A client of mine told me she had just finished filing her corporate tax return when an unexpected 1099-MISC—which reports miscellaneous income–arrived in her mailbox. Normally, that wouldn’t have been a problem since she meticulously records all of her income throughout the year.
The problem? The amount on the 1099-MISC was several thousand dollars more than the income she had received from the form’s issuer. Upon investigating the discrepancy, my client found the difference to be a payment the company had issued on December 31st.
Since the check was issued and mailed out on December 31st, it’s absolutely impossible for my client’s corporation to have received it in 2010, right? That’s pretty obvious to anyone.
That’s why there is something called the Doctrine of Constructive Receipt. Here’s what IRS says about it:
“Income is constructively received when an amount is credited to your account or made available to you without restriction. You need not have possession of it. If you authorize someone to be your agent and receive income for you, you are considered to have received it when your agent receives it. Income is not constructively received if your control of its receipt is subject to substantial restrictions or limitations.”
The Wall Street Journal’s David Wessel spoke to Treasury Secretary Timothy Geithner about corporate tax reform after the State of the Union speech earlier this week. (Read the entire Q&A here.)
For the most part, Geithner emphasized the administration’s insistence on offsetting the corporate rate, now 35%, by eliminating deductions, credits and incentives, not by raising revenues with higher taxes on businesses.
According to the story, “He wouldn’t say if the administration wants to move from taxing multinational corporations’ global profits and instead tax only domestic profits, as most other countries do and as U.S. business wants. But he said a “level playing field” is a major goal.”
Echoing Tax Guy Bill Bischoff’s recent blog post about how lower corporate tax rates would boost business, Geithner said he believed that lowering rates and eliminating the distortions in the present system, would help fuel growth because “it allows business to compete on the basis of performance and return rather than on their ability to get or protect special provisions in the tax code.”
Let’s start with the good news: There’s a relatively small chance you’ll be audited this year. Generally speaking, IRS agents examine only about 1% of returns – both individual and corporate – in any given year. Those are pretty good odds, by anyone’s standards.
But, there’s bad news, too. If you’re a business owner, your chances of attracting more scrutiny are higher.
Why? For starters, you may take an enormous number of (legitimate) deductions … and while it’s a benefit to write-off many expenses related to business, the IRS may take a second look if deductions are unusually high compared to income. And if you’re self-employed, the IRS may be particularly wary that you’re under-reporting your taxable income.
One big red flag: If you file a Schedule C – the tax form that shows profit or loss from a business, which sole proprietors typically file — IRS statistics indicate that you are 10 times more likely to be audited.
The Wall Street Journal’s Small Business team asked Barbara Weltman, the guru of small-business taxes, to prepare a check-list of ways to avoid an audit. Weltman, author of “J.K. Lasser’s Small Business Taxes,” says there’s no way (unfortunately) to completely audit-proof your business. Her suggestions, however, can hopefully keep the IRS at bay and give you some peace of mind this tax season.
My latest Tax Report column about the perils of low pay for owner/shareholders of “Subchapter S” firms received a raft of comments and emails. As the column described, it’s a common tax-cutting maneuver available to the owners of millions of closely held businesses; there are nearly 4 million Sub-Ss in the U.S. today.
Several writers wanted to know why the story didn’t mention John Edwards, the former vice-presidential candidate and Senator (D-N.C.), who was accused by opponents of using the same technique described to shrink the payroll tax bill from his lucrative legal practice. It’s such a well-known issue that some people refer to the practice I outlined in my column as the “Edwards shelter.”
Because Edwards was not available to comment on the issue or supply information regarding it and calls to his attorney weren’t returned, we didn’t include it in the story out of fairness. But for the curious, here’s a summary of past reporting on this issue.
Questions about Edwards’s taxes arose both during his 1998 Senate campaign and his 2004 vice-presidential campaign. In both cases, the question was the same: Had he used a Subchapter S entity and minimized the salary from his highly successful legal practice, lowering his payroll taxes in years before he joined the Senate?
Last year’s healthcare legislation included new Form 1099 rules for businesses. They will result in tons of additional paperwork, and smaller businesses with limited resources will be disproportionately affected. After a continuing outcry from the business community, the House is scheduled to vote on repealing the rules this week. But first, here’s a look at what’s wrong with the new 1099 rules.
Payments to Corporations
Currently, payments to corporations are generally exempt from the 1099 rules. Starting in 2012, however, if your business pays a corporation $600 or more in a calendar year, you generally must report the payments on a 1099. For example if you pay $10,000 to rent space from a corporation, you must issue a 1099. If you send an employee out of town and pay $1,500 to a hotel company, you must issue a 1099. While this requirement will result in millions of additional 1099s each year, nobody who understands how the IRS works believes it will improve tax compliance by encouraging scofflaw corporations to report more income. The IRS simply doesn’t have the capacity to match all those 1099s to income reported on corporate returns (too many other variables can affect a company’s income). Corporations that are cheating now are not going to stop because of the new 1099 rules.
Payments for Property
Currently, payments for property are exempt from the 1099 rules. Starting in 2012, however, if your business pays $600 or more in a calendar year to any payee for property, you must report the payments on a 1099. The term “property” means equipment, merchandise, raw materials, and just about anything else you can lay your hands on. For example, if your business buys an old pickup truck from an individual for $1,500, you must issue a 1099. If your business spends $1,000 at a store to buy food and beverages for a company party, you must issue a 1099. Once again, nobody that I’ve talked to believes this new rule will result in higher tax collections. The IRS doesn’t have the resources to do the matching here, either.
It was gratifying to see lots of reaction to my earlier post about why we should drastically cut the U.S. corporate income tax rate to somewhere in the 15% to 20% range from its current rate of 35%. However, several readers had trouble understanding how such a cut would help bring business and jobs back to the U.S, since few domestic corporations actually pay the advertised 35% rate, anyway. So let me clarify.
Perhaps the biggest reason why many large corporations pay far less than the advertised 35% rate is because they have moved profit-making operations to low-tax offshore jurisdictions. As I explained in my earlier post, U.S. companies don’t owe corporate taxes as long as the profits from those offshore operations aren’t brought back to the U.S.
Say a U.S. company makes all of its profits in a foreign country with a 15% tax rate, and reinvests all of those profits in that country. The company thus pays the 15% tax to the foreign country and pays zero to the U.S. Treasury. The company’s financial statements will show an “effective tax rate” of 15% rather than the advertised 35% rate that U.S. companies theoretically must pay. In fact, this company’s “effective U.S. tax rate” is 0%.
The Tax Blog brings together a team of award-winning tax journalists from the Dow Jones network and around the web to examine the tax issues, changes and legislation that affect families, investors and small business owners. Our contributors include Tax Report columnist Laura Saunders (WSJ), Tax Guy columnist Bill Bischoff and senior reporter Jilian Mincer (SmartMoney.com), retirement-focused reporter Anne Tergesen (WSJ), wealth management writer Arden Dale (Dow Jones Newswires), TaxWatch columnist Eva Rosenberg and personal finance reporter Andrea Coombes (MarketWatch), and reporter Alyssa Abkowitz (SmartMoney). They’ll provide the latest news and insight, mine the tax code for tips and loopholes, and answer your questions about tricky tax situations. Contact the The Tax Blog with ideas, suggestions or tax questions at email@example.com.