Corporate Earnings & Profits

Corporate Earnings & Profits Denver Tax Attorney

A tax attorney at The McGuire Law Firm can assist your corporation regarding corporate issues such as earnings & profits, and what this term means to their business.  A tax attorney can help individual business owners regarding certain transactions of which the corporate earnings & profits will play a role.  Below is an article related to corporate earnings & profits that we hope you find useful.

From a tax perspective a corporation’s earnings & profits (E&P) do not impact the corporation’s tax liability.  Thus, why is the E&P of a corporation important, and what impact does such amount of figure have on the corporation?  The reason corporate E&P is so important is because a corporation’s E&P is used to calculate how distributions to shareholders of the corporation are taxed.  Corporate distributions are included in a shareholder’s gross income for individual income tax purposes to the extent the distribution constitutes a dividend under IRC Section 301.  Internal Revenue Code (IRC) Section 316 defines a dividend as any distribution of property from a corporation to the corporation’s shareholders out of E&P.

Corporate distributions are first treated as a dividend to the extent of the corporation’s E&P.  Thereafter, the distributions are treated as a return of capital to the shareholder(s), and thereafter capital gain to the shareholders.  Thus, a corporation’s E&P really appears to be a measure of the corporation’s ability to make distributions to the corporate shareholders without returning the shareholder’s capital contribution or other investor investments. This means a corporation’s E&P is a measure that represents a corporation’s ability to make distributions to shareholder’s without disrupting the shareholder(s) basis in their capital investment.

 

There is no black and white rule, method, statute or law for a corporation to follow when calculating E&P.  Due to the important role E&P plays in characterizing corporate distributions as dividends, the allocation of E&P in tax free corporate distributions such as reorganizations are important considerations when corporations consider such transactions and reorganizations.  IRC Section 381 deals with the carryover of corporate E&P.  For example, what occurs when one corporation with an E&P deficit is acquired by a corporation with accumulated E&P?  The IRS has issued regulations section 1.312-10 to address these issues, which will not be discussed in this article.

 

Under IRC Section 302 certain corporate distributions may not be treated as dividends and thus be given sale or exchange treatment to the taxpayer.  These transactions are primarily based on the overall impact to the shareholder’s ownership in the corporation after the transaction has been completed.  If a shareholder’s corporate ownership has been reduced or diminished enough, the distribution to the shareholder can be afforded sale or exchange treatment.  If the shareholder, after the transaction no longer holds any stock and has completely liquidated their interest, the transaction may be afforded sale or exchange treatment.  Certain transactions may also be considered partial liquidations and thus receive sale or exchange treatment.

Corporations with questions regarding their E&P, or considering distributions of property should consult with their CPA and/or their tax attorney and business attorney to discuss the tax implications to the corporation and shareholder. A Denver tax attorney at The McGuire Law Firm would welcome the opportunity to discuss such tax matters and issues with any business owner.

You can schedule free consultation with a Denver tax attorney by contacting The McGuire Law Firm.  720-833-7705 or John@jmtaxlaw.com

Offices in Denver, Colorado and Golden, Colorado.

IRS Action During Government Shutdown

IRS Action During the Government Shutdown Denver Tax Attorney

As we all know, the U.S. federal government “shutdown” on October 1, 2013 due to the house and senate’s inability to pass a short term spending bill that would continue to keep the government funded.  As a Denver tax lawyer, John McGuire has been paying close attention to the impact the shutdown will have on IRS action.

This government shutdown has impacted federal agencies including the IRS.  As tax attorneys, we represent a number of individuals and businesses before the Internal Revenue Service regarding tax audits, tax debts and other federal tax controversies.  Thus, we have received a number of inquiries from our clients regarding what the IRS is doing in terms of collection, enforcement and tax audits during the shutdown.  Additionally, in many circumstances, we have been unable to contact Internal Revenue Service revenue officers, and Internal Revenue Service departments such as the automated collection division and tax practitioner hotline.

