Automobile Mileage Tax Deduction – Mileage Logs

A recent court case illustrates the importance of automobile mileage logs. A self-employed salesperson did not keep a mileage log and instead tried to prove his business use of automobile by such means as a random sampling of invoices and odometer readings at beginning and end of year. This evidence fell far short of the strict record-keeping requirements for business use of automobile tax deductions, which require the date, location, business purpose, and number of miles for each trip. Douglas A. Royster v. Commissioner, (2010) TC Memo 2010-16. IRS standard mileage rates provide deductions for business use of an automobile of $0.55 per mile for 2009 and $0.50 for 2010.

Business Use of Cell Phone Record-Keeping Required

Cell phones are used all the time in business. What many people don’t know is that tax deductions for business use of cellular phones are not guaranteed. Since cellular telephones are "Listed Property" under Internal Revenue Code Sections 274 and 280F, the IRS can require taxpayers to produce detailed records to justify the business tax deductions. Tax regulations require evidence of the amount, date/time, and the business purpose of each business use of a cellular phone. Most expenses other than the purchase of the phone will be listed on your cellular phone bills, which will provide the dollar amounts and dates/times of usage. However, the law technically requires taxpayers to prove the business purpose of each call. Although this is an unreasonably burdensome record-keeping requirement, it is the letter of the law. Luckily, this may change this year. Commissioner of the IRS Douglas Shulman recently stated that he is optimistic that Congress will pass a law this year so that personal use of employer-provided cell phones is not taxable.

GAO S Corporation Report

The U.S. Government Accountability Office (GAO) recently released the report “Actions Need to Address Noncompliance with S Corporation Tax Rules.” The report included compilation of statistics on S corporation income tax returns, return preparation errors, and ideas on squeezing more payroll or self-employment taxes from S corporation shareholder-employees.

From tax year 2000 to 2006, the total number of S corporations increased 35% to almost 4 million. S corporations grew from 11.4% of all entities in tax year 2000 to 12.6% in tax year 2006. The S corporation is the most popular business entity. Although an S corporation can have up to 100 shareholders, in tax year 2006, 60% had just a single shareholder, 89% had two or fewer shareholders, and 94% had three or fewer shareholders.

Regarding the accuracy of S corporation tax return reporting, 68% of returns filed for tax years 2003 and 2004 (the years data were available) misreported at least one item. About 80% of the time the misreporting provided a tax advantage to the corporation and/or shareholder. Common reporting errors included shareholder distributions, personal expenses, and unsubstantiated deductions. The GAO estimated that 71% of S corporations that used a paid preparer for their returns were noncompliant.

The GAO estimated that 13% of S corporations paid shareholder wage / salary compensation that was not reasonable (too low), resulting in just over $23.6 billion in net underpaid wage compensation to shareholders. The median misreporting adjustment for underpaid shareholder compensation was $20,000. The GAO also found that the fewer the number of shareholders, the more likely an S corporation was to pay an unreasonable salary to a shareholder-employee.

The report recommended a number of tax law changes to mitigate the S corporation tax return errors, including subjecting to self-employment tax the entire net income of the S corporation, or of service sector S corporations, or income attributable to majority shareholders. Other alternatives include subjecting to payroll taxes not just shareholder wages but also distributions, or all payments up to a certain dollar amount.

These ideas have been kicked around for years, and although there is a threat that taxes may increase, there is no specific tax law change on the horizon that would hamper the huge self-employment / payroll tax savings that can be achieved through an S corporation.

LLC Member’s Income Subject to Self-Employment Tax

Tax law had been unclear for years to what extent self-employment tax must apply to income earned by a Limited Liability Company member. Taxpayers and the IRS over the years have taken positions that LLC units are the same as limited partnership interests, general partner interests, or sometimes one and sometimes the other. Congress has not passed any law to clarify the issue. Recently, however, an important Tax Court case, Garnett (132 T.C. No. 19), provided some clarification. Although the case was about the application of the passive activity rules to LLC income, the court’s conclusion on the nature of LLC units impacts self-employment tax. The tax court found that LLC units are not the same as limited partnership interests under federal tax law. In the past some had argued that LLC income is not subject to self-employment tax because LLC interests are the same as limited partnership interests, which are by definition not subject to self-employment tax. In light of this new court case, that argument is no longer valid.

