final regulations set out rules on tangible property costs

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October 2013

TAX ALERTS

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Final Regulations Set Out Rules on

Deduction vs. Capitalization of

Tangible Property Costs

The Internal Revenue Service (IRS) has issued long-awaited final regulations that provide guidance on the application of Internal Revenue Code (IRC) Section 162(a) and 263(a) to amounts paid to acquire, produce, or improve tangible property. These new regulations will affect virtually all taxpayers that acquire, produce, or improve tangible property.

Costs are currently deductible as a repair expense if they are incidental in nature and neither materially add to the value of the property nor appreciably prolong its useful life. Costs also are currently deductible if

they are for materials and supplies consumed during the year. Expenses must be capitalized if they are for permanent improvements or betterments that increase the value of the property, restore its value or use, substantially prolong its useful life, or adapt it to a new or different use.

The final regulations expand the dollar threshold for characterizing a unit of property as a material or supply to property that has an acquisition or production cost of $200 or less (increased from $100 or less in the 2011 temporary regulations). The regulations also clarify application of the optional accounting method for rotable and temporary spare parts and simplify the application of the de minimis safe harbor under Regulation Section 1.263(a)-1(f) to materials and supplies. The final regulations retain the rule in the 2011 temporary regulations that provided that amounts paid for repairs and maintenance to tangible property are deductible if the amounts paid are not required to be capitalized under Regulation Section 1.263(a)-3.

De minimis safe harbor

The final regulations more clearly coordinate the application of the de minimis rule provided in the 2011 temporary regulations to materials and supplies under Regulation Section 1.162-3T(f) (dealing with the election to apply the de minimis rule to materials and supplies) and Regulation Section 1.263(a)-2T(g) (dealing with the general de minimis rule) and the interaction between the two sections.

In the 2011 temporary regulations, a de minimis exception allowed a taxpayer to deduct certain amounts paid for tangible property if the taxpayer had an applicable financial statement, had written accounting procedures for expensing amounts paid for such property under specified dollar amounts, and treated such amounts as expenses on its applicable financial statement. Under the final regulations, the de minimis safe harbor is expanded to include not only amounts paid for property costing less than a certain dollar amount but also amounts paid for property having a useful life less than a certain period of time.

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Final Regulations Set Out Rules on Deduction vs. Capitalization of Tangible Property Costs (continued) Taxpayers without applicable financial statement:

The final regulations (unlike the 2011 temporary regulations) also include a de minimis rule for taxpayers without an applicable financial statement if accounting procedures are in place to deduct amounts paid for property costing less than a specified dollar amount or amounts paid for property with an economic useful life of 12 months or less. This de minimis safe harbor provides a reduced per invoice (or item) threshold because there is less assurance that the accounting procedures clearly reflect income. A taxpayer without an applicable financial statement may rely on the de minimis safe harbor only if the amount paid for property does not exceed $500 per invoice, or per item as substantiated by the invoice. If the cost does exceed the threshold, then no portion of the cost of the property falls within the de minimis safe harbor. The IRS has authority to change the safe harbor amount through published guidance. An anti-abuse rule aggregates costs that are improperly split among multiple invoices.

Under the final regulations, the de minimis rule is a safe harbor, elected annually by including a statement on the taxpayer's timely filed original federal tax return for the year elected. If elected, the de minimis safe harbor must be applied to all amounts paid in the tax year for tangible property that meet the requirements of the de minimis safe harbor, including amounts paid for materials and supplies that meet the requirements. A taxpayer may not revoke an election to use the de minimis safe harbor. The election may not be made through the filing of an application for change in accounting methods.

For more information about this article, please contact us at [email protected] or any of our tax professionals at (562) 435-1191, (949) 271-2600, or (213) 239-9745.

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IRS Issues New Rules on Small Employer

Health Insurance Credit

Small employers will be able to purchase health insurance for their employees for 2014 and subsequent years through Small Business Health Options Program (SHOP) Marketplaces. Many of these small employers may also be eligible for the Internal Revenue Code (IRC) Section 45R tax credit that helps to offset the cost of insurance. In August, the Internal Revenue Service (IRS) issued new rules on the IRC Section 45R small employer health insurance credit in the form of proposed regulations. The regulations describe in detail how employers can claim the credit, especially for years after 2013.

