To our business clients:

In an effort to get accurate and timely filed 1099 forms, the date that 1099s are due continues to be January 31st. The penalty for each instance of failing to file a correct 1099 form by the due date with the IRS is as follows:

• $50 per form if correctly filed within 30 days of the due date;
• $100 per form if correctly filed after 30 days of the due date but by August 1;
• $260 per form if filed after August 1 or not filed (assuming there was no intentional disregard)
• At least $530 per form with no maximum penalty if due to intentional disregard of the requirements.

A similar additional penalty framework applies if the payee isn’t provided their copy by these deadlines.

California may impose its own penalties when conducting an audit, the most severe of which is for failure to file 1099-MISC forms* to independent contractors. In those cases, California can effectively negate the deduction for those expenses by imposition of its penalties.

Federal business tax returns currently contain two questions regarding the filing of 1099 forms. We'll be checking with you about your fulfilment of the 1099 form filing requirements in order to answer those questions correctly.

WHAT IS A 1099 FORM?

A 1099 form is an informational return on which businesses report various sorts of payments they've made to partnerships, sole proprietorships, individuals and certain types of corporations during the calendar year. Some of the most common types of 1099 forms are:

WHO SHOULD WE SEND A 1099 FORM TO?

They should be sent to partnerships, sole proprietorships, limited liability companies (LLC), limited liability partnerships (LLP), and individuals you made payments to in the course of your business. A 1099 should also be sent to any attorney, physician, or a supplier of medical services even if they are a corporation. Any payment on which you take backup withholding for Federal income taxes must be reported on the appropriate Form 1099, regardless of the amount of the payment. This means:

1. Only send 1099s for payments you made related to the operation of your business.                
2. You don't need to send 1099s for materials or products you purchased.
3. You don't need to send 1099s to corporations (unless it is for medical or legal services). However, the burden to find out if it's a corporation is on you. If the name has "Incorporated", "Inc.", "Corporation", or "Corp." in it, you can assume it's a corporation. Otherwise, you need to ask.
4. You don't need to send 1099s to exempt organizations, retirement trusts, or IRA accounts.

FILING RETURNS WITH THE IRS

If you must file any Form 1098 or 1099 with the IRS and you are filing paper forms, you must send a Form 1096 with each type of form as the transmittal document.

For businesses located in California the government copies need to be mailed to:

Department of the Treasury
Internal Revenue Service Center
Kansas City, MO 64999

Businesses who file 250 or more informational returns are required to file electronically through the IRS' FIRE System (Filing Information Returns Electronically). We can help you with this.

CALIFORNIA REPORTING REQUIREMENTS

If you file IRS Forms 1099 series, Forms 5498, 1098 and W-2G with the IRS on paper, you are not required to file a paper copy of the same form with the Franchise Tax Board. The IRS will forward the information to them. When the Federal and State payment amounts differ, you may file information returns directly with the Franchise Tax Board.

WHAT INFORMATION DO YOU NEED FOR THE 1099 FORM?

1. Name and address of whom you paid.
2. The amount you paid them during 2017.
3. Their identification number. For an individual this would be their social security number. For a proprietorship, LLC, partnership, or corporation this would be their employer identification number which is a nine-digit number, usually beginning with "94-" or "77-".

IMPORTANT:   It is extremely important that the name recorded on the 1099 agrees with the name listed on the Social Security Administration's records for the specified identification number. Therefore, in the case where an individual is self-employed, care must be taken to make sure that the proper name is listed on the 1099. Any "dba" name should be listed on the 1099 underneath the individual's legal name which agrees with the Social Security Administration's records.

WHAT IF SOMEONE WON'T GIVE US THEIR IDENTIFICATION NUMBER?

If someone won't give you their identification number, you're not sure they're giving you the correct number, or you're not sure they're incorporated as they say, then you should send them a W-9 form (available at the IRS website) by certified mail, return receipt requested. The receipt will document your request for their number and help you avoid the penalty for filing a 1099 form without an identification number. If the W-9 form is completed and returned to you, it will take you off the hook for both the accuracy of the identification number used and as to whether they're really a corporation.

WHAT CAN SEEBA & ASSOCIATES DO TO HELP?

Please give us a call if you would like us to help in the preparation of these 1099 forms. We can:

1.  Answer your questions regarding the issues discussed above,
2.  Prepare 1099 forms for you from information you've gathered, consisting of name, address, identification number, and amount paid in 2017, or
3. Figure the amount you've paid for 2017 from your books and records. Along with the address and identification number supplied by you, we'll prepare the 1099 forms.
4. eFile your 1099 forms via the IRS system.

*         *         *         *         *

IMPORTANT

Please let us know as soon as possible if we can assist you since the 1099s are now due by January 31st. ^st.

You should be getting an identification number or completed W-9 form from anyone you pay for services, even if less than $600, before you pay them. Otherwise, you are obligated to withhold 28% of their payment and remit it to the IRS. Please call us if you run into problems where the 28% "backup withholding" may come into effect.

You should also keep in mind that you will need to maintain records of amounts paid to independent contractors as payments are made or contracts are signed in order to comply with the 2018 Employment Development Department reporting requirement for independent contractors.

If you have any questions regarding 1099 filings, feel free to contact us.

