Category: Tax and Financial News

Former President and current candidate Donald Trump introduced a new policy of his in a recent Arizona rally: No more income tax on overtime pay. This follows both Trump and Vice President Harris’ proposal for a no income tax on tips policy, as well.

Below we will look at the two recent proposals and what they could mean for both taxpayers and businesses.

No Tax on Tips

The no tax on tips policy looks to lighten the tax burden on service industry workers. According to the Fair Labor and Standards Act, anyone who “customarily and regularly” receives $30 or more in tips per month is considered a tipped worker. The mechanism to exempt tip income could possibly come through three different mechanisms.

One option would be to categorize tips as gifts. Service employees are often paid wages lower than the minimum wage (as low as $2.31 per hour), with employers required to “top-up” an employee to the federal minimum wage of $7.25 if tips don’t at least make up the difference themselves. As a result, considering tips as gifts may not legally work.

A second option is to treat a specified amount of tips as non-taxable income. Consider a policy, for example, in which up to $25,000 in tips is treated as non-taxable income. Legally, this is straightforward, but it could have various knock-off effects on those it is intended to help. For example, a taxpayer’s gross income could fall so low they no longer qualify for the earned income tax credit and end up being a net negative.

Finally, there is a third option of creating a new deduction; allowing taxpayers to first claim the income and then take a deduction to offset it. The issue here is that given the claimed income level of most tipped workers, an additional deduction may not be one-for-one incrementally beneficial to the standard deduction. In other words, so much of their income is already non-taxable, this wouldn’t make much of a difference.

Side-Effects

Depending on how the policy is structured, there are negative side effects that could accompany the policy change. Compliance with reporting tip income is already spotty at best. It’s not uncommon for tipped workers to underreport their tip income, especially for cash tips. The main concern is that employers and employees may try to game the system. There is a real chance that who is tipped changes and people may try to change compensation schemes so that other types of income are then changed to tip income to take advantage of the changes; especially for taxpayers for whom the law was never intended to help.

Non-Taxable Overtime

The second proposal is to exempt overtime wages from income taxation. The idea is that it would help workers who get to keep more of their money; and at the same time helping businesses, since employees would be incentivized to work more hours, thereby negating the need to hire more employees. While on the surface it seems like a policy to help the hardest working, there are potential problems.

Unfair to Regular Wage Earners

There are two possible issues. First, it leaves behind hourly workers who cannot work overtime due to other responsibilities, health or their job’s duties. It also disadvantages those who have to work multiple jobs (because their job doesn’t offer overtime, but they need the money).

Second, it doesn’t consider salaried positions. There are many salaried positions, where workers are exempt from overtime laws – and a large swath of these are not highly paid positions.

Administrative Complications

Employers and the IRS would need to deal with distinguishing between regular wages and overtime earnings. What is considered overtime is not always clear when there are pay concepts such as bonuses, shift differentials, commissions or other alternative payment arrangements. It would also add significant complexity to payroll systems.

Conclusion

While both policies are well intended, the devil is in the details. Implementation would need to be carefully considered; the intended taxpayers might not be the main beneficiaries; and there is room for fraud.

On Jan. 1, 2024, the U.S. government debuted the Corporate Transparency Act (CTA). This legislation established the requirement for the majority of private companies, both big and small, to file information with the Financial Crimes Enforcement Network (FinCEN).

As with most new laws, the initial guidance and interpretations have been both challenged and questioned. In response, FinCEN recently turned out new FAQs, which we review below.

Big Question First: To Report or Not

Reporting is generally required by all private, for-profit entities. This includes corporations, LLCs, S-Corps, etc., whenever the company was created by filing a document with the office of the Secretary of State. Entities formed under the laws of jurisdictions outside the United States are also likely subject to reporting if they are registered to do business in the United States.

To help visualize the above, you can take a look at this flowchart published on the FinCEN website.

Screenshot from FinCEN website

While the general rules seem (and are) broad in construction, there are 23 specific exemptions, including publicly traded companies, nonprofits, and certain large operating companies. The FinCEN’s Small Entity Compliance Guide checklist can help in determining if you fall under an exemption.

Now, let’s move on to more specific questions.

Who is a beneficial owner?

