The story is real but there are no names because everyone deserves privacy. A client was looking for help because she disposed of a home and didn’t know how to deal with the tax issues. This was simple. The facts were there, and not much I could do about it except crunch the numbers, which turbo tax does a great job of. Why on earth would she need a CPA?
The Problems: It turns out she divorced her husband three years earlier and they split their million dollar plus home (& mortgage) in the divorce, but they were going to hold onto it until the market turned around. Well, in the current year they sold the home at about a $750K loss. He had always done their return on turbo tax. So while they were waiting for the market to turn around, ex hubby decided to rent her half so when he came into town to visit their kids they would have a nice familiar place to stay. He paid her fair market rent/month but they called it additional child support so she wouldn’t have to report it on her taxes. To make it even more ridiculous, she and husband 2 (another smart guy who uses turbo tax) have another big home are now deep in excess of the $1MM mortgage limitation for homes 1&2. All of those excess deductions should be lost forever, only they are begging the IRS for an audit by claiming a deduction for all of around $125K of mortgage interest .
The Solution: As it turned out, the IRS had accepted their invitation to audit and denied all of the mortgage interest. We correctly amended the three and two year earlier tax returns to re-categorize the property as a rental the rental. This moved the activity from personal to business and recognized a passive loss which was deferred until the year of disposition. All losses became active upon disposition, wiped out current year taxable income and came to a net operating loss for the year and carried back to wipe out unpaid tax debt for the previous two years. We also proved the correct mortgage interest deduction. Fortunately the audit gave me single point person to funnel the corrections through and all of the adjustments are already on record as having been audited.
The Unsolvable Problem: The client spoke with her ex-husband and let him know that I was able to get her losses deducted and he was looking for the same help. I explained that had been helping him with his taxes 3 years ago when housing prices had plummeted, conversion to rental would have been an obvious tactic to take but since he was renting the ex-wife’s half for personal use, calling his half rental property would not fly. In short because of different treatment of the exact same piece of properly, one ex-had a business deduction of close to $450K and one had a nondeductible personal loss of about the same.
It would have cost him around $350 per year to get his tax return done and the advice that goes along with it. Yea for turbo tax!
“What is an LLC?” That is a question I almost never hear, and yet it seems more than half of new clients seem to have confusion over legal status and tax status. Legal status refers to legal entity status. That is, “is it separate from it’s owners or, is it just an alter ego of the owners”, and what rules of law govern and define it. Tax status is just how you will be taxed under federal and state law.
Consider the LLC. For simplification purposes think of an LLC like a building. That building can be many things, like an office, a warehouse, apartments or retail space. It all depends on what you elect to do with it.
If the LLC has one owner it is, by default, a disregarded entity. Most tax issues are treated as if there is no business entity. The activity and income are reported by the owner on a schedule C. For tax purposes the LLC is just and alter ego of the owner. For legal purposes (more or less) it is a separate business and separate from the owner.
If the LLC has multiple owners it is, by default, taxed as a partnership and generally has to follow partnership tax rules. A partnership tax return must be filed and owners get the income or loss on their tax return. Partnership basis limitations apply. For tax purposes this LLC sings and dances like a partnership.
With single or multiple ownership, and timely election, the LLC can be taxed like a C-corporation or an S-corporation. With the election, all the accompanying tax rules and responsibilities follow.
In short, “What is and LLC ?”. An LLC is just a generic business entity that has legal status as separate from its owners. What you do with it for tax purposes is up to you. There are defaults which may not leave you in the best tax position and should be addressed, generally before 2 ½ months after formation.
Please be aware that legal status and its maintenance are important legal issues and the advice of an attorney should be sought. The above is for general information purposes and should not be considered legal advice or tax advice. When necessary consult with a CPA about your specific situation.
An S-Corporation is a tax status created by the tax code that determines how a business will be treated for taxation purposes. It is just a tax election that can be made by Corporations, LLCs and even Partnerships.