To our business clients:

SEEBA & ASSOCIATES, INC

2018 FEDERAL PAYROLL DEPOSIT REQUIREMENTS:

Standard Mileage Rates for 2018

For 2018, the standard rate for business mileage will be 54.5 cents per mile. The previous rate was 53.5 cents per mile.

The standard rate for the use of a car when providing services to a charitable organization remains at 14 cents per mile.

The 2018 standard mileage rate for the use of your car for medical expenses or deductible moving expenses is at 18 cents per mile. The previous rate was 17 cents per mile.

BONUSES - Just a reminder - holiday bonuses are subject to all payroll taxes.

This is true whether the bonus is paid in cash, by check or by a gift card. For income tax withholding, the rates are 25% federal and 10.23% state. If you have a net figure in mind, the gross amount can be calculated as follows:

1. If the employee has not passed the wage limits for SDI ($110,902) or FICA ($127,200), divide the desired net by .5622 to arrive at the gross.
2. If the employee has exceeded the SDI limit only, divide the desired net by .5712 to arrive at the gross.
3. If the employee has exceeded both the SDI and FICA limits, divide the desired net by .6332 to arrive at the gross.

Example: You wish to pay Employee A a net bonus of $100.00 -

Employee A has earned $4,000.00 for 2017. He is subject to all taxes. Dividing $100.00 by .5622 (See #1 above) yields a gross of $177.87. Deductions would be:  Federal income tax $44.47 (25%); Social Security $11.03 (6.2%); Medicare $2.58 (1.45%); State income tax $18.19 (10.23%); SDI $1.60 (.9%).

The percentages and example shown above pertain to checks dated prior to January 1, 2018. For checks dated after December 31, 2017, you must use the 2018 withholding rates and limits.

AWARDS - - As part of a meaningful presentation, employers can give employees awards for length of service or safety achievements of up to $400 per year. In order to be deductible to the employer and non-taxable to the employee, the awards must be made with noncash items. Awards of cash or items readily convertible into cash, such as gift certificates, are subject to payroll taxes, no matter the amount. Length of Service Awards are deductible to the employer if employees have more than five years of service and have not received such an award in the last four years. Safety Achievement Awards aren't deductible if given to a manager, administrator, clerical employee, or professional, nor if given to more than 10% of the other employees. We recommend that any prizes awarded be documented by corporations in their corporate minutes, although the law doesn't require this.

GIFTS - Business gifts are still limited to $25 to any individual per year. They can be made on a discriminatory basis and can be in cash. These gifts are deductible to the business and non-taxable to the recipient.

Items clearly of an advertising nature that cost $4 or less, such as promotional items, aren’t considered gifts and therefore, aren’t included in calculating the $25 limit for an individual.

In addition, gifts that are considered “de minimis” fringe benefits aren’t restricted by the $25 per recipient limit, and are considered to be made tax-free to the employee. For a gift to be considered as a de minimis fringe benefit the value must be nominal, the accounting for such a gift would be administrative nitpicking, it’s only an occasional gift, and it’s given for the purpose of promoting the health, goodwill, contentment or efficiency of the employees. Some examples of such gifts are holiday turkeys, a Christmas luncheon or party, or a company outing to a theater or sports event.

There is no limit on gifts made to corporations or partnerships.

What did CA do?

Effective January 1, 2012, California has a new law, Senate Bill 459 (SB 459), which significantly increases the penalties that can be assessed against employers who willfully misclassify as independent contractors individuals who should be treated as employees. If your business utilizes independent contractors, it is extremely important that you take the time now to understand the impact of this new law to your company and to take the necessary steps to ensure appropriate compliance with this law. The highlights of the law are summarized below for your reference, although they are not meant to be all-inclusive.

SB 459 makes it unlawful for any person or employer to engage in “willful misclassification” of an individual as an independent contractor. The law also prohibits charging individuals who have been misclassified as independent contractors a fee or making deductions (e.g., for space rental, goods, equipment maintenance) from compensation if those acts would have violated the law had the individuals not been misclassified.

This new law comes on the tail of the IRS’s recent announcement regarding its new settlement initiative, the Voluntary Classification Settlement Program (VCSP), allowing employers to: 1) come forward if they are not under audit, 2) reclassify independent contractors as employees, and 3) pay a significantly reduced employment tax.

Who has authority to assess compliance and penalties?

SB 459 authorizes the Labor and Workforce Development Agency, specifically the Labor Commissioner or a court, to assess specified civil penalties on persons or employers violating the law. SB 459 also requires the agency to take other specified disciplinary actions against these individuals.

What happens if I am found to have violated the law?

The law requires employers who are found to have engaged in a misclassification “to display prominently” for one year on their websites a notice to employees and the general public announcing, among other things, that the employer “has committed a serious violation of law by engaging in willful misclassification of employees.” The notice must be signed by a corporate officer.

What are the fines and penalties?

Violation of the new statute carries exposure for a civil penalty of between $5,000 and $15,000 for each violation. If the employer is found to have engaged “in a pattern or practice of violations,” the civil penalty is increased to $10,000 and $25,000 per violation. The law does not define the term “pattern or practice.”

Is there a “Safe Harbor” position?

Yes, treating the worker as an employee will cause you to avoid any of these potential penalties for misclassification.

Where should I go for assistance and additional information if I have independent contractors?

