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Tax Advantages for Working Children

  • Written by Sidney Kess, CPA, J.D., LL.M.

mug sid kessWith summertime approaching, many children will be getting jobs during their school break. Others will continue at their part-time jobs throughout the summer months. What does a child’s work mean to the child and his or her family from a tax perspective?

Tax Considerations for Children

A child can earn for the year up to the amount of the standard deduction for his or her filing status. For 2017, this amount is $6,350 for a single individual (Rev. Proc. 2016-55, 2016-45, 707). Thus, a child can earn over $18 per hour (based on a 35-hour week for 10 weeks) without any income tax on the earnings. The “kiddie tax,” which subjects a child’s income over a threshold amount to the tax rates of the parent, only applies to unearned (investment) income and not to earned income (Code Sec. 1(g)). A child who expects to owe no federal income tax can file an exemption from income tax withholding on Form W-4, Employer’s Withholding Allowance Certificate. This exemption can be used only if the child had no tax liability in the prior year and expects none this year.

Of course, exemption from income tax withholding has no effect on Social Security and Medicare taxes (FICA). A child must still pay these taxes on any amount of earnings (unless the child works for a parent’s company as explained later). Thus, the child’s wages are reduced by 7.65% for FICA taxes.

The child can use his or her earnings to fund an IRA or Roth IRA. The contribution limit for 2017 is $5,500 (Code Sec. 219; Notice 2016-62, IRB 2016-46, 725). If the child opts to use a traditional IRA, then earnings up to $11,850 ($6,350 + $5,500) are tax-free. The contribution need not be made by the child, who can save or spend his or her earnings. The contribution can, for example, be made by a parent or grandparent, to the child’s account up to the lesser of the child’s earnings or $5,500. If it becomes necessary to tap into the IRA in order to pay for higher education, the distributions are taxable, but there is no 10% early distribution penalty in this case (Code Sec. 72(t)(2)(E)).

Usually, because of the long savings horizon until retirement and the child’s low income, it may be better to contribute to a Roth IRA (Code Sec. 408A). No deduction can be claimed for the donation, but earnings become tax-free. If the child does not want to be saddled with investment decisions or risk any losses, contributions can be made to a myRA, which is like a mini-Roth IRA. More information about myRAs can be found through the Treasury (https://myra.gov/).

The child cannot claim the retirement saver credit, which allows taxpayers to double dip (i.e., get a tax break for the contribution and a tax credit) (Code Sec. 25B). The credit is barred to anyone who can be claimed as another taxpayer’s dependent.

Tax Considerations for Parents

The fact that a child works and earns money does not prevent the parent from claiming a dependency exemption for the child ($4,050 in 2017). As long as the child is under age 24 and a full-time student, and the child does not provide more than half of his or her support, has the same principal place of abode and is a member of the parent’s household (when not away at school or for other temporary purpose) the exemption can be claimed (Code Sec. 152(c)).

If child support is being paid on behalf of this child, working at a summer job usually does not affect the amount of payments. However, parents should check their divorce or other relevant agreement to determine whether a child’s working has any impact on child support.

Putting Your Child on the Payroll

It can be a win-win situation for a parent who owns a business and hires his or her child for the summer. The child earns income and gains work experience. The parent gains a tax advantage and enjoys the additional help.

The parent can deduct wages paid to a child as a business expense. A deduction is allowed only if the compensation is reasonable for the work performed. It is advisable to document the hours worked and the type of services performed by the child in case the IRS questions the parent’s return. For example, in one case where a parent with a tax preparation business used her three children to do clerical work, she was denied a deduction for payments because she did not issue them paychecks and could not show any correlation between work performed and the amount of the payments (Ross, TC Summary Opinion 2014-68).

If the parent is a sole proprietor or a partnership in which each parent is a partner, wages paid to a child under age 18 are exempt from FICA (Code Sec. 3121(b) (3)(A)). Wages paid to a child under age 21 are exempt from FUTA (federal unemployment tax) (Code Sec. 3306(c) (5)). These exemptions do not apply if the parent’s business is incorporated or if the parent’s business is a partnership where each partner is not a parent of the child.

