Form 8582: Passive Activity Reporting and Impact of New 3.8% Medicare Tax Tackling Complex Passive Activity Computations and Navigating Income Tax and AMT Reporting Challenges TUESDAY, NOVEMBER 5, 2013,1:00-2:50 pm Eastern IMPORTANT INFORMATION This program is approved for 2 CPE credit hours. To earn credit you must: • Participate in the program on your own computer connection and phone line (no sharing) – if you need to register additional people, please call customer service at 1-800-926-7926 x10 (or 404-881-1141 x10). Strafford accepts American Express, Visa, MasterCard, Discover. • Respond to verification codes presented throughout the seminar. If you have not printed out the “Official Record of Attendance”, please print it now. (see “Handouts” tab in “Conference Materials” box on left-hand side of your computer screen). To earn Continuing Education credits, you must write down the verification codes in the corresponding spaces found on the Official Record of Attendance form. • Complete and submit the “Official Record of Attendance for Continuing Education Credits,” which is available on the program page along with the presentation materials. Instructions on how to return it are included on the form. • To earn full credit, you must remain on the line for the entire program. WHOM TO CONTACT For Additional Registrations: -Call Strafford Customer Service 1-800-926-7926 x10 (or 404-881-1141 x10) For Assistance During the Program: - On the web, use the chat box at the bottom left of the screen - On the phone, press *0 (“star” zero) If you get disconnected during the program, you can simply call or log in using your original instructions and PIN. Sound Quality Call in on the telephone by dialing 1-866-873-1442 and enter your PIN when prompted, and view the presentation slides online. If you have any difficulties during the call, press *0 for assistance. You may also send us a chat or e-mail sound@straffordpub.com so we can address the problem. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again. If you have not printed or downloaded the conference materials for this program, please complete the following steps: • Click on the ^ sign next to “Conference Materials” in the middle of the left-hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides and the Official Record of Attendance for today's program. • Double-click on the PDF and a separate page will open. • Print the slides by clicking on the printer icon. Form 8582: Passive Activity Reporting and Impact of New 3.8% Medicare Tax November 5, 2013 David Holets, Crowe Horwath david.holets@crowehorwath.com Robert S. Barnett, Capell Barnett Matalon & Schoenfeld rbarnett@cbmslaw.com Today’s Program Passive Activity Groups and Rental Real Estate [Robert Barnett] Slide 7 – Slide 72 Passive Activity Loss Rules and Net Investment Income Tax Slide 73 – Slide 84 Forms 8582 and 8960 [Dave Holets] The New Medicare Tax [Dave Holets] Slide 85 – Slide 97 PASSIVE ACTIVITY GROUPS AND RENTAL REAL ESTATE By Robert S. Barnett CPA, JD, MS (TAXATION) CAPELL BARNETT MATALON & SCHOENFELD, LLP. ATTORNEYS AT LAW (516) 931-8100 rbarnett@cbmslaw.com PASSIVE ACTIVITY • Passive Activity Losses offset passive income • May not offset active or portfolio income • Excess PAL is suspended • Any activity involving a trade or business • In which the taxpayer does NOT MATERIALLY PARTICIPATE • Material Participation – REGULAR, CONTINUOUS and SUBSTANTIAL • Most rental activities 7 YANO, TCM 2012-101 • Taxpayers claimed losses from solar systems • Activity was managed by others • No records of participation, appointment books, or logs • Discussed 7 test of material participation • Mercury Solar manufactured and installed the systems, collected payments from homeowners, and paid expenses and state excise taxes 8 THOMPSON • §469 limits utilization of PAL’s to PA income • LP is presumed passive unless meets 1 of 3 tests (#1, #5 or #6) • GP is NOT treated as a LP – 7 Tests available • WHAT ABOUT LLC MEMBERS? • Treas. Regs. only define LP • LLC member – limited liability, but allowed to participate in management • IRS acquiesced in result – use 7 tests! of material participation for LLC member 9 PROPOSED REG. §1.469-5(e)(3)(i) • New definition of LP Interest for PAL Purposes • Interest in an entity may be treated as LP Interest 1. Entity is classified for tax purposes as a partnership and 2. Holder does NOT have management rights under State law or under governing agreements 10 PROPOSED REG. CONTINUED • IRS is looking at ability to participate in management and control • Better adapted to modern partnership law • RULPA allows participation of LP’s • Member Managed LLC’s retain liability protection • Issue of limited liability less important 11 USE THE 7 TESTS 1. The individual participates in it for more than 500 hours during the year 2. The individual's participation in the activity for the tax year is substantially all of the participation in it by all individuals (including non-owner individuals) for the year 3. The individual participates in the activity for more than 100 hours during the tax year and that isn’t less than that of any other individual (including non-owners) for that year 12 THE 7 TESTS continued 4. The activity is a significant participation activity for the tax year, and the individual’s aggregative participation in all significant participation activities that year exceeds 500 hours. • Significant participation activity is a trade or business in which the individual significantly participates (for more than 100 hours), but in which he doesn’t otherwise materially participate 13 THE 7 TESTS continued 5. The individual materially participated in the activity for any five tax years (consecutive or not) during the 10 immediately preceding tax years 6. The activity is a personal service activity, and the individual materially participated in the activity for any three tax years (consecutive or not) before the tax year 7. The individual meets a facts and circumstances test 14 HOW DO YOU PROVE PARTICIPATION? • Regs – Any reasonable means • Calendars, appointment books, logs • Contemporaneous daily logs are not required IF other reasonable means exist to establish material participation • Participation of spouse may be counted – even if file separately • Participation as investor requires day to day management activity 15 MANAGEMENT ACTIVITIES • For facts and circumstances test – Not if a paid manager or another manager performs more services • Iverson, TCM 2012-19 • Ranch activity insufficient evidence of participation • Hired manager, therefore taxpayer’s management activities not counted 16 DISPOSITION • Suspended losses may be utilized to offset non passive income • Requires disposition of ENTIRE ACTIVITY IN A FULLY TAXABLE TRANSACTION (not §351, 721, 1041, or 1031) • Loss is then treated as not from a passive activity • Complete worthlessness may qualify 17 ACTIVITY • If dispose of less than entire interest in the activity - losses remain suspended and passive –If dispose less than all, losses remain suspended –What constitutes an entire activity? • C & S Corps separately group activities 18 DISPOSITION CONTINUED • Special Rule • If dispose of substantially all & can establish Losses with reasonable certainty 19 ACTIVITY • Treas. Reg. 1.469-4 – sets forth rules for grouping activities • Trade or Business –activities that meet §162 other than Rental criteria, INCLUDING: – Activities conducted in “anticipation of the commencement of a trade or business” – Certain research or experimental expenditures 20 RENTAL ACTIVITIES • Cannot generally group rental activities with active businesses or personal property rental activities • EXCEPT if the rental is “incidental to a nonrental activity of the taxpayer” 21 REAL ESTATE RENTAL ACTIVITIES • RENTAL ACTIVITIES are generally deemed passive • Regardless of participation • § 469(i) provides a $25,000 exception within limited income limits if active participation 22 RENTAL ACTIVITIES • Treas. Reg. §1.469-1T(e)(3) – Amounts received for use of Tangible Property • Except if average period of customer use is seven days or less • Increased to 30 days or less if SIGNIFICANT PERSONAL SERVICES are provided by or on behalf of the owner (special rule for extraordinary personal services) • EXCEPT if the rental is “incidental to a nonrental activity of the taxpayer” 23 BAILEY v. COMM’R • TC Summary Opinion 2011-22 • B&B Inn having several buildings • One property was rented for short term – average period of customer use under 8 days • Not counted for 750 hour test of Real Estate Professional – (discussed later) 24 SIGNIFICANT PERSONAL SERVICES • Will allow up to 30 days of rental – average customer use • Facts & circumstances – type and value of services • Only services performed by individuals • Not construction or capital repairs • Not services customarily performed in high grade real estate rentals 25 EXAMPLE 1 – NOT A RENTAL ACTIVITY 1. Rental of copy machine < 8 days and no services provided 2. Rental of copy machines for less than 30 days & • Company performs significant personal services, such as maintenance and service calls • Motel or B&B and 7 days or less – Average Rental 26 EXAMPLE 2 – A RENTAL ACTIVITY • Hotel guests stay over 7 but less than 30 days • Maid services and cleaning common areas • Such services are similar to those provided for long term rentals of high grade property • Value of maid services less than 10% of rental • Not significant personal services 27 REV. PROC. 2010-13 • Treas. Reg. § 1.469-4(c) provides rules for grouping of activities – the procedure discusses requirements • A trade or business activity may be grouped with rental activity • If constitutes an “APPROPRIATE ECONOMIC UNIT” & rental is insubstantial in relation to T or B activity 28 Slide Intentionally Left Blank GROUPINGS • • • • Similarities (or Differences) Common Control & Ownership Geographical Location Interdependence between or among the activities – Ex. Purchase and sale of goods, similar customers, employees, books, etc. 30 GROUPINGS • Subjective but must be reasonable • Consistency required • Difficult to change grouping-needs change of circumstance or clearly inappropriate • IRS may initiate re-grouping 31 EXAMPLE – REGULATIONS • Bakery and Movie Theater in shopping mall in Baltimore and same in Philadelphia • May be several reasonable groupings – A Movie Theater activity & a Bakery activity – Baltimore activity & Philadelphia activity – Four separate activities 32 RENTAL & BUSINESS • Generally cannot group rental and trade or business activities • May group if: – Constitute an appropriate economic unit AND – The rental is insubstantial in relation to T or B – OR if same proportionate ownership 33 EXAMPLE – GROUPING PERMITTED • Husband owns grocery • Wife owns real estate rented to grocery • File joint return and treated as commonly controlled • EXAMPLE: Summer Camp & Land – Consider Real Estate grouping, or business grouping, or combined • S Corp. considerations 1. Group within corps and then 2. Group with personal 34 EXAMPLE CONTINUED • Real estate professional • Grouping election available • Group land – but not camp activity with land 35 PEREZ • Real estate broker could not group her real estate rentals and her brokerage business • Real estate was not used in brokerage • Reporting on Schedule E was not sufficient to aggregate • Taxpayer did not properly present evidence of material participation • PENALITES! No reasonable GF 36 S CORPORATION, C CORPORATION AND PARTNERSHIPS • Must independently group it’s activities • Must report groupings on FORM K-1 • Shareholder/Partner may then group with his/her other activities – must disclose grouping • Generally no need to keep reporting 37 MUST REPORT • Written Statement • Original grouping – must state appropriate economic unit • Additions • Changes/deletions, but do not have to report dispositions • Regroupings if Material Change – in facts or clearly inappropriate • Must explain regrouping 38 MAY REGROUP IF: • If original grouping is “CLEARLY INAPPROPRIATE” or if nature of activities changes • Material change in facts and circumstances • Provide sufficient identification – names, addresses, ID, etc. • State that regrouping constitutes an appropriate economic unit 39 REV. PROC. 2010-13 RESCUE • If failed to properly report group – each activity is treated as separate activity • Allow LATE ELECTION – make disclosure in year of DISCOVERY (if filed consistently with grouping) • Before IRS discovers omission or reasonable cause for failure to disclose must then be shown (reliance on CPA) • Does not apply to Real Estate professionals • See, Rev. Proc. 2011-34 40 REAL ESTATE PROFESSIONALS • May treat rental real estate losses as NONPASSIVE • §469(c)(7)(B) • May use passive losses to offset active income – SUBJECT TO material participation requirements • Employee must be more than 5% OWNER 41 TWO TESTS • 1) More than one-half of the personal services performed in trades or businesses by the taxpayer during such taxable year are performed in real property trades or businesses in which the taxpayer materially participates, and • 2)Such taxpayer performs more than 750 hours of services during the taxable year in real property trades or business in which the taxpayer materially participates. The taxpayer must still materially participate in the activity or it is considered passive 42 REAL PROPERTY TRADES OR BUSINESSES • • • • • Development & Construction Acquisition & Conversion Rental & Leasing Management Brokerage 43 EXAMPLE • • • • Employee of Construction Co. (not an owner) Works 1,000 hours Works in his rental property 600 hours What about if works 751 hours in rental property? • FAILS TEST! • Must own at least 5% 44 • DO NOT COUNT HOURS FOR 750 HOUR TEST UNLESS MATERIALLY PARTICIPATE – Each real estate activity is treated separately – Must materially participate in EACH ACTIVITY – IRC does NOT require 750 hours for each activity 45 MILLER v. COMMISSIONER • 2 property losses not passive 2005 & 2006 • 4 property losses were passive • No penalty imposed • H worked as a tugboat pilot 46 MILLER • • • • H had contractor’s license Kitchen remodeling, siding, decks, fences, etc. Wife – leases, advertising, research, bidding H – contemporaneous time sheets for contracting work but not administrative work such as planning, ordering • H rental maintenance and repair 47 MILLER • Burden of Proof – for a deduction • Deficiency Notice presumed correct • Burden may shift to Commissioner if certain conditions satisfied • Petitioner did not claim that burden shifted 48 MILLER • Prove Participation – by any reasonable means • Not “ballpark estimate” • Look at performance of both spouses for material participation • H performed over 750 hours as contractor and on rental properties • H performed more time on real estate than as tugboat pilot 49 MILLER • • • • Contemporaneous work logs BUT Failed to aggregate 7 tests reviewed by Court Reasonable cause & good faith – no penalties 50 MATERIAL PARTICIPATION • • • • Regular, continuous & substantial 7 Tests – Treas. Reg. § 1.469-5T More than 500 HOURS is favorite Limited partner has only 3 methods (Test # 1, #5 or #6) 51 OTHER TESTS TO CONSIDER • More than 100 hours (+ more than anyone else) • Significant participation activity • Prior year material participation • Facts and Circumstances • Substantially ALL participation is by taxpayer 52 MARRIED • Can count participation by spouse to meet material participation only • Even if do not file joint return! 53 SEPARATE ACTIVITY • Each interest in rental real estate is treated as a separate activity – subject to the material participation requirements. • UNLESS AGGREGATION ELECTION • Treat ALL rental realty as single activity • Election makes it easier to meet the material participation requirement. 54 ANJUM SHIEKH, TCM 2010-126 • Taxpayer had several rental properties • Claimed he was Real Estate Professional • Had to meet Material Participation for EACH activity • Court also required taxpayer to capitalize investigatory expenses – he did not abandon search for new rental 55 SCHEDULE E • Is not sufficient to constitute aggregation • Need formal election & notice • IRS said he failed the Material Participation test for one property • Failed to present evidence of hours worked – (use contemporaneous log) • Net leases more troublesome 56 COMPLETE DISPOSITION • Mr. Shiekh did dispose of one property • Because he did not aggregate this was considered a COMPLETE DISPOSITION • Capital gain from sale – considered passive income and suspended losses were able to be utilized 57 TO ELECT OR NOT TO ELECT • Do not make if have passive income from real estate and passive losses from other activities because you want to keep the income passive • Do not include property to be sold 58 ELECTION TO AGGREGATE ALL RENTAL REAL ESTATE INTERESTS • Treas. Reg. § 1.469-9(g)(3) • Statement with Return • Taxpayer X SS# 123-45-6789 is a qualifying taxpayer and hereby elects pursuant to IRC § 469(c)(7)(A) to treat ALL interests in rental real estate as one activity 59 LATE ELECTION • Rev. Proc. 2011-34, 2011-24 IRB 875 • PLR 201126026 & 200728016 allowed taxpayers to make a late aggregation election – Treas. Reg. § 301.9100-3 • • • • Acted reasonably and promptly Good faith – no prejudice to government Reasonable cause for failure Such as reliance on professional 60 Rev. Proc. 2011-34, 2011-24 IRB 875 • • • • • Allow late election Attach Statement Filed consistently and timely Amend last filed return Identify year desired for election 61 ELECTION IS IRREVOCABLE • Applies to all future years • Unless a material change in circumstances • Make the Election if it results in utilization of losses that would otherwise be suspended. 62 EXAMPLE • 3 Rental Properties, 200 hours each • 3 Net Lease properties, 100 hours each • Unless aggregate fail, 750 hour test 63 3.8% SURTAX • NII includes rental income • Excluded if: 1. Not passive and 2. §162 Trade/Business • Real Estate Professionals 64 REAL ESTATE PROFESSIONALS • Not per se passive • Meets 1st test • §162 Trade/Business 65 §162 TRADE/BUSINESS • • • • Groetzinger Regular continuous activities Profit motive Lagreide 23 TC 508 66 SELF-CHARGED ITEMS • §1.469-7 – Applies only to Interest Income/Expenses that are recognized in the same taxable year • Treat such Income/Expense as passive • Apply to Partnership and S Corporation taxpayer loans • Will re-characterize portfolio Interest Income as passive income of owner to avoid mismatch 67 SELF-RENTAL RULE • Treas. Reg. §1.469-2(f)(6) • Prevents abuse – PIG • Rental of property to T or B in which TP materially participates • Heads they win – tails you lose • Income is not passive; losses are passive 68 EXAMPLE • • • • • A is a shareholder in CPA firm A materially participates A rents a building to the company Rental income is NOT PASSIVE Kucera, TC Summary 2001-18 69 L. A. SAMARASINGHE TCM 2012-23 (1/19/2012) • • • • • Lease to Dr.’s medical corporation Dr. treated rental income as passive Self-Rental Rule applied Dr. was active in the practice NO PENALTY – reasonable reliance on CPA 70 Slide Intentionally Left Blank The Unique Alternative to the Big Four® Passive Activity Loss Rules and Net Investment Income Tax Forms 8582 and 8960 The Unique Alternative to the Big Four® DISCLOSURE REQUIRED BY U.S. TREASURY DEPARTMENT CIRCULAR 230: Crowe Horwath LLP must inform you that any advice in this communication to you was not intended or written to be used, and cannot be used, to avoid any government penalties that may be imposed on a taxpayer. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 73 The Unique Alternative to the Big Four® Form 8582 - The Gauntlet Losses from a flow through entity are subject to the following limitations: 1. Basis Rules 1. 2. 2. At Risk Rules 1. 3. No specific form to report. Track along with Schedule K-1 Form 6198 Passive Activity Rules 1. Form 8582 and Form 8582-CR A taxpayer can never deduct more losses than the amount that flows through from the prior limit. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 74 The Unique Alternative to the Big Four® Form 8582 - The Gauntlet Basis Limitations under Section 704(d) for partnerships and 1366(d) for S corporations – Losses are limited to a partner’s outside basis. Does not limit the allocation of losses. At Risk Limitations under Section 465 – Limits losses from an activity to amount atrisk. Entity may have more than one activity. Passive Activity Loss Limitation under Section 469 – Limits losses from passive activities to passive income from all sources. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 75 The Unique Alternative to the Big Four® Form 8582 - The Gauntlet-Example Partner's Outside Basis Partner's At-Risk Limitation Partner's share of loss (passive) Partner's passive income-other sources Loss Suspended $50,000 $35,000 ($60,000) $25,000 Allowable Basis $60,000 $10,000 $50,000 At-Risk $50,000 $15,000 $35,000 Passive $35,000 $10,000 $25,000 Audit | Tax | Advisory | Risk | Performance Allowed $25,000 © 2013 Crowe Horwath LLP 76 The Unique Alternative to the Big Four® Form 8582 – Who files? Individuals Estates Trusts Closely-held C corporations and personal service corporations subject to the passive loss rules use Form 8810. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 77 The Unique Alternative to the Big Four® Form 8582 – What is Reported? Section 469 divides income into three categories: 1. Active – Income from activities in which the taxpayer materially participates, including activities in which wages and salaries are earned. 1. 2. 2. Portfolio – Investment income such as annuities, royalties, interest, dividend, capital gains/losses, guaranteed payments for interest on capital 1. 3. Not reported on Form 8582 Exception – Rental real estate activities with active participation – reported on Line 1 Reported on appropriate form – Schedule B, D, etc. Passive – Income from activities in which the taxpayer does not materially participate. 1. Reported on Line 3 Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 78 The Unique Alternative to the Big Four® Grouping Activities Disclosures-Rev. Proc. 2010-13 DISCLOSURES: Section 469 entities: Annual activity grouping disclosures required in accordance with the instructions to Forms 1065 and 1120S. Forms require separate activity reporting: 17 items required for each activity. If disclosures not made, does reporting net income/loss on Schedule K, Line 1 constitute grouping? Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 79 The Unique Alternative to the Big Four® Grouping Activities Disclosures-Rev. Proc. 2010-13 Grandfather rule for individual taxpayer groupings prior to the effective date of Rev. Proc. 2010-13. No need to disclose unless: 1. New passive activity is added to the group. 2. Original grouping is inappropriate. 3. Material change in facts. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 80 The Unique Alternative to the Big Four® Grouping Activities Disclosures-Rev. Proc. 2010-13 If a taxpayer fails to disclose a grouping that is required to be disclosed, then each trade or business activity will be treated as a separate activity (unless the IRS regroups under anti-avoidance rule of Regulation Section 1.469-4(f). Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 81 The Unique Alternative to the Big Four® Changing from Passive to Active (and Back Again) Losses suspended as passive investor remain passive if the investor becomes active. Losses may be claimed: Against income from the same activity which is now nonpassive; Against other passive income; In full if the activity is disposed of. Planning note: Changing from active to passive may not be simple due to the rule establishing material participation for taxpayers who materially participated in 5 of the last 10 years Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 82 Slide Intentionally Left Blank The Unique Alternative to the Big Four® THE NEW 3.8% MEDICARE TAX The Unique Alternative to the Big Four® Effect on Medicare Contribution Tax Beginning in 2013, a tax of 3.8% will apply to “net investment income” of individuals, estates and trusts. Draft Form 8960 Net Investment Income includes: 1. Portfolio type income, 2. Income from passive activities as defined in Section 469 and 3. Income from the trade or business of trading in financial instruments or commodities. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 85 The Unique Alternative to the Big Four® Effect on Medicare Contribution Tax Grouping under Section 469 will affect whether trade or business activities are: 1. Active and thus excluded from the Medicare tax, or 2. Passive and thus subject to the Medicare tax. Net passive losses will not reduce non-passive net income for purposes of the Medicare tax. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 86 The Unique Alternative to the Big Four® Medicare Contribution Tax As discussed above, taxpayers generally cannot regroup after initial tax return filing. A one-time regrouping election is available if the following conditions are met: 1. The taxpayer is an individual or an estate 2. The taxpayer is subject to the 3.8% tax in 2013 3. The taxpayer’s first taxable year is after December 31, 2013 and 4. The taxpayer’s modified adjusted gross income exceeds the threshold amount Once made, the regrouping election is binding on all future years. Partnerships and S corporations CAN NOT REGROUP under this one time election. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 87 The Unique Alternative to the Big Four® Minimizing the 3.8% Medicare tax with Grouping Elections The key to minimizing the new 3.8% tax is to avoid the characterization of an activity as passive. The net investment income rules provide a fresh start to passive activity grouping if the new 3.8% tax applies. Taxpayers may regroup their activities in the first taxable year beginning after December 31, 2013 in which the taxpayer’s modified adjusted gross income exceeds the applicable threshold ($200,000/$250,000) and the taxpayer has net investment income. A taxpayer may only regroup activities once under this rule. That regrouping will apply to the taxable year and all subsequent taxable years, Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 88 The Unique Alternative to the Big Four® The Intersection of 469 and 1411 The preamble to the 1411 regulations states that the definition of a passive activity for 1411 is narrower than under 469. The 1411 regulations provide that despite any grouping under 1411 for self-rentals, each rental activity must on its own rise to the level of a IRC 162 trade or business in order to escape the 3.8% tax. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 89 The Unique Alternative to the Big Four® The 3.8% Medicare Tax-The Intersection of Sections 1411 and 1402 S Corporations- Material participation will avoid the 3.8% tax. Only actual wages paid will be subject to employment taxes. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 90 The Unique Alternative to the Big Four® Effect on Medicare Contribution Tax - Planning Self- Charged Interest Rules: If a taxpayer lends money to a partnership or S-Corporation in which the taxpayer owns an interest, or vice versa, the taxpayer will have interest income and expense related to the loan. If the loan proceeds are used in a passive activity, there could be a mismatch between the passive deductions generated and the portfolio interest income from the loan. The self-charged interest rules are intended to allow an offset. The regulations also apply to guaranteed payments for the use of capital under Section 707(c). Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 91 The Unique Alternative to the Big Four® Effect on Medicare Contribution Tax - Planning The regulations re characterize the “applicable percentage” of the interest income and/or interest expense as arising from a passive activity. See Regulation Section 1.469-7. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 92 The Unique Alternative to the Big Four® Effect on Medicare Contribution Tax - Planning Self Charged Interest Rule Example: Paul lends money to the Blackacre partnership. The Blackacre partnership is 50% owned by Paul and 50% owned by John. The Blackacre partnership pays Paul $5000 of interest on his loan. The interest is deductible by the Blackacre partnership and is allocated $2500 to Paul and $2500 to John. Paul is passive in the partnership. Paul’s applicable percentage is 50%. Thus, $2500 of Paul’s interest income is recharacterized as income from a passive activity. The balance of the interest income is portfolio income. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 93 The Unique Alternative to the Big Four® Planning for Self-Charged Rents Self-charged rents and Net Investment Income tax: Owners of a closely held business form a pass through entity to own the real property used in the operating business. The operating business leases the property from the real estate entity at an arms length rate. These leases are typically structured as triple net leases. Rental income is recharacterized as nonpassive. However, the preamble to the 1411 regulations points out that two tests must be satisfied for income from pass through entities to be exempt from the tax: The income must be from a trade or business under Section 162; and The income is not passive income under 469. Triple net leases will not qualify as a trade or business, and conversion of triple net leases to traditional leases will not necessarily result in a trade or business. Grouping of a rental activity that does not constitute a trade or business with a trade or business activity under Section 469 will not result in the rental activity being treated as a trade or business. Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 94 The Unique Alternative to the Big Four® For more information, contact: David Holets Direct 317.706.2683 david.holets@crowehorwath.com Crowe Horwath LLP is an independent member of Crowe Horwath International, a Swiss verein. Each member firm of Crowe Horwath International is a separate and independent legal entity. Crowe Horwath LLP and its affiliates are not responsible or liable for any acts or omissions of Crowe Horwath International or any other member of Crowe Horwath International and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe Horwath International or any other Crowe Horwath International member. Accountancy services in Kansas and North Carolina are rendered by Crowe Chizek LLP, which is not a member of Crowe Horwath International. © 2013 Crowe Horwath LLP Audit | Tax | Advisory | Risk | Performance © 2013 Crowe Horwath LLP 95