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Webinar: Year-End Planning Steps for Success in 2022 11.29.2022.pdf

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Webinar: Year-End Planning Steps for Success in 2022 11.29.2022.pdf

  1. 1. 1 2022 WithumSmith+Brown, PC Year-End Planning Steps for Success in 2022 November 29, 2022
  2. 2. 2 2022 WithumSmith+Brown, PC Meet Your Speakers Daniel Mayo National Lead,Federal Tax Policy dmayo@withum.com Hal Terr Lead, Private Client Services hterr@withum.com Jim Bartek Market Leader, State and Local Tax Services jbartek@withum.com Lynn Mucenski-Keck National Lead,Federal Tax Policy lmucenskikeck@withum.com Calvin Yung International Tax Manager cyung@withum.com Manpreet Sangha International Tax Manager msangha@withum.com Rebecca Stidham State and Local Tax Services Partner rstidham@withum.com
  3. 3. 3 2022 WithumSmith+Brown, PC Federal Tax Year-End Planning
  4. 4. 4 2022 WithumSmith+Brown, PC Year-End Tax Planning  The general rule is to defer income and to accelerate expenses  It is generally easier for cash-method taxpayers to control the timing of income and expenses • Small Business Exception: gross receipts test for any taxable year if the average annual gross receipts of such entity for the 3-taxable-year period ending with the taxable year which precedes such taxable year does not exceed $27,000,000 for 2022 (inflation adjustment of $29,000,000 for 2023) • Also assist in simplified inventory tracking rules, avoiding 263A capitalization, and 163(j) interest expense limitation rules • Small business exception is assessed every year
  5. 5. 5 2022 WithumSmith+Brown, PC Year-End Tax Planning  Defer Income: Advanced payment deferral for accrual taxpayers  Taxpayercan elect to defer any portion of the paymentthat is not required to be included for financial accounting purposes in the current taxableyear, to the following taxableyear  Advanced payment is any payment 1. Of which a full inclusion in gross income would be a permissible method of accounting 2. Any portion of the which is taken into account as for financial accounting purposes in a subsequenttaxable year 3. Which is for goods or services • Including the license or lease of intellectual property, the sale, lease, or license of computer software, certain subscriptions and eligible gift card sales  Advanced payments do not include rent, certain insurance premiums and financial instruments, and certain warranty or guarantee contracts  Example: A hair styling salon receives advance payments for gift cards that have an expiration date of 12 months from the date of sale, does not accept expired gift cards, and includes unredeemed gift cards in financial statementrevenue in the taxableyear the card expires. The hair styling salon can defer these cash payments to the following year.
  6. 6. 6 2022 WithumSmith+Brown, PC Year-End Tax Planning  Defer Income: Like-Kind Exchanges  Following the TCJA, like-kind exchanges only apply to real property • No gain or loss is recognized on the exchange of real property held for use in a trade or business or investment if exchanged solely for real property of like kind which is held for use in a trade or business or investment  Real property includes land and improvementto land • Improvements to land include inherentlypermanent structures, such as a building or any other structure that is considered a distinct asset, permanently affixed to real property, and will remain affixed for an indefinite period of time (i.e. could include enclosed transportation stations and terminals) • Improvements to land include structural components, including any distinct asset that is integrated into an inherently permanent structure (i.e. HVAC, pipes and ducts, and similar property)  When non-qualifying property is received,the basis is allocatedamong the nonqualifying property according to the FMV on the date of the exchange
  7. 7. 7 2022 WithumSmith+Brown, PC Year-End Tax Planning  Defer Income: Investment of Capital Gain in Qualified Opportunity Fund  Who is eligible? A taxpayer that recognizes capital gains for federal income tax purposes, including individuals, partnerships, S corporations, C Corporations, and trusts and estates • A partnership may elect to defer the recognition OR if no partnership election is made, partners may defer (similar rules apply to S corporations and shareholders, trusts and beneficiaries)  What gain is eligible? Short-term and long-term capital gain, §1231 gain and unrecaptured §1250 gain of which the gain was created due to a sale or exchange to an unrelated person which is reinvested within a designated time period  How long can I defer my gain? Any deferred gain must be included at the earlier of the date on which the investment is sold or exchanged or December 31, 2026 (Lessor of the gain deferred or FMV)  Are there any benefits for holding the investment? If held for ten years, the basis of such property is equal to FMV on date of sale (NO GAIN recognized upon sale of QOF). The taxpayer must sell the investment in the QOF before Jan. 1, 2048
