Tax Update: November 2018

Tax Reform

IRS releases proposed regulations for Qualified Opportunity Zones
The IRS released proposed regulations and a Revenue Ruling providing guidance on the newly created Qualified Opportunity Zones.

Investing in opportunity zones under the 2017 Tax Act
Taxpayers need to consider the tax benefits (deferral and possible exclusion) of investing realized gains in opportunity zone funds.

Cushioning the double-tax blow: the section 962 election
Double tax on dividends received by United States shareholders from foreign corporations addressed via TJCA through section 962.


Trending in Tax

Capital expenditures are not meeting expectations
How tax laws affect a company’s growth and cash flow depends on management’s priorities. The key is investing for the long term.

South Dakota v. Wayfair and manufacturing: 3 misconceptions debunked
The Wayfair decision goes beyond just retail and can impact manufacturers that sell exempt to resellers or distributors.


Tax Planning

2018 year-end tax considerations for businesses
A business guide to tax considerations for 2018 and beyond to help the middle market make smart, informed decisions.


Special Interest

The Real Economy: Volume 45
Developing markets face growing risks that present a clear and present danger to middle market firms.

tax expert using a calculator to calculate tax rates for qualified opportunity zones

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news as well as updates pertaining to the Tax Cuts and Jobs Act. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Update: September 2018

Tax Reform
A closer look at the new pass-through deduction proposed regulations
Initial thoughts, observations and insights on several key areas of the new pass-through deduction proposed regulations.

Trending in Tax

Wayfair, sales tax, and economic presence laws
Economic sales and use tax nexus laws are gaining momentum as states make a direct challenge to traditional physical presence standards.

How to structure executive compensation in a competitive market
Effective executive compensation includes strategy, a mix of components and metrics closely aligned with the organization’s goals.

Ninth Circuit finds transferee liability in asset sale
Former shareholders found liable for tax from asset sale as transferees because the subsequent stock sale lacked economic substance.

 

Book on desk open with pen

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Update: August 2018

Tax Reform
U.S. tax reform international implications
RSM’s Ramon Camacho and Ayana Martinez discuss the TCJA and BEPS with BEPS Global Currents.
Estate planning subsequent to the enactment of tax reform
Estate planning strategies to help minimize future estate, gift and generation-skipping taxes for estates in excess of the exemption. This article explores tips and traps associated with estate planning strategies to consider.

Trending in Tax

Frequently asked questions on country-by-country reporting
A guide for multinational corporations regarding country-by-country reporting questions and base erosion profit shifting. These regulations are based on model legislation from the Organisation for Economic Co-operation and Development (OECD) and are part of the project addressing base erosion and profit shifting (BEPS).

Stock options and section 409A: Frequently asked questions
An explanation of the section 409A considerations that companies need to be aware of when issuing stock options.

Economic Insight 

The Real Economy: Volume 44
In this issue we discuss the growing risk to key industries and the middle market economy. The hit to the economy caused by the taxes on imports and exports will spread asymmetrically across the industrial ecosystems that make up the domestic economy. Based on our conversation with officials in Washington, it is apparent that the middle market will bear a disproportionate burden of adjustments from trade tariffs and should prepare accordingly.

 

two people with laptops, pencils, and paper, planning for tax reform international implications

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Alert: U.S. Supreme Court Rules on Wayfair Case

On June 21, 2018, the U.S. Supreme Court issued its decision in South Dakota v. Wayfair, Inc., the most recent and direct challenge by a state to the physical presence nexus standard, adopted/continued in Quill v. North Dakota over 25 years ago.

Their decision eliminated the physical presence requirement for sales tax nexus purposes.  Specifically, the South Dakota law states that remote sellers (those without any physical presence in the state) who have either more than $100,000 of in-state taxable sales of products/services annually or have consummated 200 or more separate transactions annually are required to register with the state and collect and remit sales taxes to South Dakota on those transactions.

It is important to note that the Court did not formally hold that the thresholds in South Dakota’s law are the new standard, or even that there is any standard. The ruling, simply, was that physical presence in a given state is no longer required for a state to require sellers of property and services within that state to collect and remit sales taxes.

Several states, in anticipation of the Wayfair case, had previously adopted economic nexus provisions for sales and use taxes and there are others whose laws are contingent on the decision in the Wayfair case. Some states also had cases pending in their respective courts waiting for the Supreme Court’s ruling to come down.

It is important to remember that the Supreme Court remanded the case back to the lower court for a decision as to the impact of the Commerce Clause (for “undue burden”, etc.) of the Constitution. It is therefore possible that the S.D. law will be modified pending the outcome of that case. If the lower Court finds in favor of S.D., then its statute will likely become the standard for other states to follow. A similar result will occur (although without the protection of a court decision ratifying the Commerce Clause provisions thereby subjecting them to future litigation if another taxpayer decides to challenge them) if the parties settle prior to litigation.

