Category: Tax and Financial News

You wake up in the middle of the night. Heart racing, drenched in sweat, and breathing heavily. Thankfully, it was just a nightmare when the IRS showed up at your doorstep unannounced. Recently, however, this was the reality for some taxpayers – and not just a bad dream. The IRS just publicized a significant shift in policy, effectively ending the vast majority of surprise taxpayer visits. The change comes in an effort to create safer conditions for IRS officers as well as ease public concerns.

Who’s Knocking at My Door?

In order to understand the change in policy, you’ll need to understand the three categories of IRS employees that typically interact with taxpayers: Revenue Officers, Revenue Agents, and Special Agents.

IRS Revenue Agents are tax return auditors. They don’t typically show up unannounced.

IRS Revenue Officers, of which there are approximately 2,300, have duties that include paying visits to taxpayers to collect back taxes and tax returns not filed. They are not auditors but instead focus on collection efforts, including issuing liens and levies. Revenue Officers are the main category of IRS employees impacted by the policy change.

Special Agents deal with criminal matters and are part of one of the largest law enforcement agencies in the United States. The change in policy does not impact Special Agents.

Safety

Why the shift to (mostly) eliminating surprise visits from IRS Revenue Officers? Safety is cited as the main concern. Unannounced visits to taxpayers, whether at home or their business, can be risky. Historically, IRS Revenue Officers faced contentious and sometimes dangerous conditions during their unannounced visits.

Taxpayer Confusion

There is also a growing number of scam artists pretending to be IRS agents or officers. As a result, taxpayers are increasingly wary of unannounced visits, and this causes confusion for both the taxpayer and law enforcement.

The difficulty in distinguishing between IRS representatives and fakes has caused concern for taxpayers already on guard for scam artists. The IRS believes that maintaining trust among the public will go a long way to maintaining the legitimacy of the organization.

Appointment Letters In Lieu of Visits

In place of these previously unannounced visits, the IRS will contact taxpayers through a 725-B letter, more colloquially known as an appointment letter.

An appointment letter will facilitate scheduling in-person meetings, with the opportunity for the taxpayer to prepare any information and documentation beforehand, allowing for quicker resolution of cases. These meetings occur at a pre-determined time, date, and place.

Limited Visits Will Still Occur

The policy change does not completely eliminate unannounced visits by the IRS. In “extremely limited situations,” such as serving summonses and subpoenas and the seizure of assets, unannounced visits will still occur. To give some perspective, these types of visits will account for only a few hundred per year compared to the tens of thousands of unannounced visits under the old policy.

Conclusion

Unannounced IRS visits are (almost) a thing of the past. They will be carried out only in rare, necessary cases, with most Revenue Officer visits being pre-scheduled. This should ease taxpayer anxiety and make case resolution more efficient.

Now that we are heading into the backend of summer, it’s time for many states to host their annual sales tax holidays for returning to-school shopping. Numerous states with sales tax (remember, not all states have a sales tax) provide the reprieve to help families with the cost of annual school supplies and clothing.

According to the National Retail Federation, nearly 80 percent of shoppers are expecting increased costs this year versus last year; so more than ever, consumers are looking for ways to save. Furthermore, about two-thirds of back-to-school shoppers take advantage of these tax-free shopping periods.

The vast majority of states offer some type of tax-free shopping for a limited time period, frequently taking place over a weekend. Below, we will look at each state that offers a sales tax holiday for back-to-school shoppers, along with their details. Note that several states, including Alabama, Mississippi, and Tennessee, have their programs in July – and those are excluded from this article due to the timing of publication.

State Programs

Arkansas: From Aug. 5-6, the following items are tax-free for shoppers: clothes and shoes under $100 per piece, fashion accessories $50 and less per piece, as well as electronics, art, and school supplies.

Connecticut: From Aug. 20-26, clothes and shoes priced at $100 or less per piece are tax-exempt. Fashion accessories and sports gear are fully taxable, though.

Iowa: Aug. 4-5, clothes and shoes priced at $100 or less per piece are exempt.

Maryland: From Aug. 13-19, clothes and shoes priced at $100 or less per piece are exempt.

Missouri’s back-to-school tax breaks come Aug. 4-6. Clothes that cost less than $100 per piece are exempt. Also tax exempt on a “per purchase basis” are school supplies under $50, software under $350, and PCs under $1,500.

New Jersey: From Aug. 26 to Sept. 4 all art supplies, instructional materials, school supplies, and sports equipment sold to individuals are sales tax exempt. In addition, computers priced at $3,000 or less are also tax-free.

