Year-End Planning Moves that Can Help You Lower Your Tax Bill

Factors that compound the challenge include turbulence in the stock market, overall economic uncertainty and Congress’ failure to act on a number of important tax breaks that expired at the end of 2014. Some of these tax breaks ultimately may be retroactively reinstated and extended, as they were last year, but Congress may not decide the fate of these tax breaks until the very end of 2015 (or later). These breaks include, for individuals: the option to deduct state and local sales and use taxes instead of state and local income taxes; the above-the-line-deduction for qualified higher education expenses; tax-free IRA distributions for charitable purposes by those age 70-1/2 or older; and the exclusion for up to $2 million of mortgage debt forgiveness on a principal residence. For businesses, tax breaks that expired at the end of last year and may be retroactively reinstated and extended include: 50% bonus first-year depreciation for most new machinery, equipment and software; the $500,000 annual expensing limitation; the research tax credit; and the 15-year writeoff for qualified leasehold improvements, qualified restaurant buildings and improvements, and qualified retail improvements.

Higher-income earners have unique concerns to address when mapping out year-end plans. They must be wary of the 3.8% surtax on certain unearned income and the additional 0.9% Medicare (hospital insurance, or HI) tax. The latter tax applies to individuals for whom the sum of their wages received with respect to employment and their self-employment income is in excess of an unindexed threshold amount ($250,000 for joint filers, $125,000 for married couples filing separately, and $200,000 in any other case).

The surtax is 3.8% of the lesser of: (1) net investment income (NII), or (2) the excess of modified adjusted gross income (MAGI) over an unindexed threshold amount ($250,000 for joint filers or surviving spouses, $125,000 for a married individual filing a separate return, and $200,000 in any other case). As year-end nears, a taxpayer’s approach to minimizing or eliminating the 3.8% surtax will depend on his estimated MAGI and NII for the year. Some taxpayers should consider ways to minimize (e.g., through deferral) additional NII for the balance of the year; others should try to see if they can reduce MAGI other than NII; and other individuals will need to consider ways to minimize both NII and other types of MAGI.

The 0.9% additional Medicare tax also may require year-end actions. Employers must withhold the additional Medicare tax from wages in excess of $200,000 regardless of filing status or other income. Self-employed persons must take it into account in figuring estimated tax. There could be situations where an employee may need to have more withheld toward the end of the year to cover the tax. For example, if an individual earns $200,000 from one employer during the first half of the year and a like amount from another employer during the balance of the year, he would owe the additional Medicare tax, but there would be no withholding by either employer for the additional Medicare tax since wages from each employer don’t exceed $200,000. Also, in determining whether they may need to make adjustments to avoid a penalty for underpayment of estimated tax, individuals also should be mindful that the additional Medicare tax may be over-withheld. This could occur, for example, where only one of two married spouses works and reaches the threshold for the employer to withhold, but the couple’s combined income won’t be high enough to actually cause the tax to be owed.

We have compiled a checklist of additional actions based on current tax rules that may help you save tax dollars if you act before year-end. Not all actions will apply in your particular situation, but you (or a family member) will likely benefit from many of them. We can narrow down the specific actions that you can take once we meet with you to tailor a particular plan. In the meantime, please review the following list and contact us at your earliest convenience so that we can advise you on which tax-saving moves to make.

Year-End Tax Planning Moves for Individuals

• Realize losses on stock while substantially preserving your investment position. There are several ways this can be done. For example, you can sell the original holding, then buy back the same securities at least 31 days later. It may be advisable for us to meet to discuss year-end trades you should consider making.

• Postpone income until 2016 and accelerate deductions into 2015 to lower your 2015 tax bill. This strategy may enable you to claim larger deductions, credits and other tax breaks for 2015 that are phased out over varying levels of adjusted gross income (AGI). These include child tax credits, higher education tax credits and deductions for student loan interest. Postponing income also is desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances. Note, however, that in some cases, it may pay to actually accelerate income into 2015. For example, this may be the case where a person’s marginal tax rate is much lower this year than it will be next year or where lower income in 2016 will result in a higher tax credit for an individual who plans to purchase health insurance on a health exchange and is eligible for a premium assistance credit.

• If you believe a Roth IRA is better than a traditional IRA, consider converting traditional-IRA money invested in beaten-down stocks (or mutual funds) into a Roth IRA if eligible to do so. Keep in mind, however, that such a conversion will increase your AGI for 2015.

