Sunday, May 15, 2011

Reverse Mortgages - Estate Planning and Income Taxes

A reverse mortgage is a loan program in which the homeowner receives payments from the lender rather than making payments on a loan.

To qualify, you must be at least 62 years old and own your home free and clear, or have a very small loan balance relative to the value of your home. A formula is used to calculate the amount of money that can be loaned against your home based on your life expectancy and the amount of equity in your home.

The older you are and the more equity you have, the larger the loan amount. The idea of the reverse mortgage program is to give senior citizens money to live on without being forced to sell their home when their equity runs out.

Homeowners can receive money from the reverse mortgage in monthly payments, or, if they prefer, they can get a lump sum of cash.

The monthly cash payments (or lump sum) that you receive from a reverse mortgage are not taxable income because you (or your heirs) have to pay the money back when the home is sold. It is just like any other kind of loan. Borrowed money is not "income" because it is a debt obligation that has to be repaid.

Now, let's look at how a reverse mortgage affects your interest deduction. We all know that the interest paid on your home mortgage is tax deductible each year. It is the last great tax shelter available to the average American.

But what happens when you don't pay your mortgage interest each year, as is the case with a reverse mortgage?

You don't lose the interest deduction, you merely have to wait until the interest is actually paid before you can claim it.

For example, if a homeowner had accumulated $60,000 worth of unpaid interest on his reverse mortgage and decided to sell his house, he could claim a $60,000 mortgage interest deduction for the tax year in which the home sale closed.

Some homeowners use this feature of reverse mortgages as an estate planning tool. Financial planners sometimes use reverse mortgages to reduce the estate tax burden on their clients.

Even though no payments are required on a reverse mortgage, financial planners sometimes have their clients pay down some or all of the accumulated interest in tax years when it is advantageous for them to do so.

In some cases, an estate planner will have his clients take out a reverse mortgage and use the proceeds to buy a single payment "last-to-die" insurance policy that would pay off the reverse mortgage. The money left over would then be given to the heirs.

When the estate is settled, the tax-free insurance proceeds would pay off the reverse mortgage principal, and the accrued mortgage interest will be used to offset estate taxes. So, in essence, the estate planner has moved money from the taxable pile to the nontaxable pile by acquiring a reverse mortgage at no cost to his client and providing some cash up front for a gift to the children or other heirs.

As you can see, the tax consequences of a reverse mortgage can get a little complicated if you are using sophisticated estate planning strategies, so please consult a professional tax adviser before making any final decisions.

If you are just using a reverse mortgage to generate cash to live on until you pass on, however, you won't have to worry about the income tax consequences. The unpaid interest will be deducted from the sale or refinance of your home by your heirs.

Employee versus Independent Contractor

 
The IRS is stepping up audits on employee classification. It is very important to make the proper decision about employee classification.

If an employee is incorrectly identified as an independent contractor you may be liable for the self employement taxes that you should have paid plus penalties.If you are unsure don't feel bad you are in common company. Congress’ General Accounting Office (GAO) has estimated that 38 percent of employers examined misclassified "independent contractors". Both WalMart and FedEx have lost lawsuits or paid penalties relating to misclassification of employees.

The general rule is that an individual is an independent contractor if , the person for whom the services are performed have the right to control or direct only the result of the work and not the means or methods of accomplishing the result.In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.

Facts that provide evidence of the degree of control and independence fall into three categories:
Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Behavioral control refers to facts that show whether there is a right to direct or control how the worker does the work. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work.

The behavioral control factors fall into the categories of:
Type of instructions given
Degree of instruction
Evaluation systems
Training

Types of Instructions Given
An employee is generally subject to the business’s instructions about when, where, and how to work. All of the following are examples of types of instructions about how to do work.
When and where to do the work.
What tools or equipment to use.
What workers to hire or to assist with the work.
Where to purchase supplies and services.
What work must be performed by a specified individual.
What order or sequence to follow when performing the work.

