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Financial/Accounting/Income Tax Thoughts During This Period of COVID-19

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During 2008/2009, the Great Recession, we learned some things. When the economy is hurt, there are some things we can do to be better prepared, and there are some actions we can take to benefit from the financial stress. During those times, the banks took steps to reduce or close lines of credit and end banking relationships. If you feel this might be an issue for you, and you would like to have more cash, then consider drawing down on your line of credit to hold the cash. This will generally give you the opportunity to get more cash in your bank before the bank would reduce your line of credit. Now, I have not heard from anyone that they banks are doing this yet, but we are going through some financially challenging times. Each individual should consider if this strategy is a good strategy for them and weigh the costs of the interest expenses. Perhaps after a couple of months you can repay the line of credit.

Keep your accounting up to date, as the banks might want to check your financial statements to continue your leading relationship.

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Consider if you can benefit from any of the tax law updates, which we have written about. Did you have a net operating loss in 2018, and if so, contact us to discuss how you can get a refund. Were you limited in the amount of interest expense you could deduct in 2018? If so, contact us.

One item in the CARES Act that we did not write about, which was brought up by a client of ours, is that for 2020, the charitable deduction limitation is removed. The law previously stated that a taxpayer cannot take a charitable deduction in 2020 if the deduction exceeded 60% of their adjusted gross income (AGI), but with the CARES Act, that limitation has been removed. However, the requirements in general are that the donation must be in cash and typically must go to a 501(c)(3) charity. If you are interested in more information about this, please contact us so we can discuss the whole law and see if this could benefit you.

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Some other items to consider:

Due to the stock marketing value dropping, this might be an opportunity to do some estate and gift tax planning with reduced values of securities. Contact us to discuss if you are interested.

If your business revenues have dropped, then most likely the value of your business has probably been reduced. This can provide an option to provide key employees with some equity participation at a reduced value if that will benefit the company. Again, each business is unique, so contact us to discuss.

We are hoping that the economy will be opening back up soon throughout the entire country. We are here to help, so contact us if you need our assistance.

Update 4: Tax and Financial Update due to Coronavirus

The novel coronavirus (COVID-19) crisis has touched so many lives, with both illnesses and hardships. In response to this crisis, our office is working remotely on all accounting and tax projects. The best method to contact us is to email us at [email protected]. We are focused on staying up to date on the tax, accounting and finance updates to assist everyone with these challenges. The final Coronavirus bill that was signed by President Trump on March 27, 2020 is H.R. 748 called the CARES Act.  This passed bill was different than the Senate bill I wrote about on March 25, 2020.  Some provisions are the same or similar.

Based on new information reviewed and the discussions with our clients, I’m providing an update.

  1. Section 1102 Paycheck Protection Program Loans (PPL):
    1. This is a section 7(a) SBA loan
    2. VA Comment: Supposed to be a streamline process. When I speak with bankers, they advise that they are still waiting for guidance from SBA. See attached the U.S. Chamber of Commerce Coronavirus Emergency Loan Checklist.
    3. VA Update: look at https://home.treasury.gov/system/files/136/PPP–Fact-Sheet.pdf for information about the PPP loans.
      1. Apparently, small business can apply starting April 3, 2020. However, banks need to be prepared.  Most banks have sent out emails to their customer to begin compiling information regarding payroll, and health care costs.
      2. Starting April 10, 2020, independent contractors and self-employed individuals can apply.
        1. We are assuming the banks will want to look at and / or have the net self-employed income from your 2019 tax return or financial statements, and they may ask for 1099’s.
  1. VA Update: Based on additional information received from tax discussions, it seems as if a taxpayer can apply for BOTH a PPL and an EIDL, however, if they apply for both, the EIDL can’t be used for payroll, and the PPL is supposed to be used for payroll.
    1. Some businesses may need more money than just the PPL, so the EIDL will be required. Loans under $250,000 seems to require less information and no personal guarantee.
  2. Government guarantees 100% of the loan through December 31, 2020
    1. Guarantee drops to 75% for loans exceeding $150,000 and
    2. 85% for loans equal to or less than $150,000.
  • VA Comments: The Federal loan guarantee reduces at 12/31/2020, as I would expect that large portions of loans will be forgiven for payroll before 12/31/2020.
  1. Eligible businesses are small business (500 or less of employees), nonprofit, veteran’s organization or tribal businesses.
    1. Includes sole-proprietors, independent contractors, and self-employed individuals.
  2. VA Comment: Seems like most every business has been negatively affected from COVID-19 and if a business has payroll, they will apply for the PPL.

 

  1. How to Calculate the Loan Amount / Maximum Loan Amount:
    1. In summary, average monthly payroll from 2019 multiplied by 2.5.
    2. Sum of average total monthly payment by the applicant for payroll costs incurred during the 1-year period before the date on which the loan is made.
  • VA Comment: The current PPL application, just asks for “payroll costs” and the form doesn’t provide a definition of “payroll costs”, so we are suggesting looking at the summary of the bill that defines “payroll costs”. However, we have seen the banks asking for supporting information about “payroll costs”. These items are:
    1. 2019 Payroll, including the last 12 months
    2. 2019 Employees – 1099’s for 2019 employees and independent contractors that would otherwise be an employee of your business (Note: Do NOT include 1099s for services)
    3. Health care costs. All insurance premiums paid by the business owner under a group health plan.
    4. Retirement – your company retirement plan funding paid by the company.
  1. Some banks, like Bank of America, have stated that they are currently only going to provide PPL’s for customers that have deposit and lending relationships.
  2. Payroll Costs as defined in the bill.
    1. Payroll Costs Included:
      1. Salary, wage, commission, or similar compensation (not to exceed $100,000. So, if an employee earns $150,000 a year, the company can only use $100,000 a year for the calculation.)
      2. Payment of cash tip or equivalent
  • Payment for vacation, parental family, medical or sick leave
  1. Allowance for dismissal or separation
  2. Payment required for the provision of group health care benefits including insurance premiums.
  3. Payment of any retirement benefits; or
  • Payment of State or local tax assessed on the compensation of employees and
    1. Payroll can’t exceed more than $100,000 a year.
  • Self-employed , Sole Proprietor.
    1. The sum of payments of any compensation to or income of a sole proprietor or independent contractor that is wage, commission, income, net earnings from self-employment that isn’t more then $100,000.
    2. VA Comments: If you’re self-employed and you pay yourself with draws, then the banks will probably want to see 2019 1099-MISC and various expenses from your business. If you have employees, then you would calculate as discussed above. 
  1. Excluded Payroll Costs:
    1. An annual salary over $100,000 / year.
    2. Payroll taxes
  2. If a seasonal employer, there is an alternative calculation for an average 12-week period from February 15, 2019 and ending June 30, 2019.
  3. Multiplied by 2.5. NOT to Exceed $10MM
  4. VA Example: If average monthly payroll was $100,000, then multiple by 2.5 = $250,000.
  5. If the business was not in business from February 15, 2019 to June 30, 2019, there is another calculation.
  6. VA Comment: This loan calculation isn’t as rich as the senate proposed bill which was multiplied by 4. Also, the loan doesn’t seem to include payroll taxes for the employee or employer, so the loan seems to be just the net payroll. Not sure this will be a large enough loan for some small business. 

