Involuntary Forfeiture of Corporate Privileges

Imagine a small automotive service shop owned by a man named Jason. The shop is run by Jason and his immediate family and has enjoyed moderate success over the past few years. Eventually, the shop develops a reputation for quality work and begins to see higher profile clients with more money at stake. In response, Jason decides to operate the auto shop as a registered limited liability company (LLC) and lists the shop as the primary place of business. Everything runs smoothly and he even decides to open a second location with new equipment and over time, starts to run operations from that location. A year passes and a former client files a lawsuit against the auto shop, seeking not only company assets, but also Jason’s personal assets.

The phrase “piercing the corporate veil” is mysterious, alluring, and like many things in the legal field, relatively meaningless.  It should, however, make business owners pause and take stock of their filings. Many limited liability companies (LLCs) are formed not only to streamline business operations, but also to protect personal assets. Ordinarily, if a company falls on hard times or fails for various other reasons, the owner(s) will be shielded from liability for the company’s outstanding debts or obligations. Unfortunately, there are several ways of losing these protections. If that happens, the owner’s personal assets can be vulnerable to claims again the LLC.

The State of Texas refers to the corporate veil as “corporate privileges,” and the State revokes them when owners neglect to file certain forms or pay franchise tax. Revocation of corporate privileges can be done by the state as a one-step process under Chapter 11 of the Texas Business Organizations Code or as a two-step process under the Tax Code. While both options are available, the Texas Secretary of State typically revokes  corporate privileges under the Tax Code. In that case, the Texas State Comptroller will first provide notice of forfeiture for failure to file a required report or pay franchise tax or penalty. Second, the Secretary of State will then forfeit the entity’s charter or certificate if that entity has not revived its privileges within 120 days after notice of forfeiture.

If a company’s corporate privileges are forfeited, the company will be denied the right to sue or defend in state court and each director or officer will be liable for the debt of the company. While the prospect of forfeiture may sound grim, avoiding it is a fairly easy process. Business owners should diligently file their initial report, annual reports, public information reports, and franchise taxes with the Comptroller and check the Secretary of State’s records to ensure those forms were recorded.

Returning to Jason, luckily for him, he still had time to revive his corporate privileges, ensuring he could protect his personal assets from any collection efforts should he lose the coming lawsuit.

by guest blogger Henry Knight

Reporting Gains and Losses From Recreational Gambling

Reporting Gains and Losses From Recreational Gambling

Here’s a common scenario: Gavin spends a weekend in Las Vegas. His overall position from gambling is negative, but he made a couple of lucky bets. He receives Form W-2G showing $3,000 in winnings. If he does not report the $3000 on his Form 1040, the IRS computers will be likely to catch the discrepancy between their records and Gavin’s tax return, and Gavin will receive a notice that he owes additional taxes.

If Gavin already has itemized deductions that total to more than his standard deduction, he can deduct up to $3000 of gambling losses on Schedule A (itemized deductions) to offset the winnings.

Here’s how it works:

Scenario 1 – Overall Positive Outcome From Gambling

Gavin’s W2-G says $3,000, but this does not include losses of $2,500 from slot machines. Gavin also spent $645 on transportation and lodging.

Gavin can take the following deductions on Schedule A:

Gambling losses   $2,500
Travel Expenses    $   500

Taxable Gain         $   -0-

Scenario 2 – Overall Negative Outcome From Gambling

Gavin’s W2-G says $3,000, but this does not include losses of $2,500 from slot machines and $1,000 from other bets.

Gavin can take the following deduction on Schedule A:

Gambling losses   $3,000

Taxable Gain         $   -0-

In other words, you can offset gambling winnings with gambling losses and expenses, but only up to the amount shown on Form W-2G. A recreational gambler cannot use gambling losses or expenses to reduce his pre-gambling taxable income.

But what if Gavin’s itemized deductions total less than the standard deduction? In this case, Gavin will have to report his $3000 of winnings from Schedule W-2G. Period. He will not be able to offset any of the gambling winnings with gambling losses or other expenses, even though he had an overall loss from his gambling activities.