Other issues

The earnings of a child can impact financial aid received for higher education. The Free Application for Federal Student Aid (FAFSA) allocates half of a student’s income for the upcoming college year. Income includes money from working (other than work-study income) and withdrawals from IRAs. A parent’s income contribution ranges from 22% to 47%. The FAFSA for the school year between July 1, 2017, and June 30, 2018, can be submitted any time between October 1, 2016, and June 30, 2018. The income reported on the 2017-2018 FAFSA is 2015 income (i.e., the 2015 income tax return).

Also consider that the financial aid formula requires a child to use 20% of his or her assets; parents are only required to use 5.64% of their assets. However, “protected assets,” such as funds in IRAs and Roth IRAs, do not factor into this computation.

Conclusion

For students and parents, now is the time to think about summer employment. Companies are filling their openings now and families should plan accordingly.



Executive Editor Sidney Kess is CPA-attorney, speaker and author of hundreds of tax books. The AICPA established the Sidney Kess Award for Excellence in Continuing Education in his honor, best-known for lecturing to over 700,000 practitioners on tax. Kess is senior consultant for Citrin Cooperman and is consulting editor to CCH.

Tax Issues of Long-Term Care

  • Written by Sidney Kess, CPA, J.D., LL.M.

kess sidneyLong-term care is different from medical treatment designed to cure a condition or illness. Long-term care is meant to address the needs of an individual who, because of a chronic condition, accident or other trauma, or illness, requires assistance with basic self-care tasks (called activities of daily living, or ADLs, such as dressing and bathing) or other necessary assistance (called instrumental activities of daily living, or IADLs, such as cooking and managing finances). Here are the tax issues related to long-term care.

Long-Term Care Insurance

Those who cannot easily afford to pay for long-term care out of their own resources may want to consider buying long-term care insurance. Generally, this type of coverage provides a fixed daily amount when the insured needs long-term care. The coverage may run for a set term (e.g., three years) or for the life of the insured.

For federal income tax purposes, premiums for long-term care insurance are treated as deductible medical expenses up to set dollar limits (Code Sec. 213(d)(10)). For 2017, the limits are (Rev. Proc. 2016-55, IRB 2016-45, 707):

• Age 40 and younger: $410

• Over age 40 but not over age 50: $770

• Over age 50 but not over age 60: $1,530

• Over age 60 but not over age 70: $4,090

• Over age 70: $5,110

These limits are per individual, so if both spouses are 72 years old and each has a policy, the dollar limit on their joint return for 2017 would be $10,220.

The deduction for itemized medical expenses is based on a percentage of adjusted gross income. For 2017, all taxpayers, including those age 65 and older, the threshold is 10% of adjusted gross income (Code Sec. 213(a)). Seniors had a 7.5%-of-AGI threshold that expired in 2016, but proposed legislation failed to extend this special rule.

Retired public safety officers who elect to pay long-term care premiums with tax-free distributions from their qualified retirement plans cannot deduct the premiums. This rule applies where the distributions are paid directly to the insurer but would otherwise be taxable if received by the officers.

Self-employed individuals, who can deduct their health insurance premiums as an adjustment to gross income rather than as an itemized deduction, can treat long-term care premiums in the same way (Code Sec. 162(l)). However, only amounts up to the age-related dollar limits can be deducted (Code Sec. 162(l)(2)(C)).

Combination policies. The Pension Protection Act of 2010 allows life insurance contracts and commercial annuities to be combined with long-term care coverage (hybrid policies), typically with a rider on a whole life insurance policy or an annuity (Code Sec. 7701B(e)). None of the premiums paid for hybrid policies are deductible if they are a charge against the cash surrender value of life insurance contracts or cash value of annuities (Code 7701B(e)(2)).

Employer-provided coverage. Employer payments of long-term care insurance premiums for employees, spouses, dependents, and employees’ children under age 27 by the end of the year are treated as a tax-free fringe benefit (Code Sec. 106). These premium payments, regardless of cost, are not subject to FICA taxes.