  8. 8. 8 2022 WithumSmith+Brown, PC Year-End Planning Qualified Opportunity Fund Example Invest $1 million of capital gain Basis: $0 12/15/22 Initial Investment 12/31/26 TAXABLE EVENT WITHOUT LIQUIDATION FMV 1,500,000 Lesser: Gain Deferred 1,000,000 or FMV of investment 1,500,000 Less Basis: $0 Taxable amount: $1,000,000 Basis is now $1,000,000 12/31/32 Ten year-holding requirement is met If held for ten years, basis of such property equal to FMV on date of sale (NO GAIN recognized upon sale of QOF) *the taxpayer must sell the investment in the QOF before Jan. 1, 2048
  9. 9. 9 2022 WithumSmith+Brown, PC Year-End Tax Planning  Accelerate expenses: Business  Prepaid expenses:  Cash basis taxpayer:Generally, can accelerate the deduction for expenses paid provided the 12-month rule is met  Accrual basis taxpayer:Careful review should take place regarding prepaid expenses that fall under the 12-monthrule • Insurance, warranty, and service contracts generally can be deducted in the year of payment • Prepaid service contracts will be deductible in year of payment provided the item is paid within 8.5 months, the item is recurring, and is either immaterialor provides for a better matching principal  Pass-through entity tax election (PTET)  Best practice is to pay the estimated income tax in relation to the PTET before December 31, 2022  Accrual basis taxpayers shouldreview if the PTET is fixed to ensure a deduction
  10. 10. 10 2022 WithumSmith+Brown, PC Year-End Tax Planning  Accelerate expenses: Business  Interest Expense Limitation • Interest expense limitation is calculated without adding back depreciation and amortization • Explore the exceptions to the interest expense limitation rules, including small business exemption and real estate exception • Review intercompany transactions, including rent and management fees  R&E Capitalization • Under current law, R&D expenditures are no longer immediately expensed but instead required to be capitalized over a 5-year period (a 15-year period for foreign research) • Ensure proper classification of R&D expenditures versus • Explore the need for an R&D credit study  Reasonable Compensation • Reevaluate reasonable compensation in S corps (i.e., employment tax planning) while being mindful of the excess business loss (EBL) limitation rules • Reevaluate officer compensation in C corps (i.e., to reduce double taxation)
  11. 11. 11 2022 WithumSmith+Brown, PC Year-End Tax Planning  Accelerate expenses: Business  Bonus depreciation • Qualified property acquired and placed in service before the end of the year will still be eligible for 100% first-year bonus • Bonus depreciation starts to decrease by 20% in 2023 until zero in 2027  §179 expensing • Section 179 expenses for businesses is the 2022 taxable year is limited to $1,080,000 ($1,160,000 for 2023), and reduced by $1 for 179 properties placed in service that exceeds $2,700,000 ($2,890,000 for 2023)  De minimis election provision • Immediately write off formerly inventory items that cost less than $2,500 (or $5,000 if the taxpayer had an applicable financial statement) • A written accounting policy is required • The policy must be applied consistently for tax and book purposes
  12. 12. 12 2022 WithumSmith+Brown, PC Year-End Tax Planning  Other Reminders:  Installment sales defer the gain until payments are received  Rollover of QSBS gain if 5-year holding period not met at the time of sale • QSBS allows a noncorporate shareholder to exclude gain from the sale of stock (greater of 10,000,000 or 10 times the basis) held for more than five years • The stock must be issued by a domestic C corporation and immediately after the date of issuance, the total gross assets (based on tax basis) of the corporation must not exceed $50 million • Substantially all of the shareholder's holding period, at least 80% of the assets (based on FMV) of the corporation must be used in the active conduct of a qualified trade or business
  13. 13. 13 2022 WithumSmith+Brown, PC Year-End Tax Planning  Accelerate expenses: Individuals  Charitable Contributions  Ability to claim the above-the-line AGI deduction for $300 ($600 in the case of a joint return) for cash donations made to qualified charities is no longer available in the 2022 taxable year  AGI limitation was reduced from 100% to 60% for aggregated cash contributions made to qualified organizations • Bunch deductions to get over the standard deduction (2022 taxable year: $25,900 MVJ, $12,950, single) • Use credit cards to make payments – a mere pledge does not provide a deduction but paying with borrowed funds works • Prepaid mortgage interest is not deductible if it is for a period that goes beyond the end of the tax year • Unreimbursed medical care expenses that exceed 7.5% are deductible  Make qualified charitable contributions straight from an IRA – if 70½ or older, donate up to $100K from an IRA; no capital gains tax due and less taxable distributions down the road