How to Deduct Entertainment Expenses Part 2

Can I deduct my wife´s dinner?

Ian is a software engineering consultant who works for a small firm of which he is a 25% owner. He much prefers working at his computer to going out on the town, but occasionally he finds it necessary to take clients or prospective clients to dinner.

“I can talk about software technology all day,” he told me, “but I´m a bumbling buffoon when it comes to socializing. The only way I manage to get through those ordeals where I´m supposed to wine and dine a client is to take Susan [Ian’s wife]. She´s just incredible. She can talk to anybody about anything. So … since the client would have a terrible time with just me there, can´t I deduct my wife´s dinner?”

The rule is that the cost of the dinner for both the host’s and the customer’s or client’s spouse is deductible if it´s not practical to entertain the client or customer without his or her spouse. But Ian needs Susan at dinner, regardless of the presence or absence of his client´s wife. Can Ian deduct the cost of Susan´s meal, even if the client comes alone? IRS would be likely to challenge this — the greater the amount deducted for Susan´s meals, the more likely it would be of interest to IRS.

For deductions of this sort that do not fit neatly within a section of the Tax Code or Treasury Regulation, you would want to have extra documentation. For example, Ian´s firm might want to record minutes of a meeting where they discuss the need for Ian to entertain clients and prospects, together with Ian´s difficulties in social situations and Susan´s social skills. If the other partners in Ian´s firm agree that Susan´s presence at client dinners will be very likely to help the firm increase sales and retain existing clients, it would be difficult for IRS to argue convincingly that the cost of Susan’s meals is not an ordinary and necessary business expense.

When is entertaining not entertainment?

In general, the deduction for meals and entertainment expenses is 50% of what you actually spend (75% for the transportation industry). But in some cases, the cost of a meal looks a lot more like a regular business expense than an entertainment expense.

Allan has a weekend business leading walking tours in Manhattan. A regular feature of each tour is a box lunch or snack pack for each participant, included in the price of the tour. In Allan´s case, the cost of lunch and snacks is 100% deductible, as Costs of Sales or Customer Supplies.

Likewise, for film or music critics, travel agents, food critics, certain costs that would ordinarily be 50% deductible as entertainment expenses are 100% deductible as regular business expenses. As always for costs of activities that people generally do for fun and pleasure, it is important to have abundant documentation of your profit motive and the relationship between the activity and the business. Calling yourself a film critic because you view lots of movies and tell your friends about them is probably not going to fly

How to Deduct Entertainment Expenses

 

Most business owners know that certain entertainment expenses are deductible under some circumstances, but judging by the large number of questions we get on this topic, I don´t think many people actually know the rules.

Like all business deductions, entertainment costs must be “ordinary and necessary” in order to qualify as tax deductible. If your business is a used furniture shop, it´s not very likely that the cost of taking one of your customers to dinner and a movie would be an ordinary and necessary business expense. On the other hand, it could be, if for example the customer you take out for the evening is furnishing a motel and is prepared to spend $45,000 on furniture.

The dictionary definition of entertainment is “something that amuses, pleases, or diverts,” activities that are pleasant, fun; in other words, entertainment is the opposite of job, labor, work. Congress and the IRS, along with most people in general, associate doing business with work — the opposite of entertainment. Therefore, in order for a business owner to convince IRS that she was having fun and working at the same time, the business owner has to satisfy a high standard of documentation (never mind that there are times when taking certain customers out to dinner is one of the very last things a business owner would choose to do for pleasure).

Sara is a financial planner who specializes in retirement planning for employees of small businesses. Emily owns a janitorial service that has 12 employees. For months Sara has been trying to get an appointment with Emily to show her how setting up a flex plan for her employees would make good financial sense for both the business and the employees, but Emily never has time. Finally, Sara says, “You have to eat lunch anyway. Why don´t you let me take you to your favorite restaurant, and we can talk about employee benefits over lunch.”

