The IRS has finally released regulations for the IRC §199A deduction for qualified business income, also known as “pass-through deduction.”

What is Section 199A and Who Does it Apply To?

Section 199A allows business owners to deduct up to 20% of their Qualified Business Income (QBI) from sole proprietorships, partnerships, trusts and S corporations. Individuals, estates and trusts can also deduct 20% of their qualified REIT dividends and Qualified Income from a Publicly Traded Partnership (PTP). The deduction was one of the most high-profile pieces of the Tax Cuts and Jobs Act.

What’s included?

The Good:

  • Individuals can aggregate businesses and treat them as a single business, which can effectively increase the wage limits and capital limits on the deduction
  • A qualified business can get up to 10% of its gross receipts from services
  • A qualified business can include a related rental activity

The Bad:

  • Broadens the “service-business” category to include some non-service businesses that are incidental or related to a service business. This can limit the effectiveness of “crack and pack” strategies that try to create a qualified business by spinning off part of a service business

Mixed:

  • A rebuttable presumption that a former employee who continues to perform the same services for the employer is still an employee. I.e. the worker’s compensation is not qualified business income.

Neutral:

  • Defines terms such as:
    • Trade or Business
    • Unadjusted basis immediately after acquisition
  • Explains how to calculate the deduction
  • Detailed rules for determining the wage limits and capital limits
  • More clearly illustrates the three components of the deduction:
    • Qualified Business Income
    • REIT dividends
    • PTP income
  • Better explanations of:
    • Service business categories
    • Reporting requirements for pass-through entities (S corps and partnerships)
    • How an estate or trust can qualify for the deduction.

These changes and clarifications open up great opportunities for tax planning. Please contact us to discuss these new regulations will apply to your specific situation. Our team can review your current tax structure to ensure that you are receiving the maximum benefit of these new rules.

Cloud Accountant

Small business owners often use the new year as a time to plan annual budgets and focus on sales growth and new business opportunities. It’s also a great time to make resolutions to review accounting practices and financial controls on the business.

To make the most of your annual accounting review,  here are the seven steps you should take to prepare:

  1. Review year end financial statements and compare results to company’s previous performance. What has changed? Examine financials each month, but it’s important to look at trends over the year. Ask your accountant to review the information as well. Get a second opinion on the financial health of the business.
  2. Project cash flow for the upcoming months. This provides a road map for you to plan for upcoming business expenses, and helps you forecast sales and revenue. Forward a copy of your cash flow report to your accountant for review prior to the meeting.
  3. Review pricing strategies. One way to improve profit is to increase prices for your goods or services, however it could also cause significant loss of customers. An accountant might provide valuable insight into your current strategies and other factors to improve the company’s profitability.
  4. Inquire about changes in state, local and federal tax laws that will affect the business.
  5. Review accounting software packages . During this meeting, take the time to inquire about your accounting software. Is it time to upgrade to a new version of the software? Has your company outgrown its current marketing practices? Without asking this question, you’ll never know.
  6. Consider applying for a line of credit or changing merchant accounts. As a business owner you must prepare for emergencies, especially in uncertain times. While your company might not need access to a line of credit right now, it could in the future. It is easiest to establish credit when the business is not under duress, and your accountant might have a personal relationship with a banker that you should take advantage of.
  7. Is there anything else? Ask this open-ended question to your accountant. They might be able to give some insight you would have missed otherwise.

As a Certified Public Accountant who regularly works with early-stage technology companies, I have come to accept that accounting usually is not a favorite topic among entrepreneurs. In fact, given all the other things an entrepreneur has to think about, conforming to generally accepted accounting principles and practices can end up fairly far down on the priority list.

I am a big believer that you don’t let accounting and tax rules tell you how to run your business. I also believe that a fuller understanding of the accounting considerations for equity and revenue recognition can help investors, entrepreneurs, and board members ask the right questions and know when to seek outside expertise to avoid unpleasant surprises, unanticipated adverse affects on the P&L, delays in due diligence, or renegotiated valuations.

I. Accounting for Equity

In today’s world, accounting for equity is more complex than ever before. Depending on the choices a company makes with equity awards, there are both financial reporting and tax issues. These issues are not always the same.

Entrepreneurs and their boards need to understand both the profit and loss impact and the tax ramifications of granting equity before any granting occurs. Whether the business is a Limited Liability Company (LLC), C-Corporation, or S-Corporation, the issues are generally the same.

Determining Fair Market Value is at the Core

When a company issues an equity security or option as compensation, both the Financial Accounting Standards Board (FAS 123R) and the Internal Revenue Service (IRC Sec. 409A) require the company to establish a fair market value for those securities as of the date the stock is issued or the options are granted.

The intent of FAS 123R is to make sure that the company’s financial statements accurately reflect current fair market value expenses of the grant. The IRS wants to make sure that any stock or options granted as compensation are not valued too cheaply.

The IRS and FASB requirements for setting the fair market value are similar, but not exactly the same. The consequences of being out of compliance include additional tax, interest, and penalties from the IRS’s standpoint and potential restatement of financial statements as the result of an audit, due diligence, or Initial Public Offering (IPO) filing to satisfy FASB requirements.

The following is a review of the accounting and to a lesser extent tax considerations of the various forms of equity that an early stage company is likely to use as compensation.

Stock Options

Prior to 2006 and FAS 123R, generally accepted accounting principles (GAAP) did not require privately held companies to report stock options as an expense as long they were granted at market value following the intrinsic value methodology. The intrinsic method was a theory that did not require the company to expense compensation as long as the options were issued at the fair market value. Since FASB 123R, all stock options must be recorded at their fair market value as expenses when they are granted, even if issued at the fair market value price of the stock.

To calculate the fair market value of the options (and therefore the expense), companies are required to use an option pricing model which satisfies minimum FAS 123R requirements (e.g., Black Scholes-Merton or binomial-lattice).

While a detailed discussion of these option models is well beyond the scope of this article, it is important to know that each requires the company to make assumptions about volatility, interest rates, and the dividend rate and life of the options.

The models also call for the company to establish a fair market value of the underlying stock, and this is where things can get very complicated.

It is one thing to be able to go to The Wall Street Journal or the Internet to get a price for a stock, or to establish the underlying value as a result of an investment round where the valuation of the company has been agreed. It is another thing entirely to come up with the underlying stock price when a company is just starting out and there is no valuation or current street price to base the stock price on.

A company cannot simply assign a price for the stock that seems reasonable. It is possible to establish a fair market value internally for tax purposes under IRC Sec. 409A as long the person setting the value is qualified and knowledgeable about valuation and has significant experience.