  14. 14. 14 2022 WithumSmith+Brown, PC Tax Loss Harvesting & Wash Sale Rules  Sell equities with built-in loss to offset loss against capital gain  Losses deferred if taxpayer acquires “substantially identical” stock or securities in the window period (i.e., period starting 30 days before the sale and ending 30 days after the sale)  Applies if you sell stock and buy a call option on the stock  Does not apply to sales of cryptocurrency  Ways to avoid the wash sale rules (look for material features that are substantially different):  Sell GM and buy Ford (different issuers in same industry are not substantially identical)  Double up and sell loss stock 31 days later  Sell mutual fund and acquire similar ETF  Sell stock and sell out-of-the-money put option (i.e., a long exposure) that is not likely to be exercised  Sell stock and buy an ETF or a basket of securities including the stock (70/30 basket rule – not substantial similar or related property)  Sell 70/30 basket and buy stock, or buy a different 70/30 basket  Sell options and buy stock  Sell options and buy similar (but not identical) options
  15. 15. 15 2022 WithumSmith+Brown, PC Year-End Business Planning  Sell mutual funds in Nov./Dec. before the ex-dividend date to avoid tax on dividends and capital gains distributions  You are subject to tax even if the funds were reinvested  Take stock of and diversify your investment portfolio  Don’t let winners comprise too much of your portfolio  Build a bond ladder with staggered maturities now that interest rates are rising  Consider where you are holding your assets  Bonds and fixed-income are best held in retirement accounts  Equities are best held in taxable accounts
  16. 16. 16 2022 WithumSmith+Brown, PC Year-End Business Planning (cont’d)  If you turned 72 in 2022, take RMDs from IRA/401(k) by 4/3/2023; otherwise, must take RMDs by year-end 2022  If you defer to 2023, then you must take two RMDs in 2023  Adult children and non-spouse heirs must deplete IRAs and other tax-deferred accounts within 10 years  Under recent IRS guidance, heirs who inherited in 2020 or 2021 have until 2023 to start taking withdrawals if have not started yet, to avoid the 50% RMD penalty  If decedent started taking RMDs, then withdrawals can be spread over 10 years  If decedent never took RMDs, then under recent IRS guidance, heirs can wait until year 10 to deplete the account all at once (to get more deferral)
  17. 17. 17 2022 WithumSmith+Brown, PC Year-End Business Planning (cont’d)  Spouses can roll funds into their own IRA and defer gain until they must take RMDs at age 72  Alternatively, they can transfer funds to an inherited IRA and take distributions on their own life expectancy  Use a year-end bonus to pay off high-interest credit card debt  Do not prepay low-interest debt if you can invest in higher-earning fixed income securities (positive arbitrage)
  18. 18. 18 2022 WithumSmith+Brown, PC 2023 Inflation Adjustments & Changes
  19. 19. 19 2022 WithumSmith+Brown, PC 2022 2023 Standard Deduction Single – $12,950 MFJ – $25,900 HoH – $19,400 Single – $13,850 MFJ – $27,700 HoH – $20,800 401(k) Contribution Limit $20,500 $22,500 Catch-up Contribution Limit for Employees 50 and Older $6,500 $7,500 IRAContribution Limit $6,000 $6,500 Roth Phase-out Ranges Single – $129K to $144K MFJ – $204K to $214K Single – $138K to $153K MFJ – $218K to $228K HSAs Single – $3,650 Family – $7,300 Catch-up if 55 or older – $1,000 Single -- $3,850 Family – $7,500 Catch-up if 55 or older – $1,000 FSAs $2,850 $3,050 Lifetime Estate Tax Exemption $12,060,000 / person $12,920,000 / person Annual Gift Tax Exclusion $16,000 $17,000 Social Security (6.2%) WageCap $147,000 $160,200 Tax Inflation Adjustments
  20. 20. 20 2022 WithumSmith+Brown, PC Polling Question #1
  21. 21. 21 2022 WithumSmith+Brown, PC International Year-End Planning
  22. 22. 22 2022 WithumSmith+Brown, PC Continuing Global Impact from Recent Legislation and Regulations  U.S. corporations are generally subject to current taxation of the income earned by its foreign subsidiaries at a 10.5% tax rate (the GILTI tax regime) under the TCJA. Individuals are subject to tax on such income at their ordinary marginal tax rate. U.S. corporations are allowed a deduction against sales of goods or services produced in the U.S. to non-U.S. end users (the FDII deduction) – resulting in an effective tax rate of 13.125% on such income. This deduction is generally not available to individuals.  The Inflation Reduction Act, which was signed into law on August 16, 2022, authorized spending on green energy and climate change initiatives. The Act anticipates funding this spending through a corporate alternative minimum tax (CAMT), other taxes (e.g., the 1% stock buyback excise tax), and increased IRS enforcement. The Act did not contain any material provisions impacting the taxation of cross-border transactions.
