A public hearing on the existing regulations, held at IRS headquarters in Washington, D.C., in early April 2013, only confirmed how the application of the NII Tax to certain categories of income—particularly income arising from "passive activities"—is challenging even the experts. Nevertheless, taxpayers are not getting a reprieve from the immediate application of this new tax.  The 3.8 percent Medicare surtax on net investment income (NII) became effective January 1, 2013. Current confusion over exactly how the 3.8 percent operates can impact on tax strategies that should be put into motion in 2013. Any misinterpretation can also bear on 2013 estimated tax that may be due to cover any 3.8 percent NII Tax liability.

NII Tax Thresholds

For tax years beginning after December 31, 2012, the NII surtax on individuals equals 3.8 percent of the lesser of: net investment income for the tax year, or the excess, if any, of:

the individual's modified adjusted gross income (MAGI) for the tax year, over
the threshold amount.
The threshold amount in turn is equal to:

$250,000 in the case of a taxpayer making a joint return or a surviving spouse,
$125,000 in the case of a married taxpayer filing a separate return, and
$200,000 in any other case.
Trusts and estates are also subject to the NII surtax, to the extent of the lesser of: (i) undistributed net investment income, or (ii) the excess of adjusted gross income over the dollar amount at which the highest tax bracket begins (which, for 2013, is $11,950).

Net Investment Income

The primary confusion over application of the 3.8 percent NII Tax revolves around finding a precise definition of "net investment income" as enacted by Congress. To appreciate the complexity of the task, just look at the applicable Internal Revenue Code provision. Code Sec. 1411(c)(1) defines net investment income as the sum of:

Category (i) income: Gross income from interest, dividends, annuities, royalties, and rents, other than such income which is derived in the ordinary course of a trade or business not described in Code Sec. 1411(c)(2);
Category (ii) income: Other gross income derived from a trade or business described in Code Sec. 1411(c)(2); and
Category (iii) income: Net gain attributable to the disposition of property, other than property held in a trade or business not described in Code Sec. 1411(c)(2); over
Deductions properly allocable to such gross income or net gain.

A Code Sec. 1411(c)(2) trade or business includes a passive activity under Code Sec. 469 with respect to the taxpayer or trading in financial instruments or commodities.

Comment.  Code Sec 1411 effectively creates a new tax and a new tax base, on top of the income tax, alternative minimum tax, self-employment tax and payroll taxes. Nevertheless the Preamble to the proposed regs states that, except as otherwise provided, the income tax rules should apply to Code Sec. 1411 unless good cause otherwise exists. Practitioners have asked the IRS that the final regulations give greater reassurance of this general rule.

Complexity

The IRS has stated that the principal purpose of Code Sec. 1411 is "to impose a tax on unearned income or investments of certain individuals, estates, and trusts." Unfortunately, Code Sec. 1411 is not so direct and simple, with its three categories of income (that is, (i), (ii) and (iii), above), complicating matters, albeit in an effort to close every door to those who try to "game the system."

Application of the 3.8 percent NII Tax to capital gains and dividends from a personal stock portfolio is clear under this rule of thumb. But clarity breaks down when a "trade or business" is thrown into the mix and the concept of "passive activity" is added to it.

If gain or other income is the result of an active business activity, it generally escapes NII Tax. However, when the "active" business is a passive activity (for example, a rental business), it may be deemed to generate income that is subject to the NII Tax. Furthermore, when a passive activity is not merely incidental to a business however otherwise active that business should be, the NII Tax also becomes an issue.

Passive Activity

Any revised or additional rules from the IRS on the application of the NII Tax on passive activities should be made more user friendly to the broad middle range of taxpayers and their advisors, one expert at the hearing recommended.  The IRS should err on the side of explaining things clearly and simply, even at the expense of not covering every possible nuance of interpretation.

At the same time, however, other experts are asking for more detail, at least in the way of clarification. For example, the IRS has stated that passive activity for NII Tax purposes should be applied within a narrower scope than the passive activity loss rules under Code 469.  Those Code Sec. 469 rules restrict "passive losses" from reducing income that is not "passive income."  Experts want the IRS to explain exactly what they mean by a "narrower scope."

Self-Rental Activities/Grouping

The self-rental recharacterization rule under Code Sec. 469 affects taxpayers who rent property to a trade or business in which they materially participate. Concern has been expressed over the possibility of interpreting net investment income under Code Sec. 1411 to include rental income from a self-rental activity grouped with a trade or business activity in which the taxpayer materially participates.

The material participation and trade or business requirements should be tested on the grouped activity as a whole rather than on a component basis, one expert in particular stressed at the hearing. If that test is passed, he argued, the trade or business income and rental income from the grouped activity should be excluded from the reach of the NII Tax. For example, the owners of self-rental properties should not have that rent considered as separate from their overall business activity and subject to the net investment tax simply because properties are held in a separate LLC to avoid tort liability.

Regrouping deadline

The proposed regulations permit businesses subject to the NII Tax to elect to regroup their activities for passive-loss purposes in 2013 or 2014. This regrouping election allows taxpayers with a fresh start to accommodate the new NII surtax. Without permitting regroupings, taxpayers would be bound by their original grouping decisions, some of which may have been made as many as 20 years ago, only for purpose of Code Sec. 469 passive loss rules and not the NII Tax. Some small business representatives are also concerned that, because of the complexity of the rules, the final regulations should extend the deadline for a regrouping election through 2015.

Application of the net investment income tax is particularly difficult to get a handle on in a variety of situations.  Unfortunately, however, at 3.8 percent, it is costly enough not to be ignored.

If you have any questions about how the NII Tax may apply to your business, rental operations, or overall investment strategy, please do not hesitate to call our office.

You are required to file "Treasury Department Form 90-22.1," the "Report of Foreign Bank and Financial Accounts," if you have a financial interest in or signature authority over a foreign financial account. These accounts include bank accounts, brokerage accounts, mutual funds, or other types of foreign financial accounts. This is not a form that you file with your tax return. Rather it is a separate form due June 30 each year that is filed with the Treasury Department in Detroit (due June 28 this year since June 30 is a Sunday). Generally, this report is required to be filed if you have an interest in such accounts, and the aggregate value of those accounts exceeds $10,000 at any time during the calendar year.

If you do have assets in foreign banks or brokerages, be sure to meet your filing obligation. The requirements can get complicated, and the penalties for nonfiling are severe. For details or filing assistance, contact our office.

An example of these bogus e-mails: You receive a message confirming IRS receipt of your tax return, but the IRS needs more information to process your return. The e-mail looks official and completely legitimate. But it isn’t. The IRS does NOT contact taxpayers asking for personal and financial information. These e-mails should be deleted immediately. Fake IRS websites are also created by scammers to lure victims into filling out forms providing information that results in identity theft.
 

The general rule is that you have three years to amend a personal or business return. Special rules may apply if you paid your taxes late, or are claiming certain business losses or carrybacks. You may have as long as seven years if you are filing to claim a loss on a worthless security or bad debt.

Many amended returns are filed each year. Form 1040X is used to show the items of income or deductions that you want to change or the different elections you want to make. A separate form must be filed for each previous year you want to change. You’ll have to file a paper copy to amend your return, even if you originally filed electronically or by telephone. If you want to change a corporate return, you file a Form 1120X, but the procedures are similar.

If you owe additional tax because of the change, you should send a check at the time you file your amended return. The IRS will let you know if you owe additional interest or penalties.

Please contact our office if you have questions about any return that's already been filed. We can let you know whether you need to file an amended return and help you with any of the necessary paperwork.

Reducing your withholding is as simple as filing a new Form W-4 with your employer. The form comes with a worksheet to figure out how many allowances you should claim. Don’t forget to allow for other taxable income besides wages, such as dividends or investment gains.

If you’re concerned about underpaying taxes and exposing yourself to penalties, there are a few rules you should know. Generally, you won’t face a penalty if you pay for 2013, through withholding or quarterly estimated payments, at least 100% of your 2012 taxes (110% if your adjusted gross income is over $150,000), or if you pay at least 90% of what you’ll owe for 2013.

0.9 Percent Additional Medicare Tax

The IRS reminded employers that the Additional Medicare Tax, enacted by the Patient Protection and Affordable Care Act (PPACA) applies effective January 1, 2013. The Additional Medicare Tax is imposed to the extent covered wages, compensation and/or self-employment income exceed threshold amounts ($200,000 for single individuals, $250,000 for married couples filing joint returns and $125,000 for married couples filing separately). Employers, however, must withhold Additional Medicare Tax from wages paid to an individual in excess of $200,000 in a calendar year, without regard to the individual employee's filing status or other wages/compensation.

It is up to the employee to make adjustments to account for any shortfall (if subject to the $125,000 threshold or if the combined wages of a married couple exceed $250,000) or overage (if subject to the $250,000 threshold). Employees cannot request additional withholding specifically for Additional Medicare Tax but can request a change in overall income taxes withheld by their employer. Taxpayers anticipating they will owe Additional Medicare Tax, and who did not request additional income tax withholding, may need to make estimated tax payments.

The standard Medicare tax equals 1.45 percent of covered wages. The 1.45 percent employee-share of Medicare tax is matched by the employer. There is no employer match for the Additional Medicare Tax, however.

The IRS further explained that an employer must begin withholding the 0.9 percent Additional Medicare Tax in the pay period in which they pay wages in excess of $200,000 to an employee and continue to withhold it each pay period until the end of the calendar year. All wages that are subject to Medicare tax are subject to Additional Medicare Tax withholding if paid in excess of the $200,000 withholding threshold. The IRS has added line 5d, Taxable wages & tips subject to Additional Medicare Tax withholding, to Form 941.

Payroll Tax Holiday Ends

The IRS also has reminded taxpayers that the OASDI tax rate is 6.2 percent for both employers and employees for calendar year 2013. The payroll tax holiday, effective for calendar years 2011 and 2012, was not renewed by the American Taxpayer Relief Act of 2012 (ATRA) or other legislation and has expired. The Social Security wage base for calendar year 2013 is $113,700, up from $110,100 for calendar year 2012. The payroll tax holiday had reduced the employee-share of OASDI taxes from 6.2 percent to 4.2 percent (with a comparable benefit for self-employed individuals).

 Comment. The timely filing, timely mailing rule requires that the return be postmarked within the prescribed filing period. Thus, an individual return postmarked April 16 and received on April 20 is considered filed on April 20.

Private carriers. A return delivered by a designated private carrier is timely if the carrier marks or records the return no later than the due date of the return. However, a return delivered by means other than the U.S. mail or a designated private carrier must be delivered to the appropriate IRS office on or before its due date to be timely.

The IRS can designate a private carrier if the carrier: is available to the general public; is as timely and reliable as U.S. first class mail; records the date on which the package was given to it for delivery; and satisfies other conditions. The IRS has identified DHL Express, Federal Express, and United Parcel Service as designated carriers.

No postmarks; other postmarks. If there is no postmark, the taxpayer may establish the mailing date by extrinsic evidence. A return in an envelope with a foreign postmark or private meter machine postmark is timely filed if the postmark is on or before the due date of the return and the return is received no later than if it had been postmarked by the postal service on the last day for filing the return.

Registered, certified. A receipt showing that a return was sent by registered or certified mail is proof that the return was delivered to the place that it was addressed. Returns sent by registered mail are deemed to be postmarked on the date of registration. Returns sent by certified mail are deemed to be postmarked on the date stamped on the receipt, under the timely mailed, timely filed rule. However, if a taxpayer mails a return certified but does not obtain a certified receipt, the postmark on the envelope determines the filing date.

Comment. A taxpayer mailing a return on or near its due date should use registered or certified mail with a postmarked receipt. Documents sent in this manner are automatically timely filed.

Electronic. An electronically-filed return with a timely electronic postmark is timely filed, provided that the return is filed in the manner prescribed for electronic returns. An electronic postmark is a record of the date and time, in the taxpayer's time zone, that an authorized electronic return transmitter receives the e-filed document on its host system.

Questions?  Please contact your accountant in our Fort Wayne or Marion office.

