Category: Tax and Financial News

On Jan. 1, 2024, the U.S. government debuted the Corporate Transparency Act (CTA). This legislation established the requirement for the majority of private companies, both big and small, to file information with the Financial Crimes Enforcement Network (FinCEN).

As with most new laws, the initial guidance and interpretations have been both challenged and questioned. In response, FinCEN recently turned out new FAQs, which we review below.

Big Question First: To Report or Not

Reporting is generally required by all private, for-profit entities. This includes corporations, LLCs, S-Corps, etc., whenever the company was created by filing a document with the office of the Secretary of State. Entities formed under the laws of jurisdictions outside the United States are also likely subject to reporting if they are registered to do business in the United States.

To help visualize the above, you can take a look at this flowchart published on the FinCEN website.

Screenshot from FinCEN website

While the general rules seem (and are) broad in construction, there are 23 specific exemptions, including publicly traded companies, nonprofits, and certain large operating companies. The FinCEN’s Small Entity Compliance Guide checklist can help in determining if you fall under an exemption.

Now, let’s move on to more specific questions.

Who is a beneficial owner?

An individual who either directly or indirectly exercises substantial controls or owns 25 percent or more of the reporting company.

What constitutes substantial control?

There are four (separate) ways to exercise substantial control:

• The individual is a senior officer
• Has the authority to appoint or remove officers or a majority of directors
• An important decision-maker (regarding strategic, business, or finance)
• They have any other form of substantial control as per the FinCEN’s Small Entity Compliance Guide.

Who is a company applicant for a reporting company?

Another of the more perplexing questions revolves around exactly who a company applicant of a reporting company is.

First, only reporting companies created or registered on or after Jan. 1, 2024, need to concern themselves with the company applicant rules; companies formed before are exempt.

There are two possible individuals who could be considered company applicants. One is the person who directly files the documents to create and register the company. This person will always exist and be an applicant of the reporting company. In the case where there were multiple people involved in the filing or registration, the individual who primarily controlled the filing is also considered an applicant.

Thankfully, FinCEN created another handy flowchart to help navigate through this rather confusing decision.

Screenshot from FinCEN website

What about sole proprietorships?

It depends. Sole proprietorships only have to report if the entity was created by filing a document with a secretary of state or similar office. In other words, if you just start freelancing and don’t file anything with a secretary of state office, you are not subject to the reporting requirements. Basically, if you didn’t form an LLC, you don’t need to report. For example, obtaining an employer identification number, a fictitious business name, or a professional or occupational license does not subject you to the FinCEN reporting requirements.

What if my company ceased to exist before the CTA requirements went into effect?

If a company ceased to exist on or before Jan. 1, 2024, then they are NOT subject to the reporting requirements.

Do I have to report more than once?

No, you only have to file an initial report once. There is NOT an annual report. You do, however, need to amend your original filing to update pertinent changes or corrections within 30 days of their occurrence.

What happens if I don’t file a report?

Willful violation can subject one to a fine of up to $500 per day until the violation is resolved. Criminal penalties could also be imposed, resulting in up to two years imprisonment and a fine of up to $10,000.

Conclusion

The FinCEN released its guidance to clarify uncertainties around the new CTA-created reporting requirements. The goal is to ensure full and accurate compliance without undue burden on companies and individuals.

The enactment of the Tax Cuts and Jobs Act (TCJA) in 2017 brought with it major changes to the tax code on both personal and business levels. While many taxpayers have not only enjoyed but come to see these tax provisions as normal over the past seven years, many provisions of the TCJA are set to expire at the end of 2025. This makes 2026 and beyond potentially a very different tax landscape than the one we operate in today. This article reviews main provisions of the TCJA that could be affected and what it could mean for taxpayers.

Return of Higher Tax Rates

Lower tax rates were a hallmark of the TCJA. Rates on all income brackets were lowered (except the lowest 10 percent bracket). Without an extension of this act, tax rates will automatically return to their former levels, with the highest at 39.6 percent for federal income taxes.

Look for Return of Lower Standard Deductions; Higher Personal Exemptions; Unlimited SALT Deductions

The TCJA created a sort of trade-off by raising the standard deduction but lowering personal exemptions and limiting the state and local tax deductions (SALT) for itemizers. The reversal of these provisions can be either a net positive or negative, depending on each taxpayer’s situation. Generally, for those who reside in high tax brackets (income tax and/or property tax) or with a lot of dependents, the reversion will be favorable.

Currently, the standard deduction is $29,200 (married filing jointly) or $14,600 (single). These amounts will be almost cut in half to $16,600 and $8,300, respectively.

Offsetting these deduction losses, personal exemptions return. Currently, there are no personal exemptions, but this will go back to pre-TCJA levels adjusted for inflation, approximately $5,300 for each taxpayer, spouse and dependent.

The SALT deduction is capped at $10,000 under the TCJA. This limit will be eliminated; potentially giving dramatic benefit to taxpayers in high-income tax and property tax states.

