Tag Archives: tax returns

IRS provides QBI deduction guidance in the nick of time

When President Trump signed into law the Tax Cuts and Jobs Act (TCJA) in December 2017, much was made of the dramatic cut in corporate tax rates. But the TCJA also includes a generous deduction for smaller businesses that operate as pass-through entities, with income that is “passed through” to owners and taxed as individual income.

The IRS issued proposed regulations for the qualified business income (QBI), or Section 199A, deduction in August 2018. Now, it has released final regulations and additional guidance, just before the first tax season in which taxpayers can claim the deduction. Among other things, the guidance provides clarity on who qualifies for the QBI deduction and how to calculate the deduction amount.

QBI deduction in action
The QBI deduction generally allows partnerships, limited liability companies, S corporations and sole proprietorships to deduct up to 20% of QBI received. QBI is the net amount of income, gains, deductions and losses (excluding reasonable compensation, certain investment items and payments to partners) for services rendered. The calculation is performed for each qualified business and aggregated. (If the net amount is below zero, it’s treated as a loss for the following year, reducing that year’s QBI deduction.)

If a taxpayer’s taxable income exceeds $157,500 for single filers or $315,000 for joint filers, a wage limit begins phasing in. Under the limit, the deduction can’t exceed the greater of 1) 50% of the business’s W-2 wages or 2) 25% of the W-2 wages plus 2.5% of the unadjusted basis immediately after acquisition (UBIA) of qualified business property (QBP).

For a partnership or S corporation, each partner or shareholder is treated as having paid W-2 wages for the tax year in an amount equal to his or her allocable share of the W-2 wages paid by the entity for the tax year. The UBIA of qualified property generally is the purchase price of tangible depreciable property held at the end of the tax year.

The application of the limit is phased in for individuals with taxable income exceeding the threshold amount, over the next $100,000 of taxable income for married individuals filing jointly or the next $50,000 for single filers. The limit phases in completely when taxable income exceeds $415,000 for joint filers and $207,500 for single filers.

The amount of the deduction generally can’t exceed 20% of the taxable income less any net capital gains. So, for example, let’s say a married couple owns a business. If their QBI with no net capital gains is $400,000 and their taxable income is $300,000, the deduction is limited to 20% of $300,000, or $60,000.

The QBI deduction is further limited for specified service trades or businesses (SSTBs). SSTBs include, among others, businesses involving law, financial, health, brokerage and consulting services, as well as any business (other than engineering and architecture) where the principal asset is the reputation or skill of an employee or owner. The QBI deduction for SSTBs begins to phase out at $315,000 in taxable income for married taxpayers filing jointly and $157,500 for single filers, and phase out completely at $415,000 and $207,500, respectively (the same thresholds at which the wage limit phases in).

The QBI deduction applies to taxable income and doesn’t come into play when computing adjusted gross income (AGI). It’s available to taxpayers who itemize deductions, as well as those who don’t itemize, and to those paying the alternative minimum tax.

Rental real estate owners
One of the lingering questions related to the QBI deduction was whether it was available for owners of rental real estate. The latest guidance (found in IRS Notice 2019-07) includes a proposed safe harbor that allows certain real estate enterprises to qualify as a business for purposes of the deduction. Taxpayers can rely on the safe harbor until a final rule is issued.

Generally, individuals and entities that own rental real estate directly or through disregarded entities (entities that aren’t considered separate from their owners for income tax purposes, such as single-member LLCs) can claim the deduction if:

  • Separate books and records are kept for each rental real estate enterprise,
  • For taxable years through 2022, at least 250 hours of services are performed each year for the enterprise, and
  • For tax years after 2018, the taxpayer maintains contemporaneous records showing the hours of all services performed, the services performed, the dates they were performed and who performed them.

The 250 hours of services may be performed by owners, employees or contractors. Time spent on maintenance, repairs, rent collection, expense payment, provision of services to tenants and rental efforts counts toward the 250 hours. Investment-related activities, such as arranging financing, procuring property and reviewing financial statements, do not.

Be aware that rental real estate used by a taxpayer as a residence for any part of the year isn’t eligible for the safe harbor.

This safe harbor also isn’t available for property leased under a triple net lease that requires the tenant to pay all or some of the real estate taxes, maintenance, and building insurance and fees, or for property used by the taxpayer as a residence for any part of the year.

Aggregation of multiple businesses
It’s not unusual for small business owners to operate more than one business. The proposed regs include rules allowing an individual to aggregate multiple businesses that are owned and operated as part of a larger, integrated business for purposes of the W-2 wages and UBIA of qualified property limitations, thereby maximizing the deduction. The final regs retain these rules with some modifications.

For example, the proposed rules allow a taxpayer to aggregate trades or businesses based on a 50% ownership test, which must be maintained for a majority of the taxable year. The final regulations clarify that the majority of the taxable year must include the last day of the taxable year.