 

 

  1. Waives affiliation rules for businesses in hospitality and restaurant industries franchise.
    1. VA Comment: This means that restaurant chains that have over 500 employees can treat each location has an individual borrow and they don’t need to consolidate.
  2. Defines covered loan period as beginning on February 15, 2020 and ending on June 30, 2020.
  3. Established the maximum 7(a) loan amount to $10MM through December 31, 2020 and provides a formula by which the loan amount is tied to payroll costs incurred by the business to determine the size of the loan.
  4. Allowable use of the loan includes payroll support, such as employee salaries, paid sick or medical leave, insurance premiums, and mortgage, rent, and utility payments.
  5. Provides delegated authority which is the ability for lenders to make determination on borrowers eligibility and creditworthiness without going through all SBA’s channels to all current 7(a) lenders who make these loans to small business and provides the same authority to lenders who join the program and make these loans.
  6. Requires eligible borrowers to make a good faith certification that the loan is necessary due to the uncertainty of current economic conditions caused by COVID -19; they will use the funds to retain workers and maintain payroll. Lease and utility payments; and are not receiving duplicate funds for the same uses from another SBA program.
  7. Waives both borrower and lender fees for participation in the Paycheck Protection Program (PPP).
  8. Waives the credit elsewhere test for funds provided under this program.
  9. Waives collateral and personal guarantee requirements under this program.
  10. Any portion of the loan Not used for forgiveness purposes, the remaining loan balance will have a maturity of not more than 10 years, and the guarantee for that portion of the loan will remain intact.
  11. Maximum interest rate will be 4%.
  12. No prepayment fees.
  13. Allows complete deferment of 7(a) loan payments for at least six months and no more than a year.
  14. Increases SBA Express loan from $350,000 to $1MM through December 31, 2020.
  15. If head count reduces 25% or more, it will hurt the loan forgiveness, or make the loan not forgiven at all.

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  1. Section 1106 Loan Forgiveness:
    1. Borrower shall be eligible for loan forgiveness equal to the amount spent by borrower during an 8 week period after the origination date of the loan on payroll costs, interest payment on any mortgage incurred prior to February 15, 2020, payment of rent on any lease in force prior to February 15, 2020, and payment on any utility for which service began before February 15, 2020.
    2. The loan forgiveness seems to be only for PPL / PPP loans.
    3. Amount forgiven may not exceed the principal amount of the loan.
    4. Eligible payroll costs do not include compensation above $100,000 in wages.
    5. The amount forgiven will be reduced proportionally by any reduction in employees retained compared to the prior year and reduced by the reduction in pay of any employee beyond 25% of their prior year compensation.
    6. Loan forgiveness / cancellation will not be included in borrower’s taxable income.
    7. VA Update: We are reading that Treasury is now stating that 75% or more of the loan forgiveness needs to be for payroll. Thus, no more than 25% of the loan forgiveness can be for non-payroll.
  2. Section 1110 Emergency EIDL (Economic Injury Disaster Loan) Grant:
    1. Allocated $10B in funding for EIDL.
    2. Provides an advance of $10,000 to small business and non-profits that apply for SBA EIDL loans within three days of applying for the loan.
    3. Expands eligibility for access to EIDL’s to include tribal business, cooperatives and ESOP’s with fewer than 500 employees or any individual operating as a sole proprietor or independent contractor during the covered period (January 31, 2020 to December 31, 2020. Private non-profits are also eligible for both grants and EIDL’s.
    4. EIDL’s are loans up to $2MM that carry interest rates up to 3.75% for companies and up to 2.75% for nonprofits as well as principal and interest deferment up to 4 years.
    5. The loans may be used for expenses that could have been met had the disaster not occurred, including payroll and other operating expenses.
    6. The EIDL grant does not need to be repaid, even if the grantee is subsequently denied an EIDL.
    7. It may be used to provide paid sick leave to employees, maintain payroll, meet increased production costs due to supply chain disruption or pay business obligations, including debts, rent and mortgage payments.
      1. VA Update: If a business needs more money than they can get from the PPL, then they can apply for an EIDL for items other than payroll which the PPL would be used for.
    8. Eligible grant recipients must have been in operation on January 31, 2020.
    9. The business that received an EIDL between January 31, 2020 and June 30, 2020 as a result of COVID-19 disaster declaration, is eligible to apply for a PPP loan, or the business may refinance their EIDL into a PPP loan.
    10. Typically, the $10,000 grant would be subtracted from the amount forgiven in the payroll protection plan.
    11. Waived personal guarantee on advances and loans not exceeding $200,000.
    12. The approval should be based on solely on the credit score of the applicant and no requirement for tax returns or tax return transcripts.
    13. VA Update: For loans over $250,000, there seems to be more underwriting requirements. May require financial statements, and tax returns.  However, we haven’t heard or seen if these rules are being applied. 

