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Sunday, May 10, 2020

Deducting Expenses Paid With Paycheck Protection Loans


There was a case in 1931 that is influencing a public controversy today.

Let’s talk about it.

The taxpayer (Slayton) was in the business of buying, holding and selling tax-exempt bonds. He would at times borrow money to buy or to carry tax-exempt bonds he already owned.

Slayton had tax-exempt interest income coming in. That amount was approximately $65 thousand.

Slayton was also paying interest. That amount was approximately $78 thousand.
COMMENT: On first read it does not appear that dear old Slayton was the Warren Buffett of his day.
Time came to file his tax return. He omitted the $65 grand in interest received because … well, it was tax-exempt.

He deducted the $78 grand that he was paying to carry those tax-exempt securities.

The IRS said no dice.

Off to Court they went.

Slayton was hot. He made several arguments:

(1)  The government was discriminating against owners of tax-exempt securities and – in effect – nullifying their exemption from taxation.
(2)  The government was discriminating against dealers in tax-exempt bonds that had to borrow money to carry an inventory of such bonds.
(3)  The government was discriminating in favor of dealers of tax-exempt bonds who did not have to borrow to carry an inventory of such bonds.

I admit: he had a point.

The government had a point too.

(1)  The income remained tax-exempt. The issue at hand was not the interest income; rather it was the interest expense.
(2)  Slayton borrowed money for the express purpose of carrying tax-exempt securities. This was not an instance where someone owned an insubstantial amount of tax-exempts within a larger portfolio or where a business owning tax-exempts borrowed money to meet normal business needs.

The link between the bonds and the loans to buy them was too strong in this case. The Court disallowed the interest expense. Since then, tax practitioners refer to the Slayton issue as the “double-dip.”  The dip even has its own Code section:
        § 265 Expenses and interest relating to tax-exempt income.
(a)  General rule.
No deduction shall be allowed for-
(1)  Expenses.
Any amount otherwise allowable as a deduction which is allocable to one or more classes of income other than interest (whether or not any amount of income of that class or classes is received or accrued) wholly exempt from the taxes imposed by this subtitle, or any amount otherwise allowable under section 212 (relating to expenses for production of income) which is allocable to interest (whether or not any amount of such interest is received or accrued) wholly exempt from the taxes imposed by this subtitle.

Over the years the dip has evolved to include income other than tax-exempt interest, but the core concept remains: one cannot deduct expenses with too strong a tie to nontaxable income.

Let’s fast forward almost 90 years and IRS Notice 2020-32.

To the extent that section 1106(i) of the CARES Act operates to exclude from gross income the amount of a covered loan forgiven under section 1106(b) of the CARES Act, the application of section 1106(i) results in a “class of exempt income” under §1.265- 1(b)(1) of the Regulations. Accordingly, section 265(a)(1) of the Code disallows any otherwise allowable deduction under any provision of the Code, including sections 162 and 163, for the amount of any payment of an eligible section 1106 expense to the extent of the resulting covered loan forgiveness (up to the aggregate amount forgiven) because such payment is allocable to tax-exempt income. Consistent with the purpose of section 265, this treatment prevents a double tax benefit.

I admit, it is not friendly reading.

The CARES Act is a reference to the Paycheck Protection loans. These are SBA loans created in response to COVID-19 to help businesses pay salaries and rent. If the business uses the monies for their intended purpose, the government will forgive the loan.

Generally speaking, forgiveness of a loan results in taxable income, with exceptions for extreme cases such as bankruptcy. The tax reasoning is that one is “wealthier” than before, and the government can tax that accession to wealth as income.

However, the CARES Act specifically stated that forgiveness of a Paycheck Protection loan would not result in taxable income.

So we have:

(1)  A loan that should be taxable – but isn’t - when it is forgiven.
(2)  A loan whose proceeds are used to pay salaries and rent, which are routine deductible expenses.

This sets up the question:

Are the salaries, rent and other qualified expenses paid with a Paycheck Protection loan deductible?

You see how we got to this question, with Section 265, Slayton and subsequent cases that expanded on the double dip.

The IRS said No.

This answer makes sense from a tax perspective.

This answer does not make sense from a political perspective, with Senators Wyden and Grassley and Representative Neal writing to Secretary Mnuchin that this result was not the intent of Congress.

I believe them.

I have a suggestion.

Change the tax law.



Tuesday, May 5, 2020

Donating Eyeglasses


Some tax cases take near forever to wrap-up.

