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).

Flip Real Estate Ineligible for Section 1031 Exchange

Working with a new real estate investor client yesterday and heard again what I have heard so many times: the real estate agent handling his flip offered him the choice of doing a Section 1031 exchange when selling the property. This is not possible. In a flip the buyer’s intention is clearly to hold the property short term and resell it, usually after making substantial improvements. The intent is not to hold for long-term appreciation. Therefore, the property is dealer property, not investment property, and ineligible for Section 1031 deferral of the tax gain. As dealer property, the gain is ordinary income, not capital gain, self-employment tax is usually owed.

Military Spouses Residency Relief Act

Under the new Military Spouses Residency Relief Act, signed into law on November 11, 2009, spouses of military service members who relocate from one state to another on military orders do not become residents of the new state for income tax purposes. This means that the military spouse’s wage/salary and self-employment income is not taxable by the new state. This new law will result in big California tax savings for some military families. This makes the income tax treatment of the military spouse similar to that of the service member, who does not acquire residency in the new state because of the Servicemembers Civil Relief Act. This new law is effective January 1, 2009.

Previously, a military spouse would acquire California tax residency when moving to California under the service member’s Permanent Change of Station (PCS) orders. The military service member would not, so the spouses had different state tax residency and the spouse’s wage/salary and self-employment income was taxed by California.

S-Corporation Officer Reasonable Salary

IRS launches in February 2010 random employment tax audits. The goal of this Employment Tax National Research Project, the first in 25 years, is to figure out where the IRS can get the most money through audits. One key issue is S-Corporation owner / officer / shareholder reasonable compensation / salary / wages. The IRS loses huge amounts of money when S-Corporation owners take unreasonably low salaries, mainly due to loss of the 6.2% Social Security portion of the FICA tax. Social Security tax applies to the first $106,800 of salary but does not apply to S-corporation distributions / dividends.

S-Corporation Tax Court Case on Basis and Losses

In the tax court case Rodney Jordan v. Commissioner, shareholder loans were bona fide, as reported on the S-corporation tax return, but some repayments were taxable income because S-corporation tax losses had reduced the shareholder’s cost basis in the debt. It was also determined that the debt was open-account debt and that some S-corporation tax losses were disallowed for lack of basis.

LLC Member Not Limited Partner – Deductions Allowed

The Tax Court again rejected IRS's position that an LLC member must be treated as a “limited partner” under passive activity loss rules. In the Hegarty case, taxpayers were allowed to deduct losses from their limited liability company tax return under a rule generally not applicable to limited partners. This follows similar decisions against the IRS on this issue by both the full tax court, in Garnett (2009), and the Court of Federal Claims, in Thompson (7/20/2009).

Home Energy Credits

Current tax law provides two credits for energy-efficient improvements to a taxpayer’s residence: the Nonbusiness Energy Property Credit and the Residential Energy Efficient Property Credit. These tax credits reduce a taxpayer’s tax bill dollar-for-dollar for 30% of the cost of qualifying energy-efficient home improvements. The credits apply for years 2009-2010 and 2008-2017, respectively. Qualifying property includes common improvements such as windows, doors, and roofs, furnaces & water heaters. Also available for the credit are solar electric and water heating, fuel cell, small wind energy, and geothermal heat pump property.