Degree of Instruction
Degree of Instruction means that the more detailed the instructions, the more control the business exercises over the worker. More detailed instructions indicate that the worker is an employee.  Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
Note: The amount of instruction needed varies among different jobs. Even if no instructions are given, sufficient behavioral control may exist if the employer has the right to control how the work results are achieved. A business may lack the knowledge to instruct some highly specialized professionals; in other cases, the task may require little or no instruction. The key consideration is whether the business has retained the right to control the details of a worker's performance or instead has given up that right.

Evaluation System
If an evaluation system measures the details of how the work is performed, then these factors would point to an employee.
If the evaluation system measures just the end result, then this can point to either an independent contractor or an employee.

Training
If the business provides the worker with training on how to do the job, this indicates that the business wants the job done in a particular way.  This is strong evidence that the worker is an employee. Periodic or on-going training about procedures and methods is even stronger evidence of an employer-employee relationship. However, independent contractors ordinarily use their own methods.

Financial control refers to facts that show whether or not the business has the right to control the economic aspects of the worker’s job.
The financial control factors fall into the categories of:
Significant investment
Unreimbursed expenses
Opportunity for profit or loss
Services available to the market
Method of payment

Significant investment
An independent contractor often has a significant investment in the equipment he or she uses in working for someone else.  However, in many occupations, such as construction, workers spend thousands of dollars on the tools and equipment they use and are still considered to be employees. There are no precise dollar limits that must be met in order to have a significant investment.  Furthermore, a significant investment is not necessary for independent contractor status as some types of work simply do not require large expenditures.

Unreimbursed expenses
Independent contractors are more likely to have unreimbursed expenses than are employees. Fixed ongoing costs that are incurred regardless of whether work is currently being performed are especially important. However, employees may also incur unreimbursed expenses in connection with the services that they perform for their business.

Opportunity for profit or loss
The opportunity to make a profit or loss is another important factor.  If a worker has a significant investment in the tools and equipment used and if the worker has unreimbursed expenses, the worker has a greater opportunity to lose money (i.e., their expenses will exceed their income from the work).  Having the possibility of incurring a loss indicates that the worker is an independent contractor.

Services available to the market
An independent contractor is generally free to seek out business opportunities. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.

Method of payment
An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time. This usually indicates that a worker is an employee, even when the wage or salary is supplemented by a commission. An independent contractor is usually paid by a flat fee for the job. However, it is common in some professions, such as law, to pay independent contractors hourly.

Type of relationship refers to facts that show how the worker and business perceive their relationship to each other.

The factors, for the type of relationship between two parties, generally fall into the categories of:
Written contracts
Employee benefits
Permanency of the relationship
Services provided as key activity of the business

Written Contracts
Although a contract may state that the worker is an employee or an independent contractor, this is not sufficient to determine the worker’s status.  The IRS is not required to follow a contract stating that the worker is an independent contractor, responsible for paying his or her own self employment tax.  How the parties work together determines whether the worker is an employee or an independent contractor.

Employee Benefits
Employee benefits include things like insurance, pension plans, paid vacation, sick days, and disability insurance.  Businesses generally do not grant these benefits to independent contractors.  However, the lack of these types of benefits does not necessarily mean the worker is an independent contractor.

Permanency of the Relationship
When a worker is hired with the expectation that the relationship will continue indefinitely, rather than for a specific project or period, this is generally considered evidence that the intent was to create an employer-employee relationship.

Services Provided as Key Activity of the Business
If a worker provides services that are a key aspect of the business, it is more likely that the business will have the right to direct and control his or her activities.  For example, if a law firm hires an attorney, it is likely that it will present the attorney’s work as its own and would have the right to control or direct that work.  This would indicate an employer-employee relationship.

There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination.

When someone is unsure of the status they can file form SS-8 with the IRS and they will make the determination. This can take up to 6 months but if you anyone in a business that continually hires the same types of workers to perform particular services may want to consider this option.