So, what’s next? Good question. It appears that states with laws requiring some threshold level of economic (but not physical) contact before they assert sales tax nexus for a remote seller would not be in violation of the Wayfair decision. That said, there were other provisions in the South Dakota law, namely no retroactive liability and compliance with the Streamlined Sales and Use Tax Agreement which will need to be evaluated on a state-by-state basis.

Accordingly, each state (and locality for that matter) MAY decide to come up with their own economic nexus thresholds, which may or may not comport with the S.D. law. If different, this would potentially open the state to future challenges on the Commerce Clause issue.

As a result of the Wayfair decision, many states are re-evaluating their nexus statutes and Congress has been discussing responses as well.

For businesses no longer protected from sales tax nexus due to this decision, the following are some questions that will need to ultimately be addressed in all the states they sell into, according to the statutes passed (or to be passed) in those states:

Do we meet any of the threshold tests?

Are our services or products taxable?

Are we required to register in each state we sell into?

What are the correct tax rates?

Are there local taxes in addition to state level taxes?

How often must a return be filed and what are the available methods for filing?

When will the first sales taxes be due?

How complete is our system for tracking exemption certificates?

Do we need to purchase a software solution to handle this and, if so, how much will that cost?

Do we need to hire more staff to accommodate this increase in our compliance obligation?

Might we have to collect and remit sales taxes in a state that does not have economic nexus standards currently in place?

Can states make sales tax collection retroactive? Likely not, but one never knows.

As you can see, this issue is very much unsettled at the moment. Following are some actions that businesses should take sooner rather than later:

  • Understand the states and localities that you currently sell into. Make sure that you have some reliable method of capturing the amount of sales and the number of transactions into each state and locality. Shortly, ignorance will not be an excuse for non-compliance in states where you may not have previously been required to file.
  • If your products are for re-sale, be sure that you have updated your Resale Certificates, and that you have a process for doing so periodically.
  • If you have physical nexus in a state and have not been filing there, immediately evaluate the costs of compliance versus continued no compliance. Voluntary Disclosure Agreements may prevent penalties in some cases, and prevent unlimited look back, but you have to go to the state. Once they find you, it’s too late. And states are all on high alert for non-compliance.
  • Monitor the states into which you sell for changes to their nexus legislation.
  • For states where you are currently filing, be sure you actually ARE collecting the correct amount of tax when and where you should, and remitting it on a timely basis.

As always, if you would like to discuss this further, please contact us.

 

Supreme Court of the United States building in Washington, DC, SCOTUS has issued decision in South Dakota v. Wayfair

Disclaimer

Tax Update: July 2018

Trending In Tax

U.S. Supreme Court kills Quill physical presence
Economic sales tax nexus laws permitted by the Court; physical presence sales tax nexus is no longer the Constitutional standard. Writing for the majority, Justice Kennedy, who also sat on the Quill court in 1992, noted that the Quill decision was, “flawed on its own terms,” for several reasons. The Quill decision, “created rather than resolved market distortions,” meaning that sellers essentially could take advantage of a judicially-created tax shelter by limiting physical presence in a state. Similarly, sellers were incentivized by avoiding such physical presence.
Tax Reform
Tax reform, retirement plans and business ownership
Business owners need to consider the impact tax reform has on the benefits of retirement plan contributions. For employees, the differences are typically minimal, however the affect on owners may not readily be seen at first glance. The qualified business income, or section 199A deduction, is a complex change in the tax law that needs substantial further guidance from the IRS—and the details of which are too complex for a discussion here. However, when looked at simply, it provides owners of certain pass-through businesses as well as sole-proprietors a 20 percent deduction against their qualified business income.

remote seller uses laptop to determine sales tax nexus under Quill

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

4 Key Takeaways from Insero’s Tax Reform Update Seminars

The Tax Cuts and Jobs Act (TCJA) of 2017 is ushering in some of the most significant tax changes in three decades. In anticipation of these changes, Insero recently held a series of Tax Reform Update seminars. If you weren’t able to attend, here are a few of the key takeaways:

 

1. Entity Selection

 

If your business is currently an S corporation or an LLC, changing to a C corporation would allow you to capture the benefits of the new lower corporate tax rate (21% vs. 34% in 2017). If your business is currently a C corporation, changing to an S corporation would allow you to benefit from the new “Qualified Business Deduction”, which is 20% of “Qualified Business Income” (QBI).