Most of the financial assistance offered through the first bill called, HR 6201, FAMILIES FIRST CORONRAVIRUS RESPONSE ACT (discussed on our previous memo), and the CARES Act S. 3548 which concluded as HR 748 was included in my discussion below.

The tax and financial laws are changing daily, therefore I marked this memo with “V4” (version 4) on my memo above. There are various other social service updates, but our memos will focus mainly on finance, business and tax updates.

  1. Highlights of the PROPOSED SENATE BILL S 3548, CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR THE CARES ACT. March 19, 2020. This bill has NOT been passed in the Senate at this time, so it can change, and then the bill would need to go to the House and to the President. You can view the at https://www.congress.gov, search for HR 748.
    1. Businesses & Other Employers:
      1. Retention payroll tax credit for eligible employers that continue to pay employee wages while their operations are fully or partially suspended as a result of certain COVID-19 related government orders. A 50% refundable payroll tax credit on wages paid up to $10,000 during the crisis. The credit is available for employees retained by not currently working due to the crises for firms with more than 100 employees and for all employee wages for firms with 100 or fewer employees.

 

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  1. Delayed Employer-side Social Security payroll tax payments may be delayed until January 1, 2021 with 50% owned on December 31, 2021 and the other half due on December 31, 2022. Deferral of employer portion of payments for certain payroll taxes.
  2. Net Operating Losses: Modification of net operating loss (NOL) and limitation rules. Will allow most NOL’s incurred in 2018, 2019, and 2020 to carry them back for refunds to 5 years. This carry back law was exempt for tax years beginning 2018 under the TCJA, but the CARE Act reverses it. Due to this financial crisis they are allowing NOL carry backs for these periods to be carried back. The Act also removed the 80% utilization of NOL’s for a carry forward, meaning an NOL could only reduce taxable income by 80%.
  3. Business Interest Deduction: Modification of the deduction limitation on business interest rules of IRC section 163(j). The law temporarily changes the business interest deduction limit from 30% to 50% for tax years 2019 and 2020.
  4. Qualified improvement property technical correction, allowing qualifying interior improvements of buildings to be immediately expensed (bonus depreciation or Section 179) rather than depreciated over 15 years for 2018 and future.
  5. Payroll tax credit for eligible employers up to 50% refundable payroll tax credit on wages paid up to $10,000 during the crisis. The credit would be available to employers whose business were disrupted and retained employees, but they were not able to work. Employers with more than 100 employees and under 100 employees have slightly different calculations.
  6. Business Loss Limitation Revision: For years after 12/31/2017, the business loss limitation is suspended. Previously, business losses couldn’t be used to offset non-business income (like wages, investment income) over $250,000 for individuals or $500,000 for married filing jointly.
    1. VA Comments: For individuals that have business losses, and perhaps real estate losses from being a real estate professional, this law change may make it desirable to amend the 2018 tax return. 

 

 

  1. Individuals:
    1. Recovery rebates of up to $1,200 for single and $2,400 for married couples filing jointly, plus $500 per qualifying child. Phaseouts of the rebates are based on adjusted gross income (AGI) starting at $75k for single, and $150k for married couples.
      1. The rebates phase out at $99,999 for single and $199,000.
    2. Expansion of unemployment benefits, including self-employed, and gig-economy workers. Unemployment insurance to include an additional $600 / week for an additional 13 weeks.
    3. Waiver of the 10% penalty for COVID-19 related early distributions from IRAs, 401K and other retirement plans. However, taxability of the distribution will need to be considered.
    4. Exclusion of certain employer payments of student loans up to $5,250 will not be treated as taxable income to the employee.
    5. Temporary Relief Federal Student Loan: Deferral of student loan payments on principal and interest for 6 months through September 30, 2020.
  2. Other Items:
    1. Forbearance of Residential Mortgage Loan Payments (section 4023): Provides up to 90 days of forbearance for multifamily borrowers with a federally backed multifamily mortgage loan who have experienced a financial hardship. Borrowers receiving forbearance may not evict or charge late fees to tenants for the duration of the forbearance period.
      1. Applicable mortgages include loans to real property designed for 5 or more families that are purchased, insured, or assisted by Fannie Mae, Freddie Mac, or HUD.

 

The CARES Act Has Passed: Here Are The Highlights

  1. Additional Information regarding HR 748 CARES ACT ,
    1. Relief for Individuals, Families, and Businesses. Rebates and Other individual Provisions.
      1. Eligible individuals shall be allowed as credit against the tax for the first taxable year beginning in 2020 an amount equal to the lesser of:
        1. Net income tax liability, or
        2. $1,200 ($2,400 in the case of joint returns)
          1. The credit should not be less than $600
          2. $500 per qualifying children
        3. Eligible individuals are based on adjusted gross income (AGI) of
          1. $75,000 and $150,000 in the case of a joint return. Once a taxpayer AGI is either $75k or $150k the credit begins to be reduced and phased out.  The phase out is $99k and $198k.
        4. Delay in filing deadlines. In the case for returns for tax year 2019, due dates for April 15, 2020, are delayed to July 15, 2020. This isn’t in the HR 748 bill, but it is noted in IRS Notice 2020-18. An extension is not required. There is an automatic extension till July 15, 2020. However, if the tax return can’t be filed by July 15, 2020, an extension will need to be filed.
          1. This means that IRA, HAS and MSA contributions are extended to July 15, 2020 also.
        5. Individual ES Payments: Different from the Senate bill, 1st quarter estimated tax payments are delayed and due on July 15, 2020. 2nd quarter estimated tax payments are still due on June 15, 2020.  This is stated on IRS Notice 2020-18 and Notice 2020-20.
          1. You can read about these due date extensions at:

https://www.irs.gov/newsroom/filing-and-payment-deadlines-questions-and-answers

  1. Retirement Accounts: Early withdrawal penalties under IRC section 72(t) which is typically 10% for Federal and then some states add a lower penalty are waived if the early distributions are $100,000 or under.
    1. Amounts distributed may be paid back. There is also a provision that allows taxpayers that took early distributions to make one or more contributions over a three-year period to contribute up to the amount of distributions they took.
    2. Income inclusion of premature distribution. A taxpayer can spread the taxability of the premature distribution over 3 years.
  2. Loans from retirement plans: The bill allows for an increase in loans and not to be treated as distributions. The loan amount is increased from $50,000 to $100,000.
    1. Loan repayments will be delayed by 1 year.
  3. Charitable Contributions: The allowance to deduct more charitable donations have been increased for both individuals and Corporations.
    1. VA Comments: Seems as if the individual 30% / 50% AGI limitation is temporary suspended. The 10% limitation for C Corporations seem to be increased to 25%.   
  4. Student Loan Temporary Relief: The bill states the Secretary shall suspend all payments due for loans under part D of title IV for Higher Education Act of 1965 for 3 months.
  1. Business Provisions:
    1. C Corporation estimated tax payments. Delay of estimated tax payments for Corporations. Like individuals, the required estimated tax payments for C Corporation is delayed till July 15, 2020.
    2. Delay in Payment of Employer Payroll Taxes. The bill states that employers can delay payment of the employer portion of payroll taxes till December 31, 2021 for 50% of the deferral and the balance due on December 31, 2022. This also applies to the estimated payroll deposits.
      1. VA Comment: If a small business is going to request and receive a loan for payroll and overhead, this deferral might not be necessary. If a defer is desired, a liability should be posted on the companies’ financial statements.
    3. Net Operating Loss (NOL) Carrybacks: The NOL carry back was removed for tax years after 12/31/2017. This bill will allow NOL’s generated from year 2018, 2019, and 2020 to carry back and request a refund for up to a 5 year carry back period. The 80% limitation is removed also.
      1. VA Comment: If you incurred a loss in 2018 or 2019, or expect a loss in 2020, please get us the information and quickly as possible so we can begin preparation of a NOL carryback. If your tax return had qualified improvement property and the return couldn’t take the deduction, this new bill corrects that prior error and that deduction might generate a taxable loss for a NOL carryback. 
    4. A taxpayer may elect out of the 5-year NOL carry back. If elected, it can’t be changed. It is irrevocable.
      1. VA Comment: For tax returns with NOL’s for 2018 or 2019 that have been filed, the return needs to be amended within 120 days from the enactment of this bill regarding the NOL carryback provision.
    5. Loss limitation for taxpayers other than Corporations: IRC section 461(l)(2) was added by the Tax Cuts and Jobs Act of 2017 and was effective for tax years 2018 to 2025 which disallowed any excess business loss for a non-corporate taxpayer. Generally, the law prohibited business losses to only be deducted against no more than $250,000 / $500,000 of non-business income. Any non-deductible business loss was carried forward. The bill removes those limits from being implemented till December 31, 2020 (previously applied on December 31, 2017).
      1. VA Comment: We know this loss limitation occurred with some of our clients, and we will have to review affected taxpayers to ask them if they want us to amend their tax returns. The IRS will need to provide guidance on the amendment process.
    6. Interest Deduction Limitation: The Tax Cuts and Jobs Act of 2017 enacted an interest deduction limitation. For taxpayers where it was applicable, taxpayers with gross sales over $25MM, the interest deduction was limited to 30% of the adjusted taxable income. The bill now increases the limitation amount for 30% to 50% for tax years 2019 and 2020.
      1. VA Comment: This means a taxpayer that this limitation would apply to will be allowed more of an interest deduction.
    7. Technical correction for qualified Improvement Property: This bill corrected a prior law error.
      1. The Tax Cuts & Job Act (TCJA) removed investment barriers by allowing businesses to immediately deduct the cost of certain investments under a provision called 100% bonus depreciation.
      2. Due to legislative oversight, the law accidentally excluded improvements property to be eligible from 100% bonus depreciation.
      3. This bill corrects this error and thus the improvements would be eligible for bonus depreciation and should make this asset a 15-year recovery period.
    8. Foreign controlled corporation/shareholder:
      1. The bill is changing the US owned foreign corporation from 10% to 50%.
    9. Limitation of Paid Leave: Section 110(b)(2)(B) of the Family and Medical Leave Act of 1993 is providing limitation. An employer shall not be required to pay more than $200 per day and a $10,000 in aggregate for each employee for paid leave under this section.
  • Other Considerations:
    1. Lost Income/ Business Interruption insurance coverage: Our firm and clients have reviewed our insurance policies, and considered filing a claim for lost income or additional expense base on “Civil Authority”, in which the argument is that since the state government demanded the residents to stay at home, there has been some business interruption. In conversations with insurance brokers that the coverage is excluded for a “virus”. However, the argument is that the company didn’t close their business for a virus, as they probably didn’t close during influenza season, they closed because of the state government made a demand. As one can guess, lawsuits are already starting, so we are receiving information that if a business has lost of income or business interruption coverage, review your policy and consider filing a claim.
    2. You can review a lawsuit regarding this at https://www.insurancejournal.com/news/national/2020/03/19/561638.htm

 

Please read our earlier memos dated March 17, 2020, March 25, 2020, and March 30, 2020, which were Versions 1 through 3. If you can’t find it, please contact us at [email protected] to request a copy or you can read it on our website at www.verticaladvisors.com under blogs.

