Wednesday, February 8, 2017
Tuesday, October 4, 2016
Monday, February 17, 2014
INTEREST CHARGE – DOMESTIC
INTERNATIONAL SALES CORPORATION
What is an Interest
Charge – Domestic International Sales Corporation?
Better known as IC-DISC, was originally created as a Domestic
International Sales Corporation in 1971 to stimulate U.S. exports, IC-DISC is a
variation of the original creation. It allows U.S. owners of a qualified
business tax savings on a calculated percent of qualified export sales.
What are the tax
savings? Instead of the exporting company paying up to
a 35 percent federal corporate tax on 100 percent of export NET income, a tax deductible
commission is paid to the IC-DISC Corporation.
When the commission received by the IC-DISC Corporation is distributed
to its shareholders, they pay an individual tax rate based on the qualified dividend
tax rate. Depending on the shareholder’s
ordinary income tax rate that could be between ZERO to 20 percent in 2013. For example if the Corporation is in the 35
percent Federal tax rate and a shareholder has a 15 percent dividend tax rate, the
shareholder realizes a 20 percent federal tax savings. This is a permanent tax savings and not
reversed in later years.
Depending
on how the IC-DISC is set up, IC-DISC income may or may not be considered
income that is subject to the additional 3.8% Medicare Tax. There is alot of ambiguity and no tax court
cases to rely on. In general the 3.8%
Medicare Tax is a tax on investment or passive income. If the IC-Disc is set up as a Commission DISC
[see the discussion on how a Commission DISC works on page 2], the dividends
will be considered coming from a passive activity, then the Medicare Tax
applies. However if the IC-DISC is set
up as a Buy/Sell DISC where the export activities occur in the DISC corporation
[see the discussion on how a Buy/Sell DISC works on page 2], then the income is
not from a passive activity and Medicare Tax on Investment Income does not
apply. However this has not been tested in court and it is my opinion the IRS
will take the position that the Medicare Tax still applies because the word
dividend is used in the code. But I
believe the IRS would be incorrect and tax should not apply because the Buy/Sell
DISC is not a passive activity and the distributions out of the DISC are not
true dividends, just taxed as a dividend.
As in many other cases the IRS could lose in court. But like I said before this has not been
tested in court and taking this position is aggressive and even though, in my
opinion, has merit the Taxpayer could lose in court
Unfortunately
not all states recognize the IC-DISC, California is one of them. Some tax consultants take the position that
if the IC-DISC is organized in a state outside of California, like Nevada,
California tax can be avoided. However I
believe this is incorrect due to California Nexus rules. Because the DISC and the California export
company are related and the economic activity that creates income in the DISC
occurs in California, a combined return will be required and tax paid.
Additional tax
savings
There are a number of related planning
opportunities associated with this technique. An IC-DISC can be used as a
succession planning tool to accumulate cash on a tax-advantaged basis to
facilitate a buyout of the Exporter itself. Exporters have also used these
entities to provide equity incentives to key management personnel without the
drawbacks of granting an equity interest in the Exporter itself. Care must be
taken in structuring these types of arrangements if the shareholders of the
IC-DISC are not the same as the shareholders of the Exporter, although such
arrangement is permitted.
Because the IC-DISC does not pay
income tax, and its shareholders are only taxed when distributions are made,
other planning opportunities exist if these shareholder distributions are
deferred. For instance, the IC-DISC can loan the commission payments back to
the Exporter.
Interest paid on this indebtedness
generates another deduction for the Exporter, and the interest income is
treated as a dividend to the shareholders. The same tax savings described above
are effectively realized on the financing transaction. If distributions of
commission income are deferred, there is an interest change (which is
deductible for corporation shareholders). This interest change is based on the
deferred tax liability of the shareholder and the base period Treasury bill
rate.
Who should consider
forming an IC-DISC? An IC-DISC may be established at any time
during the year by any non-publicly traded corporation that earns significant income from
exporting goods, including software, or from engineering or architectural
services on foreign construction projects.
The corporation must be organized under the laws of a state or the
District of Columbia and meet the following tests:
(1)
At
least 95% of its gross receipts in the DISC during the tax year are qualified
export receipts. The 95% rule does not
apply to all gross receipts of the export company, just the gross receipts in
the DISC.