  23. 23. 23 2022 WithumSmith+Brown, PC Continuing Global Impact from Recent Legislation and Regulations  The final foreign tax credit regulations released in 2022 significantly modified the rules around claiming foreign tax credits. The regulations modify the definition of creditable foreign taxes, as well as other items such as qualifying as an in-lieu of income tax.  Outside of the U.S., countries are enacting and implementing rules around “hybrid entities” and “hybrid payments” which may limit the deductibility of expenses in the local countries. These rules should be analyzed and reviewed annually.
  24. 24. 24 2022 WithumSmith+Brown, PC Is your non-U.S. income subject to current taxation under the Global Intangible Low Taxed Income (GILTI) regime? • Have you considered whether you are eligible to exclude “high-taxed” income from GILTI? • If you are an individual, have you considered whether you should make an election to be treated as a corporation for GILTI purposes? An annual “962 election” may potentially decrease your inclusion under GILTI and may make tax credits available to reduce current U.S. tax due on such income. Did you sell goods or provide services to non-U.S. end users, or vice-versa? • Have you considered whether your sales to non-U.S. end users qualify for the FDII regime? Current tax law provides a deduction for FDII - effectively reducing the U.S. tax rate on such income to 13.125%. • Have you considered any non-U.S. registration requirements or indirect tax (VAT/GST) collection obligations? • Have you gathered the appropriate documentation (i.e., Form W-8) from non-U.S. persons receiving payments from you or your company to ensure proper withholding tax has been applied?
  25. 25. 25 2022 WithumSmith+Brown, PC Did you sell goods or provide services to a related party? • Do you have the required transfer pricing policies and documentation in place to support related party pricing? • Are you optimizing your global service supply chain to gain tax efficiencies? Did you repatriate cash to the U.S. from a foreign subsidiary? • Have you considered whether such repatriation is eligible for the new dividends received deduction available to U.S. corporations? • Have you examined the impact of the final foreign tax credit regulations, which changes the definition a creditable foreign tax? Did your organization adopt a remote work policy in response to evolving employee needs? • Have you considered whether employees located in non-U.S. jurisdiction(s) have created a taxable presence for your organization in such jurisdiction(s)? • Employees may be eligible for foreign-earned income exclusion if they are U.S. persons.
  26. 26. 26 2022 WithumSmith+Brown, PC Taxation of the Digital Economy The agreement would only impact large multinational companies with $750 million or more in worldwide sales. Initially, implementation of the agreement was targeted for 2023. However, few countries have enacted the local legislation required to implement these minimum taxes. Many countries have also enacted indirect taxes (VAT/GST) on digital services that are delivered to local customers.Applicability thresholds are generally much lower (e.g., 10,000 Euros of sales), and liability for such tax may extend to other participants of the service supply chain. On October 8, 2021, 136 countries agreed to implement a global minimum tax of 15% - effectively ending decades of tax competition aimed at luring foreign investment with low-income tax rates.