The IRS has a very helpful website addressing this issue http://www.irs.gov/businesses/small/article/0,,id=99921,00.html Since the Employee/Independent Contractor issue is decided based upon the preponderance of evidence, look carefully at all the factors being considered by the IRS.

Because the stakes are so high on this issue, we strongly encourage you to consult with legal counsel experienced in employment practice matters to review your independent contractor relationships, to determine the appropriateness of these classifications, and to assist you if re-classifications may be required to mitigate potential legal exposures to your business. We can point you to the pertinent IRS Guidelines, but we will not be responsible for advising you with respect to independent contractor status as part of our services.

Please call us if you have questions or would like a referral to a labor law attorney to discuss this matter further.

So that the reporting for this fringe benefit is not so burdensome, the IRS allows employers to include the personal use of business-owned cars during November and December in the following year's W-2s. This means that W-2s for 2017 need to include the value of the personal use of the vehicles from
November 1, 2016 to October 31, 2017 and that this value can be calculated now. Those clients using computerized payroll systems which prepare W-2s will have to inform the system of this fringe benefit value which needs to be included in payroll before the end of December.

The following information should serve to remind you of how to calculate the value of the personal use of business-owned cars for W-2 purposes and how to withhold taxes on it:

1. For non-office/shareholders: 1.If commuting is the only personal use of a business-owned car allowed by an employer, then the employer would need to include $3 a day in the employee's wages to recognize the value of the commute, plus 5.5 cents/mile for the fuel provided by the employer.

2. For officers and shareholders: The personal use of a business-owned vehicle must be included in their W-2. The formula for computing the value of their personal use is as follows:
    

   1. Annual lease value based on the IRS table (see attached table) prorated for the number of months the vehicle was used from November 2016-October 2017.
   2. Times this value by the personal use percentage determined from mileage records maintained throughout the year which list business and personal miles driven.
   3. Then add the lesser of the actual cost, or 5.5 cents/mile, for gasoline provided by employer that was used for personal travel.
   4. Next subtract any reimbursement that the employer receives from employee.
   5. The result is the value of the personal use of the business-owned vehicle to be included in employee's W-2 compensation

                                                                                   or                                      
                                                                 (A x B) + (C - D) = E

3. It is possible to avoid income tax withholding on the value of the personal use of an employer-provided vehicle. However, early action was required in order to avoid withholding income tax for 2017. The employer must have notified the employee in writing by January 31, 2017 or within 30 days after receiving the vehicle during the year, in order to avoid income tax withholding on this fringe benefit. If the employee is not notified of the withholding election by the specified dates, the employer must withhold income taxes on the value included in the W-2. For 2018, the employee must be notified in writing by January 31, 2018 or within 30 days of receiving the vehicle, in order to avoid 2018 withholding on this fringe benefit.

4. Even though an employer can avoid withholding income tax on the value of the personal use of a vehicle (as described in item 3 above), the Social Security tax (FICA), the Medicare tax, and State Disability Insurance (SDI) must be withheld on the value included in the W-2. However, there are some choices available on the timing of these withholdings. The employer is given the option of calculating and withholding these taxes on a pay period, quarterly, semi-annual, or annual basis. As stated previously, the annual period would run from November through October, which means that the employer could wait until the end of October to figure the taxes to be withheld. If the employee will reach the maximum Social Security wages for the year by that time, without considering the fringe benefit, only Medicare tax withholding would be necessary.

Please feel free to contact us if you need help in calculating the value of the personal usage of business-owned cars, but remember it must be done soon and included on the 2016 W-2 forms.                                            

Please click here to view the Business Car Table

Under the new law compensatory time off in lieu of payment for hours worked by non-exempt employees in excess of the normal workday and workweek (as described above) is no longer permissible

Exceptions

Employees, who on July 1, 1999, were voluntarily working an alternate workweek schedule (adopted without an employee election), may continue to work that schedule, of not more than 10 hours work a day, and continue to be exempt from the overtime rules if the employer approves a written request by the employee to continue to work that schedule. In addition, employees affected by the new laws may elect, by two-thirds vote, to work an alternative workweek of up to 10-hour work days within a 40-hour workweek without being subject to the overtime rules.

Personal Time Off

Employees may make up lost time due to a personal obligation by giving a signed, written request to an employer to make up the work. Please note however that, if an employer approves an employee's written request to make up work time that is lost as a result of a personal obligation, the hours of that makeup work time, if performed in the same workweek in which the time was lost, should not be counted toward computing the total number of hours worked in a day for purposes of the overtime pay requirements. The only exception would be in the case of an employee who works more than 11 hours in one day or 40 hours in one workweek.

Only individuals working as independent contractors are to be reported. Thus, you don't need to report corporations or partnerships which you pay for services provided to your business. However, you must report all independent contractors you hire for $600 or more, regardless of whether the independent contractor lives or works in California or another state. You only need to report an independent contractor one time per each calendar year that you contract or pay the contractor $600 or more.

The completed DE 542 forms can be either mailed or faxed to the Employment Development Department. The mailing address is:Employment Development Department PO Box 997350 MIC 99 Sacramento, CA 95899-7350 And the fax number is: (916) 255-3211

The EDD may assess a $24 penalty for each failure to comply with the reporting requirements within the required time frame. Also, a penalty of $490 may be assessed for the failure to report the required information due to an agreement between you and the independent contractor to disregard the filing requirements.