Finally, it should be noted that materially lower standard deductions may create a lot more taxpayers who would benefit from itemizing deductions versus taking the standard deduction. In addition, the SALT cap, currently at $10,000 per tax return (not per person), will be eliminated.

Tax-Deductible Mortgage Interest on Large Loans

The TCJA limited tax-deductible interest on mortgages taken out in 2018 and after to interest on $750,000 of mortgage debt, versus the previous $1 million cap. This will revert back to the higher $1 million limit.

Lower Alternative Minimum Tax (AMT) Exemptions and Phase-Outs

Significant increases in AMT exemptions and phase-out limits were part of the TCJA and, as a result, millions of taxpayers were no longer subject to the AMT. This provision will revert as well, subjecting millions of taxpayers to the AMT. In particular, taxpayers who take large, itemized deductions and benefits from incentive stock compensation schemes will be the most negatively impacted.

Lower Estate and Gift Tax Limits

The TCJA nearly doubled the federal lifetime estate and lifetime gift tax exemption from $7 million to $13.61 million for a single taxpayer. These amounts double for couples making joint gifts. The limits would revert back to the $7 million level. Note that the annual gift tax exclusion of $18,000 per person is not expected to change.

Elimination of 20% Qualified Business Income Deduction and Bonus Depreciation

Pass-through business owners (e.g., S-corps, LLCs) benefitted from up to a 20 percent deduction on qualified business income under the TJCA (subject phase-outs). Business owners also benefitted from bonus depreciation as part of the TCJA – as high as 100 percent at one point. Both of these business-friendly provisions are set to expire completely unless Congress takes action.

Plan For Change

Whatever may be in the near-term, the only constant when it comes to taxes is that they will certainly be here. History teaches us to never get comfortable with the current tax code. The exact iteration of an extension of the TCJA or lack thereof is uncertain at this point, but the provisions at risk are known. For some taxpayers, this article is more of an FYI; while for those with multi-year planning strategies, the time to consider various outcomes and work with your tax advisor is now.

I sincerely hope you have never had to go through an IRS audit – and never have to in the future. But what if that dark day does arrive? Should you go it alone and defend yourself or hire a CPA, EA, or Tax Professional to be on your side?

The temptation to handle this alone is usually prompted by one of two things. First, the notion is that this is not such a big deal. Other times, people think if they handle it themselves, they will save money.

Unfortunately, neither of these are good reasons to defend yourself in a tax audit against the IRS. While the decision to hire a CPA or tax lawyer does depend on the case and the issues at hand, the procedural setting plays an important role as well. The answer is nearly universal that you should hire a CPA, EA, or Tax Professional to defend you – or even a tax lawyer if the situation warrants it (sometimes they are one in the same person).

Why it is a Terrible Idea to Defend Yourself in a Tax Audit

There are several reasons why partnering with a pro is a good idea. Let’s look at each one and why.

1. Working with your CPA, EA, or Tax Professional, you can go back and forth with your side of the story, dig into the facts, and challenge each other in formulating a response. You essentially have a thinking partner and someone to fact check your side of the situation. Plus, they know how to “handle” the IRS in the messaging of responses.
2. It is prudent to create some space between you and direct communications with the government. For the same reason, defense attorneys do not want their clients talking directly to the police. It is best if you communicate via your CPA or tax lawyer. Whenever you are in direct communications with the IRS, the chance of making a misstep is greater. Once you have said or written something to the IRS, it is pretty much impossible to backtrack.
3. CPAs, EAs, or Tax Professionals are experienced in advocating for clients and documentation.
4. Early representation is a must! One of the biggest mistakes taxpayers subject to an audit make is to start off on their own and then end up in an even worse situation than they started. One of the biggest reasons why an audit can cost a lot is because the taxpayer dug themselves into hole that a CPA, EA, or Tax Professional then later had to get them out of.
5. Most cases rest on fundamental accounting problems. Someone with expertise and good records can address these problems early and competently. Seeing your own facts and documents through an unbiased and objective lens is not easy for most of us.

Conclusion

Ultimately, the decision to hire a CPA, EA, or Tax Professional to represent you in a tax audit is a personal one. Exactly how necessary this is depends on the facts and circumstances of each individual situation, but it’s almost never a good idea to go it alone. If you ever find yourself in an audit, seriously consider hiring a CPA, EA, or Tax Professional – and do it early in the process.

Marriage is a major life event. One that comes with all kinds of change, including financial. After getting married, there is so much to consider, from merging bank and brokerage accounts to setting up a will; from changing your withholding to updating retirement account beneficiary forms. If this seems like a lot to consider, it’s important to keep in mind that when a U.S. citizen marries a non-U.S. citizen, the situation gets even more complex.

Among some of the more complex tax considerations of mixed citizenship marriages are gift and estate taxes, which we will dive into below.