I am looking at a case involving tax year 2008; it was decided in April, 2020. It involves over $300 grand in taxes and penalties.

Let’s set it up.
A.  Take an accounting firm with offices in Cerritos, California and Kansas City, Missouri.
B.   Through them the taxpayers (Campbell) learned of a donation program involving Lions in Sight. The program was rather straightforward.

a.    A company (ZD Products) consolidates eyeglass frames (let’s say approximately 170,000).
b.   The company breaks down that number into lots (let’s say approximately 3,400 frames).
c.    It then sells the lots for approximately $50 grand each.
d.   If you buy a lot, you are advised to wait a year before doing anything. Not to fear, they will take care of your lot for you.
e.    After a year you donate the lot to Lions in Sight.
                                             i.     This is prearranged.
                                           ii.     Lions in Sight is affiliated with the Lions Club International. Its mission is to collect and provide used eyeglasses for use worldwide and to provide eye care assistance to the needy and low-income. In truth, it sounds like a fine charity.
f.     You will get a bright shiny appraisal saying that your donation was worth approximately $225 grand.

It sounds like the program ran well. In 2007 Lions in Sight had so many frames in storage that they requested ZD Products to store a sizeable new donation until 2008, when they could free up space.

Nice problem to have.

The IRS became aware and did not care for this at all. No surprise: one puts in $50 grand and – a year and a day later – gets a donation worth $225 grand.  Quick math tells me that someone with a tax rate over 23% comes out ahead.

What do we have? Someone takes a good cause (the Lions Club), stirs in a for-profit party (both the company selling the eyeglasses and the company organizing the deal), and has a sacerdote (the appraiser) bless the bona fides. Everybody wins; well, everybody but the IRS.   

We have seen something similar to this with conservation easements. Take a good cause – say preserve a wetland … or just green space. Bring in the marketers, attorneys and valuation experts. Stick the property into an LLC; sell interests in the LLC; donate the LLC interests to who-knows-who and – voila – instant big bucks tax deduction for someone who was never really that interested in wetlands or green space to begin with.

I have a question for you. Why do you think that the IRS has so many rules concerning donations? You know them: you need a receipt; past a certain dollar limit you need a letter from the charity; past another dollar limit you need an appraisal; somewhere in there you have a form attached to your tax return just for the donation.

Tripwires.

Let me give you one.

If you need an appraisal, then the appraisal has to be for what you actually donated.

Bear with me.

This story started off with approximately 170,000 eyeglass frames. They are of varying sizes, styles, quality and value. An appraisal is done on the mother lode.

Break the lode into lots of approximately 3,400.

Donate the lots.

The appraisal was done on the 170,000.

You need an appraisal on your 3,400.

You do not have this. Best you have is 34/1,700 of an appraisal.

But it is virtually impossible that each lot will be the same. There are too many combinations of styles, sizes, designers, costs and whatnot.  Just taking a percentage (34/1,700) is not good enough – not for this purpose.

You have no appraisal.

You have no deduction.

Tripwire.

The case for the home gamers is Campbell v Commissioner.

Sunday, April 26, 2020

IRA Changes For 2020


 The issue came up last week with a retired client, so let’s talk about it.

What is going on in 2020 with your IRAs?

There are several things here, so let’s go step-by-step:

(1)  Do you have to take a minimum required distribution (MRD) if you turned 70 1/2 in 2020?

ANSWER: No. The new age requirement is age 72.

(2)  What if I turned 70 ½ in 2019 and delayed my initial MRD until 2020?

ANSWER: Thanks to the CARES Act, that initial MRD is delayed one more year – until 2021.

(3)   I am well over 70 ½.  Do I have a MRD for 2020?

ANSWER: No. You can take money out, but you are not required to.

(4)  What if I already took out my MRD?

ANSWER: There are two answers, depending on when you took the MRD.

(a) If you took the MRD in January 2020, there is nothing you can do at this point.

(b)  If you took the MRD after January 31, 2020, you have until July 15, 2020 to return the money.

BTW there is a possible tax trap here. You are allowed only one non-trustee-to-trustee rollover (meaning you received and cashed the check with the intent of paying it back within 60 days) within a rolling 12-month period. If you did this in 2019, you need to check whether you are caught within this 12-month dragnet.

(5)  I have an inherited IRA account. Is there any change for me?

ANSWER: If the decedent passed away before 2020, you do not have an MRD for 2020.