Money that participants (parents, grandparents, businesses, etc.) contribute to the Scholarshare Trust will grow while in the participant's account and be tax free for federal and California purposes upon disbursement to the beneficiary's school of choice. The funds disbursed can cover room and board, as well as tuition fees, books, supplies and equipment required for enrollment or attendance at a "qualified institution" (defined below). The participant retains ownership of his/her deposits in the trust until disbursement, at which time ownership is transferred to the beneficiary (student). Interest earnings disbursed from the trust are not included in the beneficiary's gross income (while attending college).

Qualified Institutions

Neither the beneficiary nor the participant will have to choose a college when opening a Scholarshare account. However, the type of college the beneficiary plans to attend will affect the maximum contribution allowed, i.e., community college, state university, private institution, etc. The student may use the funds to attend any qualified institution. A qualified institution is one that offers credit toward:

A bachelor's degree; An associate's degree; A graduate level or professional degree; and Another recognized post-secondary credential. Certain proprietary and post-secondary vocational schools are also eligible institutions.

At the time the beneficiary enrolls in college, the Scholarshare Program will transfer payments from the participant's Scholarshare account directly to the college to pay the beneficiary's qualified expenses.

Transferability

If the beneficiary dies or does not attend college, the contributor has the option of canceling the account or changing the beneficiary. Cancellation results in a refund equal to the then-current market value less a penalty of no less than 10 percent of the earnings. The penalty is waived in the event of the beneficiary's death.

Without cause and before the beneficiary's admission to college, the contributor may change the beneficiary designation to relatives of the original beneficiary or relatives of the beneficiary's spouse, including the contributor if the contributor is a relative of the original beneficiary or a relative of the original beneficiary's spouse.

Income Tax Issues

There are no income tax deductions to the contributor for placing funds into a Scholarshare program. Taxation is avoided on the earnings. Amounts paid for tuition will also be eligible for both the HOPE credit and Lifetime Learning credit, subject to the rules that regularly apply to each of those credits.

Gift Tax Issues

For gift tax purposes, deposits are completed gifts of present interests to the designated beneficiary and therefore qualify for the annual gift tax and generation-skipping transfer tax exclusion of $13,000 per year per donee as indexed. They do not qualify as excludable education expenses under the gift tax rules which allow education expenses to be paid in addition to the $13,000 annual exclusion. If the deposit exceeds the annual exclusion amount, the contributor may elect to take the balance into account ratably over a five-year period on their gift tax return.

The House has approved two tax bills that are part of Republicans’ three-pronged "Tax Reform 2.0" package. The two measures, approved by the House on September 27, focus on retirement savings and business innovation.

The House has approved two tax bills that are part of Republicans’ three-pronged "Tax Reform 2.0" package. The two measures, approved by the House on September 27, focus on retirement savings and business innovation.

The most controversial bill of the package, which would make permanent tax reform’s individual and small business tax cuts enacted last December, was approved by the House on September 28 (see the following story in this Issue). At this time, the Senate is neither expected to vote on the Tax Reform package before midterm elections in November nor approve the Tax Reform 2.0 package in its entirety.

Tax Reform 2.0
The Tax Reform 2.0 package was approved by the House Way and Means Committee on September 13. The following three bills are included in the package:

• Protecting Family and Small Business Tax Cuts Act of 2018 (HR 6760);
• Family Savings Act of 2018 (HR 6757); and
• American Innovation Act of 2018 (HR 6756).

The House approved HR 6757 on September 27 by a 240-to-177 vote. HR 6756 was approved minutes later by a 260-to-156 vote.

Savings Accounts
HR 6757 proposes an expansion of certain savings incentives. Among other things, the bill would eliminate the age limit on individual retirement account (IRA) contributions. Additionally, it would create a Universal Savings Account (USA) to which individuals could contribute up to $2,500 annually. Withdrawals from USA accounts would be tax free. Tax-advantaged funds in USA accounts could be used for purposes other than retirement. Also, the bill would expand Code Sec. 529 plans to permit use for expenses related to trade schools, home schooling, and up to $10,000 in total distributions for student loan repayment.

Business Innovation
HR 6756 would improve the tax treatment of certain start-up business expenses. The bill would allow new businesses to write off up to $20,000 of start-up and organization expenditures. Additionally, HR 6756 would allow for a change in start-up ownership without triggering limits on certain tax benefits.

Democratic Criticism
Democrats remain united in their opposition of Republicans’ Tax Reform 2.0 efforts. The lack of Democratic support makes the package’s success in the Senate, at least in current form, highly unlikely.

At least 60 Democratic votes would be needed for approval. Senate Majority Leader Mitch McConnell, R-Ky., has said that the Senate will not take up any bills in the package until the requisite votes are accounted for.

Specifically, Democrats criticize HR 6760 for extending TCJA provisions, a law that Democrats claim primarily benefits wealthy individuals and corporations. However, some Democratic support is expected in the Senate on the business innovation bill, HR 6756. There is talk on Capitol Hill that the bill could be approved by Congress in the lame duck session toward the end of the year.

White House
The Trump administration announced its support of the Tax Reform 2.0 package in a September 26 Statement of Administration Policy. The White House praised HR 6760 for "preventing a tax increase on millions of middle-income families and small businesses after 2025." Additionally, the Trump administration praised HR 6757, saying it would "assist start-up companies and entrepreneurs by allowing them to write off more costs associated with starting their new business and by allowing them to raise capital and expand without losing their previously accrued tax benefits."