• If you converted assets in a traditional IRA to a Roth IRA earlier in the year and the assets in the Roth IRA account declined in value, you could wind up paying a higher tax than is necessary if you leave things as is. You can back out of the transaction by recharacterizing the conversion–that is, by transferring the converted amount (plus earnings, or minus losses) from the Roth IRA back to a traditional IRA via a trustee-to-trustee transfer. You can later reconvert to a Roth IRA.

• It may be advantageous to try to arrange with your employer to defer, until 2016, a bonus that may be coming your way.

• Consider using a credit card to pay deductible expenses before the end of the year. Doing so will increase your 2015 deductions even if you don’t pay your credit card bill until after the end of the year.

• If you expect to owe state and local income taxes when you file your return next year, consider asking your employer to increase withholding of state and local taxes (or pay estimated tax payments of state and local taxes) before year-end to pull the deduction of those taxes into 2015 if you won’t be subject to the alternative minimum tax (AMT) in 2015.

• Take an eligible rollover distribution from a qualified retirement plan before the end of 2015 if you are facing a penalty for underpayment of estimated tax and having your employer increase your withholding is unavailable or won’t sufficiently address the problem. Income tax will be withheld from the distribution and will be applied toward the taxes owed for 2015. You can then timely roll over the gross amount of the distribution (i.e., the net amount you received plus the amount of withheld tax) to a traditional IRA. No part of the distribution will be includible in income for 2015, but the withheld tax will be applied pro rata over the full 2015 tax year to reduce previous underpayments of estimated tax.

• Estimate the effect of any year-end planning moves on the AMT for 2015, keeping in mind that many tax breaks allowed for purposes of calculating regular taxes are disallowed for AMT purposes. These include the deduction for state property taxes on your residence, state income taxes, miscellaneous itemized deductions and personal exemption deductions. Other deductions, such as for medical expenses of a taxpayer who is at least age 65 or whose spouse is at least 65 as of the close of the tax year, are calculated in a more restrictive way for AMT purposes than for regular tax purposes.

• If you are subject to the AMT for 2015, or suspect you might be, these types of deductions should not be accelerated.

• You may want to pay contested taxes to be able to deduct them this year while continuing to contest them next year.

• Take required minimum distributions (RMDs) from your IRA or 401(k) plan (or other employer-sponsored retirement plan). RMDs from IRAs must begin by April 1 of the year following the year you reach age 70-1/2. If you can make yourself eligible to make health savings account (HSA) contributions by Dec. 1, 2015, you can make a full year’s worth of deductible HSA contributions for 2015. That start date also applies to company plans, but non-5% company owners who continue working may defer RMDs until April 1 following the year they retire. Failure to take a required withdrawal can result in a penalty of 50% of the amount of the RMD not withdrawn. If you turned age 70-1/2 in 2015, you can delay the first required distribution to 2016, but if you do, you will have to take a double distribution in 2016—the amount required for 2015 plus the amount required for 2016. Think twice before delaying 2015 distributions to 2016, as bunching income into 2016 might push you into a higher tax bracket or have a detrimental impact on various income tax deductions that are reduced at higher income levels. However, it could be beneficial to take both distributions in 2016 if you will be in a substantially lower bracket that year.

• You may be able to save taxes this year and next by applying a bunching strategy to “miscellaneous” itemized deductions, medical expenses and other itemized deductions.

• You may want to settle an insurance or damage claim in order to maximize your casualty loss deduction this year.

• If you can make yourself eligible to make health savings account (HSA) contributions by Dec. 1, 2015, you can make a full year’s worth of deductible HSA contributions for 2015.

• Increase the amount you set aside for next year in your employer’s health flexible spending account (FSA) if you set aside too little for this year.

• Make gifts sheltered by the annual gift tax exclusion before the end of the year and thereby save gift and estate taxes. The exclusion applies to gifts of up to $14,000 made in 2015 to each of an unlimited number of individuals. You can’t carry over unused exclusions from one year to the next. The transfers also may save family income taxes where income-earning property is given to family members in lower income tax brackets who are not subject to the kiddie tax.

Year-End Tax Planning Moves for Businesses and Business Owners

• Businesses should buy machinery and equipment before year-end and, under the generally applicable “half-year convention,” thereby securing a half-year’s worth of depreciation deductions in 2015.

• Although the business property expensing option is greatly reduced in 2015 (unless retroactively changed by legislation), making expenditures that qualify for this option can still get you thousands of dollars of current deductions that you wouldn’t otherwise get. For tax years beginning in 2015, the expensing limit is $25,000, and the investment-based reduction in the dollar limitation starts to take effect when property placed in service in the tax year exceeds $200,000.

