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The cost of tuition and related costs are continuing to rise at a greater pace than the rate of inflation, with Ivy League schools now priced at more than $50,000 per year. Families that want to save for higher education costs on a tax-advantaged basis can look to 529 savings plans. These are state-run programs in which contributions are invested; the funds available for education depend on the amount contributed and how well they are invested. The particulars of the plan vary from state to state.
During the economic turndown, these savings plans, like other Wall Street investments, were very disappointing. Some contributors lost money through their investment in their 529 plan. Now that the stock market has improved, interest in 529 savings plans has also returned. Here are tax rules related to these plans.
Tax breaks
Contributions to 529 savings plans do not entitle the contributor to any federal tax deduction or credit (Code Sec. 529). Despite the lack of deductibility, the plans offer other significant tax breaks.
1. Contributions may entitle contributors to a state-level tax break to reduce state income taxes. For example, New York allows residents who contribute to the state’s 529 plan (https://
uii.nysaves.s.upromise.com/) an annual deduction of up to $5,000 per contributor (which effectively is $10,000 for a married couple).
2. Earnings on contributions are not taxed annually. They continue to grow on a tax-deferred basis.
3. Withdrawals to pay qualified education expenses are tax free to both the contributor and the beneficiary of the account. Qualified expenses include tuition, fees, books, supplies, and equipment required for enrollment or attendance at an eligible institution (usually a school eligible to offer federal financial aid).
4. Room and board are also treated as eligible expenses as long as the beneficiary is at least a half-time student.
5. Computers and technology, which were qualified expenses in 2009 and 2010, are no longer treated as qualified expenses.
6. If funds are withdrawn by the account owner or the beneficiary for non-qualified purposes, the earnings are taxed to the person who makes the withdrawal. Moreover, there is a 10% penalty, regardless of age of the person taking the withdrawal.
7. Withdrawals are taxed according to the rules applicable to annuities (Code Sec. 72), so that a part of the withdrawal is viewed as taxable earnings while the balance is a nontaxable return of the contributor’s investment (which was made with after-tax dollars).
Contribution limits
8. Federal income tax law does not set a dollar limit on annual contributions to 529 savings plans. Instead, the maximum amount is determined by state rules for their 529 plans. Each state sets the limit on the value that an account can have; contributions can be made to meet this limit. The limit can be adjusted each year. Examples of contribution caps in 2012:
- California: $350,000 per beneficiary
- Florida: $382,000 per beneficiary
- New York: $375,000 per beneficiary
- Texas, $370,000 per beneficiary
9. The limit applies per beneficiary, so if there are multiple accounts for the same student, the values of all accounts for a beneficiary must be combined to see whether the cap has been met. It would appear that this cap can be avoided by setting up accounts in different states for the same beneficiary. The need to do so is remote because the annual caps set by the states are designed to keep pace, more or less, with the cost of higher education.
Coordination with other education-related tax rules
10. The amount of qualified higher education expenses covered by 529 plan withdrawals must be reduced by tax-free assistance (e.g., scholarships, Pell grants, employer-paid education assistance, or veteran’s assistance). If a parent (or student) claims the American Opportunity credit (Code Sec. 25A(i)) or Lifetime Learning credit (Code Sec. 25A(c)) for qualified education expenses, then the expenses taken into account for the credit cannot also be used to determine tax-free withdrawals from the 529 plan.
11. If, in the same year, distributions are taken from a 529 plan and a Coverdell ESA, then qualified expenses have to be allocated between the two plans. The allocation is based on the relative size of the withdrawals.
Unused funds
What happens if the beneficiary chooses not to go to college or fails to use up all the funds? The owner of the account has options about what to do:
12. Do nothing and let the funds grow. The beneficiary may want to pursue more higher education, such as a graduate degree, in the future. There is no age limit for a beneficiary. Unlike Coverdell ESAs (Code Sec. 530), which require funds to be distributed by age 30 in most cases, there is no similar distribution requirement for 529 plans.
13. Name a new beneficiary. As long as the new beneficiary is a member of the family of the old beneficiary, the change is not treated as a distribution (Code Sec. 529(c)(3)(C)). Thus, the new beneficiary can be a sibling, cousin, or even the beneficiary’s child. There are no tax consequences to the contributor or the beneficiaries for making this change.
14. Withdraw the funds and pay the tax bill, plus the penalty, related to the earnings on your contributions. There may also be recapture of any state income tax breaks that the contributor previously enjoyed.
Making and changing investments
15. Each state’s plan offers a menu of investment options. Check these options as well as the fees and other expenses in these plans to select the best options. Most states permit out-ofstate contributors. However, state-level income tax breaks can be lost unless in-state plans are used.