The House has approved a tax bill that would make permanent tax reform’s individual and small business tax cuts enacted last December. The controversial bill is part of Republican’s three-bill "Tax Reform 2.0" package, two of which cleared the House on September 27 (see the previous story in this Issue).

The House has approved a tax bill that would make permanent tax reform’s individual and small business tax cuts enacted last December. The controversial bill is part of Republican’s three-bill "Tax Reform 2.0" package, two of which cleared the House on September 27 (see the previous story in this Issue).

Individual, Small Business Tax Cuts
The House approved the Protecting Family and Small Business Tax Cuts Act of 2018 (HR 6760) on September 28 by a 220-to-191 vote. The bill would make permanent certain individual and small business tax cuts enacted under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

HR 6760 would make permanent certain TCJA individual tax cuts that are set to expire after 2025. These TCJA provisions were made temporary to comply with certain Senate budget rules applicable to the reconciliation process requiring only a simply GOP majority. Notably, these provisions include, among others:

• lower individual tax rates;
• a larger standard deduction;
• a $10,000 annual cap on the state and local tax (SALT) deduction; and
• a 20 percent deduction of business income for certain passthrough entities.

HR 6760 would reduce federal revenue by $631 billion over the next decade, according to a cost estimate by the nonpartisan Joint Committee on Taxation (JCT), (JCX-79-18). However, House Ways and Means Chairman Kevin Brady, R-Tex., highlighted the JCT’s findings particular to the bill’s macroeconomic effects. "Tax Reform 2.0 will permanently provide over $140 billion in annual tax relief for middle-class families, boost American GDP and investment, and create 1.1 million new jobs," Brady said in a statement, citing to the JCT report.

Democratic Support
Although the TCJA did not receive one Democratic vote, HR 6760, which extends many of the TCJA’s individual provisions, received three Democratic votes. Ten Republicans voted against the bill, all of whom hail from high-tax states and oppose the $10,000 annual cap on the SALT deduction.

Over 40 Democrats voted for the Family Savings Act of 2018 (HR 6757) and the American Innovation Act of 2018 (HR 6756), which focus on enhancing savings accounts and start-up business tax breaks. All three bills are now headed to the Senate, where the package is not expected to be considered before midterm elections in November. Additionally, the entire package is not expected to be approved by the Senate. However, it is considered likely on Capitol Hill that HR 6757, which promotes retirement and family savings, could be approved by the Senate in the lame-duck session.

"It’s encouraging to receive 44 Democratic votes in support of elements of Tax Reform 2.0," Brady said in a September 28 statement. "I’m confident that working with the Senate we can advance bipartisan bills to the President’s desk," he added.

Democratic Criticism
Although the Tax Reform 2.0 package did receive some Democratic support in the House, Democrats in both the House and Senate remain largely opposed to Republican efforts to extend the TCJA’s individual and small business tax cuts. Many Democrats have criticized the TCJA for primarily benefiting wealthy individuals and corporations.

"The Republicans’ tax 2.0 legislation is another reckless tax cut for the wealthy that leaves behind average, hardworking families," Ways and Means Committee ranking member, Richard Neal, D-Mass., said on the House floor just prior to the HR 6760 vote. "In less than a year, House Republicans have handed out trillions of tax cuts for the wealthy and big corporations," Neal added in a September 28 statement released after the 2.0 package cleared the chamber.

Meanwhile, House Speaker Paul Ryan, R-Wis., praised the Tax Reform 2.0 package for propelling economic growth and helping middle income taxpayers. "On top of making lower rates for individuals and small businesses permanent, these bills create new savings options for families to plan for education and retirement,"Ryan said in a September 28 statement.

Looking Ahead
House lawmakers left Washington, D.C. on September 28 to begin campaigning ahead of midterm elections in November. The Senate is not expected to take up the Tax Reform 2.0 package, if at all, until later this fall.

As for whether any of the three bills will become law this year, Brady remains optimistic. "We had 41 Democratic votes in support of retirement savings and that innovation for start-ups. I think that has a very good chance, with bipartisan support of getting to the President’s desk this year," Brady said in a September 28 televised interview. "The [individual tax cuts] permanency bill, that’s separate, will go to the Senate after today. [Senate Majority] Leader Mitch McConnell, has made it clear – when he sees a path for 60 votes, he’ll bring it forward."

Stakeholders are urging the IRS to clarify its guidance on tax reform’s new passthrough deduction. The IRS held an October 16 public hearing on proposed rules for the new Code Sec. 199Apassthrough deduction at its headquarters in Washington D.C. The IRS released the proposed regulations, REG-107892-18, on August 8.

Stakeholders are urging the IRS to clarify its guidance on tax reform’s new passthrough deduction. The IRS held an October 16 public hearing on proposed rules for the new Code Sec. 199Apassthrough deduction at its headquarters in Washington D.C. The IRS released the proposed regulations, REG-107892-18, on August 8.

Over 20 stakeholders and practitioners spoke at the hearing. Additionally, over 300 comments on the proposed rules have been submitted to Treasury and the IRS.