An individual who either directly or indirectly exercises substantial controls or owns 25 percent or more of the reporting company.

What constitutes substantial control?

There are four (separate) ways to exercise substantial control:

• The individual is a senior officer
• Has the authority to appoint or remove officers or a majority of directors
• An important decision-maker (regarding strategic, business, or finance)
• They have any other form of substantial control as per the FinCEN’s Small Entity Compliance Guide.

Who is a company applicant for a reporting company?

Another of the more perplexing questions revolves around exactly who a company applicant of a reporting company is.

First, only reporting companies created or registered on or after Jan. 1, 2024, need to concern themselves with the company applicant rules; companies formed before are exempt.

There are two possible individuals who could be considered company applicants. One is the person who directly files the documents to create and register the company. This person will always exist and be an applicant of the reporting company. In the case where there were multiple people involved in the filing or registration, the individual who primarily controlled the filing is also considered an applicant.

Thankfully, FinCEN created another handy flowchart to help navigate through this rather confusing decision.

Screenshot from FinCEN website

What about sole proprietorships?

It depends. Sole proprietorships only have to report if the entity was created by filing a document with a secretary of state or similar office. In other words, if you just start freelancing and don’t file anything with a secretary of state office, you are not subject to the reporting requirements. Basically, if you didn’t form an LLC, you don’t need to report. For example, obtaining an employer identification number, a fictitious business name, or a professional or occupational license does not subject you to the FinCEN reporting requirements.

What if my company ceased to exist before the CTA requirements went into effect?

If a company ceased to exist on or before Jan. 1, 2024, then they are NOT subject to the reporting requirements.

Do I have to report more than once?

No, you only have to file an initial report once. There is NOT an annual report. You do, however, need to amend your original filing to update pertinent changes or corrections within 30 days of their occurrence.

What happens if I don’t file a report?

Willful violation can subject one to a fine of up to $500 per day until the violation is resolved. Criminal penalties could also be imposed, resulting in up to two years imprisonment and a fine of up to $10,000.

Conclusion

The FinCEN released its guidance to clarify uncertainties around the new CTA-created reporting requirements. The goal is to ensure full and accurate compliance without undue burden on companies and individuals.

Marriage is a major life event. One that comes with all kinds of change, including financial. After getting married, there is so much to consider, from merging bank and brokerage accounts to setting up a will; from changing your withholding to updating retirement account beneficiary forms. If this seems like a lot to consider, it’s important to keep in mind that when a U.S. citizen marries a non-U.S. citizen, the situation gets even more complex.

Among some of the more complex tax considerations of mixed citizenship marriages are gift and estate taxes, which we will dive into below.

Gift and Estate Tax Overview

Before getting into the details on non-citizen spousal situations, here is a recap of the basics on U.S. estate and gift taxes. In the United States, estate and gift taxes are essentially a type of transfer tax, with the tax paid by the giver. Tax rates range between 18 percent and 40 percent of the assets transferred, but there are exemptions (with lifetime limits) that can reduce or even cancel out these taxes. Currently, the lifetime exemption is $13.61 million per person; however, this is set to drop to about $7.5 million starting January 1, 2026.

Gifting – No Free Ride in Marriage

When both spouses are U.S. citizens, there is an unlimited gift tax exemption, meaning no gift tax period. In the case where the recipient spouse is a U.S citizen, this still applies; however, when the spouse receiving the gifts is a non-U.S. citizen, then it’s different.

In the case where the U.S. spouse gifts to the non-citizen spouse, there are annual limits. For 2024, the annual aggregate limit for tax-free gifting is $185,000. Gifting beyond this amount starts to eat into the total lifetime exclusion.

Leaving Assets to Heiring Spouses

Leaving a bequest to a non-citizen spouse is very similar to gifting in that it also does not benefit from the uncapped marriage exemption. When a U.S. citizen dies and leaves assets to the non-citizen spouse, the estate tax can apply. After using up the lifetime limit, taxes on these bequests can be up to 40 percent. While each situation it unique, estate planning maneuvers such as setting-up trusts can prevent or mitigate the tax hit.

