Self-directed IRAs (SDIRAs) are becoming more and more popular as IRA holders look to enter alternative investments. While SDIRAs can open up a world of investment options, the rules around them are complicated and compliance can be tricky. Below, we’ll look at a couple of relevant court cases that illustrate some of the potential pitfalls.
Self-Directed Equals Higher Fees
A SDIRA can own an investment in pretty much any type of asset except life insurance or collectibles. The downside to accessing investments beyond stocks, mutual funds, ETFs and bonds is that it is more expensive.
The SDIRA custodian usually charges an annual fee as well as per transaction fees. The assets also need to be valued at the end of every year for reporting purposes so there is usually a custodial appraisal or valuation fee. These fees and structures often lead to SDIRA owners taking shortcuts to save money or ease administration.
Side-Stepping Rules is Looking for Trouble
One recent case that went before the tax court involved a taxpayer whose SEP-IRA owned an LLC where he was the only owner and manager, with a national bank as the custodian. The taxpayer opened a checking account for the LLC at the same bank.
The taxpayer took distributions from his SEP-IRA and put the money into the LLC account. He then used the money to fund loans on real estate to third parties. The loans paid back over time and the repayments, including interest, were deposited back into the IRA.
The bank issued a Form 1099-R reporting the distributions as taxable events; however, the taxpayer included this income on his tax return. The IRS taxed distributions, plus the 10 percent penalty because he was under 59½. The case went to tax court with the taxpayer claiming he never actually took distributions because the money went from the IRA custodian to the LLC checking account.
The tax court found in favor if the IRS for several reasons. Most important of which is that the taxpayer held full control of the funds that were distributed. Another mistake was that he owned the LLC, which held his checking account and not the IRA. As a result, the bank as IRA custodian no longer held legal control over the money.
In the end, the taxpayer didn’t want to change custodians from the national bank, which held his SEP-IRA, because he didn’t want to pay the fees associated with setting-up a proper SDIRA. If he had, then he could have structured the investments to be made via the LLC, with the IRA as the owner of the LLC and avoided the taxable distributions completely. In the end, it cost him far more than the fees ever would have.
Collectibles Versus Property and Possession
In another case that went before the tax courts, the taxpayer opened an LLC owned by her IRA where she was the sole managing member. The IRA then purchased American Eagle gold coins, which she took physical delivery of and held in her possession.
IRAs are not allowed to own collectibles, with gold bullion and coins generally considered collectibles. There are exceptions however, with gold American Eagles being one of them – so no issue here.
The problem centered on whether the taxpayer took physical possession of the coins. The tax code says that exempt precious metals can held in physical possession by an IRA custodian. As a result, the taxpayer taking physical possession of the gold was deemed a distribution.
These two cases show that LLCs created to invest through a SDIRA must follow all the IRA rules. This is because the IRA is the entity considered to be engaged in all transactions executed by the LLC. Further, the IRA owner shouldn’t be the managing member of the LLC or take physical possession of the assets. It should always be the IRA custodian who holds the assets and maintains control.
Here we are again, nearing the end of another year. While the tax deadline for 2021 isn’t until April 2022, now is the time to plan and make some strategic moves to optimize your tax situation. Below we’ll look at some tax planning ideas for both small businesses and individuals.
Business Tax Planning
Business owners should consider a few potential planning areas. Below we’ll look at a handful of relevant topics.
Section 163(j) Interest Expense Limitation
Businesses can deduct interest expenses, subject to a limit at 30 percent of adjusted taxable income (ATI). The calculation for determining ATI is changing in 2022, so some planning might be in order.
Currently, ATI is calculated as taxable income with depreciation and amortization added back. Starting in 2022, depreciation and amortization will no longer be an add-back, effectively lowering the amount of deductible interest a business can claim.
Taxpayers should consider their current year forecast and 2022 projections to see if there is opportunity in converting debt financing to equity financing.
Many businesses needed to change and adapt processes and products to survive or thrive during the pandemic. Depending on the nature of the activities, some of the expenses might qualify for R&D tax credits. Now is the time to investigate what will qualify and begin to gather the documentation.
Remote Workers and Nexus
With so many companies allowing remote work in this new normal, consideration should be given to year-end planning for state and local taxes. State laws around nexus are evolving, and remote workers may create new reporting and payment requirements for both income and employment taxes.
