monthly TAXPRO Insurance Consultant Claims Too Many Deductions How To Question and Answer Government News Issue 9 Volume 39 September 2017

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1 TAXPRO monthly Issue 9 Volume 39 September Health Care Repeal: What s the status? Government News 4 How To Additional Child Tax Credit: How to receive full benefits 14 Divorce: Are legal fees deductible? Question and Answer Insurance Consultant Claims Too Many Deductions Blames tax preparation software for errors By Sherri Huff, EA Barry Bulakites, an insurance consultant whose clients are accountants, relied only on TurboTax when he prepared his own returns. The IRS thought he claimed a few too many deductions, but Bulakites argued that he had enough evidence to prove some of them and blamed the software for luring him into claiming others. Bulakites, a specialist in life insurance and annuities, is frequently called upon to testify as an expert witness on the subject. He trains others in his field, and works for a firm whose clients are mostly accountants in need of advice on anything from how to sell their services to how to decide if a client is due a refund for a particular service sold. The big issue in this case, however, arose from a dispute that happened years ago while Bulakites held a different job. Though the details in the record are thin, a lawsuit arose when 401(k) plan participants at Wasley Products sued the company where Bulakites worked. He credibly testified that he was named as a defendant for his work on the plan, and in 2007, a global settlement left him on the hook for $500,000. Bulakites says that he paid the settlement by taking out a $500,000 loan in 2007 secured by his home. The promissory note was due in less than a year, but Bulakites planned to sell his home and use the proceeds to pay the note when it came due in October That didn t happen. His troubles got even worse in 2009 when he and his wife legally separated and, a year later, divorced. Their separation agreement directed Bulakites to pay his ex-wife $2,000 per month for spousal support until the sale of the marital residence, at which point his payments would increase to $8,000. The real estate market had not noticeably improved for him by 2009, and Bulakites credibly claimed during trial that the house was under water with no hope of a sale. He and his ex-wife never entered into any subsequent maintenance agreements, but in an effort to do the continued on page 3

2 Government News Health Care Repeal What s the status? By Cindy Hockenberry, EA The House managed to pass their version of a bill repealing parts of the Affordable Care Act in May, but the Senate fell short twice. Where do taxpayers stand regarding health insurance coverage? In short, the ACA is still law. On January 20, 2017, just hours after Donald Trump was sworn in as our 45th president, he signed an executive order minimizing the Affordable Care Act s economic burden during repeal and replace efforts. However, that order didn t change the ACA. Michael J. Montemurro, IRS Branch Chief, Associate Chief Counsel Income Tax and Accounting, issued INFO on June 20, 2017, which says in part: This Executive Order directed federal agencies to exercise the authority and discretion permitted to them by law to reduce potential burden imposed by the ACA. The Executive Order does not change the law; the legislative provisions of the ACA are still in force until changed by the Congress, and taxpayers remain required to follow the law, including the requirement to have minimum essential coverage for each month, qualify for a coverage exemption for the month, or make a shared responsibility payment. Many taxpayers assumed that since the IRS was not requiring them to check the box on their tax returns indicating coverage or an exemption, they were not required to pay the shared responsibility payment. As a result, many taxpayers did not calculate and include the payment on their 2016 tax return. Now that the IRS is well into processing those returns, taxpayers are receiving letters asking them to pay up or show they have the required coverage or an exemption. No one knows for sure what will happen with Congress s efforts to repeal and replace the Affordable Care Act, much less when it will happen. During negotiations, parts could remain or be completely eliminated or revised. Until then, we need to advise clients to follow the law as it s currently in place. If taxpayers don t qualify for a coverage exemption for 2017, the current law allows them to forego health coverage and make a shared responsibility payment when they file their 2017 tax return. The shared responsibility payment for 2017 is generally the greater of two amounts: (1) 2.5 percent of household income above the income tax return filing threshold for individuals of a certain age and filing status; or (2) a flat dollar amount (for 2017, $695 per adult and $ per child, with a maximum family amount of $2,085). However, if the greater