Form 1120S Challenges for Enrolled Agents: Navigating Latest Regs, Rulings and Guidance

Transcription

1 Form 1120S Challenges for Enrolled Agents: Navigating Latest Regs, Rulings and Guidance Anticipating Issues With Computations, Dividends, Distributions, Fringe Benefits, Etc. THURSDAY, JUNE 27, 2013, 1:00-2:50 pm Eastern IMPORTANT INFORMATION This program is approved for 2 CPE credit hours. To earn credit you must: Participate in the program on your own computer connection and phone line (no sharing) if you need to register additional people, please call customer service at x10 (or x10). Strafford accepts American Express, Visa, MasterCard, Discover. Respond to verification codes presented throughout the seminar. If you have not printed out the Official Record of Attendance, please print it now. (see Handouts tab in Conference Materials box on left-hand side of your computer screen). To earn Continuing Education credits, you must write down the verification codes in the corresponding spaces found on the Official Record of Attendance form. Complete and submit the Official Record of Attendance for Continuing Education Credits, which is available on the program page along with the presentation materials. Instructions on how to return it are included on the form. To earn full credit, you must remain on the line for the entire program. WHOM TO CONTACT For Additional Registrations: -Call Strafford Customer Service x10 (or x10) For Assistance During the Program: - On the web, use the chat box at the bottom left of the screen - On the phone, press *0 ( star zero) If you get disconnected during the program, you can simply call or log in using your original instructions and PIN.

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4 Form 1120-S Challenges for Enrolled Agents: Navigating Latest Regs, Rulings and Guidance Seminar June 27, 2013 Amanda Wilson, Lowndes Drosdick Doster Kantor & Reed Dennis Mowrey, Schneider Downs

5 Today s Program Adjustments To Accumulated Adjustment Accounts [Amanda Wilson] Slide 7 Slide 18 Calculations Of AAA, OAA And PTI Accounts [Dennis Mowrey] Slide 19 Slide 29 Character And Treatment Of Distributions And Dividends [Amanda Wilson and Dennis Mowrey] Slide 30 Slide 48 Recent Legislative And Regulatory Developments [Amanda Wilson] Slide 49 Slide 62 Court Rulings Of Impact [Dennis Mowrey] Slide 63 Slide 67

6 Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY THE SPEAKERS FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.

7 Amanda Wilson, Lowndes Drosdick Doster Kantor & Reed ADJUSTMENTS TO ACCUMULATED ADJUSTMENT ACCOUNTS

8 Accumulated Adjustment Accounts An accumulated adjustment account (AAA) generally reflects the accumulated undistributed net income of the corporation for the S corporation s post-1982 years. More simply, it tracks the S corporation s ability to make tax-free distributions to shareholders. The AAA reflects the earnings of the S corporation that have been previously taxed to the shareholders, reduced by any amounts that have already been distributed to the shareholders. To the extent there is a positive AAA balance, distributions can be made tax-free to the shareholders. 8

9 Accumulated Adjustment Accounts (Cont.) AAA is zero as of the start of the S corporation s first taxable year for which the S election is in effect. Adjustments to an AAA are similar to the adjustments to the shareholder s basis provided for under Sect. 1367, except that an AAA can go negative. AAA balance disappears following the end of the post-termination transition period after termination of the S election, even if corporation later re-elects S status. 9

10 Accumulated Adjustment Accounts (Cont.) All S corporations should maintain an AAA in case the S corporation ever engages in a Sect. 381 transaction with another corporation. The AAA is an account of the S corporation and is not apportioned to the shareholders in any way. Adjustments to AAA depend on the taxable year. º Current rules º Rules for taxable years beginning before 1/1/

11 Current AAA Rules AAA is: 1. Increased for separately and non-separately stated income (excluding tax-exempt income) and certain depletion deductions; 2. Decreased by separately and non-separately stated losses, non-deductible expenses (other than federal taxes attributable to any C corporation taxable years or tax-exempt-incomerelated expenses), and depletion deductions (capped by the amount of the increase in (1)); 3. Decreased (but not below zero) for tax-free distributions under Section 1368(b) or (c)(1) (i.e., distributions that reduce basis); 11