"Check-the-Box" Election

An LLC with more than one member can elect:

• Partnership
• Corporation
• S corporation (accomplished by electing to be taxed as a corporation, then filing an S corporation election)

An LLC with only one member can elect:

• Disregarded entity
• Corporation
• S corporation (accomplished by electing to be taxed as a corporation, then filing an S corporation election)

The IRS will assign these classifications if no entity election is filed for an LLC (the default rules):

• any business entity that is not a corporation is classified as a partnership
• any entity that is wholly-owned by a single person will be disregarded as an entity separate from its owner (taxed as a sole proprietorship).

Typically, an LLC with more than one member will elect to be taxed as a partnership, whereas a single-member LLC will elect to be disregarded and taxed as a sole proprietorship.

If you have any questions relating to LLCs, their benefits, drawbacks, or their treatment under the Tax Code, please contact our Fort Wayne or Marion office.

It's hard to argue with the theory. After all, if your tax refund goes directly to a retirement account, it's not available to spend on that new leather sofa or Hawaiian vacation. (Of course, a big tax refund also may indicate that you're withholding too much from each paycheck and giving the government an interest-free loan. But that's another issue.)

Still, things sometimes go awry. Following are four potential obstacles that can derail your tax refund on its way through the direct deposit process:

* Wrong account number. Let's say you transpose a couple of digits on your tax return, and those digits happen to indicate which financial institution or which account will receive your refund. If this wrong account number belongs to another customer, that mistake could take weeks or even months to correct. By the way, don't expect the IRS to come to your rescue. They've made it abundantly clear that correct input of financial information on the tax return is the taxpayer's responsibility -- not the government's.

* Correction fluid and cross-outs. If the IRS gets your tax return and finds that the routing numbers have been manually revised, your direct deposit request will likely be rejected. You may get an old-fashioned refund check in the mail.

* Wrong type of account. It's up to you to verify that your financial institution will accept direct deposits into an IRA. Some banks, for example, will reject direct deposits to anything other than a savings account.

* Refund adjustments. Sometimes the IRS corrects a taxpayer's math or makes other adjustments that can affect the refund amount. In some cases, these adjustments may result in a direct deposit that exceeds the allowable IRA contribution amount. If so, you could be stuck with a penalty for excess contributions.

Direct deposit of your tax refund can be a hassle-free way to make an annual IRA contribution. But proceed with caution. Double check your return and verify that your bank or credit union will accept direct deposits to an IRA.

If you violate the Tax Code, the IRS may impose civil and/or criminal penalties, depending on the type of infraction committed. Civil penalties are commonly imposed for a failure to pay taxes when due, failure to report the correct amount of tax owed, a failure to deposit federal tax deposits, filing late, or even failing to pay because of a bounced check. There are more than 100 kinds of civil penalties in the Tax Code, ranging in severity. For example, a penalty for failure to file (separate and apart from a failure to pay) carries a minimum $100 fine, while a penalty for valuation overstatement can result in a 30 percent penalty on the amount of tax owed as a result. Criminal penalties can be even more severe, and may include terms of imprisonment as well as fines.

Taxpayers, return preparers, and third parties with some connection to the tax return in question may all become subject to penalties. Common civil penalties include failure to file tax returns, failure to pay taxes due, underpaying tax due to negligence, and valuation misstatements that result in inaccurate reporting of income (and therefore an incorrect amount of tax owed).

Criminal penalties are imposed for violations of federal Tax Code and Criminal Code, which include the willful (or intentional) attempt to evade or defeat any federal tax, the failure to collect or truthfully account for and pay any federal tax as required, or the failure to keep required records, supply required information or make required returns. Generally the IRS Criminal Investigations Division will conduct investigations into allegations of criminal tax violations, and if it recommends that the government prosecuted, the case could be referred to the IRS Office of Chief Counsel, the Department of Justice, the U.S. Attorney's Office, or some combination of the three.

Hopefully you will never receive a letter from the IRS about either civil or criminal penalties. But if you do, please call our offices with any questions.

The top tax rate is 40 percent, the maximum exclusion for both estate and gift taxes is a unified amount of $5 million (indexed at $5.12 million for 2012 and $5.25 million for 2013), the tax basis of property acquired from a decedent is stepped up, and the portability of a deceased spouse's unused exclusion (DSUE) amount is preserved. The generation-skipping transfer (GST) tax exemption, which is tied to the estate tax rate, is also set at $5 million, adjusted for inflation. However, taxpayers should realize that inheritance taxes imposed by a state may apply to a lower amount, so some estate tax planning for state taxes may be appropriate.

If Congress had not acted on the sunsetting provisions, the maximum estate tax rate would have been 55 percent effective January 1, 2013, and the maximum exclusion would have been only $1 million. However, even though these changes are permanent and do not have an expiration date, one never knows whether Congress may change the law in the future.

Stepped-up basis

Stepped-up basis is preserved for assets passing through the estate. This is particularly important for people whose estates are not large enough to owe estate taxes (under $5 million, as indexed for inflation). In 2010, when there was no estate tax, the Tax Code applied a modified carryover basis regime with $1.3 million worth of assets subject to a basis step-up (plus $3 million for property passing to the spouse). All other properties would have a carryover basis and thus could have significant built-in gains when acquired by the estate tax beneficiary.

Now, all properties passing through the estate for tax purposes are entitled to a step-up in basis, whether or not they are subject to estate tax. This will have a significant impact on income taxes for taxpayers receiving assets from the estate, insulating built-in gains from taxes, and allowing taxpayers to sell assets and invest them in other arrangements.

Unified estate and gift tax

Even though the lifetime exemption under the unified estate and gift tax ($5 million, adjusted for inflation) may never be used up, filing gift tax returns for annual gifts above the exclusion is still necessary. The annual gift tax exclusions ($13,000 for 2012; $14,000 for 2013) are much lower than the lifetime exclusion. However, thanks to the lifetime exclusion, taxpayers often will not owe any gift taxes on a gift, even one that exceeds the annual exclusion.

Portability

The portability of the DSUE amount was enacted in 2010 and originally applied where the first decedent in a married couple died in 2011 or 2012. In ATRA, Congress made portability permanent.

In the absence of portability, the first spouse to die could transfer property to the surviving spouse tax-free, by claiming the marital deduction. But the second spouse, as sole owner of the assets, was in danger of exceeding the applicable estate tax exclusion and owing more estate tax.

For example, a husband owns $7 million in property and the wife owns $5 million in property. Upon A's death, the husband's estate passes $2 million of property to his children, and $5 million in property to his wife, using the marital deduction. When the wife dies, she has $10 million in property (assuming that the wife's earnings and expenses offset each other), but only has an exclusion of $5 million. Thus, $5 million of assets are taxable.

Portability eliminates or substantially lessens this problem. If the husband passes $2 million to his children, and $5 million to his wife, he has a DSUE amount of $3 million. The wife, when she dies with an estate of $10 million, has an estate tax exclusion of $8 million ($3 million from the husband, plus her own $5 million exclusion), and will owe estate tax on $2 million, instead of $5 million. At a 40 percent maximum rate, this is a potential savings of $1.2 million to the wife (and to the husband and wife collectively). Portability lessens the need for complex estate planning when the husband and wife together have assets in the $10 million range (more or less).

Other tax provisions

ATRA provides additional certainty for other estate, gift, and generation-skipping transfer (GST) tax provisions. More liberal rules for using installment payments for estate taxes will continue to apply. The five percent surtax on estates and gifts between $10 million and $17,184,000, which is designed to offset the benefits of graduated rates, will no long apply.

Modifications to the exclusion for qualified conservation easements are permanently extended, again facilitating planning in this area. The repeal of certain distance requirements is permanently extended; accordingly, the exclusion is available to any qualified real property, located in the U.S. or a U.S. possession, that was owned during the three-year period ending on the date of the decedent's death.

ATRA also extended a number of GST tax provisions set to expire at the end of 2012. These included the GST deemed allocation and retroactive allocation provisions; clarification of valuation rules for determining the inclusion ratio; provisions allowing the qualified severance of a trust; and relief from late GST allocations and elections.

Finally, ATRA extended the IRA charitable deduction for two years, through 2013. Taxpayers age 70 ½ and older can make a maximum distribution of $100,000 directly from their IRA (traditional or Roth) to a charity, without including any of the distribution in income.

Not all of ATRA's provisions are beneficial to taxpayers. ATRA permanently extended the deduction for estate taxes imposed by a state, rather than a tax credit. The Economic Growth and Tax Relief Reconciliation Act (EGTRRA) first repealed the state death tax credit for decedents dying after 2004 and replaced the credit with a deduction. ATRA also extended repeal of the deduction for qualified family-owned business interests, a provision that has been in effect since 2004.

If you would like more specific information on how the American Taxpayer Relief Act affects your estate plans, please contact this office.

Late legislation

Whenever Congress passes tax legislation late in the year, the IRS has to scramble to reprogram its processing systems to reflect changes to the tax laws. This year was no different. Congress passed the American Taxpayer Relief Act of 2012 on January 1, 2013 and President Obama signed it into law on January 2, 2013. ATRA made changes to numerous portions of the Tax Code.

Fortunately, the IRS had anticipated some of the changes, such as a permanent extension of the alternative minimum tax (AMT) relief and an extension of the $1,000 child tax credit, so the agency left its core processing systems unchanged for these provisions. As a result, the IRS reported that 80 percent of individuals were able to file when the 2013 filing season officially opened on January 30. However, that left 20 percent of individuals unable to file on January 30 because the IRS needed more time to reprogram its processing systems for many ATRA-affected forms.

For business taxpayers, the filing season generally opened on February 4. The February 4 opening covered non-1040 series business returns for calendar year 2012, including Form 1120 filed by corporations, Form 1120S filed by S corporations, Form 1065 filed by partnerships, Form 990 filed by exempt organizations and most users of Form 720, Quarterly Excise Tax Return. Business taxpayers filing many ATRA-affected forms have experienced delays similar to individual taxpayers.

Delayed forms

Since January 30, the IRS has been making progress in reprogramming its processing systems for the remaining ATRA-affected forms. In mid-February, the IRS began accepting returns from taxpayers filing Form 8863, Education Credits, (including the popular American Opportunity Tax Credit and Lifetime Learning credit) and taxpayers filing Form 4562, Depreciation and Amortization. Taxpayers claiming the student loan interest deduction or the higher education tuition deduction did not experience a delay.

The IRS anticipates that it will begin accepting the remaining forms in early March. Included in this group are taxpayers filing Forms 3800, General Business Credits: Form 5695, Residential Energy Credit; and Form 5884, Work Opportunity Tax Credit. If there is any further delay, our office will alert you.

Penalty relief

The IRS gave special penalty relief to farmers and fishermen because of late legislation. The IRS will waive the estimated tax penalty for farmers and fishermen who did not meet the March 1 deadline for filing and paying taxes. Some tax professional associations have asked the IRS to consider penalty relief for other groups of taxpayers because of the delay in filing the ATRA-affected forms. The IRS has not announced any additional penalty relief but it could. Our office will keep you posted of developments.

Refunds

The IRS's popular online Where's My Refund? tool has been overwhelmed by a large number of requests, the agency reported. To avoid service disruptions, the IRS asked taxpayers to only check on the status of their refunds once a day, preferably weekday evenings or on weekends. The IRS is currently predicting that nine out of 10 taxpayers who file their returns electronically and who opt for direct deposit should receive their refunds within 21 days. That timeframe could change depending on the IRS's workload and the possible impact of across-the-board budget cuts scheduled to take effect after February 28.

Sequestration

Sequestration is the official term for mandatory budget cuts to most federal government operations, including the IRS. Very generally, the spending reductions are to be made equally from defense spending and from all other federal spending (with some programs, such as Medicare excluded). The reductions required in each of these categories are then divided proportionally between discretionary spending and mandatory spending.

ATRA delayed the start of sequestration until March 1. President Obama and Senate Democrats have proposed a package of spending cuts and revenue raisers. The House GOP has rejected previous proposals for revenue raisers, insisting that deficit reduction be accomplished through spending cuts. At press time, negotiations continue.