of these two amounts is more than the cost of the national average premium for a bronze level health plan available through the Health Insurance Marketplace, their shared responsibility payment amount is capped at the bronze level national average premium amount. The 2017 bronze level national average premium amount has not yet been published, but the 2016 amount was $2,676 per year ($223 per month) for an individual and $13,380 per year ($1,115 per month) for a family with five or more members. The instructions to Form 8965 include worksheets to assist taxpayers with the computation of their shared responsibility payment. Both the House-passed American Health Care Act and the Senate s failed Better Care Reconciliation Act contained provisions that would repeal the individual mandate requiring taxpayers to maintain health insurance coverage retroactively to January 1, Whether this provision is retained in any final bill that reaches the president s desk remains to be seen. n 2 NATP TAXPRO Monthly / natptax.com

3 Tax Talk Too Many Deductions (continued from page 1) right thing, Bulakites orally agreed with his ex-wife to increase his payments to $5,000 per month. He didn t quite keep up, but the documents in the record do show that he paid her about $50,000 in both 2011 and Bulakites used TurboTax to prepare his returns for the years at issue. He admitted that he made a lot of mistakes in the process. These may have been what caught the IRS s attention and why they sent him a notice of deficiency for the 2011 and 2012 tax years. Bulakites timely filed a petition with the Court, but in the months leading up to trial he was largely unresponsive to the IRS s attempts at informal discovery. There were some problems once he arrived for trial as well. It turned out that Bulakites did not turn over some evidence to the IRS until the eve of trial. This he blamed on a flood at his home. Though the flood occurred three years before trial, Bulakites said he was expecting vital documentation from a restoration company that very week. The Court indicated this narrative affected its view of his credibility. The only issues left for the Court to decide were: Whether Bulakites was entitled to deduct the payments that he sent his wife in the 2011 and 2012 tax years. Whether he was entitled to deduct business interest expenses for the 2011 and 2012 tax years. Whether he was entitled to deduct other business expenses for the 2011 tax year. Whether he was liable for the accuracy-related penalty under 6662(a) for the years at issue. Alimony Section 215(a) allows a deduction for alimony paid. Section 71(b) defines alimony and, in part, states that the payment be required by a divorce or separation instrument. Bulakites oral modification of his written separation agreement doesn t work because it s well settled that an oral modification of a written instrument does not meet 71 s requirements. The Court had found his motivation sincere, and he did prove that he paid his ex-wife well over the $2,000 a month required by his separation agreement, but the Court had to hold that the law does not allow him to deduct those excess amounts as alimony. Interest Deductions A taxpayer can deduct interest paid or incurred during the tax year if the interest is an ordinary and necessary expense of carrying on his trade or business. A taxpayer must be able to substantiate that interest, which means that he must show that he made a payment and show what portion was interest and what portion was repayment of principal. The evidence did show Bulakites made payments to his lender, but the amounts do not match those that he claimed on his tax returns; he did not explain this discrepancy at trial. Bulakites also did not provide the Court with any business records regarding the loan, any loan statements or any loan-repayment schedules. Without this type of documentation, the Court was unable to tell whether these payments were made on the original 2007 loan. Remember that the note for that loan says it should have been paid in full by October The Court understood that it might have been his plan to pay the note with proceeds from the sale of his home, and that the sale didn t happen. The problem is that the Court couldn t figure out what happened to the note. Was it continued on page 15 Applicable Federal Rates for August 2017 Annual Semiannual Quarterly Monthly Revenue Ruling Short-term (3 years or less) Mid-term Long-term (More than 9 years) August 7520 rate = 2.4% September 2017 / NATP TAXPRO Monthly 3