Reporting Requirement – It’s About More Than Just Paying Taxes

The concept of not needing to pay tax due to exemption limitations or gift/estate tax strategies is distinct from the reporting requirements. Here, the reverse situation is the tricky one: When the non-U.S. citizen makes a gift or bequest to the U.S. spouse. Despite having no tax implications, the U.S. spouse may need to comply with informational reporting requirements if the gifts or bequests are technically foreign-sourced and more than $100,000 (in any given year). Failure to comply with reporting standards can yield serious penalties.

Gift-Splitting is Different

Gift-splitting is a technique that allows a married couple to pool their individual annual gift limits and give more tax-free money to the same person. For example, each spouse gets an annual gifting limit of $18,000 they can give to any one recipient (per calendar year), without any tax considerations or use of the lifetime limits. Gift-splitting lets each spouse give this amount to the same person, effectively doubling the amount they can give together to any one person to $36,000. This is not allowed when one spouse is a non-U.S. citizen.

Conclusion

In the end, there is almost always an issue when the U.S. citizen spouse gifts or bequests to the non-U.S. citizen spouse (not the other way around). Keep these details in mind when tax planning and you’ll be on the right path. Also, it’s important to remember that these are the U.S. tax rules and regulations. Any tax implications for the non-U.S. citizen spouse in their country is beyond the scope of this article.

Anyone who lives in a highly seasonal tourist destination knows you can make money on short-term rentals during events and festivities in your city or town. Think high concentration, short-term, tourist-driven events such as horse racing season in Saratoga Springs, N.Y., or The Masters Tournament in Augusta, Ga.

As a result, it is common for locals to get out of dodge and rent out their place during these highly lucrative periods. Typically, this is just for a very brief period while they are on vacation somewhere else themselves, for instance.

Given these circumstances, Congress realized it does not make sense to tax rental income for very short-term periods the same way that long-term rentals are taxed. In response, the government passed the Section 280A exclusion, often called the Augusta Rule in reference to the famous Masters golf tournament.

For the remainder of this article, we will look at the Augusta Rule in more detail and provide practical considerations for taxpayers.

The Augusta Rule, aka the Section 280A Exclusion

At its core, the Augusta Rule creates an exclusion to the concept that real estate rental income is always taxable. Per Section 280A, renting out your residence for 14 days or less, you are exempt from reporting the rental income. This also means no deduction for rental expenses. So, it is like it never happened from a tax perspective. As soon as you rent out that residence for 15 days or more, this exception no longer applies.

Note, it does not matter why you rented out your residence. There is no need for it to be related to an event or any special occasion.

Technical Workings of the Augusta Rule

While the basic rule itself is quite simple, there are details you need to meet in order to qualify for the exclusion – in addition to the 14-day time limit.

• The property must be a home or similar. This means the property must be a “dwelling unit” per IRS definitions, meaning houses, apartments, condos, etc. (although houseboats do qualify).
• The rental price must be reasonable. Look at comparable rents in the area to get an idea of what to charge. Luckily, this is easy today with Airbnb, VRBO, etc.

Practical Considerations

First, the above rules only apply to federal income taxation. State and local tax regulations may differ, so make sure you are up to snuff on these for your area.

Second, just because the IRS does not consider this kind of rental activity a real estate business does not mean you are exempt from local, state, or other business licensing or permit needs.

Conclusion

Qualifying under the Augusta Rule can be a wonderful way to save taxes. It can be especially beneficial to those who live in or around major events that occur for only a brief period and bring in massive amounts of tourists, creating high demand and soaring prices as a result. Moreover, it can be a terrific way to make some tax-exempt income while you are enjoying a personal vacation.

In the end, you must pay attention to the timing – and, most importantly, keep excellent records.

Most people know the basic concept that certain types of investment accounts are tax sheltered while others are not. Think 401(k), 403(b), IRA and Roth IRA accounts, for example. What most people are not aware of is how you split your investment positions between your taxable and non-taxable accounts can result in major tax savings.

Asset Allocation and Location

One of the core principles of investing is to have an appropriate asset allocation that aligns with your risk tolerance and goals. In other words, how much of your investable net worth is in cash, stocks, bonds, precious metals, real estate, alternative assets, private investments, etc? Once you have this determined, the next consideration should be the location of these assets, primarily meaning whether you hold them in a taxable or tax-sheltered account.

