Congress returns this week following its Memorial Day recess. As expected, the Small Business tax package was signed into law along with the Iraqi War funding just before they left. This package included a number of S corporation reforms that we have been working on for years, and represents a significant improvement to the rules governing how S corporations operate.
Key reforms included relief from the dreaded “sting tax” as well as allowing trusts that hold S corporation stock to deduct their interest expenses, something other trusts have long been allowed to do. And while we did not get everything we sought in the bill, these new provisions are extremely welcome and we appreciate the members and staff who worked to make them happen.
Tax Bills on the Horizon
With the Small Business tax package behind us, it’s time to focus on what comes next. As we have observed, there are lots of actual and potential tax bills on the agenda for this Congress, and keeping track of them is becoming a full time job. Fortunately for S Corp members, that’s what we do. Here’s a list of tax bills to watch:
AMT Reform: Ways and Mean Chairman Rangel previously announced his plans to introduce a permanent fix to the growth of the Alternative Minimum Tax sometime this month. As we’ve written in past Wires, the threat to S corporations is the potential pairing of AMT relief with an increase in individual tax rates, a reduction in the thresholds at which those rates apply, and the change in the tax treatment of capital gains and dividends.
Energy Tax Incentives: Ways and Means is planning to take up tax legislation next week to provide new and expanded incentives for renewable energy sources. Offsets reportedly include denying the manufacturing income tax deduction to oil and gas producers as well as lengthening certain energy depreciation lives. Significantly, the offsets do not appear to include changes to the LIFO inventory accounting method for oil companies or others, at least in the House version.
Extending Family Tax Relief: The budget adopted last month allows part of the tax relief enacted in 2001 and 2003 to be extended past its current December 31, 2010 sunset. Whether Congress actually acts on this issue prior to the 2008 elections is very much up in the air, but the budget gives Congress the ability to move legislation to retain the 10 percent tax bracket, the $1000 child credit, the higher standard deduction and income tax rate thresholds designed to reduce the marriage penalty, and some sort of permanent fix to the estate tax rules. The budget does not make room for extending the lower rates on capital gains and dividends, nor the reduced rates on income taxes above the 15 percent bracket.
SCHIP: The Finance Committee will also consider legislation to expand the Children’s Health Insurance Program. The Senate has already voted to offset the cost of this increase through a tobacco excise tax during debate over the budget resolution.
Technical Corrections: As S Corp readers know, last year’s technical corrections package did not move forward based, in part, on concerns raised about increasing tax rates on exporters who have an IC-DISC. Ways and Means is working on another version, and the most recent word is the IC-DISC provision is still in the package. No word on timing of this package just yet.
Education Incentives: The Senate Finance Committee has been working on legislation to increase and reform the tax incentives for education. A proposed markup on legislation prior to Memorial Day was postponed, but this is a priority for Chairman Baucus, so expect something soon. On the House side, Chairman Rangel joined other Ways and Means members to introduce legislation to fund public school construction and rehabilitation with tax-free bonds. And several House members introduced legislation to increase tax benefits tied to the Hope Scholarship and the Lifetime Learning Credit.
International Tax Reforms: Earlier this year, Congressman Richard Neal (D-MA) introduced legislation (H.R. 1672) to change the tax treatment of dividends for certain hybrid foreign stocks. In May, the Senate Finance Committee held hearings on offshore tax evasion. And this week the Finance Committee will hold hearings on the impact globalization has on the American workforce, with a particular focus on the tax incentives that make up part of our Trade Adjustment Assistance programs. We expect these mutual concerns to coalesce into a package of international tax provisions — mostly revenue raisers — to accompany other tax legislation.
Housing: The implosion of the sub-prime lending market and the general rise in housing and land prices suggest that a housing tax bill or tax title could be considered by this Congress. The House Revenue Measures subcommittee held hearings last month that focused on the Low Income Housing Tax Credit, private activity tax-exempt bonds, and the historic rehabilitation tax credit.
Bottom Line: The combination of lots of tax bills together with the desire to offset any tax decreases with tax increases should make all taxpayers wary, especially those that, like S corporations, have been the target of unwarranted criticism in the past couple years.
INCREASED S CORP SCRUTINY — JULY 28TH, THE HILL
Yesterday’s “The Hill” takes a look at the two challenges facing the S Corp community today – modernizing S Corp rules to ensure S Corporations continue to thrive, and blocking misguided proposals to apply payroll taxes to all S Corporation income, regardless if that income is due to capital investment or even distributed to shareholders. Full article is attached below.