HSAs. Funds in health savings accounts (HSAs) can be used to pay for long-term care insurance (IRS Publication 969). These HSA distributions are tax-free to the extent of the age-based limitations discussed earlier.

FSAs. A medical flexible spending account (FSA) cannot be used to pay premiums on long-term care insurance (Code Sec. 125(f)). This is not an eligible expense of an FSA.

State income tax treatment. States may provide different treatment for the payment of long-term care insurance for state income tax purposes. For example, New York residents can claim a tax credit of 20% of the full amount of long-term care premiums. (https://www.tax.ny.gov/pit/credits/longterm_care_insurance_credit.htm).

Continuing Care Facilities

There is a spectrum of care provided in different living arrangements ranging from independent living, to assisted living, to skilled nursing care, to intensive nursing home care. The cost of living in a nursing home, which is used primarily for medical reasons, is a deductible medical expense to the extent the care is not covered by insurance or government program. No allocation is needed for medical services; all of the cost, including amounts for food and lodging, are deductible.

Those residing in continuing care facilities to receive long-term care assistance may also claim a deduction, but only for a portion of their costs. If this living arrangement is primarily for personal reasons and not primarily for medical care, only costs related to medical care are deductible. This can be based on the percentage of costs allocated to medical care (see e.g., Rev. Rul. 67-185, 1967-1 CB 70; Rev. Rul. 75-302, 1975-2 CB 86; Rev. Rul. 76-481, 1976-2 CB 82, and Baker, 122 TC 143 (2004)).

Proceeds From Long-Term Care Policies

When it is medically determined that the insured needs long-term care, the policy begins to pay off. If the policy pays a per diem amount without regard to the insured’s needs, only the portion up to a set dollar limit is tax-free. For 2017, this amount is $360 per day (Rev. Proc. 2016-55, IRB 2016-45, 707).

However, if the policy has a higher per diem amount, it can be tax-free to the extent of qualified long-term care services for a chronically ill individual. Qualified long-term care services are necessary diagnostic, preventive, therapeutic, curing, treating, mitigating, rehabilitative services, and maintenance and personal care services for a chronically ill individual under a plan of care prescribed by a health care practitioner. A chronically ill individual is a person who, within the previous 12 months, has been certified as being either of the following:

• Unable to perform at least two activities of daily living without substantial assistance for at least 90 days because of a loss of functional capacity. Activities of daily living are eating, toileting, transferring, bathing, dressing, and continence.

• Requires substantial supervision to be protected from threats to health and safety due to severe cognitive impairment.

Proceeds from life insurance policies. A policy may pay accelerated death benefits to the insured. Like proceeds payable on the death of the insured, proceeds payable to an insured who is chronically or terminally ill can be tax-free (Code Sec. 101(g)). Tax-free treatment applies to all proceeds payable on account of a terminal illness (i.e., one expected to result in death within 24 months with some exceptions). Tax-free treatment on account of chronic illness is limited to the amount described earlier for long-term care insurance proceeds.

Tax-free treatment also applies to the sale of a life insurance policy in a viatical settlement (Code Sec. 101(g)(2)).

Out-of-Pocket Costs For Long-Term Care

Even though long-term care is not medical treatment, the costs that are not covered by insurance which are for qualified long-term care services of a chronically ill individual (defined earlier) can be treated as a deductible medical expense (IRS Publication 502).

Conclusion

It has been projected that the number of individuals requiring paid long-term care services in 2050 is expected to be double the number in 2000. (https://aspe.hhs.gov/basic-report/future-supply-long-term-care-workers-relation-aging-baby-boom-generation). Understanding how tax rules fit into the financial picture of addressing long-term care can go a long way in paying for this personal need.

 


Executive Editor Sidney Kess is CPA-attorney, speaker and author of hundreds of tax books. The AICPA established the Sidney Kess Award for Excellence in Continuing Education in his honor, best-known for lecturing to over 700,000 practitioners on tax. Kess is Senior Consultant to Citrin Cooperman & Company and Counsel to Kostelanetz & Fink.