Action Items:

  1. Get your information ready for a loan if you need it. We are expecting PPL loans to be processed quicker than other SBA loans. However, we don’t know yet. See the US Chamber of Commerce publication at https://www.google.com/search?q=us+chamber+of+commerce+coronavirus+emergency+loans&oq=us+chamber+of+&aqs=chrome.5.0l2j69i59j69i57j0l3j69i60.11468j0j4&sourceid=chrome&ie=UTF-8
  2. Keep sending us your tax information, as we still need to prepare all the returns before the 9/15/2020 and 10/15/2020 due dates.
  3. April 15, 2020 due dates have been delayed to July 15, 2020. If you need more time after that, and extension will need to be filed.
  4. 2019 taxes are due July 15, 2020, and 1st quarter estimated tax payments are due July 15, 2020. 2nd quarter ES payments are still due June 15, 2020.
  5. Consider amending 2018 and/or 2019 tax returns for the following:
    1. NOL’s: Now NOL’s from 2018 – 2020 can be carried back up to 5 years.
      1. VA Comment: The election to file a NOL for a 2018 and / or a tax return already filed much be by the extended due date of the 2019 tax return. So, if a 2018 tax return needs to be filed to benefit from the 2018 NOL, that return needs to be prepared and filed before the 2019 tax return if filed.
    2. Interest deduction limitations
    3. Business loss limitations

Lastly, and as always, please contact us if you need assistance or have any questions.  Contact us at [email protected]

Update 2: Tax and Financial Updates due to Coronavirus

Coronavirus - Harford County Health

The novel coronavirus (COVID-19) crisis has touched so many lives, with both illnesses and hardships. In response to this crisis, our office is working remotely on all accounting and tax projects. The best method to contact us is to email us at [email protected]. We are focused on staying up to date on the tax, accounting and finance updates to assist everyone with these challenges. Things are changing hourly, and discussions on the news don’t completely explain the law as written. So, we are explaining in as much detail as we can for the moment. Our focus on this memo are certain provisions we feel are important to our clients.

I read on the Wall Street Journal app this morning at 8:00 a.m. PST today, March 26, 2020, that the Senate passed Senate bill S.3548, the CARES Act. However, when I looked for the formal acknowledgement on www.congress.gov at 3:30 p.m. PST on March 26, 2020, the status doesn’t say it was passed. So, my discussions are based on the actual bill text that is assumed to be passed by the Senate.

Most of the financial assistance offered through the first bill called, HR 6201, FAMILIES FIRST CORONRAVIRUS RESPONSE ACT (discussed on our previous memo), and the CARES Act S. 3548 which is expected to pass the senate, the house and be signed by the president have financial and accounting information requirements necessary for the financial assistance. Accordingly, we are available to assist any client in the SBA application process for financial assistance.

The tax and financial laws are changing daily, therefore I marked this memo with “V2” (version 2) on my memo above. There are various other social service updates, but our memos will focus mainly on finance, business and tax updates.

Congress Stock Photos, Pictures & Royalty-Free Images - iStock

Highlights of the PROPOSED SENATE BILL S 3548, CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR THE CARES ACT. March 19, 2020. This bill has NOT been passed in the Senate at this time, so it can change, and then the bill would need to go to the House and to the President. You can view the introduced bill at https://www.congress.gov/bill/116th-congress/senate-bill/3548

Business images · Pexels · Free Stock Photos

    1. Businesses & Other Employers:
      1. Retention tax credit for eligible employers that continue to pay employee wages while their operations are fully or partially suspended as a result of certain COVID-19 related government orders.
      2. Deferral of employer portion of payments for certain payroll taxes.
      3. Modification of net operating loss (NOL) and limitation rules. Will allow some NOL’s incurred in 2018, 2019, and 20120 to carry them back for refunds to 5 years. This carry back law was exempt for tax years beginning 2018 under the new tax laws that Trump and Congress enacted. Due to this financial crisis they are not allowing NOL carry backs for these periods to be carried back.
      4. Modification of the deduction limitation on business interest rules of IRC section 163(j).
      5. Qualified improvement property technical correction, allowing qualifying interior improvements of buildings to be immediately expenses rather than depreciated over 15 years.
      6. Payroll tax credit for eligible employers up to 50% refundable payroll tax credit on wages paid up to $10,000 during the crisis. The credit would be available to employers whose business were disrupted and retained employees, but they were not able to work. Employers with more than 100 employees and under 100 employees have slightly different calculations.
      7. Expansion of the ways the SBA can help small business.
        1. Loans for small employers with 500 employers or less, including non-profits would be eligible to apply for loans. The size of the loan would be tied to the applicant’s average monthly payroll, mortgage, rent, utilities payment and other debt obligations over the previous year.
        2. The portion of the loan used to cover payroll and payments on pre-existing debt would be forgiven.
        3. Loans are supposed to be streamlined with SBA, and SBA approved banks.
        4. If a business doesn’t have payroll, or not a large amount of payroll, SBA will expand loans for:
          1. Payroll, supply chain disruption, mortgage payments, and other debt obligations.
          2. SBA express loans would be increased from $350k to $1MM.

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  1. Individuals:
    1. Recovery rebates of up to $1,200 for single and $2,400 for married couples filing jointly, plus $500 per qualifying child. Phaseouts of the rebates are based on adjusted gross income (AGI) starting at $75k for single, and $150k for married couples.
    2. Expansion of unemployment benefits, including self-employed, and gig-economy workers.
    3. Waiver of the 10% penalty for COVID-19 related early distributions from IRAs, 401K and other retirement plans. However, taxability of the distribution will need to be considered.
    4. Exclusion of certain employer payments of student loans.

 

Additional Information regarding the PROPOSED SENATE BILL S 3548, CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY ACT OR THE CARES ACT. March 19, 2020. This bill has NOT been passed in the Senate at this time, so it can change, and then the bill would need to go to the House and to the President. You can view the introduced bill at https://www.congress.gov/bill/116th-congress/senate-bill/3548 . These additional steps can cause other changes.  However, based on the proposed S 3548 bill, I’m providing some additional details listed below:

    1. Division A – Small Business Interruption Loans
      1. SBA 7(a) Loan Program
        1. This is the most popular loan program with the SBA for small business.
        2. Covered period beginning on March 1, 2020 and ending on December 31, 2020.
        3. Listening to Secretary of the Treasury Steve Mnuchin on March 25, 2020, he stated he expects the loans to be processed by all FDIC banks in a simple format and expect loans to be processed in a day. That would be wonderful.
          1. He did state that they expect to have the money and process ready to provide the funds by 3 weeks which would be around April 15, 2020, but it depends on Congress, and a lot of moving parts.
          2. Secretary of the Treasury also stated the following:
            1. The loans are supposed to be for 8 weeks of payroll, and overhead.
              1. VA Comment: We need to get details on what is included in payroll and overhead, but the Secretary’s discussion seems prudent. However, the proposed S.3548 bill states to take the average monthly payroll for the prior year, plus included overhead and multiple by 4. Can’t exceed $10MM. So, I don’t read the 8 weeks of payroll. Perhaps that was his quick explanation.
            2. This part of the law is for companies with no more than 500 employees.
            3. The maximum loan amount would be the lesser of:
            4. The average total monthly payments for payroll, mortgage payments, rents payments and payments on any other debt obligations incurred during the 1 year period before the date on which the loan is made, except if the employer is seasonal, then they would use the average monthly payments between March 1, 2019 and ending June 20, 2019
              1. Then multiple by 4.
              2. or;$10,000,000.
                1. VA Comment: If you are considering requesting financial relief, then I recommend you get your numbers and support ready for the application process. Plus, you will need to make sure you have enough cash to get you to the date of receiving the financial assistance which is expected to be around April 15, 2020. I would expect that we should have payroll reports that support the numbers on a worksheet that calculates the average, plus your average other included overhead expenses. Being prepared should allow you to get the financial assistance quicker.
  1. Allowable Uses of Program Loans:
    1. Payroll support, including paid sick, medical, family leave and costs related to the continuation of group health care benefits during the periods of leave.
      1. Employee salaries (calculating based on the average number of employees for each pay period)
      2. Mortgage payments
  • Rent (including rent under a lease agreement)
  1. Utilities and
  2. Other debt obligations that were incurred before the covered period.
  1. Loan Considerations: The proposed bill is requiring that the lending institution only consider the following:
    1. Was the borrower in operations on March 1, 2020; and
    2. Had employee for whom the borrower paid salaries and payroll taxes.
    3. Fees will be waived for these loans.
    4. The Federal government will guarantee 100% of the loan.
  2. Eligible Borrower means:
    1. Small business concern; or
    2. An organization made eligible by section (b) which discuses private or public nonprofit organizations with 500 or less employees.
      1. VA Comment: Prior to this bill, the SBA typically didn’t allow loans to non-profits.
    3. Deferment of 7(a) Loan. The proposed bill requires the lender to provide complete deferment relief for impacted borrowers with 7(a) loans.
      1. VA Comments: This provision seems to state that payments for the covered loans would be deferred for a period of not more than 1year. 
    4. Express Loans will be increased from $350,000 to $1,000,000.
      1. Substantially affected by COVID-19 means:
        1. Supply chain disruptions
        2. Staffing challenges.
        3. A decrease in sales or customers; or
        4. Shuttered business.
          1. VA Comment: If you have a business that doesn’t have any payroll, or not much payroll, then perhaps an SBA 7(a) loan for lost revenue would be the best option. An impacted industry might be owners of rental properties.  They might not have much payroll, so a loan might be necessary to offset the loss or deferral of rents.  I believe the spirt of this financial package is to get money into the hands of businesses and individuals so they can pay rent. 
  1. No Prepayment Penalty for loans made on or before December 31, 2020.
  2. Loan Forgiveness:
    1. A 7(a) loan for the covered period which is beginning on March 1, 2020 to June 30, 2020.
    2. An eligible recipient shall be eligible for forgiveness of indebtedness on a covered 7(a) loan in an amount equal to the cost of maintaining payroll continuing during the covered period.
      1. Payroll costs have limits.
        1. Compensation to an individual employee can’t exceed $33,333 during the covered period.
        2. Qualified sick leave wages for which a credit is allowed under section 7001 of the Families First Coronavirus Response Act; or
        3. Qualified family leave wages for which a credit is allowed under section 7003 of the Families First Coronavirus Response Act.
          1. VA Comments: It seems that the loan forgiveness is not meant to forgive loans used for compensation, sick or family leave in which the employer would receive a credit also. Seems like they don’t want a double dip. If a company utilizes the credit method, there will need to be an adjustment. 
          2. VA Comments: The borrower will probably have to provide financial statements, and federal, state employee records, and unemployment insurance filings, and a certification. If there is NO documentation, then there will be no forgiveness. This should be done prior to apply for the forgiveness.
      2. Upon application for the loan forgiveness, the lender will require documentation to support the loan forgiveness within 15 days, so be prepared when you start the process. The lender will provide a forgiveness decision within 15 days.
  1. Treatment of Amounts Forgiven: Amounts which have been forgiven under the law shall be considered canceled indebtedness by lenders, BUT Not Taxable.
    1. VA Comment: The bill states the forgiveness of debt will be treated as cancelation of indebtedness. However, a section in the proposed bill under “Taxability” states, Cancelation of indebtedness under this section shall be excluded from gross income for purpose of the Internal Revenue Code of 1986.
  2. If there is a reduction of employees, then there can be a reduction of the loan forgiveness.
    1. VA Comment: I read or heard that the forgiveness of any part of the debt wouldn’t negatively affect the credit score of the borrower, but I didn’t read that provision in this bill. This might be an issue that needs to be corrected.   

 

  1. Relief for Individuals, Families, and Businesses. Rebates and Other individual Provisions.
    1. Eligible individuals shall be allowed as credit against the tax for the first taxable year beginning in 2020 an amount equal to the lesser of:
      1. Net income tax liability, or
      2. $1,200 ($2,400 in the case of joint returns)
        1. The credit should not be less than $600
        2. $500 per qualifying children
      3. Eligible individuals are based on adjusted gross income (AGI) of
        1. $75,000 and $150,000 in the case of a joint return. Once a taxpayer AGI is either $75k or $150k the credit begins to be reduced and phased out.  The phase out is $99k and $198k.
      4. Delay in filing deadlines. In the case for returns for tax year 2019, due dates for April 15, 2020, are delayed to July 15, 2020.
      5. Individual ES Payments: Different from the prior communication from Treasury, this bill states that individual estimated tax payments are not due before October 15, 2020.