The first, core principle behind asset location positioning is that bonds and other fixed income investments get the highest priority within tax sheltered accounts because they pay high-taxed ordinary income. Stocks that pay qualified dividends may be taxed at the more advantageous long-term capital gains rate, so they are typically better in taxable accounts.

What Are the Stakes?

To put it simply, big money. Take the example of a hypothetical $2 million portfolio evenly split between stocks and bonds. In the case where an investor has $1 million each in a taxable account (50/50 stock and bonds) and another $1 million in a tax-sheltered account (again 50/50 stock and bonds); this would cost about $148,000 over 30 years versus placing all the stock in a taxable account and all the bonds in a tax-sheltered account.

Asset Class Location Ranking

Of course, there are many more nuances and types of investments. Below we review 10 different types of assets, ranking them in order of those that get the most benefit from being in a tax-sheltered account with an explanation of why.

1. K-1-Free Commodity Funds
   Popular for investing in futures, these are typically structured as Cayman Islands holding companies. As a result, they often kick-off highly taxed ordinary income even when the fund is losing money. Keep these in a tax-sheltered account at all costs.
2. Junk Bonds
   High-yield corporate bonds typically come with large coupons (often 7 percent to 9 percent) and a small capital loss in the 1 percent to 2 percent range. Since the large coupon payment is taxed as ordinary income, while capital losses are worth less from a tax perspective, junk bonds are a prime candidate to go into a tax-sheltered account.
3. Income Stocks
   Preferred shares and real estate investment trusts are characterized by their high unqualified dividends, so they are not eligible for preferential capital gains tax rates. This makes them best suited for a tax-sheltered account.
4. High-Grade Bonds
   Similar to junk bonds, but with lower coupons and smaller capital losses, the benefits of holding these in a tax-sheltered account is less than the items above, but it is still preferable to place them in a tax-sheltered account.
5. U.S. Treasuries
   The interest on U.S. Treasuries is taxed as ordinary income; however, it is exempt from state income tax. Depending on the state in which you are subject to taxes, these fall in the middle ground and could be held in either a taxable or tax-sheltered account.
6. Actively Managed Mutual Funds
   The frequent churn of the holdings in actively managed funds typically creates more short-term capital gains versus long-term. Again, depending on total returns and how active the fund manager is, these could be held in either a taxable or tax-sheltered account.
7. K-1 Commodity Funds
   Usually taxed as partnerships, profits typically get a 60/40 treatment, with 60 percent of gains classified as long-term and qualifying for favorable rates, putting them in the middle ground as well.
8. High-Dividend Stocks
   For some investors, dividends are king. Think utility stocks and big-name blue chips with a steady track record of paying consistent dividends, like Altria. Since most, if not all, the dividend income is usually in the form of qualified dividends, holding these in a taxable account is much less painful.
9. Stock Index Funds and Low Dividend Stocks
   Broader market mutual funds and ETFs have lower dividends. For example, on average, a total U.S. market ETF yields approximately 0.3 percent. Given this and their low churn, these funds are prime to be held in a taxable account, especially if the intended holding period is more than a year and will qualify you for long-term capital gains treatment and defer any taxable event until sale.
10. Master Limited Partnerships (MLPs) and Private Real Estate Funds
    Typical of oil and natural gas pipeline investments, MLPs pay big dividends early on and they usually are not taxed in early years. Similarly, private placement real estate fund investments are shielded from the income they produce due to the upfront benefits of depreciation. Given their structure and the fact that they hold debt attributable to the owner, however, makes them a no-go for a tax-sheltered account since they create what is considered “unrelated business taxable income.” This makes these investments only suitable for a regular taxable account.

Conclusion

The decision of which types of investments you keep in either taxable or tax-sheltered accounts can make a big difference in how your investments grow and how much you keep. Consider evaluating not only your asset allocation but also your asset location to optimize for taxes.

The U.S. Treasury recently enacted a new reporting requirement aimed at quashing illicit financial transactions. The agency believes that corporate anonymity is enabling money laundering, terrorism, and drug trafficking. As part of the 2021 Corporate Transparency Act (CTA), certain companies are now required to report information about their beneficial owners. The goal of the new registration requirements is to create a centralized database of beneficial ownership information.

