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.

Frequently, taxpayers think that gifts of cash, securities, or other assets that they give to other individuals are tax-deductible and, in turn, the gift recipient sometimes thinks that income tax must be paid on the gift received. Nothing is further from the truth. To fully understand the ramifications of gifting, one needs to realize that gift tax laws are related to estate tax laws.

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.

Caution: Watch out for unintended gifts such as when an elderly parent places a child on title of the home or other assets.

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.

Taxpayer Advocate Calls for Taxpayer Bill of Rights

The head of the Taxpayer Advocate Service (TAS), also known as National Taxpayer Advocate, urged the IRS to adopt a comprehensive Taxpayer Bill of Rights in her annual report to Congress. TAS is an independent office within the IRS and reports to congress.  In the report she said “because of sequestration, the IRS’s funding was substantially cut, which translated into a reduction in taxpayer service”.  Also “public trust in its fairness and impartiality was called into question” because of reports the IRS’ apparent political treatment of certain applicants for tax-exempt status.

See http://www.irs.gov/uac/Newsroom/National-Taxpayer-Advocate-Delivers-Annual-Report-to-Congress;-Focuses-on-Taxpayer-Bill-of-Rights-and-IRS-Funding

Man Sentenced for Dumping Dirt at Feet of IRS Officers

U.S. Magistrate Judge Thomas D. Thalken sentenced  Walter M. Trizila, age 45, to a three-year term of probation last Thursday, following a misdemeanor conviction for assault, resisting or impeding a federal officer.

 

According to prosecutors, Trizila encountered several IRS officers who were trying to seize a dump truck owned by his employer and became confrontational with them.  He then entered a front-end loader vehicle, scooped a full load of dirt into the bucket and drove directly at the IRS officers. Trizila stopped the front-end loader vehicle just short of striking an IRS officer, after which he dumped the entire load of dirt at the IRS officers’ feet and in front of the dump truck that the officers were trying to seize.

 

THE IRS TARGETS MIDDLE-MARKET COMPANIES; WHAT THEY NEED TO KNOW

Because of the IRS’ new responsibility to enforce the employer mandated health care provisions of the ”Affordable Care Act” and other issues,  it appears the IRS is going to start targeting  Middle Market companies for audit.   

The audits will be performed by the Large Business International Division (LB&I Division) which is responsible for audits of the Fortune 1000 companies.  However the LB&I Division is also responsible for audits of companies with assets of $10 million to $100 million which is the typical size of companies considered to be midsized.  Because of limited resources and the historical focus on the Fortune 1000 there has been lighter coverage of middle-market in the past.  But no more, attention, resources and expertise are being shifted to the middle-market sector. This means more middle-market companies will be audited.

Normally middle-market companies do not have the same resources as the Fortune 1000 and are not as aware of IRS audit procedure or their rights as a taxpayer.   Many have an outside CPA that prepare the tax return and advise the owner or officers of tax and accounting issues.  However they will be faced with seasoned IRS auditors who are used to have immediate access to records and the tax professional during the audit.  This can cause significant issues during the audit for the owner and officer of the middle-market company.  Thus the middle-market company, as with all taxpayers, should assess their resources to see what is need to be prepared and which audit defense resources can be utilized.

The time to prepare for an audit is not when you get the audit notice, but when your tax return is prepared.   So if you have not thought of the possibility of being audited, this is a good time to have a conversation to see what needs to be done.  Normally, if a company is prepared for an audit before they receive the audit notice, an audit should never be a problem.

GET CREDIT FOR GENERATING YOUR OWN HOME POWER

Through 2016, taxpayers can get a 30% tax credit on their federal tax returns for installing certain power-generating systems in their homes. The credit is non-refundable, which means it can only be used to offset a taxpayer’s current tax liability, but any excess can be carried forward to offset tax through 2016.

Systems that qualify for the credit include:

·    Solar water-heating system - Qualifies if used in a dwelling unit used by the taxpayer as a main or second residence where at least half of the energy used by the property for such purposes is derived from the sun. Heating water for swimming pools or hot tubs does not qualify for the credit. The property must be certified for performance by the Solar Rating Certification Corporation or a comparable entity endorsed by the state government where the property is installed.

·    Solar electric system - Qualified system that uses solar energy to generate electricity for use in a dwelling unit located in the U.S. and used as a main or second residence by the taxpayer.

·    Fuel cell plant - This is a fuel cell power plant installed in the taxpayer’s principal residence that converts a fuel into electricity using electrochemical means. It must have an electricity-only generation efficiency of greater than 30% and generate at least 0.5 kilowatt of electricity. The credit is 30% of qualified fuel cell expenditures but limited to $500 for each 0.5 kilowatt of the fuel cell property’s capacity to produce electricity.

