Estate Planning Lawyers Minneapolis | Latest Estate and Gift Tax Cuts

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Prior to the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”) and after abolishment of the estate tax for decedents dying in 2010, the estate tax was scheduled to return in the tax year 2011 with a maximum tax rate of 55% and a $1 million exclusion.

Under the Act, however, the maximum estate tax rate for decedents dying on or after January 1, 2011, is 35% and an applicable exclusion amount is $5 million ($10 million for married couples) for decedents dying on or after January 1, 2011, and on or before December 31, 2012. The Act also reinstates the stepped-up basis regime for assets included in the estate.

Similarly, the maximum gift tax rate will be 35% for the tax years 2011 and 2012 with a maximum applicable exclusion amount of $5 million. It is important to note that for gifts made after December 31, 2009, and before January 1, 2011, the gift tax is computed based on a top tax rate of 35% and a maximum applicable exclusion amount of $1 million.

Note that the Act includes additional provisions on the estate and gift taxes. For example, estates of decedents who died after December 31, 2009 but before January 1, 2011, may elect to apply the 35% rate and stepped-up basis regime instead of the carryover basis regime otherwise applicable for 2010. The Act further includes a “portability” provision which would allow a surviving spouse to take advantage of the unused portion of the estate tax exclusion of his or her predeceased spouse, thereby providing the surviving spouse with a larger exclusion amount.

Tax Lawyers Minneapolis | 2011 Reduction in Social Security Payroll Taxes

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One of the most important provisions of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”), which was signed into law on December 17, 2010, deals with Social Security tax reduction for employees.

The Act reduces the employee’s share of Social Security tax from 6.2% to 4.2% for wages earned in 2011 up to $106,800. The employer’s share of Social Security tax remains at 6.2%. The Act makes no changes to the Medicare portion of payroll taxes, which remains at 1.45% for each of the employee and employer on all wage income.

Individuals who are self-employed will also benefit from the Act’s Social Security tax reduction. Self-employed individuals would pay Social Security tax at a 10.4% rate on self-employment income up to $106,800. However, self-employed individuals would continue to calculate their deduction for employment taxes without regard to the temporary rate reduction.

If you have tax questions or need tax representation, contact Sherayzen Law Office to discuss your case with an experienced Minneapolis tax lawyer.

Tax Lawyers Minneapolis | Wash-Sales: General Rules

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Do you frequently trade stocks or purchase options? Then you should be aware of the wash-sales rules. In some extreme circumstances, the wash-sales rules can have drastic negative effects on your taxes, so they are well worth knowing.

A wash-sale occurs when stock, securities, or options are sold for a loss, and within a 61-day period (30-days before or after the sale), “substantially identical” stock, securities, or options (termed here, “replacement stock”) are purchased. The loss is not deductible under the wash-sales rules. Instead, the loss is added to the basis of the replacement stock. Wash-sales do not apply to gains.

The wash-sales rules apply to investors and traders, but not to dealers in stocks or securities, or losses sustained in the ordinary course of business. In general, “substantially identical” refers to stocks or securities of the same company (i.e. shares of Apple stock is not “substantially identical” to Microsoft for purposes of the wash-sales tax rules).

For year-end tax planning purposes, taxpayers should be aware that the wash-sale 61-day rule applies even if duration is spread over two years. Thus, stock sold for a loss in 2010 will not be deductible for tax year 2010 if the replacement stock from the same company is purchased within the 61-day window. Also, for tax planning purposes, keep in mind that the holding period of the replacement stock will include the holding period of the original shares. Thus, if a taxpayer sold shares that were held for more than a year (“long-term” for tax purposes), and then purchased replacement stock within the wash-sales window, the replacement shares will also be considered to be long-term, even if they are eventually sold in less than a year.

Example of the Wash-Sale Rule

A taxpayer buys shares of Widget Company for $20,000. The stock declines to $10,000, and the taxpayer decides to sell the shares for a loss. However, good news is reported from Widget Company after the shares are sold, so the taxpayer decides to buy Widget shares for $12,000 five days after the sale, believing that the shares will increase substantially this time. Because the new shares are purchased within the wash-sale rule time period, the $10,000 loss will not be deductible. Instead the $10,000 will be added to the cost of the new shares, meaning the new shares will have a basis of $22,000 (and thus, the original loss will be deducted when the new shares are sold).

Do you have tax problems or questions relating to your investments? Then give Sherayzen Law Office a call to discuss your tax situation with an experienced Minneapolis tax lawyer!

Partnership Tax Lawyers St Paul | Partnerships: Required Taxable Year

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Under the U.S. tax laws, partnership income and expenses flow through to each partner in a partnership, at a partnership’s tax year-end. Generally, the tax year of a partnership must conform to the tax years of its partners. In some situations, however, a partner, or multiple partners, and the partnership itself may have different tax years, there is a potential for income deferral.

While legitimate income deferral is allowed under the U.S. tax laws, the IRS has rules in place to prevent excessive deferral of partnership income. These rules are explained briefly below in three successive steps. A partnership must apply each rule in chronological order, and the first tax year that meets all of the criteria in a specific rule will be the required tax year for the partnership (subject to certain exceptions allowed by the IRS).

Three-Step Analysis

1) Majority partners’ tax year

In general, if one partner owns more than 50% of the partnership capital and profits, then that partner’s taxable year will apply to the partnership. Similarly, if a group of partners have the same taxable year and own more than 50% of the partnership capital and profits, then that shared taxable year will also apply to the partnership. Majority interest is generally determined on the first day of the partnership.

2) Principal partners’ tax year

If step 1 does not yield a majority interest tax year, then the tax year the principal partners who own more than a 5% interest of capital or partnership profits, will be used if they all have the same tax year.

