An estimated tax underpayment penalty will not be imposed against taxpayers who underpay their estimated California personal income taxes to the extent that the underpayment was created or increased as a result of the personal income tax rate increases just approved by the voters with the passage of Proposition 30. California law contains a safe-harbor provision for underpayments resulting from any provision of law that is chaptered during and operative for the taxable year of the underpayment. Taxpayers will not be required to make any catch-up payments.

Taxpayers should also be aware that the additional mental health tax imposed on taxpayers with taxable incomes above $1 million is not affected by Proposition 30, and taxpayers will still be liable for the additional 1% tax on taxable income above $1 million.

Finally, taxpayers should be aware that the tax imposed on nonresident individuals participating in composite returns filed by corporations and pass-through entities is imposed at the highest marginal tax rate, which is now 12.3% for the 2012—2018 tax years.

Sellers of California real property should note the impact of the increased tax rates on the alternative withholding rate, under which sellers may choose to compute the amount of withholding based on the reportable gain from the sale rather than on a percentage of the total sales price.

Individuals and non-California partnerships making the election must compute the withholding on the reportable gain using the highest marginal personal income tax rate, which has increased to 12.3%. Withholding on amounts paid by a partnership to its foreign partners, which is at the maximum personal income tax rate, is likewise affected.

As a taxpayer, you are facing what is perhaps an unprecedented set of circumstances – the expiration of the tax rates enacted in 2001, the expiration of more than 150 tax provisions and a tax increase of more than $500 billion overall – that could result in a much higher tax liability when you file your next return.

As we edge nearer to the “fiscal cliff,” as it’s being called, several changes are looming, including (but not limited to) a possible increase on long-term capital gains, restrictions on  itemized deductions, reinstatement of the full payroll tax, and an increase in both the estate tax rate and the number of estates that will be subject to the estate tax. In addition, a new 3.8% surtax on some investment income will become effective Jan. 1, 2013.

Many of these changes will have an impact on small businesses and call for tax planning and possible actions now to soften the potential burden [particularly if you operate as a pass-through entity as many tax increases will affect individuals]. For example, if you are planning to sell appreciated business assets, doing so before the end of 2012 may help avoid the higher capital gains tax. Please come in at your earliest convenience so we can discuss your tax situation and develop a strategy that makes sense for you.

Deductible Business Expenses – How Will You be Affected?

Under Section 179 of the tax code, small businesses can deduct the total cost of some qualifying property in the year it is placed in service, within certain limits, rather than depreciating it over time. The limit on the cost of property (including real property) that can be expensed is now $139,000. The total value of the equipment purchased cannot be higher than $560,000.

As of Jan. 1, 2013, the expensing limit is set to drop and real property, some of which is allowed now, will no longer be included. As a result, businesses may want to consider making equipment or property purchases before year-end to take advantage of the higher expense amount. What may be critical to taking advantage of section 179 election is whether the equipment can be put into service before Jan. 1, 2013.

Also, with the expiration of current 50% first-year bonus depreciation allowance, businesses will have to revert to the modified accelerated cost recovery system to calculate depreciation, meaning that more costs will have to be deducted over time rather than immediately.

Pass-Through Entities

As a pass-through entity, there are several other issues to consider since you pay your business taxes as an individual, including:

  • The return of the phase-out for itemized deductions for a taxpayer who has adjusted gross income over roughly $175,000 as well as a phase-out of personal exemptions for taxpayers with income over a certain level. Each one would limit the amount of allowable deductions and raise the taxpayer’s net taxable income.
  • The lowest individual income tax rate will rise from 10% to 15% and all other individual rates will also edge up.
  • Due to an expiring Bush-era tax cut, a broader marriage penalty will mean higher tax bills for married couples. Instead of the current 200%, the standard deduction for married couples filing jointly will fall to 167% of the standard deduction for single taxpayers.
  • The alternative minimum tax (AMT) will apply to 2012 income for many more Americans if not indexed for inflation. At the end of 2011, the AMT exemption was $74,450 for married taxpayers and $48,450 for singles. It is set to fall to $45,000 for joint filers and $33,750 for single filers. Taxpayers are also set to lose the ability to offset their AMT bite with personal tax credits.
  • The credit for Research and Experimentation Expenses, worth up to 20% of qualified costs, expired at the end of 2011 and has not been extended.