The final regs also allow a “relevant pass-through entity” — such as a partnership or S corporation — to aggregate businesses it operates directly or through lower-tier pass-through entities to calculate its QBI deduction, assuming it meets the ownership test and other tests. (The proposed regs allow these entities to aggregate only at the individual-owner level.) Where aggregation is chosen, the entity and its owners must report the combined QBI, wages and UBIA of qualified property figures.

A taxpayer who doesn’t aggregate in one year can still choose to do so in a future year. Once aggregation is chosen, though, the taxpayer must continue to aggregate in future years unless there’s a significant change in circumstances.

The final regs generally don’t allow an initial aggregation of businesses to be done on an amended return, but the IRS recognizes that many taxpayers may be unaware of the aggregation rules when filing their 2018 tax returns. Therefore, it will permit taxpayers to make initial aggregations on amended returns for 2018.

UBIA in qualified property
The final regs also make some changes regarding the determination of UBIA in qualified property. The proposed regs adjust UBIA for nonrecognition transactions (where the entity doesn’t recognize a gain or loss on a contribution in exchange for an interest or share), like-kind exchanges and involuntary conversions.

Under the final regs, UBIA of qualified property generally remains unadjusted as a result of these transactions. Property contributed to a partnership or S corporation in a nonrecognition transaction usually will retain its UBIA on the date it was first placed in service by the contributing partner or shareholder. The UBIA of property received in a like-kind exchange is generally the same as the UBIA of the relinquished property. The same rule applies for property acquired as part of an involuntary conversion.

SSTB limitations
Many of the comments the IRS received after publishing the proposed regs sought further guidance on whether specific types of businesses are SSTBs. The IRS, however, found such analysis beyond the scope of the new guidance. It pointed out that the determination of whether a particular business is an SSTB often depends on its individual facts and circumstances.

Nonetheless, the IRS did establish rules regarding certain kinds of businesses. For example, it states that veterinarians provide health services (which means that they’re subject to the SSTB limits), but real estate and insurance agents and brokers don’t provide brokerage services (so they aren’t subject to the limits).

The final regs retain the proposed rule limiting the meaning of the “reputation or skill” clause, also known as the “catch-all.” The clause applies only to cases where an individual or a relevant pass-through entity is engaged in the business of receiving income from endorsements, the licensing of an individual’s likeness or features, or appearance fees.

The IRS also uses the final regs to put a lid on the so-called “crack and pack” strategy, which has been floated as a way to minimize the negative impact of the SSTB limit. The strategy would have allowed entities to split their non-SSTB components into separate entities that charged the SSTBs fees.

The proposed regs generally treat a business that provides more than 80% of its property or services to an SSTB as an SSTB if the businesses share more than 50% common ownership. The final regs eliminate the 80% rule. As a result, when a business provides property or services to an STTB with 50% or more common ownership, the portion of that business providing property or services to the SSTB will be treated as a separate SSTB.

The final regs also remove the “incidental to an SSTB” rule. The proposed rule requires businesses with at least 50% common ownership and shared expenses with an SSTB to be considered part of the same business for purposes of the deduction if the business’s gross receipts represent 5% or less of the total combined receipts of the business and the SSTB.

Note, though, that businesses with some income that qualifies for the deduction and some that doesn’t can still separate the different activities by keeping separate books to claim the deduction on the eligible income. For example, banking activities (taking deposits, making loans) qualify for the deduction, but wealth management and similar advisory services don’t, so a financial services business could separate the bookkeeping for these functions and claim the deduction on the qualifying income.

REIT investments
The TCJA allows individuals a deduction of up to 20% of their combined qualified real estate investment trust (REIT) dividends and qualified publicly traded partnership (PTP) income, including dividends and income earned through pass-through entities. The new guidance clarifies that shareholders of mutual funds with REIT investments can apply the deduction. The IRS is still considering whether PTP investments held via mutual funds qualify.

Proceed with caution
The tax code imposes a penalty for underpayments of income tax that exceed the greater of 10% of the correct amount of tax or $5,000. But the TCJA leaves less room for error by taxpayers claiming the QBI deduction: It lowers the threshold for the underpayment penalty for such taxpayers to 5%. We can help you avoid such penalties and answer all of your questions regarding the QBI deduction.

© 2019

7 IRS Triggers

As we have written previously, IRS audits have significantly increased.  Having an audit is not fun.  It can consume a lot of ones time and money if you hire a professional to represent you.  We seen a lot of audits which in our opinion shouldn’t have been triggered but because the tax return has a certain trigger the taxpayer has to deal with it.  To often we see sloppy mistakes that taxpayers and tax preparers make which triggers the audit.  So review these items and consider if your tax return should be done differently or by a different person if you have any of these items.