A small employer is eligible for the credit if it has fewer than 25 full-time employees (FTEs); the average annual wages of employees are less than $50,000 (adjusted for inflation after 2013), and the employer pays at least 50 percent of the cost of premiums. The credit phases out for employers if the number of

FTEs exceeds 10, or if the average annual wages for FTEs exceed $25,000 (adjusted for inflation after 2013). The phaseout of the credit operates in such a way that an employer with exactly 25 FTEs, or with average annual wages exactly equal to $50,000 (adjusted for inflation after 2013), is not eligible for the credit.

When Congress passed the Affordable Care Act in 2010 there was no requirement that employers obtain insurance through a SHOP Marketplace (because they did not exist). The requirement to obtain insurance through a SHOP Marketplace starts after 2013. SHOP Marketplaces are scheduled to open on October 1, 2013, with coverage starting January 1, 2014.

Here is an example from the IRS:

ABC Co. pays five employees wages for 2,080 hours each, three employees wages for 1,040 hours each, and one employee wages for 2,300 hours. The employer uses the actual hours worked method to calculate hours of service. The employer's FTEs would be calculated as follows:

10,400 hours for the five employees paid for 2,080 hours (5 x 2,080) 3,120 hours for the three employees paid for 1,040 hours (3 x 1,040) 2,080 hours for the one employee paid for 2,300 hours (lesser of 2,300 and 2,080) The total hours counted is 15,600 hours. The employer has seven FTEs (15,600 divided by 2,080 = 7.5, rounded to the next lowest whole number).

For tax years beginning during or after 2014, the maximum credit is 50 percent. The maximum credit for tax-exempt employers for tax years beginning during or after 2014 is 35 percent. These percent-ages were lower before 2014 (35 percent for for-profit employers and 25 percent for tax-exempt employers). The IRS explained in the proposed regulations that an employer may claim the credit for two consecutive tax years, beginning with the first tax year in or after 2014 in which the eligible small employer attaches a Form 8941, Credit for Small Employer Health Insurance Premiums, to its income tax return or, in the case of a tax-exempt eligible small employer, attaches a Form 8941 to the Form 990-T, Exempt Organization Business Income Tax Return.


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Give Withholding and Payment a

Check-up to Avoid a Tax Surprise

Some people are surprised to learn they are due a large federal income tax refund when they file their taxes. Others are surprised that they owe more taxes than they expected. When this happens, it is a good idea to check your federal tax with-holding or payments. Doing so now can help avoid a tax surprise when you file your 2013 tax return next year. Here are some tips to help you bring the tax you pay during the year closer to what you will actually owe.

Wages and Income Tax Withholding:

New Job. Your employer will ask you to complete a Form W-4, Employee's Withholding Allowance Certificate. Complete it accurately to figure the amount of federal income tax to withhold from your paychecks.

Life Event. Change your Form W-4 when certain life events take place. A change in marital status, birth of a child, getting or losing a job, or purchasing a home, for example, can all change the amount of taxes you owe. You can typically submit a new Form W–4 anytime.

IRS Withholding Calculator. This handy online tool will help you figure the correct amount of tax to withhold based on your situation. If a change is necessary, the tool will help you complete a new Form W-4.

Self-Employment and Other Income:

Estimated tax. This is how you pay tax on income that is not subject to withholding. Examples include income from self-employment, interest, dividends, alimony, rent and gains from the sale of assets. You also may need to pay estimated tax if the amount of income tax withheld from your wages, pension or other income is not enough. If you expect to owe a thousand dollars or more in taxes and meet other conditions, you may need to make estimated tax payments.

Change in Estimated Tax. After you make an estimated tax payment, some life events or financial changes may affect your future payments. Changes in your income, adjustments, deductions, credits or exemptions may make it necessary for you to refigure your estimated tax.

Additional Medicare Tax. A new Additional Medicare Tax went into effect on January 1, 2013. The 0.9 percent Additional Medicare Tax applies to an individual’s wages, Railroad Retirement Tax Act compensation and self-employment income that exceeds a threshold amount based on the individual’s filing status.