However, the calculations and considerations in a comprehensive report are so complex that many companies obtain an independent valuation report from a reputable outside appraiser to set an independent value to the common stock. These external assessments are usually a more effective way to meet the requirements that can make an accountant or auditor comfortable that the fair market value is credible.

An independent appraisal costs between $5,000 to $15,000. Very early stage companies that are pre-revenue may delay having an independent valuation to avoid these costs, but once a company has employees, transactions, revenue, and a board of directors, most accountants and CPAs—especially if they are auditing the company—will require an outside appraisal.

The fair market value of the underlying stock and the other assumptions (i.e., volatility, interest and dividend rates, life of the stock) are fed into the chosen algorithm (Black Scholes-Merton or binomial-lattice). From that calculation, the fair market value of the option is determined. This expense is then generally recognized over the vesting or earning period of the recipient of the option(s). As long as the grant of the option is issued at least at the fair market value, there will be no federal tax implication at the grant date to the company or the option recipients.

Options have a value that is set as of the date of the grant under FAS 123R. As those options vest, a corresponding expense must be charged against the profit of the company. The amount of this expense correlates to the value set at the date of the grant, no matter how the fair market value for the options may change. Even if the options are underwater, the company cannot subsequently adjust the expense downward.

Common and Preferred Stock Grants

Granting stock is an effective way to attract key employees early in the company’s life cycle. When a company grants actual stock (not options) to employees as a form of compensation or as payment for outside services, the fair market value of the stock must be recorded on the company’s books as an expense and reported to the IRS as taxable income to the person who receives the stock.

When granting shares of stock, a company’s first concern is satisfying the fair market value requirements of IRC Sec. 409A. The IRS will allow an independent appraisal, a nonlapse repurchase formula, or an illiquid startup valuation.

Management will want to seek the advice of someone with financial acumen who understands the IRS guidelines for the “reasonableness” of the valuation method used.

By following these valuation methodologies with sign-off from the board of directors, the company will at least be able to demonstrate that it followed the mechanics of IRC Section 409A if the IRS raises an issue with the resulting stock valuation.

If the company is seeking a fair market value that will stand the tests of both IRC 409A and FASB 123R, it is best to engage a Certified Public Accountant (CPA) well versed in equity accounting to verify that the methodology used for IRS purposes meets the minimum requirements of FAS 123R.

Stock appreciation rights are also subject to the IRC 409A rules. Keep in mind that board members or officers may find themselves on the hook for potential payroll taxes that are considered trustee taxes if issues with the IRS occur. In these situations, seek legal counsel.

With the economic downturn, many companies are finding their current option plan holders “under water” as the stock price is below the option price. Modifications to existing plans or changes in exercise prices most likely will have an accounting consequence to the company’s books so before making modifications a company should seek professional advice.

Restricted Stock Grants

Assuming that retention as well as attraction is also a goal of any stock compensation plan, granting restricted stock early in the company’s life cycle can be a superior strategy.

Under a restricted stock plan as compensation, management may put restrictions on the shares themselves or the grants of shares that permit the stock to vest over time. Examples of restrictions could be calendar events (a portion of the stock vests annually as long as the employee remains with the company) or milestone accomplishments (e.g., profitability, product releases, or sales goals).

For accounting purposes, if the restrictions create a “substantial risk of forfeiture to the recipient,” the company may not need to book the fair market value of the stock as expense, but rather may disclose it in the notes of their financial statements. When the event becomes probable, the company records the expense.

As the restrictions on the stock lapse and the stock vests, the employee pays federal tax on the vested stock at ordinary income rates based on the fair market value of the stock on the day it vests and the company recognizes the expense.

However, under a special IRS provision (IRC, SEC 83B), an employee can elect to pay the tax on restricted stock immediately by sending a letter to the IRS within thirty days of the grant stating their election to pay the tax today on the current fair market value of the stock. The employee will be taxed at ordinary income rates. As with all stock grants as compensation, the company reports the difference between the fair market value of the stock and any price the recipient pays as an expense.

This provision makes restricted stock a powerful tool for founders and early key employees. At the beginning of the company, the fair market value of the stock will typically be low. Under current IRS provisions, as long as the stock is held for a year and a day, any appreciation will be treated as long-term capital gain.

Warrants and Convertible Debt

A warrant is similar to an option except that it is usually issued with debt. A warrant provides the right (but not the obligation) to buy shares of stock at a certain price. Warrants, like options, must be valued at fair market value and are usually expensed over the life of the associated debt.

Convertible debt is a note that typically converts to equity at the option of the note-holder (lender) or when certain events, such as a subsequent investment round, occur. New accounting rules now require issuers to account separately for the liability and equity components of the convertible debt if the settlement can be settled at least partially or wholly in cash.

Market Capitalization Table: Keep it Simple, Accurate, and Up-To-Date

If a company ever expects to go through due diligence, whether as a candidate for private equity or in advance of an IPO, acquisition, or merger, the way they have valued their options and stock and the complexity and the currency of their market capitalization table become very important.

Keep the capital structure current, straightforward and clean. Limit the number of initial shareholders and the types of rights. We strongly advise our clients against giving different rights to different shareholders. Record each group of shareholders and option holders separately; list their names and document the terms and expectations of each category as the option or shares are granted.

The cap table is one of the most important items of due diligence. I have seen small companies with as many as 75 or 100 shareholders, with different terms and valuation, and a cap table that hasn’t been updated in months. Those conditions become a nightmare and derail the process, if not the deal, when it is time to raise angel or venture capital.

II. Revenue Recognition

In the early years of most companies, cash is the primary concern. It is likely and understandable that very aggressive deals and discounts will be offered to close sales and build a base of early adopters for the new company’s products and services.

Often these deals are structured as one-offs and are frequently a necessary part of moving the business forward. With sales people making creative proposals to customers to capture early contracts, companies must be aware that the way these proposals are structured can significantly impact the amount and timing of revenue that can be recognized.

Principles and Criteria for Revenue Recognition

The two basic principles of revenue recognition are:

  • Revenue must be earned.
  • Revenue must be realized.

Four criteria are generally required in order to meet the two principles of revenue recognition:

  • Persuasive evidence of an arrangement exists (i.e., a contract)
  • The arrangement is fixed and determinable (i.e., stated prices and rights of return are firm)
  • Delivery or performance has occurred (no more services or obligations are due)
  • Collectability is reasonable assured (the purchaser is deemed a good credit risk)

For most products—equipment, devices, hardware, or consumer goods—revenue recognition is reasonably straightforward as long as a company satisfies these criteria. With software, it is a different story.