IRS FOCUSED ON S CORPS – JULY 27th, WALL STREET JOURNAL
Wednesday saw another story in the Wall Street Journal on the IRS’s plan to conduct special audits of 5,000 S Corps over the next couple years. These audits are a follow-up to the preliminary results of the National Research Program study – aka the “Tax Gap” study – released in March, and should be a major source of concern to the S Corporation population. Why just S Corps? Why not C Corps and partnerships? After years of focusing on improving its public image and working more cooperatively with taxpayers, it is obvious the IRS is beginning to focus again on audits and enforcement, with the nation’s S Corp population firmly in the crosshairs. Full article is copied below.
TREASURY RESPONDS TO SENATOR LINCOLN’S INQUIRY – OPPOSES PREMISE OF JCT & TIGTA RECOMMENDATIONS
At last weeks Finance Committee hearing on several pending Treasury nominations, small business champion Senator Blanche Lincoln asked the nominees:
Over the past four years, the Bush Administration has joined Congress in supporting the small business community in a variety of ways, including reducing their tax burden through across-the-board rate relief. More recently, however, the Treasury Department’s Inspector General for Tax Administration (TIGTA) has proposed applying payroll taxes to all the net income of certain S Corporations, even when that income resulted from capital investment. Is the TIGTA’s recommendation the position of the Department of Treasury, and do you believe that subjecting the net earnings of pass-through entities like S corporations to the payroll tax violates the long-standing principle that payroll taxes be applied to wage income?
Here’s the response she received from Treasury:
The Administration believes that amounts received that are not attributable to services should not be subject to employment taxes. However, the Administration is seriously concerned with the size of the employment tax gap. As the Treasury Department’s Inspector General for Tax Administration pointed out in his testimony before the Senate Finance Committee, single-owner S corporations have been designed to shelter personal services from employment taxes, even in cases where the corporation involves little or no capital investment. The Administration shares TIGTA’s additional concern with the impropriety of an S Corporation owner being subject to lower Social Security and Medicare taxes than a sole proprietor or partner in a partnership. In evaluating any legislative proposal to change the law with respect to employment taxation of S corporation shareholders, the Administration will consider these competing principles of equity among business owners and the need to apply employment taxation to compensation for services.
Since both the TIGTA and JCT recommendations would apply payroll taxes to income derived from capital, Treasury’s response indicates they do not support those proposals. That’s good news for S Corps and something to be pursued as this issue develops. More to follow on this front…
Small businesses face unwelcome IRS scrutiny — By Elana Schor, The Hill, July 28, 2005
The IRS plan to audit S corporations for possible tax abuses comes at an awkward time for the popular businesses as they continue to step up their push for a bill to ease their regulatory burdens. S corporation is the nation’s most common corporate tax designation, used by more than 3 million small-business owners who take advantage of the accompanying tax breaks to stimulate their profits. Numerous conglomerates began life as S corporations, including Kinko’s and NASCAR.
The random IRS screening of S-corporation tax returns, in concert with two government proposals this year to start levying payroll taxes on the businesses, has become unwelcome attention as lawmakers work on drafting broad S- corporation legislation.
“It’s politically risky, sure, for the IRS. If they want to go down this road, we don’t want [our businesses] to be stifled based on scare tactics,” said Ryan Peebles, manager of legislative affairs at the National Federation of Independent Business (NFIB).
Sen. Blanche Lincoln (D-Ark.) and Rep. Clay Shaw (R-Fla.) are both sponsors of the most current S-corporation bill, which would make it easier for so-called C corporations (which include most publicly traded firms) to convert to S status. Lincoln and Shaw are planning to introduce a new S-corporation bill soon after the August recess that would address myriad small-business priorities, and lobbyists said the growing public notice of S corporations could turn out to be less of a setback once the bill comes out.
Heidi Blumenthal, a tax lobbyist for the Associated General Contractors (AGC), said that the IRS audit and the payroll-tax debate are “creating focus” on S corporations and that even negative focus is a boon for lobbyists working on such a complex issue. “It’s a jumping-off point for the [Lincoln-Shaw] modernization bill, that has actually been worked on for quite a while. But now people are more ready to talk about it.”
Congress will increase the IRS enforcement budget for next year by as much as 8 percent, empowering the agency to close the $300-billion-plus gap between tax bills and taxes paid in the United States. Cracking down on S corporations, which are prone to tax evasion and sheltering by business owners, could be a huge revenue generator at a time when the growing federal deficit cries out for new money to be generated by busting delinquent taxpayers.
“The use of S corporations has exploded. The IRS needs a better understanding of what this means for tax compliance,” IRS Commissioner Mark Everson said in a statement following the agency’s audit announcement.
Hitting S corporations with Social Security and Medicare payroll taxes also would pad government coffers by $57 billion, as suggested in a January report from the congressional Joint Committee on Taxation and May testimony from J. Russell George, an inspector general at the Treasury Department. Both the report and the testimony alarmed business trade organizations and, despite the negative tone, mobilized S-corporation lobbyists to play good defense.