12 Current AAA Rules (Cont.) 4. Decreased by the amount of separately and non-separately stated loss, non-deductible expenses (other than federal taxes attributable to any C corporation taxable years or tax-exemptincome-related expenses), and depletion deductions to the extent that they exceed the amount of the increase in (1) (i.e., the amount that was not allowed under (2) because of the cap); and 5. Decreased or increased (as appropriate) for any redemption distributions qualifying under sections 302(a) or 303(a). 12

13 Example XYZ Inc. is a new S corporation formed as of Jan. 1. In Year 1, XYZ has $20,000 in losses and no distributions. º XYZ s AAA as of Dec. 31, Year 1 is negative $20,000. In Year 2, XYZ has $60,000 of income and makes a $15,000 distribution. º XYZ s AAA as of Dec. 31, Year 2 is $25,000 [-$20,000 + $60,000 - $15,000]. 13

14 Example (Cont.) In Year 3, XYZ has $30,000 of separately stated income and $40,000 of nonseparately stated loss, and makes a $5,000 distribution. º XYZ s AAA as of Dec. 31, Year 3 is $10,000. First, increase $25,000 starting AAA balance by $30,000 of income Second, decrease by $30,000 loss ($10,000 is not taken under this step because loss is capped by amount of income) Third, decrease (but not below zero) by $5,000 distribution Fourth, decrease by $10,000 remaining loss 14

15 Pre-1997 AAA Rules AAA is: 1. Increased for separately and non-separately stated income (excluding tax-exempt income) and certain depletion deductions; 2. Decreased by separately and non-separately stated loss, nondeductible expenses (other than federal taxes attributable to any C corporation taxable years or tax-exempt-income-related expenses), and depletion deductions; 3. Decreased (but not below zero) for tax-free distributions under sections 1368(b) or (c)(1); and 4. Decreased or increased (as appropriate) for any redemption distributions qualifying under sections 302(a) or 303(a). 15

16 Difference Between The Rules The difference between the current and prior AAA adjustment rules relates to when an AAA is measured to determine whether a distribution is tax-free. Under the old rules, income and losses were taken into account when making the AAA adjustments before distributions were tested. The current rules provide that distributions be taken into account before any net negative adjustment (i.e., losses in excess of income) are taken into account. 16

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18 AAA Adjustments AAA can become negative as a result of loss and deductions items. If this occurs, S corporation must generate future income to overcome this negative balance before the S corporation can once again distribute cash tax-free. Negative adjustments to AAA are made by deduction items, even if the shareholders allocated the deduction items are unable to deduct such items currently (i.e., because they lack sufficient basis). When the shareholders are later able to utilize the deduction, there is no adjustment to AAA. AAA is generally determined as of the close of the S corporation s tax year. 18

19 Dennis Mowrey, Schneider Downs CALCULATIONS OF AAA, OAA AND PTI ACCOUNTS

20 AAA Account Maintenance of AAA is recommended for all S corporations. AAA is an account of the S corporation and is not apportioned among shareholders. AAA is relevant for all taxable years (after 1/1/83). AAA starts at zero on the first day of the corporation s first year as an S corporation. Unlike shareholder basis, AAA balance can be negative at the end of the year. AAA balance disappears at the end of the post-termination transition period after an S election terminates. 20

21 Computation Of AAA First, increased by separately and non-separately stated pass-through items of income and gain (other than tax-exempt income), certain depletion, and changes in asset basis due to certain business tax credit recapture; Second, decreased by separately and non-separately stated passthrough items of loss and deduction, certain depletion, non-deductible expenses (other than federal taxes attributable to any taxable year the corporation was a C corporation and expenses related to taxexempt income), and changes in asset basis due to certain business tax credit recapture; The reduction in this step is limited to the increase in the first step. 21 Net negative adjustment is taken into account under Step 4 on the next slide.