In regards to IRS federal tax liens, the IRS announced that federal tax liens are not being issued and filed during the shutdown by revenue officers and nor are they being automatically generated.  Additionally, IRS bank levies are not being issued during the shutdown.  However, certain taxpayers may have received these notices with October 2013 dates, but these federal tax lien and IRS levy notices were issued prior to the shutdown.  Certain notice that a taxpayer may be subject to a federal tax lien or IRS levy may be automatically generated and issued to the taxpayer during the shutdown.

Regarding IRS enforcement action, the only enforcement action currently occurring in non-criminal cases involves cases and situations where action must be taken now to best protect the government’s interest.  For example, if a taxpayer owes a tax debt, and the collection statute on the tax liability is in jeopardy of expiring in the immediate future, the IRS may be taking enforcement action at this time.  Regarding criminal cases, the majority of criminal tax cases continue to be prosecuted by the applicable criminal investigative departments and units.  This corresponds with the fact that most federal law enforcement agencies have continue to operate and function during the government shutdown.

If you have a tax debt with the IRS or an ongoing tax audit and have questions regarding the impact of the government shutdown, it is recommended that you contact a tax attorney to discuss your situation and circumstances.  A tax attorney at The McGuire Law Firm can assist you with  tax matter or tax problem before the Internal Revenue Service.

Contact The McGuire Law Firm and schedule a free consultation with a Denver tax attorney to help resolve your IRS tax matters.  A free consultation is offered to all potential clients.

C Corporation Considerations When Selling Your Business

C Corporation Considerations When Selling Your Business Denver Business Attorneys

As a business and tax attorney, John McGuire at The McGuire Law Firm is commonly asked, “how should I sell my business, and what are the tax implications?”  This question brings about many issues; way too many to be discussed in a short article, but the owners of a C corporation should understand the basics behind a stock sale versus and asset sale and the advantages and disadvantages to each.

When the business owner is considering the sale of their business they must determine whether they wish to sell the stock or the assets of the business.  A shareholder or seller would usually prefer a stock sale and a buyer would usually prefer an asset sale.  When the stock of a C corporation is sold sale or exchange treatment is given to the transaction and therefore the shareholder will receive capital gain treatment on the amount received above the basis in their stock.  The buyer prefers an asset sale because the purchase of the assets allows for a step up in basis, and the buyer does not carryover the seller’s depreciation schedule.  This generally will afford the buyer greater deductions and less tax.  Furthermore, when the stock of a corporation is purchased, the seller is relieved of liabilities and liabilities or exposures to such are transferred to the buyer.

The above issues show why the sale of C corporation assets is not favorable due to the fact there are not capital gains rates for corporations.  A C corporation selling appreciated assets will pay corporate level tax even if a capital gain is generated.  If cash is distributed to the shareholders after the sale of corporate assets, this is also a taxable event likely to be treated as a dividend or receive capital gains treatment.  Regardless, double taxation has occurred.

A C corporation may be able to mitigate some or all of the double taxation based upon the current tax attributes of the corporations.  For example, the corporation may have a net operating loss or certain credits that carry forward.

Any business considering liquidating or the sale of stock or assets should contact their business attorney and/or their tax attorney to discuss the full implications of the transfer.  A Denver tax attorney or business attorney at The McGuire Law Firm can assist you with your tax or business questions or issues.

Contact The McGuire Law Firm to schedule a free consultation with a tax attorney or business attorney.

Partnership Special Tax Allocations

Special Tax Allocations Denver Business Attorney

The special tax provisions included in the majority of partnership agreements such as limited partnership and limited liability company (LLC) operating agreements, exist to satisfy requirements regarding the regulation of partnerships as established within the Internal Revenue Code.  These special allocation provisions can alter the bargained for agreement and understanding of the partners thus, creating disruption between the partners during the operation of the partnership.  A Denver tax lawyer at The McGuire Law Firm can assist partners and partnerships in understanding the impact of special tax allocations.

The Internal Revenue Code allows a partnership to have flexibility regarding the partner’s pass through of income and loss.  However, Internal Revenue Service will not respect allocations that do not have substantial economic effect.  In short, substantial economic effect means that partnership allocations need to be passed through to the partners who receive or enjoy the benefit of the income or hold the economic burden associated with the partnership losses.  The IRS can reallocate income or losses if the IRS determines an allocation or allocations do not have substantial economic effect.