“You’re starting to get [congressional] staff talking about it, looking at it. That makes it a lot easier for us, in terms of lobbying on the education side,” Blumenthal said. The AGC, the NFIB and the U.S. Chamber of Commerce joined more than 20 other groups in petitioning congressional leadership to condemn publicly the payroll-tax proposal.
Brian Reardon, the top lobbyist at the S Corporation Association, said his goal was to keep the larger legislative changes sought by S corporations separate from the communications challenges posed by the payroll-tax and audit developments.
“It’s two different tracks,” Reardon said. “The modernization effort has its own momentum. The payroll-tax issue is an effort to educate members as to why the proposals on the table are bad policy and going to hurt business creation.”
S-corporation shareholders are currently exempt from payroll taxes because their income from the businesses is not classified as traditional earnings. Only passive income of S-corporation members is taxed, at a rate of 25 percent relative to total income; the coming Lincoln-Shaw bill likely will heed a Joint Committee on Taxation recommendation and hike that number to 60 percent. Other priorities for S-corporation owners include allowing tax deductions for stock donated to a charitable organization and lifting the ban on nonresident aliens’ serving as shareholders. An S corporation can have no more than 100 shareholders, and strict curbs are in place to prevent individual retirement accounts from buying S- corporation stock.
Peebles said that the NFIB’s S-corporation owners average only five employees and no shareholders and that the “lack of manpower to help out” makes the burden of a random IRS audit “a tremendously frightening experience” for small-business owners.
IRS to Put Focus on S Corporations, Wall Street Journal, July 27, 2005; Page D2
The Internal Revenue Service is planning to conduct special audits of about 5,000 closely held businesses as part of a wide-ranging research program to help combat tax evasion and improve compliance. These audits, scheduled to begin later this year, will focus on returns filed by a type of business known as an S corporation, IRS officials said this week. With a typical S corporation, the income, losses and deductions flow through directly to shareholders, instead of being taxed at the corporate level.
These corporations “continue to be the single most popular corporate entity choice,” the IRS said, and their total assets are huge. The total number of returns filed by S corporations for the 2002 tax year was nearly 3.2 million, according to an article by Kelly Luttrell, an IRS economist, in the latest issue of the IRS Statistics of Income Bulletin. That was up from about three million in 2001 and about 725,000 in 1985. Total assets rose 7.1% in 2002, to more than $2 trillion.
IRS officials said the S-corporation audits, based on returns for tax years 2003 and 2004, will be the first of their kind in nearly 20 years. The audits will focus on the extent to which income, deductions and credits are reported properly not only by the corporations themselves but also by their owners. The returns will be selected randomly among S corporations of various sizes, an IRS official said yesterday.
“The tax law is so complex that a lot of small-business people have trouble complying,” says Tom Ochsenschlager, vice president of taxation at the American Institute of Certified Public Accountants in Washington.
S corporations, named after a segment of the Internal Revenue Code, can range widely in type of business and asset size, says Daniel A. Shapiro, a tax partner at Berdon LLP, an accounting and advisory firm based in New York City. If your S corporation’s return is selected for audit under this program, “I would be prepared for a more comprehensive examination” than usual, he says.
This project represents another stage in a major IRS research program launched more than five years ago. The project, known as the National Research Program, is designed to help the IRS improve overall compliance and do a better job of selecting which returns to audit. Senior officials say too many audits of individual taxpayers have resulted in no change in the amount of tax owed, thus representing a waste of time and energy for taxpayers and IRS agents.
The IRS’s National Research Program has already analyzed noncompliance among individuals, based on special audits of about 46,000 individual returns randomly selected among various income groups. Preliminary results from that study, announced in late March, suggested that the government still has an enormous amount of work to do in combating cheating. The study indicated tax evasion and other forms of noncompliance are costing the government more than a quarter of a trillion dollars in lost revenue each year.
IRS officials already have taken several major steps to increase enforcement. They have greatly increased audits of high-income individuals and corporations. They have launched a major crackdown on what they call “abusive” shelters, or transactions they say have no real business purpose other than to dodge taxes. And they have intensified scrutiny of tax lawyers, accountants and other professionals.
One group that isn’t happy about the S-corporation audits is the National Federation of Independent Business. “The IRS’s actions are likely to reap little more than another set of hoops that small businesses must jump through in the regulatory jungle of the federal government,” said Dan Danner, the group’s executive vice president.
For a copy of the IRS announcement about plans to audit S corporations, go to the IRS website and look under “The Newsroom.” Or go directly to: http://www.irs.gov/newsroom/article/0,,id=141441,00.html2
The IRS Statistics of Income Bulletin article mentioned in the Tax Report is on the IRS Web site:
The IRS reminder about special tax provisions for storm victims can be found on the home page of the IRS Web site4. Or go directly to: http://www.irs.gov/newsroom/article/0,,id=108362,00.html5
The New York State Bar Association tax section letter cited in the Tax Report can be found at this site: