Month: March 2018

Preface: Partnerships require courage, collaboration, trust, risk and authenticity. These business pillars lead to a long and successful business relationship, e.g. partnership.

Business Partnerships

Credit: Donald J. Sauder, CPA, CVA

Conflicts from personality differences or value differences, result in stress that will reach beyond the business partnership; and the stress will usually interfere with healthy relationships with employees and immediate family. Then again, is that any more stress than being an employee? Maybe. Because the cost of a partnership dispute is not only emotional, but financial; and since can employees feel the stress, it can be double concern.

Trust is a pillar of any highly successful partnership. Long-lasting, enduring trust keeps partners working together for life-time. Every successful partnership, has a substantial of trust among the partners. Honesty, Integrity, Ethics. Trusted character results in respect. If you look at the best examples of business partnership, the recurring theme is pillared trust, gilded with collaboratively supportive talents that power the partners individual respect for each other’s unique and differing strengths. That respect for the unique contributions of each partner’s skills, builds the business supported with a pillar of trust that accomplishes lasting business partnership success. The eye has need for the mouth, and the mouth for hand. Again, the best domestication of successful partnerships is established on the appropriate trust and respect among the partners.

One item of note, is the lack of educational efforts towards preventing partnership conflicts and disputes before they occur. Firstly, you have a good idea right now if you’d be a good partner. If you have doubts that business collaboration is for you, or you cannot get along with your current boss, then you’ve answered your question relatively honestly. Periods of long silence when discussing key circuits of a partnership are also telling. Some people have great opportunities with great ideas for a great business, and never realize those dreams and opportunities because they cannot implement solo, and are afraid of sharing with partners for various reasons.

Jim Collins in the book Good to Great, uses the metaphor of getting the right people on the bus. It is applicable to business partnerships too. “You are a bus driver. The bus, your company, is at a standstill, and it’s your job to get it going. You must decide where you’re going, how you’re going to get there, and who’s going with you. Most people assume that great bus drivers immediately start the journey by announcing to the people on the bus where they’re going—by setting a new direction or by articulating a fresh corporate vision. In fact, leaders of companies that go from good to great start not with “where” but with “who.” They start by getting the right people on the bus, the wrong people off the bus, and the right people in the right seats. And they stick with that discipline—first the people, then the direction—no matter how dire the circumstances”.

If you dislike the idea of sharing driving responsibilities, or don’t want to drive the bus, then you don’t want to be a partner in a partnership.

 

God blesses all those who believe in him. May the light of faith in God grow each day; and may the miracle of Easter bring you renewed hope, faith, peace and joy. Wishing you a pleasant and blessed Easter!

May God Bless,

Sauder & Stoltzfus, LLC

Preface: Partnerships require vision, collaboration, trust, risk and effort. These business pillars lead to a long and strategic business relationship, e.g. a successful partnership.

Business Partnerships

Credit: Donald J. Sauder, CPA, CVA

Business partnerships are alike to a chorus; a key conductor is always required. Secondly, someone must study the scores. Thirdly, scheduling, auditions, and promotion of the concert(s) are par for the course. It requires a vision, planning, effort and energy. And the more experienced the conductor, the more pleasant it is for everyone – the choir and audience.

The probabilities of succeeding in business with a business partner are much greater, than the probabilities of succeeding without one. Yet, business partnerships may appear from a distance to be a easier and effortless climb to the pinnacle of entrepreneurial success. At the start, all you think about is the scenery from the top. Increasingly, studies show that the most successful companies are partnerships with more than one owner. In fact, supposedly less than 10% of today’s top performing entrepreneurial ventures are sole proprietorships. That says more than 90% of top companies have multiple owners, e.g. they are partnerships.

Knowing beforehand what a partnership venture involves can be helpful. Before entering any partnership agreement, you need to ask yourself “Why should I be partner?” You’ll need to share more than profits. You’ll need to share more than decisions. You’ll need to share emotions, risks, and the work. A partnership is like a business marriage – sometimes too easy to get into. So, if you’re planning a business and thinking about entering a business partnership, or you are working in business and can be an owner, being forewarned is being forearmed.

Are there better options than a true partnership? Often partnership provide opportunities that are not available as a sole proprietor, i.e. walking the path alone while developing a business venture. Collaboration has substantial, proven benefits with in strategy formation, specific delegation of performance in tasks, project and administrative responsibilities, and unique resource allocation, e.g. one partner provides the resources, i.e. property, or capital, and another partner the time or expertise to leverage those resources.

