In a recent MarketWatch article, I made the remark that rentals are a business. A reader disagreed. “Rental property is considered ‘investment income,’ and is filed on a Schedule E, not a Schedule C. But I understand your confusion on this matter because many people don’t understand the truth of the matter any more than you do. I know, I’m a real estate investor for 20 years now,” she wrote.
Despite investing her money in real estate, theoretically, to make a profit, this woman passionately believes that rentals are not a business. She’s not alone. Many people are confused because they’ve forgotten that the definition of a business is something that occupies your time, with the intention of making a profit. They’ve also forgotten the history of these taxes.
Shades of 1984
When Congress signed the Tax Reform Act of 1986 (TRA 86) the real estate investment climate was very different – people were chasing lucrative tax benefits, rather than profits. TRA 1986 introduced the concepts of “passive income” and “active participation,” “passive loss limitations,” “material participation” and “real estate professional” and “at-risk rules”.
The IRS urged Congress to include limitations on rental income because, at the time, rental limited partnerships were often designed to be tax shelters for the limited partners. They were sold purely for the tax benefits, not for the potential increase in property value. Not only did these limited partnerships become an abuse of the tax system, they created worthless investments. Those properties were never operated with a profit motive. They often sold the property for less than the purchase price, once the tax benefits were stripped.
Consider a typical California investment of the time. The partnership would buy a property for $2 million with 10% down. Back then, we had ACRS depreciation over 15 years – 19 years for real estate, with accelerated rates of 8% – 10% in the first three years. Mortgage interest rates were around 10% and so were management fees, usually paid to the general partners. A 10% investor would buy in for about $25,000 to cover the down payment and purchase costs.
The properties were bought for about eight times gross rents, so rental income would be $250,000. Deducting the cost of interest would be about $180,000 (10% of $1.8 million), management fees of $25,000 (10% of $250,000 rental income), and property taxes of $25,000. Operating expenses, like maintenance and utilities, would inevitably eat up the rest of the cash flow. However, depreciation would be around $90,000 ($1 million building value times 9%).
Wouldn’t it be nice to write off that flight to Hawaii? Or what about the champagne-and-caviar-adorned soirée at Carnegie Hall? Maybe you can, says Doug Stives, a CPA from Red Bank, N.J., who re-engineered his life in 2006 to become the Most Tax-Efficient Man in America, as Tax Report columnist Laura Saunders writes. Stives shared a couple of practical, tax-saving suggestions with SmartMoney.com.
Get on someone’s payroll. Stives had been a partner at an accounting group for nearly four decades when he decided to take on a role as a tax and accounting professor at Monmouth University in central New Jersey. He also started his own consulting business on the side. While his paycheck is now 25% lower than it had been, his take home is nearly 90% as much, says Saunders. Stives estimates that the fringe benefits from working at the university – health insurance, disability insurance, life insurance, pension-plan coverage, unemployment coverage and workmen’s compensation coverage, among others – add up to about $40,000 a year.
Mix business and pleasure. Usually it’s a No. 1 professional no-no. But combining your work life with your personal life can slim the price tag of otherwise expensive vacations. As a part-time consultant and full-time teacher, Stives travels a considerable amount for seminars and teaching gigs, often to alluring vacation spots like Hawaii and Lake Tahoe. To deduct airfare, you need to spend more than half your working days on business, says Stives. Weekends don’t count, nor do travel days. If Stives leaves for Hawaii on a Friday, works three days mid-week and returns home the following Monday, he’s squeezed a mostly tax deductible 11-day trip out of three working days. (Hotels, meals, and rental cars are only partly deductible.) But make sure you don’t get carried away, he says. It’s a good idea to pay in full for at least some trips you take to show the IRS you don’t deduct everything.
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.”
Sole proprietors, partners, limited liability company (LLC) members, and S corporation shareholders can deduct qualified health insurance premiums paid to cover themselves and family members. This is the so-called self-employed health insurance deduction.
For 2010, you claim it on Line 29 on Page 1 of Form 1040. Because it’s an above-the-line deduction (meaning a deduction claimed on Page 1), you don’t have to itemize to benefit.