The IRS will remain open after February 28. However, some of its operations could be impacted if a deal is not reached. The IRS is expected to concentrate its resources on tax administration, including the processing of returns, and tax enforcement. The IRS has released very few details about its plans for sequestration. Our office will keep you posted.

Identity theft

Along with processing returns, the IRS is combating the growing problem of identity theft. Criminals use stolen identities to file fraudulent returns and claim refunds. Typically, this occurs early in the filing season. An unsuspecting taxpayer is often unaware that his or her identity had been stolen until he or she files a legitimate return and it is rejected. In fiscal year (FY) 2012, the IRS reported that it prevented the issuance of more than $20 billion in fraudulent refunds.

The IRS has designed new identity theft filters to flag false returns before they are processed. The IRS has also issued more than 700,000 identity protection personal identification numbers (IP PINs) to taxpayers who have been victims of identity theft. In January, the IRS launched a nationwide crackdown on identity theft suspects. The IRS reported that the coast-to-coast effort against 389 identity theft suspects led to 734 enforcement actions, including indictments, informations, complaints and arrests.

If you have any questions about the 2013 filing season, please contact our office.

The "charitable IRA rollover" rule was extended through 2013, permitting taxpayers who are 70½ or older to use their IRA to donate up to $100,000 to charity. The donation must be made directly from the IRA to the charity, and it counts as part of the taxpayer's required minimum distribution for the year.

If you turned 70½ in 2013, remember that you're now required to take a minimum distribution from your IRA (and, unless you're still working, from other retirement plans also) every year. If you delayed taking your first distribution last year, you have only until April 1, 2013, to take it or you'll be subject to a 50% penalty on the amount you should have taken.

Converting a traditional IRA to a Roth IRA is still an available option for all taxpayers. Although a conversion will generate taxable income in the year you do it, later qualifying withdrawals from the Roth will be tax-free. Your conversion opportunities are not limited to just traditional IRAs. You can also convert your 401(k), 403(b), or 457 plan to a Roth.

For details or assistance on IRA matters, contact our office.

FIRST, the payroll Medicare tax will increase from 1.45% of wages to 2.35% on amounts above $200,000 earned by individuals and above $250,000 earned by married couples filing joint returns. The tax increase will also apply to self-employment income exceeding the threshold amounts.

Employers are required to withhold the additional tax from wages exceeding $200,000, regardless of the individual's filing status. They are not required to inform the employee when they begin the additional withholding, nor are they required to match the additional withholding.

SECOND, there is a new 3.8% Medicare tax on unearned income for single taxpayers with adjusted gross income over $200,000 and married couples with income over $250,000. The tax will apply to the lesser of (a) net investment income, or (b) the amount by which modified adjusted gross income exceeds the $200,000 / $250,000 thresholds. The tax may require adjustments to the estimated taxes paid by an individual, but it does not have to be withheld from wages.

Examples of unearned income include interest, dividends, capital gains, royalties, and rental income. Social security benefits, alimony, tax-exempt interest, and distributions from most retirement plans are examples of unearned income not subject to this new tax.

This simplified option is available starting with the 2013 tax return which will be filed in 2014.

Normally, farmers and fishermen are not required to make quarterly estimated tax payments if they file their tax return and pay taxes due by March 1 of the following year. The filing delay created by the new law meant that several tax forms needed by these taxpayers would not be ready on time.

As a result, the IRS has announced an extension of the March 1 filing deadline for farmers and fishermen to April 15.

The filing extension will apply to all farmers and fishermen, not just to those who use late-released IRS forms.

To qualify as a farmer or fisherman for 2012, at least two-thirds of the taxpayer's gross income for 2011 or 2012 must have come from farming or fishing.

Above-the-line deductions are more desirable than itemized deductions because:

they are more available (for example, they are not phased out or subject to a floor like many itemized deductions);
they can be claimed even if the taxpayer does not itemize deductions; and
they lower the taxpayer's AGI, which can allow the taxpayer to qualify for more and/or larger deductions.
The above-the-line deductions include:

Trade or business expenses
Net operating loss deduction
Loss from sales and exchanges
Depreciation and depletion
Deductions tied to rents and royalties
Teacher's classroom expenses
Jury pay turned over to employer
Overnight travel expenses of Reserve or National Guard
Supplemental unemployment compensation repayments
Business expenses of qualifying performing artists
Contributions to individual retirement accounts
Student loan interest deduction
Tuition and fees deduction
Health savings account deduction
Moving expenses
½ of self-employment tax
Health insurance costs of the self-employed
Contributions to SIMPLE or SEP plans
Penalty for early withdrawal of funds from a savings account
Alimony payments
Legal fees and costs paid in certain actions involving civil rights violations or whistleblower awards
Domestic production activities deduction

A capital gains rate of 0 percent applies to the adjusted net capital gains if the gain would otherwise be subject to the 10 or 15 percent ordinary income tax rate.
A capital gains rate of 15 percent applies to adjusted net capital gains if the gain would otherwise be subject to the 25, 28, 33, or 35 percent ordinary income tax rate.
A capital gains rate of 20 percent applies to adjusted net capital gains if the gain would otherwise be subject to the 39.6 percent ordinary income tax rate beginning after December 31, 2012.
Individuals are subject to the 39.6 percent ordinary income tax rate beginning in 2013 to the extent their taxable income exceeds the applicable threshold amount of $450,000 for married individuals filing joint returns and surviving spouses, $425,000 for heads of households, $400,000 for single individuals, and $225,000 for married individuals filing separate returns.

Comment:  The only change from 2012 rates is the 20 percent rate, applied as described, above.  Prior to 2013, the highest tax rate on net capital gain was 15 percent.

Comment: Adjusted net capital gain is net capital gain from capital assets held for more than one year other than unrecaptured Code Sec. 1250 gain (25 percent); collectibles gain (28 percent) or gain from qualified small business stock (varying rates).

Examples

Following the rules outlined above, computations for higher-income taxpayers (those whose taxable income together with net capital gains exceed the 39.6 percent tax bracket threshold amounts, which are also the threshold amounts for the 20 percent capital gain rate) are illustrated under three scenarios:

Example 1: Assume in 2013, joint filers with $475K in net capital gain and $200K in ordinary income:
$200K ordinary income will be taxed under the regular income tax tables, which for 2013 indicate a $43,465.50 tax.
$475K capital gain is taxed:
$250K of $475 net capital gain at 15 percent ($450K threshold less $200K ordinary income) = $37,500
The remainder of the net capital gain $225K ($475K less $250K that was taxed at 15 percent) is taxed at 20 percent = $45,000
Total tax liability: $43,465.50 on $200K ordinary income and $82,500 on $475K net capital gain.

Example 2: Assume in 2013, joint filers with $200K in net capital gain and $475K in ordinary income:
$475K ordinary income will be taxed under the regular income tax tables, which for 2013 indicate a $135,746 tax.
$200K capital gain is taxed:
All of $200K net capital gain at 20 percent ($450K threshold already exceeded by $475K in ordinary income) = $40,000.
Total tax liability: $135,746 on $475K ordinary income and $40,000 on $200K net capital gain.

Example 3: Assume in 2013, joint filers with $50K ordinary income and $425K in net capital gain:
$50K ordinary income will be taxed under the regular income tax tables, which for 2013 indicate a $4,845
$425K net capital gain is taxed:
$20,700 at zero percent ($70,700, which is the top of the 15 percent bracket less $50K ordinary income) = $0
$379,300 at 15 percent ($450,000 less $70,700) = $56,895
$25,000 at 20 percent (balance of ordinary income plus capital gain over $450K threshold) = $5,000.
Total tax liability: $4,845 on $50K ordinary income and $40,000 on $200K net capital gain.

The IRS cites that over three million taxpayers in recent tax years have claimed deductions for business use of a home, which normally requires the taxpayer to fill out the 43-line Form 8829. Under the new procedure, a significantly simplified form is used. The new method is expected to reduce paperwork and recordkeeping for small businesses by an estimated 1.6 million hours annually, according to the IRS. The new optional deduction is limited to $1,500 per year, based on $5 per square foot for up to 300 square feet.

The simplified method is not effective for 2012 tax year returns being filed during the current 2013 filing season, but it will become effective for 2013 tax year returns filed in 2014. Taxpayers may want to investigate now whether they could benefit from the election for the 2013 tax year. Acting IRS Commissioner Steven Miller advised upon announcement of the safe harbor that "The IRS … encourages people to look at this option as they consider tax planning in 2013."  A final decision on the election need not be made until 2014, when 2013 returns are filed.

Basic home office deduction rule

Under Code 280A, which governs the home office deduction rules on the simplified method election, a taxpayer may deduct expenses that are allocable to a portion of the dwelling unit that is exclusively used on a regular basis. This generally means usage as:

The taxpayer's principal place of business for any trade or business
A place to meet with the taxpayer's patients, clients, or customers in the normal course of the taxpayer's trade or business, or
In the case of a separate structure that is not attached to the dwelling unit, in connection with the taxpayer's trade or business.
The new simplified method does not remove the requirement to keep records that prove exclusive use, on a regular basis, for one of the three designated uses listed above. It does help, however, in other ways.

Simplified safe harbor

Using the new simplified safe harbor method, a taxpayer determines the amount of deductible expenses for qualified business use of the home for the tax year by multiplying the allowable square footage by the prescribed rate. The allowable square footage is the portion of a home used in a qualified business use of the home, but not to exceed 300 square feet. The prescribed rate is $5.00 per square foot.

Taxpayers who itemize their returns and use the safe harbor method may also deduct, to the extent allowed by the Tax Code and regs, any expense related to the home that is deductible without regard to whether there is a qualified business use of the home for that tax year, the IRS explained. As a result, they will be able to claim allowable mortgage interest, real estate taxes, and casualty losses on the home as itemized deductions on Schedule A of Form 1040. These deductions do not need to be allocated between personal and business use, as is required under the regular method.

Depreciation

Taxpayers using the safe harbor cannot deduct any depreciation for the portion of the home that is used in a qualified business use of the home for that tax year. For many taxpayers, depreciation is the largest component of the home office deduction under the regular method that must be sacrificed if the new safe harbor method is used.  Depending upon the value of your home and the space devoted to an office at home, using the regular method may prove to be the far better choice than electing the simplified method.

Election

Taxpayers may elect from tax year to tax year whether to use the safe harbor method or actual expense method. Once made, an election for the tax year is irrevocable.  The IRS has provided rules for calculating the depreciation deduction if a taxpayer uses the safe harbor for one year and actual expenses for a subsequent year. The deduction of expenses that are not related to the home, such as wages and supplies, is unaffected and those deductions are still available to those using the new method.

Limitations

The IRS set various limits on the safe harbor, including:

Taxpayers with more than one qualified business use of the same home for a tax year and who elect the safe harbor must use the safe harbor for each qualified business use of the home.
Taxpayers with qualified business uses of more than one home for a tax year may use the safe harbor for only one home for that tax year.
A taxpayer who has a qualified business use of a home and a rental use of the same home cannot use the safe harbor for the rental use.
If you are currently claiming a home office deduction, or if you have considered taking the deduction in the past but were discouraged by all of the paperwork and calculations required, you should consider whether the new, simplified safe harbor method is right for you. Please feel free to contact this office for further details.

Delayed start to filing season

The most immediate effect of ATRA is a delayed start to the 2013 filing season.  Shortly after passage of ATRA, the IRS announced that the 2013 filing season would begin on January 30, 2013.  That reflected a delay of eight days from the previously anticipated start date of January 22, 2013.  The IRS explained that it needed time to program its processing systems for ATRA.  As of January 30, the IRS was able to accept returns affected by the AMT patch as well as three very popular "tax extenders:" the state and local sales tax deduction, higher education tuition deduction and teachers' classroom expense deduction.

However, some taxpayers will experience a further delay.  A number of tax forms affected by late legislation require more extensive programming and testing of IRS systems. The IRS reported that it aims to begin accepting returns including these forms between late February and into March.  The IRS predicted that a specific date will be announced in the near future. Among the forms that require more extensive programming changes are some commonly used forms, most notably Form 4562 (Depreciation and Amortization). Other forms affected by the delay include Form 5695 (Residential Energy Credits) and Form 3800 (General Business Credit).