16. An account owner can change investments. Usually, this is limited to one change per year.
17. If funds are to be moved to another 529 plan, be sure to arrange for a direct transfer. There is no rollover option for 529 plans, as there is for IRAs (see Karlen, TC Summary Opinion 2011-129)). If a check is issued to the account owner, it is taxable, even if the funds are immediately replaced in another 529 account or plan.
Account losses
18. Like IRAs and 401(k) plans, the value in the 529 account can vary from month to month and year to year. Generally, no losses can be claimed by the account owner. However, if the entire account is distributed and the amount of the distribution is less than total contributions, the contributor can take the loss. The loss is treated as a miscellaneous itemized deduction subject to the 2%-of-adjusted-gross-income floor. The loss is reported on Schedule A of Form 1040. If the contributor is subject to the alternative minimum tax, any tax savings as a result of the 529 plan loss is effectively lost forever.
Estate taxes
529 plans offer significant estate planning benefits to contributors.
19. Gift taxes. A contribution to a 529 plan is treated as a completed gift for gift tax purposes and qualifies for the annual gift tax exclusion per beneficiary (Code Sec. 529(c)(2)(A)(i)). This is so even though the owner retains the right to recoup contributions, change beneficiaries, and make investment decisions.
20. Under a special five-year rule, a lump-sum contribution can utilize five times the annual gift tax exclusion ($13,000 in 2012; $14,000 in 2013) (Code Sec. 529(c)(2)(B)). This means a contributor can add $65,000 in 2012, or $70,000 in 2013 without having to rely on any portion of the lifetime gift tax exemption amount; the contribution is fully shielded from tax by the five-year rule for the annual gift tax exclusion. Married couples can double the gift by consenting to make a joint gift.
21. Estate taxes. The value of the assets remaining in the account on the contributor’s death usually is not included in his or her gross estate (Code Sec. 529(c)(4)). However, if the contributor used the special five-year rule to minimize or avoid gift tax on his/her contributions (by averaging them over five years and applying the annual gift tax exclusion accordingly), the value of the account related to the portion of that five-year period that has not yet expired is included in his/her estate.
Conclusion
22. Parents and grandparents of young children can utilize 529 plans to ensure adequate funds will be available to pay their higher education costs. The plans can also be used by wealthy parents and grandparents as part of their estate planning strategies.
Sidney Kess, CPA, J.D., LL.M., has authored hundreds of books on tax-related topics. He is best-known for lecturing to more than 700,000 practitioners on tax and estate planning.
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This year has seen the occurrence of dramatic casualty events across the country, from tornados in the Midwest, to wildfires in Colorado, Oklahoma, and Texas, to Hurricane Isaac in the Gulf Coast. These and other casualty events have resulted in billions of dollars in property damage. Hopefully, individuals and businesses impacted by these events carried sufficient insurance, including special flood insurance, to be compensated for their property losses.
However, when casualty losses exceed insurance recoveries, tax deductions afford some financial relief to affected taxpayers. Refunds may even be available to provide cash that is helpful for rebuilding after severe losses. What’s more, in some cases, taxpayers can also have more time to complete their tax obligations.
Tax-deductible losses
1. For tax purposes, a casualty loss is damage to property resulting from a casualty event such as a fire, storm, or other sudden or unusual event (Code Sec. 165(c)(3)). It is up to the taxpayer to prove that the damage resulted from a casualty, which is not difficult to do when an event affects a large area.
2. It becomes more challenging when the event is limited to a single taxpayer, such as fire to a taxpayer’s residence. In this case, it is advisable for the taxpayer to keep records that will prove a casualty was responsible for property damage, such as “after” pictures, insurance claims, police reports, and news accounts of the event.
3. For nonbusiness (personal) property, the loss is lesser of the adjusted basis of the property (typically cost) or the difference between the property’s value before and after the disaster. The loss is reduced by any insurance and other reimbursements and by $100. Then total losses for the year are deductible as an itemized deduction to the extent they exceed 10% of adjusted gross income (AGI).
Non-business Casualty Loss Worksheet:
Adjusted Basis ________ (a)
Value Before Loss ________ (b)
Value After Loss ________ (c)
Difference ________ (d)
Lesser of (a) or (d) ________(e)
Less: Insurance proceeds (________)
and other reimbursements (________)
Less ( $100 )
Net ________ (f)
10% of AGI ________ (g)
Any excess of (f) over (g) ________
is deductable as an itemized deduction.
