-X for each corresponding quarter. Generally, you may correct overreported taxes on a previously filed Form 941 if you file Form 941-X within 3 years of the date Form 941 was filed or 2 years from the date you paid the tax reported on Form 941, whichever is later.

Form 941-X cannot be electronically filed. If you did not claim ERC for Q2 and Q3 but have not file the 4th quarter Form 941, we recommend claim the credit on the original Q4 Form 941 as the claim is generally processed quicker on original returns. Then consider filing Form 941-X for Q2 and Q3 to claim remaining eligible credit.

California Proposition 19

  1. Scope – What is the purpose/ subject of this memo

The purpose of this memo is to discuss California Proposition 19, which is also referred to as The Home Protection for Seniors, Severely Disabled, Families, and Victims of Wildfire or Natural Disasters Act. This measure was approved by California voters in November 2020. This memo will provide an explanation of the new Proposition and compare it to the existing law. Additionally, the memo contains a list of topics to consider as a result of the passage of this new law.

 

  1. Analysis – Existing Law (ARTICLE XIII A of the California Constitution)

The existing law is under Proposition 13 which was passed in 1978. Under this law, the following was true:

  1. Property tax is limited to 1% of a home’s taxable value, based on when the home was purchased, and thereafter, the appraised value of the property when purchased, newly constructed, or a change in ownership occurs, subject to an annual inflation adjustment not to exceed 2%.
  2. For taxpayers 55 years or older or any severely and permanently disabled person residing in the property eligible for the homeowner’s exemption, they can transfer the base year value of that property to a replacement dwelling of equal or lesser value located in the same county, or another county that has adopted an ordinance allowing base years value transfers from other counties, as provided. Eligible taxpayers were able to utilize this one time.
  3. The purchase or transfer of the principal residence, and the first $1,000,000 of other real property, of a transferor in the case of a transfer between parents and their children, or between grandparents and their grandchildren if all the parents of those grandchildren are deceased, is not a “purchase” or “change in ownership” for purposes of determining the “full cash value” of the property for taxation. Additionally, there is a restriction on how much that taxable value can go up each year, even if a home’s market value increases much more.

 

  • Analysis – New Tax Law (Assembly Constitutional Amendment No. 11)

Proposition 19 changes the existing law in the following ways:

  1. Homeowners who are 55 or older or who have lost a home in a natural disaster can now transfer their tax assessment from their previous home to a new more expensive home. This can be done up to three times, instead of the previous one-time allowance.
  2. The measure eliminates the exclusion for reassessment when a house transfers to a child or a grandchild. The child or grandchild must actually use the residence as their primary residence to avoid reassessment. Previously, there was no requirement for the inheritor to utilize the house as their primary residence.
  1. Topics to Consider
    1. Who does this help and how?

 

CA proposition 19 benefits homeowners who are 55 years old or older. When they move to a new and more expensive residence, they can blend the taxable value of their old house with the purchase price of a new, more expensive home, reducing the property tax payment they would otherwise face. This benefit would also extend to disabled taxpayers and taxpayers who have lost their homes in wildfires or other natural disasters.

 

“For example, a qualifying homeowner who owns a home with a taxable value of $200,000 that is worth $600,000 on the market would pay roughly $2,200 in property taxes now. If the homeowner moves to a $700,000 house, the homeowner will pay $3,300 a year in property taxes under Proposition 19. Without the initiative, the same homeowner would pay $7,700 annually at the new home.” (LA Times)

 

Based on the example provided by the LA Times, a qualifying homeowner who owns a home with a taxable value of $200,000 that is worth $600,000 on the market would pay roughly $2,200 in property taxes now. If they move to a $400,000 house, it would be expected that if the new home is less than the $600,000 market value of the old home, then the property taxes would be unchanged.

 

  1. Who does this hurt?

 

The group of people who would be hurt by proposition 19 are the children who will inherit the properties from their families and intend to rent it out or keep it as a second home. If the child or grandchild that inherited the property does not utilize the property as their primary residence, the property tax will be reassessed based on the market value and thus the children or grandchildren would lose the ability to retain the tax basis that was based on the original purchase price.

