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Category: Tax Issues

Comparison of Subchapter K v. Subchapter S

Posted on July 25, 2022December 18, 2023 by g83js92js91
Categories: business, internal revenue code, IRS, Life and the Law, limited liability company, llc, small business, starting a business, subchapter K, subchapter S, tax, tax attorney, Tax Issues, Tax Law
Depositphotos 7352892 s

Both Subchapter K and S of the Internal Revenue Code (IRC) are pass-through tax structures in which the members of the entity are taxed for the entity’s income, gains, losses, and expenses on their individual tax returns. That is where the similarities end.

There are several differences discussed below that make Subchapter K seem more taxpayer friendly than Subchapter S. Much of the popularity of the LLC is attributable to the fact that LLCs offer limited liability to all investors combined with the more flexible partnership tax regime. In some situations, however, the goals of the business owners may be better achieved with an S corporation.

Subchapter S places very strict restrictions on the ownership and capital structure for S corporations.  S corporations are limited to 100 shareholders (although members of a “family,” broadly defined, are counted as one shareholder), and they may not have more than one class of stock.  Additionally, all shareholders much be individual U.S. citizens or residents and other corporations or partnerships cannot be shareholders of the company.  Anyone can be a member or partner of an entity taxed under Subchapter K.

Partnerships and LLCs taxed under Subchapter K may make special allocations of income and deduction items, while shareholders of an S corporation must include corporate income and loss on a pro rata share basis.  Thus, partners/members may agree to share certain income or deductions disproportionately, and the agreement will be respected for tax purposes if it reflects their economic business deal.  Additionally, in most cases, partnerships and LLCs taxed under Subchapter K, can distribute appreciated property in kind without immediate recognition of taxable gain.

In a business with only a few owners, an S corporation may be the entity of choice because the flexibility of Subchapter K is not needed.  S corporations are often used by owners that prefer to conduct their business as a state law corporation instead of a partnership or limited liability company because they are more comfortable with the corporate governance structure.  S corporations are also often used by service providers to minimize their exposure to employment taxes.  S corporations are not viable options in many situations – a business with foreign investors would not be able to make the S corporation election because foreign investors are not permissible S corporation shareholders.  Additionally, many institutional investors (e.g., tax-exempt pension funds and charitable organizations) are discouraged by the tax system from investing in any type of active business that is operated as a pass-through entity.  Venture capital funds, which provide a large source of capital for start-up companies, appear to be more comfortable using the familiar C corporation capitalized with several classes of stock, a structure not available in an S corporation.

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For a complete analysis of the tax implications of C Corporations, Partnerships, and S Corporations click here for the Joint Committee on Taxation’s publication entitled “Choice of Business Entity: Present Law and Data Relating to C Corporations, Partnerships, and S Corporations.”

Contact us regarding your business law matter. Click here

Posted in business, internal revenue code, IRS, Life and the Law, limited liability company, llc, small business, starting a business, subchapter K, subchapter S, tax, tax attorney, Tax Issues, Tax Law

Kelly Brown Earns LL.M. in Tax Law

Posted on March 5, 2016April 25, 2022 by g83js92js91
Categories: Announcements, Kelly Brown, Life and the Law, llm, McGrath amp; Spielberger, North Carolina, south carolina, Tax Issues, Tax Law, The Legal Profession
graduation cap law

 

McGrath & Spielberger, PLLC is happy
to announce that Attorney Kelly J. Brown has
earned her LL.M in Tax Law.

Attorney Kelly J. Brown has earned her LL.M. (Master of Laws) in Taxation from Boston University School of Law. Kelly is licensed in both North Carolina and South Carolina. Her practice focuses on real estate matters, including closings; business law matters; and of course, tax matters.

Posted in Announcements, Kelly Brown, Life and the Law, llm, McGrath amp; Spielberger, North Carolina, south carolina, Tax Issues, Tax Law, The Legal Profession

Tax Rates on Ordinary Income for Businesses

Posted on August 19, 2015April 25, 2022 by g83js92js91
Categories: business law, Business Law & Contracts, business owners, income, Life and the Law, North Carolina, Tax Issues, tax rates

When you decide to start a business venture, there are a myriad of things to consider. We regularly assist small business owners, especially start-up businesses, walking them through the steps that need to be taken in order to make the business official and legal. There are many ways a business can be organized and there are both non-tax and tax factors as well as state and local statutory requirements that need to be taken into consideration when embarking on this exciting journey of starting a business.