Medicare Part B Premiums Suddenly Count as Qualified Expenses
For years, the IRS had taken the position that Medicare Part B premiums did not count as qualified health insurance premiums. This was bad news if you are an older small business owner because your Medicare Part B premiums for 2010 could range from about $1,300 to over $4,200, depending on your income. If you are married, your spouse’s premiums could be in the same range. So we can be talking about major bucks.
Now for the good news: with no fanfare, the IRS suddenly reversed course on the Medicare Part B premium issue. We know this because the 2010 instructions for Line 29 of Form 1040 explicitly allow you to include Medicare Part B premiums in your health insurance costs for purposes of the self-employed health insurance deduction.
Make sure you (or your tax preparer) take the new taxpayer-friendly IRS attitude into account when putting together your 2010 return. The additional Line 29 write-off could lower your federal income tax bill by hundreds of dollars or more.
In an earlier post, I ranted about the burdensome new Form 1099 reporting requirements for businesses. Those rules are scheduled to kick in next year, but there’s a good chance they will be repealed before then. Fingers crossed!
Meanwhile, yet another set of nasty new 1099 rules are lurking in the background. These rules affect owners of rental real estate. They were buried in last September’s generally pro-taxpayer Small Business Jobs Act of 2010. For reasons that escape me, they have not gotten much attention, and I’ve not yet heard loud demands for repeal. Here’s the story.
Property Owners Must Issue 1099s to Service Providers
For the 2011 tax year, the IRS will consider owning one or more rental real estate properties “a business” for purposes of the 1099 requirements. That means property owners must file a 1099 with the IRS for any service provider paid $600 or more this year (for services that range from yard care to accounting). Owners must provide a copy of the 1099 (a so-called payee statement) to each payee. Until now, owning rental real estate did not count as a business for 1099 purposes, so owners were blessedly exempt from having to file 1099s and issue payee statements. Not any longer.
The good news about 2010 tax returns is that many things we’ve taken for granted in past years have not changed.
We still get 0% long-term capital gains tax in the 15% tax bracket and 15% long-term capital gains rates for all other brackets. We still have the lower tax brackets for singles, couples and heads of households. We can still use $3,000 of expenses towards the Child and Dependent Care Credit. The Child Tax Credit and American Opportunity Credit are still refundable.
Some important changes are worth your attention–one of them immediately.
IRAs and seniors Seniors have until January 31, 2011 to make transfers from their IRAs directly to charities without paying taxes on the transfers. That’s only days away, so you must act quickly. (Read Tax Guy Bill Bischoff’s explanation for more.)
Self-employed health insurance For returns filed in 2010 only, small business owners won’t have to pay a 15.3% self-employment (SE) tax on their health care insurance. Business owners have never been able to deduct their insurance on the Schedule C. Rather, it is treated as an adjustment to income on page 1 of the Form 1040. Since the insurance expense does not reduce their business profits, business owners normally end up paying the SE tax.
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.
Many of the business-related tax breaks were in the Small Business Jobs Act passed this fall but small — and mid-size — businesses also retained some benefits in the tax deal signed last week.
But some of these breaks will benefit truly small businesses more than others — and some will extend to what most of us consider mid-size or even larger companies. That’s because there are really two definitions of small business — the government’s more generous definition and the tighter definition most small business owners and watchers adopt.
First, there’s the government’s definition: A business with sales of $7 – $25 million, with up to 500 or 1,000 employees.
Second, there’s the more common definition that fits the average small firm: A business with sales of well under $2 million with up to 10 employees or freelancers.
Thinking in terms of average small business owner (definition #2), here are some tax breaks that have impact.
For starters, Section 179 depreciation is now so high ($500,000) that the average small business can write off all their asset and equipment purchases the year they buy them. That’s a plus because you can get an instant tax benefit from all your purchases (made after Sept. 8 of this year and before Jan. 1, 2012), instead of spreading the depreciation over three, five or seven years.
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 firstname.lastname@example.org.