Passthrough Deduction
The new 20-percent deduction of qualified business income for passthrough entities, subject to certain limitations, was enacted as part of tax reform legislation last December. The Tax Cuts and Jobs Act ( P.L. 115-97) created the new Code Sec. 199A passthrough deduction for noncorporate taxpayers, effective for tax years beginning after December 31, 2017. The deduction is scheduled to sunset in 2026.

Rental Real Estate
Several speakers at the hearing asked the IRS for guidance clarifying whether rental real estate activities are eligible for the deduction. Additionally, Troy Lewis, testifying on behalf of the American Institute of Certified Professional Accountants (AICPA), asked the IRS for guidance on specific circumstances in which rental real estate activities would not produce qualified trade or business income pursuant to the adopted Code Sec. 162 standard.

"Without further guidance clarifying when the rental of real estate would fail to rise to the level of a section 162 trade or business, unnecessary ambiguity exists that will likely create a divergence in practice," the AICPA said in its written comments. "Taxpayers are thus left to pursue their own interpretation of the rules under section 199A and the IRS will likely face greater complexity of administration."

Likewise, the Council for Electronic Revenue Communication Advancement (CERCA) submitted comments highlighting the uncertainty as to whether and when a rental property is generally considered a qualifying trade or business for purposes of the Code Sec. 199A deduction. Notably, CERCA referenced the preamble to the regulations that indicates taxpayers should look to existing case law to determine whether rental activities meet the Code Sec. 162 standard. However, existing case law does not consistently apply a set of factors that taxpayers could reliably apply as rules, according to CERCA.

Determining that all rental real estate is a trade or business for purposes of the deduction would significantly simplify the deduction, Iona Harrison said, testifying on behalf of the National Association of Realtors. Making such a determination would also simplify IRS administration, she added.

SSTB
Several speakers and a number of comment letters requested that the IRS clarify its definition of a specified service trade or business (SSTB). The SSTB limitation is one of the most controversial provisions of the deduction. SSTBs are considered a "trade or business involving the performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, investing and investment management, trading, dealing in certain assets or any trade or business where the principal asset is the reputation or skill of one or more of its employees," according to the IRS.

To that end, Major League Baseball (MLB) has pitched its assertion to the IRS that professional sports clubs are neither "personal services corporations" nor provide "services," as defined in Code Sec. 1202(e)(3)(A). The Office of the Commissioner of Baseball, which governs the 30 MLB clubs, has asserted in written comments that the business of a professional sports club is not an SSTB under Code Sec. 199A. Thus, "its owners should be allowed the full 199A deduction," Commissioner Robert D. Manfred, Jr. wrote in submitted comments.

Questions Remain
The October 16 public hearing served more as an opportunity for stakeholders to highlight issues rather than a forum for the IRS to provide answers. Treasury and the IRS are expected to consider hearing testimony and written comments when finalizing the rules. The regulations are expected to be finalized before the 2019 tax filing season.

Top Senate tax writers have introduced a bipartisan bill to prevent duplicative taxation on digital goods and services. The bill aims to establish a framework across multiple jurisdictions for taxation of digital goods and services, including electronic music, literature, and mobile apps, among other things.

Top Senate tax writers have introduced a bipartisan bill to prevent duplicative taxation on digital goods and services. The bill aims to establish a framework across multiple jurisdictions for taxation of digital goods and services, including electronic music, literature, and mobile apps, among other things.

The Digital Goods and Services Tax Fairness Act (Sen. 3581) was reintroduced on October 11 by Senate Finance Committee (SFC) ranking member Ron Wyden, D-Ore., and SFC member John Thune, R-S.D. A similar measure was previously introduced in 2015 by Thune and Wyden in the 114th Congress. A companion bill is expected to be reintroduced in the House.

Digital Marketplace
While the digital marketplace continues to evolve, federal law addressing taxation of digital goods and services "lags" behind, according to a joint press release issued by Thune and Wyden. "As a result, some consumers can be taxed multiple times on a single digitally delivered product or service by different tax jurisdictions," Thune said. "Our bipartisan legislation simply prevents this duplicative and discriminatory taxation, which will help ensure today’s digital economy isn’t held back unnecessarily and can continue to offer opportunities to entrepreneurs and consumers alike," Thune added.

"Preventing unfair taxes on music, books and other important goods and services benefits consumers and innovators alike," Wyden said. "This bipartisan legislation solves a 21st century tax riddle by establishing a comprehensive set of rules for states to follow."

The IRS has released Draft Instructions for the 2018 Form 1040. Additionally, the IRS has cautioned taxpayers that the draft instructions are subject to change. The IRS released a draft of the 2018 Form 1040 and six accompanying schedules last June.

The IRS has released Draft Instructions for the 2018 Form 1040. Additionally, the IRS has cautioned taxpayers that the draft instructions are subject to change. The IRS released a draft of the 2018 Form 1040 and six accompanying schedules last June.

Generally, the IRS does not release draft forms but has done so in this case as a "courtesy," the instructions state. "Do not rely on draft forms, instructions, and publications for filing,"the IRS wrote. Further, drafts of instructions and publications generally undergo some changes before being finalized, the IRS noted.