There is a technical point in here if one was waiting five years before emptying the inherited IRS account: 2020 will not be counted as a year. In effect, you now have six years to empty the account rather than five.

(6)  I am having cash-flow issues as a consequence of the virus-related lockdown. I am thinking about tapping my IRA in order to get through. Is there something for me?

ANSWER: There are several changes.

(1) The 10% penalty for pre-age-59 ½ payouts for COVID-related reasons is waived on distributions up to $100,000.

(2) The income tax on the distribution still applies, but the tax can be paid over three years.

(3) And you also have 3 years to put the money back in the IRA. If you do, the money restored will be treated like a qualified rollover.

a.    Remember, this is taking place over 3 years. It is possible that you will have paid income tax on some or all of the money you restore in your IRA. If so, you can file an amended return and get your income tax back.

(7)  I am taking “substantially equal periodic payments” from my IRA. I am under age 59 ½ and needed the money. Is there a break for me?

ANSWER: A SEPP program allows one to avoid the penalty for early withdrawals, but it comes at a price: on has to take withdrawals over a given period of time.

A SEPP is not the same as a MRD, so the new rules do not apply to you.

(8)  Is it too late to fund my IRA for 2019?

ANSWER: Normally, you have until April 15 of the following year to fund an IRA. For 2019, that deadline has been extended to July 15, 2020.

Sunday, April 19, 2020

Changes to 2020 Federal Payroll Taxes


There were two bills passed in March that significantly impacted payroll taxes for 2020. The first – Families First Coronavirus Response Act – expanded employee paid leave, with the intent that the cost of the leave be shifted to the government via refundable payroll tax credits. The second – The Coronavirus Aid, Relief and Economic Security Act - allows employers to defer the deposit of (some) payroll taxes, while also providing a payroll tax credit to encourage employers directly affected by the virus (either through government order or decline in business) to retain employees.

Following is a recap to aid as you work through this new minefield. As always, remember that no recap is exhaustive. Please be advised to review the underlying guidance for specific issues and questions.

The President signed the CARES Act on March 27, 2020.

The CARES act brought us the Employee Retention Credit (ERC).

(1)  Eligible employers include tax-exempt organizations but not government agencies.

(2)  Eligible employers have a refundable credit equal to 50% of qualified wages (including allocable health care expenses) paid employees if the employer …

(a)  Fully or partially suspends operations during 2020 due to orders from an appropriate governmental authority due to COVID-19; or
(b)  Experiences a significant decline in gross receipts during a calendar quarter.

a.    The period begins with the first quarter in which gross 2020 receipts are less than 50% of gross receipts for the same quarter in 2019.
b.    The period ends the quarter after the quarter whose gross receipts exceed 80% for the same quarter in 2019.

(3)  Qualified wages mean wages paid after March 12, 2020 and before January 1, 2021.

NOTE: This means that an eligible employer may claim the credit for qualified wages paid as early as March 13, 2020.

(4) Qualified wages include allocable health care expenses and are limited to $10,000 per employee for 2020.

(5) Qualified wages vary significantly depending on the size of the employer.

(a)   If the employer had 100 or fewer full-time equivalents (FTEs) in 2019, then qualified wages include wages paid all employees.
(b)  If the employer had more than 100 FTEs in 2019, then qualified wages mean wages paid an employee not working because of (a) government orders or (b) a significant decline in gross receipts.

(6) The credit is 50% of qualified wages, meaning the maximum credit is $5,000 ($10,000 times 50%).

(7) Technically, the credit is allowed only against the employer share of social security tax (that is 6.2%), but this is misleading. The credit is fully refundable, so it will continue offsetting employee payroll withholdings and employer payroll taxes until the credit exhausted. If there is still a credit remaining, then the remaining credit is refundable to the employer.

EXAMPLE: CTG Command Center pays $10,000 in qualifying wages in quarter 2, 2020. Employee federal income tax, social security and Medicare withholdings are $4,000. The employer social security is $620 ($10,000 times 6.2%), for a required total payroll tax deposit of $4,620. The retention credit is $5,000. The retention credit will offset all the required payroll tax deposits – employee and employer – and result in a $380 refund to CTG Command Center.