22 Computation Of AAA (Cont.) Third, AAA is decreased (but not below zero) by non-dividend distributions. Fourth, if the aggregate loss and deduction items in the second step are more than the aggregate income and gain items in the first step (i.e., a negative net adjustment), then AAA is reduced by the excess of the losss and deduction over the income and gain items. Fifth, increased or decreased for redemption distributions qualifying under sections 302(a) or 303(a) AAA - charitable contributions 22

23 Other Adjustments Account (OAA) OAA is adjusted in the following order: Increased for tax-exempt income Decreased for expenses related to tax-exempt income Decreased for federal taxes attributable to C corporation tax year Decreased, but not below zero, for distributions in excess of AAA and accumulated E&P Purpose of OAA is to prohibit an S corporation from distributing new tax-exempt income to a shareholder on a tax-free basis, before the corporation distributes its accumulated E&P. 23

24 Other Adjustments Account (OAA), Cont. Tax-exempt income is income that is permanently excludible from gross income in all circumstances in which the applicable provision of the Internal Revenue Code applies (Reg (a)(2)(viii)). 24

25 Previously Taxed Income (PTI) A corporation can have PTI only if it was an S corporation for its last taxable year beginning prior to Jan. 1, Must have continuously maintained its S Corporation election for all years after 1982 Must be distributed in cash PTI is personal and cannot be transferred to another person. S corporation must maintain records to support each shareholder s share of PTI. 25

26 Tax Planning Treating medical insurance premiums as wages Health insurance purchased in name of shareholder Reasonable compensation for S corporation stockholders/employees Cases: JD & Associates and Watson Training and experience Duties and responsibilities Time and effort devoted to business Comparable in the market place Compensation agreements 26

27 Tax Planning (Cont.) Shareholder loans Funding S corporations Involuntary terminations 27

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29 S Corporation Rules Code Sect S corporations distributions without C corporation E&P (1368(b)) Distributions with accumulated E&P (1368(c)) Election to distribute E&P before AAA (1368(e)) 29

30 Amanda Wilson, Lowndes Drosdick Doster Kantor & Reed Dennis Mowrey, Schneider Downs CHARACTER AND TREATMENT OF DISTRIBUTIONS AND DIVIDENDS

31 Distributions Tax treatment of distributions from S corporation is governed by Sect If S corporation has no E&P, Sect. 1368(b) applies. º Distribution is tax-free to extent of shareholder s basis, and º Remaining distribution treated as gain from the sale or exchange of property (i.e., capital gain). 31

32 Distributions (Cont.) If S corporation has E&P, Sect. 1368(c) applies. º Distribution is treated as provided for under Sect. 1368(b), to the extent of E&P (Treas. Reg. Sect (d)(2) expands this to include previously taxed income) [i.e., tax-free to extent of shareholder s basis, capital gain for amount in excess of basis]. º Treated as a dividend to extent of accumulated E&P [note that dividend income is subject to net investment income tax under Sect. 1411], then º Any remainder is treated as provided for under Sect. 1368(b) [i.e., taxfree to extent of shareholder s basis, capital gain for amount in excess of basis]. Dividend income will be reported by the S corporation on 1099-Div, not Schedule K-1. 32

33 Example 33 ABC Inc. has $25,000 AAA balance and $2,000 accumulated E&P. Shareholder has basis in stock of $30,000. ABC Inc. distributes $30,000 to Shareholder. ABC Inc. has E&P, so Sect. 1368(c) applies. º $25,000 (AAA balance) is treated under Sect. 1368(b). Shareholder has $30,000 basis, so distribution is tax-free. º $2,000 treated as dividend because of $2,000 accumulated E&P. º Remaining $3,000 is treated under Sect.1368(b). Shareholder has $5,000 remaining basis, so distribution is tax-free. º Shareholder s basis is reduced to $2,000 after distribution.

