Zaher Fallahi, Tax Attorney, CPA; 2014 Year-End Tax Planning

Welcome you to the Website of Zaher Fallahi, Tax Attorney, CPA. The tax tips contained herein below are for informational purposes only, and are not to be considered as tax or legal advice. These are only selective items and do not include all important 2014 tax law. For specific advice suitable to your particular situation, obtain tax advice from your tax advisors, or consult us, before acting on these tips.

Individual Taxpayers

The single taxpayers with taxable income in excess of $406,751 a year, $457,601 for married filing jointly including same sex couples because of the Supreme Court decision in Windsor Case, and $432,201 for head of household would pay 39.60% in taxes on the excess amounts.

Tax Tip: It may be tax-advantageous to accelerate other income such as year-end bonuses if you will have more income in 2015, or delay it if you will have less income in 2015. Considering the current US budgetary problem, there is no certainty about future tax rates. Therefore, any decision assuming the status quo may run the risk of higher future tax rates.

0.9% Medicare Tax Hospital Insurance Tax

The employee’s share of the Federal Insurance Contributions Act (FICA) withholding from wages has increased from 1.45% to 2.35% on wages in excess of $250,000 for joint filers and $200,000 for married taxpayers filing separately. The extra tax is imposed on the combined salaries of the spouses for joint filers, including the self-employed individuals as well. No matching by employer.

Tax Tip: It may be tax-advantageous to accelerate other income such as year-end bonuses if you will have more income in 2014, or delay it if you will have less income in 2014. Any tax-advantageous reclassification of income must be analyzed thoroughly to ensure its legality.

Net Investment Income Tax (NIIT)

Starting in 2013 a 3.8% Medicare tax is imposed on certain net investment income (NII) of individuals, estates, and trusts by the 26 USC § 1411 on the lesser of:

1.Taxpayer’s net investment income is the investment income reduced by applicable associated cost; interest, dividends, rents, annuities, royalties, and net capital gains from disposition of property not used in a trade or business, or

2. Modified Adjusted Gross Income (MAGI; adjusted for foreign earnings) that exceeds the threshold of $250,000 for married filing joint taxpayers or $200,000 for single taxpayers.

In general, investment income includes, but is not limited to: interest, dividends, capital gains, rental and royalty income, non-qualified annuities, income from businesses involved in trading of financial instruments or commodities, and businesses that are passive activities to the taxpayer. The NII is reduced by certain expenses properly allocable to the income.

Kinds of gains are included in Net Investment Income

To the extent that gains are not otherwise offset by capital losses, the following gains are common examples of items taken into account in computing the NII:

a). Gains from the sale of stocks, bonds, and mutual funds.

b). Capital gain distributions from mutual funds.

c). Gains from the sale of investment real estate, including gain from the sale of a second home.

d). Gains from the sale of interests in partnerships and S corporations to the extent you were a passive owner.

What are some common types of income that are not NII?

Wages, unemployment compensation, operating income from a non-passive business, Social Security Benefits, alimony, tax-exempt interest, self-employment income, gain on the sale of a personal residence, and distributions from certain Qualified Plans.

Tax Tips: Eliminating or minimizing the 3.8% tax may be done by deferring the NII or reducing the MAGI, or both. Disposition of commercial rental properties with prior suspended losses may release those losses and reduce your tax burden. This is an unchartered territory and requires sophisticated professional advice.

Capital Gains Tax

Capital Gains and Dividends tax rates increased from 15% to 20% for taxpayers with taxable income in excess of the thresholds mentioned above ($400,000 for single filing status, etc). Net capital gains from selling collectibles such as coins or art are taxed at a maximum 28% rate. The rate will remain 15% for the middle class and the taxpayers in the 10% and 15% bracket still pay zero taxes on their Capital Gains.

Wash sale rule

Under the “wash sale” rule that applies to the disposition of an asset when a loss is recognized, the IRS doesn’t permit taxpayers deduct the loss if they repurchase the same or identical investment during the 30-day period before or after the sale date.

Tax Tip: Consider selling worthless stocks or losing stocks and repurchasing them 31 days later to avoid wash sale, if advisable. Remember the §§ 1202 and 1244 stocks explained below.

Section 1202, Qualified Small Business Stock (QSBS)

Under 26 US §1202, taxpayer excludes 75% of the gain recognized from the sale or exchange of QSBS that is held more than five years on a qualified stock acquired on or before September 27, 2010 and after February 17, 2009 and 100% on qualifying stock acquired after September 27, 2010, and before Jan. 1, 2014.