The IRS also announced special relief for farmers and fishermen who are affected by the delay.  Normally, farmers and fishermen who choose not to make quarterly estimated tax payments are not subject to a penalty if they file their returns and pay the full amount of tax due by March 1. Under the guidance to be issued, farmers or fishermen who miss the March 1 deadline will not be subject to the penalty if they file and pay by April 15, 2013.

Retroactive and prospective extensions

For individuals, some of the most popular incentives are the three mentioned above (the state and local sales tax deduction, the higher education tuition deduction and the teachers' classroom expense deduction).  Other incentives that were retroactively extended to January 1, 2012 by ATRA, and therefore are available for 2012 returns filed in 2013, include special rules treating mortgage insurance premiums as deductible interest that is qualified residence interest, and special rules for contributions of capital gains real property for conservation purposes.

Another valuable incentive extended by ATRA is a tax break for energy efficient improvements.  ATRA extended retroactively to January 1, 2012 and through 2013 the Code Sec. 25C energy credit. Energy efficiency improvements include adding insulation, energy-efficient exterior windows and doors and certain roofs. The credit has a lifetime limit; qualifying improvements must be placed into service to the taxpayer's principal residence before January 1, 2014, and there are other restrictions.

ATRA also provided transition relief for individuals wishing to make tax-free transfers of IRA funds to charitable organizations.  For tax year 2012 only, IRA owners could choose to report qualified charitable distributions made in January 2013 as if they occurred in 2012. Additionally, IRA owners who received IRA distributions during December 2012 could contribute, in cash, part or all of the amounts distributed to eligible charities during January 2013 and have them count as 2012 qualified charitable distributions.

For businesses, ATRA extended many temporary incentives.  Among the most commonly claimed are enhanced small business expensing, bonus depreciation, and the Work Opportunity Tax Credit (WOTC).  Under ATRA, the Code Sec. 179 small business expensing dollar limit for tax years 2012 and 2013 is $500,000 with a $2 million investment limit (both amounts indexed for inflation).  Bonus depreciation is available at 50 percent through 2013 and the WOTC is also available through 2013.  Many other business-related incentives that had expired at the end of 2011 are available for 2012 and 2013.

Another extended incentive is transit benefits parity. Qualified transportation fringe benefits include transit passes, van pooling, and qualified parking. The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 provided for parity for the exclusion limitation on transit passes, van pool benefits and qualified parking through 2011. ATRA extended transit benefits parity retroactively to January 1, 2012 and through 2013. In Rev. Proc. 2013-15, the IRS reported that the inflation-adjusted maximum monthly excludable amount for 2013 is $245 for transit passes and van pool benefits and also $245 for qualified parking. The IRS has issued administrative relief for employers that provided transit benefits in 2012 at their pre-ATRA rates.

Changes for 2013 and beyond

ATRA's most far-reaching changes – allowing the Bush-era tax rates to expire after 2012 for individuals with incomes over $400,000 and families with incomes over $450,000 along with increased capital gains and dividend taxes for higher income taxpayers – will be reflected on 2013 returns filed in 2014.  Other important provisions, such as the revived limitation on itemized deductions and the personal exemption phaseout, also will kick-in in 2013 and be reflected on 2013 returns filed in 2014.  Also taking effect in 2013 are an Additional Medicare Tax and a Net Investment Income surtax.  All these changes should be taken into account in planning your 2013 tax strategy.

Please contact our office for more information about the affect of ATRA on the 2013 filing season and tax planning for future years.

Brief overview of the AMT.

The AMT is a parallel tax system which does not permit several of the deductions permissible under the regular tax system, such as property taxes. Taxpayers who may be subject to the AMT must calculate their tax liability under the regular federal tax system and under the AMT system taking into account certain “preferences” and “adjustments.” If their liability is found to be greater under the AMT system, that's what they owe the federal government. Originally enacted to make sure that wealthy Americans did not escape paying taxes, the AMT has started to apply to more middle-income taxpayers, due in part to the fact that the AMT parameters are not indexed for inflation.
In recent years, Congress has provided a measure of relief from the AMT by raising the AMT “exemption amounts”—allowances that reduce the amount of alternative minimum taxable income (AMTI), reducing or eliminating AMT liability. (However, these exemption amounts are phased out for taxpayers whose AMTI exceeds specified amounts.) For 2011, the AMT exemption amounts were $74,450 for married couples filing jointly and surviving spouses; $48,450 for single taxpayers; and $37,225 for married filing separately. However, for 2012, those amounts were scheduled to fall back to the amounts that applied in 2000: $45,000, $33,750, and $22,500, respectively. This would have brought millions of additional middle-income Americans under the AMT system, resulting in higher federal tax bills for many of them, along with higher compliance costs associated with filling out and filing the complicated AMT tax form.
New law provides permanent fix.
To prevent the unintended result of having millions of middle-income taxpayers fall prey to the AMT, Congress has once again applied a “patch” to the problem by extending the 2011 exemption amounts, increased slightly, but this time the patch is intended as a permanent fix. Under the new law, for tax years beginning in 2012, the AMT exemption amounts are increased to: (1) $79,750 in the case of married individuals filing a joint return and surviving spouses; (2) $50,600 in the case of unmarried individuals other than surviving spouses; and (3) $39,375 in the case of married individuals filing a separate return. Most importantly, these amounts will indexed for inflation after 2012, meaning that the annual “patches” will no longer be needed.
Personal credits may be used to offset AMT.
Another provision in the new law provides AMT relief for taxpayers claiming personal tax credits. The tax liability limitation rules generally provide that certain nonrefundable personal credits (including the dependent care credit and the elderly and disabled credit) are allowed only to the extent that a taxpayer has regular income tax liability in excess of the tentative minimum tax, which has the effect of disallowing these credits against the AMT. Temporary provisions had been enacted which permitted these credits to offset the entire regular and AMT liability through the end of 2011. The new law extends this provision permanently.

If you would like more details about this or any other aspect of the new law, please do not hesitate to call our Fort Wayne or Marion office.

Charitable contributions.  For cash contributions (including checks and other monetary gifts), the donor must retain a bank record or a written acknowledgment from the charitable organization. A cash contribution of $250 or more must be substantiated with a contemporaneous written acknowledgment from the donee.  “Contemporaneous” for this purpose is defined as obtaining an acknowledgment before you file your return.  So save those letters from the charity, especially for your larger donations.

Tip records.  A taxpayer receiving tips must keep an accurate and contemporaneous record of the tip income.  Employees receiving tips must also report the correct amount to their employers.  The necessary record can be in the form of a diary, log or worksheet and should be made at or near the time the income is received.

Wagering losses.  Gamblers need to substantiate their losses. The IRS usually accepts a regularly maintained diary or similar record (such as summary records and loss schedules) as adequate substantiation, provided it is supplemented by verifiable documentation.  The diary should identify the gambling establishment and the date and type of wager, as well as amounts won and lost. Verifiable documentation can include wagering tickets, canceled checks, credit card records, and withdrawal slips from banks.

Vehicle mileage log.  A taxpayer can deduct a standard mileage rate for business, charitable or medical use of a vehicle.  If the car is also used for personal purposes, the taxpayer should keep a contemporaneous mileage log, especially for business use.  If the taxpayer wants to deduct actual expenses for business use of a car also used for personal purposes, the taxpayer has to allocate costs between the business and personal use, based on miles driven for each.

Material participation in business activity.  Taxpayers that materially participate in a business generally can deduct business losses against other income.  Otherwise, they can only deduct losses against passive income.  An individual’s participation in an activity may be established by any reasonable means.  Contemporaneous time reports, logs, or similar documents are not required but can be particularly helpful to document material participation.  To identify services performed and the hours spent on the services, records may be established using appointment books, calendars, or narrative summaries.

Hobby loss.  Taxpayers who do not engage conduct an activity with a sufficient profit motive may be considered to engage in a hobby and will not be able to deduct losses from the activity against other income.  Maintaining accurate books and records can itself be an indication of a profit motive.  Moreover, the time and activities devoted to a particular business can be essential to demonstrate that the business has a profit motive.  Contemporaneous records can be an important indicator.

Travel and entertainment.  Expenses for travel and entertainment are subject to strict substantiation requirements. Taxpayers should maintain records of the amount spent, the time and place of the activity, its business purpose, and the business relationship of the person being entertained. Contemporaneous records are particularly helpful.

The new law extends the following items for the period indicated beyond their prior termination date as shown in the listing:
... the deduction for certain expenses of elementary and secondary school teachers, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013;
... the exclusion for discharge of qualified principal residence indebtedness, which applied for discharges before Jan. 1, 2013 and which is now continued to apply for discharges before Jan. 1, 2014;
... parity for the exclusions for employer-provided mass transit and parking benefits, which applied before 2012 and which is now revived for 2012 and continued through 2013;
... the treatment of mortgage insurance premiums as qualified residence interest, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013;
... the option to deduct State and local general sales taxes, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013;
... the special rule for contributions of capital gain real property made for conservation purposes, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013;
... the above-the-line deduction for qualified tuition and related expenses, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013; and
... tax-free distributions from individual retirement plans for charitable purposes, which expired at the end of 2011 and which is now revived for 2012 and continued through 2013. Because 2012 has already passed, a special rule permits distributions taken in 2012 to be transferred to charities for a limited period in 2013. Another special rule permits certain distributions made in 2013 as being deemed made on Dec. 31, 2012.

If you would like more details about these changes or any other aspect of the new law, please do not hesitate to call our Fort Wayne or Marion office.

Depreciation provisions modified and extended. The following depreciation provisions are retroactively extended by the Act:
... 15-year straight line cost recovery for qualified leasehold improvements, qualified restaurant buildings and improvements, and qualified retail improvements;
... Increased expensing limitations and treatment of certain real property as Section 179 property;
The new law also extends and modifies the bonus depreciation provisions with respect to property placed in service after Dec. 31, 2012, in tax years ending after that date.
Business tax breaks extended. The following business credits and special rules are also extended:
... The research credit is modified and retroactively extended for two years through 2013.
... The employer wage credit for employees who are active duty members of the uniformed services is retroactively extended for two years through 2013.
... The work opportunity tax credit is retroactively extended for two years through 2013.
... Exclusion from a tax-exempt organization's unrelated business taxable income (UBTI) of interest, rent, royalties, and annuities paid to it from a controlled entity is extended through Dec. 31, 2013.
... Exclusion of 100% of gain on certain small business stock acquired before Jan. 1, 2014.
... Basis adjustment to stock of S corporations making charitable contributions of property in tax years beginning before Dec. 31, 2013.
... The reduction in S corporation recognition period for built-in gains tax is extended through 2013, with a 5-year period instead of a 10-year period.

If you would like more details about these changes or any other aspect of the new law, please do not hesitate to call our Fort Wayne or Marion office.

