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Key Tax Laws by Birthday

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

mug sid kessMany of the tax rules for individual taxpayers depend on age. Attaining a birthday may entitle an individual to a special tax break or end entitlement to another. Here is a rundown of key birthdays and what they mean for federal income taxes. It should be noted that some apply on the date of the birthday, some rules apply when the birthday is achieved as of the close of the taxable year, and some apply with respect to the half-year birthday.

Age 13

The dependent care credit can be claimed for a child who has not attained age 13 (Code Sec. 21(b)(1)(A)). This means that expenses up to this birthday can be taken into account for the year in which this birthday occurs.

Age, however, is disregarded if the child is a dependent who is physically or mentally incapable of self care (Code Sec. 21(b) (1)(B)).

Age 17

A tax credit of up to $1,000 can be claimed for a child under the age of 17 (Code Sec. 24(c)(1)). If they turn 17 during the year, no credit is allowed for that year; the credit is not prorated for this purpose. There is no age exception for a disabled child (Polsky, CA-3, USTC ¶ 50,506).

Age 18

A contribution of up to $2,000 can be made annually to a Coverdell Education Savings Account (ESA) until a child attains age 18 (Code Sec. 530(b)(1)(A)(ii)). However, a contribution can be made until the birthday. For example, if a child becomes 18 years old on May 1, 2017, a contribution of up to $2,000 can be made for 2017 until April 30, 2017. The contribution amount does not have to be prorated for the portion of the year in which the child was under age 18.

Ages 19 and 24

For purposes of treating a child as a qualifying child for the dependency exemption, these two birthdays come into play (Code Sec. 152(c)(1)(C)). A child can be a qualifying child if younger than the taxpayer claiming the exemption and is under age 19. A child can continue to be a qualifying child up to the age of 24 if he/she is a full-time student and younger than the taxpayer.

However, a parent may still claim a dependency exemption for a child who does not meet the definition of a qualifying child if the child can be treated as a qualifying relative (Code Sec. 152(d)). Thus, if a parent is supporting a child who is 32 years old in the parent’s home, a dependency exemption can be claimed as long as the child’s gross income is not more than a set amount ($4,050 in 2017) and other requirements are met.

Ages 19 and 24 are also key birthdays for the kiddie tax (Code Sec. 1(g)). Once this age is obtained, all of a child’s unearned income is taxed only at the child’s rates rather than the parent’s top tax rates.

Age 26

Under the Affordable Care Act, a child can remain on his/her parent’s insurance policy until the age of 26. This is so whether the child is a dependent or even lives with the parent. However, once the child attains age 26, this coverage is no longer permissible.

Age 30

When a beneficiary in a Coverdell ESA attains age 30, the account must be distributed to him or her within 30 days of this birthday (Code Sec. 530(b)(1)(E)). Even if there is no actual distribution, it is deemed to occur on this date. Earnings in the account become taxable at this time.

However, the deemed distribution rule does not apply if the beneficiary has special needs. Also a deemed distribution can be avoided by changing the beneficiary of the account to a “member of the family” (as defined in Code Sec. 529(e)(2), such as the beneficiary’s child, sibling.

Age 50

Individuals with compensation from a job or selfemployment can make a “catch-up” contribution to certain qualified retirement plans and IRAs (including Roth IRAs). These additional contributions are permitted to enable workers to maximize retirement savings. Despite the term “catch up” for those age 50 and older, there is no relationship to prior contributions or the absence of such contributions.

For 2017, the additional catch-up amounts (Notice 2016-62):

• 401(k), 403(b), and 457 plans: $6,000

• SIMPLE IRAs: $3,000

• IRAs and Roth IRAs: $1,000

Age 55

The 10% early distribution penalty on distributions from qualified retirement plans prior to age 59 ½ does not apply if distributions are made because of separation from service after age 55 (Code Sec. 72(t)(2)(A)(v)).

As in the case of retirement plans and IRAs, additional contributions based on age can be made to health savings accounts (HSAs) beginning at age 55. The additional contribution is $1,000. This amount is fixed by law; it is not indexed for inflation.

Age 59½

The 10% early distribution penalty on distributions from qualified retirement plans and IRAs does not apply after attaining age 59 ½ (Code Sec. 72(t)(2)(A)(i)).

Age 65

An individual who uses the standard deduction can claim an additional amount for age (Code Sec. 63(f)). For 2017, the additional standard deduction amount is $1,550 for singles and $1,250 for joint filers (for each spouse age 65 and older).This applies to someone who attains age 65 before the close of the taxable year. It also applies to anyone with a January 1 birthday; he or she is deemed to have reached age 65 in the previous year. For example, a person who attains age 65 on January 1, 2018, can claim the additional standard deduction on a 2017 income tax return.

This age also impacts the threshold for filing an income tax return (Code Sec. 6012(a)(1)(B)). More specifically, the gross income threshold is increased by the additional standard deduction amount.

Age 65 is also the age when distributions from HSAs can be taken penalty free for nonmedical expenses. However, these distributions are still subject to income tax.

Age 70½

Becoming 70½ years old bars any further contributions to an IRA (Code Sec. 219(d)(1)). No contribution is allowed if this age is attained by the end of the year. This contribution limit applies even though the individual continues to work. However, contributions to a SEP and a SIMPLE-IRA, which are IRA-based retirement plans, continue past this age, even though required minimum distributions simultaneously start at this time, explained next.

Attaining age 70½ triggers the required minimum distribution (RMD) rules for qualified retirement plans and IRAs. Owners of these accounts must begin their RMDs by the end of year in which this age is reached. For example, an individual’s 70th birthday is March 1, 2017. She reaches age 70½ in 2017, so her first RMD is due by December 31, 2017. If her birthday had been July 1, she would not attain age 70½ until 2018 and her first RMD would be due by December 31, 2018.

The failure to take an RMD can trigger a 50% penalty (Code Sec. 4974(a)). However, the RMD can be delayed in some circumstances:

• The first RMD is treated as timely if taken by April 1 following the year in which the taxpayer attains age 70½. In the earlier example, she would not have a penalty if her first RMD were taken by April 1, 2018. However, in any event, the second RMD is December 31, 2018.

• An individual who is still working for a company with a qualified plan may postpone RMDs until actual retirement if the plan permits it. However, this delay does not apply to anyone who is a more-than-5% owner of the company. And it does not apply to IRAs and IRA-based plans (e.g., SEPs, SIMPLE IRAs, and SARSEPs).

There are no lifetime RMDs for the owner of a Roth IRA.

Conclusion

Attorneys are used to working with tickler systems and calendars to ensure that key deadlines for certain actions are timely met. The same methods should be used to ensure that age-related tax rules are observed.


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, consulting editor to CCH and Of Counsel to Kostelanetz & Fink.

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 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 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.