Net Investment Income Tax. A new Net Investment Income Tax went into effect on January 1, 2013. The 3.8 percent Net Investment Income Tax applies to individuals, estates and trusts that have certain investment income above certain threshold amounts.


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Congress Returns to Work After

Recess with Busy Tax Agenda

After a five-week break, Congress has returned to work with a full agenda. Proponents of comprehensive tax reform are hoping to build momentum for passage of a bill before year-end. However, before taking up tax reform, Congress has some immediate issues to address, including sequestration for fiscal year (FY) 2014, the debt ceiling, expiring tax extenders, the Internal Revenue Service (IRS)'s operations, including the confirmation of a new Commissioner of the IRS, and more. Sequestration

Unless changed by Congress, automatic spending reductions are scheduled to take effect for the government's FY 2014, effective October 1, 2013. The

Budget Control Act of 2011 generally requires that $109 billion in spending, divided equally between defense and nondefense spending, must be reduced in FY 2014. The across-the-board spending cuts will be similar to the ones in effect for FY 2013, which resulted in furlough days for IRS and other federal employees, reductions in certain nonrefundable tax credits and more. President Obama has proposed to replace the FY 2014 sequester with a new round of revenue raisers. The president has called on Congress to tax carried interest as ordinary income, repeal the last-in, first-out (LIFO) method of accounting, and reduce certain tax deductions and exclusions for higher income individuals. Tax extenders

Many popular but temporary tax incentives - affecting individuals and businesses - are scheduled to expire after 2013. They include the state and local sales tax deduction, the higher education tuition deduction, transit benefits parity, the research tax credit, enhanced small business expensing, and more. Supporters of tax reform want to make the extenders part of a comprehensive tax reform bill. Some extenders, which have yet to be identified, would be allowed to expire; others would be made permanent. More likely, Congress will decide the fate of the extenders in a year-end bill, as it has done frequently in the past. IRS operations

Since May, Daniel Werfel has been temporarily leading the IRS. Werfel has been a frequent witness at congressional hearings looking into the agency's treatment of conservative groups and others seeking tax-exempt status. Werfel has also been championing increased funding for the IRS. President Obama has nominated John Koskinen to be the next Commissioner of Internal Revenue. Koskinen previously served as the nonexecutive chair of the Federal Home Loan Mortgage Corporation. The Senate Finance Committee is expected to take up Koskinen's nomination this fall. Lawmakers are certain to ask Koskinen how he intends to oversee the agency and what reforms he may make.


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How to Compute American

Opportunity Tax Credit?

The American Taxpayer Relief Act of 2012, signed into law on January 2, 2013, extended the American Opportunity Tax Credit through (and including) the 2017 tax year. The credit, which is an enhanced version of the Hope tax credit for tuition, allows taxpayers to claim a credit against federal income taxes for costs of tuition and other qualified educational expenses paid for the taxpayer, his or her spouse, or a dependent claimed on the tax return that is enrolled at an eligible educational institution. An eligible educational institution would include any accredited public, nonprofit, or private college, university, vocational school, or other post-secondary institution.

The maximum American Opportunity Tax Credit amount is $2,500 per eligible student per year, and it is available for each of the first four years of a student's post-secondary education. This represents an increase from the Hope credit

maximum amount of $1,800 for each of the first two years of post-secondary education. There is a threshold on the amount of adjusted gross income (AGI) a taxpayer can have before the credit amount begins to phase out. The credit amount begins to phase out for single filers, heads of house-hold, and qualifying widowers with AGI of $80,000 and completely phases out for these taxpayers if their AGI exceeds $90,000. The threshold range for married taxpayers who file jointly is from $160,000 to $180,000. Married taxpayers who file separately cannot claim the credit. Computing the credit

Step One: Computing total qualified education expenses. In order to compute the amount of the American Opportunity Tax Credit, a taxpayer must first add up all his or her qualified education expenses. Qualified education expenses do not include costs of room and board, insurance, medical expenses (including student health fees), transportation, and other similar personal, living, or family expenses. The costs associated with courses involving sports, games, or hobbies, or any noncredit course are generally not qualified education expenses unless such course or other education is part of the student's degree program.