New Mexico cuts its sales tax charges from Aug. 4-6. Included are clothes, shoes, and backpacks costing $100 or less per piece; school supplies costing $30 or less per piece; and computers costing less than $1,000.

Ohio’s back-to-school deals are during Aug. 4-6. Clothes costing $75 or less per piece; school supplies less than $20; and other instructional materials priced at $20 or less are all tax-free.

Oklahoma from August 4-6; only clothes and shoes costing $100 or less per piece are exempt.

Texas: During Aug. 11-13, clothing, footwear, school supplies, and backpacks priced below $100 per piece are exempt. The exemption applies to both brick-and-mortar sales and those made online or via catalog.

West Virginia: From Aug. 4-7, no sales tax is charged for clothing priced at $125 or less; laptops and tablets costing $500 or less; school supplies purchased for $50 or less; and also certain sports equipment costing $150 or less.

Expirations and Details

If you notice, most states have an exemption for clothes and footwear in a moderate price range. Some are more liberal with their exemptions, while others offer a tax break on a broader scope of items, such as electronics and supplies.

Keep in mind that a few states’ sales tax holidays are permanent, while others are temporary. Also, remember that certain states are very specific about what is exempt from sales tax, so visit your state’s tax revenue website for details. It’s also important to note that some states allow counties or towns to exempt themselves, so check for this provision as well.

Private companies both large and small are feeling the tax pinch due to changes in the law. With rampant inflation, labor shortages, lingering supply chain issues and increased borrowing costs due to rising interest rates, tax problems are the last thing struggling companies need to face.

While tax rates themselves remain largely unchanged, business’ taxable income is increasing due to changes in three main deduction areas: research and experimental (R&E) capitalization; interest expense deduction calculations; and a reduction in bonus depreciation. All of these provisions were made more liberal in the Tax Cuts and Jobs Act (TCJA) of 2018, but with a wind-down over a 10-year period.

Part of the problem is that these tax law changes can increase a business’ overall tax burden even though there have been no operational changes to the business, leaving less profits than prior years with all other factors being equal. Below, we look at each of the three tax provisions, the changes coming and the impact on businesses.

Stricter Interest Expense Limitations

Tax code section 163(j) limits the amount of business interest expense to 30 percent of adjusted taxable income. The 30 percent limit remains unchanged, but the basis of what constitutes “taxable income” as part of the calculation is becoming tighter.

From 2018 through 2021 year-end, businesses were allowed to add back depreciation, amortization and depletion in coming up with their adjusted taxable income that underlies the calculation. As a result, for 2022 and onward, without these add-backs the taxable income on which the 30 percent limit is applied will be lower, resulting in smaller interest deductions.

Given that borrowing rates have gone up substantially with increases by the Federal Reserve over recent years, now businesses are hit from two sides at once. They are likely to have higher interest costs but can take less as a deduction.

Research and Experimental Capitalization

At one point, business investments in research and experimentation under the TCJA were 100 percent deductible. Starting with 2022 and after, they need to be capitalized over a five-year period (15 years for foreign R&E).

Bonus Depreciation Decreases

Under the TCJA, bonus depreciation allowed immediate expensing and deduction of qualified investments in property and equipment, up through the taxable year-end of 2022. Starting with property and equipment investments placed in service in 2023, however, bonus depreciation is reduced from 100 percent down to 80 percent and decreases by an additional 20 percent each year until the taxable year 2027. From 2027 and onward, there will be zero bonus depreciations available. This will not only increase taxes, but it will also put a hamper on capital investments, rippling through the economy.

Conclusion

There is already chatter about extending some of these provisions, especially regarding bonus depreciation. Optimism on changes or extensions of these tax provisions should be taken cautiously, however. Many predicted that tax bill extenders would be in place before the end of 2022, but that never came to fruition. Right now, businesses are in a wait-and-see situation, with the threat of materially higher tax bills unless Congress does something.

The end of the federal emergency declaration for Covid-19 came on May 11. As a result, there are various public health policy changes. For example, vaccines and treatments will remain available, but at-home tests may no longer be covered by insurance and national CDC data reporting is subject to change.

Administratively, there are also changes to regulatory measures temporarily put in place by the emergency status that will have tax consequences. As employers struggled during the pandemic, some even to meet payroll, issues around expense reimbursements, stipends and how these are considered fringe benefits or compensation came into light.