Tax Tip: The stock must be issued by domestic C corporation, originally issued after August 10, 1993, with total gross assets of $50 million or less, at least 80% of the value of the corporation’s assets was used in the active conduct of qualified businesses, held by non-corporate taxpayer, held more than five years, etc. Application of this law may be complicated and require tax professional advice.

Section 1244 (small business) stock

The loss from the sale of a qualified corporation may be used against ordinary income similar to net operation loss up to $50,000 for single filers and $100,000 for married filing jointly.

Tax Tip:  To qualify as section 1244, stock must be issued by a domestic corporation, issued for money or other property. The total amount of money and other property received by the corporation for its stock as a contribution to capital and paid-in surplus generally may not exceed $1 million, etc. This loss is claimed on Form 4797, not Schedule D.

Debt forgiveness

The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude up to $2 million of forgiven debt ($1 million if married filing separately) from the discharge of debt on their principal residence through foreclosure, restructuring, or short sale, thorough December 31, 2014. California conforms to this law.  The State’s position with respect to subsequent to December 3, 2013 is unknown at the time of this writing.

Tax Tip: The US House passed bill to extend law, which will go to the Senate at the time of this writing.

Itemized State & Local Taxes, Medicare and Miscellaneous Deductions

Beginning Jan. 1, 2013, you can claim deductions for medical expenses not covered by your health insurance that exceed 10 percent of your adjusted gross income. There is a temporary exemption from Jan. 1, 2013 to Dec. 31, 2016 for individuals age 65 and older and their spouses. If you or your spouses are 65 years or older or turned 65 during the tax year, you are allowed to deduct unreimbursed medical care expenses that exceed 7.5% of your adjusted gross income. The threshold remains at 7.5% of AGI for those taxpayers until Dec. 31, 2016.

Tax Tip:  If tax advantageous, the amount of medical expense, state & local taxes and miscellaneous deductions, you may expedite or defer them to 2015. Do not fall into the Alternative Minimum Tax (AMT) trap, because some of these are AMT preference and adjustment items.

Individual Retirement Account (IRA)

Traditional tax deductible IRA contribution is $5,500, and $6,500 for taxpayers 50 years or older.

Tax Tip: Contribution must be made on or April 15, 2015.

Roth IRA

Non-tax deductible Roth contribution is $5,500 and $6,500 for taxpayers 50 years or older, for married filing jointly with AGI less than $181,000. More than $191,000 AGI, no contribution allowed.

Tax Tip: Contribution must be made on or before April 15, 2015.

Simplified Employee Pension Plan (SEP-IRA)

IRC § § 402(h) and 415 limit the amount of contributions made to an employee’s SEP-IRA to the lesser of $52,000 or 25% of the eligible employee’s compensation.

Tax Tip: Contribution may be made until the filing of the tax returns, including extensions.

401(K) Limit

The maximum employee contribution is $17,500.

Tax Tip: Maximize your contribution and benefit from most employers’ matching policy.

Foreign Account Tax compliance Act (FATCA) 2011 Law

Under the requirements of Sections 1471 through 1474 of the IRC, commonly known as Foreign Account Tax compliance Act (FATCA), certain U.S. taxpayers holding specified foreign financial assets with an aggregate value exceeding $50,000 must report information about those assets on new Form 8938, which must be attached to the taxpayer’s annual income tax return.

Tax Tip: Include earnings from FATCA accounts in your 2014 estimated taxes. If you have never reported these accounts to the US Treasury, consult a tax attorney with expertise in handling international and foreign bank accounts.

Report of Bank & Financial Accounts (FBAR) 1970 Law

If you have a financial interest in, or signature authority over, a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account, exceeding $10,000, the Bank Secrecy Act requires you e-file the FBAR report with the US Treasury Financial Crimes Enforcement Network (FinCen) by no later than June 30, 2015.

Tax Tip: Include earnings from FBAR accounts in your 2014 estimated taxes. If you have never reported these accounts to the US Treasury, consult a tax attorney with special skill in handling international and foreign bank accounts.

Documentation of charitable contribution

The substantiation requirements for monetary donations of less than $250 remain fairly informal under Sec. 170(f) (17): The donor should maintain a bank record of the contribution or written communication from the donee stating the name of the donee organization, as well as the date and dollar amount of the donation. For donations of $250 or more, Sec. 170(f)(8) requires that the donor must obtain a contemporaneous written acknowledgment, stating the amount of the contribution, whether the donee provided goods or services in consideration for the donation, in whole or in part, and a good-faith estimate of the value of any goods or services the organization provided. If goods or services received consist solely of intangible religious benefits, the contemporaneous documentation must contain a statement to that effect.