Step Two: Adjusting the amount of qualified educational expenses. The taxpayer must subtract from his or her total qualified educational expenses amounts received as tax-free educational assistance received during the tax year that are allocable to the particular academic period in question. Tax-free educational assistance includes:

The tax-free part of any scholarship or fellowship;

The tax-free part of any employer-provided educational assistance;

Tax-free veterans' educational assistance, and

Any other educational assistance that is excludable from gross income (tax free).

"Tax-free" assistance does not include a gift, bequest, devise, or inheritance. It also does not include any portion of a scholarship or fellowship that must be included in gross income.

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How to Compute the American Opportunity Tax Credit? (continued) Step Three: Calculating any phase-out of the credit. A taxpayer whose AGI falls within the phase-out ranges must reduce his or her credit amount ratably. For example, if a single taxpayer in 2012 had $85,670 in AGI, he or she must subtract that amount from the top threshold amount for single taxpayers ($90,000). Then, he would take the difference ($4,330) and divide it by $10,000. The quotient is .433, meaning the taxpayer must reduce his American Opportunity tax credit amount by 43.3 percent. If the amount of the taxpayer's qualified education expenses, after adjustments for scholarships, was $1,600, then the total credit amount that he could claim would be $891.20 because: $1,600 - ($1,600 × .443) = $891.20.


No California Principal Residence

Cancellation of Debt Exclusion for 2013

This article is reproduced with permission from Spidell Publishing, Inc., © 2013

The Legislature did not extend the Cancellation of Debt (COD) exclusion for canceled qualified principal residence debt when Senate Bill 416 (Liu) was defeated. This means that a homeowner who loses a home to foreclosure in 2013 may not use the principal residence exclusion to exclude COD income on his or her California return. An individual who has COD income in this situation should:

See if the insolvency exclusion will exclude income; or

Plan for a California tax liability for 2013. Federal law extended the exclusion through 2013. For more information about this article, please contact us at [email protected] or any of our tax professionals at (562) 435-1191, (949) 271-2600, or (213) 239-9745.

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Hyatt: The Tax Case that Just Won’t Quit

This article is reproduced with permission from Spidell Publishing, Inc., © 2013

In 1993, the California Franchise Tax Board (FTB) began a residency audit questioning Gilbert Hyatt's 1991 change of residence and domicile from California to Nevada. Today, the case continues, with both the taxpayer and the FTB accusing each other of foot-dragging and many other indiscretions.

Throughout the course of the audit, there have been allegations of anti-Semitism, scandalous allegations of a fired FTB employee, a jury award of $388 million (currently on appeal to the Nevada Supreme Court), and destroyed documentation. Currently, briefs have been submitted to the Board of Equalization in the residency case and

both sides have gone public with facts contained in the briefs. This case has given years of fodder to the tax publishing community and is already part of California's tax lore. Hyatt's side

Gilbert Hyatt (not of the hotel chain, but of microchip invention fame) was a longtime resident of California. He alleges he sold his home and relocated to Nevada, abandoning his California residence and domicile, thus avoiding California tax on $40 million of patent licensing income.

When the FTB began its expected audit, the auditor used extremely aggressive tactics, including sending letters to and speaking with the taxpayer's neighbors, going through the taxpayer's trash, and using other methods of discovering the true residence and domicile of the taxpayer.

The result was Hyatt filing a lawsuit, alleging fraud, intentional infliction of emotional distress, abuse of process, breach of confidential relationship, and invasions of privacy. After the U.S. Supreme Court found in favor of Hyatt, allowing him to sue the FTB for tortuous acts in a Nevada court, Hyatt was awarded the $388 million judgment. The residency case is still pending and Hyatt and his attorneys argue that the FTB has let this case drag on and that they have ignored the numerous affidavits provided by Hyatt that he had moved to Nevada, severing ties with California. The FTB's side

On the other hand, the FTB in essence agrees that Hyatt has not been forthcoming from the beginning, and if he had provided documentation proving his move, the case could have been closed. However, they allege he did not produce records when asked and has fought administrative subpoenas. The FTB also alleges numerous conflicts in Hyatt's testimony and questions the method he used to gather affidavits.