While there is no “one size fits all” solution, here are some things to keep in mind:

Tax Rate Analysis

When considering the new 21% tax rate, a pass-through entity is no longer a “no-brainer” in many situations. You’ll want to consider the personal tax rate, taking Qualified Business Income (QBI) in to account. For some existing C corporations, a flat 21% may actually result in a tax increase. Here are some key questions for business owners:

  • Does the business owner require or want access to business cash? If so, when and how much?
  • Will the corporation be reinvesting its profits?
  • What are forecasted profits?
  • What is the business owner’s sell window?
  • What is the perceived ability to sell stock?

Qualified Business Income

New Code Section 199A provides for a deduction equal to 20% of the QBI of pass through entities, including sole proprietorships. There are many limitations, pitfalls, traps, details, and unknowns associated with this deduction, so it is very important that business owners discuss the impact on their business with their service providers. QBI is defined as income or loss from a “qualified” trade or business from US source operations (not foreign). It is NOT wages, salary, guaranteed payments, or investment income. A “qualified” business or trade is defined in the negative, as anything that is not a “specified service business” (SSB). An SSB is one that involves the performance of activities including health, law, accounting, actuarial sciences, performing arts, consulting, athletics, financial services, investment management, or any business whose principal asset is the reputation or skill of one or more of it’s employees. This is by no means a comprehensive list, and the new law leaves much to be defined, so we recommend you discuss your specific situation with your accountant to determine if your business qualifies.

 

2. Accounting Methods

 

Depreciation

Assets placed in service after September 27, 2017 now qualify for 100% bonus depreciation until 2022. This now includes used property and pretty much anything other than buildings such as office equipment, machinery, fleet vehicles, and many leasehold improvements. For property placed in service in taxable years beginning after December 31, 2017, the Section 179 Deduction limit is now $1,000,000 (up from $5,000 previously) with phase-out over $2,500,000 (up from $2,000,000). Bonus Depreciation and Section 179 are NOT the same, so we recommend you discuss the differences and benefits with your accountant.

A Cost Segregation Study (CSS) is another option for new buildings (within the past seven to eight years depending on size) and is essentially depreciation on steroids. If you have recently built or purchased any new buildings in the past several years, a CSS could provide your business with valuable tax deductions and increase tax flow.

Cash Method vs. Accrual Method

Under the TCJA, businesses can now use the cash method of accounting, even if you have inventory. You must still “account” for the inventory, but not receivables and payables. C Corporations now have the expanded ability to use the cash method as well. Depending on your type of business and business operations, this may be beneficial and can possibly exist for retroactive tax planning.

 

3. Personal Taxation

 

There have been sweeping changes to nearly all facets of personal taxation. There are still seven tax brackets, but each bracket rate has been reduced by two to four percentage points and each bracket has been “elongated”, i.e. a lower rate will apply to more taxable income. The standard deduction has also increased for all taxpayers, while State and Local Tax (SALT) Deductions have been limited to a total of $10,000 (including Income and Property Tax). In addition, the Alternative Minimum Tax (AMT), while not repealed, has been declawed.

What does this mean? New York State Taxpayers with between $100,000 and $150,000 or over $700,000 in taxable income may feel these changes the most. Why? The old AMT and Standard Deduction usually (not always) precluded the benefit of the SALT deductions. However, lower rates will somewhat mitigate this issue.

 

4. NYS Response to Federal Tax Reform

 

The Employer Opt-In Compensation Tax program. The idea here is for employers to voluntarily pay a compensation-based tax, for which certain employees would then receive a NYS credit. Presumably, then, the employer would reduce the gross pay of its employees, so that both the employer and the employee stay “whole” on cash flow basis. Essentially the program converts the SALT deduction to less gross income. The program leaves many questions unanswered, which will be interesting to learn about as it is implemented.

What can you do? Get a projection of your 2018 taxable income and tax so that you are not surprised next April, one way or the other. There are very few generalizations that can be made about the overall effect of these changes. The only way to know for sure is to look at your specific situation and put pencil to paper (or fingers to keyboard). Above all, it is important that you get your service provider team on board for any major changes, whether now or in the future. We can work together with your attorneys, investment advisors, and bankers to develop a tax strategy tailored to your specific business situation. Click here to contact us today.

 

Want to learn more?

Save the date for one of Insero’s Annual Tax Update seminars:

December 11, 2018 in Rochester

December 13, 2018 in Ithaca

Click Here to Sign Up for Email Reminders

Green Tax Reform Binder with information on the Tax Cuts and Jobs Act of 2017

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Disclaimer

Tax Alert: Responding to South Dakota v. Wayfair

The U.S. Supreme Court has issued its highly anticipated decision in South Dakota v. Wayfair, overruling Quill’s physical presence sales tax nexus standard. This decision will have significant implications for almost all industries, but especially consumer products (retailers) and industrial products.