4. Losses to business or investment property are fully deductible; they are not reduced by $100 and are not subject to the 10%-of-AGI limit. For property that is totally destroyed and not covered by insurance, the loss is the property’s adjusted basis. Where property has been expensed or fully depreciated, this means a zero basis so no tax loss can be claimed.
Disaster losses
5. If the loss occurs within an area declared eligible for federal disaster relief from the Federal Emergency Management Agency (FEMA), then there is a helpful tax option to consider. The loss can be claimed on a tax return for the year of the casualty event or for the prior year (Code Sec. 165(h)). Claiming the loss for the prior year entitles a taxpayer to receive a tax refund, which can be used to help rebuild after the disaster. The IRS lists areas qualifying for this disaster relief at www.irs.gov/uac/Tax-Relief-in-Disaster-Situations.
To claim the loss on a prior year return, take the loss into account if the return has not yet been filed. If the return has already been filed, then an amended return is required.
Problem areas in casualty losses
6. One of the more difficult matters in claiming a casualty loss is proving the amount of the loss. If there is a complete destruction of the property, the loss is limited to the lower of the fair market value of the property immediately before the destruction or its adjusted basis. If there is merely damage to property, the loss is limited to the lesser of the fair market value of the property immediately before the casualty, reduced by its fair market value immediately after the casualty, or the property’s adjusted basis.
Fair market value usually is ascertained by an appraisal made by a “competent” appraiser (Reg. §1.165-7(a)(2)(i)). The appraisal must take into account the effects of any general market decline affecting undamaged as well as damaged property, which may occur simultaneously with the casualty event.
7. The IRS and courts are rather particular about whether an appraisal is acceptable for proving fair market value. In one recent case, the Appellate Court for the Ninth Circuit affirmed a Tax Court decision that rejected the taxpayers’ claimed casualty loss deduction (Sykes, CA-9, 2012-2 USTC ¶50,485, aff’g TC Memo 2010-84). The taxpayers in this case sustained water damage to their home from a busted water pipe and received an insurance reimbursement of about $4,300 based on the cost of repairs to the damaged property in the home. They hired someone as a qualified appraiser. The taxpayers adjusted the numbers presented by this appraiser and then claimed that the casualty caused a reduction in the value of their home of more than $45,000 and they deducted another $40,000 or so in losses.
8. The taxpayers’ adjustments to a qualified appraiser’s report (believing values to be overstated in the report) do not amount to a qualified appraisal and cannot be used as a basis for a casualty loss deduction. The taxpayers did not call any witnesses nor testify themselves to substantiate the valuation of their claimed loss; they did not submit any supplemental materials to establish that their estimation of the loss should be used for tax purposes.
9. Instead of obtaining an appraisal, the cost of repairs to the damaged property is acceptable evidence of the loss in value if (Reg. §1.165-7(a)(2)(ii)):
1. The repairs are necessary to restore the property to its pre-casualty condition,
2. The amount spent for repairs is not excessive,
3. The repairs relate only to the damage suffered in the casualty, and
4. The value of the property after the repairs does not exceed its value immediately before the casualty.
Only the amount of the loss is deductible. No deduction can be claimed for a sentimental or ascetic loss.
10. Another issue is the tax treatment of reimbursements from state funds as compensation for property damage. The IRS says (www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/FAQs-for-Disaster-Victims---Taxable-State-Recovery-Payments) that if a taxpayer claimed a casualty loss deduction and, in a later year, receives reimbursement for the loss, the taxpayer reports the amount of the reimbursement in gross income in the tax year it is received to the extent the casualty loss deduction reduced the taxpayer’s income tax in the year in which the taxpayer reported the casualty loss deduction; the taxable amount is determined under the tax benefit rule (Code Sec. 111).
11. If the reimbursement exceeds the amount of the casualty loss deduction, the taxpayer reduces basis in the property by the amount of the excess; the taxpayer includes such excess in income as gain to the extent it exceeds the remaining basis in the property, unless such gain is excludable from income or its recognition can be deferred as gain from an involuntary conversion under Code Sec. 1033.
12. Yet another concern for victims of casualty events is the loss of their tax records. Reconstruction of tax records in this situation is permissible, and in fact necessary, to help taxpayers prove their casualty loss deductions. It may be advisable to store tax and financial records so they will not be impacted by a disaster (e.g., using off-site backup for computer files).