I previously wrote an article regarding the non-tax factors that should be considered when starting a business. This article is one of a series of articles that focuses on the tax implications of certain business activities and things you should consider when choosing your business entity. The most prominent federal tax considerations in choosing a business entity include:

  • Capital Contributions

 

  • Ownership Restrictions

 

  • Business Income and Loss

 

  • Allocations of Income or Loss

 

  • Basis Limitations and the Deductibility of Losses

 

  • Distributions

 

  • Employment Tax Considerations

 

  • Tax Rates on Ordinary Income

This article discusses the tax rates for businesses and business owners.

Ordinary Income Tax Rates

For most C corporations that have significant taxable income, the corporate income tax rate is essentially a flat rate of 34-35%. Corporations with smaller amounts of income enjoy lower rates (15-25%) on their first $75,000 of taxable income. As you can see below, a very small number of small businesses will receive the lower tax rates of 15 and 25%.

corporate tax rates

Additionally, certain personal service corporations (i.e., lawyers, accountants, architects, and the like) are not entitled to graduated tax rates but receive a flat rate of 35%. Individuals pay tax at the graduated rates of 15%, 28%, 31%, 36%, and 39.6%.

With a presidential election fast approaching and presidential hopefuls throwing their hat in the ring, you can expect some campaign talk of tax reform. On the corporate side, Marco Rubio has talked about tax reform that would lower the tax rate for corporations and passthroughs to 25% (although many of the credits and deductions would be eliminated) and allow businesses to expense the cost of their investments 100% in the year of acquisition. On individual tax reform, Rubio proposes reducing the number of individual tax brackets from 7 to 2 (15% and 35%), eliminate the standard deduction and replace it with a refundable personal credit, and create a $2,500 child tax credit.

Depositphotos 6663610 sacks of money

The relationships among these tax rates can greatly influence the choice of entity. At one time the maximum individual tax rate on ordinary income peaked at 70% and the top corporate tax rate was 46%, making forming a C corporation an attractive option to avoid the higher individual tax rates. The difference in rates prompted most business owners to organize their entities as a corporation rather than a pass-through entity because corporate income was taxed at much lower rates. During these high individual tax rate times, shareholders that wished to withdraw earnings created tax efficient strategies to avoid the double tax (e.g., owner-employees of a C corporation would distribute profits in the form of salary or fringe benefits, which are tax-deductible by the corporation and the fringe benefits are excludable from income of the employee in most situations). Shareholders also loaned money or leased property to C corporations and withdrew earnings from the corporation in the form of rent or interest payments that were tax deductible as well. The IRS began to crack down on these strategies and attacked payments of salary or interest as unreasonable compensation or disguised dividends. Congress fought back by enacting penalties to patrol against excessive accumulations or avoidance of the individual progressive tax rates. It wasn’t hard for a corporation with good tax planning to justify the payment of reasonable compensation and accumulation of earnings on the basis of reasonable business judgment and thereby avoid constructive dividends and the corporate penalty tax.

Now, individuals and corporations are subject to the same top tax rate and dividends and long-term capital gains are both taxed at relatively low rates, the C corporation earnings accumulation strategy is much less compelling. The parity in the individual and corporate tax rates, in conjunction with the prospect of two levels of tax when a C corporation is sold, provides a greater incentive to use a pass-through entity instead of a C corporation, particularly if the business intends to distribute its earnings currently, does not have owners who work for the firm, or holds assets that are likely to appreciate in value over a relatively short time frame. It would not be beneficial to organize a venture that invests in passive assets such as real estate or financial assets to operate as a C corporation because the costs of doing so would be prohibitive in light of the double tax. In some cases, however, C corporations still offer tax savings, especially for businesses able to pay out most of their earnings as compensation to their high-income owners.

For a complete analysis of the tax implications of C Corporations, Partnerships, and S Corporations click here for the Joint Committee on Taxation’s publication entitled “Choice of Business Entity: Present Law and Data Relating to C Corporations, Partnerships, and S Corporations.”

