1. © 2012 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. Individual Income Taxes 1 Chapter 20 Corporations and Partnerships

2. 2 The Big Picture (slide 1 of 2) The Todd sisters have decided to begin a catering business to handle private parties, weddings, anniversaries, and other large social events. –Their parents previously owned several restaurants so they are familiar with food service operations. All sisters will participate in the operation of the business and will provide the funds for capital acquisitions (e.g., delivery trucks, kitchen equipment, and food preparation facilities) and working capital needs. Due to the cost of the premiums, the sisters plan on minimal liability insurance coverage.

3. 3 The Big Picture (slide 2 of 2) In the first few years of operation, the sisters anticipate losses. When and if the business becomes profitable, however, they would consider expansion. –Any such expansion would require obtaining additional capital from outside sources. In what type of entity should the Todd sisters conduct the business? –Read the chapter and formulate your response.

4. 4 Corporations (slide 1 of 3) Compliance with state law is important for corporate tax treatment, but entity must also comply with Federal tax law

5. 5 Corporations (slide 2 of 3) Prior to 1997-An entity may be treated as a corporation depending on the number of corporate characteristics it possesses: –Continuity of life –Centralized management –Limited liability –Free transferability of interests

6. 6 Corporations (slide 3 of 3) After 1996—Check-the-box Regulations –Entity can elect to be taxed as corporation or partnership regardless of attributes Allows entities with more than 1 owner to elect to be taxed as either a partnership or a corporation Entities with only 1 owner can elect to be taxed as a corporation or a sole proprietorship

7. 7 Business Entities (slide 1 of 2) The following are the possible types of business entities –Sole proprietorship: Not a separate taxable entity –Partnership: Conduit entity (flow-through entity)

8. 8 Business Entities (slide 2 of 2) Possible types of business entities –Regular corporation: Separate taxable entity –S corporation: Conduit entity –Limited liability company: Generally conduit entity (i.e., partnership)

9. 9 The Big Picture - Example 3 Different Forms of Business Entities Return to the facts of The Big Picture on p. 20-2. The Todd sisters should consider a C or an S corp. to obtain limited liability for their business. –An LLC will also provide this result. On the other hand, the conduit effect of an S corp. or a partnership will allow them to use the initial losses anticipated for the business. –Under the conduit concept, such losses could be deducted on their individual income tax returns

10. 10 Similarities between Corporate and Individual Tax Rules (slide 1 of 3) The gross income and gains and losses from property transactions of a corp. are determined in much the same manner as for individuals –Both individuals and corporations are entitled to exclusions from gross income e.g., Interest on municipal bonds Business deductions of corporations parallel those available to individuals Corporate deductions are allowed for all ordinary and necessary expenses paid or incurred in carrying on a trade or business

11. 11 Similarities between Corporate and Individual Tax Rules (slide 2 of 3) Corporations usually have the same choices of accounting periods as do individuals –May choose a calendar year or a fiscal year –Corporations enjoy greater flexibility in the election of a tax year For example, corporations usually can have different tax years from those of their shareholders Also, a newly formed corporation generally has a free choice of any approved accounting period without having to obtain the consent of the IRS

12. 12 Similarities between Corporate and Individual Tax Rules (slide 3 of 3) Both individuals and corporations must use the accrual method in determining cost of goods sold if they maintain inventory for sale to customers –The accrual method must also be used by large corporations (annual gross receipts in excess of $5 million) The cash method of accounting, however, is available to small corporations and in the following additional situations: –An S election is in effect –The trade or business is farming or timber –A qualified personal service corporation is involved –A qualified service provider (e.g., plumbing business) is involved, and annual gross receipts (for the past three years) do not exceed $10 million Even if the service provider is buying and selling inventory

13. 13 Corporate Tax Differences (slide 1 of 3) The treatment of many items of income and expense are similar for corporations and individuals; however, differences include the following: Capital gains and losses for corporations –Long-term capital gains are taxed at the same rates as ordinary income –Net capital losses are not currently deductible but are carried back 3 and forward 5 years as short- term losses

14. 14 Corporate Tax Differences (slide 2 of 3) Depreciation recapture –Additional depreciation recapture under § 291 can occur on disposition of real estate by corporations –The additional ordinary income element is 20% of the excess of the § 1245 recapture potential over the § 1250 recapture