  27. 27. 27 2022 WithumSmith+Brown, PC Polling Question #2
  28. 28. 28 2022 WithumSmith+Brown, PC Estate and Gift Year-End Planning
  29. 29. 29 2022 WithumSmith+Brown, PC Current Estate and Gift Tax Law  The 2017 TCJA doubled the Basis Exclusion Amount and GST exemption from 2018 – 2025 ($10 million in 2011 dollars)  In 2022, the current Estate, Gift and GST Exemption is $12.06 million per individual ($24.12 million for married couples)  In 2023, the current Estate, Gift and GST Exemption is $12.92 million per individual ($25.84 million for married couples)  In 2026, the Estate, Gift and GST Exemption is set to go back to pre-TCJA law ($5 million in 2011 dollars)  With Recent Mid-Term Election results, no changes in Estate and Gift Tax Exemption until at least 2024
  30. 30. 30 2022 WithumSmith+Brown, PC Use the Gift and GST Exemption Now  IRS issued final regulations in November2019 which would not cause recaptureof gifts made in excessof the lifetime exemptionat the time of an individual’s passing  Example: An individual makes a gift of $12.06 million in 2022 and passes away in 2026 when the exemptionis $7 million, the individual’s estateis not subjectto estatetax on the $5.06 million excess gift  Donors cannot use part of the $12.06 million exemption now and preserve the balance for later use  Example: An individual makes a gift of $7 million in 2022 and passes away in 2026 when the exemptionis $7 million, the individual’s estatehas no remaining exemption  If married, have one spouse make a large gift to utilize their $12.06 million exemptionto get “at least one bite of the apple”
  31. 31. 31 2022 WithumSmith+Brown, PC Use the Gift and GST Exemption Now  Make large gifts to family members or trusts for their benefit in excess above the phase-out of estate and gift tax exemption of approximately $7 million in 2026  Establish a Spousal Lifetime Access Trust (SLAT) before the enactment of the proposed legislation  Be careful of Reciprocal Trust Doctrine if Creating two SLATS for each spouse
  32. 32. 32 2022 WithumSmith+Brown, PC Use the Gift and GST Exemption Now  Proposed Regulations to Limit Anti-Clawback Rules  Promissory Notes Not Repaid Prior to Transferor’s Passing  Grantor Retained Trusts and Qualified Personal Residence Trust  Excludes Gifts that are Includible in the Estate where the taxable gift was less than 5% of the Total Value of the Gift  $100 Million Transferred to GRAT in 2022 with Retained Annuity Interest of $88 million and Taxable Gift of $12 million. If Grantor dies in 2026 and the Estate Exemption is $7 million, the estate cannot use the Anti-Clawback Rule  $250 Million Transferred to GRAT in 2022 with Retained Annuity Interest of $240 million and Taxable Gift of $10 million. If Grantor dies in 2026 and the Estate Exemption is $7 million, the estate can use the Anti-Clawback Rule
  33. 33. 33 2022 WithumSmith+Brown, PC Annual Exclusion Gifts  In 2022, the annual exclusion is $16,000 per recipient  In 2023, the annual exclusion is $17,000 per recipient  Don’t Forget About Unlimited Gifts  Payment of Qualified Tuition Expenses Directly to the Provider  Does not include Contributions to 529 Plans or Repayment of College Loans  Payment of Medical Expenses Directly to the Provider  Includes Payment of Medical Insurance
  34. 34. 34 2022 WithumSmith+Brown, PC Portability of Estate Tax Exemption  Transfer of Deceased Spouse’s Unused Exclusion to Surviving Spouse  Allowed on Timely Filed Estate Tax Return, Including Extension  Revenue Procedure 2017-24  Estate Filing a Portability-Only Estate Tax Return Received Automatic Extension to Two Years after Decedent’s Passing  Gross Estate must be below the Estate Exemption in the Year of Passing  Revenue Procedure 2022-32  Extends Amnesty Period to Five Years after Decedent’s Passing
  35. 35. 35 2022 WithumSmith+Brown, PC Applicable Federal Rate  Applicable Federal Rate Has Increased Significantly From One Year Ago  December 2021 §7520 rate is 1.6%  December 2021 AFR – • 0.33% short-term rate • 1.26% mid-term rate • 1.90% long-term rate  December 2022 §7520 rate is 5.2%  December 2022 AFR – • 4.55% short-term rate • 4.27% mid-term rate • 4.34% long-term rate
  36. 36. 36 2022 WithumSmith+Brown, PC Qualified Personal Residence Trust (QPRT)  Leverage the transfer of a personal residence;  Transfer personal residence to a trust in which the grantor retains the right to use and occupy such residence for a fixed number of years, with the remainder interest passing to children or other beneficiaries;  If the grantor outlives the trust term, the residence is removed from the grantor’s estate, and all post-transfer appreciation inures to the benefit of the remainder beneficiaries. If the grantor dies before the end of the trust term, the residence is included in the grantor’s estate at its fair market value at death. 36