34 Fringe Benefits One of the tax benefits of a C corporation is that an owner/shareholder can be treated/respected as an employee of the corporation. This contrasts with the partnership area, which does not allow an owner/partner to be treated as an employee. As a result, an owner/shareholder can participate in certain fringe benefits offered to employees. The C corporation can generally deduct the cost of fringe benefits provided to employee owners without the employee owner having to include the value of the fringe benefits in taxable income. 34

35 Special Rule For S Corporations While the rules applicable to C corporations generally apply to S corporations as well, Sect provides that, in applying the rules applicable to employee fringe benefits: º An S corporation is treated as a partnership, and º Any 2%-or-more shareholder is treated as a partner of the partnership. 35

36 Special Rule For S Corporations (Cont.) A 2% shareholder is any person who, on any day of the corporate year, owns more than 2% of the outstanding stock or more than 2% of the voting power of all of the stock. The constructive ownership rules of Sect. 318 apply. As a result, a person can be a 2% shareholder even if he does not own any stock directly. º For example, Father owns 5% of stock in Y. Son works for Y but holds no stock. Under Sect. 318, stock ownership is attributed between members of a family (spouses, children, grandchildren and parents). Son is treated as a 2% shareholder, because the stock of Father is attributed to Son. 36

37 What Does This Mean? 2% shareholders generally do not get the benefit of excluding fringe benefits from income, since the fringe benefit exclusion provisions generally only apply to employees. Note that this rule is for 2% shareholders only. Less-than-2% shareholders are caught by Sect

38 38 What Fringe Benefits Are Covered? Sect does not specifically define what fringe benefits are covered. What does appear to be covered, based on legislative history: º Exclusion from income amounts received under accident and health plans (Sect. 105) (see Part V) º Exclusion from an employee s income employer-provided coverage under an accident and health plan (Sect. 106) (see Part V) º Exclusion from employee s taxable income of the cost (up to $50,000) of group term life insurance provided by an employer on employee s life (Sect. 79) º Exclusion from employee s taxable income of meals or lodging provided by an employer to an employee for the convenience of the employer (Sect.119)

39 What Fringe Benefits Are Not Covered/Impacted The following benefits are generally not covered/impacted, as these provisions specifically define employees to include self-employed individuals (including partners): º Defined contribution plans and defined benefit plans, including employee stock ownership plans (sections ) º Qualified group legal services plans (Sect. 120) º Dependent care assistance programs (Sect. 129) 39

40 Cafeteria Plans A cafeteria plan allows employees to pay certain qualified expenses on a pre-tax basis (i.e., flexible spending accounts). Sect. 125 provides that employee benefits provided under a cafeteria plan are not included in an employee s income merely because the employee had the chance, before the cash became available, to chose to receive the cash or non-taxable benefits under the cafeteria plan. Sect. 125 requires that all participants in the cafeteria plan be employees. Based on Sect. 1372, the IRS has issued proposed regulations under Sect. 125 stating that 2% shareholders are not employees and thus cannot participate in cafeteria plans. 40

41 Health-Related Fringe Benefits The IRS addressed how to apply Sect to payments of health insurance premiums by an S corporation, in Revenue Ruling In that ruling, the S corporation paid accident and health insurance premiums for both 2% shareholder employees and a less-than-2% shareholder employee. The IRS held: º The employee fringe benefits paid or furnished for the benefit of 2% shareholder-employees were to be treated like a guaranteed payment under Sect. 707(c). º The 2% shareholders had to include cost of the premiums in their gross income. º The less-than-2% shareholder-employee could exclude the cost from income under Sect

42 Revenue Ruling In addition, the IRS held that the S corporation could deduct the cost of providing the employee fringe benefits if the requirements under Sect. 162(a) were satisfied (i.e., if the cost was an ordinary and necessary expense paid or incurred in carrying on trade or business). The IRS also stated that the 2% shareholders could deduct the cost of the insurance premiums if they satisfied the requirements of Sect. 162(l). 42

43 Announcement In Announcement 92-16, the IRS reiterated its holding in Revenue Ruling It then stated that while the premium payments by the S corporation are included in the 2% shareholder s wages for income tax withholding purposes (i.e., listed on the W-2), they are not wages subject to the Social Security and Medicare taxes. 43

44 Notice The IRS provided rules regarding when a 2% shareholder is entitled to deduct accident and health insurance premiums under Sect. 162(l) in Notice Sect. 162(l) provides that an employee (including a self-employed individual such as a partner) may deduct amounts paid for medical care insurance, subject to the following limitations: º Deduction shall not be allowed to the extent the deduction exceeds the individual s earned income from the trade or business, with respect to which the plan providing the medical care coverage is established. º Deduction is not allowed for amounts during a month in which the individual is eligible to participate in any subsidized health plan maintained by an employer of the individual or his/her spouse. 44