(2)
At
the end of the tax year, the adjusted basis of its qualified export assets is
at least 95% of the sum of the adjusted basis of all of its assets in the DISC.
(3)
The
DISC has only one class of stock, and its outstanding stock has a par or stated
value of at least $2,500 on each day of the tax year (or, for a new
corporation, on the last day.
(4)
The
DISC maintains separate books and records.
(5)
The
DISC is not a member of any controlled group of which a foreign sales
corporation (FSC) is a member.
(6)
Its
tax year of the DISC must conform to the tax year of the principal shareholder(s)
who has the highest percentage of voting power.
How does an IC-DISC
work?
Commission DISC
(1) The exporting company forms an IC-DISC
corporation, which generally mirrors the ownership structure of the exporting
company.
(2) The IC-DISC charges the exporting
company a commission on NET income related to export sales using one of the two
following methods, whichever is greater:
·
The ‘Four-Percent’ Gross Receipt Method
·
50% of NET income
(3) The exporting company fully deducts the
commission expense.
(4) The IC-DISC distributes profits to its
shareholders via dividends
(5)
U.S. income
tax is imposed on the IC-DISC shareholder’s dividends on the shareholder’s
personal tax return.
(6)
No
employees are required within the Commission DISC and the entity has no effect
on exporting operations.
Buy/Sell DISC
(1)
The
exporting company forms an IC-DISC corporation, which generally mirrors the
ownership structure of the exporting company.
(2)
The
DISC takes title to the goods it exports and operates as an export subsidiary
with employee(s) who handles the export functions such as purchasing, invoicing.
(3)
A
commission rate, using the arm's length transfer pricing rules of the IRS
regulations (IRC Section 482), is established to pay the related supplier for
the goods it takes title of.
(4)
100%
of the profits related to export sales are captured at the lower tax rate
rather than only the commission element as in (2) above.
(5)
The
IC-DISC distributes profits to its shareholders via dividends
(6)
U.S. income
tax is imposed on the IC-DISC shareholder’s dividends on the shareholder’s
personal tax return.
Other
Forms
There are other forms to be considered.
They are as follows:
(a) Safe Harbor Buy/Sell IC-DISC. The
IC-DISC purchases and sells export property. The parent company reimburses the
IC-DISC-paid export promotion expenses plus 10 percent. Does not require an IRC
Section 482 transfer pricing study.
(b)
Export
Invoice Factoring. The IC-DISC purchases invoices (connected to the commissions
paid) from the parent company on a non-recourse, discounted basis (e.g., at a
3% or 4% discount rate). Requires an IRC Section 482 transfer pricing study.
(c)
IC-DISC
with Foreign International Sales Corporation (FISC). The IC-DISC owns 100 percent of a FISC that
buys and on-sells inventory at a mark-up to foreign customers. The FISC must be
located in a jurisdiction outside the 50 states and Puerto Rico. The parent
company pays a commission to the IC-DISC for the FISC sales and requires an IRC
Section 482 transfer pricing study.
Cautions
The IC-DISC
is considered a Tier 1 audit issue by the IRS and requires additional due
diligence to ensure compliance and substantiation of company practices. Tier I audit issues are of “high strategic
importance” to the IRS and have a significant impact on one or more industries.
Tier I issues may involve a large number of taxpayers, a significant dollar
amount, a substantial compliance risk or high visibility. Issues will be placed
in this category if the IRS has an established legal position or directive out
on the issue. In other words, if you form
an IC-DISC, it could be a “red flag” for audit.
Normally if a taxpayer is honest and follows the rules, with
transparency, an audit should not deter them from taking appropriate tax positions. The IC-DISC rules are complex and time
consuming, if the IC-DISC is set up improperly, calculated incorrectly or lacks
substantiation, your business could face additional taxes, penalties, and
interest. Thus it is imperative that you
seek proper tax advice from a CPA or tax attorney.
Applicable tax codes
(1)
Internal
Revenue Code § 995(f)
(2)
Treasury
Regulation § 1.995(f)-1(d).
(3)
IRS
Instructions for Form 1120-IC-DISC
(4)
IC-DISC
Audit Guide [LB&I-04-0212-003]
Summary
The Interest
Charge – Domestic International Sales Corporation, also known as IC-DISC,
allows qualified US exports a tax deductible commission from business net
income equal to 50 percent of NET export income. That commission is then distributed to the
shareholder of the IC-DISC Corporation as a dividend and the shareholder pays
an individual tax rate based on the qualified dividend tax rate when the
dividend is distributed
Domestic Production
Activities Deduction
What is Domestic
Production Activities Deduction?