Other tax relief for disaster victims
13. From time to time, disasters are so severe that the IRS gives affected individuals and businesses more time to file returns, pay taxes, and do other time-sensitive tax chores. Recently, the IRS granted relief to certain victims affected by Hurricane Isaac (IR-2012-70, 9/5/12). Affected individuals and businesses have until January 11, 2013, to file 2011 returns that were on extension, which includes corporations and other businesses that would normally have filed by September 17, 2012, and individuals who would have filed by October 15, 2012.
14. The IRS cannot extend the time for depositing taxes or filing employment and excise tax returns. However, it can provide relief, as it has done for affective individuals and businesses. The IRS will also abate any interest, late-payment or late-filing penalty that would otherwise apply to these returns. In addition, for businesses the IRS will waive failure-to-deposit penalties for federal employment and excise tax deposits normally due on or after August 26, 2012, and before September 10, 2012, if the deposits are made by September 10, 2012.
As of now, this relief applies only to victims within Louisiana (Ascension, Jefferson, Lafourche, Livingston, Orleans, Plaquemines, St. Bernard, St. Charles, St. John the Baptist and St. Tammany parishes) and Mississippi (Hancock, Harrison, Jackson and Pearl counties), but the IRS is expected to extend this relief soon to other storm-related victims.
Conclusion
15. The IRS has a new landing page on disaster assistance and emergency relief for individuals and businesses at www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Disaster-Assistance-and-Emergency-Relief-for-Individuals-and-Businesses-1.
Sidney Kess, CPA, J.D., LL.M., has authored hundreds of books on tax-related topics. He probably is best-known for lecturing to more than 700,000 practitioners on tax and estate planning.
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As summer wanes and autumn arrives, businesses and their owners would like to plan now to save on their 2012 taxes as well as to get ready for the coming year. The problem: many of the tax rules for 2012 and 2013 are not yet known. More than 50 tax rules expired at the end of 2011. The Bush-era tax cuts, as well as the payroll tax reduction for workers, are set to expire at the end of 2012.
The House passed the Job Protection and Recession Prevention Act of 2012 to extend the Bush-era tax cuts through 2013 (H.R. 8). The Senate Finance Committee also approved the Family and Business Tax Cut Certainty Act of 2012 to extend various tax rules for 2012 (and in many cases for 2013 as well) that had expired at the end of 2011 (no bill number has been assigned). Congress is currently on its summer recess and, no doubt, upon its return in September will be focused on the November election. Here is a roundup of some planning that businesses can do now, as well as alerts to potential opportunities in the pending legislation that may be enacted in the lame duck session after the election.
Distribute profits as dividends
Corporations can make dividend distributions to shareholders. While the dividends are not deductible by the corporation, they are taxed at favorable rates for individuals. Through 2012, the maximum rate for qualified dividends received by individuals is 15% (zero for those in the 10% or 15% tax bracket). This special tax treatment for dividends is set to disappear after 2012 so that dividends would be taxed as ordinary income at rates up to 35% or possibly higher. The special tax treatment could be retained after 2012 through Congressional action.
Corporations sitting on profits for the year can take advantage of the certainty regarding the tax treatment of dividends made in 2012 by making dividend distributions before the end of the year. S corporations need to exercise special caution to avoid disproportionate distributions that have the effect of creating a second class of stock and terminating the S election.
For dividends made to owner-employees, there is an added advantage. These distributions are not subject to payroll taxes. If the same cash from corporate profits had been used to pay these individuals additional compensation, the payments would be deductible as compensation, but also subject to payroll taxes, both for the corporation and the owner-employee.
Take advantage of Section 1202 opportunities
Through the end of this year, certain C corporations can offer stock that enables investors to obtain tax-free treatment for gains as long as they hold the stock for more than five years (Code Sec. 1202). While this rule may be extended beyond 2012, companies seeking equity financing now can take advantage of the tax certainty for this year. It typically takes three to four months to close a deal, so action in this regard should be pursued now.
The 100% exclusion of gain on the sale of Sec. 1202 stock, called qualified small business stock, can only be used by a C corporation in certain industries, including technology, manufacturing, retail and wholesale. Also, the gross assets of the corporation at the time immediately before and after the issuance of the stock cannot exceed $50 million.
Sec. 1202 stock can be given as bonuses to employees. Qualifying businesses should explore this avenue of reward for purposes of year-end bonuses.
If this provision is not extended, the exclusion drops to 50% of gain on the sale of qualified small business stock. Whether this reduced exclusion will be meaningful depends on what the capital gains rates will be at the time such stock is sold (in 2018 or later years).
Find more guidance on Sec. 1202 stock in IRS Publication 550, Investment Income and Expenses, at www.irs.gov/pub/irs-pdf/p550.pdf.