4 How To Additional Child Tax Credit How to receive full benefits By Kris Siolka, EA The Additional Child Tax Credit is available to a taxpayer who is eligible for the child tax credit, but not able to obtain the full benefit of that credit. If the child tax credit is allowed in full, then the additional child tax credit does not apply. The child tax credit is a nonrefundable credit up to $1,000 for each qualifying child properly reported as a dependent on the tax return. As a nonrefundable credit, the child tax credit, combined with other nonrefundable credits, cannot reduce tax liability below zero. If regular tax liability and AMT are less than the child tax credit amount, the excess is normally lost. The additional child tax credit allows for this excess amount to be a refundable credit, provided certain requirements are satisfied [ 24(d)]. However, the total overall child tax credit cannot exceed $1,000 per qualifying child. The additional child tax credit becomes refundable to the extent of 15% of the taxpayer s earned income in excess of $3,000. Taxpayers with three or more qualifying children can determine the additional child tax credit by using either the 15%-of-earnedincome rule, or a rule allowing a refundable credit for the amount by which the taxpayer s social security taxes exceed the taxpayer s earned income tax credit (EITC). After determining that the taxpayer has a qualifying child, the child tax credit is calculated. This allowable credit can be determined using the worksheet in the Form 1040 instructions or the appropriate worksheets in Pub The worksheets in Pub. 972 are required if: The taxpayer s adjusted gross income exceeds a threshold amount ($110,000 MFJ, $75,000 S, HH, QW, or $55,000 MFS); The taxpayer claims a retirement savings contribution credit, adoption credit, mortgage interest credit, or the District of Columbia first-time homebuyer credit; or The taxpayer excludes foreign or possessions income. In determining the nonrefundable child tax credit and the refundable additional child tax credit, the ordering rules for multiple credits need to be considered. These ordering rules provide that tax liability is first reduced by nonrefundable personal credits and then nonrefundable business credits. Refundable credits are then applied to reduce the tax liability for the current year, with any portion of the refundable credit not used against tax liability to be refunded to the taxpayer. There is a second ordering rule when applying the nonrefundable personal credits. Those credits that cannot be carried to another tax year are applied before credits that can be carried over if not used. For example, an education credit is a credit that reduces tax liability. If there is an education credit in excess of the liability, that excess is lost. With an adoption credit, an amount in excess of the tax liability can be carried over to be used the following year. The worksheet process reduces the sum of the individual s regular tax and AMT by certain nonrefundable credits. Form 2441, Credit for Child and Dependent Expenses. Schedule R, Credit for the Elderly or Disabled. Form 8863, Education Credits. Form 5695, Residential Energy Credits. Form 1116, Foreign Tax Credit. Form 8396, Mortgage Interest Credit. Form 8859, Carryforward of the District of Columbia First-Time Homebuyer Credit. If these credits reduce the tax and AMT to zero, none of the child tax credit is available as a nonrefundable credit. If the reduced tax and AMT is greater than zero, the child tax credit is allowed as a nonrefundable credit to the extent of $1,000 per qualifying child, or enough to reduce the tax to zero. 4 NATP TAXPRO Monthly / natptax.com

5 If the tax and AMT is reduced to zero, and part or all of the $1,000 per child was not allowed, a taxpayer who meets certain requirements then determines if the additional child tax credit is allowed. Example Greg and Tara Smith have four children who are all qualifying children for the child tax credit. Greg has W-2 wages of $70,000, and Tara has net Schedule C income of $49,600. Form 1040, Line 27 (one-half of the selfemployment tax), is $3,504. The Smiths file married filing jointly, so their Form 1040, Line 38 (adjusted gross income), is $116,096. Form 1040, Line 47 (tax), is $4,251. The Smiths also qualify for a child and dependent care credit of $1,000 on Form 1040, Line 49, and an adoption credit of $8,500 on Form 1040, Line 54. The Child Tax Credit Worksheet, Part 1, determines how much of the $1,000 per child is allowable based on modified AGI. For the purposes of the phase-out, modified AGI is the adjusted gross income determined without the exclusions for foreign earned income and foreign housing costs, and the exclusion of income for residents of Guam, American Samoa, Northern Mariana Islands and Puerto Rico. The phase out is determined by subtracting the threshold amount from the modified AGI, rounding the result up to the next multiple of $1,000, then multiplying the amount by five percent. This result then reduces the $1,000 per child amount. For a married filing joint return with one qualifying child, the credit is eliminated when modified AGI is $129,001 or more. The amount of $129,001 rounded to the next multiple of $1,000 is $130,000. When this is reduced by the base amount of $110,000 and multiplied by five percent, the result is $1,000, reducing the $1,000 credit amount for the one qualifying child to zero. If the modified