 

 

  1. Are there any exceptions?

 

As we discussed above, for the children who will inherit the properties from their families and intend to rent it out or keep it as a second home, the properties will be reassessed, and the tax base would go up based on the market value consequently. However, Prop 19 does not change any of the ownership rules for properties owned by legal entities, which generally provide that legal entity interests can be transferred from current owners to new owners without triggering a reassessment, subject only to the change in control rule and cumulative ownership rules. This legal entity rule is sometimes referred to as “The Dell Maneuver” because Michael Dell purchased the Fairmont Miramar Hotel in Santa Monica without triggering a reassessment. It should be noted that there are regular attempts to close off the Dell Maneuver legislatively, but none have succeeded to date. Accordingly, individual owners would therefore have an incentive to transfer their property to a legal entity to avoid future reassessment.

 

  1. Important Date

The deadline to transfer real properties without triggering the new reassessment rules under Prop 19 is February 15, 2021.

 

Generally, your estate attorney or attorney will be able to advise you in these matters.  We recommend you speak with your legal counsel if you desire to implement any changes related to Prop 19.

 

Helpful Links:

https://www.boe.ca.gov/prop19/

 

https://www.boe.ca.gov/proptaxes/pdf/lta20061.pdf

Is a new COVID-19 bill coming? The house and the senate have been apparently working on another bill.

Here are the highlights from our perspective.

On December 15, 2020, two bipartisan COVID-19 relief bills, the Bipartisan COVID-19 Emergency Relief Act of 2020 and the Bipartisan State and Local Support and Small Business Protection Act of 2020, were introduced that contain payroll-related provisions.

 

Background. Earlier in 2020, the federal government enacted legislation with COVID-19 relief provisions aimed at helping employers and workers. This included the Families First Coronavirus Relief Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security (CARES) Act. Certain provisions in each bill provided aid for employers and workers such as the Paycheck Protection Program (PPP) and Pandemic Unemployment Assistance (PUA).

 

Negotiations for further COVID-19 relief legislation between the White House, Senate and Congress have stalled several times.

 

A new hope? However, the two bipartisan bills introduced in the Senate on December 15 may make it to the finish line before the end of the year based on the statements made by Senators who introduced the bills. According to Senator Joe Manchin (D-WV), who introduced “The Bipartisan COVID-19 Emergency Relief Act of 2020,” with other Senators: “We’re not going home for Christmas until this gets done.”

 

Senator Mitt Romney (R-UT) who, with other Senators, introduced “The Bipartisan State and Local Support and Small Business Protection Act of 2020,” noted: “This compromise represents the best path forward for Congress and the Administration to provide much-needed relief for the American people before the end of the year.” Senator Rob Portman (R-OH) added: “The Senate should not adjourn until we have passed a new COVID-19 package to provide the relief Americans need.” The Bipartisan COVID-19 Emergency Relief Act of 2020. A summary of The Bipartisan COVID-19 Emergency Relief Act of 2020 says it contains the following payroll-related provisions:

 

PPP and small business support.  This bill would provide $300 million to the Small Business Administration (SBA) to allow the hardest hit small businesses to receive a second forgivable PPP loan. Eligibility for these loans would be limited to businesses with 300 or fewer employees that have sustained a 30% revenue loss in any quarter in 2020.

 

Forgivable expenses would be expanded to include supplier costs and investments in facility modifications and personal protective equipment needed to operate safely. Also, business expenses paid for with the proceeds of PPP loans are specifically tax deductible, “consistent with Congressional intent in the CARES Act,” according to the summary.

 

In addition, the loan forgiveness process would be simplified for borrowers with PPP loans of $150,000 or less.

 

Unemployment assistance. The bill would also provide for a 16 week extension of all pandemic unemployment insurance programs, including PUA and pandemic emergency unemployment compensation (PEUC). The 16 weeks would run from the end of December 2020. It would also ensure beneficiaries of Railroad Retirement Board received the same benefits as other workers.