(8) The IRS realized that having an employer make payroll tax deposits, only to have those deposits later refunded, is not prudent cash flow management. The IRS will therefore allow an employer to offset otherwise required payroll tax deposits by anticipated payroll tax credits. The amounts otherwise due or credited are to be accounted for with the filing of the quarterly Form 941. If payroll tax credits are expected to exceed payroll tax deposits otherwise required, there is also a procedure to obtain an advance refund (that is, before filing Form 941) from the IRS.

(9) There is an unusual interaction with the CARES deferral of employer payroll taxes:

·      An employer can defer and still receive the employee retention credit, resulting in, in effect, an interest-free loan from the government.

(10) There is no equivalent of the retention credit for self-employeds.

(11) This credit does not play well with the emergency sick or expanded family leave provisions. In short, one cannot use the same wages for more than one credit.

(12) This credit is not available if the employer receives a Paycheck Protection loan.

 The CARES Act also brought us the deferral of employer social security taxes.

(1) An employer’s payroll tax liability has two parts: social security tax at 6.2% and Medicare tax at 1.45%. The deferral is solely for the employer share of social security taxes (that is, 6.2%).

(2) Unlike the ERC, the deferral applies to deposits (rather than wages paid) otherwise required beginning March 27, 2020 and through December 31, 2020.

COMMENT:  Therefore, payroll taxes accrued before March 27, 2020 would qualify as long as the payroll tax deposit was due on or after March 27, 2020.

(3) All employers are eligible. Unlike the ERC, there is no employer size limitations.

(4) Unlike the ERC, there is no requirement that the employer be affected by COVID-19.

(5) The deferral is as follows:

(a)  50% of taxes deferred are due December 31, 2021
(b)  The remaining 50% is due December 31, 2022

(6) The deferral also applies to self-employeds. The amount deferred is 6.2% of the total 15.3% self-employment tax rate. The is no deferral once the self-employed exceeds the maximum social security wage base.

(7) There is an unusual interaction with the Families First emergency sick and expanded family leave credits.

·      An employer can defer and still receive the emergency sick and expanded family leave credits, resulting in, in effect, an interest-free loan from the government.

(8) There is an unusual interaction with the employee retention credit (ERC).

·      An employer can defer and still receive the employee retention credit, resulting in, in effect, an interest-free loan from the government.

(9) There is an unusual interaction with a Paycheck Protection loan.

·      No further deferrals are allowed after an employer receives notice of Paycheck Protection Loan forgiveness.
·      However, deferrals up to that date remain eligible for deferral and are due December 31, 2021 and 2022.

(10) Note that the deferral affects payroll taxes due on or after March 27, 2020, meaning that one would expect the deferral to be accounted for on the first quarter employer Form 941.

The IRS has clarified that the credit for this stub period will NOT be accounted for on the first quarter Form 941. Rather they will be added to any credits arising during the quarter two and reported on the second quarter Form 941.

The President signed the Families First Coronavirus Response Act on March 18, 2020, introducing two new (and temporary) paid-leave benefits.

Emergency Sick Leave

(1)  Applies to businesses and tax-exempt organizations with fewer than 500 employees 

(2)  Applies immediately to employees of the above employers

(3)  The tax credit is based on qualifying leave provided employees between April 1, 2020 and December 31, 2020.

·      Note that emergency sick leave wages paid in 2021 will qualify if paid for leave taken between April 1 and December 31,2020. 

(4)  Full-time employees can receive up to 80 hours of sick leave. Part-time employees can receive leave based on the average number of hours worked over a two-week period of time.  

(5)  If …

a.     The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
b.    The employee has been directed by a healthcare provider to self-quarantine due to concerns related to COVID-19;
c.     The employee is seeking to obtain medical diagnosis when experiencing symptoms of COVID-19

… then the maximum (creditable) paid leave is the employee’s regular rate of pay, up to $511 per day and limited to $5,110 per employee.

(6)  If the employee takes time-off …

a.     To care for a family member who is subject to a federal, state or local quarantine or isolation order related to COVID-19;
b.    To care for a child (under 18 years of age) whose school has been closed or paid childcare provider is unavailable due to COVID-19; or
c.     Because the employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services

… then the maximum (creditable) paid leave is 2/3 of the employee’s regular rate of pay, up to $200 per day and limited to $2,000 per employee.

(7)  For both (5) and (6), the employer is allowed to increase the credit amount by the allocable cost of the employee’s health insurance coverage.

(8)  Employers are still required to withhold employee federal income taxes and the employee’s share of Social Security and Medicare taxes. 