With a new sales tax nexus standard established, more states will require all retailers that sell within their borders to collect that state’s sales tax. About a dozen states have already addressed economic nexus laws or regulations.

The Wayfair case moved through the court system at a blistering pace. Even with a decision from the nation’s highest court, very little is settled. Under the U.S. Constitution, Congress may have the authority to implement a remote seller solution or codify the physical presence standard into federal law. Whether Congress takes up the issue is a “wait-and-see” proposition.

However, Wayfair has created many more questions than answers. Adapting your business to the new sales and use tax landscape will take time, even though you may need to react quickly.

To learn more, please read RSM’s alert, U.S. Supreme Court kills Quill physical presence or contact us directly to discuss how Wayfair may affect your business.

 

Supreme Court of the United States building in Washington, DC, SCOTUS has issued decision in South Dakota v. Wayfair

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
https://rsmus.com/what-we-do/services/tax/state-and-local-tax/sales-and-use-tax/u-s–supreme-court-kills-quill-physical-presence.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Update: June 2018

Tax Reform
The tax implications of foreign-derived intangible income
Multinational automakers and suppliers may be able to reduce their tax rate by capitalizing on their foreign-derived income. As part of H.R. 1, commonly known as the Tax Cuts and Jobs Act, Congress added a section that effectively establishes a new preferential tax rate by which automakers and suppliers, organized as domestic C corporations, can generate income derived from qualifying foreign sales, licensing, leasing and service activities.
Update on uncertainties in new tax law
A look into how to deal with the various tax risks associated with the uncertainty of the Tax Cuts and Jobs Act. Many taxpayers and their advisors are frustrated by the uncertainties created by a number of new provisions of the Tax Cuts and Jobs Act of 2017. Some uncertainties are unavoidable – such as whether the new 20 percent pass-through deduction and other individual provisions will be made permanent, or whether the 21 percent corporate tax rate, theoretically ‘permanent,’ will be increased by a later Congress.
Trending In Tax
Fulfillment by Amazon is a game changer: Is your business prepared?
While Fulfillment by Amazon (FBA) can provide advantages to consumer products businesses there are key areas you should address to ensure success. Amazon FBA is fast becoming a growing customer for both branded and private label businesses. According to Fortune, Amazon more than doubled the total items it delivered for third-party sellers to two billion in 2016 from the year prior. Active sellers using FBA rose more than 70 percent, and these numbers are expected to continue to rise. Amazon FBA could be a great opportunity to market and sell your products to millions of consumers, without the uncertainty of chargebacks and discounts encountered when selling to traditional bricks-and-mortar and online retailers.

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Update: May 2018

Tax Reform
Tax reform provides incentive for S corps to reexamine owner comp
Increasing wages to maximize 20 percent pass-through deduction must be reconciled with reasonable compensation rules. Under the Tax Cuts and Jobs Act (TCJA) enacted in December of 2017, a new deduction emerged for owners of pass-through businesses (such as S corporations) engaged in activities other than certain prohibited services.
Real estate investors: The impact of tax reform
What the new U.S. tax plan will mean for your bottom line and how it will affect investors. In this Privcap Q&A, RSM tax partner Don Susswein and senior manager Andrew Cohen discuss U.S. tax reform and how it will affect real estate investors.
Meals and entertainment expenses after tax reform
The deduction for meals and entertainment (M&E) expenses has been one of the most broadly applicable opportunities for significant tax savings; however, after tax reform, there are some misconceptions regarding how to apply the rules and what opportunities remain. Companies should review the tax treatment of their M&E expenses to comply with the changes of expenses to 0, 50 and 100 percent deductible.
Trending In Tax
U.S. Supreme Court hears arguments on Quill challenge
U.S. Supreme Court hears oral arguments on challenge to Quill’s sales tax physical presence nexus standard; decision expected in June.

Capitol Hill

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Tax Update: April 2018

Tax Reform
Re-evaluating your choice of entity after tax reform
This recorded webcast explores how tax reform impacts your entity structure from a federal, international, and state and local perspective.
Trending In Tax
South Dakota v. Wayfair: What to know and how to prepare
South Dakota v. Wayfair could have significant implications for the sales and use taxability and compliance of remote transactions.
Full expensing of stepped-up tax basis? It depends
Availability of full expensing for stepped-up basis in assets after an M&A transaction may depend on acquisition structure.
Tax Court rules family office activities as trade or business services
Lender Management, LLC versus Commissioner court case coupled with the 2017 Tax Act have family offices revisiting how they are structured.

Capitol Hill

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
http://rsmus.com/our-insights/newsletters/tax-digest.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.