McGrath and Spielberger, PLLC assists clients with all sorts of tax issues, both federal and state (including but not limited to North Carolina and South Carolina). Click here to contact us about your tax matter.

⬕

 McGrath & Spielberger, PLLC provides legal services in Florida, Georgia, North Carolina, Ohio, South Carolina, and Tennessee, as well as in some Federal courts. The Firm offers full scale representation, as well as limited scope services, as appropriate for the situation. Please be advised that the content on this website is not legal advice, but rather informational, and no attorney-client relationship is formed without the express agreement of this law firm. Thank you.

Posted in business law, Business Law & Contracts, business owners, income, Life and the Law, North Carolina, Tax Issues, tax rates

Mortgage Loan Debt Forgiveness

Posted on March 24, 2015April 25, 2022 by g83js92js91
Categories: debt forgiveness, Deed in Lieu, foreclosure, Foreclosures & Mortgage Loan Relief, Kelly Brown, loan modification, mortgage loan debt, mortgage loan debt income, short sales, tax, Tax Issues

Is Canceled Mortgage Loan Debt Income that you are Taxed on?

As an attorney with specific tax law knowledge who also works with borrowers to avoid foreclosure and/or to otherwise resolve mortgage loan problems, I deal with short sales, deeds in lieu of foreclosure, loan modifications, and mortgage loan settlements on a regular basis. Borrowers are usually thrilled to be able to get rid of unwanted mortgage debt either through disposing of the property, as part of a discounted pay off which allows them to keep the property, or in the form of a principal reduction as part of a modification. However, the mortgage loan debt canceled as a result of these types of transactions can have negative future tax consequences for the borrower.

Generally, canceled or reduced mortgage principal is treated as income by the IRS, which means the amount of forgiven/reduced debt would normally be taxable income to the borrower. However, the Federal Government enacted the Mortgage Forgiveness Debt Relief Act of 2007 (the “Act”) to exclude up to $2 million of forgiven debt on a taxpayer’s primary residence from taxable income. This type of forgiven debt is specifically referred to as “Qualified Principal Residence Indebtedness”. The Act has been extended several times, with the most recent extension occurring in January 2015 to retroactively cover 2014, meaning that certain mortgage debt which was canceled or forgiven in 2014 need not be included as income to the borrower. 

North Carolina and South Carolina have different approaches on these matters as far as state income taxes. In most recent years, North Carolina followed the Federal Government’s lead and enacted legislation to exclude Qualified Principal Residence Indebtedness from a taxpayer’s income for state tax purposes. The North Carolina state exclusion expired in 2013 (just like the Federal exclusion), but unlike the Federal Government, North Carolina has not yet extended the exclusion to cover 2014. Thus, as of the date of this writing, the exclusion currently applies to 2014 for purposes of South Carolina state income taxes but not for North Carolina state income taxes (but changes may be taking place within weeks).

The debate surrounding the debt forgiveness exclusion is a hot topic for North Carolina lawmakers. In February 2015, the North Carolina State Senate passed a bill that requires forgiven debt to be included as income. North Carolina’s initial failure to extend the exclusion and the effect on homeowners was recently discussed by McGrath & Spielberger attorney Jason McGrath when he was interviewed by the Charlotte Observer.

The bill was subsequently rewritten by the NC House of Representatives to exclude forgiven debt from income and then passed by the NC House in early March 2015. As it currently stands, a Conference Committee with members from both the Senate and the House was appointed late last week to hash out whether North Carolina will follow the lead of the IRS and allow certain forgiven mortgage loan debt to be excluded from state taxation from the borrower side for certain debt canceled in 2014. Governor McCrory, of course, can sign or refuse to sign whichever version of the bill is presented to him.

At this point, homeowners with Qualified Principal Residence Indebtedness from 2014 will be able to exclude the forgiven debt amount from Federal income tax but would have to include that amount for North Carolina state income tax purposes. Homeowners facing foreclosure and other difficult mortgage loan situations could be forced into deciding whether to keep the home or pay at least state income tax later as to any canceled mortgage loan debt.