  37. 37. 37 2022 WithumSmith+Brown, PC Qualified Personal Residence Trust  Gift calculation results in heavy weighting of the client’s retained interest and a generally favorable gift tax result.  If the residence is sold during the QPRT term, and if it has been the client’s principal residence, it is eligible for the capital gain exclusion of $250,000 ($500,000 for married couple)  Tenancy in common discount: Married persons owning a residence jointly should first transfer the residence to themselves as tenants in common, each with an undivided 50% interest in the property, then have each spouse create his or her own QPRT. (Ludwick v. Commissioner, T.C. Memo 2010-104).  Interest rate environment: QPRTs are more attractive in a higher interest rate environment. The higher the rate the higher the value of the grantor’s right to use the residence as his or her during the term of years  If the grantor wants to use the residence after the term, the grantor can pay fair market value rent to the beneficiaries 37
  38. 38. 38 2022 WithumSmith+Brown, PC RMD for Non-Spouse Beneficiary  SECURE Act of 2019  Original 10 Year Rule – Wait Until 10 Year Anniversary of Decedent’s Passing for Distribution of Inherited Retirement Account  Proposed Regulations Issued February 2022 • Required RMDs Each Year if Decedent was over Required Beginning Date  IRS Notice 2022-53 • Waiver of 50% Excise Tax Penalty for Missed 2021 and 2022 RMDs • Effective Starting 2023
  39. 39. 39 2022 WithumSmith+Brown, PC Polling Question #3
  40. 40. 40 2022 WithumSmith+Brown, PC State and Local Tax Year-End Planning
  41. 41. 41 2022 WithumSmith+Brown, PC How has Wayfair impacted businesses?
  42. 42. 42 2022 WithumSmith+Brown, PC At a Glance…  All states, plus D.C., have passed sales tax economic nexus standards  Beginning January 1, 2023, Missouri will become the last states to adopt economic nexus laws ($100,000 threshold)  Five states don’t have a sales tax  An increasing number of services are becoming subject to sales tax  Although a taxpayer’s revenue stream may not be taxable in their home state, their sales into other states may be subject to sales taxes  The definition of “marketplace facilitator” may differ from state to state
  43. 43. 43 2022 WithumSmith+Brown, PC What are companies doing to manage this risk? Determine where sales tax nexus exists (and when it began) Review taxability of revenue streams Analyze potential exposures, including other taxes Consider Voluntary Disclosure Agreements (VDAs”) and/or registration Review technology needs Consider automation Sales and use tax compliance
  44. 44. 44 2022 WithumSmith+Brown, PC Are there any savings opportunities?  Perform a “refund review” in conjunction with an audit or independently  Check sales tax paid to vendor  Items sold for resale  Services sold for resale  Specific exemptions (e.g., manufacturing, research & development)  Sourcing of services  Use tax accrual review  Immediate and future cash savings for refunds identified  Credit against an audit payment (e.g., cash, interest, penalty)  Contact vendors to provide proof of exemption
  45. 45. 45 2022 WithumSmith+Brown, PC State Tax Implications of a Mobile Workforce
  46. 46. 46 2022 WithumSmith+Brown, PC Telecommuting  As Covid-19 continues to disrupt the global economy and transform workforces, a renewed focus has put telecommuting at the forefront as businesses grapple with the state tax implications  Central issues put into focus:  Income and Sales Tax Nexus  Income Tax Apportionment  State Payroll Withholding
  47. 47. 47 2022 WithumSmith+Brown, PC Factors Summary Payroll Property Sales Factor Components TPP Services/Intangible s Market-Based Cost of Performance Activity Types Destination Sourcing Methods
  48. 48. 48 2022 WithumSmith+Brown, PC Telecommuting Impact on Payroll Tax  Payroll tax withholding involves deducting income and payroll taxes from employees’ compensation before payment to employees.  Employees may adjust income tax withheld from compensation by providing their employers with an employee withholding certificate. The most common state tax withheld from compensation is income tax.  Locations complicate withholding requirements.  The state where an employee principally lives generally has primary taxation authority of the individual’s income. However, for state taxes, withholding from employment income is typically based on where employees actually work.  If an employee principally lives in one state but principally works in another, the employee is generally subject to withholding rules of the principal work state. However, the employee could take a credit for taxes paid to the principal work state against tax liability otherwise owed to the home state.  Complications could arise when there are reciprocal agreements between the two states for withholding.