45 Notice Requirements In addition to the Sect. 162(l) requirements, Notice requires: º Plan providing medical coverage must be established by the S corporation. Either: S corporation makes the premium payments for the accident and health insurance policy in the current taxable year, or 2% shareholder makes the premium payments and furnishes proof of payment to the S corporation, which then reimburses the 2% shareholder in the current taxable year. If premiums are not paid or reimbursed by the S corporation and included in 2% shareholder s gross income, the requirement is not satisfied, and there is no deduction. º S corporation must report the accident and health insurance premiums paid or reimbursed as wages on the 2% shareholder s Form W-2. 45

46 Earned Income Sect. 162(l) provides that the deduction is limited to the amount of the individual s earned income from the trade or business, with respect to which the plan providing the medical care coverage is established. Wages paid to a 2% shareholder are deemed to be earned income, for purposes of this Sect. 162(l) limitation. 46

47 Health Savings Account An individual can generally, under Sect. 223, deduct contributions made to a health savings account (HSA) established to pay for qualified medical expenses. If the employer makes the contribution, the contribution is generally excluded from income and wages under Sect. 106(d). In Notice , the IRS stated that an S corporation s contribution to an HSA of 2% shareholder is treated as a guaranteed payment under Sect. 707(c). The S corporation can deduct the contribution under Sect. 162, and the 2% shareholder must include it in gross income. The deduction must be included in wages on W-2, but is not subject to Social Security or Medicare tax. 47

48 In Short 2% shareholders often do not get the benefit of excluding fringe benefits from income, since the fringe benefit exclusion provisions generally only apply to employees. The 2% shareholders must generally include the fringe benefit in gross income. A deduction may be available in some cases (e.g., Sect. 162(l)). The S corporation should issue the 2% shareholder a W-2 with respect to the fringe benefits, although Social Security and Medicare generally do not apply. The S corporation may be able to deduct the cost of the fringe benefits as a business expense under Sect

49 Amanda Wilson, Lowndes Drosdick Doster Kantor & Reed RECENT LEGISLATIVE AND REGULATORY DEVELOPMENTS

50 Sect. 179 Expensing Sect. 179 allows taxpayers to elect to deduct as an expense certain types of property and computer software. Expense limitation on the amount deductible was set to be reduced from $139,000 (with phase-out threshold of $560,000) in 2010 and 2011 to $25,000 (with phase-out threshold is $200,000) in American Taxpayer Relief Act of 2012 increased dollar expensing limitation for 2012 and 2013 to $500,000 (with phase-out threshold of $2 million) and extended 50% first-year additional bonus depreciation to

51 Sect. 179 Expensing (Cont.) Expensing deduction is limited to the aggregate amount of taxable income that the taxpayer has from an active trade or business. Expense deductions above this amount can be carried forward. For an S corporation, the limitations on taking an expensing deduction (phaseout threshold and taxable income limitation) are applied at the S corporation and the shareholder level. º An S corporation cannot allocate an expense deduction to its shareholders in excess of the S corporation s taxable income for that year. º Shareholder cannot take an expense deduction for any tax year more than the shareholder s taxable income limitation for that year. 51

52 Sect. 179 Expensing (Cont.) For purposes of the expensing deduction limitation, all component members of a controlled group shall be treated as one taxpayer. Definition of members of a controlled as provided under Sect. 1563(a), except that the test is more than 50% instead of at least 80% However, an S corporation is generally not a component member of a controlled group, by virtue of Treasury Reg. Sect (b)(2). 52

53 Limitations On Losses And Deductions Under Sect. 1366(d)(1), a shareholder is limited in the amount of losses and deductions that it can take in any taxable year to the sum of the shareholder s adjusted basis in stock and adjusted basis of any indebtedness of the S corporation to that shareholder. 53