In contrast, South Carolina closely resembles the Federal income tax laws with only a few modifications. South Carolina has simplified its tax scheme by deciding to follow the Federal government’s lead on tax laws with any differences expressly stated in the South Carolina statutes. In fact, § 12-6-40(c) of the South Carolina Code of Laws specifically states, “If Internal Revenue Code sections adopted by this State which expired or portions thereof expired on December 31, 2013, are extended, but otherwise not amended, by congressional enactment during 2014, these sections or portions thereof also are extended for South Carolina income tax purposes in the same manner that they are extended for Federal income tax purposes.” Qualified Principal Residence Indebtedness is not mentioned or excluded in the South Carolina Income Tax Act and thus, one can conclude that the retroactive extension of the Mortgage Forgiveness Debt Relief Act of 2007 by the Federal Government allows a borrower in South Carolina to exclude certain forgiven debt for South Carolina state income tax purposes.

In addition to the Qualified Principal Residence Indebtedness exclusion, borrowers, including those in both North Carolina and South Carolina may be able to exclude some or all of forgiven debt from Federal taxation under the IRS’ insolvency exemption. The insolvency exemption allows a taxpayer to exclude canceled or forgiven debt from income if the taxpayer is insolvent. A borrower is insolvent when the total of all the liabilities exceed the fair market value of all the assets immediately before the cancellation of the debt. However, a borrower can only exclude forgiven debt up to the amount he or she was insolvent. 

Whatever you do, just make sure you are fully aware of the potential consequences of your mortgage loan resolution; there’s nothing worse than a nasty tax surprise hitting you out of the blue. If you need advice regarding a tax situation, a distressed mortgage loan, or something similar, please don’t hesitate to contact us to speak to an attorney Charlotte NC and Mt Pleasant SC.

Posted in debt forgiveness, Deed in Lieu, foreclosure, Foreclosures & Mortgage Loan Relief, Kelly Brown, loan modification, mortgage loan debt, mortgage loan debt income, short sales, tax, Tax Issues

Jason McGrath Quoted in Charlotte Observer Story on Mortgage Relief Tax Issues

Posted on March 15, 2015April 25, 2022 by g83js92js91
Categories: Foreclosures amp; Mortgage Loan Relief, Jason A McGrath, Jason McGrath News / Media, mortgage relief, North Carolina, Tax Issues, taxes
Feb 16, 2015 – The Charlotte Observer | CharlotteObserver.com ….. Jason McGrath, a Charlotte-based attorney who works with clients dealing with mortgage disputes and foreclosures, said that . . . (full article linked and posted below).
⬧

Tax-change renewal could hurt troubled homeowners in North Carolina

By Deon Roberts and Jim Morrill – deroberts@charlotteobserver.com jmorrill@charlotteobserver.com
FEBRUARY 16, 2015 6:00 AM

North Carolina lawmakers are poised to renew a rule requiring homeowners to pay state income taxes on mortgage debt forgiven by lenders – a move that could cost some homeowners thousands of dollars in additional taxes.

For years, North Carolina allowed taxpayers not to count written-off mortgage debt as taxable income after Congress, responding to the mortgage crisis, enacted a similar exclusion on federal income taxes.

In 2013, North Carolina took away the exclusion for the first time since the crisis. And last week the N.C. Senate passed a bill that would not allow the exclusion for tax year 2014. The House is expected to vote on the measure this week.

To illustrate what the bill would mean, if a homeowner received $20,000 in mortgage principal forgiveness, he or she would have to pay $1,160 in additional taxes, based on the state’s individual income tax rate of 5.8 percent. If $40,000 were forgiven, he or she would owe $2,320 in additional taxes.

Analysts say the proposal, which is included in a bill changing the state’s gasoline tax, could affect as many as 4,000 N.C. homeowners caught up in the mortgage crisis.

Republican and Democratic lawmakers are divided on the proposal, which General Assembly staffers estimate will bring in about $14 million in 2014 tax revenue.

Republicans say the move would be consistent with other tax changes that have lowered rates and eliminated many deductions.

But Democrats and some consumer advocates say it would hurt homeowners struggling to recover after falling into foreclosure and defeat the purpose of a lender providing the debt relief in the first place.

“This is not a good policy,” said Al Ripley, director of consumer and housing affairs for the North Carolina Justice Center. “We want to try to create situations where they will be able to afford to stay in their house … not engage in policies that will take resources away from those families and make it more likely that they will end up in foreclosure or face other economic hardship.”