15. 15 Corporate Tax Differences (slide 3 of 3) Charitable contributions for corporations –Limit on deduction is 10% of taxable income –Accrual basis corporation allowed deduction for the accrual of a donation made in following tax year (under certain circumstances) –Contribution of certain inventory produces a deduction equal to basis plus 50% X (FMV – basis) To qualify for this treatment, the inventory must be used by the charity in its exempt purpose for the care of children, the ill, or the needy

16. 16 Domestic Production Activities Deduction Applies equally to C corporations and individuals –The deduction is limited to 9% of the lesser of : Qualified production activities income or Taxable income –The deduction cannot exceed 50% of W–2 wages included in production costs

17. 17 Corporate Deductions Certain deductions are available only to corporations, such as: –Dividends received deduction (DRD) –Organizational expenditures

18. 18 Dividends Received Deduction (DRD) (slide 1 of 2) Purpose of deduction is to mitigate multiple taxation –Amount of DRD depends on both the percentage of stock ownership and the taxable income of the recipient corporation Percentage of Ownership by Corporate Shareholder Deduction Percentage Less than 20% 70% 20% or more (but less than 80%) 80% 80% or more 100%

19. 19 Dividends Received Deduction (DRD) (slide 2 of 2) 1. Multiply dividends received by deduction percentage 2. Multiply taxable income by deduction percentage 3. The deduction is limited to the lesser of Step 1 or Step 2, unless subtracting the amount derived from Step 1 from taxable income generates a negative number -If so, the amount derived in step 1 should be used

20. 20 DRD Examples Z Corp owns 60% of X Corp’s stock in years 1, 2 & 3. Dividend of $200 is received each year. Limit (Step 1) is 80% × $200 = $160. 1 2 3_ Income 400 301 299 Dividend rec’d 200 200 200 Expenses (340) (340) (340) Income before DRD 260 161 159 80% of income 208 129 127 Year #1 $208 > $160, so $160 DRD Year #2 $129 < $160, so $129 DRD Year #3 DRD causes NOL ($159-$160), so $160 DRD is used. $2 less income results in $31 more DRD.

21. 21 Organizational Expenditures (slide 1 of 2) A corporation may elect to amortize organizational expenses over a period of 15 years or more –A special exception allows the corporation to immediately expense the first $5,000 of these costs Phased out on a dollar-for-dollar basis when these expenses exceed $50,000

22. 22 Organizational Expenditures (slide 2 of 2) Organizational expenditures include the following: –Legal services incident to organization –Necessary accounting services –Expenses of temporary directors and of organizational meetings of directors and shareholders –Fees paid to the state of incorporation Expenditures connected with issuing or selling shares of stock or other securities or with the transfer of assets to a corporation do not qualify – These expenditures are generally added to the capital account and are not subject to amortization

23. 23 Corporate Tax Rates Taxable Income Tax Rate Not over $50,000 15% Over $50,000 but not over $75,000 25% Over $75,000 but not over $100,000 34% Over $100,000 but not over $335,000 39%* Over $335,000 but not over $10,000,000 34% Over $10,000,000 but not over $15,000,000 35% Over $15,000,000 but not over $18,333,333 38%** Over $18,333,333 35% *5% of this rate represents a phaseout of the benefits of the lower tax rates on the first $75,000 of taxable income. **3% of this rate represents a phaseout of the benefits of the lower tax rate (34% rather than 35%) on the first $10 million of taxable income.

24. 24 Corporate Tax Returns (slide 1 of 2) Form 1120 must be filed whether the corporation has taxable income or not Due date for the return is the 15th day of the third month following year-end –Automatic extension of 6 months can be obtained by filing Form 7004

25. 25 Corporate Tax Returns (slide 2 of 2) Taxable Income and accounting net income is reconciled using Schedule M-1 Schedule M-2 is used to reconcile beginning and ending retained earnings Effective for taxable years ending on or after 12/31/04, a new Schedule M–3 must be filed by certain corporations –Designated “Net Income (Loss) Reconciliation for Corporations With Total Assets of $10 Million or More” Prepared in lieu of Schedule M–1 Because it will reveal significant differences between book and taxable income, Schedule M–3 will enable the IRS to more quickly identify possible abusive transactions

26. 26 Corporate Formation (slide 1 of 3) Transfers of property by shareholders to a newly-formed corp in exchange for its stock receive nonrecognition treatment under §351 if transferors control (80%) the corp immediately after the exchange –Receipt of boot by shareholders triggers gain recognition –Receipt of stock for services is always taxable as ordinary income