Saturday, May 14, 2011

New Tax Breaks for the Business Use of a Car

Are you buying a new car for business? Uncle Sam has tax deals for you. This year, there's an even bigger break than in the past for buying a behemoth gas-guzzler. If you're buying a smaller car, there's a new reason to buy one costing more than $31,000 instead of less. There's also a new nudge for leasing over buying.
That's the upshot of recent guidance from the IRS concerning two changes in the law Congress made last year. The rules apply to cars bought after Sept. 8, 2010, and before Jan. 1, 2012. ... Here's a quick review of rules old and new.
• What's deductible. Unless a car is used 100% for business, expenses aren't fully deductible. Taxpayers must figure the percentage of business versus personal use and apply the business percentage to total expenses to arrive at the deduction. ...
• Other deductions. Unreimbursed tolls and parking fees are deductible as a miscellaneous expense (by employees) or on Schedule C (by the self-employed), as long as they aren't for commuting.
• How to figure the deduction. Taxpayers usually have a choice: Either deduct a flat 51 cents per business mile (in 2011), or write off IRS-approved depreciation plus actual costs for gas, maintenance and insurance, among other things. ... Using the flat allowance might make sense for a hybrid owner who uses little gas, while actual costs often work best for those with less-efficient cars.
• Depreciation deductions. ... The bottom line: This year Congress is running a large "bonus depreciation" special on cars weighing more than 6,000 pounds, such as the Cadillac Escalade and Nissan Armada. Taxpayers may deduct 100% of the car's cost in the first year—subject to the personal use disallowance, of course. Even better: If this deduction creates a loss, it may be used against other wages or carried back to generate a refund. ... Depreciation is far less generous for cars weighing less than 6,000 pounds. Cars costing more than $15,300 get first-year depreciation of $11,060 this year, but those costing more than $30,625 get more in years two through six than those costing less.
• Buy or lease? ... [E]xperts say to look hard at leasing if you want an expensive car weighing less than 6,000 pounds and plan to replace it every two years or so.

Friday, May 13, 2011

Five Audit-Proofing Tax Tips for the Self Employed

When you’re self employed filing a Schedule C with your tax return, your chances of being audited are greater than if you were a wage earner.
Why? Because the IRS suspects that you will attempt to either hide income or write off personal expenses as business deductions. Let’s face it, if all you are reporting on your tax return is income from a W2, what’s there to audit? Even if you input the numbers wrong, the IRS will match it up with the copy it got from your employer and send you a correction letter along with an adjustment to your refund or tax liability. According to various reports, audits of the self-employed are on the rise, here’s what you can do to keep the taxman off your back:
1. Use a professional software system to track the income and expenses of your business. Your credibility increases in the eyes of an IRS agent if your tax return is based on professionally-prepared financial statements, especially if maintained by an outside firm. You can use the same software to track your personal income and deductible expenses as well.

2. Document red flags. You are allowed to deduct all “ordinary and necessary business expenses” which translates into thinking in terms of “Would I make this purchase if I didn’t have this business?” If the answer is no, than you more than likely have a deductible business expense. But it’s important to know the rules and to have proper documentation to substantiate the deduction. Some expenses receive considerably more scrutiny than others.
The IRS loves to investigate automobile expenses as taxpayers are required to keep a mileage log, which can be a lot of work. Even though I have met only client who kept a log, I’ve represented clients in numerous audits and found other ways to substantiate the deduction to the satisfaction of the auditor. Here are some tips:
- If you use an appointment book or calendar, save it along with your copy of the tax return. A mileage log can be reconstructed from those pages.
- Save vehicle repair receipts as the odometer reading is recorded on them and total mileage for the year can be extrapolated if there is more than one receipt.Record your beginning and ending odometer reading in your appointment book on Jan. 1 and again on Dec. 31.
- Travel, meals and entertainment expenses are close runner ups when it comes to scrutiny. Go to www.irs.gov and read Publication 463 to determine what you can and can’t deduct. Here’s what you need to know:
- Travel, especially to vacation destinations like Las Vegas or Hawaii should be documented with more than purchase receipts to prove business intent. Save things like flyers advertising the trade show or the continuing education seminar or letters from prospective clients at that location in your tax file to prove the purpose of the trip was primarily for business.
- On receipts for meals and entertainment mark the name of the person entertained and a brief note describing the business purpose.With more people working remotely, home office expenses have become another favorite target of the IRS. Here’s what you should know:
- Take photographs of the house and the office area. The photos will serve two purposes: they will show the proportion of the business area compared to the personal living area to substantiate the amount of space claimed as well prove that there is in fact a business area.
- Know the rules: The home office must be your principle place of business and must be used exclusively and on a regular basis for business purposes.