AGI phase-out reduces the allowable credit to zero, this also eliminates the refundable additional child tax credit. By following the Form 1040 instructions, the Smiths first determine that all four of the children are qualifying children for purposes of the child tax credit. With AGI in excess of $110,000, they need to use the worksheets in Pub. 972 to determine their child tax credit. They start with the Child Tax Credit Worksheet by entering the number of qualifying children, multiplying by $1,000 and entering $4,000 on Line 1. They enter the AGI from Form 1040, Line 38, on Line 2 of the worksheet ($116,096). They have no foreign or possession income, so they enter the same amount on Line 4 of the worksheet. Filing a joint return, they enter $110,000 on Line 5. For Line 6, they subtract the $110,000 from $116,096, and round the difference to the next multiple of $1,000, for an entry of $7,000. They then multiply the $7,000 by.05, and enter $350 on Line 7. The Line 7 amount reduces the Line 1 amount for a difference of $3,650 to enter on Line 8. If the credit amount is not eliminated by the phase-out, the taxpayer continues with Part 2 of the worksheet. This part picks up the tax, after adding AMT, from Form 1040, Line 47. The next step is to find the total of the following credits: Child care and dependent care credit; Credit for the elderly and disabled; Education credits; Residential energy credits; Foreign tax credit; Mortgage interest credit; and The carryforward of the District of Columbia first-time home buyer credit. If the individual is not claiming the retirement savings contribution credit or an adoption credit, the sum of these credits reduces the Line 47 tax, but not below zero. This result is compared to the allowable credit amount from Part 1, Line 8, and selecting the smaller of the two as the nonrefundable child tax credit to enter on Form 1040, Line 52. If the individual is claiming a retirement savings contribution credit or an adoption credit, then the Line 11 Worksheet needs to be completed to determine the amount by which the tax on Line 47 is reduced. For the Smiths, with an amount greater than zero on Line 8, they continue on Page 2 of the worksheet. On Line 9, they enter the amount of tax as reported on Form 1040, Line 47 ($4,251). On Line 10, they record certain other credits they are eligible to claim. Of the credits entered here, only the $1,000 child and dependent care credit is included. Being eligible for an adoption credit, the Smiths need to complete the Line 11 Worksheet before they can complete the Child Tax Credit Worksheet. Even though the continued on page 6 September 2017 / NATP TAXPRO Monthly 5

6 directions state to go to the Line 11 Worksheet, the Earned Income Worksheet should be completed first. The Earned Income Worksheet combines the Form 1040, Line 7, amount, nontaxable combat pay, statutory employee income and selfemployment (SE) income. Then it reduces this by amounts included on Line 7 (i.e., certain scholarship and fellowship income, inmate income, nonqualified deferred compensation, certain income reported on Form 2555) and by one half of the selfemployment tax as reported on Form 1040, Line 27. The result of the earned income computation is carried to Line 2 of the Line 11 Worksheet. The taxpayers complete the Earned Income Worksheet by entering Greg s W-2 wages of $70,000 on Line 1a. They then enter Tara s Schedule C net profit of $49,600 on Line 2b. These two amounts are then added together for an amount of $119,600 on Line 3. They have no other information to report until Line 5, where they enter the amount from Form 1040, Line 27 (one-half of the SE tax), $3,504, which is also carried to Line 6. This $3,504 is subtracted from the Line 3 amount for an entry on Line 7 of $116,096. On the Line 11 Worksheet, the earned income is compared to a standard amount, $3,000. If the income amount is less than the standard amount, the Line 11 Worksheet is finished, and the remainder of the Child Tax Credit Worksheet is completed. If the income is over this standard amount, 15% of the excess is entered on Line 4 of the Line 11 Worksheet. How to proceed after this point depends on whether the taxpayer is claiming a child tax credit for three or more children or for only one or two children. As indicated earlier, with one or two children, the additional child tax credit becomes refundable to the extent of 15% of the taxpayer s earned income in excess of $3,000. With three or more children, it becomes refundable to the extent of 15% of earned income in excess of $3,000 or the amount by which the taxpayer s social security taxes exceed the taxpayer s earned income tax credit. Lines 6 9 of the Line 11 Worksheet are used to determine the extent to which the taxpayer s social security taxes exceed his or her earned income tax credit. The remainder of the Line 11 Worksheet is then completed by taking into account certain other credits, with the result carried to Line 11 of the Child Tax Credit Worksheet. On the Line 11 Worksheet, the Smith s enter $3,650 from Line 8 of the Child Tax Credit Worksheet on Line 1, and the $116,096 from the Earned Income Worksheet on Line 2. From the $116, 096, they subtract the standard amount of $3,000, for a result of $113,096. They then multiply this by 15% for an entry on Line 4 of $16,964. From reading the instructions for Line 5, they see that the Line 1 amount on the Child Tax Credit Worksheet is more than $3,000. Since the Line 4 amount is more than the Line 1 amount, they check the Yes box on Line 5 and enter $0 on Line 10. If the Line 4 amount was less than the Line 1 amount, the Smiths would complete Lines 6 9 to determine the excess of social 6 NATP TAXPRO Monthly / natptax.com