History of Section 139

Section 139 came into being over 20 years ago after the Sept. 11 terrorist attacks. Then President George W. Bush signed the Victims of Terrorism Tax Relief Act, which created Section 139, defining qualified disasters and providing a non-taxable status to relief payments. The emergency Covid declaration enabled Section 139 to apply under its time in existence.

Section 139

Consequently, employers were able to aid employees under the federally declared Covid-19 disaster by providing non-taxable benefits to employees while deducting 100 percent at the company level.

One of the typical principles of tax law is that in order for compensation, whether cash or in-kind, to not be taxable to the recipient, it cannot be deducted by the compensating party. This makes sense logically, as the IRS simply wants one side to pay taxes in the end. The disaster declaration allowed a sort of have your cake and eat it to the period when it came to certain employee benefits.

Impact on Benefits

So, Section 139 is the reason why some Covid-related payments never found their way onto a Form W-2. It meant that certain medical expense reimbursements such as testing and OTC treatments, dependent care expenses, and work-from-home expenses, including home office stipends, were treated as deductible for the employer providing them but still not taxable to the employee receiving them.

There was never any specific IRS guidance stipulating exactly which Covid-19 expenses qualify under Section 139. Instead, most employers looked at what benefits they would not have otherwise provided but for the COVID-19 pandemic and classified these as qualifying items.

The Big Problem

Using this logic of classifying benefits that would otherwise not exist, but for Covid-19, as the justification for their taxability under Section 139 put companies in a bind. If they want to continue these benefits, they have to be treated as taxable income to the employee, or the employer can no longer deduct them.

While some benefits, such as Covid-19 test reimbursements, are less of an issue, many employees have come to see others, such as home office stipends, as a normal benefit – especially in the context of the work-from-home (or at least partial) new normal. No longer receiving these benefits or having to pay taxes on them is going to cause a lot of consternation.

Conclusion

One thing is certain. The end of the emergency declaration is going to bring changes in the realm of employee benefits. While the easy solution could be to simply make these benefits taxable to employees, companies need to think about what and how they provide in the context of both tax compliance and employee engagement and retention.

So, you filed and paid all your taxes on the money you earned in 2021. Now, the company you work for finds itself in trouble, and you are forced to pay back part of your compensation. The big question is, will the IRS refund you for the taxes you already paid related to this compensation? While this seems like a bizarre scenario at first glance, it is more common than you might think.

Reducing or holding back compensation that hasn’t been earned yet is easy. Simply pay an executive or employee less, or don’t grant the stock option or bonus. Just don’t pay it.

Things get tricky in a situation where compensation has already been paid and needs to be reversed. This is much, much tougher. If you are still within the same calendar year, then logistically, it’s easier to make an adjustment; but unwinding compensation already awarded is never simple or easy.

Requiring an employee to pay back compensation is not as uncommon as many think. The situation can be as simple as receiving a signing bonus with the stipulation to stay at least a year. IRS treatment of repaid compensation depends on the details.

Details on Compensation Clawbacks

The answer to the core question can vary, with the legal context and timing being the biggest drivers. For example, both Dodd-Frank and the Consumer Protection Act grant regulatory authority to mandate clawbacks, even in cases where the taxpayer was unaware of any wrongdoing. The Sarbanes-Oxlet Act has its own set of clawback regulations. In cases such as this, there is the possibility, due to legal concerns, that a refund is not due to the taxpayer.

Generally, in cases of contractual issues, the IRS doesn’t allow a taxpayer to undo an economic event as if it never happened. The general exception to this rule is if you receive and give back the same compensation within the same calendar year. The problem, however, is that clawbacks usually come in later years after a tax return has been filed.

If you are still employed at the same company, they could simply agree to reduce your current year salary. If you are a former employee, things get tricker. You also have the possibility of amending a prior tax return in some cases. Unfortunately, many people find themselves in a situation where they need to claim a tax refund under Section 1341 of the tax code.

Section 1341 is based on the claim of right doctrine and attempts to put a taxpayer in the same position he or she would have been in had they never received the income. To qualify for and file under this provision, the taxpayer must have included money in income in the prior year because they had an unrestricted right to it at that time and then later learned they did not have an unrestricted right to it after all, therefore having to give it back.

Conclusion

The rules and regulations around the taxability of compensation required to be repaid is not simple. While the core issue of whether one is voluntary or mandatory, givebacks almost always create tax problems. If you ever find yourself in a situation where you have to return a material amount of compensation, no matter what the source, it’s best to reach out to your trusted tax adviser for help navigating the complexities.