Net Operating Loss Carryforward
Net operating loss (NOL) rules are changing. First, NOLs created from activity in 2021 and beyond can only be carried forward; no carry-back is allowed. Also note that NOLs generated in 2017 and can be used to offset 100 percent of current year taxable income, whereas those generated 2018 and after can only offset up to 80 percent of taxable income in any year.
As a result, taxpayers should consider revenue recognition and other tactics to maximize the use of NOLs.
Individual Tax Planning
Start Gathering Your Documents Now
Taxpayers should start gathering their documents now as there are two main benefits to this. First, it will make things more manageable and organized in 2022. Second, it will get them thinking about their financial picture. Gathering documents forces you to give your year-to-date a mental review so you don’t forget about any new or unusual events that could provide planning opportunities.
Retirement Accounts Review
Generally, everyone should consider topping off tax-advantaged retirement accounts such as IRAs or 401(k).
Perhaps more importantly, consider a back-door Roth conversion. This tax savings strategy permits taking deductible or non-deductible IRAs and converting them to a ROTH IRA. There are a lot of nuances to this move depending on the individual’s situation, but it’s very important to consider since 2021 may be the last year this is allowed, depending on legislative developments.
Required Minimum Distributions
In 2020, required minimum distributions (RMDs) from retirement accounts were suspended. RMDs return for 2021 however, so taxpayers who are 72 or older need to remember to make the calculation and withdrawal by Dec. 31.
There is no better time than now to step back and look at the past year, your financial situation, and the changes to tax laws this year and next. Remember, tax planning only works if you act before the end of the tax year. Once we reach 2022, it will be too late to make much of an impact on your 2021 tax situation.
President Biden’s latest spending bill could result in a new tax on corporate stock buybacks. In its most recent incarnation, the Senate version of the plan includes a 2 percent excise tax on stock buybacks. Still, this isn’t enough for many critics of stock buybacks, who claim they incentivize short-term behavior in lieu of long-term investment.
Stock buyback programs have long been criticized for giving a short-term boost to share prices with funds that could have been used for long-term investment instead. Critics, including the current president, believe stock buybacks come at the expense of capital investment in new or updated factories, research, worker training, etc. These critics believe this type of long-term investment is the key to sustainable growth.
Changing Behavior with Taxes
Some critics advocate for an outright ban on stock buybacks, but they are in the minority. Instead, the recent Senate bill proposes a 2 percent tax on stock buybacks. This tax is dual purpose. First, it aims to discourage buybacks and encourage longer-term investment. Second, it’s a revenue generator to help fund the trillions in new spending in the bill.
Will the 2 Percent Tax be Enough to Matter?
While a 2 percent excise tax on buybacks may not be draconian, it appears to be significant enough to drive a change in behavior. In a CNBC poll, more than half of CFOs indicated the 2 percent tax is enough for them to curtail their buyback program. Only 40 percent said they would not change their buyback program plans (CNBC Global CFO Council Survey).
Impact on the Capital Markets
Stock buybacks have had a significant impact on the markets. Not only are companies using excess cash to buy back shares, but with interest rates so low for so long, many companies have even taken on debt to buy back shares. Still, excess cash that can’t just sit on the corporate balance sheet is the main driver of the largest buyback programs. Established, cash-flush tech companies such as Apple, Alphabet and Microsoft are the dominant players, accounting for nearly one-third of all buyback activity in the first half of 2021.
Given the recent run-up in the markets, buyback programs have not kept up. Couple this with the proposed increases in corporate tax rates from 21 percent to 25 percent, and there’s even less cash to fund buyback programs. Generally, most experts believe these macro-economic factors combined with the new 2 percent tax will cause a shift toward dividend payouts as they will be more favorable to shareholders.
The main idea behind the proposed 2 percent excise tax on stock buybacks is to both raise revenue and encourage corporate investment. Critics of stock buyback programs believe this is better for the economy and workers, whereas buybacks favor corporate shareholders at their expense. While a 2 percent tax might not be enough to create wholesale change, it appears to have enough teeth combined with corporate tax rate changes to change most public company CFOs.
The House recently released a nearly 900-page proposed bill that would make major changes to current tax laws. The bill is intended in large part to help pay for both the Biden Administration’s budget and infrastructure stimulus bill.
It’s important to keep in mind that the provisions and changes outlined below are by no means settled. Changes can (and likely will) still be made as the Senate ratifies the bill; however, the remainder of this article should give readers a good idea of the most significant provisions.