·    Qualified small wind energy - A wind turbine used to generate electricity for use in connection with a dwelling unit used as a main or second residence by the taxpayer

·    Qualified geothermal heat pump - Must use the ground or ground water as a thermal energy source to heat the dwelling unit or as a thermal energy sink to cool the dwelling unit, and must meet the Energy Star program requirements in effect when the expenditure is made. The dwelling unit must be used as a main or second residence by the taxpayer.

 

Other aspects of the credit:

·    Limited carryover - The credit is a non-refundable personal credit, which limits the credit to the taxpayer’s tax liability for the year. However, the portion of the credit that is not allowed because of this limitation may be carried to the next tax year and added to the credit allowable for that year. Thus, the credit carryover is available through 2016 (the final year for the credit).

·    Installation costs - Expenditures for labor costs allocable to onsite preparation, assembly, or original installation of property eligible for the credit, as well as for piping or wiring connecting the property to the residence, are expenditures that qualify for the credit.

·    Swimming pool - Expenditures that are for heating a swimming pool or hot tub are not taken into account for purposes of the credit.

·    Newly constructed homes - The credit can be taken for newly constructed homes if the costs of the residential energy-efficient property can be separated from the home construction and the required certification documents are available.

Certification - A taxpayer may rely on a manufacturer's certification that a product is a Qualified Energy Property. A taxpayer is not required to attach the certification statement to the return on which the credit is claimed. However, taxpayers are required to retain the certification statement as part of their records. The certification statement provided by the manufacturer may be a written copy of the statement that is posted on the manufacturer’s website with the product packaging details in printable form or in any other manner that will permit the taxpayer to retain the certification statement for tax recordkeeping purposes.

Installation costs - Costs for labor allocable to onsite preparation, assembly, or original installation of the residential energy-efficient property are includible.

If you have questions about how you can benefit from this credit, please give this office a call.

IRS mistake doesn't give non-notice partner right to opt out of partnership proceedings

A district court has held that partner in a tax shelter who was erroneously informed by IRS that he had the right to opt out of the partnership examination wasn't entitled to be dismissed from the case. The court found that IRS had no statutory duty to inform the partner of the partnership proceedings and that its failure to do so didn't give the partner to the right to opt out of the proceedings, regardless of the fact that he was initially told otherwise. Kearney Partners Fund, LLC, (DC FL 3/27/2013) 111 AFTR 2d ¶ 2013-581

Are Monies Received From a Court Judgment Taxable?

They could be.  The Tax Court ruled in favor of the IRS requiring the taxpayer to include in taxable income (1) Proceeds the taxpayer received plus (2) The amount awarded to the attorney.   The court also upheld IRS's imposition of an accuracy-related penalty. Raphael Dang-Quang Cung, TC Memo 2013-81

CHARITABLE AWAY-FROM-HOME TRAVEL

 Charitable deductions are allowed only for travel expenses (including meals and lodging) by volunteers who do charitable work for their organization while they are away from home on the charity's behalf. Unlike other areas of taxes, meals are not subject to the 50% limitation. Any “significant element of personal pleasure” negates a complete deduction (i.e., not even a partial deduction is allowed). Significant personal pleasure is assumed if the taxpayer has only minor duties and is not required to perform any duties for the charity for major portions of the away-from-home stay. If the taxpayer's personal vehicle is used for the charitable travel, then the taxpayer may deduct the cost of gas and oil, but not depreciation, insurance, or repairs. As an alternative to deducting the cost of gas and oil, the taxpayer can use the current standard mileage rate of 14 cents per mile for charitable travel. The taxpayer can also deduct parking fees and tolls, whether actual expenses or the standard mileage rate is used.

The 14 cents per mile is not adjusted for inflation, so the current high cost of gasoline may well make it appropriate to document the cost of gas and oil for charitable trips. For example, when this article was prepared, gasoline prices were in the range of $4.50 per gallon in many parts of the country. Assuming that a vehicle gets 20 miles to the gallon, this turns out to be 22.5 cents per mile just for the cost of gasoline. Where there is significant charitable usage, it may be worth the time to document the gasoline usage for the year.

Car expenses record requirements - If you claim expenses claimed directly relate to the use of the taxpayers car in giving services to a qualified organization, reliable written records must be kept of the expenses. Whether the records are considered reliable depends on all of the facts and circumstances. Generally, they may be considered reliable if the taxpayer made them regularly and at or near the time in which the expenses were incurred.