 

In addition, federal supplemental unemployment insurance benefits would be expanded by $300 per week for 16 weeks, from the end of December into April 2021.

 

Payroll support program extension. The bill would extend the Payroll Support Program (PSP) through March 31, 2021. As in the CARES Act, funds will go directly to frontline aviation workers’ wages, salaries, and benefits. The Bipartisan State and Local Support and Small Business Protection Act of 2020. A summary of The Bipartisan State and Local Support and Small Business Protection Act of 2020 says it contains the following payroll-related provisions:

State, local and tribal government relief. This bill would provide for $160 billion for state, local and tribal assistance. And, would extend the deadline for spending CARES Act Coronavirus Relief Fund (CRF) aid on COVID-related expenses through December 31, 2021.

 

Liability protection. This bill would also provide “liability protection” for employers. Employers would not be subject to liability under federal employment law in COVID-19 exposure cases or for changes in working conditions related to COVID-19 if the employer was trying to conform to public health standards and guidance.

 

The bill would also ensure that an employer’s personal protective equipment (PPE) requirements, COVID-19 policies, procedures, or training, workplace testing, or financial assistance to an independent contractor does not create evidence of an employer-employee relationship.

Tax Cuts and Jobs Act – State and Local Taxes Update

7 Companies Making Use of a Stock Option Tax Loophole

Summary

The Tax Cuts and Jobs Acts (TCJA) limited the individual tax deduction of state and local taxes (SALT) to $10,000 for married filing joint and $5,000 for married fling separate, or single. We feel this limitation was done to offset tax reductions done to spur the US economy. This limitation hurt and increased income taxes for taxpayers that are residents in states with high taxes. Taxpayers and states have been looking for a method of getting around this tax deduction limitation. Various ideas have failed, but the IRS recently issued IRS Notice 2020-75 which provides some hope. In the notice the IRS is explaining that if a state makes a flow through entity (an S Corporation or Partnership) liable for the income tax, rather than the shareholders or partners, and the entity pays it, then that state tax is not limited. Many states have been looking for a way to help their residence, and the IRS has explained a way, but why hasn’t more states implemented this change if they really want to help their residence? Currently only seven (7) states have made this change.

 

Scope

The purpose of this memo is to discuss Notice 2020-75 issued by Internal Revenue Service (IRS) on November 9, 2020, which allows state and local income taxes imposed on and paid by partnerships or S Corporations in computing its non-separately stated taxable income or loss for the taxable year of payment and are not subject to SALT limitation.

 

Background

Tax Cuts and Job Acts (TCJA) limits the individual deduction of SALT to $10,000 (or $5,000 for married filing separately) for tax years 2018-2025. Due to this limitation, the notice cited that certain jurisdictions have enacted or contemplating to enact tax laws that impose either a mandatory or elective entity-level income tax on partnerships and S Corporations that do business in the jurisdiction or have income derived from or connected with sources within the jurisdiction. The notice pointed out that “certain jurisdictions provide a corresponding offsetting, owner-level tax benefit, such as full or partial credit, deduction, or exclusion” for taxes deducted at the Pass-Through Entity (PTE) level and that Treasury and IRS are “aware of the uncertainty as to whether entity level-payments made under these laws to jurisdictions described in §164(b)(2) other than U.S. territories must be taken into account in applying the SALT deduction limitation at the owner level”.

 

The notice also announced the IRS’s intention to issue a proposed regulation to provide clarity to individual owners of partnerships and S Corporations in calculating their SALT deduction limitations and clarify the Specified Income Tax Payments which are deductible by partnerships and S Corporations in computing their non-separately stated income or loss.