Partners share decisions and burdens, and strengths and weaknesses. The personal values of partners are most crucial to a business partnership. If your personal values do not align with your business partner, you’d be advised to be cautious. Partner conflict and disagreements are inevitable; even with success after success, you need common ground with similar values to succeed. If your personal values clash with your other partners, the business marriage will become too stressful to support sustained and successful collaboration.

Proper planning before entering partnership, even if it is with a family member, is advised. Talking with an experienced advisor who can guide and assess with your partnership decision cannot be over emphasized as prudent to appropriate partnership due diligence. You need to count the cost, assess risks – value conflict, or neglected agreements of sharing responsibility. Don’t enter a partnership blissfully. Be prepared for the risks and responsibility beforehand, and the potential conflicts that can arise.

It pays to invest in your business partnership early with a “hot seat” questions session. The more strategic your business, the more invaluable that planning. Just don’t get stuck in the planning process; you ultimately need to implement effectively. “We would estimate, very roughly, that a master has spent perhaps 10,000 to 50,000 hours staring at chess positions.” Outliers: Herbert Simon and William Chase.

 

Preface: Business tax and business tax planning require thorough analysis of all facts and special circumstances applicable to the factual tax details. Deference to appropriate tax planning expertise in all business tax scenarios is well-advised.

S-Corporation Basis Rules

Credit: Donald J. Sauder, CPA, CVA

Another tax risk to entrepreneurs is S-Corporation basis. Tracking basis in S-Corporation stock is not as easy as it may appear. Key to S-Corporation stock basis, is the amount of a pass-through losses from an S-Corporation to a stockholder from the K-1, that can be deducted from “at-risk” basis.

Consider the instance and the plight of a taxpayer who purchases S-Corporation stock in a sale transactions from a long-time friend. The stock is valued at $600,000 for a 100% interest. The taxpayer signs a note for a non-recourse 100% share of the $600,000 value on the corporation, in a leveraged stock purchase.

During the first year of stock acquisition, the taxpayer with the new ownership in the corporation decides to expand corporate activity. They borrow debt with a bank loan to invest in new trucks, equipment and machinery. The taxpayer applies the bonus depreciation rules applicable in the Tax Cuts and Jobs Act. This permits 100% expensing of the assets, i.e. new equipment purchased. A $325,000 loss results for the corporation from the bonus depreciation benefit to the immediate tax year. The Form 1120S K-1 pass-through loss is intended to be deducted against other non-passive income from the taxpayer’s multiple business interests on the taxpayers Form 1040 taxes.

Because the loan is non-recourse, e.g. there is no “at-risk” basis under Sec. 465 of the Internal Revenue Code; therefore, the loss is a disallowed deduction. If the IRS audits the taxpayers personal tax filing, and the basis schedules are scrutinized along with loan documents the tax risk is substantial. Should the auditor disallow the S-Corporation loss from the K-1 because of the non-recourse feature, the corresponding tax on audit re-adjustment would likely not be lower than 35% of the planned tax deduction for federal tax purposes.

Next, consider the tax scenario where a family member loans $300,000 to finance a sale of family S-Corporation interest. The creditor family member owns 51% of the S-Corporation after the stock certificates are updated. The loan trips the “at-risk” rules with a disqualified interest clause under IRC Sec 465. from the related party definition in IRC Sec 267(b) of common control. If the business passes a loss to the new shareholder family member, they would not be “at-risk” to deduct any pass-through loss. Usually substance over form will govern the day during an IRS audit and scrutiny of the “at-risk” basis. If losses are deducted on the stock purchased with a personal family loan, or non-recourse, the taxpayer is subject to outlier tax risks. Debt basis rules on S-Corporations equip IRS auditors with opportunity from the narrow band of “at risk” IRS definitions. You likely never guessed what your tax accountant knows, and how valuable it can be to your business. Proper respect for more than “back of the napkin” tax planning pays.

S-Corporation basis is also applicable on sales of S-Corporation stock too. Appropriate tracking of stock basis schedules on all S-Corporation tax filings, not just the costs of purchases of additional shares of stock, are a rudimentary task on an accurate S-Corporation tax filing. Stock basis and “at risk” basis should be tracked closely for S-Corporation shareholders; it is relevant to the taxable implications on loss deductions, in addition to future sales of the S-Corporation stocks. Often taxpayers are unaware when S-Corporation basis is not tracked by their tax preparers. The fact is that accurately tracked S-Corporation basis is the responsibility of the stockholder or K-1 recipient, e.g. if you purchase CNH stock, neither the corporation nor your tax preparer are responsible to track your stock basis at purchase. Keeping records of adjustments to basis in S-Corporation stock will provide helpful detail for all future stock transactions and the applicability to calculating taxable gains and losses.