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Reduce Your Taxes with

Miscellaneous Deductions

If you itemize deductions on your tax return, you may be able to deduct certain miscellaneous expenses. You may benefit from this because a tax deduction normally reduces your federal income tax. Here are some things you should know about miscellaneous deductions: Deductions Subject to the Two Percent Limit

You can deduct most miscellaneous expenses only if they exceed two percent of your adjusted gross income (AGI). These include expenses such as:

Unreimbursed employee expenses.

Expenses related to searching for a new job in the same profession.

Certain work clothes and uniforms.

Tools needed for your job.

Union dues.

Work-related travel and transportation. Deductions Not Subject to the Two Percent Limit

Some deductions are not subject to the two percent of AGI limit. Some expenses on this list include:

Certain casualty and theft losses. This deduction applies if you held the damaged or stolen property for investment. Property that you hold for investment may include assets such as stocks, bonds and works of art.

Gambling losses up to the amount of gambling winnings.

Losses from Ponzi-type investment schemes.

Many expenses are not deductible. For example, you cannot deduct personal living or family expens-es.


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Important Provisions that are Taking

Effect Under the Affordable Care Act

The Patient Protection and Affordable Care Act (PPACA) - the Obama administration's health care reform law - was enacted in 2010 and many of its provisions have taken effect; but other important provisions will first take effect in 2014 and 2015. These provisions of the law will require affected parties to take action, or at least to be aware of the law's impact, in 2013 and 2014. These provisions affect individuals, families, employers, and health insurers, among others.

Individual mandate

The individual mandate will apply beginning in 2014. The mandate applies separately for each month. Individuals and their dependents must either carry health insurance or pay a penalty, known as the individual shared responsibility payment. The health insurance must qualify as minimum essential coverage (MEC). Most employer-offered plans, as well as Medicare and Medicaid, qualify as MEC. Certain groups are exempt from the individual mandate, including members of a health-sharing ministry, taxpayers without an income tax filing requirement, members of federally recognized Indian tribes, and persons for whom coverage is unaffordable (more than eight percent of the individual's household income). Exchanges

Affordable health insurance marketplaces (exchanges) are ramping up and will be open for business October 1, 2013. Exchanges will provide an open enrollment season during which individuals and families without health insurance can sign up for an insurance policy offered through the exchange, effective January 1, 2014. Anyone needing insurance, or looking for cheaper insurance, can use an exchange. Persons who obtain coverage through an exchange will avoid owing a penalty under the individual mandate. Employers have to start notifying existing employees about the existence of exchanges by October 1, 2013, and must notify new employees when hired.

Low-income individuals and families who purchase insurance through an exchange may qualify for the health insurance premium tax credit for 2014 if their household income falls between 100 percent and 400 percent of the federal poverty level for 2013. Individuals who do not have a filing requirement for 2013 do not need to file a return to qualify for the credit. Individuals will generally self-certify as to their eligibility for the credit. Based on this information, the exchange will determine whether the insured person qualifies for the credit. Taxpayers may qualify for an advanced credit; in this case, the exchange will pay the credit directly to the insurer during 2014 to offset a portion of the health insurance premium. Small employer credit

Small employers may be able to claim the small employer health insurance credit if the employer has 10 or fewer employees and average wages per employee of $25,000 or less. While the credit has ~~~~

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FAQs: Important Provisions that are Taking Effect under the Affordable Care Act (continued) been around since 2010, the amount of the credit increases for 2014 and 2015 to 50 percent of premiums paid for taxable employers and 35 percent for nonprofit employers. Employer mandate