The impact on the substantial economic effect regulations may be most apparent when looking at the limited partners in a limited partnership (or limited liability company).  The benefit of limited liability can result in certain allocations lacking substantial economic effect in the eyes of the Internal Revenue Service.  When considering the special allocations within a partnership agreement, one should note that a safe harbor is provided and can be satisfied in the partnership agreement with the inclusion of certain provisions as outlined below.

Non-Recourse Debt Allocations: Such provisions require that the allocation of losses and deductions to partners associated with non-recourse debt-financed property have substantial economic effect.

Partner Minimum Gain Chargeback: Such provisions apply when there are non-recourse liabilities that a partner bears the risk of economic loss.  The minimum gain related to these liabilities need to be allocated to partners that previously received allocations of losses and deductions related to the applicable liabilities.

Distribution Triggered Special Allocations: Such provisions allocate gain and income to a partner that offset “excess” distributions received by the partner that would be in excess of the partner’s interest.

It is recommended that the partners or partnership consult with a business attorney or tax attorney to discuss the impact of special allocations and to draft the operating agreement of the partnership.  The reallocation of income, loss, gain or deductions by the IRS can create negative individual income tax consequences to the individual partners.  Our tax attorneys and business attorneys are available to consult you regarding these issues.

Contact The McGuire Law Firm to speak with a Denver tax attorney or business attorney.  Free consultation!

Estate Planning and Gift Tax Analysis on Transfers of Property

Gift Tax Analysis on Transfers of Property

 Denver Estate Planning Attorneys

             Maybe you are considering gifting property or money to a child or other family member, or maybe you have already gifted property and are wondering about the gift tax consequences.  If you have not transferred the property and made the gift, it is always advisable to speak with you’re your estate planning attorney or a tax attorney prior to the disposition.  However, if the gift has been made, this article may be able to assist you in analyzing the tax consequences of such gift.

 

First and foremost you must ask, was there a completed gift?  Did you actually gift the property to a third party?  For a complete gift, you as the donor must completely give up dominion and control of the property to have a completed gift.  Thus, the donee must have the immediate right to use, possess or transfer the property, as well as right to enjoy any income from the property.  For example, property transferred to a revocable trust is not a gift because the trust can be revoked.  If creditors have the right to income from the property transferred, this also would not appear to be a completed gift.

 

If it is determined that the gift is a completed gift, then you must consider whether the gift constitutes a present interest.  For the annual gift exclusion to apply, the gift must be a completed gift of a present interest.  For example, if Joe gifts property into trust and his son Mike holds a remainder interest in the trust, Mike does not hold a present interest as a remainderman and thus the annual gift exclusion would not apply.

 

If it is determined that the gift is a completed gift of a present interest then you must look at the value of the gift.  The fair market value of the gift is the fair market value as of the date of transfer.  The amount of the gift exceeding the current year annual gift tax exclusion would reduce the donor’s lifetime exclusion or be taxable if the donor has already “used” their lifetime exclusion or credit.

 

After the gift is made, what is the donee’s (recipient’s) basis in the gift?  This is important so that the donee’s gain can be calculated upon their transfer of the property.  The recipient takes a carryover basis in the gifted property under Internal Revenue Code Section 1015.  Thus, the recipient takes the donor’s basis.  Further, if the donor pays gift tax on the transfer, the gift tax paid by the donor increases the donee’s basis, and this is known as the Gift Tax Paid Adjustment (GTPA).

 

One issue to consider is that property received via inheritance receives a stepped up basis to the fair market value of the property at the death of decedent under Internal Revenue Code Section 1014.  Thus, it may not always be wise to gift property (depending upon the circumstances) in order to take advantage of the stepped up basis rules when property is received through an inheritance.

 

Individuals considering gifting property should consult their estate attorney or tax attorney to discuss the current and long term tax implications of the transfer and to ensure the transfer will achieve the intended results.

Contact The McGuire Law Firm to speak with and schedule a free consultation with a estate planning attorney.