The Domestic Manufacturing Deduction also referred to as DPAD or the Section 199
deduction is a tax deduction for
businesses that perform manufacturing and other qualified production activities in the United States and Puerto Rico [US-based]. It was established in 2004 by the American Jobs Creation Act of 2004 to increase the investment in
domestic manufacturing facilities.
What
lines of business qualify for the dedication?
The following lines of business qualify for
the Domestic Production Activities Deduction. They MUST be US-based:
- Manufacturing
and production
- Selling, leasing, or licensing items that have been manufactured
- Producing
or growing agricultural or horticultural products
- Marketing US-based
agricultural or horticultural products
- Mineral extraction
- Oil-related
production activities. This
includes production, refining, processing, transportation, or distribution
of oil or gas, or any primary product from oil or gas
- Production
of electricity or water
- Qualified film
production
- Selling,
leasing, or licensing motion pictures that have been produced in the
United States,
- Construction
services including building and renovation of residential and commercial
properties
- Engineering
and architectural services
- Software development, including the development of video games.
The following
activities do not qualify
·
Sale of food and
beverages prepared by the taxpayer at a retail establishmen
·
Transmission or
distribution of electricity, natural gas, or potable water
·
The lease, rental,
license, sale, exchange, or other disposition of land.
· Construction services those are cosmetic in nature, such as painting
· Leasing or licensing items to a related part
What entities qualify
for the dedication?
·
Corporations, both “C”
and “S” corporation
·
Partnerships and
Limited Liability companies
·
Sole Proprietorships
·
Agricultural
Cooperatives
What are the tax
savings?
The tax savings is a tax deduction equaling to
the lesser of
·
Nine percent of NET
Qualified Production Income
·
Nine percent of
taxable income, without regard the DPAD
Also, the deduction
cannot exceed fifty percent of W-2 wages and reportable commission paid to
employees that contribute to the qualified activities.
Qualified Production
income is the net of gross income from the qualified production activities less
all expenses directly related to the qualified production activities. For a business with only one line of
business, the expensed deducted will be the same as total expenses. For
businesses with multiple lines of business, income and expenses will need to be
allocated.
General
Rules and Safe Harbor
The Domestic
Production Activities Deduction is limited to income arising from qualified
production actives in whole or significant part US-based. Under a "safe
harbor" rule, businesses can take the deduction if at least twenty percent
of the total costs are the result of direct labor and overhead costs from US-based
operations.
If any part of
manufacturing or production activities is outside the United States and Puerto Rico,
then businesses must use either the safe harbor rule or allocate costs using
the facts and circumstances of their business.
Cautions
The
DPAD is considered a Tier 1 audit issue by the IRS and requires additional due
diligence to ensure compliance and substantiation of company practices. Tier I audit issues are of “high strategic
importance” to the IRS and have a significant impact on one or more industries.
Tier I issues may involve a large number of taxpayers, a significant dollar
amount, a substantial compliance risk or high visibility. Issues will be placed
in this category if the IRS has an established legal position or directive out
on the issue. In other words, if you take
the DPAD, it could be a “red flag” for audit.
Normally if a taxpayer is honest and follows the rules, with transparency,
an audit should not deter them from taking appropriate tax deductions. The DPAD rules are complex and time
consuming, if the deduction is calculated incorrectly or lacks substantiation,
your business could face additional taxes, penalties, and interest. Thus it is imperative that you seek proper
tax advice from a CPA or tax attorney.
Applicable tax codes
(1)
Internal
Revenue Code § 199
(2)
Internal
Revenue Code § 927(a)(2)(C)
(3)
Internal
Revenue Code § 1382(b)(c)
(4)
IRS
Regulation § 1.199
(5)
IRS
Proposed Regulation § 1.199(3)(f)(3)
(6)
IRS
Instructions for Form 8903
Summary
Many small business’s has traditionally over
looked a potential this very important tax deduction. Even though there are a set of complex rules,
at nine percent of NET income from qualified production activities, businesses are
unnecessary leaving money on the table by not taking advantage this tax
deduction. According to Paul Schlather,
a senior tax partner with PricewaterhouseCoopers' Private Company Services
practice, “while Section 199 comes with a very complex set of rules, chances
are small businesses will qualify for the deduction much easier than the rules
depict".