7 How To security tax over EITC. The result of this computation, or the amount as indicated in checking the box on Line 5, is entered on Line 10. For Line 11, the Smiths enter the larger of Line 4 ($16,964) or Line 10 ($0). Because this amount is larger than the Line 1 amount, they check the Yes box on Line 12 and enter $0. The Smiths then recalculate their adoption credit and find they are still eligible for an adoption credit of $8,500, which is entered on Line 13 of the worksheet. Line 14 is the amount of the child and dependent care credit from the Child Tax Credit Worksheet, $1,000. Lines 13 and 14 are added for an entry of $9,500, which then gets carried to the Child Tax Credit Worksheet, Line 11. The calculations on the remainder of the worksheet determine the amount of Child Tax Credit to claim on Form 1040, Line 52, to reduce tax liability to zero. If not all of the $1,000 per child credit, as adjusted for modified AGI, is used in determining the nonrefundable Child Tax Credit entered on Line 52, a Schedule 8812, Additional Child Tax Credit, should be completed to determine if any of this excess can be refundable. The Smiths go back and complete the Child Tax Credit Worksheet. Because the Line 11 amount is greater than their tax reported on Line 9, they end up with a child tax credit of $0 on Line 13, and $0 on Form 1040, Line 52. When checking the Yes box on Line 13, they also read the TIP on the bottom of the page and proceed to complete Schedule 8812 to determine any additional child tax credit. Schedule 8812 starts with information from the Child Tax Credit Worksheet. By using the worksheets in Pub. 972, the amount from Line 8 of the worksheet is entered on Line 1 of Schedule The child tax credit amount from Form 1040, Line 52, is entered on Line 2 of Schedule The excess of Line 1 over Line 2 is the maximum additional child tax credit allowed. Lines 4 6 again complete the calculation of 15% of excess of earned income over the standard amount of $3,000. With one or two children, the smaller of the maximum additional child tax credit allowed or the 15% of the excess earned income is carried to Form 1040, Line 67, as a refundable credit. With three or more qualifying children, the taxpayer completes Lines 7 12 of Schedule 8812 to calculate the excess of the individual s social security tax over the earned income tax credit. This result is then compared to the 15% earned income limit to determine which provision allows the larger refundable credit. In completing Lines 7 9, the taxpayer will: Enter the social security and Medicare taxes from Boxes 4 and 6 of all W-2s, including those of a spouse; Add the amount of one-half of the SE tax as reported on Form 1040, Line 27; Add the unreported social security and Medicare tax as reported on Form 1040, Line 58; and Add any amount included on Form 1040, Line 62, using the code UT (uncollected social security and Medicare tax on tips and group-term life insurance). On Line 10, the taxpayer enters the total of the earned income tax credit reported on Form 1040, Line 66a, and the excess social security and tier 1 RRTA withheld as reported on Form 1040, Line 71. The Line 10 amount is then sub tracted from the Line 9 amount, and the result is compared to the 15% earned income limit on Line 6, with the larger amount entered on Line 12. The smaller of the maximum additional child tax credit from Line 3 or the amount determined for Line 12 is then carried to Form 1040, Line 67. The instructions to Schedule 8812 include a chart to refer to when entering earned income on Line 4a. Earned income for this purpose includes nontaxable combat pay and the income determined using the worksheet for the child tax credit or the income determined using the Earned Income Tax Credit Worksheet. On Line 1 of Schedule 8812, the Smiths enter the amount from Line 8 of the Child Tax Credit Worksheet, $3,650. With a $0 child tax credit on Form 1040, Line 52, this $3,650 is also entered on Line 3 of Schedule The Smiths then refer to the Earned Income Chart in the Schedule 8812 instructions, and enter $116,096 on Line 4a. With this amount being greater than $3,000, they check the Yes box on Line 5 and enter the difference of $113,096. This amount is then multiplied by 15% for an entry of $16,964 on Line 6. They see that the Line 6 amount is greater than the Line 3 amount, so they check the Yes box on Line 6 and carry the $3,650 Line 3 amount to Line 13. This amount is the Smiths additional child tax credit, which is reported on Form 1040, Line 67. See pages 8 14 for the Smiths worksheets and Schedule n September 2017 / NATP TAXPRO Monthly 7

