WASHINGTON TAX UPDATE

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1 WASHINGTON TAX UPDATE OCTOBER 24, 2012 Welcome to Washington Tax Update, where you will find useful information about taxes, including current events in our nation s capital, as well as informed opinions and predictions about what is expected to happen. Tax Look Inside Tax Planning Tip of the Week IRS Courts What s New from the IRS What s New from the Courts It Bears Repeating Tax Laughs Congress

2 tax planning tip of the week Is there a smart way to tap into retirement savings? Many people have most of their savings locked away in tax-qualified retirement plans. When they need cash, it s difficult to access the retirement funds without paying taxes and penalties. If you find yourself with major expenses like tuition, a wedding or home improvements, one option if permitted by your employer s plan document is to borrow the money from your retirement plan. If the loan is set up properly and repaid on time, you shouldn t suffer any adverse tax consequences. Borrowing from a company retirement plan that permits loans, like a profit sharing or 401(k) plan, is usually simple. You can request the loan for any reason, it has no effect on your credit rating, and often it costs less than a bank loan. When you pay the interest on the loan, the amount goes right back into your account in the retirement plan. To make sure the loan is not treated as a deemed distribution from your account, you must adhere to some formalities:

3 The loan amount cannot exceed the lesser of (1) $50,000 or (2) 50 percent of your nonforfeitable accrued benefit under the plan. However, you can borrow up to $10,000, even if that amount is less than one-half of your accrued plan benefit. You can have more than one loan so long as the total stays below the limit. The loan generally must be repaid within five years in substantially level payments over the term of the loan. Payments must be made at least quarterly. There is an exception to the five-year limit for loans used to purchase a principal residence. Special rules also apply if you take a leave of absence or are called into military service. The loan must be evidenced by a legally enforceable written agreement specifying the amount and date of the loan and the repayment schedule. tax planning tip of the week

4 tax planning tip of the week Depending on how you use the loan proceeds, e.g., to purchase a residence, make an investment or invest in a business, the interest you pay on the loan may be tax-deductible. However, no deduction is allowed if you are a key employee or the loan is secured by amounts attributable to elective deferrals under a qualified cash or deferred arrangement (CODA) or under a tax-sheltered annuity. For this purpose, a key employee includes an officer making more than $165,000 for 2012, or a 5 percent company owner. Also, interest paid on a plan loan cannot be treated as deductible interest paid on a qualified education loan. If you default on a plan loan, it is generally treated as a deemed distribution. A deemed distribution is treated as an actual distribution for purposes of determining the tax on the distribution, including the 10 percent premature distribution penalty tax. Before borrowing from your employer s retirement plan, be sure you understand what will happen if your employment terminates

5 while the loan remains unpaid. One possibility is that the plan will require you to repay the loan immediately. A plan loan can be an easy way to tap into your retirement savings for short-term cash needs. However, plan loans in default can create unintended tax results for you and additional reporting burdens on the plan administrator. tax planning tip of the week

6 what s new from the IRS Investment opportunity encouraged to benefit low-income communities Business owners in low-income communities should be aware of funding that may still be available under the new markets tax credit program. The IRS has issued final regulations modifying the program to facilitate and encourage investments in non-real-estate businesses in low-income communities. The final regulations affect both those claiming the new markets tax credit (NMTC) and businesses in low-income communities that rely on the program. Although the NMTC expired after 2011, there will be money in the program for several years, even if the credit is not extended by Congress. The program was established by Congress in 2000 to spur new or increased investments into operating businesses and real estate projects located in low-income communities. It attracts investment capital to low-income communities by permitting individual and corporate investors to receive a federal income tax

7 credit in exchange for making equity investments in specialized financial institutions called Community Development Entities (CDEs). The credit totals 39 percent of the original investment amount and is claimed over a period of seven years 5 percent for each of the first three years and 6 percent for each of the remaining four years. The investment in the CDE cannot be redeemed before the end of the seven-year period. A CDE is any domestic corporation or partnership: Whose primary mission is serving or providing investment capital for low-income communities or low-income persons; That maintains accountability to residents of low-income communities through representation on governing or advisory boards of the CDE; and That is certified by the Treasury Department as an eligible CDE. An investment in a CDE is a qualified equity investment if: The investment is acquired at its original issue, directly or through an underwriter, solely in exchange for cash; and Substantially all of the cash at least 85 percent, reduced to 75 percent for the final year of the 7-year credit period is used by the qualified CDE to make qualified low-income community investments. Qualified low-income community investments include capital or equity investments in, or loans to, any qualified active low-income community business or certain financial counseling and other services to businesses and residents in low-income communities. what s new from the IRS

8 what s new from the IRS The new markets tax credit is recaptured if: The substantially all requirement (above) is not met and is not corrected within a one-time 6-month cure period; The Community Development Entity ceases to be a CDE; or The CDE redeems or otherwise cashes out the investment. Most of the current new markets tax credit investments relate to real estate projects. Under prior rules, a CDE that receives returns on investments (including principal repayments from amortizing loans) must reinvest those proceeds in other qualified low-income community investments during the 7-year credit period.