• Tax rates. For tax years beginning after 2012, the 10%, 15%, 25%, 28%, 33% and 35% tax brackets from the Bush tax cuts will remain in place and are made permanent. This means that, for most Americans, the tax rates will stay the same. However, there will be a new 39.6% rate, which will begin at the following thresholds: $400,000 (single), $425,000 (head of household), $450,000 (joint filers and qualifying widow(er)s), and $225,000 (married filing separately). These dollar amounts will be inflation-adjusted for tax years after 2013.
• Estate tax. The new law prevents steep increases in estate, gift and generation-skipping transfer (GST) tax that were slated to occur for individuals dying and gifts made after 2012 by permanently keeping the exemption level at $5,000,000 (as indexed for inflation). However, the new law also permanently increases the top estate, gift, and GST rate from 35% to 40% It also continues the portability feature that allows the estate of the first spouse to die to transfer his or her unused exclusion to the surviving spouse. All changes are effective fore individuals dying and gifts made after 2012.
• Capital gains and qualified dividends rates. The new law retains the 0% tax rate on long-term capital gains and qualified dividends, modifies the 15% rate, and establishes a new 20% rate. Beginning in 2013, the rate will be 0% if income falls below the 25% tax bracket; 15% if income falls at or above the 25% tax bracket but below the new 39.6% rate; and 20% if income falls in the 39.6% tax bracket. It should be noted that the 20% top rate does not include the new 3.8% surtax on investment-type income and gains for tax years beginning after 2012, which applies on investment income above $200,000 (single) and $250,000 (joint filers) in adjusted gross income. So actually, the top rate for capital gains and dividends beginning in 2013 will be 23.8% if income falls in the 39.6% tax bracket. For lower income levels, the tax will be 0%, 15%, or 18.8%.
• Personal exemption phaseout. Beginning in 2013, personal exemptions will be phased out (i.e., reduced) for adjusted gross income over $250,000 (single), $275,000 (head of household) and $300,000 (joint filers). Taxpayers claim exemptions for themselves, their spouses and their dependents. Last year, each exemption was worth $3,800.
• Itemized deduction limitation. Beginning in 2013, itemized deductions will be limited for adjusted gross income over $250,000 (single), $275,000 (head of household) and $300,000 (joint filers).
• AMT relief. The new law provides permanent alternative minimum tax (AMT) relief. Prior to the Act, the individual AMT exemption amounts for 2012 were to have been $33,750 for unmarried taxpayers, $45,000 for joint filers, and $22,500 for married persons filing separately. Retroactively effective for tax years beginning after 2011, the new law permanently increases these exemption amounts to $50,600 for unmarried taxpayers, $78,750 for joint filers and $39,375 for married persons filing separately. In addition, for tax years beginning after 2012, it indexes these exemption amounts for inflation.
• Tax credits for low to middle wage earners. The new law extends for five years the following items that were originally enacted as part of the 2009 stimulus package and were slated to expire at the end of 2012: (1) the American Opportunity tax credit, which provides up to $2,500 in refundable tax credits for undergraduate college education; (2) eased rules for qualifying for the refundable child credit; and (3) various earned income tax credit (EITC) changes.
• Cost recovery. The new law extends increased expensing limitations and treatment of certain real property as Code Section 179 property. It also extends and modifies the bonus depreciation provisions with respect to property placed in service after Dec. 31, 2012, in tax years ending after that date.
• Tax break extenders. Many of the “traditional” tax extenders are extended for two years, retroactively to 2012 and through the end of 2013. Among many others, the extended provisions include the election to take an itemized deduction for state and local general sales taxes in lieu of the itemized deduction for state and local income taxes, the $250 above-the-line deduction for certain expenses of elementary and secondary school teachers, and the research credit.
• Pension provision. For transfers after Dec. 31, 2012, in tax years ending after that date, plan provision in an applicable retirement plan (which includes a qualified Roth contribution program) can allow participants to elect to transfer amounts to designated Roth accounts with the transfer being treated as a taxable qualified rollover contribution.
• Payroll tax cut is no more. The 2% payroll tax cut was allowed to expire at the end of 2012.

If you would like more details about these provisions or any other aspect of the new law, please do not hesitate to call our Fort Wayne or Marion office.

For tax years beginning on or after January 1, 2011, the Patient Protection and Affordable Care Act (PPACA) required that employers report the aggregate cost of employer-sponsored health insurance provided on Form W-2, Wage and Tax Statement. The IRS then exempted all employers from the requirement for 2011, making 2011 reporting optional.

Reporting took effect in early 2012, but only for large employers filing 250 or more Forms W-2 for the preceding calendar year (2011). Small employers are exempt from reporting for 2012 and beyond, until the IRS issues further guidance. An employer does not have to report the cost if it is not required to issue a Form W-2. This would be the case for a retiree or other former employee who does not receive compensation.

The aggregate reportable cost should be shown on Form W-2, Box 12, using Code DD. The IRS has reiterated that reporting is for informational purposes only, and that the cost of health insurance generally remains excludable from income.

Reporting applies to applicable coverage under any group health plan provided by an employer or employee organization, if the coverage is excludable from the employee's income would have been excludable if provided by the employer. Costs for self-insured plans and plans of self-employed persons are covered, unless the only coverage provided by the employer is a self-insured plan that is not subject to COBRA continuation coverage requirements (e.g. a self-insured church plan). Coverage does not include long-term care; accident or disability coverage; coverage for treatment of the mouth; and coverage only for a specified illness or disease.

Reportable costs include both employer costs and employee costs for the health insurance, even if the employee paid his or her share through pre-tax or salary reduction contributions. The aggregate cost includes the cost of coverage included in the employee's income, such as the cost of coverage for a person who is not a dependent or a child under age 27.

However, costs do not include amounts contributed to an Archer Medical Savings Account, health savings account, or health reimbursement arrangement, and salary reduction contributions made to a flexible spending arrangement.

Reporting is required of most employers, including federal, state, and local governments, and churches and other religious organizations.

Please contact our Fort Wayne or Marion office if you would like further information on how these new reporting obligations may apply to your business.

Medicare

Medicare is funded through payroll taxes.  Employees and employers (and self-employed individuals) all pay into Medicare.  Employees and employers each pay Medicare tax at a rate of 1.45 percent (self-employed individuals pay at a combined rate but are allowed to deduct half of the Medicare tax as an adjustment to income). The Additional Medicare Tax is a new tax that may apply to certain taxpayers in addition to regular Medicare tax.  The new tax was part of the Patient Protection and Affordable Care Act (Affordable Care Act), which was passed by Congress in 2010.  However, Congress delayed the start date of the new tax until 2013.

Liability

Generally, an individual is liable for Additional Medicare Tax if the individual's wages, compensation, or self-employment income (together with that of his or her spouse if filing a joint return) exceed the threshold amount for the individual's filing status.  Only individuals with incomes above the threshold amount will be liable for the new tax and if their employer does not withhold it, they will have to pay it when then they file their returns.

The threshold amounts are: $250,000 for married couples filing jointly; $200,000 for single individuals, head of household (with qualifying person) and qualifying widow(er) with dependent child; and $125,000 for married couples filing separately.

Withholding

An employer must withhold Additional Medicare Tax from wages it pays to an individual in excess of $200,000 in a calendar year, without regard to the individual's filing status or wages paid by another employer.  The IRS explained in its proposed reliance regulations that the employer has this withholding obligation even though an employee may not be liable for Additional Medicare Tax because, for example, the employee's wages together with that of his or her spouse do not exceed the $250,000 threshold for married couples filing jointly.

Let's look at an example from the IRS proposed reliance regulations:

Elena, who is married and files a joint return, receives $100,000 in wages from her employer for the calendar year. Caleb, Elena's spouse, receives $300,000 in wages from his employer for the same calendar year. Elena's wages are not in excess of $200,000, so her employer does not withhold Additional Medicare Tax. Caleb's employer is required to collect Additional Medicare Tax only with respect to wages it pays which are in excess of the $200,000 threshold (that is, $100,000) for the calendar year.

Planning considerations

Taxpayers who believe they may be liable for the Additional Medicare Tax in 2013 and beyond should carefully plan ahead.  The IRS has cautioned that an individual may owe more than the amount withheld by the employer, depending on the individual's filing status, wages, compensation, and self-employment income.  All these factors come into play in planning for the Additional Medicare Tax.

One strategy may be to make estimated tax payments and/or request additional income tax withholding.  Our office can help you determine which strategy would work best for you.

Employers

There is no employer match for the Additional Medicare Tax. However, the Affordable Care Act and the IRS proposed reliance regulations require employers to withhold Additional Medicare Tax on wages it pays to an employee in excess of $200,000 in a calendar year, beginning January 1, 2013.  If an employer fails to withhold, the IRS may impose penalties on the employer and the employee would be liable for the tax.

Reliance regulations

The regulations issued by the IRS in December 2012 are proposed reliance regulations.  The IRS explained that it intends to finalize the proposed regulations in 2013. Taxpayers may rely on the proposed regulations for tax period beginning before the date that the regulations are finalized.

If you have any questions about the Additional Medicare Tax, please contact our office in Fort Wayne or Marion.

The surtax applies to individuals, estates, and trusts. The surtax applies if the taxpayer has NII and his or her "modified" adjusted gross income exceeds certain statutory thresholds: $250,000 for married taxpayers and surviving spouses; $125,000 for married filing separately; and $200,000 for individuals and other taxpayers. The tax is broad and can raise tax bills by hundreds, if not thousands, of dollars.

Complex provisions

The regulations are extensive and complex. They address a number of issues that were not answered in the statute, such as the interaction of Code Sec. 1411 (the surtax provisions) and Code Sec. 469 (passive activity loss rules). Significant areas addressed in the proposed regulations include:

Identification of those individualssubject to the surtax,
Surtax's application to estatesand trusts,
Definition of NII,
Disposition of interests inpartnerships and S corporations,
Allocable deductions from NII,
Treatment of qualified plandistributions, and
Treatment of earnings by controlled foreign corporations and passive foreign investment companies.
Some issues, however, are not yet addressed, such as the application of the Code Sec. 469 material participation rules to trusts and estates. Further guidance from the IRS is expected.

Borrowed definitions and principles

Net investment income that is subject to the new 3.8 percent tax generally includes interest and dividend income as well as capital gains from investments.  But Code Sec. 1411 doesn't stop there, seeking to tax "passive activities" and contrasting those activities with a "trade or business" in often complex ways.

Because Code Sec. 1411 does not define many important terms, the regulations use definitions from several other Tax Code provisions. For example, the definition of a trade or business is determined under Code Sec. 162, regarding trade or business expenses. This definition is essential to Code Sec. 1411, since the application of each of the three categories of net investment income depends on determining whether the income is from a trade or business. The regulations also borrow the definition of a disposition, which applies to category (iii) income, from other provisions, such as Code Section 731 (partnership distributions) and Code Sec. 1001 (dispositions of property).

New elections available

The regulations provide certain elections that may be beneficial to many taxpayers. Taxpayers that engage in multiple activities under Code Sec. are allowed to make another election to regroup their activities. Taxpayers married to a nonresident alien can elect to treat their spouse as a U.S. resident, which allow more income to escape the 3.8 percent surtax. 

Net investment income generally includes interest and dividend income as well as capital gains from investments. To prevent avoidance of the tax, the regulations include substitute payments of interest and dividends in the definition. The IRS also warned in the preamble to the proposed regulations that it will scrutinize activities designed to circumvent the surtax and will challenge questionable transactions using applicable statutes and judicial doctrines. The IRS further warned that taxpayers should figure their exposure to the 3.8 percent tax quickly since liability for this additional tax must be included in quarterly estimated tax computations and payments starting with first quarter 2013.

Please feel free to contact the Fort Wayne or Marion office for a personalized review of how the 3.8 percent tax may impact you, and what compliance and planning steps should be considered as a consequence.

 DWD presented two organizations with holiday donations this year.  Our first stop was at Associated Churches.  This organization offers families food once a month at no charge through a network of 28 local food pantries in churches and other social agencies.  Associated Churches Neighborhood Food Network is considered an "emergency food bank." Their pantries provide a five-day supply of food to prepare balanced and nutritious meals.  

The second stop we made was at Community Harvest Food Bank.  Like Associated Churches, Community Harvest Food Bank (CHFB) was very grateful for our donation as well. CHFB works with a network of food donors, social service organizations and churches to provide food to hungry people in its nine county service area.  Do you know they provide over 11 million pounds of food annually to those in the northeast corner of Indiana?  That is a lot of food!

In addition to the donations from DWD, our staff internally raised nearly $1,200 and was able to adopt 3 families through Vincent Village.  This organization provides shelter and affordable housing to homeless families in addition to their care and supportive resources to help them become independent and self-sustaining.

Photo #1 Susan Berghoff, Rev. Roger Reece, Carrie Minnich, Amanda Gerber

Photo #2 Amanda Gerber, Tammy Klimek, Carrie Minnich, Susan Berghoff

Income tax rates

Current income tax rates continue through the end of 2012. These include the overall individual income tax rates, currently at 10, 15, 25, 28, 33 and 35 percent. If Congress does not take any action, these rates revert to the higher rates that used to apply: 15, 28, 31, 36, and 39.6 percent. Republicans favor retaining all of the Bush-era rates. President Obama and many Democrats support retaining the 10, 15, 25, and 28 percent rates for lower- and middle-income taxpayers, while reinstating the 36 and 39.6 percent rates for taxpayers with income over $200,000 (single taxpayers) or $250,000 for joint filers.