Invest in machinery and equipment
The tax law provides incentives to businesses for buying computers, furniture, machines, and other equipment in two forms: a first-year expensing deduction (Sec. 179) and bonus depreciation (Sec. 168). Both of these tax breaks enable businesses to recover their outlays for these items more rapidly than by using regular depreciation. Both types of tax breaks apply for 2012. However, at this time, it is uncertain what the limitations on these breaks will be. Without any Congressional action, here are the applicable tax rules:
- The Sec. 179 deduction for 2012 is limited to $139,000 of new or used equipment placed in service this year, provided that the business is profitable.
- Bonus depreciation is limited to 50% of the cost for new (not used) property, regardless of the business’ profitability.
It is possible that these rules will yet be liberalized for 2012 (e.g., the Sec. 179 deduction may be increased to $500,000, which was the limit for 2011, and bonus depreciation could be increased to 100%, which was also the limit for 2011). Companies may want to review their spending budgets for the year in light of current and potential tax breaks.
Charitable contributions
Businesses that want to make donations of cash or property to charity can begin to plan their giving for 2012. Donations usually depend not only on what the businesses can afford, but also on tax incentives for giving. At present, only basic tax rules on giving apply because various enhanced deductions expired at the end of 2011. Here are the applicable rules:
- For C corporations, donations are capped at 10% of taxable income.
- For owners of S corporations, partnerships, and sole proprietorships, deductions are taken into account on the owners’ personal returns. The amount of their deductions depends on the owners’ adjusted gross income and the type of donations involved.
Stay alert to last-minute extensions of enhanced deductions for such donations as food inventory, computers to schools and libraries, and conservation easements.
Set up retirement plans for 2012
The contribution limits and other rules for qualified retirement plans are set for 2012; there is no uncertainty. The limits will be indexed for inflation in 2013. Businesses can opt to adopt a qualified retirement plan for 2012 if it does not have one. The deadlines for adoption:
- October 1, 2012, for SIMPLE plans for small businesses. Small businesses that are started up after this date have until it is practical to adopt a plan. A plan adopted after this date is not effective for the current year.
- December 31, 2012, for most qualified retirement plans, including profit-sharing plans (with or without 401(k) features) and defined benefit (pension) plans.
- April 16, 2013 (or October 15, 2013, for business returns on extension) for SEP plans for 2012.
If plans are set up by the required date, which means that the paperwork has been completed with the financial institution managing the plans, then employers have until the extended due date of their returns to make 2012 contributions.
Examine basis for owners of pass-through entities
If 2012 is shaping up to be a bad year for the business, owners of S corporations, partnerships, and limited liability companies can only deduct the portion of the loss passed through to them to the extent of their basis. Early planning for basis can ensure that there is a sufficient amount to enable the full loss to be taken on 2012 returns.
S corporation shareholders, for example, can loan money to their corporations to increase or establish basis in loans; they can then take passed-through losses to the extent of this basis. However, merely guaranteeing third-party loans to the corporation does not create basis. Basis in this case is created only when and to the extent shareholders are called upon to pay this corporate debt.
Revise FSAs for 2013
The Patient Protection and Affordable Care Act of 2010 placed a cap on the amount of salary that employees can contribute to their company’s flexible spending accounts (FSAs) starting in 2013. The cap is $2,500; it will be indexed for inflation after 2013. Until now, the cap was set by companies and averaged $5,000.
Companies technically have until the end of 2014 to revise their FSA documents to reflect the new cap. However, the plans must be operated in conformity with the new law starting in 2013.
Businesses should plan now to inform employees about the new limitations. They should also update payroll systems if they handle payroll internally; outside payroll companies will undoubtedly be prepared for this change.
Conclusion
CPAs should meet with their business clients to assess their current tax picture and to devise strategies for optimizing tax savings for the year. They should also pay attention to developments in Congress that could favorably impact tax-saving opportunities for 2012.
Sidney Kess, CPA, J.D., LL.M., has authored hundreds of books on tax-related topics. He probably is best-known for lecturing to more than 700,000 practitioners on tax and estate planning.
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- Written by: Sidney Kess, CPA, J.D., LL.M. Of Counsel, Kostelanetz & Fink, LLP, New York, NY
The U.S. Supreme Court declared the individual mandate in the Patient Protection and Affordable Care Act of 2010 (“Affordable Care Act”) to be constitutional (NFIB v. Sebelius, S.Ct., 6/28/12). This provision, which is set to take effect in 2014, is the linchpin for the entire law. As a result, several tax rules became effective in 2012 or are set to become effective in 2013. These rules affect both individuals and businesses. While political changes from the November 2012 election may disrupt the schedule, here are the rules as they now stand.