There has been push-back from some lawmakers and small business organizations, citing this as an erroneous regulatory process that just makes life harder for small businesses. Efforts to carve out exceptions or delay the implementation failed. As a result, the Treasury Department officially opened beneficial ownership information reporting on Jan. 1, 2024.

Who is Subject to Reporting?

Generally, a company may need to report beneficial ownership information if it is a corporation, LLC, or other business entity created by the filing with a U.S. secretary of state or a foreign company registered to do business in the United States. Reporting requirements for trusts and other entity types are more dependent on state law.

At first glance, the rules make it look like all businesses are subject to reporting. There are exemptions, however, including nonprofits, publicly traded companies, and certain large operating companies. The FinCEN’s Compliance Guide provides an exemption qualification checklist.

Reporting Timelines and Requirements

First, you only must file an initial report once. There are no annual reporting requirements. Filing deadlines vary based on when a company was created or registered with the relevant secretary of state.

• Before Jan. 1, 2024, => Deadline of Jan. 1, 2025
• Between Jan. 1, 2024, and Jan. 1, 2025, => You have 90 calendar days after receiving notice of the company’s creation or registration to file.
• On or after Jan. 1, 2025, => Deadline is 30 calendar days from the company’s creation or registration.

While there is no annual filing requirement, filing updates are necessary within 30 days of any changes. Ownership activity subject to change reporting includes registering a new business name, a change in beneficial owners, or a beneficial owner’s name, address, or unique identifying number previously provided.

What Do You Need to Report?

Beneficial ownership reporting must identify the following data.

At the company level, it must report:

• Company name, both legal and trade (if applicable)
• Company physical address (no post office boxes)
• Jurisdiction of formation or registration
• Taxpayer Identification Number

For each beneficial owner, the following must be reported:

• Name
• Date of birth
• Address
• Driver’s license, passport, or other acceptable identification

Depending on the situation, there also may be reporting requirements about the company applicant. This is generally a person involved in the creation or registration of the company. The same four pieces of data as for a beneficial owner would need to be provided.

As a general rule, a beneficial owner is someone who controls the company or owns 25 percent or more.

The full definition and all exemptions to whom constitutes a beneficial owner or company applicant can be found here.

No financial information or details about the business operations are required.

How and Where to File

You have the option to file online or via PDF. Filing online can be done through the Beneficial Ownership Information (BOI) E-Filing System on the FinCEN site.

There is no cost to file.

Conclusion and Cautions

While the reporting is simple, the requirements should not be taken lightly. Failure to report could result in civil penalties of up to $500 per day and criminal charges of up to two years imprisonment and a fine of up to $10,000.

The message is this: Don’t wait – and don’t forget to file!

Why on earth, you may ask yourself, would I care about being a good client to my tax prep professional? I mean, you are a paying client, and aside from treating them with the same decency and respect that you would show any other random person, who cares – right? Wrong!

What’s in it for me?

Honestly, it’s simply in your own best interest to be a good client. Maintaining a positive relationship with your tax professional can benefit you in numerous ways. Your tax preparer bills you in one of three ways: a flat fee (guaranteed); hourly; or a hybrid with a basic flat fee that they’ll only add to if out-of-scope issues/problems come up. Let’s look at each approach in more detail.

First, a scenario where you have a guaranteed flat fee no matter what. In this case, it’s pretty obvious to see that one of a tax preparer’s main incentives is to perform the work correctly and up to professional standards, but as fast as possible; less time equals more money. Here, being a good client means that you give your tax professional more room to be thoughtful about your tax return and even perform some planning/optimizing for the current year or next year. If you can help them prepare your return efficiently, there’s room to spare in providing you with value-added advice.

Second, when you engage a tax pro on a strictly hourly basis, saving them time on the administrative side of the return prep will equate to direct savings in your pocket. When you pay by the hour, you are paying regardless of whether they are calculating or reviewing your return, providing advice, planning, or chasing you down for missing info, open items, questions, etc.

Third, we have the scenario where you have a flat fixed fee unless you add services out of scope or things really go sideways. Here, while most tax preparers will eat a little bit of time, if you cause delays in the preparation process due to incomplete or unorganized information or you are late to respond to questions, there is a good chance you’ll get billed for that time as it wasn’t planned for and was unnecessary.