In fact, the most difficult area of revenue recognition may well be in software, which generally falls under the American Institute of Certified Public Accountants rules entitled, SOP 97-2 “Software Revenue Recognition.” The guidance in this statute outlines a rule-based approach to complicated accounting issues. These provisions were instituted in 1997 as a result of companies trying to manipulate their earnings.

Since software companies and businesses that produce high technology products of which software is a significant component make up such a significant portion of angel investors’ portfolios, understanding some of the challenges of software revenue recognition will be useful.

Software Revenue Recognition

Companies follow several models when selling software. The software may be licensed as a stand-alone canned product, bundled with hardware, other software, or with post-contract support (PCS), or may be sold as a service (SaaS). Software may be plug-and-play or may require hours of contracted consulting to make it appropriately usable in the customer’s environment.

SOP 97-2 rules apply to companies selling software under any of these models and potentially to firms selling products of which software is one of multiple components. If embedded software is “more than incidental” to a system, hardware component, or other type of box, these accounting rules may apply.

Not every product that operates with software falls into this category, however. For example, there is a lot of software in a car or truck, but the automakers don’t have to use software recognition rules to account for their vehicles. On the other hand, a telecommunications company that sells a mobile device with cutting edge software may need to go under those rules.

Contracts

As salespeople make different deals, a company can find that they have millions of dollars in deferred revenue. That is why we recommend that new companies establish standard contractual terms that anticipate revenue recognition issues.

We also recommend that a process be established that requires the accountant in charge of revenue or the company’s chief financial officer to review the terms of every deal before the proposals are submitted to the customer, so that the salesperson and the company both understand how the revenue will be booked and give the parameters and discounts of the deal. Tying the salesperson’s commission to revenue recognition is another tool to help the company manage these issues.

Stated Prices and Rights of Return

When software, post-contract support (PCS), or other services, such as help-line support or feature upgrades, are bundled together, the individual components of the bundled software contracts must have readily definable fair-market values that have vendor-specific objective evidence (VSOE) for the revenue generated by each component to be recognized.

Generally VSOE means a history of transactions with customers that demonstrates the fair market value of the various components and a pattern of customer acceptance. If the bundled components have been sold separately, the standalone price is the best evidence of VSOE.

Many products don’t have a separate sales history, especially in a young company. In these cases, VSOE can be set by “management having relevant authority.” In setting VSOE, some of the factors are type of customer, geography and distribution channels.

If a company cannot convince its auditors that it is conforming to the strict guidelines of VSOE, some portion of the revenue for bundled software transactions will most likely be deferred until VSOE is satisfactorily established.

A new company may need to have separate transactions paid for in the second year of the contract before it can establish a fair market value for non-software components of the original bundle.

Consider this example: An early stage company with a fiscal year that ends December 31 sells a piece of software for $100,000 in September and charges the customer an additional $10,000 for the first twelve months of software support. The company sends the customer an invoice for $110,000, and the customer promptly pays it.

Assuming the company has not previously established VSOE for its support at $10,000, the company will only be able to recognize $27,500 (3/12 of $110,000 fee for the software) by December 31 as the entire amount must be prorated over the twelve months specified for software support.

In year two, if the company has obtained VSOE and has sold another software package with the same pricing and terms, the $100,000 for the software license can be recognized in the month it is sold and accepted. However, the $10,000 for the software support will be recognized 1/12 per month for a year.

The amount of recognizable revenue cannot be based solely on list prices or the prices on a customer invoice. After a couple of years of selling the same components, a company that keeps good records will collect enough data to support the VSOE of each of the software components, but until that is the case, a good practice is to express all discounts as a consistent percentage of the license fee, the post contract support, and any other elements that are bundled together.

If a term license includes post-contract support, revenue recognition for the portion of the fee appropriately allocated to the support will be prorated over the term of the license.

The accounting treatment of bundled software sales must be handled properly and consistently, otherwise companies may find that they have corrupted their VSOE and this could result in deferred revenue and reduced profits.

Delivery and Acceptance

It used to be that when a client sold a piece of software, proof of delivery was easily determined by looking at the Federal Express or UPS paperwork. Today most software is delivered via automatic downloads over the Internet, subscription services or shared licenses activated by keys. Proof of the delivery is impossible unless the company retains electronic records or paperwork that verifies delivery.

We recommend that each of our clients establish a clearly written, company-wide revenue recognition policy that requires customer verification (paper or electronic) that the software was received, accepted, and it has been activated before revenue can be recognized.

It is also good practice to specify in the contract an end-date for any approval, installation or service period, otherwise the contract is so open-ended that recognizing the revenue will be deferred, potentially indefinitely. In one situation we saw recently, a 24/7 support arrangement had no expiration date on use. As a result, our client found it difficult to recognize any revenue at all on this element since contractually a customer could use it indefinitely. As a basis for revenue recognition in this situation, the company would need to prove that over time a percentage of their customers no longer used the 24/7 support, even though it was available indefinitely.

Sometimes the customer can’t use the software to their specifications until significant implementation efforts occur. Months and months of consulting may be required. Depending on the way the contract is written, revenue may be recognized on a percentage of completion basis or may have to be deferred on all elements until the customer indicates acceptance of the software.

For companies that follow a typical SaaS model, revenue recognition requires clear documentation of when the customer’s subscription begins. There are too many situations where the only way the accountants could determine that a user had subscribed to the service was when transactions actually started happening. Assuming there is documentation, it is easy to recognize revenue on a monthly basis for the most simple SaaS models.

If the company grants the client the ability to buy the software product today and commits to provide the next version for free, the company cannot book the revenue because they haven’t delivered the product that the customer is buying. This treatment can apply to products other than software, but most commonly comes up with software upgrades and new product releases.

Other Terms and Nuances Can Affect Revenue Recognition

There are specific accounting regulations for extended payment terms whether for a product or service, especially when a contract contains terms that are outside the company’s typical credit policy or different from other contracts in force.

Delivering a product and allowing the customer to pay over two or three years raises questions about collection and likely will delay the full revenue recognition of the contract. The auditor’s decision often comes down to whether or not the company can demonstrate a history of payment in general and from specific customers. Usually early stage companies cannot.

Granting customers specific rights of return or acceptance periods outside of the normal practice for the company can also delay revenue recognition. Issuing significant volume discounts to customers can also pollute recognition of revenue if not handled properly.