ᐈ Taxes stock photos, Royalty Free taxation photos | download on  Depositphotos®

Discussion/Analysis

  1. Reporting of Deduction in the Partnership or S Corporation Tax Return
    1. Based on the notice, SALT does not need to be separately stated. Thus, it would be expected that the deduction will be reported under “Taxes and Licenses” on Form 1065 or 1120S and will flow-through to partners/shareholders as part of Box 1 “ordinary income or loss” on Schedule K-1.

 

  1. Deductibility of the SALT
    1. As mentioned in the notice, there are “certain jurisdictions” that shifted the individual tax to entity-level tax to “workaround” from the SALT limitation under TCJA and below are the states that imposes entity-level income tax which is referred to as a “Specified Income Tax Payment”:
    2. Connecticut – effective January 1, 2018
    3. Louisiana – election to be made
    4. Maryland – imposed to the distributive shares or pro rata shares of resident members of the PTE
    5. New Jersey – effective January 1, 2020, election to be made
    6. Oklahoma – effective January 1, 2019, needs annual election
    7. Rhode Island – effective January 1, 2019, election to be made
    8. Wisconsin – effective January 1, 2019 for person or persons holding more than 50% of capital and profits of a partnership
  2. According to the notice, if a partnership or an S Corporation makes a Specified Income Tax Payment during the taxable year, the partnership or S Corporation is allowed a deduction for the Specified Income Tax Payment in computing its taxable income for the taxable year in which the payment is made.
  3. The impending proposed regulations defined “Specified Income Tax Payments” as any amount paid by a partnership or an S Corporation to a State, a political subdivision of a State or the District of Columbia (Domestic Jurisdiction) to satisfy its liability for income taxes imposed by the Domestic Jurisdiction on the partnership or S Corporation, meaning, it will solely include the state and local taxes paid under Sec. 164(b)(2) but excluding taxes paid or accrued to foreign countries and U.S. territories under Sec. 703(a)(2)(B) and Sec. 1363(b)(2).

 

  1. Effectivity Date of the Deduction

Based on the notice, the forthcoming Proposed Regulations will apply to payments on or after November 9, 2020, but taxpayers are also permitted to apply the rules to payments made in a partnership or S Corporation tax year ending after December 31, 2017 and before November 9, 2020.

Notes/Comments

  1. This is a taxpayer friendly decision made by IRS. It is expected that other states, particularly those that impose high personal income tax rates on residents that are disproportionately affected by the $10,000 SALT deduction cap may enact similar laws in response to IRS guidance.
  2. Currently, California and many other high tax states have not made this beneficial change. If you live in a state with high income taxes, I suggest you contact them.
  3. Individual states and every individual have unique tax calculations and applications of tax laws, so please contact us if you have questions.

Security Warning for COVID Related Scams

The Security Summit, a coalition of the IRS, state tax agencies, and the private sector tax industry, is warning taxpayers about a new text scam that tricks people into disclosing bank account information under the guise of receiving the $1,200 Economic Impact Payment (EIP).

The text message states: “You have received a direct deposit of $1,200 from COVID-19 TREAS FUND. Further action is required to accept this payment into your account. Continue here to accept this payment” This is followed by a link to a fake phishing web address. The IRS reminds taxpayers that it will never send texts asking for bank account information. Those targeted by the scam should take a screen shot of the text message and email it to phishing@irs.gov with the (1) date, time, and time zone that they received the message; (2) the number that appeared on their caller ID; and (3) the number that received the text message.

News Release IR 2020-249.

If you receive any notice like this, please contact us to discuss if we can be of assistance.

 

Fantasy Sports Entry Fee Constitutes a Wagering Transaction

NYS winning big with daily fantasy sports | WBFO

 

 

In a recent Chief Counsel Advice (CCA), the IRS concluded that the entry fee to participate in a Daily Fantasy Sports (DFS) contest constitutes an amount paid for a wagering transaction under IRC Sec. 165(d). The IRS noted that DFS transactions meet the definition of wager , as interpreted by the Tax Court and state courts, because (1) there is an uncertain event (such as the live performance of individual players), (2) winnings if the event resolves in the participant’s favor, and (3) consideration is lost if the event does not resolve in the participant’s favor. According to the IRS, DFS transactions are similar to poker and other wagers in which a player’s skill is a component of the game, but does not dictate the outcome. CCA 202042015.