The employer mandate (the employer-shared responsibility payment) was scheduled to take effect in 2014, but the IRS postponed it until 2015. Nevertheless, during 2014, employers will want to start paying attention to whether they would qualify as an "applicable large employer" (ALE), since status as an ALE for 2015 depends on 2014 employees. An employer who has 50 or more full-time equivalent employees is an ALE. New employers will be treated as an ALE if they "reasonable expect" to have 50 employees. Employers that are members of an affiliated group of companies under Internal Revenue Code Section 414 must determine their status as ALEs based on the number of employees in the group. Employers will also want to look at their health insurance offerings. Once the employer mandate applies, employers must offer MEC to 95 percent of their full-time employees. The coverage must also be affordable and must provide minimum value. Employers should look at whether they need to redesign their plan offerings or change the employees' share of the cost to comply with these requirements. The employer may be responsible for the employer mandate and owe a penalty if the employer's coverage does not satisfy these requirements, if the employee purchases insurance through an exchange, and if an employee qualifies for the insurance premium tax credit. Employer reporting. The requirements for employers and insurers to report health insurance coverage provided to employees and others were also postponed until 2015. Nevertheless, the IRS is encouraging health insurer issuers to experiment with the requirements by filing the necessary reports for 2014. Larger employers also have to report the value of their health insurance coverage on the employee's Form W-2. The amount reported is not taxable. Wellness programs. Beginning in 2014, employers may offer wellness programs as part of their health care benefits offered to employees. Employers may offer benefits, such as premium reductions, to employees who satisfy certain health-related requirements.


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12

Donita M. Joseph Presents to the CalCPA

Orange County/Long Beach Estate

Planning Discussion Group

Tax and Accounting partner, Donita Joseph, CPA, MBT, spoke at the CalCPA Orange County/Long Beach Estate Planning Discussion Group on September 25, 2013, where she conducted a presentation on “The Finer Points in Preparing Forms 1041 and 541.” Donita discussed the technical application of the new 3.8% Medicare surtax relating to current forms and filing requirements. She also presented this topic to the CalCPA Hollywood/Beverly Hills Estate Planning Discussion Group in August of this year. Donita leads the Estate and Trust practice at Windes & McClaughry. She has more than 30 years of experience in taxation issues involving

estate and trust tax planning. Donita’s practice provides personalized consultation for estate and trust services, planning, and administration in these areas:

Estate Tax Returns

Gift Tax Returns

Fiduciary Income Tax

Estate Planning, Post Mortem Planning

Charitable Trust Planning and Returns

Trust and Estate Administration

Trust and Estate Accounting

Income Tax Planning for Individuals

Nonprofit Tax Returns

Private Foundation Planning / Returns Donita also has extensive experience with compliance, planning, and governance issues of nonprofit organizations, including private foundations. Donita is currently a member of the AICPA Trust, Estate, and Gift Technical Resource Panel. She is the former chair of the CalCPA Estate and Planning Committee and the former president of the Long Beach Estate Planning and Trust Council. If you have questions about estate and trust tax planning, please contact Donita Joseph at [email protected] or 562-435-1191. ~~~~

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Visit us online at: www.windes.com

Windes & McClaughry is a recognized leader in the field of accounting, assurance, tax, and business consulting services. Our goal is to exceed your expectations by providing timely, high-quality, and personalized service that is directed at improving your bottom-line results. Quality and value-added solutions from your accounting firm are essential steps toward success in today’s marketplace. You can depend on Windes & McClaughry to deliver exceptional client service in each engagement. For over eighty-five years, we have gone beyond traditional services to provide proactive solutions and the highest level of capabilities and experience. Windes & McClaughry’s team approach allows you to benefit from a wealth of technical expertise and extensive resources. We service a broad range of clients, from high-net-worth individuals and nonprofit organizations to privately held businesses and publicly traded companies. We act as business advisors, working with you to set strategies, maximize efficiencies, minimize taxes, and take your business to the next level.

Orange County Office 18201 Von Karman Avenue Suite 1060 Irvine, CA 92612 Tel: (949) 271-2600

Headquarters 111 West Ocean Boulevard Twenty-Second Floor Long Beach, CA 90802 Tel: (562) 435-1191

Los Angeles Office 601 South Figueroa Street Suite 4950 Los Angeles, CA 90017 Tel: (213) 239-9745

© 2013, Windes & McClaughry Accountancy Corporation


http://www.windes.com/

final regulations set out rules on tangible property costs

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