Conclusion

Entrepreneurs and their boards should not become so focused on accounting considerations that they let the accounting rules dictate how the business is run. By establishing a process that includes reasonable record keeping and review and by anticipating the basic rules and principles of equity accounting and revenue recognition, company management and boards of directors can avoid surprises. They will understand the implications of the operating decisions they need to make to cause the business to gain traction and grow and will hopefully avoid having to make major accounting adjustments when the auditors or due diligence teams come in.

Many first time and even repeat or serial entrepreneurs who launch their startup will initially try wearing the accountant’s hat by doing their own accounting and taxes, in addition to doing everything else in their business. The advent of simple desktop and online or cloud-based bookkeeping software packages like Quickbooks, Xero, Wave, etc., make it easy for even a layperson to keep track of their basic business finances, however, this is still not an efficient nor an effective approach.

In a growing enterprise, there comes a time when it makes sense to hand over the responsibilities for accounting, taxes, and the rest of the financial reporting and analysis to an accountant. For the successful entrepreneur, the right time to choose an accountant for your startup is before you even incorporate, closer to the time you are still developing the idea fully. A well-qualified and experienced outside accountant can make all the difference in how and if the business succeeds, providing valuable insight and first-hand experience. Great CFO‘s can work with dozens of companies over their careers, however great outside CPA’s work with hundreds annually.

Benefits of Startup Accountants:

Accurate and reliable books and records are the foundation of all successful businesses. This is not an easy task for new entrepreneurs, who have no extensive knowledge in accounting, taxation, compensation, and other financial and non-financial factors, but this is much more than just good bookkeeping.

Choosing an outside accounting firm who provides a wide range of services to entrepreneurs and new businesses will help growing companies stay on top of both regulations and opportunities.

  1. Selecting the most suitable business structure: Accountants help to decide the most suitable structure for the business after evaluating factors such as legal exposure, tax advantages, portability should you need to relocate, and ease of operation from among the many choices: Sole Proprietorship, Simple Partnership, Limited Partnership (LP), Limited Liability Partnership (LLP), C-Corporation, S-Corporation, and Limited Liability Company (LLC).
  2. Financial planning and estimates: Banks, financial institutions and investors will require financial forecasts to find the potential profitability and risk profile of the business before they approve any business loan. Startup accounting firms make professional assessments of the business and thus enhance the chances of loan approval. Financial planning by startup accountants helps them to advise the new entrepreneur on how to raise money. They help with making sound decisions on whether fixed assets and other potential capital expenditures should be leased or purchased, whether funds should be raised by taking a loan, issuing more capital, or taking an overdraft.
  3. Budgeting: Maintaining company accounts out of the red will ensure that a business runs smoothly over its lifetime. They prepare business plans, cash flow projections, budgeting, as well as forecasts.
  4. Bookkeeping and payroll services: These services include preparation of financial statements, daily bank reconciliations, calculation of employee salaries and benefits, and the analysis and compliance for taxes such as preparing tax returns, preparing year-end accounts, advice on minimizing business tax, and handling any Federal, State or Local inquiries regarding tax.
  5. Auditing: Auditing services are often needed by banks and financial requirements as a condition of a loan. Whether performing the audit preparation work to ensure that the books and records are in compliance, to performing the outside audit itself, finding the right CPA for your startup is critical.

How to choose the best startup accountant:

Hiring an outside firm or outside accountant is a good first step for a startup business. This costs them less than a full-time, salaried employee and in addition, gives them a higher level of advice from a certified public accountant (CPA). The accountant will use the latest and greatest accounting and tax software to help them manage the books in a safe and secure way. After determining to choose an outside accountant, it is important to determine the qualifications and other criteria the accountant should possess. Things to look for when choosing the best startup accountant include:

Certifications: It is recommended for startups to look for someone who has professional accounting qualifications like:

CPA (Certified Public Accountant). CPA’s are real financial advisors who can provide more in-depth independent financial assessments about the business. They manage the daily bookkeeping of the business, provide tax advice and prepare tax returns. CPA’s also offers a wide range of other services such as debt management, cost-saving inventory measures, setting short-term and long-term goals, and managing cash flow in businesses.

Industry experience: Business owners often prefer to hire Certified Public Accountants that have experience handling similar businesses in the same industry. It is true that a professional with experience will be aware of the nuances in that particular industry.

Size of the firm: It is wise to look for an accounting firm that is comparable in size to the company. Generally small to medium firms specializes in small business work, provide personalized services and charge less compared to large firms.

Costs and charges: Fee charges are another important factor while selecting a startup accountant. Depending on the extent of work and size of the firm, costs and charges may vary. While it is important to get the right value for the money spent, experts advise that cost should not be the first factor in choosing an accounting firm or a CPA.

Additional services: Additional services may be offered by accounting firms such as specialized business advice apart from their basic accounting services. These specialized services can help startups plan better and grow successfully.

Choosing the best startup accountant is a milestone for many businesses. Choosing outside accountants signals that the company wants to improve its financial position, and position it for growth and success. Hiring an outside accountant should be done early. Many companies wait too long before making this decision which often results in inaccurate and sloppy reporting at a crucial time in the company’s growth.

If you are starting a business, one of the first decisions to make is the legal structure of the business. This decision will impact your taxes, liability, and control over the business. You will want to take into consideration the following:

  • How large do you expect the business to be?
  • What level of personal liability are you comfortable with?
  • Do you anticipate much liability in the daily operations of the business?
  • How much revenue do you project?
  • How comfortable are you with strict organizational structures?
  • How do the owner(s) plan to take profits out of the business?

This decision should not be taken lightly. Consult your accountant and attorney for advice before making a final decision. They can help guide you through the implications of how you organize your business. They are also the experts in any relevant state and federal laws.

There are three major categories of legal business structures with variations on each. Here are some of the most common legal structures with the pros and cons of each.

Sole Proprietorship

Most small businesses start out as a sole proprietorship. This is when there is only one owner who is also responsible for the day-to-day operations of the business. The owner controls all the assets of the business and takes on all the liability of the business operations. Profits and losses are reported directly on the owner’s personal income taxes. In effect, the business and the owner are the same entity legally.

Advantages of Sole Proprietorship

  • Easiest form of business to set up and dissolve.
  • Single owner has complete control over the business.
  • All profits can be re-invested in the business or can be used by the owner.

Disadvantages of Sole Proprietorship

  • Owner has full liability for business operations. This includes all debts or lawsuits against the business. The owner’s personal assets are at risk.
  • It is harder to raise capital from commercial sources with a management team of one.
  • Employee benefits can not be deducted from the business income. This includes the owner’s health insurance.