Additional Medicare taxes
Starting in 2013, two new—additional—Medicare taxes are set to take effect; one impacts earned income while the other affects unearned income.
Additional Medicare tax on earned income. A tax of 0.9% applies to earnings from wages (including tips and taxable fringe benefits) or self-employment over a threshold amount (Code Secs. 1401(b)(2); 3102(f)). The tax applies to earnings over:
- $200,000 for singles and heads of households
- $250,000 for married filing jointly
- $125,000 for married filing separately
Employers must withhold the tax from wages when earnings exceed the threshold. The IRS has guidance (www.irs.gov/businesses/small/article/0,,id=258201,00.html) on withholding rules for employers in question and answer format. For example, if an employee receives a year-end bonus that pushes her over the threshold, the additional Medicare tax is not withheld until the bonus is paid and then only to the extent of the bonus that puts total compensation for the year over the threshold. The additional Medicare tax is on top of the basic Medicare tax of 1.45% for the employee and 1.45% for the employer. There is no employer matching of this additional Medicare tax as there is for the basic Medicare tax. The IRS has said it will revise Form 941, Employer’s Quarterly Federal Tax Return, to reflect the new tax.
Self-employed individuals will have to take this additional tax into account in figuring estimated taxes. For purposes of deducting a portion of self-employment tax from gross income, special computations will be necessary because only the so-called employer portion of the tax is deductible; there is no employer matching for the additional Medicare tax (viewed as the employee portion of the tax).
Additional Medicare tax on net investment income. A tax of 3.8% applies to net investment income (investment income in excess of investment expenses) (Code Sec. 1411). The tax applies to all such income once the taxpayer’s modified adjusted gross income (AGI without the foreign earned income exclusion or housing exclusion) exceeds the applicable threshold amount:
- $200,000 for singles and heads of households
- $250,000 for married filing jointly
- $125,000 for married filing separately
Investment income includes interest, dividends, annuities, royalties, rents, and capital gains. For example, when a taxpayer sells a personal residence, the home sale exclusion continues to apply (Code Sec. 121). However, if there is any gain in excess of the applicable exclusion limit ($250,000 for singles; $500,000 for joint filers), the excess is treated as investment income for purposes of the 3.8% tax. Investment income also includes passive income from an S corporation, partnership, or limited liability company.
Investment income does not include income from these entities if the owner participates in the business. It does not include distributions from IRAs and qualified retirement plans, tax-exempt interest, and nontaxable veteran’s benefits.
There is no withholding for this additional tax. Taxpayers will have to take the additional tax into account when figuring withholding from wages or estimated taxes.
FSA limits
Another rule that takes effect in 2013 is the new federal law cap on the annual salary reduction contribution to a flexible spending account (FSA); it will be set at no more than $2,500 (Code Sec. 125(i)). Previously the annual cap was fixed by the employer, many of which had a substantially higher annual limit. After 2013, the $2,500 will be adjusted for inflation.
Recent IRS guidance (Notice 2012-40, IRB 2012-26, 1046) provides some clarifications on medical FSA rules for 2013. Here are some key points:
- Limit applies per employee. If spouses work for the same employer, each is eligible to contribute up to $2,500 to the company’s medical FSA).
- Employee not barred from multiple contributions. If an employee works for two companies and is eligible to participate in each company’s medical FSA, he or she can contribute up to the limit in each plan. Thus, such worker could contribute up to $5,000 (if each plan allows the maximum federal contribution amount).
- Employer contributions do not limit employee contributions. If the company adds money to an employee’s FSA (not a typical situation), the employee can still contribute up to $2,500.
- Cap limited to medical FSAs. It does not apply to employee contributions to health savings accounts (HSAs), dependent care FSAs, or cafeteria plan contributions.
- Plan amendments. Plans must be amended to reflect the $2,500 cap no later than December 31, 2014. However, they must be operated in conformance with the cap in 2013, even though an amendment has not yet been made.
Itemized medical deduction
Also starting in 2013, the adjusted gross income threshold for itemizing medical deductions increases to 10%; currently it is 7.5% (Code Sec. 213(a)). However, those who are 65 or older can continue to use the 7.5% threshold until 2017 (Code Sec. 213(f)).
The same limit applies for purposes of the alternative minimum tax (Code Sec. 56(b)(1)(B)).
This limitation, combined with the restriction on medical FSAs, means that more individuals will pay out-of-pocket for medical costs without any tax relief. From a tax-planning perspective, consumers may want to spend on discretionary medical costs, such as extra glasses or prescription sunglasses, before the end of 2012 to maximize the current medical deduction if they do not expect to be able to itemize medical costs in 2013.