Thursday, February 6, 2014
Are You Required To File A Gift Tax Return?
Article Highlights:
A gift tax return must be filed if you give gifts in excess of $14,000 per recipient during the year.
- Directly paid medical and educational gifts are excluded
- Married individuals can increase the annual $14,000 exclusion to $28,000 by splitting gifts.
- The estate tax exemption can be used to offset gifts in excess of the annual exclusion.
When a taxpayer dies, the value of his or her gross estate (to the extent that it exceeds the excludable amount for the year) is subject to estate taxes. Naturally, individuals want to do whatever they can to maximize their beneficiaries’ inheritances, and limit the amount of tax the estate may owe. Because giving away one’s assets before death reduces the individual’s gross estate, the government has placed limits on gifts, and if those gifts exceed the limit, they are subject to a gift tax that must be paid by the giver.
Gift Tax Exclusions – Certain gifts are excluded from the gift tax.
- Annual Exclusion – This is the annual amount that an individual can give to any number of recipients. This amount is adjusted for inflation, and for 2013, it is $14,000, and can be in the form of cash, property, or a combination thereof. For example, a taxpayer with five children can give $14,000 to each child in 2013 without any gift tax consequences. The taxpayer cannot deduct the gifts, and the gifts are not taxable to the recipients. Generally, for a gift to qualify for the annual exclusion, it must be a gift of a “present interest.” That is, the recipient’s enjoyment of the gift can’t be postponed to the future. For gifts to minor children, there is an exception to the “present interest” rule, where a properly worded trust is established. If the total of all of your gifts to each individual is not over $14,000, then there is no gift tax return filing requirement.
- Lifetime Limit – In addition to the annual amounts, taxpayers can use a portion of the federal estate tax exemption (it is actually in the form of a credit) to offset an additional amount during their lifetime without gift tax consequences. However, to the extent that this credit is used against a gift tax liability, it reduces the credit available for use against the federal estate tax at the time of the taxpayer’s death. For 2013, the credit-equivalent lifetime gift tax exemption is $5.25 million. If you made a gift to any individual in excess of $14,000 during the year, a gift tax return filing for the year is required even if there is no tax due. The filing allows the IRS to track your federal estate tax exemption reduction as a result of gifts, and includes the tax if you exceed the current lifetime limit.
- Education and Medical Exclusion – In addition to the amounts listed above, there are two additional types of gifts that can be excluded from the gift tax:
(1) Amounts paid by one individual, and on behalf of another individual, directly to a qualifying educational organization as tuition for that other individual.
(2) Amounts paid by one individual, and on behalf of another individual, directly to a provider of medical care as payment for that medical care. Payments for medical insurance qualify for this exclusion.
Gift-Splitting by Married Taxpayers – If the gift-giver is married and both spouses are in agreement, gifts to recipients made during a year can be treated as split between the husband and wife, even if the cash or property gift was made by only one of them. Thus, by using this technique, a married couple can only give $28,000 a year to each recipient under the annual limitation previously discussed.
If you believe that you have a gift tax filing requirement, have additional questions, or would like this office to assist you in planning an appropriate gifting strategy, please call.
Monday, February 3, 2014
Brazil is threatening to launch a full-blown trade war
against the U.S. over Cotton
Brazil is threatening to launch a full-blown trade war against the U.S. for ignoring an order by the World Trade Organization to stop subsidizing its domestic cotton growers. In June 2004 the WTO ordered the US to stop the more than $3 billion in subsidies to cotton farmers because the subsidy distorts global prices and violates international trade rules. However the Brazilian threat comes after the US stopped subsidizing Brazilian cotton farmers. So the question is -- is Brazil involved in bribery? Read the attached and you decide.
Reed http://www.thestate.com/2014/01/23/3222085/us-brazil-cotton-dispute-may-fuel.html
Thursday, January 30, 2014
Trade
with China is good, but what about Mexico?
Despite the drug violence in Mexico that
killed more than 15,000 people last year, and the negative attention that has
all but destroyed border tourism, trade between that country and the U.S. has
recovered and surpassed prerecession levels. Last year, trade was at an
all-time high.
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