• Businesses may be able to take advantage of the “de minimis safe harbor election” (also known as the book-tax conformity election) to expense the costs of inexpensive assets and materials and supplies, assuming the costs don’t have to be capitalized under the Code Sec. 263A uniform capitalization (UNICAP) rules. To qualify for the election, the cost of a unit of property can’t exceed $5,000 if the taxpayer has an applicable financial statement (AFS; e.g., a certified audited financial statement along with an independent CPA’s report). If there’s no AFS, the cost of a unit of property can’t exceed $2,500. Where the UNICAP rules aren’t an issue, purchase such qualifying items before the end of 2015.

• A corporation should consider deferring income until next year if doing so will preserve the corporation’s qualification for the small corporation AMT exemption for 2015. Note that there is never a reason to accelerate income for purposes of the small corporation AMT exemption because if a corporation doesn’t qualify for the exemption for any given tax year, it will not qualify for the exemption for any later tax year.

• If you own an interest in a partnership or S corporation, consider whether you need to increase your basis in the entity so you can deduct a loss from it for this year.

• A corporation should consider accelerating income from 2016 to 2015 if it will be in a higher bracket next year. Conversely, it should consider deferring income until 2016 if it will be in a higher bracket this year.

• A corporation (other than a “large” corporation) that anticipates a small net operating loss (NOL) for 2015 (and substantial net income in 2016) may find it worthwhile to accelerate just enough of its 2016 income (or to defer just enough of its 2015 deductions) to create a small amount of net income for 2015. This will permit the corporation to base its 2016 estimated tax installments on the relatively small amount of income shown on its 2015 return, rather than having to pay estimated taxes based on 100% of its much larger 2016 taxable income.

• If your business qualifies for the domestic production activities deduction (DPAD) for its 2015 tax year, consider whether the 50%-of-W-2 wages limitation on that deduction applies. If it does, consider ways to increase 2015 W-2 income, e.g., by bonuses to owner-shareholders whose compensation is allocable to domestic production gross receipts. Note that the limitation applies to amounts paid with respect to employment in calendar year 2015, even if the business has a fiscal year.

• To reduce 2015 taxable income, if you are a debtor, consider deferring a debt-cancellation event until 2016.

• To reduce 2015 taxable income, consider disposing of a passive activity in 2015 if doing so will allow you to deduct suspended passive activity losses.

Other Planning Opportunities to Consider

Export Incentives of an IC-DISC

The interest-charge domestic international sales corporation (IC-DISC) is an entity often used by U.S. manufacturers and exporters, and their shareholders, to defer taxation on offshore profits. When these accumulated, untaxed profits become taxable, the IC-DISC can convert them from ordinary business income into tax-advantaged dividend income. This ability to defer taxation on offshore profits and transform the character of these amounts at the time the accumulated earnings become taxable also provides the opportunity to use an IC-DISC in a variety of different ways, including retirement planning, compensation planning, and estate or succession planning.

An IC-DISC allows: (1) benefits for engineering and architectural services related to foreign construction projects; (2) the performance of services in the United States; and (3) using benefits as a way to reward employees by distributing IC-DISC shares.

An IC-DISC must be a U.S. corporation and obtain IRS approval to qualify. The corporation must have its own bank account and one class of stock, and meet an annual qualified export receipts test and qualified export assets test. The last requirement is that at least 95% of the IC-DISC’s gross receipts and assets must be related to the export of property the value of which is at least 50% U.S.-produced content.

If you are involved in manufacturing and exportation and can meet the DISC requirements, this may be a very advantageous tax savings opportunity.

Personal Property Tax Reviews

Your business is subject in certain states to personal property tax compliance and reporting. The most often seen error in commercial personal property tax is the failure to report only those items which qualify as taxable personal property. Conducting fixed asset reviews can identify items that are real property dually reported on both real and personal property tax returns. Reviews of leasehold improvements in particular tend to yield items that are real property which often are reported additionally on personal property tax returns. If your company transfers equipment between sites located in multiple states, such property may also be reported on multiple property tax returns.

Inventory planning and exemption reviews can further determine in which states your inventory is subject to tax, the potential for alternative valuation dates, as well as potential exemptions such as the Freeport Election in Texas and Georgia. As warehouses need to report individually, moving your warehouse location from a state in which you are paying property taxes on inventory with no Freeport Election to a state with such exemptions, or which does not tax inventory at all, could remove a significant burden on your P&L.

Real Property Valuations

Overpayment of real property taxes can be best addressed through assessment reviews and appeals. These may lower your property’s valuation for tax purposes and aid in minimizing taxable impact on real property you own that is overvalued by your county and/or state. Even on those properties which you rent, if you are the major tenant you may have the right to appeal their real property tax determinations, which are prorated as a portion of your ultimate rent as passed down by your landlord. Additionally, increasing your current depreciation deductions via cost segregation studies and accounting method changes accelerates the tax benefits of your highly-valued property and assets with potentially overvalued useful lives.

Cross-Border Planning

Entity Classification Election – An entity classification election (“checking the box”) may allow for the following planning strategies:

• Flowing through foreign start-up losses into the income of the U.S. parent entity and offsetting the losses against U.S. income;
• Permitting the use of foreign taxes paid in the foreign country as taxes that may be creditable against U.S. taxes imposed on foreign source income;
• Avoiding the application of disadvantageous anti-deferral tax rules (such as Subpart F and Section 956) that apply to “Controlled Foreign Corporations;” and
• Simplifying the U.S. tax reporting requirements with respect to the ownership of foreign entities.

Informational Reporting – Informational reporting is required in various circumstances, and non-compliance can result in harsh penalties. Consult your tax professional for guidance, and note that reporting is done on the following forms:

• Ownership of foreign entities
• Corporations (5471)
• Partnerships (8865)
• Disregarded entities (8858)
• Contributions to foreign corporations (926)
• Ownership of foreign financial assets (8938)
• Ownership of interest in PFIC (8621)
• Transactions with foreign trusts, or foreign gifts (3520)
• Foreign trusts with U.S. owner (3520-A)
• Foreign financial accounts (FinCEN 114)

Nexus and Apportionment Studies

Proper and annual evaluation of your company’s state nexus for both income and sales and use tax purposes is vital for establishing whether your company is subject to tax based on its presence in the states in which you do business. Though a nexus study, you can evaluate the presence of your employees, property and business relationships to determine where you should register to do business, file income and use tax returns, and collect and remit sales taxes from your customers. Further, with those states that have adopted an “economic nexus” standard such as California, evaluation of the amount of your sales in-state can exceed the sales thresholds establishing nexus and a consequent filing responsibility whether or not you have a physical presence in-state. If your business is engaged in substantial Internet sales or provides services which may constitute “software/infrastructure as a service” (“SaaS / IaaS”) the aspects of click-through nexus and the triggering of nexus by tech-specific activities must be continuously evaluated as the states’ antiquated tax legislation seek to meet the business services and practices of the 21st century.

Further, determining the proper assignment of income for your multistate company amongst the states in which you have nexus must be engaged in to properly determine sourcing, estimates and credits for taxes paid applicable to your various state returns. States continually modify and amend both their rules and their formulae regarding how income is classified, segmented and calculated. Through an apportionment study, you can be confident you are applying both the right contemporary state formula (as many states move to a single sales factor from the traditional three-factor property, payroll and sales) as well as proper sourcing of income for your sales, services and intangibles (which is seeing a significant increase in market-based sourcing over costs of performance).

Credit and Incentives

There are a variety of credits and deductions for individual and business taxpayers. The Earned Income Tax Credit and the Child and Dependent Care Credit help millions of families every year. In addition to the standard deduction for individuals, common deductions include home mortgage interest, state and local tax and charitable contributions.

Many business expenses are deductible as well. Some of the commonly used credits and deductions are as follows:

Individual Credits

• Earned Income Tax Credit
• Education Credits
• Child and Dependent Care Credit
• Adoption Credit
• Saver’s Credit

Business Credits

• Small Business Health Care Credit
• Plug-In Electric Vehicle Credit

Individual Deductions

• Standard Mileage
• Standard Deductions
• Gifts by Cash or Check
• Charitable Contributions
• Individual Retirement Arrangements

Business Deductions

• Standard Mileage
• Business Expenses
• Home Office Deduction
• Domestic Production Activities
• Business Depreciation Deduction
• Casualty, Disaster & Theft Losses Deduction

These are just some of the year-end steps that can be taken to save taxes. Again, by contacting us, we can tailor a particular plan that will work best for you. We also will need to stay in close touch in the event that Congress revives expired tax breaks to assure that you don’t miss out on any resuscitated tax-saving opportunities. If you have any questions or would like to discuss this matter further, please contact a member of Withum’s National Tax Services Group at [email protected].

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To ensure compliance with U.S. Treasury rules, unless expressly stated otherwise, any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used, by the recipient for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code.