Did the Maryland Appellate Court Expand the State’s Ability to Tax Out-of-State Businesses?

On January 24, 2013, the Maryland Court of Special Appeals reversed a circuit court’s withdrawal of assessments and affirmed the Tax Court’s ruling that out-of-state subsidiaries of a company operating in Maryland are subject to Maryland’s corporate income tax because the subsidiaries are engaged in a unitary business with and under the complete control of the Maryland parent company (Comptroller v. Gore Enterprise Holdings, Inc., Md. Ct. Spec. App., Dkt. Nos. 1696; 1697, 01/24/2013). The ultimate conclusion in this case is consistent with prior appellate and Tax Court case law in Maryland; however, some of the language in the opinion reflects a very expansive jurisdiction Continue reading »

“C” Corp Reasonable Compensation

A recent case (TC Memo 2013-10) upheld the taxpayer’s deduction of compensation to its officer as reasonable.  The taxpayer (a privately-held nursing care business) was able to prevail because the owners did their homework and documented how they arrived at the officer compensation and corroborated its conclusion with third party experts in the compensation area.

IRC 162(a)(1) specifies two tests that must be met for compensation to be deductible – the compensation must be reasonable, and it must be paid purely for personal services actually rendered.  It is the first prong of this test that the IRS and courts focus most on.  Looking back to various cases, the Court identified six factors in determining the reasonableness of compensation: Continue reading »

Tax Tip: Tax Debt and the ‘Alter Ego’

In a recent Court of Appeals case (Berkshire Bank vs. Town of Ludlow MA and IRS, 1/11/2013) the Court ruled that an LLC owned by individual behind on his taxes was that individual’s alter ego. That is, the LLC and the individual were deemed to be one and the same, resulting in the assets of the LLC being available to satisfy the IRS tax debt.

Closely held businesses are in particular in danger of being seen as the alter ego of its owners. Common elements the IRS can use to find an alter ego relationship exists include Continue reading »

Tax Tip: Home Office Deduction Safe Harbor

In a newly issued Revenue Procedure 2013-13, effective for tax years starting on or after 1/1/2013, the IRS has created a safe harbor for the home office deduction calculation. The safe harbor is $5 times the home office square footage, for a maximum of $1,500. The safe harbor is in lieu of the substantiation of actual expenses otherwise required under IRC 280A.

If the safe harbor is used:

• The safe harbor is the total deduction. No depreciation or any other costs can be taken in addition to the safe harbor amount.
• The taxpayer can take 100% of the mortgage interest and property taxes as an itemized deduction on schedule A. No reduction of these expenses are required.
• Disallowed home office expenses that were carried over from prior years cannot be used in the year the safe harbor is taken. These amounts continue to be carried over and are usable in a year in which actual (substantiated) expenses are claimed.
• The taxpayer can elect safe harbor or substantiated expenses year-by-year.

Tax Tip: Proof of Gross Income

During the course of a tax audit, the agent will add up all bank deposits, back out identifiable non-tax items (such as account transfers) and compare that total to the gross income reported on the tax return. The excess of deposits over reported income is deemed to be unreported taxable income unless proven otherwise. Frequently, taxpayers find themselves trying to explain undocumented deposits. A loan from a friend, a gift from a relative, and other clearly nontaxable deposits will be included in the taxpayer’s income unless proof of Continue reading »

The Importance of Sourcing Software License Royalty Income

If a U.S. company pays a royalty to a foreign company for the use of a software license, there is an issue regarding whether the royalty payment is considered to be U.S. source income to the foreign licensor. If the royalty is considered to be U.S. source income to the foreign licensor then I.R.C. Section 1442 U.S. nonresident tax withholding generally will apply at a rate of Continue reading »

Deadline Looming for Stock Option Reporting

Under Section 6039 of the Internal Revenue Code, corporations are required to furnish statements to current and former employees who exercised an incentive stock option in 2012 or first transferred legal title to shares acquired as part of the corporation’s 423 employee stock purchase plan in 2012. Your company may be subject to significant penalties if Forms 3921 and 3922 are not Continue reading »

Fiscal Cliff Legislation Lets D.C. Empowerment Zone Incentives Expire

The “Fiscal Cliff” legislation (H.R. 8: American Taxpayer Relief Act of 2012) enacted by Congress earlier this month did not extend the tax benefits provided pursuant to Internal Revenue Code sections 1400 through 1400C with respect to District of Columbia Enterprise Zones (“DC Zones”).  Although the legislation retroactively extended the Federal Empowerment Zone incentives for calendar years 2012 and 2013, the December 31, 2011 expiration date for the designation of certain DC Zones being eligible for empowerment zone designation was left unaddressed by the Fiscal Cliff legislation.

As a result, the following DC Zone incentives will no longer be available for tax years beginning on or after December 31, 2011: Continue reading »

Cloudy with a Chance of Sales Tax in the DC Metro Area

The taxation of cloud computing services is an evolving area of sales and use tax.  Cloud computing, which includes a wide variety of service offerings, generally allows businesses the potential to reduce IT costs by outsourcing hardware and software maintenance and support.  Still, remote access to software, or “software as a service” (SaaS), is only a small part of what is referred to as “cloud computing.”  The term also includes offerings such as Continue reading »

Caution: Nonresident Foreign Individuals Must Comply with New IRS Documentation Requirements when Filing a Form W-7 U.S. TIN Application

Depending on a foreign individual’s inbound activities in the United States, the person could be required to obtain a U.S. Taxpayer Identification Number (TIN) if the person is not eligible to obtain a U.S. Social Security Number (SSN). Foreign individuals who are required to obtain a U.S. Taxpayer Identification Number must file a Form W-7 with the Internal Revenue Service (IRS).

A U.S. TIN generally is required if a nonresident foreign individual is required to file a U.S. federal tax return on the Form 1040-NR. A nonresident foreign individual generally must file a Form 1040-NR if the person has income that is effectively connected with a U.S. trade or business. A nonresident foreign individual who has ordinary trade or business income from a U.S. partnership generally is considered to have effectively connected income that must be reported on a Form 1040-NR.

A U.S. TIN also could be required if Continue reading »