We also want to remind you that business owners and self-employed individuals need to:

  • Obtain tax identification numbers for all the individuals to whom they send Forms 1099-Misc
  • Closely review their estimated tax calculations in light of any tax changes that occur

Azran Financial can help you review those calculations to understand the effect these possible increases could have on your tax situation. Please contact us today at (310) 691-5040 or (818) 691-1234, or e-mail us at [email protected] to schedule an appointment to develop strategies to minimize the impact of this uncertain tax climate on your business.

The IRS has provided guidance which clarifies that an arrangement that recharacterizes taxable wages as nontaxable reimbursements or allowances does not satisfy the business connection requirement for accountable expense reimbursement plans.

In general, employee business expense reimbursements that are paid through an employer’s accountable expense reimbursement plan are excluded from the employee’s adjusted gross income. An accountable plan basically requires employees to submit receipts for expenses and repay any advances that exceed substantiated expenses. Amounts paid to employees through an accountable plan are not taxable compensation. Thus, they are not subject to federal or state income taxes or Social Security taxes, or employer payroll taxes and withholding.

On the other hand, business expense reimbursements paid through a system that does not meet the specific requirements for accountable plans are considered paid under a nonaccountable plan, and are treated as taxable compensation. An employer can have a reimbursement plan that is considered accountable in part and nonaccountable in part.

A reimbursement plan must meet three requirements in order to be considered an accountable expense allowance arrangement

  1. reimbursements must have a business connection;
  2. reimbursements must be substantiated; and
  3. employees must return reimbursements in excess of expenses incurred.

An arrangement satisfies the business connection requirement if it provides advances, allowances, or reimbursements only for business expenses that are allowable as deductions, and that are paid or incurred by the employee in connection with the performance of services as an employee of the employer. Therefore, not only must an employee actually pay or incur a deductible business expense, but the expense must arise in connection with the employment for that employer.

The business connection requirement will not be satisfied if a payor pays an amount to an employee regardless of whether the employee incurs or is reasonably expected to incur deductible business expenses. Failure to meet this reimbursement requirement of business connection is referred to as wage recharacterization because the amount being paid is not an expense reimbursement but rather a substitute for an amount that would otherwise be paid as wages.

The business connection requirement will not be satisfied if a payor pays an amount to an employee regardless of whether the employee incurs or is reasonably expected to incur deductible business expenses. Failure to meet this reimbursement requirement of business connection is referred to as wage recharacterization because the amount being paid is not an expense reimbursement but rather a substitute for an amount that would otherwise be paid as wages.

The IRS guidance includes four situations, three of which illustrate arrangements that impermissibly recharacterize wages such that the arrangements are not accountable plans. A fourth situation illustrates an arrangement that does not impermissibly recharacterize wages. In this arrangement, an employer prospectively altered its compensation structure to include a reimbursement arrangement.

Because of the difference in tax treatment of reimbursements under an accountable plan versus a nonaccountable plan, it is important to review your reimbursement policies. Please call our office for an appointment to discuss your options under this IRS guidance.

An S-corporation, such as yours, is a pass-through entity that is treated very much like a partnership for federal income tax purposes. As a result, all income is passed through to your shareholders and taxed at their individual tax rates. However, unlike a C corporation, an S corporation’s income is taxable to the shareholders when it is earned whether or not the corporation distributes the income. Because an S corporation has a unique tax structure that directly impacts shareholders, it is important for you to understand the S corporation distribution and loss limitations, as well as how and when items of income and expense are taxed, before developing your overall tax plan.

In addition, some S corporation income and expense items are subject to special rules and separate identification for tax purposes. Examples of separately stated items that could affect a shareholder’s tax liability include charitable contributions, capital gains, Sec. 179 expense deductions, foreign taxes, and net income or loss related to rental real estate activities.

These items, as well as income and losses, are passed through to the shareholder on a pro rata basis, which means that the amount passed through to each shareholder is dependent upon that shareholder’s stock ownership percentage. However, a shareholder’s portion of the losses and deductions may only be used to offset income from other sources to the extent that the total does not exceed the basis of the shareholder’s stock and the basis of any debt owed to the shareholder by the corporation. The S corporation losses and deductions are also subject to the passive-activity rules.

Other key points to consider when developing your comprehensive tax strategy include:

the availability of the Code Sec. 179 deduction at the corporate and shareholder level;

  1. reporting requirements for the domestic production activities deduction;
  2. the tax treatment of fringe benefits;
  3. below-market loans between shareholders and S corporations; and
  4. IRS scrutiny of distributions to shareholders who have not received compensation.

We can assist you in identifying and maximizing the potential tax savings. Please call our office at (310) 691-5040 or (818) 691-1234 or e-mail us at [email protected] to arrange an appointment.