Tax Tip: Obtain supporting documents at the time of making the contribution.

Residential Energy Efficient Property Credit

This tax credit is 30 percent of the cost of alternative energy equipment that you installed on or in your home. Qualified equipment includes solar hot water heaters, solar electric equipment and wind turbines. There is no limit on the amount of credit available for most types of property. If your credit is more than the tax you owe, you can carry forward the unused portion of this credit to next year’s tax return. You must install qualifying equipment in connection with your home located in the United States. It does not have to be your main home. The credit is available through 2016.

Tax Tip:  Obtain documents proving eligibility form the manufacturer of these items to be on the safe side.

Alternative Minimum Tax (AMT)

The 2014 AMT exemption increases to $82,100 for married filing jointly (MFJ) and $52,800 for single filers. The AMT exemption is reduced by 25% of the amount by which alternative minimum taxable income exceeds $156,500 for MFJ and $117,300 for singles. The 28% AMT rate applies to excess alternative minimum taxable income above $182,500 for MFJ and $91,250 for married filing separately.

Tax Tip: Consult your tax advisor regarding AMT consequences to avoid falling into an AMT trap.

Recognition of Same-Sex Marriage

In United States v. Windsor, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional because it violates the principles of equal protection. It concluded that this section “undermines both the public and private significance of state-sanctioned same-sex marriages” and found that “no legitimate purpose” overcomes section 3’s “purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect” (Windsor, 133 S. Ct. at 2694-95). This ruling provides guidance on the effect of the Windsor decision on the Internal Revenue Service’s interpretation of the sections of the Code that refer to taxpayers’ marital status.

Tax Tip: Because of the Windsor holding, all of the tax laws discussed herein are applicable to the Same-Sex couples as well.

Litigation attorneys beware; some settlement awards may be taxable

Some plaintiffs or even lawyers may assume that settlements awards are tax free. Not so, says Uncle Sam. Internal Revenue Code (IRC) § 61 states all income from whatever source (this includes lawsuit awards) derived is taxable, unless specifically excluded by another Code section. IRC § 104 is the exclusion from taxable income with respect to lawsuit settlements and awards.

The 1996 amendment added to IRC § 104(a) (2) the word physical to the clause “on account of personal physical injuries or physical sickness.” Therefore, in order for damages to be excludible from income, the judgment or settlement must be derived from personal physical injuries or physical sickness. Prior to the 1996 amendment, IRC § 104(a) (2) was extensively litigated with respect to what was personal injuries.

Tax Tip: The litigators are advised to discuss the tax consequences of their potential awards and their settlement structure with a tax attorney, before the case is settled, to ensure that their clients will get a tax advantageous settlement, if qualify. The plaintiffs need to do their own tax planning and be aware of taxability of their awards and settlements to avoid unnecessary taxes and unexpected AMT trap due to deducing their legal fees on Schedule A subject to 2% limitation. The losing parties should study possible tax deductibility of the settlement or judgment and their legal fees.

Foreign Provision; the Foreign Investment in Real Property Tax Act (FIRPTA)

The Foreign Investment in Real Property Tax Act (FIRPTA) requires a tax of 20% of the amount realized on the disposition of all US real property. A buyer of U.S. real property interest from a foreign investor is considered the withholding agent and is obligated to find out if the seller is a foreign person. If the transferor is a foreign person and the transferee fails to withhold, the buyer may be held liable for the tax. The seller must report the sale of the real property interests by filing a U.S. Federal Tax Form 1040-NR or Form 1120-F.  The withholding agent must remit the withholding of tax to the IRS by the 20th day of the date of the transfer.

The transferor: You may be eligible for a lesser withholding in the following circumstances:

The disposition of the US real property interest takes place under one of the non-recognition provisions of the Internal Revenue Code.

a). When the transferor’s maximum tax liability on the disposition is less than the amount otherwise required to be withheld.

b). The transferor or transferee wants to come under certain installment sale rules.

c). The transferor or transferee enters into an agreement with the IRS by posting a type of security (letter of credit, bond, etc.).

d). The transferor or transferee may enter into a 12- month agreement with the IRS to obtain a “blanket withholding certificate” for multiple properties.

e). A non-standard application may be submitted for unique situations that do not fit into the above categories.