Medical Loss Ratio
One rule that has already become effective concerns a new concept for many consumers called the medical loss ratio. Policyholders may receive rebates from insurance companies in 2012 because of the insurers’ failure to meet the medical loss ratio. The medical loss ratio is the percentage of premiums that federal law requires insurers to spend on medical care and other health activities as opposed to salaries, advertising, and other administrative costs. More specifically, the medical loss ratio is figured by dividing health care claims and quality improvement expenses by the insurers’ premium income minus taxes and regulatory fees (with certain additional adjustments). Insurers that spend less than the required ratio on medical care must give rebates to policyholders.
Federal law sets the ratio at 80%/20% for individual health insurance policies and groups (“small groups”) with fewer than 50 employees (unless a state elects to use a limit of 100). Starting in 2016, the small group limit is 100.
The ratio for large groups (groups larger than the small group limit) is 85%/15%. Some states already had ratios in place prior to the Affordable Care Act, and they can retain their ratios if they obtain an exemption from federal rules. States are allowed to adopt their own stricter rules, requiring insurers to spend a greater percentage of premiums on medical claims and activities.
Rebates by insurers must be made with respect to their activities in 2011. Policyholders must receive rebate checks or be given premium adjustments no later than August 1, 2012. The Kaiser Family Foundation estimates (www.kff.org/healthreform/upload/8305.pdf) that rebates will total $1.3 billion this year.
The IRS has provided guidance on the tax treatment of rebates resulting from the medical loss ratio in FAQs (www.irs.gov/newsroom/article/0,,id=256167,00.html). Generally, the tax treatment of the rebates is no different from any other recovery under the tax benefit rule (Code Sec. 111). For consumers with individual policies, if deductions were taken for premiums in 2011—as itemized deductions or, for self-employed individuals, as deductions from gross income—then rebates are taxable to the extent of any tax benefit. The fact that rebates are paid in cash or used to reduce current premiums has no impact on the tax treatment. Consumers who receive rebates in 2012 but claimed the standard deduction in 2011 are not taxed on the rebates.
Employees who paid some or all of the premiums for group health insurance through salary reduction arrangements (i.e., with pre-tax dollars) and who receive rebates are treated as having additional wages. They are not only taxable, but also subject to payroll taxes. Employees who paid for coverage with after-tax dollars are treated in the same way as consumers—they are taxable if they received a tax benefit in 2011 for the premiums.
Conclusion
Many of the new tax rules arising under the Affordable Care Act have yet to be fleshed out. The IRS has promised more guidance in the future (presumably it was waiting until the Supreme Court’s decision before investing considerable resources in implementing the law).
Sidney Kess, CPA, J.D., LL.M., has authored hundreds of books on tax-related topics. He probably is best-known for lecturing to more than 700,000 practitioners on tax and estate planning.
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- Written by: Sidney Kess, CPA, J.D., LL.M.
Do you or your clients have household help? A nanny or babysitter? Cleaning person, domestic worker, or caretaker? Health aide or private nurse?
Numerous times in the past, the subject of household help has made national headlines – most notably concerning political figures who faced violations that surfaced regarding proper hiring and tax withholding guidelines for domestic employees.
In a complex world, household employees can help simplify our lives. But, the payroll tax implications associated with a household employee can be complicated. To avoid the headaches of reporting all of the necessary data, many employers of household help often hire workers “off the books.” However, is it worth the risk?
The Internal Revenue Service continues to scrutinize the proper employment of household employees. There is no statute of limitations for failure to pay household employment taxes. Therefore, a household employee could file for social security and unemployment benefits, etc. many years down the road. In addition to owing back taxes if caught, employers could also face significant fines, penalties, and interest charges. And, in some instances blatant employment violations could also compromise the professional licenses of some employers.
As a trusted advisor to your clients, it is best to share the reality of household employer responsibilities and the importance of this worker classification at the onset of the employment relationship, to help avoid financial risk in the future. Reporting household employee wages and paying employment taxes is the law. It is also the right thing to do for the household help to ensure they are receiving the appropriate benefits and protections as a worker. Therefore, it may simply not be worth the risk – it is best to pay household employees the proper way – “on the books.”
This material identifies federal requirements for household employees. For federal information, including information on determining if the person(s) hired is considered an employee for employment tax purposes, visit the Internal Revenue Service (IRS) website (www.irs.gov) and see Publication 926, Household Employer’s Tax Guide. Additionally, more information on employee status can be found in the Fair Labor Standards Act, on www.dol.gov.