9 This requirement makes it difficult for CDEs to provide working capital and equipment loans to non-real-estate businesses because these loans are ordinarily amortizing loans with a term of five years or less. To encourage investments in non-real-estate businesses for working capital and equipment, the regulations modify the reinvestment requirements by: Allowing a Community Development Entity that makes a qualified low-income community investment in a non-real-estate business to invest certain returns of capital from those investments in unrelated certified community development financial institutions (certified CDFIs) that are CDEs at various points during the 7-year credit period. In general, a certified CDFI is a financial institution that provides credit and financial services to underserved markets and populations. Allowing an increasing aggregate amount to be invested in certified CDFIs and treated as continuously invested in a qualified low-income community investment in the later years of the 7-year credit period (15 percent in the second year, 30 percent in the third, 50 percent in the fourth, and 85 percent in the fifth and sixth years). The regulations also require that any portion the CDE chooses to reinvest in a certified CDFI must be reinvested by the CDE within 30 days from the date of receipt to be treated as continuously invested in a low-income community investment. Effective Sept. 28, 2012, the regulations apply to equity investments made on or after that date. what s new from the IRS

10 what s new from the courts Court rules that settlement payment is actually wages A district court has concluded that an age discrimination settlement payment was wages subject to Federal Insurance Contributions Act (FICA) tax withholding. Money paid to settle employment discrimination claims can be wages, at least when the money represents back pay or front pay. Back pay is compensation paid to an individual to compensate for pay they would have received up to the time of the settlement or court award, but for the employer s wrongful conduct. Front pay is an amount paid to an individual for pay they would have received after a settlement date or court award, but for the employer s wrongful conduct.

11 In this case, Credit Suisse Securities (USA) LLC (Credit Suisse) settled an age discrimination claim with Chester Gerstenbluth on terms that included a monetary award. The settlement agreement did not explicitly describe the settlement award as back pay or front pay, but Credit Suisse did warn Gerstenbluth that his lump-sum payment would be reduced by applicable taxes and deductions. Credit Suisse treated the payment as earned income and withheld FICA (Social Security and Medicare) taxes from the settlement payment. On the Form W-2 that it issued to Gerstenbluth, Credit Suisse listed the settlement payment as Wages, tips, other comp. Gerstenbluth sued Credit Suisse and the IRS to recover tax payments that he claimed were wrongfully withheld. The court ruled that the settlement payment constituted wages and was thus subject to FICA tax withholding (Gerstenbluth v. Credit Suisse Securities (USA) LLC and IRS, DC New York, Sept. 28, 2012.).

12 it bears repeating IRS says same-sex couples don t qualify for marriage tax breaks The IRS has issued guidance to clarify certain filing questions and ambiguities faced by same-sex couples in state-recognized marriages, civil unions and domestic partnerships. Among other things, the IRS stated that: The Defense of Marriage Act (DOMA) denies recognition of same-sex marriages for purposes of administering federal law. Despite the Obama Administration s decision not to defend DOMA and the key provision having been struck down by a number of courts, the IRS continues to maintain that legally married same-sex couples do not qualify for tax benefits otherwise available to married taxpayers. Same-sex couples who are legally married for state law purposes may not file using either married filing separately or married filing jointly status. A person cannot file as head of household based solely on his or her same-sex partner, regardless of whether the same-sex partner qualifies as a dependent. If a child is a qualifying child of both parents who are same-sex partners, either parent, but not both, may claim a dependency deduction for the child.

13 If a same-sex couple adopts a child together, each same-sex partner may claim the adoption credit in an amount equal to the qualified adoption expenses paid or incurred for the adoption. Both same-sex partners may not claim a credit for the same expenses, and neither partner may claim more than the amount of expenses that partner actually paid or incurred. If a person adopts the child of a same-sex partner, that person may claim an adoption credit for the qualifying adoption expenses. The IRS has provided additional information in Answers to Frequently Asked Questions for Same-Sex Couples. Legally married same-sex couples who disagree with the IRS should file in accordance with the IRS s view to avoid incurring penalties. However, those who want to pursue the matter should consider filing an amended return, disclosing that they are a legally married same-sex couple and are making the claim on the basis that Section 3 of DOMA is unconstitutional. The IRS will likely deny the claim. The couple can then sue for a refund in federal district court.

14 tax laughs Wow! Wonder what he blogs about? The Milford, Mass., Daily News reports that an Internet blogger pleaded guilty to charges of filing a false income tax return. According to the news report, authorities said in a press release that the blogger operated his blog as a side business to supplement his regular employment. During , he under-reported gross income he took in from advertisers. The blogger faces up to three years in prison for filing false income tax returns and has agreed to pay restitution of $141,710. The next time someone tells you they are going to quit their job to write a blog, maybe they have not gone off the deep end. Check your tax returns for to see if you paid more than $140,000 in tax on the income you made. The Internet has no eraser. Liz Strauss

15 Courts Tax IRS Congress The technical information in this newsletter is necessarily brief. No final conclusion on these topics should be drawn without further review and consultation. Please be advised that, based on current IRS rules and standards, the information contained herein is not intended to be used, nor can it be used, for the avoidance of any tax penalty assessed by the IRS CPAmerica International

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