Copyright © 2020 Thomson Reuters/PPC. All rights reserved.

Potential California Tax Increases

Democrats are at it again in California.  I personally feel that the majority of bills created by California Democrats DO NOT support what the residents of California wants. So, let’s talk about a new one, AB 1253, which can be viewed at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1253

 

The California Democrats  have proposed a significant tax hike on taxable income of $1 million and higher. Legislators say the tax hike would raise more than $6 billion a year to help K-12 schools and government services hurt by the coronavirus pandemic.  I don’t know about your, but I have heard many times in the past that additional taxes and fees were going to the schools, for example the Lottery proceeds were supposed to go to the school, but what they didn’t’ communicate was they were taking away existing funding, and replacing it with Lottery.  In California we pay one of the highest state income taxes, sales tax, and gas tax.  I personally feel as a CPA and business owner, we the people need to tell our representatives, NO MORE TAXES and they need to become fiscally responsible.

 

Anyway, here are the tax rates that AB 1253 is proposing:

 

  • A 1% tax on income above $1 million, but not over $2 million
  • A 3% tax on income over $2 million, but not over $5 million
  • A 3.5% tax on income over $5 million

 

The bill would apply retroactively to tax years beginning on or after January 1, 2020, and would be permanent.

 

Under existing law, the highest tax rate for individuals is 12.3%, but when your income is over $1,000,000 there is  an additional 1% for income over $1 million often called a “mental health tax”.   With all the mental health tax collected, California shouldn’t have a mental health problem.  However, look at our homeless challenges.  Again, from a business perspective, the State seems to just be out of control in spending and just wants to tax the residents more and more and have no accountability.

 

If AB 1253 were enacted, the 13.3% rate would rise to 14.3% for incomes above $1 million and the state’s highest rate would be raised to 16.8% for incomes above $5 million.

The proposal would result in a top tax rate of nearly 54% for federal and state taxes for the highest earners.   If Biden is elected, he has already stated he would roll back the Trump tax cuts, so the combined tax rate would increase even more.

 

California already has the highest state tax rate at 13.3%, Hawaii is the second highest at 11%.  Most other states have a state tax of about 6%, and  Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming do not have an income tax.

 

The continued tax increases are going to continue to move wealthy individuals out of the state.  However, a change of residency needs to be done right, so if you are considering to change your residency, please contact us.  Most of the clients we have helped with changing residency, have done so properly and maintain a second home in California.

 

At this point, we highly recommend that you contact your State representative, and voice your opinion on the proposed tax increase and perhaps a discussion about fiscal responsibility.  Please contact us at 949-756-8080 if we can be of assistance.

IRS Scams – 2020 IRS Dirty Dozen

The IRS recently announced the top dozen IRS scams as noted in IR-2020-160, July 16, 2020.

https://www.irs.gov/newsroom/dirty-dozen

They are listed below:

Phishing:

What Is Phishing and How to Recognize It? - Mailjet

Taxpayers should be alert to potential fake emails or websites looking to steal personal information. The IRS will never initiate contact with taxpayers via email about a tax bill, refund or Economic Impact Payments. Don’t click on links claiming to be from the IRS. Be wary of emails and websites − they may be nothing more than scams to steal personal information. VA Comment: We have been informed by a handful of our clients that they have received IRS emails.  Please note that this is one of the top IRS scams.  Make sure everyone in your accounting department knows this so you can reduce your risk of a financial crime.

IRS Criminal Investigation has seen a tremendous increase in phishing schemes utilizing emails, letters, texts and links. These phishing schemes are using keywords such as “coronavirus,” “COVID-19” and “Stimulus” in various ways.