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  1. Retirement Accounts: Early withdrawal penalties under IRC section 72(t) which is typically 10% for Federal and then some states add a lower penalty are waived if the early distributions are $100,000 or under.
    1. Amounts distributed may be paid back. There is also a provision that allows taxpayers that took early distributions to make one or more contributions over a three-year period to contribute up to the amount of distributions they took.
    2. Income inclusion of premature distribution. A taxpayer can spread the taxability of the premature distribution over 3 years.
  2. Loans from retirement plans: The bill allows for an increase in loans and not to be treated as distributions.  The loan amount is increased from $50,000 to $100,000.
    1. Loan repayments will be delayed by 1 year.
  3. Charitable Contributions: The allowance to deduct more charitable donations have been increased for both individuals and Corporations.
    1. VA Comments: Seems as if the individual 30% / 50% AGI limitation is temporary suspended. The 10% limitation for C Corporations seem to be increased to 25%.   

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  1. Student Loan Temporary Relief: The bill states the Secretary shall suspend all payments due for loans under part D of title IV for Higher Education Act of 1965 for 3 months.
  1. Business Provisions:
    1. C Corporation estimated tax payments. Delay of estimated tax payments for Corporations.  Like individuals, the required estimated tax payments for C Corporation is delayed till October 15, 2020.
    2. Delay in Payment of Employer Payroll Taxes. The bill states that employers can delay payment of the employer portion of payroll taxes till December 31, 2021 for 50% of the deferral and the balance due on December 31, 2022.  This also applies to the estimated payroll deposits.
      1. VA Comment: If a small business is going to request and receive a loan for payroll and overhead, this deferral might not be necessary.   If a defer is desired, a liability should be posted on the companies’ financial statements.
    3. Net Operating Loss (NOL) Carrybacks: The NOL carry back was removed for tax years after 12/31/2017.  This bill will allow NOL’s generated from year 2018, 2019, and 2020 to carry back and request a refund for up to a 5 year carry back period.  The 80% limitation is removed also.
      1. VA Comment: If you incurred a loss in 2018 or 2019, or expect a loss in 2020, please get us the information and quickly as possible so we can begin preparation of a NOL carryback. If your tax return had qualified improvement property and the return couldn’t take the deduction, this new bill corrects that prior error and that deduction might generate a taxable loss for a NOL carryback. 
    4. A taxpayer may elect out of the 5-year NOL carry back. If elected, it can’t be changed.  It is irrevocable.
      1. VA Comment: For tax returns with NOL’s for 2018 or 2019 that have been filed, the return needs to be amended within 120 days from the enactment of this bill regarding the NOL carryback provision. 
    5. Loss limitation for taxpayers other than Corporations: IRC section 461(l)(2) was added by the Tax Cuts and Jobs Act of 2017 and was effective for tax years 2018 to 2025 which disallowed any excess business loss for a non-corporate taxpayer. Generally, the law prohibited business losses to only be deducted against no more than $250,000 / $500,000 of non-business income. Any non-deductible business loss was carried forward. The bill removes those limits from being implemented till December 31, 2020 (previously applied on December 31, 2017).
      1. VA Comment: We know this loss limitation occurred with some of our clients, and we will have to review affected taxpayers to ask them if they want us to amend their tax returns. The IRS will need to provide guidance on the amendment process. 
    6. Interest Deduction Limitation: The Tax Cuts and Jobs Act of 2017 enacted an interest deduction limitation. For taxpayers where it was applicable, taxpayers with gross sales over $25MM, the interest deduction was limited to 30% of the adjusted taxable income. The bill now increases the limitation amount for 30% to 50% for tax years 2019 and 2020.
      1. VA Comment: This means a taxpayer that this limitation would apply to will be allowed more of an interest deduction. 
    7. Technical correction for qualified Improvement Property: This bill corrected a prior law error. 
      1. The Tax Cuts & Job Act (TCJA) removed investment barriers by allowing businesses to immediately deduct the cost of certain investments under a provision called 100% bonus depreciation.
      2. Due to legislative oversight, the law accidentally excluded improvements property to be eligible from 100% bonus depreciation.
      3. This bill corrects this error and thus the improvements would be eligible for bonus depreciation and should make this asset a 15-year recovery period.
    8. Foreign controlled corporation/shareholder:
      1. The bill is changing the US owned foreign corporation from 10% to 50%.
    9. Limitation of Paid Leave: Section 110(b)(2)(B) of the Family and Medical Leave Act of 1993 is providing limitation. An employer shall not be required to pay more than $200 per day and a $10,000 in aggregate for each employee for paid leave under this section.

Please read our memo dated March 17, 2020 which was Version 1. If you can’t find it, please contact us at [email protected] to request a copy or you can read it on our website at www.verticaladvisors.com under blogs.

Lastly, and as always, please contact us if you need assistance or have any questions.

Tax Return Due Date and Extension Changes

U.S Treasury Department Secretary Steven Mnuchin announced that the 2019 income tax filings deadline will be moved to July 15, 2020 from April 15, 2020, because of the coronavirus (COVID-19) outbreak. Previously, the Secretary extended the April 15, 2020 payment date to July 15, 2020.  Now the tax return deadline has been extended.

So, extensions due April 15, 2020 are not due at April 15, 2020, they would be due July 15, 2020.

Image result for steve mnuchin

We are working remotely on all tax returns, as we need to complete returns and projects to get all tax returns and projects done before all the revised due dates and extended due dates.  So, please continue to send in your tax information.  Also, some bank covenants require tax returns to be sent to the banks by a certain date unless the bank provides a revision.

Passports and Taxes – Can your passport be revoked?

If you owe the IRS back taxes, they can revoke or refuse to renew your USA passport.

The Fixing America’s Surface Transportation (FAST) Act of 2015, the IRS is required to notify the State Department of taxpayers the IRS has certified as owing a “seriously delinquent tax debt” (IRC Sec. 7345). In July 2019, the IRS temporarily suspended passport certification procedures for anyone who had a case open with the Taxpayer Advocate Service (TAS).

Image result for passport

Since then, the agency has determined that a blanket, systemic exception for anyone with an open TAS case is overly broad and could undermine the effectiveness of the FAST Act to collect a seriously delinquent tax debt. Therefore, the IRS will resume passport revocation procedures for affected taxpayers. According to the IRS, the agency will continue to fairly and impartially oversee the certification process with the State Department to uphold the law while also respecting the rights of all taxpayers.