Tax Aspects of Disasters

  • Written by Sidney Kess, CPA, J.D., LL.M.

kess sidneyThe flooding in parts of Louisiana on August 11, 2016, and in Florida on September 2, 2016, was devastating; both lives and property were lost. Property losses from this and other casualty events may be covered by insurance. However, insurance may not adequately compensate individuals and businesses for property damage and destruction. Tax breaks may provide some economic help.

Determining a Casualty Event

A nonbusiness casualty event for individuals seeking to deduct uninsured losses arises from a fire, storm, shipwreck or other casualty. Case law has helped define “other casualty”: as a sudden, unexpected, or unusual event. Examples of casualties include:

• Earthquakes.
• Fires.
• Floods.
• Government-ordered demolition or relocation of a home that is unsafe to use because of a disaster.
• Mine cave-ins.
• Shipwrecks.
• Sonic booms.
• Storms, including hurricanes and tornadoes.
• Terrorist attacks.
• Vandalism.
• Volcanic eruptions.

However, progressive deterioration is not a casualty event for tax purposes. For example, the collapse of a retaining wall that had been deteriorating for an estimated 25 years was not a casualty; an individual could not deduct her loss (Alphonso, TC Memo 2016-130). The wall at issue was the retaining wall that ran along the Henry Hudson Parkway north of the George Washington Bridge and collapsed onto Riverside Drive on May 12, 2005. Examples of other occurrences that do not qualify as a casualty event:

• Damage to an antique rug by a puppy that is not housetrained.
• Termite or moth damage.
• Destruction of trees, shrubs, or other plants by a fungus, disease, insects, worms, or similar pests.

Determining the Amount of the Loss

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. 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. Sentimental value is not taken into account.

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.

The loss is reduced by any insurance and other reimbursements and by $100 (Code Sec. 165(h)(1)). If a taxpayer has insurance a claim must be made, even if it may cause premiums to increase or the insurance company drops coverage. If a taxpayer has some coverage but no claim is made, no deduction can be taken.

The amount of the loss is not reduced by food, medical supplies, and other forms of assistance received from government or private sources, unless they are replacements for lost or destroyed property (IRS Publication 547).

After determining the amount of the loss from a casualty, then total losses for the year are deductible as an itemized deduction to the extent they exceed 10% of adjusted gross income (AGI) (Code Sec. 165(h)(2)). The casualty loss is an itemized deduction claimed on Schedule A of Form 1040 (i.e., itemizing is required to take a casualty loss deduction). However, the loss is not subject to the phase-out of itemized deductions for high-income taxpayers (Code Sec. 68(c)(3)).

Business or Investment Losses

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 casualty loss deduction can be claimed.

Disaster Losses

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(i)). 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 for the prior year has already been filed, then an amended return is necessary. In deciding whether to take the loss on the current or prior year return, it usually makes sense to claim it in the year in which adjusted gross income is lower so that a greater portion of the loss is deductible (i.e., more of it exceeds 10% of AGI).

When there is a federal disaster, the IRS may provide some tax relief, such as extending the time for filing returns. For example, the IRS extended  the deadlines falling between August 11, 2016 (the date of the storm causing severe flooding in parts of Louisiana) and January 17, 2017, to January 17, 2017 (LA-2016-20, August 15, 2016). Similarly, victims of flooding parts of Texas with filing deadlines between May 26, 2016 (the date of the storm) and October 17, 2016, have an extended due date until October 17, 2016 (HOU-2016-08, June 13, 2016). However, the IRS cannot extend the time for depositing taxes or filing employment and excise tax returns.

Mitigation Payments and Reimbursements

Mitigation payments. Qualified disaster relief payments, such as amounts paid under the Robert T. Stafford Disaster Relief and Emergency Assistance Act or the National Flood Insurance Act to or for the benefit of the owner of any property for hazard mitigation are excludable from gross income. The basis of property is not adjusted for the payments.