These schemes are blasted to large numbers of people in an effort to get personal identifying information or financial account information, including account numbers and passwords. Most of these new schemes are actively playing on the fear and unknown of the virus and the stimulus payments. (For more see IR-2020-115, IRS warns against COVID-19 fraud; other financial schemes.)

Fake Charities:

9 Positive Effects of Donating Money to Charity - The Life You Can ...

Criminals frequently exploit natural disasters and other situations such as the current COVID-19 pandemic by setting up fake charities to steal from well-intentioned people trying to help in times of need. Fake charity scams generally rise during times like these.

Fraudulent schemes normally start with unsolicited contact by telephone, text, social media, e-mail or in-person using a variety of tactics. Bogus websites use names similar to legitimate charities to trick people to send money or provide personal financial information. They may even claim to be working for or on behalf of the IRS to help victims file casualty loss claims and get tax refunds.

Taxpayers should be particularly wary of charities with names like nationally known organizations. Legitimate charities will provide their Employer Identification Number (EIN), if requested, which can be used to verify their legitimacy. Taxpayers can find legitimate and qualified charities with the search tool on IRS.gov.

Threatening Impersonator Phone Calls:

IRS impersonation scams come in many forms. A common one remains bogus threatening phone calls from a criminal claiming to be with the IRS. The scammer attempts to instill fear and urgency in the potential victim. In fact, the IRS will never threaten a taxpayer or surprise him or her with a demand for immediate payment.  VA Comments: If you receive a call from the IRS or any government authority, and you are not sure, please get their contact information and contact Vertical Advisors so we can assist quickly. 

Phone scams or “vishing” (voice phishing) pose a major threat. Scam phone calls, including those threatening arrest, deportation or license revocation if the victim doesn’t pay a bogus tax bill, are reported year-round. These calls often take the form of a “robocall” (a text-to-speech recorded message with instructions for returning the call).

The IRS will never demand immediate payment, threaten, ask for financial information over the phone, or call about an unexpected refund or Economic Impact Payment. Taxpayers should contact the real IRS if they worry about having a tax problem.

Social Media Scams:

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Taxpayers need to protect themselves against social media scams, which frequently use events like COVID-19 to try tricking people. Social media enables anyone to share information with anyone else on the Internet. Scammers use that information as ammunition for a wide variety of scams. These include emails where scammers impersonate someone’s family, friends or co-workers.

Social media scams have also led to tax-related identity theft. The basic element of social media scams is convincing a potential victim that he or she is dealing with a person close to them that they trust via email, text or social media messaging.

Using personal information, a scammer may email a potential victim and include a link to something of interest to the recipient which contains malware intended to commit more crimes. Scammers also infiltrate their victim’s emails and cell phones to go after their friends and family with fake emails that appear to be real and text messages soliciting, for example, small donations to fake charities that are appealing to the victims.

EIP or Refund Theft:

The IRS has made great strides against refund fraud and theft in recent years, but they remain an ongoing threat. Criminals this year also turned their attention to stealing Economic Impact Payments as provided by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Much of this stems from identity theft whereby criminals file false tax returns or supply other bogus information to the IRS to divert refunds to wrong addresses or bank accounts.

The IRS recently warned nursing homes and other care facilities that Economic Impact Payments generally belong to the recipients, not the organizations providing the care. This came following concerns that people and businesses may be taking advantage of vulnerable populations who received the payments. These payments do not count as a resource for determining eligibility for Medicaid and other federal programs They also do not count as income in determining eligibility for these programs. See IR-2020-121, IRS alert: Economic Impact Payments belong to recipient, not nursing homes or care facilities for more.

Taxpayers can consult the Coronavirus Tax Relief page of IRS.gov for assistance in getting their EIPs. Anyone who believes they may be a victim of identity theft should consult the Taxpayer Guide to Identity Theft on IRS.gov.

Senior Fraud:

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Senior citizens and those who care about them need to be on alert for tax scams targeting older Americans. The IRS recognizes the pervasiveness of fraud targeting older Americans along with the Department of Justice and FBI, the Federal Trade Commission, the Consumer Financial Protection Bureau (CFPB), among others.