In a nut shell, a business’s taxable income & loss “passes” from the entity to the owners so it is taxed only at the ownership level. Note that the passing of income is for tax purposes only and has nothing to do with actual cash or asset distributions.
Another potential tax advantage comes to partnerships and LLCs that make the election is potential reduction of self-employment tax. In this case the owners can hold two positions relative to the business; that of employee and, that of investor. As an employee, the shareholder must draw a reasonable salary and payroll taxes must be paid and tax returns filed. The rest of the income passes through as investment income thereby reducing total employment tax. Fortunately reasonable does not preclude an aggressively low manager’s salary, enhancing the potential benefit.
This beneficial position is not without cost and responsibility. To claim owner’s salaries, they must be paid and taxes withheld and employment tax returns filed as with all employees. While aggressively low can be acceptable, $0 salary is not. Additionally losses in excess of basis present a problem as do owner’s distributions in times of loss. For the S election to be effective the proper forms must be filed (2553 or 8869) timely and there are ownership restrictions.
In short, an s-corp. can have some marvelous tax benefits but each situation needs to be looked at with your CPA and the pro’s and con’s weighed.
An S-Corp. election can significantly reduce taxes for small business owners and be part of a good tax plan but it is not for every situation. Here is why.
Let’s say an s-corp., after paying the owner reasonable compensation of $50k, earns a profit of $63K. Remember distributions of profits irrelevant. (For 2013 social security is capped at $13700). The owner would save $9639 in Social Security and Medicare. Great! When things go reasonably well the S-corp can be a beautiful tax saving vehicle.
Now for the other side. Let’s say the owner experience a couple of bad years and actually showed a loss. Assume also that the business earlier borrowed money to fund capital expansion, keep up with growth and was still paying off the debt, and the owner cosigned on the note. The business losses pass through to the owners, (just like income) and the owners get a nice deduction on their income, but only to the extent of their basis. Unfortunately loans to the company, even when guaranteed by and owner, (unlike partnerships or disregarded entities) do not count toward basis. In short if basis is $0 then deductions are $0. What’s even worse is any distributions in excess of basis are taxable as Capital Gains. This means you can have a loss on the business, not take the deduction and still have capital gains.
Let’s take this a step further. Lastly assume after a couple of bad years the business is turning around and the business makes 100K. However, equity & basis are still negative at end of year but the owner pulls out $75K to live on. In this situation there is pass-through income of $100K to be taxed AND capital gains of $75K. Not so much feeling the love now.
The above is a worst case illustration (at least we hope it is), and there are positions that could be taken lessen the impact. Officer loans could be established or even dissolution and reform as a different entity. For simplification, I have not addressed the differences between Retained Earnings, Accumulated Adjustments Account and Basis. Of Course, specific situations vary and you should consult your CPA when you are expecting these difficulties.
Tax entity selection can have some unforeseen consequences as individual situations evolve. You and your CPA should have frank discussions about what is happening with our business, outside the height of tax season.
Congratulations, you took advantage of the first time home buyer credit in 2008, 2009 or 2010 but now you have to move. Well it turns out there is a catch to the credit, (this is aside from the big question of whether or not tax dollars should be used to subsidize the construction industry under the guise of helping people buy homes). Generally, if you quit using that home as your main home within 36 months of purchase you are required to pay back the credit in full that year. (Home buyer credit) Interestingly enough, if you died you are deemed to having quit using that home as your primary residence and may have to repay the credit.
As they say, the devil is in the details, but in this case it could be salvation. There are some important broad exceptions to this. The most far reaching is if you sold your home to an unrelated party your repayment of the credit is limited to the gain on the sale of your home. This repayment limitation applies to all 3 years of the credit including 2008.
If you are unfortunate enough to lose money on the deal then you do not have to repay the credit beyond any amount already repaid. In most cases form 5405 needs to be filed recognizing the disposition with your tax return. If you look at the form sections IV & V will get a clear picture of how this works.
Like I said, the devil is in the details and specifics count in taxation. Form 5405 and the instructions are relatively concise and easy to understand on this issue. As always, consulting a CPA is a good ideal as well.