Additionally, there are calls for tax reform and for an overall lowering of income tax rates, in exchange for ending unspecified tax deductions and benefits. For example, House Republicans have called for replacing current income tax rates with two brackets, of 10 and 25 percent.

Capital gains and dividends

Current income tax rates that extend through the end of 2012 also include the 15 percent rate on capital gains and qualified dividends for qualified taxpayers. If Congress does not act, these rates revert to much higher ordinary income rates, in the case of dividends, and to the 20 percent rate that formerly applied to capital gains. Again, the President and the Republicans would both extend the current rates, but disagree on whether to apply the extensions to all taxpayers (the Republicans) or only to lower- and middle-income taxpayers under the $200,000/$250,000 thresholds (the President).

3.8 percent tax

Adding to the mix is the impending 3.8 percent tax on unearned income. Under the health care law, this tax will apply to 2013 income (and beyond) of single taxpayers with income exceeding $200,000 and joint filers with income exceeding $250,000. The tax is imposed on the lesser of net investment income or the excess of adjusted gross income about the $200,000/$250,000 thresholds.

Net investment income also includes rents, royalties, gain from disposing of property used in a passive activity, and income from a trade or business that is a passive activity. The tax does not apply to distributions from retirement plans and IRAs. Taxpayers cannot necessarily avoid the tax by moving assets to a trust, because the tax will apply if trust income exceeds a threshold currently set at only $11,200.

Sell or hold

Generally, taxpayers should make investment decisions based on economics, holding on to a "good" investment and selling a "bad" investment. This involves looking at past performance and perhaps gazing into a crystal ball. Taxpayers that are debating whether to sell appreciated assets or assets that pay qualified dividends may want to act in 2012, when income tax rates are lower and before the 3.8 percent tax takes effect. Taxpayers considering the sale of declining assets may want to consider holding off until 2013, when losses can offset more highly-taxed gains and reduce the income potentially subject to the 3.8 percent tax.

Because the 3.8 percent tax does not apply to tax-free income, such as municipal bonds and distributions from a Roth IRA, taxpayers may want to shift some of their investments to yield nontaxable income. While the income from converting a traditional IRA to a Roth IRA would be included in the income calculations, qualifying distributions after the conversion would not be included.

Again, the decision must make economic sense. If the taxpayer expects an asset to continue to decline in value during 2012, he or she should sell the asset soon and not wait until 2013. Another consideration is the bunching of income. Taxpayers that sell substantial capital gains assets in 2013 may push their income up to the $200,000/$250,000 thresholds that trigger higher taxes. If the taxpayer is considering a sell-off of assets, it may make more sense to sell assets before 2013.

If a taxpayer wants to shift to more conservative investments, income yields may decline, but so will the incidence of the dividend, capital gains, and unearned income taxes described above. On the other hand, taxpayers looking at more speculative investments should understand that a successful investment may generate income taxed at higher rates in 2013.

Please contact our Fort Wayne or Marion office if you have any questions.

Employers may make a direct transfer of stock to an employee as compensation for services performed. In the simplest case, the employee's rights in the stock are vested upon receipt. Under Code Sec. 83, the employee has income, equal to the fair market value of the stock, less any amount paid for the stock. The employer can take a compensation deduction under Code Sec. 162 for the amount included in the employee's income.

Risk of forfeiture

The employer may decide to impose certain conditions on the employee's right to the stock (such as a requirement that the employee continue to work for the company for two years before the stock "vests"). In this situation, the stock is subject to a substantial risk of forfeiture (or is "nonvested") until the two-year period elapses. After two years, the stock vests, and the employee recognizes income for the excess of the stock's value (at the time of vesting) over the amount paid. If the employee leaves the company within two years, the employee forfeits the stock.

An employee who receives stock subject to a substantial risk of forfeiture may anticipate that he or she will stay with the company for the required two years. The employee may also anticipate (or at least hope) that the stock will appreciate in value. Rather than wait two years and have to recognize income when the stock vests, an employee may elect under Code Sec. 83(b) to treat the property as vested upon receipt and to recognize compensation income (if any) at the time of receipt.

83(b) election

The employee may be required to pay for the stock when received. If the employee paid the fair market value of the stock, making a Code Sec. 83(b) election is particularly advantageous, because the employee will not recognize any income on the election.

Example. Widget Corporation transfers 10 shares of its common stock to Hal, an employee, subject to a requirement that Hal work for two years before the stock vests. The stock is worth $5 a share. Hal is required to pay $5 a share upon receipt of the stock. By making a Code Sec. 83(b) election, Hal will not recognize any income, because the value and the cost of the stock are the same. If Hal did not have to pay any money for the shares, and made an election, Hal would have $50 of compensation income (10 shares times $5 a share).

After making an election, if the employee then works for two years, and the stock appreciates, the employee does not recognize any further compensation income, because the employee has already been taxed under Code Sec. 83. By making the election, the employee is treated as owning the stock. When the employee sells the stock, the employee will recognize capital gain or loss, measured by the difference between the amount received and the value of the stock when it vested.

Election formalities

To make an election under Code Sec. 83(b), an employee must file a statement with the IRS, within 30 days of the transfer of the property to the employee. The statement must be filed with the Internal Revenue Service Center where the employee would file his or her income tax return. A copy of the statement must be provided to the employer, who is entitled to a compensation deduction when the election is made. A copy must also be attached to the employee's income tax return.

IRS regulations prescribe the requirements for an election. In Rev. Proc. 2012-29, the IRS also provided sample language for employees to use to make the election. The IRS advised that the sample language is not required. The election must identify the taxpayer, the property being transferred, the date of the transfer, the restrictions on the property, the property's value at the time of transfer (generally determined without the restrictions), the amount paid by the employee, and the amount of compensation income (the value minus the amount paid). The employee must also sign the election.

The election cannot be revoked without the IRS's consent. The IRS will not ordinarily grant consent unless there has been a mistake of fact as to the underlying transaction.

If you have any questions about making a Code Sec. 83(b) election, please contact our office.

Computer software is treated as an intangible under Code Sec. 197 if it is acquired as part of the acquisition of the assets of a trade or business. In this situation, the software must be amortized over 15 years, a fairly long period. However, if the software is stated and sold separately, not as part of a business acquisition, it can be amortized on a straight-line basis over 36 months. Off-the-shelf computer software can also qualify for Code Sec. 179 small business expensing if it is placed in service in a tax year beginning in 2012. (Code Sec. 179 expensing generally is reserved for tangible personal property.)

Bundled software that is included in computer hardware must be capitalized and depreciated over the life of the hardware, generally five years for computers. If the software is leased or licensed, it may be deducted under Code Sec. 162. If the taxpayer prepays for several years use of the software, the payments must be deducted ratably over the period of use.

Software that is developed by the taxpayer is treated like other research expenditures. It may be deductible over Code Sec. 174(a) as expenses are paid. The taxpayer may instead elect to capitalize the cost of the software under Code Sec. 174(b) and to amortize the costs over 60 months, beginning at the time the software is completed. Finally, the taxpayer could amortize the software over 36 months, beginning after the software is placed in service.

Finally, there also are rules for enterprise research planning (ERP) software. ERP software is a shell that integrates different software modules for financial accounting, inventory control, sales and distribution, production, and human resources. Until the IRS issues regulations on ERP software, taxpayers have relied on a 2002 IRS letter ruling, providing that:

The cost of purchased ERP software is amortized ratably over 36 months under Code Sec. 167(f);
Training and related costs under a consulting contract are deductible as current expenses;
Separately stated computer hardware costs are depreciated as five-year MACRS property ("qualified technological equipment");
The costs of writing machine-readable code software are treated as developed software and may be deducted currently, like research and development expenditures; and
The costs of option selection, implementation of ERP templates, and costs of software modeling and design are treated as installation/modification costs and are amortized over 36 months as part of the purchased ERP software.
The domestic production activities deduction under Code Sec. 199 is an additional nine percent deduction from income that is based on the amount of the taxpayer's qualified production activities income (QPAI). QPAI includes receipts for the lease, license, sale or disposition of an item, including computer software that is sold through a disc or download. However, QPAI generally does not include income from the provision of online services for the use of computer software, because there is no disposition of a product.

Please contact our office if you have any questions about deducting computer software and development costs.

2012 W-2 Preparation Guide
Attached is a general description of the boxes on the Form W-2 and what should be included in each.  Some of the more unusual items are discussed in more detail later in this letter.

During 2012, the employee portion of Social Security taxes withheld was reduced from 6.2% to 4.2%.  The employer portion remained at 6.2%.  Provided there are no additional changes in 2012, the employee rate will return to 6.2% beginning January 1, 2013.

The cost of employer sponsored health coverage can be disclosed on Form W-2.  The information is to be provided in box 12 with code DD.  The cost disclosure is purely informational and is not taxable to the employee.  Effective January 1, 2012, the disclosure becomes a requirement.  However, the IRS has provided some taxpayer relief.  If the employer filed fewer than 250 forms W-2 in the preceding calendar year, the employer is not required to report the cost of employer sponsored health coverage on Form W-2 for the current year.

The state of Indiana has made some changes with regard to how it will accept forms W-2 and WH-3.  Effective July 1, 2010, any employer that files more than 25 withholding statements in a calendar year is required to file the annual WH-3 and their employees’ W-2’s electronically.  The employer can comply with these requirements by submitting the forms manually or thru a file upload on Indiana’s website www.intaxpay.in.gov. 

Effective January 1, 2013, the state of Indiana has set a mandate that numerous returns be submitted and paid electronically rather than by paper.  Form WH-1 and ST-103 are just two of many.  If you have not already registered with Indiana INtax you need to do so.  The website site is www.intax.in.gov.  Follow the instructions on the sight to register.

Although this does not pertain to your 2012 W-2s, there is an additional tax that employers need to know about which is effective on January 1, 2013.  The employer is required to withhold an additional 0.9% in Medicare tax on Medicare wages greater than $200,000.

2012 940 Preparation
The calculation for federal unemployment taxes on Form 940 has two considerations for 2012.
Credit Reduction – During 2011, twenty-one states had not repaid funds borrowed from the federal government to pay state unemployment benefits.  When this occurs, states with outstanding borrowed funds will have the credit reduced by 0.3% each year the loan have been unpaid.  Reducing the credit will increase the FUTA rate by the same percent.  Indiana’s reduction was 0.6% and Michigan’s was 0.9%. 

For 2012, there are nineteen states or territories which have not repaid funds borrowed from the federal government for state unemployment benefits.  Indiana remains on the list.  Therefore, Indiana’s reduction will be 0.9% for 2012.  Michigan is no longer on the list so this state has no reduction for 2012.  For the complete list of states, contact your accountant.

Rate Reduction – Effective July 1, 2011, the federal unemployment rate was reduced from 0.8% to 0.6%.  The rate remains constant at 0.6% for the year.

Automobiles
As a general rule, if an employer provides an auto to an employee and there is some personal use of that auto, the employer must include the value of that personal use in the employee’s wages for income tax and employment tax purposes.  Now is the time that you should begin assembling the data necessary to make these computations so that when you are ready to prepare the 2012 W-2’s, the computations can be completed.  

Cell Phones
The cost of a cell phone substantially used for business is 100% deductible to the business. 

Sick Pay
If you had employees who received sick pay from a third-party payer (such as an insurance company) you should confirm with the third-party payer the responsibilities each of you will assume.  Sick pay is taxable for income tax, FICA tax, and Medicare tax purposes and is reportable on Form W-2.  Many times the third-party payer will withhold income taxes, FICA taxes, and Medicare taxes and inform you of the matching FICA and Medicare that you are responsible for depositing.  Also, the third-party payer may issue a W-2 to the employee reporting only the sick pay it has paid to the employee.  Other times, the third-party payer of the sick pay will send you a report of the sick pay which it paid during the year and you will be responsible for reporting it on the employee’s W-2.  As you can see, there are many variations as to the handling of sick pay and it is your responsibility to coordinate the reporting and payment of income tax, FICA tax, and Medicare tax with the third-party payer.