3.) Document sources of all income. If you are audited, the first thing the IRS agent will do is add up all of the deposits from your personal and business bank accounts. If more money went into the bank than was declared on your tax return, the agent will want to know where the money came from and whether or not the income is taxable. If you use QuickBooks for your personal and business books, you will automatically tie out this income, but you still need proof. If the income you record is not taxable (e.g. gifts, inheritances, loans, transfers from personal funds) keep a copy of the check or document that accompanies the income to prove the source is not taxable.

4.) Let a professional prepare your income tax return. Self-prepared returns are more likely to be audited because the IRS thinks a nonprofessional has limited knowledge. Tax law is complex. And if you are self-employed, no matter how small your business, your tax return is now a complex creature.

5. Rethink your legal form. Corporations, LLCs, and partnerships are less likely to be audited, but that should not be the sole reason to incorporate. Discuss this option with a tax professional and your attorney before making any changes.

Monday, May 9, 2011

How to Prevent Financial Fraud at Your Business

Small business owners reported $8 billion in fraud losses in 2010, mainly related to hacked credit cards and bank accounts, according to a new study of about 900 small business owners and self-employed individuals by Javelin Strategy & Research, a research firm in Pleasanton, Calif. Of that $8 billion, some $5.43 billion was out-of-pocket expenses incurred due to fraud, including lost business, legal fees, and insurance payouts, Just as a general rule: As the economy drops, the fraud rate increases, and as the economy increases, the fraud rate decreases. So part of the decline is due to increasing sales and GDP in late 2010. Part is unfortunately due to the fact that some small and midsize businesses closed during the economic downturn.
But there's also been improved education about credit-card fraud, and the larger small companies are instituting best practices in line with payment card industry compliance and tighter regulation. There was also a decline in existing card fraud, which small businesses are about 50 percent more likely to suffer than consumers.
The credit-card number seems to be a higher-value target for fraudsters, who may view debit cards as more secure or perhaps inherently more risky to put into play.
There is a substantial gap between reported losses from fraud and the total cost of dealing with a fraud. It seems that cost has never been completely accounted for. It's a huge amount of dollars that's lost by financial institutions, card issuers, merchants, and insurance companies due to a fraud that's perpetrated.
For instance, the state of Texas announced this year that an unencrypted data file containing 3.5 million records was left inadvertently on a publicly accessible server. The records included names, addresses, Social Security numbers, and driver's license numbers as well as dates of birth.
What happens is that scammers put together a very personalized e-mail asking you to confirm a recent purchase or confirm your driver's license number. They want you to click on a harmful link or open an attachment that looks like a Word document but actually puts something on your machine called a key logger, so the next time you type in your bank account and password, they can get that data.
It's very common for friendly fraud to be involved in small and medium-size businesses. You know the people in the company, they know you. Everyone may be working on the same computer system where bank account information is stored right along with marketing and product data. Owners tend do things like give their passwords out to employees who are believed to be trusted old friends.
Every business should do regular, complete antivirus sweeps with updates. Don't just get a free trial of antivirus software and let it lapse. Keeping your antivirus software up to date doesn't stop all the fraud, but it goes a long way toward catching the obvious ones.
Education is also important. I hope financial institutions will work with business owners. Not to turn them into IT people, but just to let them know not to open unknown e-mails or not to click on unknown links to watch a "fun video."
And if you click on an e-mail and you get a warning that says, "Do not open"—don't do it. It sounds crazy, but I know people who think if they've got antivirus software, they can click on anything and they're protected.
Sign up for real-time alerts on all your accounts, including online banking. Bankers and card issuers typically allow a robust set of alerts to let you know immediately if fraud is suspected.
Of course, antivirus software and plug-ins that secure your computers against "man-in-the-browser" attacks, which include those key loggers I mentioned.