Taxpayers can still claim the exclusion on 2014 federal income taxes after President Barack Obama signed an extension in December. The exclusion stems from the Mortgage Debt Relief Act of 2007.

As recently as two years ago, North Carolina was one of seven states not allowing taxpayers to exclude canceled mortgage debt from taxable income, according to a study by H&R Block.

The N.C. Department of Revenue said it is still compiling data for tax year 2013 and does not know how much additional tax revenue the state collected on canceled mortgage debt that year.

Lawmakers divided

The proposal to not allow the exclusion prompted a passionate debate in the N.C. Senate on Thursday. Among other tax changes in the bill is the loss of a taxpayers’ deduction of college tuition expenses.

Together, the changes are expected to mean an additional $73 million in state revenue.

Republican Sen. Harry Brown of Onslow County said not having that revenue would hurt working families.

“What you’re talking about is 70-some million of revenue that the state would have to come up with …” said Brown, co-chair of the Senate Appropriations Committee. “Are you going to take it from teachers? … Or Health and Human Services? Or the court system? That should be part of the argument.”

Senate Finance Committee Chairman Bob Rucho, a Matthews Republican, said lawmakers are seeking the changes to be consistent with other tax changes that have lowered rates and eliminated many deductions.

“We just feel like consistency is important,” Brown said later. “It’s pretty much aligned with our tax reform. We think driving the rates down will serve (the middle class) in the long run.”

But Senate Minority Leader Dan Blue of Raleigh said the bill means that “we kick people while they’re down.

“If they had money they wouldn’t be in foreclosure,” he told colleagues. “What we’re doing is saying you have to come up with money because you managed to get the mortgage company to forgive this loan. You’re wrapping something around their neck probably for the rest of their lives.”

Democratic Sen. Joel Ford of Charlotte said in a $21 billion state budget, Republicans could make up for the revenue elsewhere.

“We just need to prioritize working families rather than corporations and special interests,” he said. “You mean to tell me you folks can’t find ($73 million) for the working families of North Carolina? If you can’t find it you should be ashamed of yourselves.”

Bart Hildreth, executive director for the Washington, D.C.-based National Tax Association, said it’s appropriate for state legislatures to take a second look at tax policies, such as those put in place in response to the mortgage crisis.

“Policy experts typically recommend that states revisit each of those periodically to see if they’re still meeting public policy goals,” he said. “You don’t want it all to be on autopilot.”

N.C. foreclosures still high

The proposal comes at a time when foreclosure activity in North Carolina and Charlotte remains higher than in much of the U.S.

According to a report released Thursday by data firm RealtyTrac, one in every 711 housing units in the Charlotte region had a foreclosure filing in January, the 35th-highest rate in the U.S. among 213 metro areas. North Carolina posted the 14th-highest rate: one filing for every 1,044 housing units.

The proposal also comes as Bank of America is just starting to provide $7 billion in consumer relief nationwide as part of its $17 billion settlement with the U.S. government announced last year. Some of that relief is expected to take the form of principal reductions on mortgage loans.

Bank of America spokesman Dan Frahm said the bank has forgiven more than $164 million in principal on 3,600 home loans in North Carolina since 2008. The average amount forgiven over that period is nearly $45,000, he said.

Jason McGrath, a Charlotte-based attorney who works with clients dealing with mortgage disputes and foreclosures, said that while foreclosure activity is falling nationwide and locally, many homeowners are still fighting to keep their homes.

“My firm is as busy as we have ever been with regard to those kinds of cases,” he said. “The overall numbers may be down, but it’s still very much an ongoing issue.”

He said some homeowners might pass up an offer of mortgage relief that could give them much-needed assistance because of the increase in taxes the homeowners might have to pay later.

“It certainly can be part of a self-defeating process” to forgive mortgage debt only to tax consumers on that aid, “smacking them on the back end.”

 ⬧

http://nchousing.org/housing-matters-newsletter/archives/

Posted in Foreclosures amp; Mortgage Loan Relief, Jason A McGrath, Jason McGrath News / Media, mortgage relief, North Carolina, Tax Issues, taxes

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