Note: Acquisition of the US Real Property by Foreign Persons from countries under the US Economic Sanctions are subject to specific licensing requirements of the US Treasury Office of Foreign Assets Control (OFAC). Also, purchase of these properties from the foreign persons from citizens of those countries may be subject to the same laws. These countries include but are not limited to Cuba, Syria, North Korea, Iran, etc.

Tax Tip:  The transferee; ascertain the nationality of the transferor and withhold the required taxes. When representing a client with connection to sanctioned countries, seek advice from OFAC counsels.

Reasonable Compensation for Shareholders who work for the Corporation

When a stockholder works for her/his own corporation, s/he must be paid a reasonable amount of salary for the services performed. The Government Accountability Office has reported many employment tax abuses with respect to S corporation shareholders who worked for the corporation, alleging unreasonably low compensation paid to these shareholders. The IRS has ascertained corporate income tax abuses by unreasonably excessive compensation of C corporation shareholders who worked in the corporation.

Tax Tip: Pay the working shareholder reasonable salary before January 1, 2015 and incorporate any estimated taxes into W-2 form. Alternatively, if you discover this situation after January 1, 2015, convert some of the distribution into executive management fee and show as Schedule C income to have good-faith defense in case of an audit.

S Corporation or Limited Liability Company (LLC) losses

The amount of losses from an S corporation or an LLC you can deduct is limited to your basis (your capital adjusted for earnings, drawls, etc.) in each entity.

Tax Tip: The above-mentioned losses are suspended and not deductible.

Bonus and Section 179 Depreciation

At the time of this writing, the 50% bonus and section 179 depreciation has extended through 2014. Therefore, you can use only up to $25,000 for section 179.  It is speculated that the legislators may extend this bonus and the $500,000 section 179 deprecation retroactive to January, 2014.

Tax Tip: You may purchase any necessary business equipment before January 1, 2015 and use up to $25,000 as section 179 expenses.

2014 Credit Card Charges

All charges made to your credit cards before January 1, 2015 to pay business expenses may be deducted as 2014 deductible in 2014, although the payments may be made in 2015. In addition, all checks written and dated in 2014, but cashed in 2015 regarding 2014 tax related item can be deducted in 2014 tax year.

Tax Tip: These deductions may be reflected in your 2014 estimated taxes.

Estimated Taxes

In most cases, you must pay estimated taxes for 2014 if both of the following apply.

a). You expect to owe at least $1,000 in tax for 2014, after subtracting your withholding and refundable credits.

b). You expect your withholding and refundable credits to be less than the smaller of:

90% of the tax to be shown on your 2014 tax return, or 100% of the tax shown on your 2013 tax returns;

Note. The above percentages may be different if you are a farmer, fisherman or higher income taxpayer.

Tax Tip. The purpose of making estimated tax payments is to avoid underpayment and late payment penalties and interest. The 2014 estimates are of particular importance because of the following factors:

a). New 4.6% tax for the high earners;

b). New 0.9% Medicare tax; and,

c). New 3.8% NIIT explained above.

In addition, preparation of quarterly financial statements for business would be instrumental in calculating accurate estimated taxes.

Gift Tax

The life-time gift exclusion is $5,340,000. Any amount in excess of this threshold is taxed at 45 %. The annual gift exclusion remains $14,000 per person per year.

Tax Tip:  The annual gift, including funding an Irrevocable Life Insurance Trust (ILIT) must be paid before January 1, 2015. Do not forget the “Crummey Powers”.

Estate Tax and Planning

The life-time estate exclusion is $5,340,000. Any amount in excess of this threshold is taxed at 45 %. The estate portability, by which the surviving spouse may use the Deceased Spouse’s Unused Exclusion amount, is now permanent and available through an election made in a timely filed estate tax return for the decedent spouse.

Tax Tip:  Consult with your estate planning attorney whether an A-B trust is still suitable to you particular situation.

Good luck.

Zaher Fallahi, is a California Tax Attorney and a CPA, practices as Los Angeles Tax Defense Attorney and Orange Tax Defense Attorney, and assists taxpayers including Americans Living Abroad and Non-Resident Aliens subject to the US tax law, in resolving their tax problems regarding their Offshore Voluntary Disclosure Program (OVDP), Report of Foreign Bank and Financial Accounts (FBAR), Foreign Account Tax Compliance Act (FATCA) and Foreign Trust.  Telephones: (310) 719-1040 (Los Angeles), (714) 546-4272 (Orange County), e-mailtaxattorney@zfcpa.com