Variation of Sole Proprietorship

  1. There is only one type of sole proprietorship.

Partnerships

Partnerships are similar to a sole proprietorship except that this entity includes two or more people who share ownership of the business. The day-to-day management of the business may or may not be divided among the partners. Once again the law looks on the owners and the business as a single entity. An operating agreement should be drawn up by a lawyer and signed by all partners governing how the ownership is divided, profits will be distributed, new partners added, and the business dissolved. The cost for a lawyer to write up a good operating agreement is far less than the litigation that may arise over the life of a business.

Advantages of Partnerships

  • They are still easy to establish, but you should have a professionally written operating agreement.
  • Liability is spread over several owners.
  • All profits can be re-invested or flow directly to the owners.
  • It is easier to get capital from traditional sources including banks.

Disadvantages of Partnerships

  • All the partners are liable for the debt and lawsuits of the business. The partners’ personal assets are at risk.
  • Profits and decision-making is shared if conflict arises.
  • Employee benefits can not be deducted from the business income. This includes health insurance.

Variations of Partnerships

  1. General Partners — Members of the ownership team are responsible for day-to-day management, associated liability, and share of profits. Sometimes they are called active partners.
  2. Limited Partners (LLP) — Members of the ownership team only have liability up to their investment and generally have limited input into the day-to-day operations of the business. Sometimes they are called silent partners.

Corporations

A corporation is registered with the state where the company resides. Legally it is a unique entity from the owners. The taxes are paid by the corporation and it can be sued or enter into contractual agreements. A corporation is owned by shareholders who elect a board of directors to manage the day-to-day business decisions. A lawyer should draw up the ownership agreements.

Advantages of Corporations

  • Shareholders have limited liability for the corporation’s debts and liabilities.
  • Shareholders can only be held accountable for their investment in the stock of the business.
  • Easier to raise capital through the sale of stock or through commercial means.
  • Employee benefits can be deducted from the corporation’s profits for taxes.

Disadvantages of Corporations

  • More difficult to form than a partnership, however most states now have online options that eliminate the paperwork.
  • Additional regulations and reporting are required from federal, state and local governments.
  • Owners’ income may be subject to double taxation.

Variations of Corporations

  1. S Corporations — An S Corporation is only a tax election. It enables the shareholders to treat the earnings and profits as distributions and have them pass through directly to the owners personal income taxes, however the owners’ pay must be comparable to what any employee would be paid to do a similar job at another company. The IRS can reclassify the business and the shareholders will be liable for all payroll taxes if all requirements are not met.
  2. Limited Liability Company (LLC) — An LLC was designed to provide many of the benefits of both partnerships and corporations. There is limited liability to the owners like a corporation, but the flow of profit works like a partnership. The income of the business is reported on the shareholders personal income taxes as income.

Startups: Accounting Best Practices

You worked day and night to get your small business off the ground. As the sales and expenses grow, you have finally got the hang of bookkeeping, in addition to your main business tasks. While keeping your company’s books correct is a great start, there are several best practices that can not only keep your company financially successful, but also increase its bottom line.

Choose a software package

In beginning your company, you may use a simple spreadsheet to keep track of your business income and expenses. At some point, however, you may wish to consider using a small-business accounting software package such as QuickBooks Online or Xero to keep track of the company’s financial transactions. As a new start-up grows, the paperwork involved between collecting income from customers and paying expenses from your suppliers can prove too overwhelming without the help of a reliable and accurate financial database. A good small business software package will also ease your income tax compliance, inventory record-keeping, and payroll records.

It is important to consider your business model as you choose your accounting software. If you sell goods, almost any basic software business software program will suffice, however should your business provide primary contracting services, you may want to consider a software package that focuses on project accounting. Should your business manage real property, you may want to consider a package that focuses on fixed income accounting. Even though these specializations may immediately cost more, they will prove vital to your long term financial management.

Choose an accounting method

As a small business, you have some leeway in how you record your financial transactions. Since you are not a large corporation, you do not have to produce financial statements according to Generally Accepted Accounting Principles (GAAP). You may prefer to record your income whenever you deposit payment for a job into your bank account and report the expenses whenever you write a check to cover an expense. Accountants refer to this accounting method as the cash method of accounting. While this does not follow GAAP, it is more than adequate for a small startup.

As your business grows, however, you may choose to adopt a more sophisticated financial record-keeping process. At this point, you may wish to consider the accrual method of accounting. Under this method, you record your income when you have an invoice for services provided, rather than waiting to get paid for that service. You recognize a business expense when you receive a bill from a supplier, rather than waiting until you pay the supplies. This method of accounting is preferable because it allows you to more closely match the income your business generates to the expenses you incurred to earn it. For example, you may have received an advanced cash payment before you provided services to a customer. You may want to wait and record that amount as revenue during the year you actually provided the services, rather than the year in which you received the cash.

From an income tax perspective, the IRS is very flexible in allowing you to choose an accounting method. According to its rules, you may use any method as long as it clearly reflects income and expenses and you treat all items of income and expenses in the same manner from year to year. If you produce, purchase, or sell merchandise, special rules apply on when you must use the accrual method. If your business handles inventory in any way, you should consult our accountants to determine when to use the accrual method.

Create a Budget

Successful small business owners, while deeply focused on servicing customers, also keep good financial records. Your financial situation can quickly spiral out of control despite this diligence if you are not also managing your money.

Many small business accounting software packages allow you to create a budget, either based on a previous year’s records or from scratch. Creating a budget is important because it will create standards of performance for your business. After an interim period, you should compare your company’s actual performance to the budgeted amounts and then explain the differences. This process will tell you whether you are on track to meet your sales goals for the year. It can also keep your business profitable.

Compare your performance

Finally, most small business accounting software packages also allow you to compare your business’s current-year financial statements to those from previous years. This process allows you to see trends in your business. It also provides insight on how you can add to its success.

For example, if your revenue increased by 10 percent in 2011 over that from 2010, but, to do so, your expenses increased by 30 percent, this suggests some inefficiency in your business model. Are you investing in assets with the greatest return on investment? Or, did you forget to provide invoices for some services provided during the year?  Conversely, if your revenue increased by 30 percent for 2011 over that from 2010, but your expenses only increased by 10 percent, this suggests that your business model could be hyper-efficient. Were all expenses recorded?  Were some revenue items duplicated?  Or did you truly manage to increase your return on investment?  It is important to get to the bottom of these trends in order to have an accurate picture of your business’s performance and to make important financial decisions.