Seniors are more likely to be targeted and victimized by scammers than other segments of society. Financial abuse of seniors is a problem among personal and professional relationships. Anecdotal evidence across professional services indicates that elder fraud goes down substantially when the service provider knows a trusted friend or family member is taking an interest in the senior’s affairs.

Older Americans are becoming more comfortable with evolving technologies, such as social media. Unfortunately, that gives scammers another means of taking advantage. Phishing scams linked to Covid-19 have been a major threat this filing season. Seniors need to be alert for a continuing surge of fake emails, text messages, websites and social media attempts to steal personal information.

Scams targeting non-English speakers:

IRS impersonators and other scammers also target groups with limited English proficiency. These scams are often threatening in nature. Some scams also target those potentially receiving an Economic Impact Payment and request personal or financial information from the taxpayer.

Phone scams pose a major threat to people with limited access to information, including individuals not entirely comfortable with the English language. These calls frequently take the form of a “robocall” (a text-to-speech recorded message with instructions for returning the call), but in some cases may be made by a real person. These con artists may have some of the taxpayer’s information, including their address, the last four digits of their Social Security number or other personal details – making the phone calls seem more legitimate.

A common one remains the IRS impersonation scam where a taxpayer receives a telephone call threatening jail time, deportation or revocation of a driver’s license from someone claiming to be with the IRS. Taxpayers who are recent immigrants often are the most vulnerable and should ignore these threats and not engage the scammers.

Unscrupulous Return Preparers:

Selecting the right return preparer is important. They are entrusted with a taxpayer’s sensitive personal data. Most tax professionals provide honest, high-quality service, but dishonest preparers pop up every filing season committing fraud, harming innocent taxpayers or talking taxpayers into doing illegal things they regret later.

Taxpayers should avoid so-called “ghost” preparers who expose their clients to potentially serious filing mistakes as well as possible tax fraud and risk of losing their refunds. With many tax professionals impacted by COVID-19 and their offices potentially closed, taxpayers should take particular care in selecting a credible tax preparer.

Ghost preparers don’t sign the tax returns they prepare. They may print the tax return and tell the taxpayer to sign and mail it to the IRS. For e-filed returns, the ghost preparer will prepare but not digitally sign as the paid preparer. By law, anyone who is paid to prepare or assists in preparing federal tax returns must have a Preparer Tax Identification Number (PTIN). Paid preparers must sign and include their PTIN on returns.

Unscrupulous preparers may also target those without a filing requirement and may or may not be due a refund. They promise inflated refunds by claiming fake tax credits, including education credits, the Earned Income Tax Credit (EITC) and others. Taxpayers should avoid preparers who ask them to sign a blank return, promise a big refund before looking at the taxpayer’s records or charge fees based on a percentage of the refund.

Taxpayers are ultimately responsible for the accuracy of their tax return, regardless of who prepares it. Taxpayers can go to a special page on IRS.gov for tips on choosing a preparer.

Offer in Compromise Mills:

Taxpayers need to wary of misleading tax debt resolution companies that can exaggerate chances to settle tax debts for “pennies on the dollar” through an Offer in Compromise (OIC). These offers are available for taxpayers who meet very specific criteria under law to qualify for reducing their tax bill. But unscrupulous companies oversell the program to unqualified candidates so they can collect a hefty fee from taxpayers already struggling with debt.  VA Comment:   We hear these ads often.  We have had individuals contact us after companies that advertise to settle IRS debt for “pennies on the dollar” didn’t work.  The IRS does have OIC program, but it can be very changelings to settle debt for “pennies on the dollar.”.  We have never seen a settlement for “pennies on the dollar”.    

These scams are commonly called OIC “mills,” which cast a wide net for taxpayers, charge them pricey fees and churn out applications for a program they’re unlikely to qualify for. Although the OIC program helps thousands of taxpayers each year reduce their tax debt, not everyone qualifies for an OIC. In Fiscal Year 2019, there were 54,000 OICs submitted to the IRS. The agency accepted 18,000 of them.