Income Tax Rates are Rising
The increase in the top income tax rate is probably the most talked about proposed change in the bill, bringing it up from 37 percent to 39.6 percent. The top marginal rate would apply to single filers with taxable income over $400,000, heads of household over $425,000 and married filing jointly taxpayers making over $450,000. The impact starts with income earned on Jan. 1, 2022, and after.
The highest capital gains rate would increase from 20 percent to 25 percent and apply to qualified dividends. The increase is effective on gains made from sales that happen on or after Sept. 13, 2021, but any gains from sales incurred before or that result from binding contracts executed before this date fall under the old rate. For example, gains received post-Sept. 13, 2021, under an installment sale entered on Aug. 31, 2021, would be subject to the old 20 percent rate.
Expansion of the Net Investment Income Tax
The bill also would redefine net investment income (NIIT) to include any income earned in the ordinary course of business. Currently, the 3.8 percent NIIT surcharge applies only to passive income. The NIIT is applied to single taxpayers with more than $400,000 in taxable income and joint filers with over $500,000, and would start Jan. 1, 2022.
New 3 Percent Surcharge on High Income Individuals
Starting after Dec. 31, 2021, a new 3 percent tax will be placed on Adjusted Gross Incomes (AGI) over $5 million ($2.5 million if married filing separately).
Small Business Tax Increases
Under the bill, the current 21 percent flat corporate (C-Corporation) tax rate would change to a three-tiered system. The structure would tax net income at 18 percent up to $400,000; 21 percent from $401,000 to $5 million; and 26 percent on net income over $5 million.
Other Miscellaneous Changes
As you can imagine in an 881-page bill, there are only so many changes that can be covered in this article, but here is a smattering of miscellaneous provisions.
- Crypto currencies would become subject to the constructive and wash sale rules (like most marketable securities such as stocks) starting Jan. 1, 2022. This means that if you are holding a position at a loss, you have until the end of 2021 to harvest the loss and immediately buy back in.
- IRAs will no longer be allowed to invest in an entity where the IRA owner has a 10 percent or greater ownership interest (down from the current 50 percent threshold) or if the IRA owner is an officer of the entity.
- $80 million is earmarked for the IRS to step up enforcement and audit more taxpayers.
- Smokers will feel the pain as the bill also doubles the excise taxes on cigarettes, small cigars and roll-your-own tobacco.
Remember that this is only the House version of the bill, and nothing is final. Also remember that Democrats control the House, and the Senate is split 50/50 with the Democratic VP as the tiebreaker. As a result, while there will be changes, the major provisions outlined above will likely be in the final law in some form or another.
It’s not uncommon for adult children or siblings to act as caregivers for family members or give them financial assistance for medical or long-term care needs. The problem is that all too often those providing the help don’t take advantage of the tax benefits.
Types of Care
Caregiving happens through many different avenues. For example, family members might pay for services that their elderly parents need, such as housekeeping, meal preparation, or nursing care. Outside the home, they may pay for all or a portion of the cost of an assisted living facility.
In other circumstances, individuals could directly provide the care instead of paying for it. This could happen in either the home of the person giving the care or in the home of the person receiving the care. They might also support the relative’s daily living expenses by paying for groceries, utilities or other essentials.
Assessing the Tax Breaks Available
Step one is to figure out if the person receiving care qualifies as a dependent on the caregiver’s tax return. While there are no longer personal or dependent exemptions, qualifying as a dependent opens the door to deduct medical expenses and other medical-related tax breaks. Let’s look at an example to understand the details better.
Under our scenario, we have Rob taking care of his mother, Laura. Rob is allowed to claim Laura as a dependent if a set of tests are met. First, Laura’s gross income must be less than $4,300 in 2021. While this might seem low, note that tax-exempt interest and Social Security benefits are usually not included.
Second, Rob needs to provide the majority of Laura’s support in the calendar year. “Support” includes basic necessities such as clothes, a place to live, medical expenses, and transportation. In cases where the cared-for relative lives with the taxpayer, they are able to use the equivalent rental value of the housing provided. Given the broad definition of support, it’s often not too hard to meet this test – but make sure to keep diligent records, tracking the amount spent versus the dependent’s total support costs. You can always plan some extra payments near year-end to bump yourself over the 50 percent threshold.
Third, Laura needs to be a United States citizen.