Health Insurance for Shareholders of S Corporations
Accident and health insurance premiums paid by an S Corporation for a more than 2% shareholder-employee are includable in that individual’s gross wages for income tax purposes.  It is generally not includable for FICA or Medicare tax purposes. 

In order for the shareholder to deduct the premium on his or her return, the policy must be paid for by the company.  If the shareholder pays the premium, the company should reimburse the shareholder for the premium payment and include the reimbursement on a W-2. 

For shareholders that have Medicare premiums, the premiums are considered shareholder health insurance premiums provided the company reimburses the shareholder the amount of those premiums.

Health Savings Accounts (HSA) Contributions
Employer contributions to eligible employee’s HSA are treated as employer-provided coverage for medical expenses under an accident or health plan.  The contributions are excludable from the employee’s income and are exempt from FICA and FUTA taxes because they are considered an employer provided accident or health plan.  The employee cannot deduct employer contributions even though the employer contributions must be reported on the W-2.

An HSA contribution paid by an S Corporation for a more than 2% shareholder-employee is includable in that individual’s gross wages for income tax purposes but excluded for FICA or Medicare tax purposes. 

An HSA contribution paid by a partnership can be treated two ways.  The contributions are excluded from that individual’s adjusted gross income for tax purposes if treated as a distribution.  The contributions are includable in that individual’s adjusted gross income for tax purposes if treated as a guaranteed payment. 

An individual’s HSA contributions can be made any time prior to the tax return filing deadline for a year excluding extensions.  For those individuals on a calendar-year, the deadline for making HSA contributions is April 15, 2013.  An employer contribution must be made by December 31, 2012.

Reimbursement of Employee Expenses
If an employee is reimbursed for his or her business expenses, the tax treatment depends on whether or not the reimbursements are made under an “accountable plan” or a “nonaccountable plan.”

Accountable Plan – Reimbursements made under an accountable plan are not included on the employee W-2.  To be considered an accountable plan, the following three requirements must be met:
(1) The reimbursements must be for deductible business expenses of the employer that are paid by the employee in fulfilling his duties as an employee.
(2) The employee must be required to substantiate the expenses to the employer.  Amount, time, and business purpose must be shown by the employee.  He may do this with logs, account books, diaries, or similar records.  The employee should also supply supporting documentation to the employer.
(3) The employee must be required to return to the employer any excess of reimbursements over substantiated expenses within a reasonable period of time.

Nonaccountable Plan – If the reimbursements are made under a nonaccountable plan, they are includable as wages on the employee’s W-2 for income tax, FICA tax and Medicare tax purposes.  A nonaccountable plan is one that does not meet one or more of the three requirements listed above.  An employee may generally deduct the reimbursed expenses on Schedule A of his Form 1040 as a miscellaneous itemized deduction subject to the 2% of adjusted gross income limitation.

Forms 1099
There are many different types of Forms 1099 upon which certain types of payments to others are reported.  If filing forms 1099-B, 1099-S or 1099-MISC with amounts in box 8 or 14, those returns must be submitted to the Internal Revenue Service no later than February 15, 2013.  Any other 2012 1099’s are due to the recipients no later than January 31, 2013, and must be submitted to the Internal Revenue Service no later than February 28, 2013 (March 31, 2013 if electronically filing).  There is no requirement that copies of Forms 1099 be submitted to the State of Indiana.  In general, there is no requirement to file 1099’s for payments made to corporations.  If you are in doubt as to whether a payment you made is to a corporation or not and cannot find out, the safe approach would be to issue a 1099.
A few of the more commonly used Forms 1099 are listed below with a brief description of the filing requirements:

1099-Div This form should be issued to each person to whom you paid gross dividends of $10 or more.  (If you are an S Corporation, you will report as dividends only distributions made out of earnings and profits.)  If the distribution is liquidating, the filing requirement is for amounts in excess of $600 instead of $10.  If you have any questions about this, contact us.

1099-Int This form should be issued to each person to whom you paid interest of $10 or more.  In some instances, the filing requirement is for amounts in excess of $600, instead of the $10 limit for other interest paid.
1099-Misc This form should be issued to each person to whom you paid at least $600 in rents, services, prizes, awards, or other income payments.  The filing requirement is for amounts in excess of $10 for royalty payments.  Any payment made to an attorney regardless of the amount paid should be shown on this form.  Payments of this type should be reported only if you are engaged in a trade or business.  Therefore, personal payments are not reportable.

We have tried to cover items that might be of interest to you regarding your year-end reporting requirements.  However, if you have questions that we did not answer, please do not hesitate to contact us.

Treasury Regulations require us to inform you that any federal tax advice contained herein (including in any attachments and enclosures) is not intended or written to be used, and cannot be used by any person or entity, for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service.
 

The maximum rate on long-term capital gains is scheduled to rise from the current 15% to 20% next year. Also scheduled for 2013 is an increase in the top rate on dividend income from the current 15% to 39.6%.

If you expect these scheduled rates to occur in 2013, it may make sense to harvest gains before year-end. Remember, wash sale rules do not apply to gains, so you can repurchase a similar investment immediately. This tactic may allow you to "reset" your basis for a future sale while benefiting from current low rates.

What about investment losses? Despite the uncertainty over a possible increase in tax rates, it's a good bet that some rules -- such as those covering capital losses -- will not change. When pruning stocks from your portfolio, keep in mind that capital losses are more valuable when tax rates are higher. You may want to postpone taking losses until 2013 if you think rates will be higher next year.

In your investment review, don't overlook the new 3.8% Medicare surtax that will apply to certain unearned income, including interest, dividends, capital gains, and passive rental income. If this surtax goes into effect as scheduled, an individual with adjusted gross income of $200,000 or more ($250,000 for couples filing jointly) could pay an effective federal income tax rate of 43.4% on some income.

Individual situations will vary, so consider all the relevant factors in making your year-end decisions. For assistance in your analysis, contact our office.

But what do you do when the e-mail has the Internal Revenue Service web address in the FROM box and a subject line that claims you're about to be audited by the Criminal Investigation Division?

*Step 1. Stop and think. You've never given the IRS your e-mail address in relation to your tax return. Even if you had, the government does not request personal information such as your bank account, credit card, or social security numbers via e-mail.

*Step 2. Without clicking on any links or responding to the e-mail, forward the entire message to the IRS (phishing@irs.gov). The IRS established this e-mail box in 2006 to investigate and shut down online fraud.

Note: You will not get a response, either online or off, from the IRS when you report scams.

*Step 3. Delete the e-mail.

Besides the audit subterfuge, other common e-mail tax schemes to know and avoid include a promise of additional money due, bogus government grants, and requests for you to check the status of your refund.

Tax scams never die, and they can be taxing. Before you react to any communication from -- or purporting to be from -- the Internal Revenue Service, contact us. We're here to help you resolve tax issues.

Vehicle donations

According to the U.S. Department of Transportation (DOT), there are approximately 250 million registered passenger motor vehicles in the United States. The U.S. is the largest passenger vehicle market in the world.  Potentially, each one of these vehicles could be a charitable donation and that is why the IRS takes such a sharp look at contributions of used vehicles and claims for tax deductions. The possibility for abuse of the charitable contribution rules is large.

Bona fide charities

Before looking at the tax rules, there is an important starting point.  To claim a tax deduction, your contribution must be to a bona fide charitable organization. Only certain categories of exempt organizations are eligible to receive tax-deductible charitable contributions.

Many charitable organizations are so-called “501(c)(3)” organizations (named after the section of the Tax Code that governs charities. The IRS maintains a list of qualified Code Sec. 501(c)(3) organizations. Not all charitable organizations are Code Sec. 501(c)(3)s. Churches, synagogues, temples, and mosques, for example, are not required to file for Code Sec. 501(c)(3) status. Special rules also apply to fraternal organizations, volunteer fire departments and veterans organizations. If you have any questions about a charitable organization, please contact our office.

Tax rules

In past years, many taxpayers would value the amount of their used vehicle donation based on information in a buyer’s guide. Today, the value of your used vehicle donation depends on what the charitable organization does with the vehicle.

In many cases, the charitable organization will sell your used vehicle. If the charity sells the vehicle, your tax deduction is limited to the gross proceeds that the charity receives from the sale. The charitable organization must certify that the vehicle was sold in an arm’s length transaction between unrelated parties and identify the date the vehicle was sold by the charity and the amount of the gross proceeds.

There are exceptions to the rule that your tax deduction is limited to the gross proceeds that the charity receives from the sale of your used vehicle. You may be able to deduct the vehicle’s fair market value if the charity intends to make a significant intervening use of the vehicle, a material improvement to the vehicle, or give or sell the vehicle to a qualified needy individual. If you have any questions about what a charity intends to do with your vehicle, please contact our office.

Written acknowledgment

The charitable organization must give you a written acknowledgment of your used vehicle donation. The rules differ depending on the amount of your donation.  If you claim a deduction of more than $500 but not more than $5,000 for your vehicle donation, the written acknowledgment from the charity must:

Identify the charity’s name, the date and location of the donation
Describe the vehicle
Include a statement as to whether the charity provided any goods or services in return for the car other than intangible religious benefits and, if so, a description and good faith estimate of the value of the goods and services
Identify your name and taxpayer identification number
Provide the vehicle identification number
The written acknowledgement generally must be provided to you within 30 days of the sale of the vehicle.  Alternatively, the charitable organization may in certain cases, provide you a completed Form 1098-C, Contributions of Motor Vehicles, Boats, and Airplanes, that contains the same information.

The written acknowledgment requirements for claiming a deduction under $500 or over $5,000 are similar to the ones described above but there are some differences. For example, if your deduction is expected to be more than $5,000 and not limited to the gross proceeds from the sale of your used vehicle, you must obtain a written appraisal of the vehicle. Our office can help guide you through the many steps of donating a vehicle valued at more than $5,000.

If you are planning to donate a used vehicle, please contact our Fort Wayne or Marion office and we can discuss the tax rules in more detail.

(1)  Expenses that are directly deductible against particular items of income, without reduction;
(2)  Expenses of producing income that are taken as miscellaneous itemized deductions; and
(3)  Investment interest expense.

The first category applies to rent and royalty income. Expenses attributable to rents and royalties may be deducted in full from gross income in computing adjusted gross income. The expenses are allowed whether or not the taxpayer itemizes deductions. Rental and royalty income and deductions are reported on Schedule E, Supplemental Income and Loss. The totals are then carried over to Form 1040, line 17 (for 2011).

This first category also applies to direct costs from purchasing and selling stock (e.g. sales commissions) that are included in cost basis or deducted from amounts realized.

The second category applies to a host of expenses that may be related to investments and financial activities but do not necessarily relate to a particular investment. These expenses can be deducted as ordinary and necessary expenses incurred either for the production of income, or for the management, conservation, or maintenance of property held for the production of income. Examples include expenses for investment counsel, investment advice and management, custodial fees, office rent, clerical help, travel to broker’s offices and investment sites, bank fees and safe deposit box rentals, fees for IRAs, and subscriptions to investment-related publications.

This second category is included in miscellaneous itemized deductions on line 23 (other expenses) of Form 1040, Schedule A, Itemized Deductions (2011 form). Miscellaneous itemized deductions, together with unreimbursed job expenses and tax preparation fees, are only deductible to the extent their total exceeds two percent of adjusted gross income (line 38 of 2011 Form 1040). Most taxpayers will only choose to report their itemized deductions if they exceed the standard deduction, which for 2011 is $11,600, married filing jointly and qualified widow or widower; $8,500, head of household; and $5,800, single taxpayers or married filing jointly.

The third category is investment interest expense. Money borrowed to buy property that is held for investment is investment interest. The deduction is limited to net investment income, determined after deducting investment expenses, such as depreciation, that are directly connected with the production of the investment income. The deductible amount is calculated on Form 4952, Investment Interest Expense Deduction, and carried over to Line 14 (Interest You Paid) of Schedule A.