Gift and Estate Tax Overview

Before getting into the details on non-citizen spousal situations, here is a recap of the basics on U.S. estate and gift taxes. In the United States, estate and gift taxes are essentially a type of transfer tax, with the tax paid by the giver. Tax rates range between 18 percent and 40 percent of the assets transferred, but there are exemptions (with lifetime limits) that can reduce or even cancel out these taxes. Currently, the lifetime exemption is $13.61 million per person; however, this is set to drop to about $7.5 million starting January 1, 2026.

Gifting – No Free Ride in Marriage

When both spouses are U.S. citizens, there is an unlimited gift tax exemption, meaning no gift tax period. In the case where the recipient spouse is a U.S citizen, this still applies; however, when the spouse receiving the gifts is a non-U.S. citizen, then it’s different.

In the case where the U.S. spouse gifts to the non-citizen spouse, there are annual limits. For 2024, the annual aggregate limit for tax-free gifting is $185,000. Gifting beyond this amount starts to eat into the total lifetime exclusion.

Leaving Assets to Heiring Spouses

Leaving a bequest to a non-citizen spouse is very similar to gifting in that it also does not benefit from the uncapped marriage exemption. When a U.S. citizen dies and leaves assets to the non-citizen spouse, the estate tax can apply. After using up the lifetime limit, taxes on these bequests can be up to 40 percent. While each situation it unique, estate planning maneuvers such as setting-up trusts can prevent or mitigate the tax hit.

Reporting Requirement – It’s About More Than Just Paying Taxes

The concept of not needing to pay tax due to exemption limitations or gift/estate tax strategies is distinct from the reporting requirements. Here, the reverse situation is the tricky one: When the non-U.S. citizen makes a gift or bequest to the U.S. spouse. Despite having no tax implications, the U.S. spouse may need to comply with informational reporting requirements if the gifts or bequests are technically foreign-sourced and more than $100,000 (in any given year). Failure to comply with reporting standards can yield serious penalties.

Gift-Splitting is Different

Gift-splitting is a technique that allows a married couple to pool their individual annual gift limits and give more tax-free money to the same person. For example, each spouse gets an annual gifting limit of $18,000 they can give to any one recipient (per calendar year), without any tax considerations or use of the lifetime limits. Gift-splitting lets each spouse give this amount to the same person, effectively doubling the amount they can give together to any one person to $36,000. This is not allowed when one spouse is a non-U.S. citizen.

Conclusion

In the end, there is almost always an issue when the U.S. citizen spouse gifts or bequests to the non-U.S. citizen spouse (not the other way around). Keep these details in mind when tax planning and you’ll be on the right path. Also, it’s important to remember that these are the U.S. tax rules and regulations. Any tax implications for the non-U.S. citizen spouse in their country is beyond the scope of this article.

Anyone who lives in a highly seasonal tourist destination knows you can make money on short-term rentals during events and festivities in your city or town. Think high concentration, short-term, tourist-driven events such as horse racing season in Saratoga Springs, N.Y., or The Masters Tournament in Augusta, Ga.

As a result, it is common for locals to get out of dodge and rent out their place during these highly lucrative periods. Typically, this is just for a very brief period while they are on vacation somewhere else themselves, for instance.

Given these circumstances, Congress realized it does not make sense to tax rental income for very short-term periods the same way that long-term rentals are taxed. In response, the government passed the Section 280A exclusion, often called the Augusta Rule in reference to the famous Masters golf tournament.

For the remainder of this article, we will look at the Augusta Rule in more detail and provide practical considerations for taxpayers.

The Augusta Rule, aka the Section 280A Exclusion

At its core, the Augusta Rule creates an exclusion to the concept that real estate rental income is always taxable. Per Section 280A, renting out your residence for 14 days or less, you are exempt from reporting the rental income. This also means no deduction for rental expenses. So, it is like it never happened from a tax perspective. As soon as you rent out that residence for 15 days or more, this exception no longer applies.

Note, it does not matter why you rented out your residence. There is no need for it to be related to an event or any special occasion.

Technical Workings of the Augusta Rule

While the basic rule itself is quite simple, there are details you need to meet in order to qualify for the exclusion – in addition to the 14-day time limit.

• The property must be a home or similar. This means the property must be a “dwelling unit” per IRS definitions, meaning houses, apartments, condos, etc. (although houseboats do qualify).
• The rental price must be reasonable. Look at comparable rents in the area to get an idea of what to charge. Luckily, this is easy today with Airbnb, VRBO, etc.

Practical Considerations

First, the above rules only apply to federal income taxation. State and local tax regulations may differ, so make sure you are up to snuff on these for your area.

Second, just because the IRS does not consider this kind of rental activity a real estate business does not mean you are exempt from local, state, or other business licensing or permit needs.

Conclusion

Qualifying under the Augusta Rule can be a wonderful way to save taxes. It can be especially beneficial to those who live in or around major events that occur for only a brief period and bring in massive amounts of tourists, creating high demand and soaring prices as a result. Moreover, it can be a terrific way to make some tax-exempt income while you are enjoying a personal vacation.

In the end, you must pay attention to the timing – and, most importantly, keep excellent records.