FEMA payments under the Individual and Households Program (IHP) to individuals are also tax free. However, a taxpayer who receives a FEMA IHP repair assistance payment or replacement assistance payment must reduce the amount of any casualty loss attributable to the damaged or destroyed residence by the amount of the FEMA IHP payment. In addition, the recipient must reduce the tax basis in the damaged or destroyed residence by the amount of the FEMA IHP repair assistance payment or replacement assistance payment, as well as by the amount of the allowable casualty loss deduction attributable to the damaged or destroyed residence. If the recipient repairs a damaged residence, the cost of repairs ordinarily is capitalized and added to the recipient’s tax basis in the damaged residence.

Reimbursements. 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). 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.

Conclusion

The IRS has more information about disaster assistance and emergency relief for individuals and businesses at https://www.irs.gov/businesses/small-businesses-self-employed/disaster-assistance-and-emergency-relief-for-individuals-and-businesses-1.


Executive Editor Sidney Kess is CPA-attorney, speaker and author of hundreds of tax books. The AICPA established the Sidney Kess Award for Excellence in Continuing Education in his honor, best-known for lecturing to over 700,000 practitioners on tax. Kess is Senior Consultant to Citrin Cooperman & Company and Counsel to Kostelanetz & Fink.

Tax Consideration of Identity Theft

  • Written by Sidney Kess, CPA, J.D., LL.M.

kess sidneyIn its annual release in 2016, the Federal Trade Commission noted that reports of identity theft increased more than 47% from 2014 to 2015 (https://www.ftc.gov/news-events/press-releases/2016/03/ftcreleases-annual-summary-consumer-complaints) and tax-related identity theft is a big part of this fraud. Identity theft has been the top category for frauds reported to the FTC for the past 15 years.

Identity Theft

Identity theft can take many forms. Thieves can obtain personal information (e.g., birth dates, Social Security numbers, bank and other financial accounts) to access financial accounts or use the personal information to establish accounts that are then used to make purchases or obtain loans for which the taxpayer may be on the hook. Almost half of all personal information is obtained from lost or stolen mobile devices: laptops, tablets and smartphones.

From a tax perspective, if a taxpayer is victimized and the action amounts to a theft under state law, any unreimbursed losses are deductible as a theft loss (Code Sec. 165(c)). Key points about a theft loss deduction:

• The taxpayer must itemize deductions.

• The first $100 is not deductible.

• Only losses in excess of 10% of adjusted gross income can be deducted.

Obtaining protection. Some homeowners’ policies provide coverage for identity theft; others do not but often coverage can be added for a modest cost. Individuals can obtain separate identity protection insurance. Alternatively there is protection through a credit monitoring service to help detect identity theft before significant financial losses occur. Some credit monitoring services also provide credit repair services to help an individual get back to pre-identity theft condition, and obtain reimbursement for lost wages when taking time off to combat a theft. Each policy or service may set limits on coverage, require deductibles, or have other conditions. At present, premiums for identity theft insurance and the cost of identity theft protection services, such as LifeLock and Identity Guard, are not deductible; these costs are viewed as a nondeductible personal expense.

Tax-Related Identity Theft

Tax-related identity theft occurs when a thief uses a taxpayer’s identity to obtain a bogus tax refund. The taxpayer may be unable to e-file his/her legitimate tax return for the year because one has already been filed under the taxpayer’s Social Security number. Even worse, a thief may use a taxpayer’s personal information to get a job and the thief’s employer reports the income but the taxpayer, unaware of the income, omits it from his/her return and then receives a bill from the IRS for unpaid taxes.

The IRS has been working to combat tax-related identity theft and was able to detect and stop more than 3.8 million suspicious returns in the 2015 filing season (IRS, Global Identity Theft Report (May 31, 2015)). Nonetheless, identity theft continues to top the IRS’ Dirty Dozen Tax Scams (https://www.irs.gov/uac/newsroom/irs-wraps-up-the-dirtydozen-list-of-tax-scams-for-2016). These scams occur when criminals impersonating IRS agents try to collect bogus taxes on the threat of arrest, deportation, loss of licenses, and other actions as well as phishing where identity thieves try to steal personal information. In response to the phone scams, the IRS said in an internal memorandum on May 20, 2016, that it would not make any initial audit contact

with a taxpayer by phone, only snail mail

will be used for this purpose.