 

The Corporate Capital Structure

The Corporate Capital StructureDenver Business Attorneys

At The McGuire Law Firm, a Denver business attorney or tax attorney can assist you with the capital structure of your corporation and other business entities.  The article below is a general outline of some issues to consider when looking at your corporate capital structure.  Please feel free to contact a Denver tax attorney and business attorney at The McGuire Law Firm.

When forming a corporation, the capital structure should be designed in a manner that effectively allocates the various interests in the corporation amongst the owners and investors.  The pertinent interests will be: interests in current income, interests in control and, interests in accumulated income and capital.  When organizing the corporation, there is significant flexibility to design the capital structure and thus accomplish the preferred allocation.

The capital structure of a corporation will consist of securities issued by the corporation in exchange for cash, property or services contributed to the corporation.  Stock issued by the corporation represents ownership in the corporation or an equity interest in the corporation.  Debt of the corporation is a creditor interest.  Although the difference between an equity interest and a debt interest would appear clear, the difference between an equity interest and debt can often be very unclear.

Stock, Debt, Options & Hybrid Securities

Common Stock: Every corporation has at least one class of common stock outstanding.  The common stock holders are entitled to the corporation’s profit, increase in value and the right to vote on corporate matters.  Common stock however, would be considered more of a “junior” security due to because common stock holders are entitled to their rights only when required allocations have been made to other “senior” security holders.

Preferred Stock: A corporation can issue one or more classes of stock, and often a corporation will issue “senior” securities known as preferred stock.  A preferred stock holder’s right to current income and/or accumulated capital is limited.  Each share of preferred stock usually holds a stated liquidation preference, which is the amount to be paid on the retirement of the preferred stock and the amount paid to the corporation to acquire the preferred stock.  The limitation on current income of a preferred stock holder is usually limited to a percentage rate of the liquidation preference.  Thus, preferred stock can appear to be quite similar to a loan.  Generally, for tax purposes, preferred stock has been treated as “stock” and similar to common stock.

Debt: The debt of a corporation may come in many forms.  Extensions of credit (debt) could be a short term loan needed to purchase goods and inventory, or could be a long term investment in the corporation.  Further, a bank may loan money to the corporation.  Each form or type of debt is likely to have different terms and maybe secured by different means, or even unsecured.  In most circumstances and absent an agreement to the contrary, debt is senior to all stock.  Thus, interest on the debt is paid before dividends are paid to shareholders, and upon dissolution of the corporation, the debt is priority and will be satisfied first and foremost.

Options: An option is the right to purchase stock of the corporation, at a fixed price in the future.  Thus, the investor may be able to benefit in the later appreciation of the stock for a smaller current investment.

Hybrid Securities:  A single security may hold the attributes of multiple types of securities.  For example, a convertible security is a hybrid.  The terms of a debt instrument may allow the holder (creditor) to exchange the note or instrument for a specific number of shares of stock.  These forms of securities create difficulties in defining and labeling the security as either equity or debt.

Investing in a Corporation

An investor is free to make multiple types of investments in a corporation, and some investors prefer this balance and strategy.  The pertinent question for the investor is how to balance the additional security of debt against the stock’s potential for appreciation.

Debt or Equity Financing, or both?

Structuring the correct balance between debt and equity financing is not easy, and often, only time allows the investor or corporation to reflect upon the decisions made- hindsight is always 20/20!  However, the structuring can be vital to the success of the corporation and thus an investor’s rate of return on their investment.  There are tax and non-tax issues to consider, and often the answers to these issues create more questions and are in conflict with one another.  Some favor debt due to the fact that a C Corporations profits distributed on stock are subject to double taxation and the payment of interest on debt is deductible.  Investors may prefer debt due to the greater security and generally steady and consistent annual return on investment that is not always found with dividend payments.  Some favor stock because stock, unlike debt can be received in a tax free transaction.  Further, too much debt can impact the corporation’s credit, and the payment of debt interest can create cash flow issues for businesses, especially newer businesses.

We recommend that the business owners contact their business attorney or tax attorney when considering the formation and structure of their business.

Contact The McGuire Law Firm to schedule a free consultation with a Denver business attorney.