2018 Form 1040
Starting with the 2019 tax filing season, many taxpayers will be able to file federal income taxes on a new postcard-sized Form 1040. The IRS planned to finalize the new base 2018 Form 1040 this summer, an IRS spokesperson previously told Wolters Kluwer. "This early release is part of our standard process to invite stakeholder input into draft forms before finalizing them," the IRS spokesperson told Wolters Kluwer after the official release of the draft 2018 Form 1040.

Shorter Form, Six Schedules
The new, two-sided Form 1040 is intended to replace and consolidate current Forms 1040, 1040A and 1040EZ. "This new approach will simplify the 1040 so that all 150 million taxpayers can use the same form," the IRS said.

The shortened form reflects many of the changes to the tax code enacted under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97). Some of these changes include the higher standard deduction and the elimination of certain deductions and personal exemptions. The new form now has 23 lines, decreased from 79. However, there are now six separate schedules that some taxpayers who continue to itemize will need to include with their return.

The IRS’s new Commissioner was officially sworn in on October 1 by Treasury Secretary Steven Mnuchin. IRS Commissioner Charles "Chuck" P. Rettig will lead the implementation of tax reform enacted last December under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

The IRS’s new Commissioner was officially sworn in on October 1 by Treasury Secretary Steven Mnuchin. IRS Commissioner Charles "Chuck" P. Rettig will lead the implementation of tax reform enacted last December under the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

New IRS Commissioner
"I am honored, privileged and most humbled by the opportunity to serve with you as Commissioner," Rettig said in an internal IRS message obtained by Wolters Kluwer on October 2. "The foundation of my becoming Commissioner is a deep appreciation for the IRS, its workforce and our country."

The Senate confirmed Rettig’s nomination for IRS Commissioner by a 64-to-33 bipartisan vote. The Senate Finance Committee advanced Rettig’s nomination in July. President Donald Trump announced his nomination of Rettig last February.

IRS Priorities Moving Forward
Rettig outlined several IRS priorities in his message to IRS employees. Those priorities include, among others, implementing tax reform, balancing taxpayer service with tax enforcement, and deterring tax fraud.

"I know the Service has many challenges…I also know we must continue rebuilding trust with taxpayers while implementing the once-in-a-generation tax reform bill passed by Congress in December," Rettig said. "We must work on our IT modernization efforts," he added.

Additionally, while the IRS has been working toward moving more taxpayer services online, notably, Rettig emphasized the importance of providing personalized service to taxpayers. "Providing high-quality, personalized service is a critical component in helping taxpayers understand and comply with their filing and reporting obligations,"Rettig wrote.

Rettig’s term as the 49th IRS Commissioner is scheduled to expire on November 12, 2022. John Koskinen’s term as IRS Commissioner ended in November 2017. David Kautter, Assistant Secretary for Tax Policy at Treasury, has been serving as acting IRS Commissioner in the interim.

The Senate Small Business Committee held an October 3 hearing on expanding opportunities for small businesses through the tax code. Senate lawmakers examined tax reform’s effect on small businesses and discussed witnesses’ proposals to address ambiguity in the new tax code.

The Senate Small Business Committee held an October 3 hearing on expanding opportunities for small businesses through the tax code. Senate lawmakers examined tax reform’s effect on small businesses and discussed witnesses’ proposals to address ambiguity in the new tax code.

Various provisions of the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97) were discussed among lawmakers and witnesses. Specifically, Opportunity Zones under the TCJA were of particular focus.

Opportunity Zones
The TCJA created certain tax benefits for long-term business investment in Qualified Opportunity Zones, which generally include economically distressed communities. Although the TCJA did not receive a single Democratic vote, the Opportunity Zones program was generally based on a bipartisan bill sponsored by Sens. Tim Scott, R-S.C., and Cory Booker, D-N.J.

The TCJA’s Opportunity Zones program established tax incentives to spur business investment in these low-income communities to produce economic growth. Investor tax benefits include:

• a temporary tax deferral for capital gains reinvested in a qualified opportunity fund;
• the elimination of up to 15 percent of the tax on the capital gain that is invested in the qualified opportunity fund; and
• the potential for a permanent exclusion of tax when exiting a qualified opportunity fund investment.

"Opportunity Zones are the most innovative and ambitious federal attempt to encourage long-term private investment in low-income communities in at least a generation," John Lettieri, president and CEO of Economic Innovation Group, testified. However, "investors have yet to receive the formal guidance or regulatory clarity needed to inform their decision-making," he added.

Clarity/Reporting Metrics
Witnesses told lawmakers that definitional clarity and proper reporting metrics for the Opportunity Zone program are needed. Lettieri noted that Treasury has broad authority in determining Congressional intent for defining key terms pertaining to Qualified Opportunity Zone business and investment. "These rules must be designed with practical considerations and basic market flexibility in mind. If too narrow in scope or impractical in nature, the rules would undermine the very purpose for which this incentive was created," Lettieri testified.

Additionally, John Arensmeyer, founder and CEO of Small Business Majority, stressed the importance of measuring the program’s success. Those metrics should include evaluating success "based on the number of jobs created, where those jobs are located, employee wages and the number of businesses created, particularly businesses formed by women or people of color," Arensmeyer told lawmakers.

Treasury
Treasury Secretary Steven Mnuchin recently expressed his support for Opportunity Zones. "I couldn't be more excited about the opportunity zones," Mnuchin said in an interview last week. "I think there's going to be over $100 billion dollars in private capital that will be invested in opportunity zones," he added.