Report identity theft. If a taxpayer knows that his/her personal information has been compromised, the taxpayer can file Form 14039, Identity Theft Affidavit; this puts the IRS on the alert. The form is mailed to the IRS, along with a copy of the Social Security card, driver’s license, passport, military ID, or other government-issued form of identification.

Obtain an IP PIN. A taxpayer can obtain an Identity Protection Personal Identification Number (IP PIN), which is a six-digit number used in place of a Social Security number when filing a tax return. The IRS will issue an IP PIN under three scenarios:

• Taxpayers who the IRS has identified as ID victims. The IRS expects to send about 2.7 million IP PINs by mail later this year for use in the 2017 filing season.

• Taxpayers who file Form 14039.

• Taxpayers who live in Florida, Georgia, and the District of Columbia, which are areas that are part of a pilot program on combating ID theft.

An IP PIN can be obtained online by using “Secure Access Steps,” which is an online authentication process. Details about this process are in IRS Fact Sheet 2016-20 (https://www.irs.gov/uac/how-to-register-for-get-transcript-online-using-new-authentication-process).

Use IRS resources. The IRS recognizes the severity of the identity theft problem and has numerous resources to help taxpayers. These include:

• Fact Sheet 2016-3: IRS Identity Theft Victim Assistance: How it Works.

• IRS Identity Theft Protection Specialized Unit at 800-908-4490.

• Publication 4524, Security Awareness to Taxpayers.

• “Taxes. Security. Together.” This is a joint campaign by the IRS, state tax administrators, and the private-sector tax industry to encourage taxpayers to protect personal and financial data online and offline.

• Taxpayer Guide to Identity Theft at https://www.irs.gov/uac/taxpayer-guide-to-identity-theft, which contains information and links.

• YouTube video on tax-related identity theft (https://www.youtube.com/watch?v=1EvfqG-6L5w).

Identity Theft Services

If a company’s data is breached and it offers identity theft services to customers who may be impacted, the IRS has determined that the value of the services is tax free (Announcement 2015-22, IRB 2015-35, 288). Identity theft services include credit reporting and monitoring services, identity theft insurance policies, identity restoration services, or other similar services intended to prevent and mitigate losses due to identity theft resulting from the company’s data breach.

This tax-free treatment extends to an employer providing identity theft services to employees following a data breach of the employer. The value of this fringe benefit to employees is not treated as taxable compensation. It is not reported on Form W-2; it is not subject to employment taxes.

However, employers offering identity theft services to employees as a fringe benefit in the absence of a data breach, then the value of the benefit is taxable to employees and subject to employment taxes.

Looking Ahead

The National Taxpayer Advocate’s most recent report advised the IRS to help victims of identity theft more quickly resolve their account problems and obtain their refunds (https://taxpayeradvocate.irs.gov/Media/Default/Documents/2016-JRC/Area_of_Focus_1_IRS_should_provide_ID_theft_victims_with_a_single_point_of_contact-1.pdf).

A bill introduced in Congress in September, Data Breach Insurance Tax Credit Act (H.R. 6032)( https://www.congress.gov/bill/114th-congress/house-bill/6032), would allow those in a trade or business to claim a tax credit for 15% of the cost of data breach insurance. Whether or not this measure will pass remains to be seen.

Conclusion

The matter of identity is not going away; if anything it is growing. Tax breaks can be helpful in dealing with some of the financial costs of those who have been victimized.


Executive Editor Sidney Kess is CPA-attorney, speaker and author of hundreds of tax books. The AICPA established the Sidney Kess Award for Excellence in Continuing Education in his honor, best-known for lecturing to over 700,000 practitioners on tax. Kess is senior consultant for Citrin Cooperman and is consulting editor to CCH.