Any change in Presidential Administration brings the possibility, indeed the likelihood, of tax law changes and the election of Donald Trump as the 45th President of the United States is no exception. During the campaign, President-elect Trump outlined a number of tax proposals for individuals and businesses. This letter highlights some of the President-elect’s tax proposals. Keep in mind that a candidate’s proposals can, and often do, change over the course of a campaign and also after taking office. This letter is based on general tax proposals made by the President-elect during the campaign and is intended to give a broad-brush snapshot of those proposals.

At the same time, the end of the year may bring some tax law changes before President Obama leaves office. This letter also highlights some of those possible changes with an eye on how late tax legislation could impact your year-end tax planning.

Campaign proposals

During the campaign, President-elect Trump called for reducing the number of individual income tax rates, lowering the individual income tax rates for most taxpayers, lowering the corporate tax rate, creating new tax incentives, and repealing the Affordable Care Act (ACA) (including presumably the ACA’s tax-related provisions). The President-elect, in his campaign materials, highlighted several goals of tax reform:

  • Tax relief for middle class Americans
  • Simplify the Tax Code
  • Grow the American economy
  • Do not add to the debt or deficit

President-elect Trump also identified during the campaign a number of tax-related proposals that he intends to pursue during his first 100 days in office:

  • The Middle Class Tax Relief and Simplification Act: According to Trump, the legislation would provide middle class families with two children a 35 percent tax cut and lower the “business tax rate” from 35 percent to 15 percent.
  • Affordable Childcare and Eldercare Act: A proposal described by Trump during the campaign that would allow individuals to deduct childcare and elder care from their taxes, incentivize employers to provide on-site childcare and create tax-free savings accounts for children and elderly dependents.
  • Repeal and Replace Obamacare Act: A proposal made by Trump during the campaign to fully repeal the ACA.
  • American Energy & Infrastructure Act: A proposal described by Trump during the campaign that “leverages public-private partnerships, and private investments through tax incentives, to spur $1 trillion in infrastructure investment over 10 years.”

Individual income taxes

The last change to the individual income tax rates was in the American Taxpayer Relief Act of 2012 (ATRA), which raised the top individual income tax rate. Under ATRA, the current individual income tax rates are 10, 15, 25, 28, 33, 35, and 39.6 percent. During the campaign, President-elect Trump proposed a new rate structure of 12, 25 and 33 percent:

  • Current rates of 10% and 15% = 12% under new rate structure.
  • Current rates of 25% and 28% = 25% under new rate structure.
  • Current rates of 33%, 35% and 39.6% = 33% under new rate structure.

This rate structure mirrors one proposed by House Republicans earlier this year. During the campaign, President-elect Trump did not detail the precise income levels within which each bracket percentage would fall, instead generally estimating for joint returns a 12% rate on income up to $75,000; a 25% rate for income between $75,000 and $225,000; and 33% on income more than $225,000 (brackets for single filers will be half those dollar amounts) and “low-income Americans” would have a 0% rate. As further details emerge, our office will keep you posted.

Closely-related to the individual income tax rates are the capital gains and dividend tax rates. The current capital gains rate structure, imposed based upon income tax brackets, would presumably be re-aligned to fit within President-elect Trump’s proposed percent income tax bracket levels.

AMT and more

President-elect Trump proposed during the campaign to repeal the alternative minimum tax (AMT). The last time that Congress visited the AMT lawmakers voted to retain the tax but to provide for inflation-adjusted exemption amounts

During the campaign, Trump proposed to repeal the federal estate and gift tax. The unified federal estate and gift tax currently starts for estates valued at $5.49 million for 2017 (essentially double at $10.98 million for married individuals), Trump, however, also proposed a “carryover basis” rule for inherited stock and other assets from estates of more than $10 million. This additional proposal has already been criticized by some Republican members of Congress, while some Democrats have raised repeal of the federal estate tax as a non-starter.

Other proposals made by President-elect Trump during the campaign would limit itemized deductions, eliminate the head-of-household filing status and eliminate all personal exemptions. President-elect Trump also has called for increasing the standard deduction. Under Trump’s plan, the standard deduction would increase to $15,000 for single individuals and to $30,000 for married couples filing jointly. In contrast, the 2017 standard deduction amounts under current law are $6,350 and $12,700, respectively, as adjusted for inflation

Possible new family-oriented tax breaks were discussed by President-elect Trump during the campaign. These include the creation of dependent care savings accounts, changes to earned income tax credit and enhanced deductions for child care and eldercare.

Health care

The Affordable care Act (ACA) created a number of new taxes that impact individuals and businesses. These taxes range from an excise tax on medical devices to taxes on high-dollar health insurance plans. The ACA also created the net investment income (NII) tax and the Additional Medicare Tax, both of which generally impact higher income taxpayers. The ACA also made significant changes to the medical expense deduction and other rules that affect individuals. For individuals and employers, the ACA created new mandates to carry or offer insurance, or otherwise pay a penalty.

President-elect Trump made repeal of the ACA one of the centerpieces of his campaign. During the campaign, the President-elect said he would call a special session of Congress to repeal the ACA. At this time, how repeal may move through Congress remains to be seen. Lawmakers could vote to repeal the entire ACA or just parts. Our office will keep you posted of developments as they unfold.

Business tax proposals

On the business front, President-elect Trump highlighted small businesses, the corporate tax rate, and some international proposals during his campaign. Along with simplification, and the reduction, of taxes for small business.

Particularly for small businesses, Trump has proposed a doubling of the Code Sec. 179 small business expensing election to $1 million. Trump has also proposed the immediate deduction of all new investments in a business, which has also been endorsed by Congressional tax reform/simplification advocates.

The current corporate tax rate is 35 percent. President-elect Trump called during the campaign for a reduction in the corporate tax rate to 15 percent. He also proposed sharing that rate with owners of “pass through” entities (sole proprietorships, partnerships and S corporations), but only for profits that are put back into the business.

Based on campaign materials, a one-time reduced rate would also be available to encourage companies to repatriate earnings of foreign subsidiaries that are held offshore. Many more details about these corporate and international tax proposals are expected.

Year-end 2016

More immediately, the calendar is quickly turning to 2017. Congress will meet for a “lame duck” session and is expected to take up tax legislation. Exactly what tax legislation Congress will consider before year-end remains to be seen. Every lawmaker has his or her “key” legislation to advance before the year-end. They include:

  • Legislation to renew some expiring tax extenders, especially energy extenders.
  • Legislation to fund the federal government, including the IRS, through the end of the 2017 fiscal year.
  • Legislation to enhance retirement savings for individuals.
  • Legislation to help citrus farmers, small businesses and more.

Some of these bills, if passed and signed into law, could impact year-end tax planning. The expiring extenders include the popular higher tuition and fees deduction along with some targeted business incentives. If these extenders are renewed, or made permanent, our office can assist you in maximizing their potential value in year-end tax planning.