Here is the information Sara needs to record in order for the cost of taking Emily to lunch to qualify as a deductible business expense:

1. The location — Mavis´s Downtown Country Cooking
2. Names of people entertained — Emily (in “real life” you would want to include the person´s last name), owner of Clean as a Whistle Janitorial Service
3. Date — November 8, 2011
4. Business purpose — Discuss flex plan with business owner
5. Amount spent — $35

Treasury Regulations state that this information must be recorded in a timely manner — in other words, you should record the information soon after the entertainment event rather than waiting until the day before an IRS audit.

The location, date, and amount spent are already on the receipt Sara gets from the restaurant, so all Sara needs to do is write Emily´s name and the business purpose somewhere on the receipt and make sure the receipt is put into the proper place in her files.

Mavis´s Downtown Country Cooking is 7.5 miles from Sara´s office, so Sara also had a mileage deduction to record in connection with taking Emily to lunch. Some business owners find it convenient to keep a record of both entertainment costs and mileage in their appointment calendars. IRS auditors like to be able to cross check mileage and entertainment records against an appointment calendar or organizer. They are trained to look for inconsistencies, such as a receipt from McCormick & Schmick´s, November 8, 2012 claimed as a business entertainment expense “J. Smith — discussed potential referrals” and an entry on the calendar for November 8, 2006 that reads, “Sally´s birthday party — McCormick & Schmick´s 7:30”

 

 

 

How To Document Vehicle Expenses for the IRS

HOW TO DOCUMENT VEHICLE EXPENSES FOR YOUR TAX RETURN

You may not have kept perfect records in the past, but you can begin now to document your business vehicle use. If the IRS should audit tax return for prior years, when you were not keeping good records, you can sometimes use current records as supplemental documentation for the prior years. The ideal documentation for your business automobile mileage would be the following:

  • Mileage log clearly showing the date, address you drove to, and business purpose. Examples: (1) 2/21/2011, 548 North Main, purchase office supplies, odometer out: 24937, odomenter in: 24945; (2) 2/21/2011, 23 NE Loop 410, call on prospective client Smith Construction, odometer out: 24945, odomenter in: 24960
  • Oil change or repair receipts toward the beginning and end of the year, providing 3rd party substantiation of your total mileage for the year;
  • Calendar showing appointments that match your mileage log. Example: 2:00 Monday Feb 21, 2011 – John Smith, Smith Construction 23 NE Loop 410
  • Some (most) people are in a hurry when they get into the car to go to a business appointment. If they keep a mileage log at all, it will often be on a sporadic basis. It’s best to have a log, but if you do not have a complete log, you can still substantiate your mileage using a calendar and third party documentation of your total mileage. In addition to repair or oil change receipts, you can use receipts for gasoline purchased and calculate your total mileage using this formula: miles driven = gasoline purchases/average price per gallon x miles per gallon. For example, if you spent $2000 for gasoline for 2010 and the average price of gasoline during 2010 was $2.75, you purchased about 727 gallons of gasoline in 2010. If you car travels an average of 20 miles per gallon of gasoline, your approximate mileage for 2010 would be 727 x 20 = 14,540 miles.
  • Once you have proved your total mileage for the year, you will need to show how much of that mileage was for business purposes. The following documents are useful for this: (1) a calendar that shows your business appointments; (2) invoices sent to clients or customers for work performed at the client’s or customer’s location; (3) print-out of Mapquest or Google Maps route between your office and the location.
  • A narrative description of your driving habits can also be helpful. Example: My base of operations is my office, located in my home. Each morning, I answer my email and return phone calls. Then I drive to my first appointment. I usually call on 4 or 5 prospective new customers each day, Monday through Friday. I also call on 1 or 2 existing customers each day, to make sure they are happy with the services they are receiving. My sales territory covers all of San Antonio and the surrounding small cities. I drive an average of 55 miles each day calling on prospective and existing customers. I also drive to the bank to make deposits once a week, and drive to purchase office supplies once every 2 or 3 weeks. 

Improving Your Business By Lowering the Stress Level

The video below includes information that could be very useful to apply to one’s personal life, but I found the implications for business management more fascinating.