For example, the records might show the name of the organization the taxpayer was serving, as well as the dates the car was used for a charitable purpose. If the standard mileage rate of 14 cents per mile was used, the records must show the number of miles that the taxpayer drove the car specifically for the charitable purpose. If actual expenses are deducted, the records must show the costs of operating the car that are directly related to a charitable purpose.

If you have questions related to the deductibility of your charity volunteer expenses, please give this office a call.

WHAT HAPPENS WHEN A CORPORATION DOES NOT PAY THEIR PAYROLL TAXES?

When a corporation has unpaid payroll taxes, those who are responsible for the payment of the tax will be held personally responsible for 100% of the employee share of the tax.  This is called Trust Fund Recovery Penalty.  A responsible person is defined as a person who (1) is aware of the payroll tax liability, (2) has the ability to pay the tax and (3) acted willfully not to pay, regardless of the reason.  This “Penalty” will be assessed when it is determined the corporation is either unwilling or unable to pay the tax. The person could either be an officer, board member or even the bookkeeper.

In most cases the IRS will assume all officers and board member are responsible persons [regardless of the facts and circumstances] and will automatically assess 100% of the trust fund penalty against each officer and board member.  Generally an officer or board member will need to go to court to show they are not a responsible person.  Except in bankruptcy proceedings, before the individual is eligible to go to court they first need to pay the Trust Fund Penalty, and then sue in court for a refund.

An example of this is in the court case of Skoczylas v. the U.S. [Skoczylas v. USA, 09 Civ. 2035 (ILG) (RML), NYLJ 1202582026679, at *1 (EDNY, Decided December 3, 2012)].  The IRS automatically assessed the Trust Fund Penalty against a board member but in court was denied summary judgment and awarded the board member a refund.  Even though the individual was a director of the corporation, material fact issues remained as to whether she was responsible person who acted willfully with regard to corporation’s tax debts. Although she was director, she didn't manage corporation’s day-to-day affairs and lacked decision making authority over paying debts even though she had some check-signing authority.  In addition it was unclear as to whether creditors ran the corporation during bankruptcy and/or if she had actual control over the checkbook and bank accounts.  It was also undisputed that the CEO was a responsible person who acted willfully.

Please contact this office if you have any questions or need assistance.

IRS IS NOT COMPLYING WITH LEGAL REQUIREMENTS FOR SEIZURES OF ASSETS

The IRS Taxpayer Inspector General for Tax Administration recently issued a report on IRS seizures that included instances of IRS still failing to meet all legal requirements in seizures. They reviewed a random sample of 50 of the 578 seizures conducted from July 1, 2008, through June 30, 2009, looking at the required 58 guidelines for each seizure. They identified 34% of the seizures in which the IRS did not comply with the Internal Revenue Code.

If you wish to review the entire report click on the following link: http://www.treas.gov/tigta/auditreports/2010reports/201030049fr.pdf

COURT SUPPORTS IRS AGAINST “S” CORPORATION FOR UNDERPAYING EMPLOYEE-OWNER

Background
A “S” Corporation if a regular corporation that is treated like a sole proprietorship or partnership for tax purposes resulting in the net income of the corporation flowing through the individual tax returns and taxed at the lower individual tax rate in lieu of the corporate rate. Unlike an unincorporated self-employed person, that income is not subject to self-employment taxes. Consequently, the tax code requires employee – owners of “S” Corporations to be paid a “reasonable” salary thus requiring the withholding and payment of Social Security, Disability and Unemployment taxes. The salary is treated as a corporation expense, reducing the amount of income that flows through the sole proprietor or partner.

In times past, a common practice was to pay a minimal salary to the employee-owner and take out cash as a dividend. This will reduce total taxes by reducing the amount paid in Social Security, Disability and Unemployment taxes. For example, the employee-owner would take a $24,000 salary per year and withdraw cash from the corporation of $100,000 as a dividend. The Social Security, Disability and Unemployment tax would be paid on the $24,000 but not on the $100,000.

Court Ruling
In Watson v. U.S the district court ruled that a portion of the dividend distributions by an “S” corporation to its sole owner should be recharacterized as wages subject to employment taxes, the court rejected the corporation's assertion that IRS could not compel the corporation to pay a higher salary to the owner. This resulted in underreporting and underpayment penalties and interest on the corporation’s payroll tax returns over a two-year period.

Conclusion
Employee-owners of “S” corporations should pay a “reasonable” salary. What is a “reasonable” salary? That is a good question; there is no guidance in tax law or by the IRS. It is a case-by-case determination. To determine a reasonable salary, one needs to look at the prevailing wages paid for the same job description of the employee-owner and the income of the corporation.

Please call me for guidance on how this affects you personally.