  49. 49. 49 2022 WithumSmith+Brown, PC Expansion of Income Tax Nexus via P.L. 86-272
  50. 50. 50 2022 WithumSmith+Brown, PC P.L. 86-272 – Summary of the Law  P.L. 86-272 says that a State may not impose a tax based on net income when a taxpayer’s sole connection to the state is the solicitation for sale of tangible personal property and the order is accepted and fulfilled outside of the state.
  51. 51. 51 2022 WithumSmith+Brown, PC MTC’s Current Restatement on P.L. 86-272  How the states interpret PL 86-272 has changed substantially since it was enacted in 1959. As such, the MTC issued its current restatement on P.L. 86-272 indicating how the law should apply in the internet age.  Adopted on August 4, 2021, the purpose of the revision per the MTC was “to address changes that have occurred during the past two decades in the economy and the way that business is conducted.”
  52. 52. 52 2022 WithumSmith+Brown, PC Considerations of MTC’s Restatement  Analyze impact of MTC revision statement.  Monitor how states will adopt the new revised restatement.  Taxpayers may challenge the MTC’s interpretation of protected and unprotected activities under P.L. 86-272.  Model impact and evaluate potential need for structure modifications.  Apportionment implications.  Consider impact in combined vs. separate reporting states.
  53. 53. 53 2022 WithumSmith+Brown, PC Polling Question #4
  54. 54. 54 2022 WithumSmith+Brown, PC The National Landscape of Pass-Through Entity Taxes
  55. 55. 55 2022 WithumSmith+Brown, PC Pass-Through Entity Taxes as a Growing Trend for the States  SALT Limitation: Before passage of the TCJA, individuals who itemized deductions could deduct their state tax payments in full as Itemized Deductions, on their federal Form 1040, U.S. Individual Income Tax Return. The TCJA put into place a $10,000 state and local tax deduction limitation.  SALT Workaround: In theory, the premise of the pass-through entity tax is straight-forward. By imposing an income tax directly on the pass-through entity, which is not limited in the amount of state taxes that it can deduct for federal purposes, a state's tax on pass-through entity income now becomes a full deduction for the pass-through entity for federal income tax purposes.
  56. 56. 56 2022 WithumSmith+Brown, PC Pass-Through Entity Taxes (September 2022)
  57. 57. 57 2022 WithumSmith+Brown, PC PTE’s Primary Features  There are many features / characteristics of each states’ PTE tax. As such, it’s vital these considerations are analyzed.  Election (Mandatory/Elective/Revocable)  Eligibility  State Taxable Base  Owner Income Offset
  58. 58. 58 2022 WithumSmith+Brown, PC PTE Action Items Monitor states for legislation / guidance. Model out potential PTE savings in consideration of making the election. Consider any potential restructuring to potentially maximize benefits and minimize risks.
  59. 59. 59 2022 WithumSmith+Brown, PC Polling Question #5
  60. 60. 60 2022 WithumSmith+Brown, PC Questions? Daniel Mayo National Lead,Federal Tax Policy dmayo@withum.com Hal Terr Lead, Private Client Services hterr@withum.com Jim Bartek Market Leader, State and Local Tax Services jbartek@withum.com Lynn Mucenski-Keck Principal,NationalTax Services Group lmucenskikeck@withum.com Calvin Yung International Tax Manager cyung@withum.com Manpreet Sangha International Tax Manager msangha@withum.com Rebecca Stidham State and Local Tax Services Partner rstidham@withum.com

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