Taxpayers cannot deduct interest incurred to produce tax-exempt income. Investment interest does not include home mortgage interest or interest taken into account in computing income or loss from a passive activity.

As you can see, the deduction of investment expenses can be complex.  Timing these expenses to align themselves with more comprehensive strategies, such as at year end, can create additional issues.  If you have questions about the treatment of these expenses, please contact your CPA in our Fort Wayne or Marion office.

 The alternative method is to report the interest earned each year as part of your taxable income. Most people choose the first method because it lets you delay paying taxes for as long as possible. But sometimes the annual method makes sense -- for example, if a young child has been given a savings bond in his or her own name.

 The tax rate on investment earnings of a child under age 19 (under age 24 for full-time students) is the parent’s marginal rate when the "kiddie tax" applies. The kiddie tax is intended to stop parents from shifting income to their children. But even under the kiddie tax rules, the first $950 of a child’s investment income in 2012 is tax-free and the next $950 is taxed at your child's lower tax rates. So if your child expects to earn less than $1,900 from savings bonds and other investments, reporting the interest as income each year could make good tax sense.

 For further details on this and other tax-saving strategies, please give our Fort Wayne or Marion office a call.

In 2011, bonus depreciation was 100 percent. There have been proposals to reinstate 100 percent bonus depreciation for 2012, but they have not been acted on. For 2012, 50 percent bonus depreciation is available. It expires at the end of 2012 and is not available for 2013. (Note that certain longer production-period property and transportation property still qualifies for 100 percent bonus depreciation if it is acquired and placed in service during 2012.)

Qualified property must be depreciable under the Modified Accelerated Cost Recovery System (MACRS) and have a recovery period of 20 years or less. Qualified property also includes computer software, water utility property, and qualified leasehold improvement property. The property generally has to be depreciable under MACRS; thus, intangible assets amortized over 15 years do not qualify for bonus depreciation.

There are other requirements for taking 50-percent bonus depreciation in 2012. The original use of the property must begin with the taxpayer. The property must be new, must be acquired before January 1, 2013 (title must pass), and must be placed in service before January 1, 2013. Being placed in service requires that the property be installed and ready for use in the business. The property must be in a condition or state of readiness to be used on a regular, ongoing basis. The property must be available for a specifically assigned function in the trade or business.

The original use is the first use to which the property is put. That, if a taxpayer purchases used property from another business, the property will not qualify for bonus depreciation. However, if the taxpayer makes additional expenditures to recondition or rebuild acquired property, these expenses can satisfy the original use requirement. A person who acquires new property for personal use and then converts it to business use is still considered the original user of the property.

The acquisition date rules require that there not be a written binding contract in effort before January 1, 2008 to acquire the property. Property can qualify if the taxpayer entered into a written binding contract for its acquisition after December 31, 2007 and before January 1, 2013. Self-manufactured property can qualify if the taxpayer begins manufacturing, constructing or producing the property before January 1, 2013. Property is deemed acquired when reduced to physical possession or control. Regardless of the manner of acquisition, the property must be placed in service before January 1, 2013.

If the business does not have profits in the current year, it can use the bonus depreciation deduction to create a net operating loss, which can then be carried back (or forward) to a profitable year and generate a refund. However, bonus depreciation is not mandatory. Taxpayers may choose to elect out of bonus depreciation, so that they can spread depreciation deductions more evenly over future years.

If you need further assistance in arranging any capital purchases for your business to qualify for bonus depreciation before it sunsets at the end of 2012, please contact the Fort Wayne or Marion office.

Traditional Planning for Individuals

2012 year-end legislation necessarily must play a major role in 2012 year-end tax planning. Nevertheless, traditional year-end tax planning should not be overlooked in the meantime. In many cases, attention to traditional considerations, now, will prove more important to a majority of taxpayers’ bottom line. Here is a checklist of some traditional year-end planning considerations not to be overlooked:

Changes in filing status: marriage, divorce, death of a spouse, or a change in head-of-household status during 2012 (or anticipated for 2013) will impact on your tax bracket and bottom line tax liability. Anticipate the additional expense or lower tax bill that a change in filing status may bring.
Birth of a child, adoption, combined families through re-marriage, and even the ages of children in 2012 and 2013 can matter to year-end tax planning. Dependency exemptions in some instances depend upon the amount of support provided within the tax year. The ability to take advantage of the child tax credit, the child-care credit, the earned income credit, application of the kiddie tax, and the ability to be covered under a parent’s health insurance under the new health care law in part hinges upon how a “child” is defined within certain age limits (varying from under age 13, to under age 17, 19, 24 or 26, depending upon the provision).
Retirement and semi-retirement is also a major event for tax purposes for which first-year “required minimum distributions” from retirement savings must be calculated and made. Also an important year-end consideration for the newly retired is facing what is typically an entirely new matrix of investment income considerations focused on “smoothing” the amount of income and deductions among several years to achieve maximum tax results.
Timing the recognition of capital gains and losses is important, in particular to maximize offsetting short-term gains (that are tax at ordinary income rates) with short-term losses. Also especially relevant to 2012 year-end timing of capital gains and losses is the introduction of a 3.8 percent Medicare contributions tax that will be assessed on excess net investment income starting in 2013.
Projecting available itemized deductions for 2012, then controlling whether a better tax result might take place by deferring or accelerating some of those deductions, is frequently important. Some taxpayers who are close to the amount of their standard deduction amount may want to load deductions into a single year, say 2013, so they have enough to itemize deductions for that year, while still be entitled to the maximum amount of their standard deduction into an adjacent year (2012 in our example). Other taxpayers need to be aware of alternative minimum tax (AMT) exposure in which many deductions become cut back or eliminated.
Unusual expenses that may generate an atypical deduction or credit, such as emergency medical expenses, moving expenses, or unemployment and job-search expenses, may need special attention. In connection with medical expenses, and particularly relevant to 2012 year-end planning, is the increase in the floor on deductible medical expenses from 7.5 percent adjusted gross income (AGI) in 2012 to 10 percent AGI in 2013 (7.5 percent for those who reach 65 years of age by the close of the tax year).
Gift giving, both charitable and for estate planning purposes, usually reaches a high point at year end and for good reason. In addition to better knowing what assets remain available for gifting (or what income needs offsetting with a charitable deduction), certain tax benefits cannot be accumulated but must be used or lost each year. For example, the $13,000 annual gift tax exclusion per recipient cannot be carried over and used in addition to the $14,000 gift tax exclusion that will be available in 2013. A gift of $13,000 on December 31, 2012 and a $14,000 gift on January 1, 2013, for example, amount to a $27,000 tax-free gift; while a $27,000 gift all on January 1, 2013 will subject $13,000 of that gift to potential gift tax. A charitable gift can frequently require the same timing finesse, for example, if donors find themselves in a higher tax bracket in a particular year or not being able to otherwise itemize deductions.
Traditional Planning for Businesses

Businesses also face some traditional strategic decisions that often can only be made at year-end:

Capital purchases that qualify for accelerated depreciation, bonus depreciation or so-called Section 179 expensing should be timed to fall into the current or the upcoming year, as the overall profit and loss of a business dictates. “Placed in service” requirements in addition to timing the purchase of equipment also apply to maximizing tax benefits.
Determination of whether a business is on the cash or accrual method of accounting for tax purposes is also critical to year-end business strategies. Businesses using the cash basis method of accounting recognize and report income when the business actually or constructively receives cash or its equivalent; for accrual-basis taxpayers, generally the right to receive income, rather than actual receipt, determines the year of inclusion of income.
Compensation and shareholder or partner distributions from a business, and drawing the often fine line between the two, can make a considerable difference to a business owner’s overall tax liability for the year. Differences often hinge upon whether self-employment tax is paid, or whether a distribution is taxed as ordinary income or at the capital gains rate.
Determining the difference between ordinary business activities and passive activities before implementing a year-end strategy also just makes good sense. Rental income or losses, and other passive activity gains and losses, must be netted separately from business gains and losses. Year-end timing for one does not necessarily help control your bottom-line tax cost on the other.
Please contact us if you have any questions about how traditional year-end planning might benefit your bottom line. Once Congress acts on year-end tax legislation this year, we also suggest that most taxpayers consider what steps may then be taken before the 2012 tax year closes to mitigate against any unfavorable new tax provisions.  Please contact your Fort Wayne or Marion CPA with any questions that arise.

* Consumer debt. If you have gone through some type of credit “workout” program on consumer debt, it’s likely that some of your debt has been cancelled. If that is the case, be prepared to receive IRS Form 1099-C representing the amount of debt cancelled. The IRS considers that amount taxable income to you, and they expect to see it reported on your tax return. The exception is if you file for bankruptcy. With bankruptcy, generally the debt cancelled is not taxable.

Even if you are not legally bankrupt, you might be technically insolvent (where your liabilities exceed your assets). If this is the case, you can exclude your debt cancellation income by reporting your financial condition and filing IRS Form 982 with your tax return.

* Primary home. If your home is “short” sold or foreclosed and the lender receives less than the total amount of the outstanding loan, you can also expect that amount of debt cancellation to be reported to you and the IRS. But special rules allow you to exclude up to $2 million in cancellation income in many circumstances. You will again need to complete IRS Form 982, but the exclusion from taxable income brought about by the debt cancellation on your primary residence is incredibly liberal. So make sure to take advantage of these rules should they apply to you.

* Second home, rental property, investment property, business property. The rules for debt cancellation on second homes, rental property, and investment or business property can be extremely complicated. Generally speaking, the new laws that cover debt cancellation don’t apply to these properties, and the IRS considers any debt cancellation to be taxable income. Nevertheless, given your cost of these properties, your financial condition, and the amount of debt cancelled, it’s still possible to have this debt cancellation income taxed at a preferred capital gains rate, or even considered not taxable at all.

Be aware that many of the special debt cancellation provisions are set to expire at the end of 2012. If you’re unsure as to how debt cancellation affects you, contact our office to review your situation and determine how much, if any, cancelled debt will be taxable income to you.

* What is the alternative minimum tax?

Enacted back in 1969, the alternative minimum tax (AMT) was designed to make sure that high-income taxpayers pay a minimum amount of taxes, even if they have sufficient deductions and credits to reduce their federal income tax liability to zero.

The AMT is like a flat tax. You get a lower tax rate in exchange for losing most deductions.

To calculate the AMT, start with regular taxable income, which includes all your familiar deductions and exemptions. Then make certain adjustments and add back certain "preferences" to arrive at your AMT income. Preferences include personal exemptions, state and local taxes, certain interest on home-equity loans, and miscellaneous itemized deductions.

After adding back the preferences, you're entitled to an exemption amount, though the exemption phases out at higher income levels. The exemption for 2012 is $33,750 for singles and $45,000 for married couples filing a joint return.

You then calculate your AMT by applying a tax rate of 26% to the first $175,000 of AMT taxable income, and 28% to any additional amounts. Finally, you compare your AMT to your regular tax and pay whichever is greater.

* Who is affected by the AMT?

Congress created the AMT to ensure that wealthier taxpayers, who often have the kinds of income and deductions that qualify for preferential tax treatment, would pay at least a minimum amount of tax. Congress also wrote exemptions into the law, so that middle-income taxpayers wouldn't be subject to the AMT.

Unfortunately, these exemptions were not indexed for inflation. As incomes have continued to rise, more and more people have found that they need to calculate their tax bill twice -- once under regular tax rules, and again under the AMT.

Though Congress has expressed a desire to eliminate the AMT, it is still in effect. Every year thousands of middle-income taxpayers find themselves subject to the alternative minimum tax.

* Will the AMT affect you?

Do you need to concern yourself with the AMT? You do if you have a lot of dependents or if you claim substantial itemized deductions. You may also be subject to the AMT if you realized hefty capital gains during the year or exercised incentive stock options. Claiming certain tax credits might trigger the AMT as well. And if you are an owner of rental real estate or a capital intensive business, you need to be aware that the amount of depreciation allowed under the AMT is limited.

Don't forget the AMT in your tax planning. You may be one of those middle-income taxpayers who is now subject to this tax. For details or planning assistance, contact our Fort Wayne or Marion office.