27. 27 Corporate Formation (slide 2 of 3) Shareholder’s basis in shares received is calculated as follows: –Basis of property transferred + any gain recognized – FMV of boot received Basis of boot will be its FMV Corp’s basis in property transferred is calculated as follows: –Shareholder’s adjusted basis of property transferred + gain recognized on the transfer

28. 28 Corporate Formation (slide 3 of 3) Thin capitalization can be a problem if there is too much debt and not enough equity issued at formation –If debt has too many features of stock, it may be treated as a form of stock Results in principal and interest payments being treated as dividend distributions

29. 29 The Big Picture - Example 21 Minimum Capitalization Return to the facts of The Big Picture on p. 20-2. Suppose that the Todd sisters decide to conduct their catering business in the corporate form—either a C or an S corp. In forming the corp., they should probably limit their capital investment to whatever state law requires. –Consider acquiring the capital assets needed to operate the business on their own and leasing them to the corporation. e.g., delivery trucks, kitchen equipment, location for food preparation. –This allows the sisters to claim depreciation while providing the corp. with a deduction for the rent paid. This strategy forces the sisters to recognize rent income rather than preferentially taxed dividends. –However, no dividends are likely in the early years of the business.

30. 30 Corporate Distributions (slide 1 of 4) Distributions to shareholders are treated as dividend income to the extent of current or accumulated earnings and profits (E&P) Distributions in excess of E&P are: –First, a return of capital (to the extent of basis) –Any excess is capital gain Qualified dividend income is taxed like net long-term capital gain –Consequently, the tax rate on such income cannot exceed 15% (0% for individual shareholders in the 15% or lower tax bracket)

31. 31 Corporate Distributions (slide 2 of 4) E & P is similar to the accounting concept of retained earnings, and is determined by making adjustments to taxable income including –As additions- Dividends received deduction Domestic production activities deduction Proceeds of life insurance policies on key employees –As subtractions- Federal income taxes paid Charitable contributions in excess of the 10% limitation Excess capital losses (no carryback available) Nondeductible items (e.g., fines, penalties, losses between related parties) Accumulated E & P is the sum of the corporation’s past current E & P that has not been distributed as dividends

32. 32 Corporate Distributions (slide 3 of 4) Property distributions are measured by the FMV of the asset and taxed to recipient like cash dividends –Shareholder’s basis in property is FMV Corporation recognizes gain when appreciated property is distributed to shareholders

33. 33 Corporate Distributions (slide 4 of 4) Constructive dividends are taxed as dividends to the extent of the corporation’s E&P Examples of constructive dividends include: –Unreasonable salaries and rents paid to shareholder/employees –Interest free loans to shareholders –Shareholder use of corporate property at less than arm’s length rate

34. 34 The Big Picture - Example 28 Constructive Dividends Return to the facts of The Big Picture on p. 20-2 and the suggestions made in Example 21. If they choose the corporate form, the Todd sisters need to take the following into account: –Any salaries the sisters pay themselves should satisfy the reasonableness test. –Rent charged the corp. for the use of capital assets owned by the sisters should meet the arm’s length standard. –Loans made to the corp. for working capital purposes should provide for a market rate of interest to be charged. The constructive dividend issue should not arise until the corp. becomes profitable (and has E & P). –These procedures should be structured at the outset so that the parties will be prepared for a possible future challenge by the IRS.

35. 35 Corporate Stock Redemption Redemptions may be treated as: –A sale or exchange Generally results in capital gain or loss treatment –Dividend distribution Taxable to the extent of E&P

36. 36 Corporate Liquidations Generally, shareholders recognize gains or losses upon the liquidation of the entity –Exception: If a parent corp. liquidates a subsidiary corp. in which it owns at least 80% of the stock, no gain or loss is recognized by the parent company The subsidiary must distribute all property in complete liquidation within the taxable year or within 3 years from the close of the tax year in which the first distribution occurred

37. 37 Subchapter S Corporations (slide 1 of 7) Requirements to qualify as a Subchapter S corporation: –Be a domestic corporation –Have no more than 100 shareholders –Shareholders must be individuals, estates, and certain trusts –No nonresident alien shareholders –Have only one class of stock outstanding

38. 38 Subchapter S Corporations (slide 2 of 7) S corporation election –All shareholders must initially consent to the election –To be effective for the current year, election must be made either in the prior year or by the 15th day of the third month of the current year

39. 39 Subchapter S Corporations (slide 3 of 7) S corporation election –S election can be terminated voluntarily (e.g., by majority of shareholders) or involuntarily (e.g., ceases to qualify as an S corporation or has excessive investment income) –If the election is terminated, the corporation generally cannot reelect for 5 years