Tax Strategies for Windfalls

  • Written by Sidney Kess, CPA, J.D., LL.M.

mug sid kessIndividuals may have financial windfalls because of a variety of occurrences. Some windfalls result from good fortune, such as winning the lottery or selling a business, while others result from bad fortune, such as medical malpractice or an inheritance. Either way, there are tax consequences to consider. Some consequences are immediate, while others have a long-term impact.

Immediate Tax Consequences of a Windfall

The receipt of a windfall may be taxable or tax-free. The general rule is that income from whatever source derived is includible in gross income (Code Sec. 61). However, there are various exclusions that transform some recoveries into tax-free income.

Damages. Damages from lawsuits, settlements, and awards are taxable unless they are payable for a personal physical injury or sickness (Code Sec. 104(a)(2)). Thus, damages received for a non-physical personal injury, such as defamation or discrimination, are taxable. So too are punitive damages and damages for back pay and other taxable compensation. Interest paid on a judgment usually is taxable.

When an attorney agrees to represent an individual on a contingency basis and there is a recovery, the individual is taxed on the entire award (Banks II, S.Ct., 543 U.S. 426 (2005)). This is so even though the individual does not actually receive the entire award because one third (or whatever portion was agreed upon) is disbursed directly to the attorney.

Damages for a wrongful death claim typically are comprised of compensatory damages for physical and mental injury as well as punitive damages for reckless, malicious, or reprehensible conduct by the wrongdoer. The portion for compensatory damages is tax free while the portion for punitive damages is taxable. However, if a wrongful death claim is made under a state statute that treats all of the recovery as punitive damages (i.e., precludes compensatory damages), the recovery is fully excludable for federal income tax purposes (Code Sec. 104(c)).

Damages for emotional distress resulting from a nonphysical personal injury, such as job discrimination, are excludable only to the extent used for medical costs. “Soft injuries,” such as headaches, insomnia, and weight loss, usually are treated as emotional distress and allocable damages are not tax-free. For example, in one recent case a postal worker could not exclude damages for these soft injuries arising from her discrimination action; the discrimination did not cause any physical injuries (Barbato, TC Memo 2016-23).

Damages received to compensate for property losses may be tax free if the recovery does not exceed the individual’s basis in the property. The recovery is treated as a tax-free return of capital (Code Sec. 1001).

As a general rule, legal fees to recover tax-free damages are not deductible while legal fees to recover taxable damages are deductible. Deductible legal fees related to personal injury usually are treated as miscellaneous itemized deductions, which can be written off only to the extent total miscellaneous itemized deductions exceed two percent of adjusted gross income (Code Sec. 67(a)). Miscellaneous itemized deductions are not deductible for purposes of the alternative minimum tax (Code Sec. 56(b)(1)(A)(i)). However, legal fees for certain discrimination actions can be deducted as an adjustment to gross income (Code Sec. 62(a)(20)).

Gifts and Inheritances. The receipt of gifts and inheritances are tax free, regardless of amount (Code Sec. 102). However, recipients of income in respect of a decedent must include it in their gross income when received (Code Sec. 691(a)). Thus, a person who inherits a $1 million IRA is not taxed on the inheritance of the IRA. However, when distributions are taken from the IRA, they are taxed to this beneficiary.

A person reporting income in respect of a decedent can take a deduction for federal estate tax allocable to income when the income is includable (Code Sec. 691(c)).

Lotteries, Gambling, and Prizes. Good luck can translate into millions of dollars. In January 2016, three winners split a Powerball jackpot of $1.6 billion, and in May 2016, one lucky winner hit the $429.6 million Powerball jackpot. These measures of good luck are fully taxable. In the case of lottery winnings, the only question is when the winnings are taken into income.

If a lottery winner opts for the lump sum, it is fully taxable in the year of the drawing (Code Sec. 451(a)). If the winner opts for the payment in installments, the winner is taxed only when installments are received (Code Sec. 451(h)).

Business IPO and Buyouts. Entrepreneurs may make it very big, taking their companies public or selling to new owners. While not necessarily thought of as a windfall because it may be years in the making, the resulting money from the deal presents similar challenges to these individuals.