·      The intent is that this will be covered by the $511/$200 per day allowance.

(9)  Wages paid under the emergency sick leave provision ….

a.     Are NOT be subject to employer social security (6.2%), and
b.    ARE subject to employer Medicare (1.45%)
                                                      i.     However, this employer Medicare requirement is misleading because the credit will be increased by the amount of
1.    The employer Medicare tax, and
2.    The allocable cost of health insurance coverage

EXAMPLE: CTG Command Center pays one employee $200 per day for 10 days. It also pays $100 in health care costs. Employee withholdings are $300 for federal income tax, $124 for social security and $29 for Medicare – a total of $453.Net pay is therefore $1,547 ($2,000 – $453) and total compensation (including health care and employer Medicare) is $2,129. CTG Command Center will receive credit on its payroll tax return for $2,000 + $100 (allocable health care) + $29 (employer Medicare) = $2,129. This means that the cost of the employee (excluding unemployment insurance and workers compensation) has been shifted from CTG Command to the federal government for the covered period.  

(10)        The credit can be offset against all employee withholdings and employer payroll taxes.

·      Any excess is refundable to the employer.

(11)       Any credits utilized will constitute taxable income to the employer.

·      Offsetting the employer payroll tax expense on wages paid emergency leave employees.

(12)       There is a comparable provision for self-employeds

a.     However, the “average daily self-employment income” will not be calculable until year-end, as it refers to 2020 net earnings from self-employment divided by 260 days.

EXAMPLE. Rocket Man is self-employed. He earned $185,000 for 2020, and he spent 10 days taking care of his mom during the crisis. His daily self-employment income is $712 ($185,000 divided by 260). That however exceeds $200, so his allowable paid sick leave is $2,000. His 2020 net earnings from self-employment are reduced by $2,000. He is also allowed to reduce his otherwise-required quarterly estimated tax payments accordingly. 

(13)       There is an unusual interaction with the emergency sick leave credit and the employer payroll tax deferral.

·      An employer can defer and still receive the emergency sick leave credit, resulting, in effect, an interest-free loan from the government.

(14) This credit does not play well with the employee retention credit. In short, one cannot use the same wages for more than one credit.


Expanded Family Leave

(1)  Applies to businesses and tax-exempt organizations with fewer than 500 employees 

(2)  This is a narrow expansion of FMLA to include

… employees unable to perform services (including telework) because of need to care for a child whose school or place of care is closed or whose childcare provider is unavailable due to COVID-19. 

(3)  The employee must have worked for the employer for at least 30 day to qualify.

(4)  The credit is based on qualifying leave provided employees between April 1, 2020 and December 31, 2020

·      Note that emergency sick leave wages paid in 2021 will qualify if paid for leave taken between April 1 and December 31,2020. 

(5)  The provision allows up to 12 weeks of employer-provided protected leave, 10 of which is creditable to the employer.

(6) The maximum (creditable) emergency family leave is the employee’s regular rate of pay, up to $200 per day and limited to $10,000 per employee.

(7) The employer is allowed to increase the credit amount by the allocable cost of the employee’s health insurance coverage.

(8)  Employers are still required to withhold employee federal income taxes and the employee’s share of Social Security and Medicare taxes.

·      The intention is that this will be covered by the $200 per day allowance.

(9)  Wages paid under the expanded family leave provision ….

a.     Are NOT be subject to employer social security (6.2%), and
b.    ARE subject to employer Medicare (1.45%)
                                                      i.     However, this employer Medicare requirement is misleading because the credit will be increased by the amount of
1.    The employer Medicare tax, and
2.    The allocable cost of health insurance coverage

(10)       The credit can be offset against all employee withholdings and employer payroll taxes.

·      Any excess is refundable to the employer.

(11)       Any credits utilized will constitute taxable income to the employer.

·      Offsetting the employer payroll tax expense on wages paid emergency leave employees.

(12)       The example given above for emergency sick leave also covers expanded family leave.

(13)       The discussion about self-employeds given above also covers expanded family leave.

(14)       There is an unusual interaction with the expanded family leave credit and the employer payroll tax deferral.

·      An employer can defer and still receive the expanded family leave credit, resulting in, in effect, an interest-free loan from the government.

(15)       This credit does not play well with the employee retention credit. In short, one cannot use the same wages for more than one credit.

(16)       The FMLA “restoration to position” provision under FMLA does not apply to employers with fewer than 25 employees and meeting certain other requirements.