Saturday, May 7, 2011

Simple Rules For Tax Disputes

No one wants to wind up in a tax dispute.  You want to file your returns and hope everything goes off without a hitch.  You want every income item to match up, every claimed deduction or credit to be approved, and every schedule you attach to pass muster.  And you’re willing to do everything you can to avoid an audit.
This isn’t limited to income tax returns.  It applies to payroll tax returns, gross receipts, excise, sales and use returns.  No matter how secure you feel in your tax positions, who wants to go to the time, expense and aggravation of having to debate issues or even prove up items?  No one.
But in the real world, some percentage of tax returns will be examined.  It is an increasingly small percentage these days, though some say the rich are different.  Despite periodic pendulum swings in audit rates, the overall audit rate will probably continue to decline.  Most taxpayers take that as good news.
Yet the nature and scope of tax audits is also changing.  Traditionally, some audits were full-on office or field audits.  You or your accountant or tax lawyer would sit with an auditor in your home, business or at the local IRS office to pour through your receipts and other records.
Such full-blown audits are a rarity today.  With the exception of large companies that may encounter these extensive reviews, the vast majority of audits today are by correspondence.  A correspondence audit is considerably less threatening, but also considerably less interactive.  You don’t have an unlimited number of chances to explain and justify what you’ve claimed before the proposed adjustments are written up and shipped off to the next level of the IRS.
However you end up in an audit, here are suggestions to make your experience easier.
1.  Make Every Response Timely.  Don’t get crossways with the IRS by failing to respond on time.  Some IRS notices or letters will not have a specific date for response, but most do.  Often the deadline will be 30 days.  Whatever the deadline, respond in time.  If you can’t, call to get an extension and confirm your extension in writing.
All of this may sound rigid, but the IRS is a huge organization and you’ll be dealing with people handling a huge caseload.  Some letters or notices cannot be extended, such as an IRS Notice of Deficiency, also called a 90 day letter (which must come via certified mail).
 2.  Attach Documents.  Don’t just explain why you’re entitled to whatever tax point is in question.  Whenever possible, attach copies of receipts or other proof.  The IRS is used to hearing arguments, but if you can support the arguments with documents you’ll be better off.
In fact, if you have multiple documents, send copies of them all.  In general, the more documents the better.  Keep copies of everything. 
3.  Be Organized.  Don’t ramble and don’t whine in your correspondence.  State your case clearly and make your arguments cogently.  Refer to the documents you are attaching.  If possible, provide a key to the exhibits or use exhibit tabs. 
Remember that your submission will be your first chance to make an impression on the IRS agent.  You want to make your first impression a good one.
4.  Professional Help?  Consider getting professional help.  You may not need professional help until your case gets beyond the audit stage.  Still, if significant money is involved, you probably should have professional help even at the audit stage.  Sometimes a thorough approach early on can obviate later proceedings.