Individual taxpayers can use the free online Offer in Compromise Pre-Qualifier tool to see if they qualify. The simple tool allows taxpayers to confirm eligibility and provides an estimated offer amount. Taxpayers can apply for an OIC without third-party representation; but the IRS reminds taxpayers that if they need help, they should be cautious about whom they hire.

Fake Payments with Repayment Demands:

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Criminals are always finding new ways to trick taxpayers into believing their scam including putting a bogus refund into the taxpayer’s actual bank account. Here’s how the scam works:

A con artist steals or obtains a taxpayer’s personal data including Social Security number or Individual Taxpayer Identification Number (ITIN) and bank account information. The scammer files a bogus tax return and has the refund deposited into the taxpayer’s checking or savings account. Once the direct deposit hits the taxpayer’s bank account, the fraudster places a call to them, posing as an IRS employee. The taxpayer is told that there’s been an error and that the IRS needs the money returned immediately or penalties and interest will result. The taxpayer is told to buy specific gift cards for the amount of the refund.

The IRS will never demand payment by a specific method. There are many payment options available to taxpayers and there’s also a process through which taxpayers have the right to question the amount of tax we say they owe. Anytime a taxpayer receives an unexpected refund and a call from us out of the blue demanding a refund repayment, they should reach out to their banking institution and to the IRS.

 

Payroll and HR Scams:

Tax professionals, employers and taxpayers need to be on guard against phishing designed to steal Form W-2s and other tax information. These are Business Email Compromise (BEC) or Business Email Spoofing (BES). This is particularly true with many businesses closed and their employees working from home due to COVID-19. Currently, two of the most common types of these scams are the gift card scam and the direct deposit scam.

In the gift card scam, a compromised email account is often used to send a request to purchase gift cards in various denominations. In the direct deposit scheme, the fraudster may have access to the victim’s email account (also known as an email account compromise or “EAC”). They may also impersonate the potential victim to have the organization change the employee’s direct deposit information to reroute their deposit to an account the fraudster controls.

BEC/BES scams have used a variety of ploys to include requests for wire transfers, payment of fake invoices as well as others. In recent years, the IRS has observed variations of these scams where fake IRS documents are used in to lend legitimacy to the bogus request. For example, a fraudster may attempt a fake invoice scheme and use what appears to be a legitimate IRS document to help convince the victim.

The Direct Deposit and other BEC/BES variations should be forwarded to the Federal Bureau of Investigation Internet Crime Complaint Center (IC3) where a complaint can be filed. The IRS requests that Form W-2 scams be reported to: phishing@irs.gov (Subject: W-2 Scam).

Ransomware:

This is a growing cybercrime. Ransomware is malware targeting human and technical weaknesses to infect a potential victim’s computer, network or server. Malware is a form of invasive software that is often frequently inadvertently downloaded by the user. Once downloaded, it tracks keystrokes and other computer activity. Once infected, ransomware looks for and locks critical or sensitive data with its own encryption. In some cases, entire computer networks can be adversely impacted.

Victims generally aren’t aware of the attack until they try to access their data, or they receive a ransom request in the form of a pop-up window. These criminals don’t want to be traced so they frequently use anonymous messaging platforms and demand payment in virtual currency such as Bitcoin.

Cybercriminals might use a phishing email to trick a potential victim into opening a link or attachment containing the ransomware. These may include email solicitations to support a fake COVID-19 charity. Cybercriminals also look for system vulnerabilities where human error is not needed to deliver their malware.

The IRS and its Security Summit partners have advised tax professionals and taxpayers to use the free, multi-factor authentication feature being offered on tax preparation software products. Use of the multi-factor authentication feature is a free and easy way to protect clients and practitioners’ offices from data thefts. Tax software providers also offer free multi-factor authentication protections on their Do-It-Yourself products for taxpayers.

Please call us at 949-756-8080 if we can be of assistance.