Business tax and business tax planning require thorough analysis of all facts and special circumstances applicable to the factual tax details. Deference to appropriate tax planning expertise in all business tax scenarios is well-advised. This blog is written for informational purposes only, and is not to be construed as tax or accounting advice. Talk with your experienced tax advisor when making any business tax decisions.

Donald J. Sauder, CPA is a founding member of Sauder & Stoltzfus, LLC, the entrepreneurs CPA firm in Ephrata, PA, providing clients with tax, accounting, business valuation, payroll, bookkeeping and peripheral CPA services. He has more than 9 years of public accounting experience, and has been certified as a public accountant (CPA) in the State of Pennsylvania since 2010. He is a member with the National Association of Certified Valuators and Analysts (NACVA) and holds the certified valuation analyst (CVA) credential. Donald can be reached by phone at 717-701-5368; or via email; dsauder@saudercpa.com.

Preface: Business tax and business tax planning require thorough analysis of all facts and special circumstances applicable to the factual tax details. Deference to appropriate tax planning expertise in all business tax scenarios is well-advised. 

Disguised Sales Rules with Partnerships

Credit: Donald J. Sauder, CPA, CVA

In tax planning, one of the gravest mistakes is to automatically assume that the factual situations of a similar tax plan are applicable to your specific tax situation. It is often unique from situation to situation, and business to business. With features like qualified liabilities determination, and contingent liabilities, tax rules have specific fact-patterns applicable to what most business owners considers as one word – debt. In this article, we would like to consider two often overlooked, and ambiguous tax risks 1) disguised sales rules (DSR) in partnerships, and 2) the S-Corporation K-1 rules of stock basis.

Facts and circumstances of the tax rules applicable to disguised sales occur if a transfer of property by a partner to a partnership occur, followed with a subsequent transfer of money or other consideration by the partnership transferred back to the contributing partner. This is the tax definition of a disguised sale in whole, or in part. Applicable to facts and circumstances are following Internal Revenue Code (IRC) rules:

1. The timing and amount of subsequent transfer are determinable with reasonable certainly at the time of an earlier transfer
2. The transferor has a legally enforceable right to subsequent transfer
3. The partners right to receive the transfer of money or other consideration is secured in any manner, considering the period during which it is secured
4. That any person has made or is legally obligated to make contributions to the partnership in-order to permit the partnership to make the transfer of money or other consideration
5. That any person has loaned or has agreed to loan the partnership the money or other consideration required to enable the partnership to make the transfer.
6. That the partnership hold money or other liquid assets beyond the need of business to make transfers
7. That the partner has no obligation to return or repay the money or other consideration to the partnership.

 

Consider the facts of real estate entrepreneurs Amos and Ulrich. They decide to start investing in farm land and organize a partnership coined “Farm Land Plains.” Amos transfers 50 acres in the “North Farm Property” that he owns personally to the partnership, in exchange for a 45% ownership interest. At the time of the transfer the “North Farm Property” has a fair market value of $400,000, and adjusted basis of $120,000. Immediately after the transfer of the “North Farm Property” to the partnership, Farm Land Plains distributes $300,000 cash to Amos, financed by a recourse loan. The Farm Land Plains partnership, next borrows $500,000 to purchase additional crop acreage. With the partnership cash distribution, Amos has an immediate taxable capital gain of $210,000. It is disguised sale, with tax implications, often unbeknownst to many partners.

When Ulrich takes the partnership books to the tax accountant for the annual tax filing preparation, the cash distribution is never scrutinized. In the following months, Ulrich receives an IRS tax notice with regards to the partnership. At the initial meeting the IRS auditor inquiries about the initial year filing of Form 1065, and property contributions and corresponding cash distributions. The IRS auditor asks Ulrich if he is familiar with the IRS disguised sales rules (DSR). Ulrich responds that they had a tax accountant prepare the partnership tax filing, and he is unaware of any reason they have a tax risk with an appreciated capital asset.