The video mentions specific health problems associated with stress, such as plaque in arteries, shortened telomeres, ineffective immune systems, a tendency to store fat in the abdominal area.  I was aware of these before watching the video, but I was surprised to see that stress is also associated with damage to the hippocampus region of the brain. The research was not described in detail, so I do not know how much evidence there is that stress actually causes the health problems.  It’s conceivable, for example, that people with damaged brains might be less able to cope with life and thus be under more stress than people with healthy brains. The theory that abdominal fat results from high levels of glucocorticoids in the blood was mentioned. Since stress causes the body to shut down all systems not essential for fight-or-flight, it would make sense that the blood flow to the hippocampus region would be reduced when a person is under stress (the hippocampus is responsible for consolidation of short term memory to long-term memory).

The diseases associated with chronic stress clearly result in employee absences from work due to illness.  Less obvious is the cost of stress in terms of lower productivity.

The Whitehall cohorts studies of British civil servants showed a direct correlation between lower hierachical status, stress, poor health and higher mortality.

One of the main causes of  job-related stress is lack of control.  I have found that even highly structured jobs can allow employees some control.  Here are some examples:

  • Allowing employees the maximum flexibility possible in setting their own schedules;
  • Listening carefully to employees’ suggestions for improving the business (employees often have some excellent ideas, so in addition to giving them control over their working lives, you can also improve the way you operate your business)
  • Noticing employee performance and letting them know you appreciate it
  • Basing compensation on performance

Here’s the video:

While browsing through my favorite blogs, I came across an article on a related topic, the effect of happiness on learning and productivity.  This is actually a paleo diet blog, but I never fail to learn something useful about life in general when I visit. There’s an embedded video of a Ted Talk given by Shawn Achor:

http://weightmaven.org/2012/02/18/quote-of-the-day-37

Excludable Gifts

This question, in one form or another, comes up often enough that it’s worthwhile to address it here. One of my clients asked:

Is a gift under 13k tax deductible? I was reading the IRS website and I came across that.

Gifts are never tax deductible, unless they are made to a 501(c)(3) charity or similar organization. You can check here to search the IRS’s database for 501(c)(3) organizations:

http://www.irs.gov/charities/article/0,,id=249767,00.html

The Tax Code specifically excludes gifts from the gross income of the recipient. So if you were to give your child $5000 as a graduation gift, your child does not even have to mention that $5000 when he prepares his tax return.

So what’s with the special treatment of gifts under $13,000 my client saw on the IRS website?

Gifts are not taxable to the recipient, but they are sometimes taxable to the donor. The reason for this is that people used to avoid federal estate taxes by giving everything away on their deathbed. Since the estate tax is calculated as a % of asset owned at death, this strategy worked nicely to lower the estate tax to zero.

To prevent people from escaping estate taxes quite so easily, Congress passed a law that said any gifts given within 3 years of death had to be included in the donor’s estate. So people started making gifts earlier in life. For example, a person could set up a trust and make her grandchildren the beneficiaries. She could then contribute an office building to the trust and thus get the office building out of her estate. As long as the person lived at least 3 more years, the value of the person’s assets was reduced, and therefore the estate tax was reduced.

Congress reacted to this by passing a Unified Estate and Gift Tax. Over the course of his entire lifetime, a person can give up to a million dollars in gifts to recipients other than 501(c)(3) organizations. Gifts in excess of $1 million are taxable. To track the lifetime amount of gifts, a person if required to file a gift tax return every year a gift has been given.

But Congress really didn’t mean to require every birthday and wedding and graduation holiday gift to be reported. So the law exempts gifts of $13,000/year or less per donee. As long as you don’t give more than $13,000 to any one person during any one year, you don’t have to file a gift tax return. The $13,000 per donee exemption is per person, so a husband and wife can together give $26,000 per donee.

One of the ways to transfer a family business to the owner’s children is to give each child stock or LLC ownership units worth $13,000 each year.

To get back to my client’s question: no, you cannot take a deduction for gifts under $13,000; but you can exclude them when you calculate taxable gifts made during the year.