Finally, making your tax professional’s life easy will simply make you more likable as a client. And we all know that we treat people we like better.

How do I become a great client?

So, at this point, you are asking, how do I become my tax professional’s favorite client? There are a few main areas to consider if you want to establish a good working relationship and make life easier for everyone.

• Be Organized – The more organized you can be in gathering and submitting your underlying tax documents (W-2, 1099s, etc.) and other necessary information, the better. Many tax preparers will send a tax organizer to help you fill out and organize what you send over. Following this is the best way, but any method that is clear, logical, and complete is best.
• Submit All Your Information at Once – While it’s not always possible, don’t submit your information until you have everything. Sending over documents piecemeal is a surefire way to cause confusion and delays and makes the process rife for errors. In fact, many CPAs won’t even start a return until they have everything. Again, this isn’t always possible because sometimes a K-1, for example, is not yet available – but that should be an exception to the rule.
• Be Responsive – To the degree that you can be responsive to follow-up questions from your tax preparer or their staff. This will ensure your return keeps moving, saving time (and therefore billable hours) that stopping and starting creates.

Conclusion

Following these tips will not only help you develop a great relationship with your tax preparer for years to come, but it also will ensure the most accurate and efficient preparation of your return possible.

The top leadership in the IRS is set to change. IRS Commissioner Daniel Werfel believes the changes are needed for the agency to meet its new goals. He aims to create greater flexibility and efficiency over the agency by streamlining internal processes. The changes also are needed, in his view, to adapt to the evolving landscape around tax administration – which has undergone changes due to new tax laws and technology.

What Are the Changes?

Changes to the organizational structure include reducing the Deputy Commissioner post to a single position (there are currently two); as well as creating four new positions with an IRS chief of taxpayer services, IT, compliance, and operations.

Long Time No Changes

While these changes are set to take place in the beginning of 2024, they are the first changes to take place in a long time for agency leadership. Currently, the highest rungs of the IRS organizational structure dates to the year 2000, over 20 years ago.

The last time changes were made in 2000, the IRS reorganized operations to support taxpayer segments that were the result of the IRS Restructuring and Reorganization Act of 1998.

Single Deputy IRS Commissioner Model

The change over from two at the top to a single deputy IRS commissioner position is modeled after the way the Treasury Department is structured. Doug O’Donnell, current deputy commissioner for Services and Enforcement, will step up to the post.

The Four New Positions

Other key changes in the leadership structure are the creation of four new chief positions, overseeing the areas of taxpayer service, compliance, IT, and operations.

Ken Corbin (currently Wage and Investment Commissioner) is being promoted to Chief, Taxpayer Service. Corbin served in various roles within the IRS since starting his career in 1986 at the Atlanta Service Center. His division will handle taxpayer-centered services, including the toll-free call and taxpayer assistance centers, overseeing tax return processing centers and correspondence with taxpayers.

The Chief, Taxpayer Compliance Officer role will be filled by Heather Maloy. Maloy’s career encompasses both roles within the IRS as well as private practice. Previously, she served as the LB&I Commissioner as well as other roles, including Associate Chief Counsel to a number of IRS divisions. The Chief, Taxpayer Compliance Officer role will oversee compliance work, including operations in the Small Business, Self Employed, Tax Exempt, and Government Entities divisions. She will also be responsible for the Professional Responsibility, Return Preparer, and Whistleblower offices.

The position of Chief Information Officer will be filled by Rajiv Uppal. Uppal’s current role is as the Director of the Office of IT and Chief Information Officer for Medicare and Medicaid Services centers. The Chief IT Officer role will oversee the entire IRS IT division.

Finally, the fourth new position, that of Chief Operating Officer, will be held by Melanie Krause. Krause began working at the IRS in 2021 and currently serves as the Chief Data and analytics Officer. Prior to this, she was the Acting Deputy Commissioner for Services and Enforcement.

Conclusion

Logistically, the changes should occur on the proposed timeline as reorganization changes that do not require a budgetary appropriation amendment. In layman’s terms, the IRS isn’t looking to Congress for any more money, so Congressional approval isn’t needed. As such, the changes are all but certain to take place in early 2024. The result aims to help the organization adapt to recent tax law changes and evolving technology while simultaneously streamlining the organization and making it both more efficient and effective.