2010 Business Income Tax Depreciation / Research Credit

As of today, the following business tax breaks expired at the end of 2009 and are no longer available in 2010: 50% bonus depreciation on new business equipment / fixed assets, including the extra $8,000 automobile first-year depreciation deduction; research credit. Also, IRC Section 179 “depreciation” / “expense election” of $250,000 drops to $134,000 (California tax amount is still $25,000) and the phase-out starts at $540,000 rather than $800,000 (California tax amount remains at $200,000).

LLC to S-Corporation Conversion Clarified

The IRS has issued a new ruling that applies to a Limited Liability Company (LLC) electing to be taxed as an S-corporation. The ruling clarifies that there does not need to be a short tax year as a C-corporation in the middle of the process of converting from a “partnership” (the default tax status of an LLC) to an S-corporation. Avoidance of the accounting and tax burdens of an intervening C-corporation tax year is welcome to all involved.

Small Business Tax Net Operating Loss Election Clarified

The IRS has issued clarification on the election to carry back a small business tax net operating (NOL) loss 3, 4, or 5 years. In this case the IRS has taken the pro-taxpayer interpretation regarding which years’ revenues are used to determine whether the loss is a qualifying small business tax NOL. The election may be made by filing the applicable refund claim forms, by attaching a statement to the tax return for the year in which the small business tax NOL arose.

S-Corporation Built-In Gains Period Now 7 Years

The new stimulus law, the American Recovery and Reinvestment Act of 2009, signed into law by President Obama on Feb. 17, temporarily reduced the S-Corporation built-in gains period from 10 to 7 years. For tax years 2009 and 2010, S-corporations can avoid C-corporation maximum-rate income tax on built-in gains. Built-in gains are generally gains that were unrealized at time of conversion from C-corporation to S-corporation. Generally these gains are subject to the maximum C-corporation tax rate if realized (the property is sold) by the S-corporation within 10 years of S-election.

Employee-Shareholder Reasonable Compensation

In addressing the issue of employee-shareholder reasonable compensation in the Menard Inc. tax court case, the Court of Appeals for the Seventh Circuit rejected the Tax Court's multi-factor approach in favor a single “independent investor” test. Under the independent investor test, if a hypothetical independent investor would consider the rate of return on his investment to be far higher than he had any reason to expect, the compensation paid is presumptively reasonable [regarding whether the compensation is unreasonably high, in the case of a C-corporation]. However, the presumption may be rebutted by evidence that the company's success was the result of extraneous factors, such as an unexpected discovery of oil under the company's land, or that the company intended to pay the owner/employee a disguised dividend rather than salary. Menard Inc. v Commissioner (CA 7 3/10/2009).

Qualified Small Business Stock Gain Exclusion 75%

Under the American Recovery and Reinvestment Act of 2009, signed by President Obama on 2/17/2009, noncorporate taxpayers can exclude 75% (rather than 50% or 60%) of gain on the sale or exchange of Qualified Small Business Stock (QSBS) held for more than 5 years if acquired after Feb. 17, 2009 and before Jan. 1, 2011. Beware that Alternative minimum Tax (AMT) may eliminate some of the benefit. Does not apply to S-Corporation stock, only to regular C-Corporation stock.

Section 179 Business Equipment Deduction Increased

The new tax act increased 2009 Section 179 limits to $250,000 deduction for businesses buying less than $800,000 of equipment. Section 179 allows a taxpayer, other than an estate, trust, and certain noncorporate lessors, to deduct the cost of equipment as an expense instead of claiming depreciation over a number of years.

Bonus Depreciation on Automobiles

Under the new stimulus law, the American Recovery and Reinvestment Act of 2009, a business can increase the first-year depreciation deduction by $8,000 of bonus depreciation for new passenger automobiles, light trucks, and vans placed in service in 2009 is. Since depreciation of passenger automobiles is severely limited by the tax law, this is a good opportunity to accelerate deductions. Applies to all business tax returns: corporate tax returns, S-corporation tax returns, partnership & Limited Liability Company / LLC tax returns, and sole proprietor tax returns.