Now let’s consider a different factual tax scenario. Amos and Ulrich organize a partnership AU Real Estate. Amos transfers undeveloped land to AU Real Estate with the partnership intent of developing the property. The land Amos transfers and contributes to AU Real Estate holds a fair market value of $2,000,000 and tax basis of $1,000,000. The partnership agreement provides that at the completion of a triple net lease building on the new property, AU Real Estate will distribute $1,800,000 to Amos, financed from a construction loan. Should the distribution occur with-in two years of the contribution of land, the partnership has a disguised sale; and serious tax implications. These are examples of the types of tax traps that catch the unwary.

This is only a partial list of factual items relevant to disguised sales rules (DSR). Typically, the rules of general distributions from partnerships will be subject to the disguised sales rules (DSR) if the transactions meet the definition of a “sale”. Especially applicable in the context of partnership liquidations and subsequent contribution of assets to a new partnership, i.e. LLC, the disguised sales rules (DSR) are only item, that can create substantial disruptive risks in what appears to say be an easy real estate partnership tax filing.

Preface: This blog is intended to address tax audit concerns regarding the IRS’s continuing campaign to identify and shut down tax shelters, many of which involve transfers of rights or property to foreign entities. In recent years, offshore asset reporting has become one of the IRS’s primary areas of focus as it seeks to increase tax revenue.

The Inherent Risks with Dubious Tax Practices

In 2010 Congress addressed the significant issue of international tax compliance, enacting the Foreign Account Tax Compliance Act (FATCA). FATCA imposes more stringent reporting requirements and, in many cases, increased tax liability on U.S. taxpayers—many of whom are corporations—with investments in offshore accounts.  Since then, the Treasury Department and the IRS have issued new regulations to implement FATCA and its reporting and disclosure regime.

The IRS is cracking tax shelters in other ways as well. Many employees of publicly traded companies are taking advantage of the tax whistleblower provisions of the Tax Relief and Health Care Act of 2006, which often enable the IRS to provide a hefty reward to those who report tax evasion.  Additionally, the Treasury Inspector General for Tax Administration has recommended that the IRS improve its audits of small corporations, meaning that corporations with assets of $10 million or less may begin to feel a squeeze from examiners in upcoming tax years.

FATCA

In addition to requiring certain U.S. taxpayers holding financial assets outside the United States to report them to the IRS, FATCA generally require foreign financial institutions to report certain information about financial accounts held by U.S. taxpayers or foreign entities in which U.S. taxpayers hold a substantial ownership interest. Non-compliant foreign financial institutions could be subject to a 30% withholding tax on all U.S. sourced payments.

The IRS has stressed its intent that FATCA be a reporting regime rather than a penalty regime, and that it is eager to work with industry professionals and experts into ease the law into implementation. Nevertheless, the effect of FATCA on corporate offshore tax shelters is meant to be severe on the numerous abusive tax shelters that take advantage of lower or non-existent corporate income tax rates abroad through the dubious transfer or licensing of assets.

Other Initiatives

The whistleblower rules encourage individuals to report any tax abuses or corporate fraud through generous reward offers. In 2012, the IRS paid out its largest award, more than $100 million, to an individual who disclosed tax evasion by a foreign bank.

The IRS has also maintained its campaign against dubious accounting and law firms that design or promote tax shelters. The “anything goes” attitude of past years ago is a long faded memory. And while the IRS has been enforcing the law, Congress is looking to close as many dubious loopholes as possible to prevent tax evasion. IRS examiners are still directed to look for the checklist of characteristics common in abusive corporate tax shelters. These include:

• A reported transaction has no business purpose or economic substance other than to minimize taxes;
• Investments made late in the tax year that indicate there may be deductions for prepaid expenses that are not allowable.
• A large portion of the investment made in the first year indicates the transaction may have been entered into for tax purposes rather than economic motivation.
• A loss exceeding a taxpayer’s investment indicates the possibility of a nonrecourse note.
• If the burdens and benefits of ownership have not passed to the taxpayer, the parties have not intended for ownership of the property to pass at the time of the alleged sale.
• A sales price that does not relate comparably to the fair market value of the property indicates the value of the property has been overstated.
• If the estimated present value of all future income does not compare favorably with the present value of all the investment and associated costs of the shelter the economic reality of the investment may be questionable.

Entrepreneurs should be concerned that the IRS’s focus on dubious  tax shelters will mean increasing scrutiny of other aspects of their business operations as well. Others want to undertake internal protective audit steps to set up a strategy against IRS involvement before the IRS sends out audit letters. If you would like a further analysis of how the IRS targets on tax shelters may affect you and your business, directly or indirectly, please do not hesitate to call. You are now aware that dubious tax practices are increasingly subject to audit risk.