Determining Worker Status
Be sure to accurately identify the household worker’s status as either an employee or independent contractor under the applicable law(s).
Generally, a household worker who performs services that are subject to the will and control of the payer — as to both what must be done and how it must be done — will be considered an employee for employment tax purposes. And, with that “employee” status, comes effort and paperwork. More information on determining worker status can be found in IRS Publication 15-A, Employer’s Supplemental Tax Guide.
Household Employer Responsibilities
Below, please find the federal responsibilities for household employers, if it is determined that a household worker is, in fact, an employee for employment tax purposes.
Federal Employer Identification Number and Registrations
- If you do not already have one, a household employer must get an employer identification number (EIN), using Form SS-4.
- Complete Form I-9, Employee Eligibility Verification Form to verify work authorization.
Federal Employment Taxes
Social Security and Medicare. Withhold and pay social security and Medicare taxes if cash wages of $1,800 or more in 2012 are paid to any one household employee. Do not count wages paid to your spouse, your child under the age of 21, your parent, or any employee under the age of 18 at any time in 2012. See IRS Publication 926 for more details on exclusions.
Federal Unemployment. Pay and report federal unemployment tax if total cash wages of $1,000 or more in any calendar quarter of 2011 or 2012 is paid to household employees. Do not count wages you pay to your spouse, your child under the age of 21, or your parent. See IRS Publication 926 for more details on exclusions.
Federal Income Tax. Withhold and pay federal income tax if requested by the household employee (Form W-4, Employee Withholding Allowance Certificate completed by employee). Federal income tax withholding is optional on the part of the household employer, unless the employee asks for it and you agree to it.
Federal Wage and Hour Law Requirements. Household employers must meet federal wage and hour requirements under the Fair Labor Standards Act including but not limited to minimum wage and overtime requirements, where applicable. The U.S. Department of Labor, Wage and Hour Division can provide additional information at www.dol.gov.
Form 1040
When filing your federal income tax return, use Schedule H (Form 1040), Household Employment Taxes, to calculate your total household employment taxes (Social Security, Medicare, FUTA, and withheld federal income taxes). Add these household employment taxes to your income tax. Attach Schedule H to Form 1040.
If you want to make estimated tax payments to cover household employment taxes, get Form 1040-ES, Estimated Tax for Individuals. If you did not pay enough income and household employment taxes during the year, you may be subject to the estimated tax underpayment penalty. See IRS Publication 505, Tax Withholding and Estimated Tax, for information about this penalty.
Form W-2
Prepare and provide your employee Copies B, C, and 2 of Form W-2, Wage and Tax Statement, if applicable. Send Copy A of Form W-2, with transmittal Form W-3, to the Social Security Administration, if applicable.
Form 941, Form 943, or Form 944
If you own a business as a sole proprietor or your home is on a farm operated for profit you can choose to pay the household employment taxes with the business or farm employment taxes, and include the applicable amounts on Form 941, 943, or 944 for your business.
File Form W-2 for the household employee with the Forms W-2 and W-3 for your business employees. Include the household FUTA tax on your Form 940. For more information, see IRS Publication 15.
State Requirements
States generally follow federal rules regarding domestic employees. There are exceptions, so please refer to your state’s laws.
State Income Tax. This tax is withheld if the employee requests withholding and the employer agrees. See your state regulations for details.
State Unemployment Insurance (SUI). Some states follow the federal rules for unemployment insurance reporting for domestic employees; however, some set their own. Check with your state for SUI reporting requirements.
Workers’ Compensation. Check your state laws regarding workers’ compensation insurance. Some homeowners’ policies may already provide disability coverage for domestic workers.
State Disability Insurance. In some states, individuals who hire domestic employees are required to contribute to a state disability insurance fund.
Conclusion
Managing household taxes and payroll responsibilities may be a complex process for busy families. This is why some people are inclined to pay household help “off the books.” But, as pointed out, this is not a wise decision. To avoid the headaches with paying a household employee, some people hire the employee directly from an employment agency. Or, as an alternative, you can use a payroll company such as Paychex.
Paychex helps employers comply with required forms, deadlines, taxes, and keep abreast of relevant payroll and tax information legal related to household employment.
More information and tools on household employer requirements including a CPE seminar on this topic can be obtained through Paychex. Please visit paychex.com for more details and to schedule a seminar.
Sidney Kess, CPA, J.D., LL.M., has authored hundreds of books on tax-related topics. He probably is best-known for lecturing to more than 700,000 practitioners on tax and estate planning.