Comment. The Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) is currently reviewing proposed IRS regulations on "Capital Gains Invested in Opportunity Zones."Generally, OIRA has 45 days to review proposed regulations but may expedite the process to 10 days for rules applicable to tax reform. According to the OIRA website, the proposed rule was submitted to OIRA on September 12, and the status of review is pending.

Every year, Americans donate billions of dollars to charity. Many donations are in cash. Others take the form of clothing and household items. With all this money involved, it's inevitable that some abuses occur. The new Pension Protection Act cracks down on abuses by requiring that all donations of clothing and household items be in "good used condition or better."

Good used or better condition

The new law does not define good or better condition. For guidance, you can look to the standards that many charities already have in place. Many charities will not accept your donations of clothing or household items unless they are in good or better condition.

Clothing cannot be torn, soiled or stained. It must be clean and wearable. Many charities will reject a shirt with a torn collar or a jacket with a large tear in a sleeve. As one charity spokesperson summed it up, "Don't donate anything you wouldn't want to wear yourself." 

Household items include furniture, furnishings, electronics, appliances, and linens, and similar items.  Food, paintings, antiques, art, jewelry and collectibles are not household items. Household items must be in working condition. For example, a DVD player that does not work is not in good used or better condition. You can still donate it (if the charity will accept it) but you cannot claim a tax deduction. Household items, particularly furnishings and linens, must be clean and useable. 

The new law authorizes the IRS to deny a deduction for the contribution of a clothing or household item that has minimal monetary value. At the top of this list you can expect to find socks and undergarments, which have had inflated values for years.

Fair market value

You generally can deduct the fair market value of your donation. Unless your donation is new - for example, a blouse that has never been worn - its fair market value is not what you paid for it. Just like when you drive a new car off the dealer's lot, a new item loses value once you wear or use it.  Therefore, its value is less than what you paid for it.  

If you're not sure about an item's value, a reputable charity can help you determine its fair market value. Our office can also help you value your donations of used clothing and household items.

Get a receipt

Generally, you must obtain a receipt for your gift. If obtaining a receipt is impracticable, for example, you drop off clothing at a self-service donation center, you must maintain reliable written information about the contribution, such as the type and value of the property.

Charitable contributions of property of $250 or more must be substantiated by obtaining a contemporaneous written acknowledgement from the charity including an estimate of the value of the items. If your deduction for noncash contributions is greater than $500, you must attach Form 8283 to your tax return. Special rules apply if you are claiming a deduction of more than $5,000.

Exception

In some cases, the new rules about good used or better condition do not apply. The restrictions do not apply if a deduction of more than $500 is claimed for the single clothing or household item and the taxpayer includes an appraisal with his or her return.

If you have any questions about the new charitable contribution rules for donations of clothing and household items, give our office a call. The new rules apply to contributions made after August 17, 2006.

Probably one of the more difficult decisions you will have to make as a consumer is whether to buy or lease your auto. Knowing the advantages and disadvantages of buying vs. leasing a new car or truck before you get to the car dealership can ease the decision-making process and may alleviate unpleasant surprises later.

Probably one of the more difficult decisions you will have to make as a consumer is whether to buy or lease your auto. Knowing the advantages and disadvantages of buying vs. leasing a new car or truck before you get to the car dealership can ease the decision-making process and may alleviate unpleasant surprises later.

Nearly one-third of all new vehicles (and up to 75% of all new luxury cars) are leased rather than purchased. But the decision to lease or buy must ultimately be made on an individual level, taking into consideration each person's facts and circumstances.

Buying

Advantages.

• You own the car at the end of the loan term.
• Lower insurance premiums.
• No mileage limitations.

Disadvantages.

• Higher upfront costs.
• Higher monthly payments.
• Buyer bears risk of future value decrease.

Leasing

Advantages.

• Lower upfront costs.
• Lower monthly payments.
• Lessor assumes risk of future value decrease.
• Greater purchasing power.
• Potential additional income tax benefits.
• Ease of disposition.

Disadvantages.

• You do not own the car at the end of the lease term, although you may have the option to purchase at that time.
• Higher insurance premiums.
• Potential early lease termination charges.
• Possible additional costs for abnormal wear & tear (determined by lessor).
• Extra charges for mileage in excess of mileage specified in your lease contract.

Before you make the decision whether to lease or buy your next vehicle, it makes sense to ask yourself the following questions:

How long do I plan to keep the vehicle? If you want to keep the car or truck longer than the term of the lease, you may be better off purchasing the vehicle as purchase contracts usually result in a lower overall cost of ownership.

How much am I going to drive the vehicle? If you are an outside salesperson and you drive 30,000 miles per year, any benefits you may have gained upfront by leasing will surely be lost in the end to excess mileage charges. Most lease contracts include mileage of between 12,000-15,000 per year - any miles driven in excess of the limit are subject to some pretty hefty charges.

How expensive of a vehicle do I want? If you can really only afford monthly payments on a Honda Civic but you've got your eye on a Lexus, you may want to consider leasing. Leasing usually results in lower upfront fees in the form of lower down payments and deferred sales tax, in addition to lower monthly payments. This combination can make it easier for you to get into the car of your dreams.

If you have any questions about the tax ramifications regarding buying vs. leasing an automobile or would like some additional information when making your decision, please contact the office.