  1. Loss from a flow through (S Corporation, Partnerships, LLCs):  We have seen an significant increase in audits in which the tax return is taking a deduction for a loss from a flow through.  The loss may be justified, but the IRS is looking for these attributes more often and they are finding mistakes.  Once selected, they will look for a calculation that should be part of the tax return that shows that the taxpayer has adequate tax basis to take the loss.  There must be tax basis to take the loss.  Too often we have seen that the tax preparer has not prepared the proper tax basis calculation and thus triggered the audit.  Most of the taxpayers didn’t know that the tax preparer didn’t’ prepare all the necessary forms.  So, if you have losses from flow through, double check with your tax preparer.  This issue can also be expanded to the flow through and all the shareholders or partners and for multiple years.
  2. Large decreased in taxable income:  Even though most of the country has just came out of the recession, and most of us had to work harder and earned less, the IRS is still pulling tax returns for audit when the taxable income as decreased significantly.  If your taxable income decreased significantly, please make sure you take extra care that your tax return is correct, so if you are audited, it will go smoother.
  3. Real Estate Professional:  Real Estate professional is a tax status that if met can allow a taxpayer to use that loss against other non rental income.  Typically rental losses are considered a passive activity and outside of some minor rules, is only able to be offset against other passive income.  So, if a taxpayer has rental losses, and has other non passive income, certain rules have to be met to net the amounts together and thus pay tax on the net.  The real estate professional status continue to be a hot audit item.
  4. Not reporting income:  The IRS computers receive information on taxpayer that typically deals with income and certain deductible items like mortgage interest.  If the IRS computers show a larger amount of income than reported on your tax return, your chances of an audit have significantly increased.  If the amount is small, the IRS may just send you a letter, but if the amount is large, you will probably have to deal with an audit.  So, make sure you review all your W-2’s, 1099, even including your investment transactions. Even if the amount reported isn’t fully taxable your tax preparer should be aware of the income and properly report it to agree with the IRS computers.
  5. Being Self-Employed (Sole Proprietorship):  The IRS audits self employed taxpayers more often than others.  They have statistics that these taxpayers as a whole try to reduce taxable income illegally.  They also have seen that these taxpayers typically don’t’ have the best records, so they audit them and find more tax dollars to send back to Washington D.C.  If you are self employed that is fine, make sure you have good accounting records.  Try using a simple program like Quick Books to keep track of your income, expense, and liabilities which include credit cards.  We highly recommend that self employed set up a DBA bank account and have separate credit cards for just the business.  This makes it easier to track business transactions.  Our opinion is that if your net income is approaching $100,000 or larger, you should consider incorporating and electing S Corporation.  Generally your income tax can be decreased, you can create some asset protection and your audit risk should be reduced.
  6. Foreign Bank Accounts:  The IRS is still allocating a lot of resources to find taxpayers that have foreign bank accounts and haven’t properly reported them. If a taxpayer has a foreign bank account or even signature authority they need to properly complete the proper forms to disclose them.
  7. Research Credit:  The tax code allows tax credits for money spent on research costs.  The government wants to create an incentive for the US taxpayer to strive to create new or better technology.  However, too often have we seen that the company didn’t properly follow the rules to support the research credit.

A lot of audits could have been alleviated if the tax return was prepared properly.  Also, the taxpayer needs to be prepared for an audit.  This means one must keep organized records.  We recommend using an accounting software program that is appropriate for your business.  Depending on the type of business you have, you will need to create some best practices to be more organized in accounting.  For example, if you purchase goods or services with cash, make sure you keep the receipts.  Taxpayers that have organized books and records can complete an examination much quicker.  So be prepared if you are audited.

The IRS isn’t the only one taxpayers need to be prepared for.  Depending on your business, make sure you are prepared for state audits, sales tax audits, and payroll audits.  All the government agencies are out there looking for more tax revenue.

How long to keep your income tax records?

Audits (or as the IRS calls them examinations) have been up over the past five years.  I’m sure someone in goverment has told the IRS to find more money as we all know the Federal government has a lot of debt to pay down.  So, if a taxpayer wants to be prepared for an audit, how long should they keep their documents?   Our general answer is four years.  In general, the IRS has three years (the regular statue of limitation) from the filing date to audit a tax return.  Most states have four years to audit as they want time to see if the IRS audits a return.  If the IRS audits a tax return and there are changes which require a taxpayer to pay more tax rest assured that the Federal government will tell the state(s). Then it is the states turn.

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Tax Tips for Recently Married or Divorced Taxpayers

Most individual tax returns are electronically filed.  If your name and social security number doesn’t match, the IRS computers will not accept the electronically filed tax return.  Name mismatches cause problems with refunds also.  The Social Security Administration (SSA) should be notified of a name change resulting form marriage or divorce by filing form SS-5 which is available at www.socialsecurity.gov.