Another facet of year-end tax planning is looking ahead. President-elect Trump has proposed some significant changes to the Tax Code for individuals and businesses. If these proposals become law, especially any reduction in income tax rates, and are made retroactive to January 1, 2017, your tax planning definitely needs to be reviewed. Our office will work with you to maximize any potential tax savings.

Working with Congress

When the 115th Congress convenes in January 2017, it will find the GOP in control of both the House and Senate, therefore allowing Trump to move forward on his proposals more easily. It remains to be seen, however, what compromises will be necessary between Congress and the Trump Administration to find common ground. In particular, too, compromise will likely be needed to bring onboard both GOP fiscal conservatives who will want revenue offsets to pay for tax reduction, and Senate Democrats who have the filibuster rule to prevent passage of tax bills with fewer than 60 votes. Beyond considering tax proposals one tax bill at a time, it remains to be seen whether proposals can be packaged within a broader mandate for “tax reform” and “tax simplification.”

The information generally available now about President-elect Trump’s tax proposals is based largely on statements by him during the campaign and campaign materials. President-elect Trump will take office January 20, 2017. Between now and then, more details about his tax proposals may be available.

 

As the year draws to a close, it is a good time to take stock of your tax situation and identify possible opportunities to minimize your tax liability. Many of the provisions associated with the American Taxpayer Relief Act of 2012 (ATRA) became effective in 2013, which means they will have an impact on this year’s tax return.

The ATRA extended numerous benefits for middle-income taxpayers that can help minimize your tax bite if you qualify. Tax benefits include many credits and benefits for families, some deductions for state and local taxes and tax credits for making energy-saving improvements to your home. If you are a higher income taxpayer, the ATRA increased your need to plan to lower the impact of higher rates.

We encourage you to contact us at your earliest convenience to discuss how these laws affect your tax situation and develop a strategy that makes sense for you. Among the issues you should be considering:

Health Care Reform

The Affordable Care Act (ACA) has generated a great deal of confusion and concern. Although no tax considerations for individuals are involved, taxpayers who don’t have health care coverage may be subject to a penalty.

Even if you already have coverage, you may want to consider alternatives available in the newly created Health Insurance Marketplace. We can help you assess what reform means to you and offer the advice you need to make the best choices.

New Tax Laws in Effect

  • High-income individuals will likely pay more in taxes under the new law and should consider options for minimizing their burden. The highest individual income tax rate rose to 39.6% in 2013 and taxpayers at this income level also saw the dividend and long-term capital gains tax rates rise from 15% to 20%.
  • In addition, the new 3.8% net investment income tax applies to single taxpayers with adjusted gross income of $200,000 and joint filers earning $250,000. This new tax may affect the effective after-tax return on the sale of your investments, but proper planning may serve to minimize the impact.
  • Although the alternative minimum tax (AMT) originally was aimed at high-income taxpayers, it increasingly has affected more and more middle-income taxpayers over the years. The law indexed the AMT for inflation but the use of certain tax breaks could still subject you to the tax.
  • Phase-outs of personal exemptions and the limitation on itemized deductions have been reinstated. As a result, joint filers with adjusted gross income greater than $300,000 and single taxpayers whose adjusted gross income exceeds $250,000 may see a decrease in both of these deductions.
  • After several years of uncertainty in the estate tax area, the ATRA finally created some permanency. The amount that an heir can inherit without owing estate tax is now set at $5 million and will be indexed for inflation in future years. In addition, the estate tax was raised to 40%. Under the ATRA, taxpayers age 70½ and older can once again make up to $100,000 of tax-free distributions from an IRA directly to qualified charities.

For those who are paying college tuition, there is some good news. Several education-related benefits were extended by the ATRA, including the American Opportunity Tax Credit, which allows eligible taxpayers to claim a tax credit for some higher education expenses. Given skyrocketing tuition costs, families should not overlook these credits and deductions as they plan for college.

We can help you understand your tax situation and determine the best steps to address your tax challenges and any other financial concerns. We are also available after tax season to advise you on the financial strategies and planning decisions that will help you meet your goals. Please don’t hesitate to contact us today to schedule an appointment to begin discussing your options.

article written by: Valley Tax Law

IRS shutdown

On October 1, IRS offices across the country emptied as most of the agency’s employees were furloughed following a lapse in appropriations. Nearly 90 percent of the IRS’s 90,000 employees were furloughed on October 1 after Congress failed to pass legislation to keep the IRS and other federal agencies operating after the end of the government’s fiscal year (FY) 2013. The IRS explained that some functions would continue during the government shutdown, including the processing of tax payments, criminal investigations and some litigation. The IRS reminded taxpayers that the underlying tax law remains in effect, as do their tax obligations during the shutdown.

Employer mandate

In July, the White House announced a one-year delay in the employer shared responsibility payment and employer/insurer reporting under the Patient Protection and Affordable Care Act (Affordable Care Act). The Affordable Care Act generally requires applicable large employers to pay an assessable payment if, among other circumstances, the employer fails to offer full-time employers and their dependents the opportunity to enroll in minimum essential coverage. The Affordable Care Act also requires large employers and many insurers to file annual returns reporting minimum essential coverage. After the White House’s announcement, the IRS issued transition relief and proposed regulations. The IRS reported that it is exploring simplification of employer/insurer reporting.

Individual mandate

The IRS issued final regulations on the Affordable Care Act’s individual shared responsibility requirements in August. The individual mandate generally requires individuals to carry minimum essential health coverage after 2013 unless they qualify for an exemption. An individual who does not carry minimum essential coverage and does not qualify for an exception must pay a penalty.

Repair regulations

In September, the IRS issued long-awaited final regulations on the treatment of costs to acquire, produce or improve tangible property. The final regulations impact any industry that uses tangible property, real or personal, the IRS explained. In the final regulations, the IRS added many taxpayer-friendly provisions, including a revised de minimis safe harbor, a routine maintenance safe harbor for buildings and new safe harbors for small taxpayers. Taxpayers will apply the final regulations to determine whether they can deduct costs as repairs or if they must capitalize the costs and recover them over a period of years.

Same-sex marriage/domestic partners

Following the U.S. Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act (DOMA) ( E.S. Windsor, June 28, 2013), the IRS issued guidance for taxpayers and tax professionals in August. The IRS announced a general rule recognizing same-sex marriage nationwide. Same-sex married couples are treated as married for all federal tax purposes, including income and estate taxes, the IRS explained.