3) Year with smallest amount of income deferred

If steps 1 and 2 do not yield a result, then the “least aggregate deferral rule” is used to determine the weighted-average deferral of partnership income by testing the tax year-ends of the partners. The tax year required to be selected under the test will be whichever tax year-end is calculated to yield the least amount of deferral of partnership income.

Example of the Three-Step Analysis

To illustrate, assume that Adam and Bob are equal partners, each owning a 50% share. Adam’s tax year ends August 31, while Bob uses the calendar year, December 31. Step 1 would determine that there is no majority interest because neither partner owns more than 50%, and Step 2 would show that neither partners have the same tax year (even though they are both considered to be principal partners owning more than 5%). Thus, the least aggregate deferral rule would be applied in this case.
Under the least aggregate deferral rule, to determine the weighted-average product, begin by counting forward from the end of one partner’s tax year to the end of the other partner’s tax year-end, and then vice versa. For example, counting forward from the end of Adam’s tax year (August 31) to the end of Bob’s (December 31) is four months. Then, the number of months is multiplied by the partnership percentage interest, to determine a weighted-average product. Multiplying four by the partnership interest of 0.5 equals a product of two (the aggregate deferral). Counting forward from the end of Bob’s tax year to the end of Adam’s, determines that eight months will be deferred. Multiplying eight by .50 equals a product of four. Since the product of two under Adam’s August 31 tax year is less than the product of four under Bob’s December 31 tax year, Adam’s tax year-end will also be the tax year-end for the partnership itself.

Conclusion

Described above are the basic rules for determining the required tax year for partnerships. In some cases, it may be possible to be granted an exception from the general rules. These options however often depend upon persuading the IRS of the necessity of adopting a different tax year than would be available under the standard rules. Often, complex legal rules and case law are involved, so it is advisable to seek legal counsel. Furthermore , individual partners may need specific guidance relating to partnership taxation scenarios. Sherayzen Law Office can assist you with these matters.

Call us today to set up a consultation!

S Corporations: Excessive Passive Income Penalty and Built-in Gains Tax

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Corporations that make valid election to be taxed under Subchapter S (“S corporation”) are treated as pass-through entities.  This means that the S corporation’s gains, losses, income and expenses are passed onto shareholders who will pay the applicable federal income taxes; the S corporation itself does not pay any taxes (as opposed to a regular corporation taxed under Subchapter C (“C corporation”)). However, there are two fairly common circumstances in which an S corporation may have to pay taxes: the excessive passive income penalty and the Built-in-Gains tax (Note that for the few S corporations that utilize the Last-In-First-Out (“LIFO”) inventory accounting method, and also previously operated as a C corporations before electing to become S corporations, a LIFO Recapture Tax may be applied in certain situations).

Excessive Passive Income Tax and Penalty

There are situations where S corporations may have previously operated as C corporations before their conversion. In some circumstances, after conversion, the S corporation still retains profits that it made as a C corporation. These profits are called “Accumulated Earnings and Profits” (“AEP”).  Since an S corporation does not usually pay taxes at a corporate level, one can see that a C corporation would be able to avoid taxes at the corporate level on AEP by simply converting to an S corporation. In order to prevent C corporations from taking advantage of these status conversions, Congress imposed a steep penalty (or tax) on an S corporation’s AEP.  Moreover, in some situations, an S corporation status may even be terminated.

Here is a general summary of the AEP tax. If an S corporation has AEP and “net passive income” exceeding 25% of its gross receipts in a taxable year, an excessive passive income penalty is imposed at the highest corporate tax rate on the lesser of taxable income or excess net passive income. Passive investment income consists of gross receipts from dividends (with certain exceptions), interest, capital gains, royalties, rents, and other related sources of income.

Furthermore, S corporation status is automatically terminated if an S corporation is penalized with the excessive passive income tax for three years in a row.

Built-in Gains Tax

In general, if an S corporation, that operated as a C corporation prior to its conversion, sells or distributes assets that it held during the time in which the entity was a C corporation for an amount above the adjusted basis, the resulting recognized gain (“Built-in Gains”) will be taxed at the highest corporate tax rate. The Built-in Gains will be taxable if recognized at any time within ten years after the effective date of an entity’s S corporation election. For purposes of the Built-in Gains tax, assets held during the entity’s existence as a C corporation and distributed after conversion to the S corporation’s shareholders for an amount above the adjusted basis will be treated as if these assets were sold.

As with the excessive passive income penalty, the Built-in-Gains tax is designed to prevent a C corporation from avoiding taxes by converting to an S corporation status and then selling or distributing appreciated assets. This is because for C corporation, recognized gain on sales of appreciated assets would be taxed at the corporate tax rate, whereas for an (traditional, non-converted) S corporation, the gain would be passed to the shareholders (likely on a pro rata basis), who will pay the tax based on their individual income tax rates, which may be lower than the C corporation’s tax rates.

The calculation of the Built-in-Gains tax is fairly complex, with a computation involving a determination of net gains, Net Operating Losses and loss carry forwards from years the entity operated as a C corporation, general business credit carryovers from C corporation years and the special fuel tax credit, as well as other items. Furthermore, due to accounting complications, converting from a C corporation to an S corporation may result in some unanticipated items, such as accounts receivable, being treated as Built-in-Gain and subject to tax.

Conclusion

Are you thinking about converting a C corporation to an S corporation, and concerned about possible taxes that your business may face if doing so? Are you looking for legal tax strategies to best structure a conversion, or to handle transactions with an already converted S corporation in order to limit your company’s taxes? Give Sherayzen Law Office a call to discuss your tax situation with an experienced Minnesota business tax lawyer.