Going public does not result in any immediate tax consequences for the owner. His or her holdings merely become more valuable. The sale of a business usually results in capital gains for the owner. However, asset sales (as opposed to stock sales) may trigger some ordinary income; ordinary income results from the sale of ordinary income property (e.g., inventory).

Whistleblower Awards. The government pays for information that leads to recoveries for fraud in Medicaid, government contracting, banking, taxes, public securities, and more. For example, there are two types of whistleblower awards from the IRS (Some of these are whistleblower awards where the government pursues information provided by individuals and then shares the recovery. Others are qui tam awards for private persons who bring an action on behalf of the government. These awards can be in the millions of dollars. For example, an SEC award to an individual in June 2016 was more than $17 million. Individuals receiving whistleblower awards have argued they are capital gains, but the courts have routinely treated then as ordinary income (see e.g., Patrick, 142 TC 142 (2014), affirmed CA-7, 2015-2 USTC ¶50,454)), where the courts rejected the taxpayer’s argument that he sold information and that his recovery was a capital gain).

Attorneys’ fees relating to whistleblower awards are deductible from gross income (Code Sec. 62(a)(21)).

Tax Strategies for Offsetting Windfall

Income If a windfall is taxable, there are steps that can be taken to minimize taxes.

Income-Splitting. Income splitting is a strategy in which income is shared so that it is taxed among several people. For example, if there is a winning lottery ticket, reporting multiple owners of the ticket spread the resulting income accordingly. However, when trying to spread income in the family, the person holding the winning ticket must be able to show there was an agreement or arrangement in place to share the prize before the winning number was picked; otherwise it is only an attempt by the winner to shift some of the tax burden to others.

In the spirit of shifting income, an individual may give cash or property to a family member so that resulting income is taxed to the recipient. For example, an individual who is providing support to a parent may give dividend-paying stock to the parent so the parent collects the dividends and then uses them for his/her support. There are two considerations here: (1) federal gift tax rules that may influence the size of the gift and (2) the tax situation of the recipient. Income shifting, for example, will not work well for a child who is subject to the kiddie tax because such income is effectively taxed to the child at the parent’s marginal rate (i.e., no tax savings for the family).

Charitable Contributions. Someone receiving a windfall is in a position to give generously, and take a charitable contribution deduction (Code Sec. 170). With large windfalls, setting up a charitable foundation may make sense to enable the person to obtain sizable tax deductions upfront and oversee the disbursement of the funds for favored charitable purposes.

Withholding and Estimated. Taxes Some windfalls (e.g., gambling winnings, lotteries) are subject to automatic withholding. Most others are not. It is up to the individual to ensure that sufficient estimated taxes are paid on a taxable windfall to avoid estimated tax penalties.

Long-Term Impact of a Windfall

When an individual receives a windfall, likely there is a need for comprehensive financial and estate planning. Here are some tax-wise considerations:

• What investments should be made with the windfall? Some windfalls may need to be invested safely in liquid assets (e.g., a windfall needed for future medical costs). In other cases, an individual may want to invest for growth or tax-free income. For example, municipal bond holdings may be more attractive than taxable investments because the windfall recipient has been pushed into a higher tax bracket.

• Is there a concern about death taxes? For example a windfall can mean that the person’s gross estate will be larger than the federal exemption amount ($5.45 million in 2016) and subject to estate; the tax may be minimized or avoided with estate tax planning. State death tax exemptions must also be factored into estate planning.

Conclusion

Practitioners who have clients that receive windfalls can provide valued advice on handling the newfound wealth. Consider not only federal income tax implications, but also state and local taxes. The American Bar Association has an article about advising clients who win a lottery (http://www. americanbar.org/content/newsletter/publications/ gp_solo_magazine_home/gp_solo_ magazine_index/gerstner.html).


Executive Editor Sidney Kess is CPA-attorney, speaker and author of hundreds of tax books. The AICPA established the Sidney Kess Award for Excellence in Continuing Education in his honor, best-known for lecturing to over 700,000 practitioners on tax. Kess is Senior Consultant to Citrin Cooperman & Company and Counsel to Kostelanetz & Fink.