However, the IRS’s treatment of married same-sex couples does not extend to domestic partners. The IRS explained that domestic partners are not considered married for federal tax purposes because they are not married under state law.

Net investment income tax

The Affordable Care Act imposes a 3.8 percent surtax on qualified net investment income under new Code Sec. 1411, generally effective for tax years beginning after December 31, 2012. In August, the IRS released a draft version of Form 8960, Net Investment Income Tax. The IRS is expected to finalize Form 8960 before the start of the 2014 filing season. The IRS is also expected to issue final regulations about the net investment income surtax before year-end to clarify many questions about the scope of the surtax.

Tax reform

The leaders of the House and Senate tax writing committee launched a nationwide tax reform tour during the summer of 2013. Rep. Dave Camp, R-Mich. and Sen. Max Baucus, D-Mont., visited several cities to promote comprehensive tax reform. At the same time, President Obama proposed to eliminate some business tax preferences in exchange for a reduction in the corporate tax rate. President Obama also proposed to tax carried interest as ordinary income.

Tax extenders

After 2013, many popular but temporary tax incentives (known as extenders) are scheduled to expire. They include the state and local sales tax deduction, the teacher’s classroom expense deduction, the research tax credit, transit benefits parity, and many more. Some lawmakers in Congress have proposed to include the extenders in year-end comprehensive tax reform legislation, but leaders in the House and Senate have been cool to this idea. More likely, these incentives will be extended for one or two years in a year-end stand-alone bill or linked to other legislation. Our office will keep you posted of developments on the fate of these valuable tax incentives.

S corps

In August, the IRS announced exclusive simplified methods for taxpayers to request late S corporation elections. The IRS consolidated and expanded earlier guidance for taxpayers requesting late S corporation elections, late Electing Small Business Trust elections, late Qualified Subchapter S Trust Elections, Qualified Subchapter S Subsidiary elections, and certain late corporate classification elections.

Small employer health insurance tax credit

Qualified small employers may be eligible for the Code Sec. 45R tax credit that is designed to help offset the cost of providing health insurance to their employees. In August, the IRS issued proposed reliance regulations on the credit. In tax years beginning after 2013, a qualified small employer must participate in the Small Business Health Options Program (SHOP) to take advantage of the credit. In September, the White House announced a delay in the start of SHOP.

Per diem rates

The IRS announced in September that the simplified per diem rates that taxpayers can use to reimburse employees for expenses incurred during travel after September 30, 2013. The high-cost area per diem increases from $242 to $251 and the low-cost area increases from $163 to $170. In 2012, the IRS did not increase the per diem rates, reflecting a directive from the White House to federal agencies to curb rising travel costs.

Innocent spouse

The IRS updated its equitable innocent spouse relief procedures in September. The IRS explained that the updated procedures are intended to give greater deference to the presence of abuse in a relationship. Some of the factors that the IRS uses to weigh a request for equitable innocent spouse relief were also made more taxpayer-friendly.

Worker classification

The Tax Court held in August that it lacks jurisdiction to review an IRS determination of worker status. The case arose from a request for the IRS to determine a worker’s status. The Tax Court found there was no audit or examination as the IRS was simply responding to the taxpayer’s request.

Collection due process cases

Taxpayers subject to IRS levy are generally entitled to a pre-levy hearing (a collection due process (CDP) hearing or an equivalent hearing). The Treasury Inspector General for Tax Administration (TIGTA) reported in September that it had discovered some concerns about the handling of CDP cases by the IRS. TIGTA discovered delays in the initial processing of requests for CDP hearings.

LILO/SILO transactions

In a case of first impression, the Tax Court applied the substance-over-form doctrine and found that an insurance company’s lease-in, lease-out (LILO) and sale-in, sale-out (SILO) transactions were not leases ( John Hancock Life Insurance Co. (USA), 141 TC No. 1). The Tax Court held that the taxpayer could not deduct depreciation, rental expenses, interest expenses, and transactional costs connected with the transactions.

Domestic production activities deduction

Code Sec. 199 provides a deduction for qualified domestic production activities. In August, the IRS determined that a taxpayer could claim the Code Sec. 199 deduction for in-store photo production activities. However, the taxpayer could not claim the deduction where it only transferred a customer’s photos onto DVDs because those activities were a service and not the manufacturing of a product.

IRS administration

President Obama has proposed John Koskinen to serve as the next Commissioner of Internal Revenue. If confirmed by the Senate, Koskinen would replace IRS Principal Deputy Commissioner Daniel Werfel. Koskinen previously served in leadership roles with the Federal Home Loan Mortgage Corporation (Fannie Mae).

If you have any questions about these or other federal tax developments that may impact you or your business, please contact our office.

As you may know, the health care law – the Patient Protection and Affordable Care Act (PPACA) – requires most individuals (including children and other dependents) to carry health insurance, beginning January 1, 2014. The law also requires the establishment of a health insurance exchange in all states by October 1, 2013. The goal is that exchanges, working with private insurers, will act as a marketplace and provide “one-stop shopping” for individuals and families who may need health insurance or who seek less expensive coverage. A companion program – the Small Business Health Options Program or SHOP Exchange – will assist small businesses that want to offer insurance to their employees.

PPACA amended the Fair Labor Standards Act (FLSA) to require that employers provide each employee with notice about the exchanges. The notice requirement applies to employers that employ one or more employees who are engaged in, or produce goods for, interstate commerce. An employer must have at least $500,000 in business annually. The notice requirement also applies to hospitals, schools, and government agencies.

Employers must provide notice to their existing employees by October 1, 2013, and must provide notice to new employees hired on or after October 1, 2013. Each employee must receive notice, regardless of the employee’s health plan enrollment status and part- or full-time employment status. Notice may be provided in writing or electronically under the Department of Labor’s electronic disclosure rules.

The notice must inform the employee:

  1. Of the existence of the exchange, the services provided by the exchange, and contact information for the exchange.
  2. That he or she may be eligible for a premium tax credit under the Internal Revenue Code if (a) the employer pays less than 60 percent of the cost of health insurance offered by the employee; and (b) the employee purchases health insurance through the exchange.
  3. That an employee who purchases health insurance through an exchange may lose the employer’s (tax-free) contribution to the cost of health insurance offered by the employer.

To satisfy this notice requirement, the Department of Labor has provided model notices on its website, at http://www.dol.gov/ebsa/healthreform/. The website provides one model for employers who offer a health plan to some or all of their employees, and another model for employers who do not offer a health plan. Employers may modify the notice, as long as it meets the content requirements described above.

If you have questions about this requirement or want help to comply with the requirement, please contact our office.