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14 How To (continued from page 13) Q and A Q Are legal fees relating to a divorce deductible? A In general, no, legal fees relating to a divorce are not deductible [Reg (b)(7) ]. However, amounts paid for tax advice or preparation or amounts paid in relation to collecting taxable income would be deductible. Therefore, any portion of the legal fees paid for efforts to obtain taxable income such as alimony are deductible under 212 as miscellaneous itemized deductions subject to 2% of AGI. Any portion of the legal fees paid to avoid paying alimony are not deductible. 14 NATP TAXPRO Monthly / natptax.com

15 Too Many Deductions (continued from page 3) refinanced? Was it extended? Without any paperwork in a situation where there should have been lots of paperwork the Court was left only with his testimony about the total amounts of the payments and the allocation of those payments between principal and interest. The Court did not find his testimony credible on this issue; therefore, it sustained the IRS s determination. NOL Bulakites claimed $185,673 as a deduction for other expenses on his 2011 return. He claimed during trial that this was a carryforward of a net operating loss (NOL) from a previous year that he mistakenly put on the wrong line of his return. He failed to contest this issue on brief, which the Court would normally deem a concession, but the Court decided to discuss it anyway. Section 172 allows a deduction for NOL carryovers from earlier years (and NOL carrybacks from later years) as long as the taxable income for the current year is greater than zero. A taxpayer substantiates his claim to such a deduction by filing with his return a concise statement setting forth the amount of the net operating loss deduction claimed and all material and pertinent facts relative thereto, including a detailed schedule showing the computation of the net operating loss deduction [Reg (c)]. Bulakites filed no such documentation. During the trial, he did present a tax return for a previous year, though not the one that generated the NOL. Even with his testimony, that was not enough to substantiate his entitlement to a loss carryforward. Penalty The IRS asserted a 6662(a) accuracy-related penalty for each year at issue. Section 6662 imposes the penalty when there is any substantial understatement of income tax. An understatement of tax is substantial if it exceeds the greater of $5,000 or 10 percent of the tax required to be shown on the return. Bulakites understatements for the 2011 and 2012 tax years well surpass both $5,000 and 10% of the tax required. The burden then swung to Bulakites to show that his mistakes were reasonable and in good faith [ 6664(c) (1)]. He could not. He admitted during trial that he deducted items he shouldn t have, and that he overstated certain losses. He tried to blame TurboTax for his mistakes, but tax preparation software is only as good as the information one inputs into it (Bunney v. Commissioner, 114 T.C. 259). Therefore, the Court ruled in favor of the IRS on this last issue as well. n Barry L. Bulakites v. Commissioner TC Memo TAXPRO monthly ( ) (ISSN ) is published monthly by NATP National Association of Tax Professionals 3517 N. McCarthy Road Appleton, WI Periodicals postage paid at Appleton, WI and additional mailing office. Editor: Cindy Van Beckum Managing Editor: Cindy Hockenberry, EA Contributing Writers: Cindy Hockenberry, EA Sherri Huff, EA Kris Siolka, EA Postmaster: Send address changes to: TAXPRO Monthly c/o NATP 3517 N. McCarthy Road Appleton, WI Change of address? Please contact NATP at: ext. 3 natp@natptax.com natptax.com Views expressed in TAXPRO Monthly are not necessarily endorsed by the National Association of Tax Professionals. Copyright 2017 National Association of Tax Professionals, Inc. All rights reserved. About NATP NATP is the largest association dedicated to equipping tax professionals with the resources, connections and education they need to provide the highest level of service to their clients. NATP is comprised of over 23,000 leading tax professionals who believe in a superior standard of ethics and exemplify professional excellence. Members rely on NATP to deliver professional connections, content expertise and advocacy that provides them with the support they need to best serve their clients. The organization welcomes all tax professionals in their quest to continually meet the needs of the public, no matter where they are in their careers. September 2017 / NATP TAXPRO Monthly 15

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