54 Stock Basis Generally, initial basis equals the cost paid for the stock. If property was contributed for stock, then basis equals the basis of property contributed, adjusted for gain recognized and boot distributed. Basis increased by: º Additional capital contributions º Share of S corporation income (including exempt income) º Excess of depletion deductions over basis Basis decreased by: º Share of S corporation losses, deductions and depletion º Share of noncapital, non-deductible expenses (e.g., penalties or bribes). º Certain distributions 54

55 Debt Basis Debt basis general rule º Initial basis equals the cost of the debt. º Decreased by the repayment of principal º Reduced to zero if the debt becomes worthless Adjustments are first made to reduce stock basis (down to zero) and then to debt basis. 55

56 Proposed Regulations On Basis Proposed Regulation Sect (a)(2) was issued October It provides that: The term basis of any indebtedness of the S corporation to the shareholder means the shareholder's adjusted basis (as defined in and as specifically provided in section 1367(b)(2)) in any bona fide indebtedness of the S corporation that runs directly to the shareholder. Whether indebtedness is bona fide indebtedness to a shareholder is determined under general federal tax principles and depends upon all of the facts and circumstances. 56

57 Proposed Regulations On Basis (Cont.) In addition, the proposed regulation provides that a shareholder does not obtain basis in indebtedness of an S corporation merely by guaranteeing a loan or acting as a surety. If a shareholder makes a payment on bona fide indebtedness for which the shareholder has acted as a guarantor, the shareholder may increase its basis in the indebtedness by the amount of the payment. Treas. Reg. Sect (a)(2)(ii) Contrasts from treatment of partners in a partnership 57

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59 Inadvertent Termination Relief Sect. 1362(f) provides relief when an S election was not effective (because the S corporation was not a small business corporation or all shareholders did not consent) or when such election was terminated (because the S corporation ceased to be a small business corporation or had too much passive investment income). º The secretary must determine that the circumstances were inadvertent. º Corrective steps must be taken within a reasonable period of time after discovery. º S corporation and all people who were shareholders during relevant period must agree to make adjustments required by the secretary. 59

60 Inadvertent Termination Relief (Cont.) The corporation has the burden of establishing that under the relevant facts and circumstances, the commissioner should determine that the termination or invalid election was inadvertent. The fact that the terminating event or invalidity of the election was not reasonably within the control of the corporation and, in the case of a termination, was not part of a plan to terminate the election, or the fact that the terminating event or circumstance took place without the knowledge of the corporation, notwithstanding its due diligence to safeguard itself against such an event or circumstance, tends to establish that the termination or invalidity of the election was inadvertent. Treasury Regulation Sect (b) 60

61 Inadvertent Termination Relief (Cont.) The corporation seeks relief by requesting a private letter ruling from the IRS. The IRS grants a substantial number of ruling requests. For example, for the period between Jan. 1, 2012 and the date of this webinar, approximately 113 requests have been released. Situations where relief was granted include: º Person signing S election was not authorized to sign on behalf of shareholder º Ineligible shareholders (including failure to file QSST or QSBT election) º Excessive passive income 61

62 Circular 230 To comply with Treasury Department regulations, we inform you that, unless otherwise expressly indicated, any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed under the Internal Revenue Code or any other applicable tax law, or (ii) promoting, marketing or recommending to another party any transaction, arrangement, or other matter. 62

63 Dennis Mowrey, Schneider Downs COURT RULINGS OF IMPACT

64 Court Cases And Administrative Decisions Watson P.C. v. U.S. (2010) S corporation compensation Pigs get fed, hogs get slaughtered Fact Sheet D Errico v. Commissioner Using S corporations to pay personal expenses Payments as distributions Maguire v Commissioner Contribute assets from profitable S corporation to unprofitable S corporation 64

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66 Court Cases And Administrative Decisions (Cont.) ATRA American Taxpayer Relief Act of 2012 Gross v. Commissioner S corporations more valuable than C corporations Earnings tax affected Accumulated E&P Rulings Sect Letter rulings , , One class of stock Sect (b)(1)(d) Letter rulings , ,

67 Court Cases And Administrative Decisions (Cont.) Eligible shareholders Elections of S corporations Timely made Letter rulings , Change in capital structure Sect. 6045(B) Reporting 67