Friday, May 6, 2011

College Aid can affect Income taxes

While evaluating those college financial aid offers, be aware that there are more numbers to consider than the ones on the page. Tax consequences can both add to and subtract from your college aid.
On the negative side, scholarships, grants and fellowships can be taxable to the student if they exceed the qualified expenses outlined by the IRS.
With tuition, fees and books, you need a fairly large financial aid package to get over the limit. The most important thing to remember is room and board do not count as qualified expenses.
On the plus side, many taxpayers can take one of two tax credits or a tax deduction for tuition and fees paid for during the previous year.
But one question I had this year with a client was who takes the credit -- the student or the parent? You sometimes have to run an analysis to see which gives you the most tax savings.
Let's break down both sides of this taxing question.
According to IRS publication 970, "Tax Benefits for Education," if a student's financial aid -- generally a combination of school, state and federal grants and scholarships -- is greater than tuition, fees, books and other required course expenses, taxes are owed on the remainder of the aid. This includes aid such as institutional or private scholarships, federal Pell and Fulbright grants, the Texas grant and athletic scholarships.
Not included in this group are tuition reductions by the school, if the student teaches or does research for the school. Veterans education benefits (even if they include housing) are also not taxed, nor is attendance at the service academies, since attending is a job and cadets get tax withholding in their paychecks.
The big thing to remember is that nontuition-related expenses, like room and board, transportation and other typical living expenses not mentioned above, cannot be covered by financial aid that is tax-free.
Students will receive IRS Form 1098T from the school to show any scholarships or grants awarded by the school, she said. It's up to the student (or parent) to figure out whether any aid is taxable.
If the entire scholarship is excluded, you don't have to file. But the taxable portion of a scholarship is considered earned income.
The good news is that the student can still take a standard deduction, even if still listed as a dependent on parents' taxes. The 2011 standard deduction for a dependent on someone else's tax return is the greater of $950 or the student's earned income plus $300, up to $5,800.
That means the student can get up to $5,800 in taxable aid and still not have to pay tax on it.
For example, say a student gets $15,000 in scholarships and grants from the school, but tuition, fees and books come to only $10,000. That's $5,000 in taxable aid. But since the standard deduction can go as high as $5,800, there's no tax due.
Add on a summer or school job that paid $2,000, however, and total earned income is now $7,000. Subtract the standard deduction and that's $1,200 in taxable income. The lowest federal income tax rate is 10 percent, so that would mean $120 in tax owed.
I would definitely take whatever help is given in financial aid. Just be aware of the tax consequences.
Keeping track of financial aid for the academic year, which is typically split into two semesters spanning two tax years, can be a challenge. Just remember in your second, third and fourth years of school to consider your aid from the previous semester.
Also be sure to keep tuition and book receipts, just like any other tax-deductible items, in case the IRS challenges you.
When considering financial aid packages, another piece to include is the type Uncle Sam can give you in the form of tuition credits and deductions.
Last year, the American Opportunity credit was expanded to include up to four years of college for up to $2,500 in qualified college education expenses (tuition, fees and required books and supplies).
The credit, which was extended last year to go through 2012, is per student, and parents can qualify with income limits up to $90,000 for a single parent and $180,000 for married couples. One big advantage to the American Opportunity credit is that it is refundable up to 40 percent. This means that even if you don't owe taxes at the end of the year, you can get up to 40 percent of this credit given to you in the form of a tax refund.
A second credit that can be taken instead of the American Opportunity is the Lifetime Learning credit, which is less (up to $2,000) and is per return, meaning even if you have several members of your family in school, you can still only claim this credit once a year.
This credit is more flexible in that you do not have to be pursuing a degree to claim it and there are no limits on the number of years in school it can be used, making it a good choice for graduate students.
Income limits for the Lifetime Learning credit are $60,000 single and $120,000 married filing jointly.
Either credit should be considered in calculating your student's overall financial aid, if you fall under the income limits. While you will have to pay the tuition, fees and books it covers upfront, you could get a benefit from the credits come tax time.
Finally, tuition and fees can be deducted, although the deduction is not as much tax savings as the credit would create. To qualify for this deduction, your income has to be under $80,000 for a single filer and $160,000 for married filing jointly.
The deduction can take your income subject to tax down by as much as $4,000.