40. 40 Subchapter S Corporations (slide 4 of 7) Operations –S corporation generally applies the flow-through concept (like partnerships), i.e., income is taxed only to the owners –Income or loss and separately stated items are allocated to the owners on a per share per day basis

41. 41 Subchapter S Corporations (slide 5 of 7) Operations –Shareholders can deduct losses to the extent of their basis in the S corp. stock and their loans to the corporation –Any remaining loss can be carried forward and deducted when and if it is covered by basis

42. 42 Subchapter S Corporations (slide 6 of 7) Basis in stock –Original cost Plus: capital contributions and shareholder’s proportionate share of S income and gains Less: distributions and shareholder’s proportionate share of S losses and deductions If distributions exceed a shareholder’s basis, the excess normally receives capital gain treatment

43. 43 Subchapter S Corporations (slide 7 of 7) Corporation’s basis in contributed property –Generally a carryover basis from the contributing shareholder

44. 44 The Big Picture - Example 44 Treatment Of Losses Return to the facts of The Big Picture on p. 20-2. Recall that the Todd sisters anticipate losses in the early years of their catering business. –If they form a C corp., such losses will be of no benefit to the new corporation. No carryback will be available, and There will be only a potential for a delayed carryover. –With an S election, however, losses pass through currently. Thus, the sisters will secure limited liability for their business and the immediate tax benefit of any losses.

45. 45 Partnerships (slide 1 of 6) Taxation –Partnerships are flow-through entities Thus, tax reporting rather than tax paying entities –Tax return (Form 1065) is due on the 15th day of the fourth month following year-end

46. 46 Partnerships (slide 2 of 6) Formation –Like corporations, partnerships can be formed with no recognition of gains or losses by the partners or the partnership –Exceptions to nonrecognition include: Receipt of boot on partnership formation Receipt of partnership interest for services rendered Transfer of property subject to a liability in excess of basis

47. 47 Partnerships (slide 3 of 6) Operations –Income or loss and separately stated items are allocated to the partners based on their proportionate share of ownership –Special allocations of income or expense items are allowed as long as they have substantial economic effect –Partners can deduct losses to the extent of their basis in the partnership

48. 48 Partnerships (slide 4 of 6) Partner’s basis –A partner’s basis in the partnership interest is determined in a similar manner as a shareholder’s basis in an S corporation –In addition, a partner’s share of the entity’s liabilities increases the partner’s basis

49. 49 Partnerships (slide 5 of 6) Partnership’s basis in contributed property –Generally a carryover basis from the contributing partner

50. 50 Partnerships (slide 6 of 6) Related party transactions –Partners entering into transactions with their partnership will, in most cases, be treated as an outsider (i.e., not a related party) Guaranteed payments are payments to partners for services or use of capital that are treated as payments to outsiders –Certain exceptions exist

51. 51 Refocus On The Big Picture (slide 1 of 3) A principal concern of the Todd sisters is limited liability. –A food preparation business involves potential liability. e.g., litigation resulting from food poisoning. –This hazard is further magnified by carrying minimal liability insurance coverage. –To obtain limited liability, therefore, the choice of entity cannot be a regular partnership It must be a C or S corp. or a limited liability company (LLC). The next concern is the pass-through of losses in the early years of the business. –This cannot be achieved with a C corp. and is only available with an S corp. or an LLC.

52. 52 Refocus On The Big Picture (slide 2 of 3) In making the choice between a corporation and an LLC, the future must be considered. –If the business is successful, the sisters could expand. –This is more easily accomplished with a corporation than an LLC. –A corporation can raise additional capital for expansion by issuing more stock—even going public if necessary. –Issuing additional stock may cause the S corporation election to be lost, but by then S status will have served its purpose (i.e., pass-through of losses).

53. 53 Refocus On The Big Picture (slide 3 of 3) When forming the corporation, the sisters should take the following into account: –Key assets (e.g., food preparation facilities) might better be purchased by the sisters and leased to the corporation. This approach leads to a rent deduction for the corporation. –A viable salary structure should be established for the services the sisters perform. This generates a salary deduction for the corporation. –Interest should be charged for the funds the sisters loan to the corporation. This yields an interest deduction for the corporation. –If the S corporation becomes a C corporation, these rent, salary, and interest deductions will reduce the taxable income of the corporation and thereby lower any corporate income tax imposed.

54. © 2012 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 54 If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact: Dr. Donald R. Trippeer, CPA trippedr@oneonta.edu SUNY Oneonta