For more information, see www.irs.gov/newsroom/update-on-passport-certifications-and-taxpayer-advocate-service .

State Income Tax Filing Requirements and Economic Presence

Scope: This memo is intended to provide general guidance on how state income tax return filing requirements are determined and to provide an explanation of the Economic Presence standard which several states are now using to determine if a business entity has a tax return filing requirement in that state. Vertical Advisors (VA) determines state tax return filing requirements based on information provided to us from our clients. However, the historic state income tax filing requirements are based on the general standard as described below but each business will ALSO need to decide whether state filing requirements under the Economic Presence standard should be considered. VA is available to be engaged to review income tax filing requirements for our clients.

General Standard: There are multiple factors that affect state tax return filing requirements. This memo is meant to provide a general overview. A detailed analysis of state tax attributes would be needed to fully understand the state tax return filing requirements for a particular business. Attributes that are considered when determining state tax return filing requirements are as follows:

  1. Sales by state
  2. Wages by state (could also include vendor or independent contractors)
  3. Fixed assets by state

Historically, when a business has two or more of the attributes listed above, a state tax return would be required for that state. However, several states are now using the more aggressive Economic Presence standard which can cause a state tax return filing requirement even if only one attribute exists which is usually sales in that state.

Economic Presence Standard: Under the Economic Presence standard, a state tax return may be required if any one of the following conditions exists:

  • Any income derived in the state
  • Sales in the state exceeding certain threshold
  • Licensed intangible properties in the state
  • Doing business or seeking profits in the state

The Economic Presence standard is not new and approximately 43 states currently have an Economic Presence standard. Although the Economic Presence standard has existed for years, the states were not aggressively enforcing tax return filing requirements under this standard. However, due mainly to the growth of the e-commerce industry, it is now common for a company to transact business in several states in which the only connection to that state may be the sales with no actual physical presence in that state. Under the general standard, without a physical presence in the state, there was no state return filing requirement and thus the states could not assess income tax on businesses that had only sales in those states.

Under Economic Presence, the sales alone can cause a tax return filing requirement. Since each state defines Economic Presence standard differently, a detailed analysis by state would be required to understand the possible state tax return filing requirements under the Economic Presence standard.

Conclusion: As mentioned earlier, Vertical Advisors reviews state tax return filing requirements consistent with the general standard and information provided by our clients. However, since states are becoming more aggressive in applying the Economic Presence standard, each business will need to decide if they want to retain us to consider their specific income tax return filing requirement, allocate their internal resources, or to disregard the laws. We recommend a diligent review of income tax return filing requirements annually.

We feel it makes sense to review state tax return filing requirements under the Economic Presence standard and the general standard approach. Ignoring state tax return filing requirements under the Economic Presence standard can result in tax notices, possible penalties and examinations. However, since not all states are aggressively applying the Economic Presence standard, a business will need to balance the risk of not filing against the cost of preparing possibly several state tax returns. For more information on how state income tax filing requirements including the Economic Presence test may affect your business, please contact us.

Federal government shutdown creates tax filing uncertainty

The IRS has announced that it will begin accepting paper and electronic tax returns for the 2018 tax year on January 28, but much remains to be seen about how the ongoing shutdown of the federal government will affect this year’s filings. Although the Trump administration has stated that the IRS will pay refunds during the closure — a shift from IRS practice in previous government shutdowns — it’s not clear how quickly such refunds can be processed.

Effects of the shutdown on the IRS so far

An estimated 800,000 federal government workers have been furloughed since December 22, 2018, due to the impasse between President Trump and Congress over funding for a southern border wall. The most recent contingency plan published for the IRS lapsed on December 31, 2018, but it provided that only 12.5% of the tax agency’s approximately 80,000 employees would be deemed essential and therefore continue working during a shutdown.

The furloughs are necessary because the standoff over the border wall has prevented the enactment of several of the appropriations bills that fund the federal government. Tax refunds aren’t paid with appropriated funds, but IRS employees are. In the past, the IRS hasn’t paid tax refunds during shutdowns because it didn’t have the appropriated funds it needed to pay the employees who process refunds. Trump administration attorneys, however, have determined that the agency can issue refunds during a shutdown.

The IRS likely will need far more than 12.5% of its employees on the job to process refunds when it starts accepting filings. In 2018, the IRS received 18.3 million returns and processed 6.1 million refunds in the first week of tax season. By just one week later, it had received 30.8 million returns and issued 13.5 million refunds. Even though the IRS has indicated that it intends to recall “a significant portion of its workforce” to work, it has provided few details, and those employees would have to work without pay. The IRS says it will release an updated contingency plan “in the coming days.”

TCJA complicates the picture

The implementation of the federal tax overhaul could further complicate matters for taxpayers. The 2018 tax year is the first to be subject to the Tax Cuts and Jobs Act (TCJA), which brought sweeping changes to the tax code, as well as new tax forms. Various TCJA implementation activities, such as the development of new publications and instructions, will continue because they’re funded by earlier appropriations legislation.

Be aware that taxpayers and their accountants may not be able to contact the IRS with questions. When the IRS’s main number on January 9 was called, this recorded message was received: “Live telephone assistance is not available at this time. Normal operations will resume as soon as possible.”

During the 2013 government shutdown, taxpayers also couldn’t receive live telephone customer service from the IRS, and walk-in taxpayer assistance centers were shuttered. At that time, the IRS website was available, but some of its interactive features weren’t. Treasury Secretary Steve Mnuchin has stated that the IRS will call back enough employees to work to answer 60% to 70% of phone calls seeking tax assistance during this shutdown, which could lead to widespread taxpayer frustration.

Tax filing deadlines are still in effect

Regardless of how IRS operations proceed, taxpayers still need to comply with the filing deadlines. Individual taxpayers in every state but Maine and Massachusetts must file by April 15, 2019; filers in those two states have until April 17, 2019. Individuals who obtain a filing extension have until October 15, 2019, to file their returns but should pay the taxes owed by the April deadline to avoid penalties. If you have questions about tax filing, please contact us.