September 30, 2010

1099 Reporting Changes in the 2010 Small Business Jobs Act (signed into law on September 27, 2010)

There has been much discussion in the small-business community concerning the new 1099 reporting requirements, enacted by the healthcare bill, that are effective for years after December 31, 2011. While many industry groups, including the AICPA (American Institute of Certified Public Accountants), are lobbying for more relaxed law, it is considered a revenue-raiser by the government. A significant portion of that revenue will come from increased penalties for failing to file 1099s or filing them late. The 2010 Small Business Jobs Act significantly increases those penalties. Non-compliance just got real expensive; file all of them and file on time. Even if the provisions of the healthcare bill are relaxed, these penalties probably will still be with us. These provisions are effective for years beginning after December 31, 2010.

To offset a portion of the cost of the various tax breaks and incentives in the Act, Congress beefed up certain reporting requirements and penalties, to generate revenue. Expect a substantial increase in IRS audits to begin soon, and stronger enforcement of the penalties. This will be an easy exam for the IRS to administer; they probably will be able to do the exam without leaving their office. Don’t forget that we still have reasonable cause exception that may be applied to the penalties, but my guess is that the reasonable cause will require a lot more explanation and that fewer “causes” will be considered reasonable. “The dog ate the mail” may not work anymore. When filing the information returns, always get documentation that they (IRS) were received or, better yet, file them electronically. Here is what we have now:

Information reporting required for rental property expense payments. This will catch a lot of property owners by surprise. For payments made after December 31, 2010 (reporting will be for 2011 expense payments for most tax payers), the new law requires persons receiving rental income from real property to file information returns with the IRS and service providers reporting payments of $600 or more during the year for rental property expenses. The law now considers real property rental to be a trade or business subject to the 1099 reporting requirements. There are exceptions: individuals renting their principle residences (including active members of the military), taxpayers whose rental income doesn’t exceed an IRS-determined minimal amount, and those for whom the reporting requirement would create a hardship.

Increased information return penalties. For information returns required to be filed after December 31, 2010 (these penalties will apply to your 2010 1099s filed in January 2011), the penalties in the tax code for failure to timely file information returns to the IRS will be increased. For small businesses (gross receipts of less than $5M), the penalty increases from $15 to $30; calendar year maximum will be increased from $25,000 to $75,000 for the first-tier penalty. The first tier penalty is for correct information returns filed on or before the 30 days after the due date. The second tier penalty is for filing a correct information return after the 30 days but before August 1 of the calendar year in which the required filing date occurs; the penalty increases from $30 to $60 with a maximum for small businesses increasing from $50,000 to $200,000 per calendar year. For filings after the August 1 date the penalty increases from $50 to $100 with a maximum for small business increasing $100,000 to $500,000. The minimum penalty for each failure due to intentional disregard will be increased from $100 to $250, with no limit. The penalties for failure to file information returns to payees are also increased. These penalty amounts will be indexed every five years for inflation.

Just watching television and listening to radio would have you believe that the only tax increases coming are income taxes! But we know better. The good news is that this is a voluntary tax. Do it right, and it doesn’t cost you anything, other than the administrative costs of monitoring and preparing the reporting forms. Do it wrong and you will pay a non-deductible penalty, which means you had to earn the penalty amount plus your marginal tax bracket to satisfy the liability.

September 23, 2010

Stock Acquired in Demutualization

We have been receiving questions regarding recent letters sent to owners of Prudential stock held by Computershare. Why did I get this? What should I do? and How does this affect my taxes? are the primary concerns. This is primarily a tax issue; thus I won’t be commenting on the investment merits of owning Prudential Stock.

First, it is important to understand how the stock was issued to you, or how the person from whom you inherited the stock came to own it. For most of you reading this, it came about as a result of a demutualization. So here is the background:

A mutual insurance company has no shareholders, but instead is owned by its participating policyholders, who possess not only contractual insurance rights, but also ownership rights. Mutual owners’ voting rights differ from those possessed by traditional shareholders in that each policyholder has a single vote, regardless of how many policies are owned or the amounts thereof. Once the mutual company pays its claims and operating expenses, the profits belong to the policyholders. Typically, some of those profits are returned to the policyholders as dividends, while the remainder is retained as surplus. Payment of policy dividends is at the discretion of the policyholder elected board. A stock insurance company is owned by the owners of the stock; the policyowners only have contractual insurance rights.

Beginning in 1986, many mutual insurance companies began the process of demutualization (became stock insurance companies) by issuing stock to the policyholders in exchange for the ownership rights associated with their insurance contracts. The IRS’s position at that time was that the issuance of the stock in exchange for those rights would not be a taxable event. However, the IRS’s opinion was that the cost basis for the shares would be zero (IRS PLR 200020048), so if you sell it, the IRS’s position is that it is 100% taxable as capital gains.

Fast forward to: Eugene A. Fisher, Trustee of the Seymour P. Nagan Irrevocable Trust v. United States, US Court of Claims, 2008-2 USTC ¶50,481, Aug. 6, 2008, affirmed US Court of Appeals for Federal Circuit 2009-5001

The IRS loses; policyholders have basis in shares received in demutualization (absent otherwise determinable value, 100% of premium costs includible as basis). The IRS has yet to give us direction related to how they will treat this issue going forward for the rest of us taxpayers. We will keep you posted.  

Why should you consider selling the stock now? Tax reasons!

Long-term capital gains tax rates are on sale. (The Blue Light Special is on.)

For 2010, if you sell shares of stock that you’ve held for more than a year, any gain is a long-term capital gain, generally taxed at a maximum rate of 15%. If you’re in the 10% or 15% marginal income tax bracket, however, you’ll pay no federal tax on the long-term gain (a 0% tax rate applies). That means if you’re a married couple filing a joint federal income tax return, and your taxable income is $68,000 ($34,000 for single) or less, you pay no federal tax on the gain; state income taxes could still apply. Additionally, the sale could increase the amount of income tax you pay on Social Security benefits.

As of now, these rates expire at the end of 2010. (Watch for pending legislation.) Beginning in 2011, a 20% rate will generally apply to long-term capital gains.

As always, consult your tax advisor!
I would like to thank Ron Roberson, CPA (Twain Harte, CA), and Vern Hoven, CPA (Gig Harbor, WA) ( for assistance in this post.

Martin James, CPA/PFS

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September 21, 2010

Welcome to Our Blog

Welcome to our blog! This summer we have spent a considerable amount of effort in improving the technology within our office. The ultimate goal of this effort is to improve our communications and provide a higher-level of service. Please take a tour of our new blog.
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