Fourth, the location of the dependent matters. In the case of relatives such as parents, stepparents, grandparents, great-grandparents, and aunts and uncles, these persons can be considered a dependent even if they do not live with you. This means you can be helping them to live in their own house or care facility.
Fifth, Laura cannot jointly file a return with any other taxpayer.
Brothers and Sisters
What happens if you and some of your siblings split the support of a parent? It’s easy to see how in this case no one will meet the majority support test.
In the case of multiple support providers, someone can still claim the person as a dependent as long as all the supporting siblings agree on who makes the claim, and they file an IRS Form 2120, Multiple Support Declaration noting it.
Each Form 2120 signer must contribute at least 10 percent support for the year. The siblings can rotate who claims the deduction or keep it the same each year.
Why Dependency Matters
Given that the personal and dependent exemptions have been eliminated, you might wonder what all the fuss is about the person being cared-for qualifying as a dependent. Well, the answer is the taxpayer who can claim the dependent is the one who can itemize the dependent’s medical expenses as well.
Medical Expense Tax Benefit
The potential benefit comes when Rob is able to add his mother’s medical expenses to those of the rest his family. This can allow him to take a larger medical expense deduction when he itemizes expenses on his tax return. Remember that in order to benefit from any itemized deductions, the total of all itemized deductions must exceed the standard deduction.
Indirect medical costs also can be deducted, but only if the person cared-for qualifies as a dependent. Mileage costs for providing transportation to medical appointments and treatments are deductible. In 2021, this expense is deductible at $0.16 per mile.
Tis the season for summer jobs for high school and college kids. These seasonal jobs are more than just an opportunity for teens and college students to earn some money and gain experience. They also provide the opportunity for seeding a significant retirement nest egg and even a down payment on a home through a Roth IRA.
Seems too good to be true? Well, it’s not – but as always, the devil’s in the details, and it is not exactly a free lunch. So, let’s walk through exactly how this all works.
Step 1 – Earned Income
First, teen or college students must get a job that pays – and the more the better. This is because the gateway to opening and contributing to a Roth IRA is earned income. The magic number for earned income to max out a Roth IRA in 2021 is $6,000, as this is the contribution limit. This is because contributions are limited to the lesser of the $6,000 limit or 100 percent of earned income.
Step 2 – Make the Roth IRA Contributions
The next step is to make the contributions to the working child’s Roth IRA. Let’s be honest here. It is a rare case where a kid is going to take all or nearly all their summer job earnings and stash them away in a Roth IRA for 50+ years down the road. There is a way around this, however.
A parent or grandparent can contribute to the Roth IRA in the child’s[h1] name, with two nuances. First, this contribution is still governed by the earned income limits discussed above. Second, these amounts count toward the $15,000 per year gift tax exclusion ($30,000 if married) so it will eat into that. Lastly, do not forget the deadline to make 2021 Roth IRA contributions of any type is April 18, 2022.
How Much is This Worth?
While $6,000 or so may not seem like a lot, it can make a significant difference over time due to the power of compounding returns from such a young age – coupled with the tax advantages of a Roth IRA.
To illustrate the power of this tax and investment move, let us take a scenario where a high school kid makes the $6,000 per year over three summers from age 16-18 before heading off to college, and the Roth IRA contribution is maxed out.
With contributions at just $18,000 and NEVER putting in another dime again, this will turn into the following amounts under different assumed investment returns by the time they are 66 (40 years of compounding).
- 6 percent return = $313,000
- 8 percent return = $783,000
- 10 percent return = $1.93 million
Now, before you get too excited, you must understand that 40 years from now $300,000 will not be what it used to be if inflation continues at historical rates – but the point remains. This simple move made over just a few years can create significant tax-free wealth.
Due to the characteristic of a Roth IRA, the other beneficial options relate to withdrawal. First, the contributions can be accessed any time before age 59 ½ without penalties or taxes. Second, even after all the initial contributions are removed, a first-time homebuyer can take up to $10,000 without the 10 percent early withdrawal penalty to help fund the purchase, although they will owe income tax on the withdrawal if it has been less than five years since the initial contribution.
Be VERY careful here though, because any withdrawals will dramatically lower the investment returns noted above.
Funding a Roth IRA for a high school or college child or grandchild can give them a tremendous head start in life. A few years of relatively small contributions early on can create substantial wealth over time due to compounding of returns and the tax advantages of the accounts.