5 Reasons to Hire a Tax Attorney

5 Reasons or Situations of Which You Should Hire a Denver Tax AttorneyDenver Tax Attorney

 1) If you are being audited by the IRS or owe taxes to the IRS, you should contact a tax attorney.  An experienced tax attorney can represent you before the IRS and often prevent enforcement action such as bank levies, asset seizures and wage garnishments.  Further, your tax attorney can help you resolve the tax issue, as well as help educate you to hopefully prevent the issues from occurring in the future.  John McGuire is an experienced Denver tax attorney at The McGuire Law Firm and has successfully represented hundreds to thousands of businesses and individuals before the IRS.

2) If you are starting a business, a tax attorney can educate you on the tax issues and implications regarding the taxation of different business entities, and tax affects to the business owners.  Further, if your business will have employees, a tax attorney can help you understand your requirements regarding withholding taxes, 941 returns and federal tax deposits. A Denver tax attorney can assist you with the formation of your businesses and in understanding your tax responsibilities.

3) If you are considering gifting or transferring property to loved ones or other parties, a tax attorney can help draft the necessary documents and advise you regarding the federal tax implications.  A tax attorney will often work with clients regarding the advantages of gifting within their estate plan and execute these gifting strategies within the estate planning documents.

4) Your considering buying a rental property, but do not understand depreciation and how the rental property will impact your individual income tax return.  A tax attorney can help you understand these issues and thus allow you to take full benefit of the federal tax code and likely reduce your personal income tax.  A Denver tax attorney at The McGuire Law Firm can outline the tax implications and issues to consider when purchasing rental properties, in addition to other issues such as liability.

5) You have not filed tax returns in a while and are scared of the IRS.  Call a tax attorney immediately.  The longer you wait, the worse the situation will become.  A Denver tax attorney at The McGuire Law Firm can contact the IRS on your behalf, obtain information & transcripts and help you prepare and file returns with the IRS.  If the tax returns once filed result in a tax debt, we can help you resolve your IRS debt with an offer in compromise, installment agreement or other resolution option.

 

Call us at 720-833-7705 to speak with a Denver tax attorney and schedule your free consultation.

 

 

5 Reasons to Hire a Denver Business Attorney

Denver Business Attorney Denver Small Business AttorneyAt The McGuire Law Firm,  a Denver business attorney can assist you on a number of issues and on an ongoing basis as your business grows.  Below are situations in which you may wish to consult with a Denver business attorney at The McGuire Law Firm.

  1. A business attorney can help you form the proper entity or entity structure based upon the needs of your business. Further, through this process, your business attorney can explain to you the different liability protections afforded different entities and the different tax implications to the business and business owners based upon the choice of the business entity.  For example a C Corporation, S Corporation and Limited Liability Company (LLC) are all treated differently for tax purposes, and a fundamental understanding of the taxation of your business entity is a must to properly run and operate your business.  Further, your business attorney can explain the individual income tax issues that you as the business owner will need to consider.
  2. How should your business be financed?  Do you want more debt or equity interests in your business?  A Denver business attorney at our office can help you understand what constitutes debt and equity, and the good & bad behind both debt and equity financing.
  3. Did you read and understand your lease agreement?  A business should always hire a business attorney to review and negotiate their lease agreement.  The vast majority of lease agreements are very “one-sided” in favor of the landlord and a business attorney may be able to help you negotiate more reasonable terms, as well as explain the terms of the lease agreement and your personal exposure to the lease agreement as an owner and likely guarantor of the lease agreement.
  4. You’ve heard the saying that death and taxes are the only 2 certainties in life.  While this may be true, if you own a business, there is also the certainty that as at some point during your life or at your death, you will need to sell, dispose of or otherwise transfer your business interests.  A business attorney can help you establish a plan regarding the transfer or sale of your business or business interests in a manner that is most beneficial to you regarding your exposure to liability and in regards to the taxation of the transfer or disposition.  Your business attorney can also help in regards to the drafting of the purchase agreements and the necessary negotiations with the parties involved.
  5. As a business owner, you may want to establish retirement accounts for yourself and your employees.  A business attorney can assist you regarding the different options and tax benefits, as well as the reporting requirements for such compensation plans.

Contact The McGuire Law Firm to schedule your free consultation with a Denver business attorney.